Opinion
Case No. 2:04CV00998 (PGC).
April 13, 2005
STIPULATED PROTECTIVE ORDER
Certain documents, testimony, and other information to be disclosed or produced in this litigation contain trade secrets or other confidential research, development, or commercial information, as well as other information protected from disclosure by applicable law. To preserve the confidentiality of such confidential documents and information pursuant to Rule 26 of the Federal Rules of Civil Procedure, it is ordered as follows:
1. A party producing documents or propounding written discovery responses that contain trade secrets or other confidential research, development, or commercial information ("Confidential Information") shall mark such documents "Confidential" or "Subject to Protective Order." Documents so marked are sometimes referred to in this order as "Protected Documents."
2. If a Protected Document is used or marked as an exhibit in a deposition, or if deposition questions, testimony, or colloquy discloses confidential information, counsel for the deponent or for the party with whom the deponent is affiliated shall inform the court reporter and counsel for the other parties of the claim of the confidentiality either contemporaneously on the record during the deposition or in writing within 20 days after receiving a copy of the deposition transcript. In addition, any other person claiming that any information disclosed in the deposition is confidential information may so inform the court reporter and counsel for all parties in the same manner and in the same period. Each portion of the transcript so designated as confidential shall be treated as a Protected Document, and all such testimony so designated shall be treated as Confidential Information, except as otherwise agreed in writing by each deponent and party claiming confidentiality or ordered by the Court.
3. The designation of material as "Confidential" or "Subject to Protective Order" shall be made by placing or affixing on each page of the material, in a manner that will not interfere with the material's legibility, the word "Confidential" or the words "Subject to Protective Order." The designation of material as "Confidential" or "Subject to Protective Order" may be made prior to reproduction of any such material selected on behalf of Plaintiff for copying and before distribution of such reproduced material to Plaintiff. A party shall not be deemed to have waived any right to designate materials as "Confidential" or "Subject to Protective Order" by allowing inspection of such material prior to a designation of such material as "Confidential" or "Subject to Protective Order" or by inadvertently failing to mark a document as "Confidential" or "Subject to Protective Order" prior to its disclosure. Each party will use good faith and reasonable judgment in designating information or material as "Confidential" or "Subject to Protective Order" and will make such designations only for information and materials that the party believes in good faith to contain trade secrets or other confidential research, development, or commercial information, or other information protected from disclosure by applicable law.
4. Confidential Information and Protected Documents shall not be used or shown, disseminated, copied, or in any way communicated — orally, in writing, or otherwise — to anyone for any purpose whatsoever, other than as required by Pfizer Inc ("Pfizer") or Plaintiff for the preparation and trial of this action and the following other lawsuits filed against Pfizer on behalf of plaintiffs in those lawsuits by Plaintiff's Counsel of Record in this lawsuit, as counsel of record for those plaintiffs, and alleging Zoloft's association with suicidality, akathisia and other side effects that resulted in harm to those plaintiffs (hereinafter referred to as "other designated cases"): Smith v. Pfizer Inc, No. 98-4156 CM (D. Kan.); Miller v. Pfizer Inc, No. 99-2326 KHV (D. Kan.); Cloud v. Pfizer Inc, No. 99-627 TUC (WDB) (D. Ariz.); Foster v. Pfizer Inc, No. 00-1287 JTM (D. Kan.); Motus v. Pfizer Inc, No. CV00-298 (C.D. Cal.); Dusek v. Pfizer, H-02-3559 (S.D. Tex.); Needleman v. Pfizer Inc, No. 3:03-CV-3074-N (N.D. Tex.); Miles v. Pfizer Inc, No. 03-691-B-M1 (M.D. La.); and Cartwright v. Pfizer Inc, No. 6:04cv292 (E.D. Tex.). Any documents produced by Pfizer in other designated cases may be used in this action as if they were produced in this case, subject to the terms of this order. If a party in this case disputes the designation of information or material from other designated cases as confidential, this Court may resolve any such dispute as if the information or materials were designated as Confidential or Subject to Protective Order in this case. If Plaintiff's Counsel of Record in this lawsuit files any additional cases, they may, if the parties so agree in writing, be listed as "other designated cases" on an addendum to this order. Confidential Information and Protected Documents may be used in those cases as well, provided, however, that Confidential Information and Protected Documents produced by Pfizer in this case may not be disclosed in any of the other designated cases unless and until a protective order identical in scope and coverage to this protective order has been entered by the court in that case. Access to Confidential Information and Protected Documents shall be limited to those persons designated as "qualified persons" in paragraph 6 below, and all such qualified persons given access to Confidential Information and Protected Documents shall keep all Confidential Information and the material contained therein confidential from all other persons.
5. Confidential Information and Protected Documents produced by Pfizer in the other designated cases listed in Paragraph 4 above and still in the possession of Plaintiff's Counsel of Record in this lawsuit may be used in this case subject to the terms of this protective order, provided counsel for Plaintiff notifies counsel for Pfizer that he intends to use such information and documents and identifies by category such information and documents. Use of such information and documents previously produced in other designated cases will be treated as if such information and documents were produced by Pfizer in this case, and such information and documents will be subject to all provisions, including the return provisions, of this protective order.
6. Confidential Information, and the information in and contents of Protected Documents, may be disclosed only to the following persons (hereinafter referred to as "qualified persons"):
a. Plaintiff in this action and the other designated cases;
b. Defendant Pfizer and its officers, directors, employees, and agents;
c. Counsel of record for Pfizer and Plaintiff in this action, and direct employees of such counsel who are materially assisting counsel in the preparation or trial of this action or other designated cases;
d. Experts and consultants retained by Pfizer or by Plaintiff in this action, whose assistance is necessary for trial preparation of this action and other designated cases; no such disclosure shall be made, however, to any person employed by, or serving as a consultant to, any competitor of Pfizer;
e. Under seal to the Court and the Court's employees and staff in this case; and
f. Any person mutually agreed upon in writing among all the parties to this action.
7. In no event shall any disclosure of Protected Documents or Confidential Information be made to any competitor of Pfizer, or to any person who, upon reasonable and good faith inquiry, could be determined to be an employee or consultant of any competitor of Pfizer, irrespective of whether they are retained as an expert by Plaintiff in this action or in other designated cases.
8. Before being given access to any Protected Document or Confidential Information, each qualified person (other than the Court) shall be advised of the terms of this order, shall be given a copy of this order, and shall agree in writing, in the form attached hereto as Exhibit "A", to be bound by the terms of this order. Counsel for each party shall maintain a list of all qualified persons to whom they or their client have provided any Protected Document or Confidential Information, and that list shall be available for inspection by the Court.
9. Plaintiff's counsel of record in this case shall keep records of each distribution to qualified persons of copies of Protected Documents and transcripts designated as confidential. Any copy so distributed shall be returned to Plaintiff's counsel at the completion of the qualified person's consultation or representation in this case and other designated cases. Each qualified person shall, upon request by Pfizer or the Court, execute an affidavit stating that all such documents and copies thereof have been returned as required.
10. All documents that are filed with the Court that are Protected Documents or that contain Confidential Information shall be filed in a sealed envelope or other appropriate sealed container that is plainly and conspicuously marked with (a) the title and case number of this action; (b) an indication of the nature of the contents of such sealed envelope or other container ( e.g., "Confidential Deposition Testimony"); (c) the phrase "CONFIDENTIAL — FILED UNDER SEAL" and (d) a statement substantially in the following form:
This envelope is sealed and contains Confidential Information filed in this case by [name of filing party] and is not to be opened or the contents thereof displayed or revealed except by order of the Court or pursuant to written stipulation of the parties to this action. This envelope or container shall not be opened without order of the Court, except by officers of the Court and counsel of record, who, after reviewing the contents shall return them to the clerk in a sealed envelope or container.
Any Protected Document included on any exhibit list shall be identified in such a way as to not reveal any Confidential Information and should be identified only by listing the document's title, author, date, and/or bates number range.
11. Except to the extent otherwise permitted by this order, counsel for Plaintiff shall keep all materials or information designated as "Confidential" or "Subject to Protective Order" that are received subject to this protective order within their exclusive possession and control, shall take all necessary and prudent measures to maintain the confidentiality of such materials or information, and shall not permit unauthorized dissemination of such materials to anyone.
12. Except to the extent permitted by this order, every qualified person provided copies of or access to material or information designated as "Confidential" or "Subject to Protective Order" pursuant to this order shall keep all such materials and information, and any permitted copies, notes, abstracts, or summaries of such material, within their exclusive possession and control, shall exercise all necessary and prudent precautions to maintain the confidentiality of all such materials and information, and shall not disseminate such materials and information or their contents to anyone. Counsel providing confidential material or information to a qualified person shall provide to that qualified person a copy of this order.
13. Any qualified person having access to material or information designated "Confidential" or "Subject to Protective Order" under this order shall, to the extent copies, duplicates, extracts, summaries, notes or descriptions of the materials or information of any portion thereof are created, treat any and all such copies, duplicates, extracts, summaries, notes, or descriptions of the materials or information or any portion thereof as confidential, and all provisions of this order shall apply equally to such materials so created, in the same manner and to the same extent as are materials designated as confidential by Pfizer.
14. Promptly after the termination of this action and the other designated cases by entry of a final judgment or order of dismissal, all Protected Documents and Confidential Information shall be returned to counsel for the party producing those confidential materials. All deposition transcript portions designated as "Confidential" or "Subject to Protective Order" and distributed by Plaintiff or their attorneys or agents shall be returned to Plaintiff's counsel of record. Plaintiff's counsel of record may retain one copy of each deposition transcript, subject to the ongoing confidentiality obligations imposed herein, and shall destroy all other copies of such transcripts. All deposition transcript portions designated as "Confidential" or "Subject to Protective Order" and distributed by Pfizer or their attorneys or agents shall be returned to Pfizer's counsel of record.
15. After the termination of this action by entry of a final judgment or order of dismissal, the provisions of this order shall continue to be binding. This order is and shall be deemed to be an enforceable agreement between the parties (and their agents, and attorneys, to the extent permissible by the Utah Rules of Professional Conduct), and the terms of this order may be enforced by specific performance in any court of competent jurisdiction.
16. This order shall be binding on the parties, on their attorneys, and on the parties' and their attorneys' successors, executors, personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, and other persons or organizations over whom or which the subject parties have control. The parties, their attorneys, and employees of such attorneys, and their expert witnesses, consultants, and representatives retained in connection with this action each expressly stipulates to the personal jurisdiction of this Court for purposes of any proceeding brought by a party to this action to enforce this order.
17. This order does not constitute a waiver of any party's right to object to discovery on any ground, including the ground that information sought contains trade secrets or other confidential business information; nor does it constitute an admission or representation by any party that any document or information designated as "Confidential" or "Subject to Protective Order" is in fact a trade secret or contains confidential research, development, or commercial information. In particular, this order does not constitute a waiver of Pfizer's right to redact documents produced in this action; nor does it constitute a waiver of Plaintiff's right to challenge any such redaction or designation as confidential.
18. By producing documents, including the Zoloft IND/NDA, for review and inspection by Plaintiff's counsel, Pfizer does not waive any of its objections to relevance for summary judgment purposes or the admissibility at trial of any such documents.
19. By producing in this litigation for initial inspection, and prior to copying for Plaintiff's counsel, documents that contain the names of patients or physicians, Pfizer does not waive or violate any duty of Pfizer to protect the identity of physicians and patients. It is further ordered that neither Plaintiff's counsel, nor any employee of Plaintiff's counsel, or consultant or expert employed by Plaintiff's counsel, who participates in the initial document review, shall write down, record, or in any way document, for later use in this litigation or otherwise, the name of any patient or physician contained in such documents, or any other information identifying any patient or physician. Pfizer shall have the right to redact, from copies of materials reproduced for use in this case at the request of Plaintiff, the name of any physician, the name of any patient, or any other information that would assist in identifying such physician or patient.
20. This order does not constitute a waiver of any party's right to withhold or redact information protected from disclosure by the attorney-client privilege, physician-patient privilege, work-product doctrine, or other applicable privilege, protection, law, or regulation, or to seek appropriate protective orders respecting documents asserted to be subject to such privilege.
21. Nothing in this order shall limit a party's right to disclose to any person, or use, for any purpose, its own information and documents.
22. If a party inadvertently produces confidential information without the required "Confidential" or "Subject to Protective Order" legend, the producing party shall contact the receiving party within five days of discovering the inadvertent omission, and inform the receiving party in writing of the inadvertent omission and the specific material at issue. Upon receipt of such notice, the receiving party shall treat the material identified in the notice as confidential until (a) the parties agree to non-confidential treatment of the subject material, or (b) the Court, on motion of either party, issues an order addressing the appropriate treatment of the subject material.
23. If a party contends that any document has been erroneously or improperly designated "confidential," it shall nevertheless treat the document as confidential until it either (a) obtains the written permission of each party or producing person to do otherwise, or (b) obtains an order of this Court stating that the document is not confidential and shall not be given confidential treatment. The party designating material as "confidential" has the burden of demonstrating that the material contains trade secret or other confidential research, development, or commercial information, or other information protected from disclosure by applicable law. Nothing in this order shall constitute a waiver of any party's right to object to the designation of a particular document as confidential.
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION
KEN B. KALLAS and, ANGELA R. KALLAS, AGREEMENT TO BE BOUND BY STIPULATED Plaintiffs, PROTECTIVE ORDER vs. Case No. 2:04CV00998 (PGC)
PFIZER INC, Judge Paul G. Cassell Defendant.
I, ____, declare and agree as follows:
1. I have received and read an entire copy of the Stipulated Protective Order Regarding Treatment of Confidential Information entered by the Court on ____ ____, 2004 ("Protective Order"), in the matter captioned Kallas v. Pfizer Inc, No. 2:04CV00998 (D. Utah).
2. I have had the opportunity to discuss with Plaintiff's counsel of record the nature and ramifications of the Protective Order, and I understand each of its terms.
3. I understand that, on behalf of Plaintiff, I will be given access to review documents that contain confidential and proprietary information, documents that may contain patient and reporter-identifying information protected from disclosure by federal law, and documents that contain trade secrets of Pfizer Inc, all of which information would not otherwise be accessible to me but for the fact that I am an agent for Plaintiff in this action.
4. I agree unequivocally to be bound by the terms of the Protective Order, and I understand fully that my breach of it, or any of its terms, may result in sanctions by the Court, contempt proceedings, and/or other proceedings to enforce the terms of the Protective Order. I understand that the Protective Order has been issued by a court of competent jurisdiction and is enforceable by the power of contempt.
5. To this end, I agree to submit to the jurisdiction of the United States District Court for the District of Utah, for the purpose of any proceedings that may be instituted to enforce the terms of the Protective Order. In any such proceedings, I agree not to make any challenge based upon personal jurisdiction, subject matter jurisdiction, or venue.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and represents my understanding of my agreement to be bound to the terms of the Protective Order.
Executed this ____ day of ____, 2005, at ____.
Signed _________________________
INSOFAR AS APPLICABLE:
_________________________
Counsel for Plaintiff