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H&H Pharmaceuticals, LLC v. Chattem Chemicals, Inc.

United States District Court, D. Nevada

February 13, 2017

H&H PHARMACEUTICALS, LLC, a Nevada limited liability company, Plaintiff,
v.
CHATTEM CHEMICALS, INC., a foreign corporation; SUN PHARMACEUTICALS INDUSTRIES, INC., a foreign corporation; DOES I through X; and ROE CORPORATIONS I through X, inclusive, Defendants.

          MAIER GUTIERREZ AYON LUIS A. AYON, ESQ. Nevada Bar No. 9752 JOSEPH A. GUTIERREZ, ESQ. Nevada Bar No. 9046 Attorneys for Plaintiff

          Luis A. Ayon, Esq. Nevada Bar No. 9752 Joseph A. Gutierrez, Esq. Nevada Bar No. 9046 Maier Gutierrez Ayon Attorneys for Plaintiff H&H Pharmaceuticals, LLC

          STINSON LEONARD STREET LLP CICELY I. LUBBEN, ESQ. Admitted Pro Hac Vice Attorneys for Defendants

          STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER

         Plaintiff, H&H Pharmaceuticals, LLC (“Plaintiff”), by and through its attorneys, Luis A. Ayon, Esq. and Joseph A. Gutierrez, Esq., of Maier Gutierrez Ayon, and Defendants, Chattem Chemicals, Inc. and Sun Pharmaceuticals Industries, Inc. (collectively referred to as “Defendants”), by and through their attorneys, Michael E. Sullivan, Esq. and Barry L. Berslow, Esq. of Robison, Belaustegui, Sharp & Low, and Cicely I. Lubben, Esq. of Stinson Leonard Street LLP, hereby stipulate and agree, pursuant to this Protective Order that the use and handling of Confidential Information (as defined herein) and Discovery Material (as defined herein) in these proceedings shall be governed by and subject to the provisions below:

         Plaintiff and Defendants, separately and each of them, are each a "party" and are collectively referred to as the "parties." Any reference to a party or a person or non-party means, unless otherwise indicated, a natural person, firm, entity, corporation, partnership, proprietorship, association, joint venture, subsidiary, division, affiliate, parent company, and any other form of business organization or arrangement, and includes the party or person or non-party's officers, directors, managers, members, employees, agents, representatives, shareholders, independent contractors, attorneys, accountants, and all other person(s) over which the party or person or non-party has control or which act or purport to act on their behalf. Any party or any person or non-party producing or disclosing Confidential Information or Discovery Material pursuant to the terms set forth below is referred to as the "Producing Party, " and the party or any person or non-party receiving or being given access to confidential information or material is referred to as the "Receiving Party."

         1. Confidential Information.

         “Confidential Information” means any and all information, documents, materials, items and things produced, disclosed or otherwise revealed in discovery in this case, regardless of the medium or manner generated, stored or maintained, including but not limited to testimony adduced at depositions upon oral examination or upon written questions, answers to interrogatories or requests for admission, or other forms of discovery responses (collectively, "Discovery Material") (i) that has not been made public, (ii) that constitutes trade secrets, confidential research and development information, know-how, proprietary data, marketing information, personnel files, contracts, financial information, and/or similarly commercially sensitive or personal information, and attorney-client privileged information and work product, (iii) that the designating party maintains in confidence and in good faith believes in fact is confidential or that its unprotected disclosure might result in economic or competitive injury, and (iv) that cannot be ascertained from an inspection of ·publicly available documents, materials, or devices. In producing or disclosing "Confidential Information, " the Producing Party shall designate the Discovery Materials as “CONFIDENTIAL” pursuant to Section 2.

         2. Designation of Confidential Information by Receiving Party.

         All Discovery Material in this case that has not been designated as Confidential Information by the Producing Party automatically shall be deemed Confidential Information for the first five (5) business days after receipt by the Receiving Party. During those five days, the Receiving Party may designate any Discovery Material received as Confidential Information under the same designation procedure and according to the same rules applicable to the Producing Party as set forth herein. If, at the expiration of the five-day period, the Receiving Party fails to notify the Producing Party of its intent to designate Discovery Material as Confidential Information, any non-designated Discovery Material shall be treated as not Confidential Information unless otherwise designated as Confidential Information as set forth herein.

         When the Producing Party produces, discloses or otherwise reveals Confidential Information, it shall be clearly designated at the expense of the Producing Party as "CONFIDENTIAL" and treated as Confidential Information by the Receiving Party. The legend "CONFIDENTIAL" shall be stamped or affixed to the Discovery Material(s) in such a way as to not obliterate or obscure any written matter. With respect to a multi-page document that contains Confidential Information, the designation should be made, to the extent possible, on each page of the document. If designation in the manner set forth herein is impossible or impractical, the Producing Party may use such other method of designation as is reasonable under the circumstances. The Producing Party shall, in good faith, designate as "CONFIDENTIAL" only such Discovery Materials, pursuant to and consistent with Section 1, that it reasonably believes constitutes Confidential Information, and the Producing Party shall use best efforts to designate Discovery Materials as containing Confidential Information prior to production or disclosure by the Producing Party. In the event any Discovery Materials that contain Confidential Information are made available for inspection by a party, there will be no waiver of confidentiality by virtue of such inspection before the material is copied and produced with a confidentiality designation by the Producing Party.

         3. Use of Confidential Information Generally.

         All Confidential Information designated as provided herein in Section 2 shall be used by the Receiving Party solely for the purposes of this lawsuit, shall not be disclosed to anyone other than those persons identified herein in Section 5, and shall be handled in the manner set forth herein until such designation is removed by the Producing Party or by order of the Court. Such Confidential Information shall not be used by any Receiving Party or other person granted access thereto under this Stipulated Confidentiality Agreement and Protective Order ("Stipulation and Order" or "Protective Order") for any purpose outside of this lawsuit, including, but not limited to, a business or competitive purpose, publicity, or in another legal dispute or proceeding, without prior written consent of the Producing Party or approval from the Court. Nothing herein shall preclude the Producing Party from using its own Confidential Information.

         The Receiving Party, or any person or non-party receiving or being given access to Confidential Information, must proceed as follows:

a. Store and maintain such Confidential Information in a secure manner, within their exclusive possession and control;
b. Take all measures reasonably necessary to maintain the confidentiality of such Confidential Information; and
c. Not permit or participate in, directly or indirectly, the unauthorized production, disclosure, or use of such Confidential Information.

         All parties and persons or non-parties obtaining, receiving or being given access to Confidential Information in accordance with this Stipulation and Order consent to the continuing jurisdiction of the Court for the purpose of enforcing the terms of this Stipulation and Order and remedying any violation(s) thereof.

         4. Use of Confidential Information in Depositions.

         Any party shall have the right to use Confidential Information during depositions taken in connection with this case unless otherwise agreed to by the parties in writing or on the record at the deposition. However, to the extent a third party deponent (or a person or non-party not otherwise authorized to receive Confidential Information under Section 5 herein) is present, that third party deponent or person or non-party shall be required to execute a copy of the form Attachment A affixed to this Stipulation and Order prior to dissemination or disclosure of Confidential Information. Counsel for the affected party may also require that all individual(s) not qualified to obtain, receive or be given access to Confidential Information under this Stipulation and Order leave the deposition session during any portion where Confidential Information is used, disclosed or referred to. At any deposition session, upon inquiry with regard to the content of a document, material, item or thing marked "CONFIDENTIAL, " or whenever counsel for a party deems that the answer to a question may result in the disclosure of Confidential Information, or whenever counsel for a party deems that the answer to any question has resulted in the disclosure of Confidential Information, the deposition (or portions thereof) may be designated by the affected party as containing Confidential Information subject to the provisions of this Stipulation and Order. When such designation has been made, the testimony or the transcript of such testimony shall be disclosed only to those parties or persons or non-parties described herein in Section 5 and to the testifying third party deponent, and the Confidential Information contained therein shall be used only as specified in this Stipulation and Order. Moreover, all originals and copies of deposition transcripts that contain Confidential Information and/or exhibits containing Confidential Information shall be prominently marked "CONFIDENTIAL" on the cover thereof and, if and when filed with the Court, the portions of such transcript so designated shall be filed under seal as required under Section 6 herein.

         Counsel must designate portions of a deposition transcript, by page and line number(s), including any confidential exhibit(s), as "CONFIDENTIAL" within ten (10) days of receiving the transcript and corresponding exhibit(s). Designations may be made by letter to counsel of record or on the record during the deposition. Portions of deposition transcripts so designated shall be treated as Confidential Information by the parties as set forth herein. If all or a portion of a videotaped deposition is intended to be designated as Confidential Information, the videocassette, videotape, DVD, CD-ROM or other electronic medium storing or maintaining the deposition testimony shall be stamped or affixed "CONFIDENTIAL." During the ten (10) day period, the entire transcript, or other recording of deposition testimony, shall be treated as Confidential Information. If no confidential designations are made within the ten (10) day period, the entire transcript shall be considered not Confidential Information.

         5. Disclosure of Confidential Information. Confidential Information produced pursuant to this Stipulation and Order may be disclosed or made available only to the persons designated below:

a. Retained counsel and in-house counsel for a party (including attorneys associated with retained counsel's law firm and the paralegal, clerical, and secretarial staff employed by retained counsel, to the extent such persons are deemed reasonably necessary by the party's counsel to aid in the prosecution, defense or settlement of this action);
b. A party, or officers, directors, agents, representatives, and employees of a party deemed reasonably necessary by counsel for the party to aid in the defense, or settlement of this action;
c. Outside experts or consultants (together with their clerical and secretarial staff) retained by counsel for a party to assist in the prosecution, defense, or settlement of this action, to the extent reasonably necessary to perform their work in collection with this action;
d. Clerical and data processing personnel, including third party vendors, involved in the production, reproduction, organizing, filing, coding, cataloging, converting, storing, retrieving, and review of Discovery Material, to the extent reasonably necessary to assist a party or its counsel in these proceedings;
e. This Court and its staff and any other court, tribunal or dispute resolution officer duly appointed, chosen or assigned ...

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