THE UNITED STATES DISTRICT COURT

 FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

IN RE: IMMODIUM ADVANCED

ANTITRUST LITIGATION

______________________________

THIS DOCUMENT RELATES TO ALL

ACTIONS

Master File No. 02-4093

A M E N D E D P R O T E C T I V E O R D E R

AND NOW, this day of September, 2003, it is hereby ORDERED as

follows:

The provisions of this Confidentiality Order (“Order”) shall apply to all discovery in this

action, including all documents and information produced by any party or nonparty to this action,

provided, however, that any nonparty at its option may file a motion for a protective order

seeking additional or different protections for its documents or information in the district court

from which any subpoena for documents or information issued to that nonparty or within the

jurisdiction of which such nonparty shall supply such documents or information. 

1. Notwithstanding, the documents referenced in paragraph V.6(a), (b), and (c) of Case

Management Order No. 1 (“CMO”) shall be provided to Plaintiffs within the time limits set forth

in the CMO and may be used by the parties in the present consolidated actions in accordance with

the terms of this Order.

2. Pursuant to Fed. R. Civ. P. 26(c)(7), if in the course of this litigation, any party or

nonparty undertakes or is caused to disclose (“Disclosing Entity”) what the Disclosing Entity

Case 2:02-cv-04093-MK Document 22 Filed 09/02/2003 Page 1 of 9
contends is a trade secret or other confidential research, development, or commercial information,

the procedures set forth herein shall be employed and the disclosure thereof shall be subject to this

Order, except insofar as any nonparty desires to file a motion for a protective order seeking

additional or different protections for its documents or information in the district court from

which any subpoena for documents or information issued to that nonparty or within the

jurisdiction of which such nonparty supplied such documents or information.

3. For purposes of this Order, the term “confidential information” shall mean any

information, in whatever form, (a) which the Disclosing Entity contends is a trade secret or other

confidential research, development, or commercial information and (b) which counsel for the

Disclosing Entity designates as “confidential” upon good faith belief that there is good cause

therefore under applicable law. Confidential information shall not consist of any information

which at any time has been: (1) produced, disclosed, or made available to the public or otherwise

available for public access; and/or (2) disclosed in any filing to the Food and Drug Administration

(but only to the extent such information would thereby become subject to public release through

the Freedom of Information Act); and/or (3) otherwise disclosed in connection with any

governmental public filing or securities offering and which documents or information could not

reasonably be assumed to be or have been intended to be kept confidential; provided, however,

that confidential compilations of information shall not be deemed to have been so produced or

disclosed merely because some or all of the component data have been so produced or disclosed

other than in such compilation. Any information that has not been preserved or maintained in a

manner calculated to preserve its confidentiality may not be designated as confidential.

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4. Counsel for the Disclosing Entity must designated documents or information as

confidential prior to actual production of the document or information (but may do so after

inspection of the same) by placing the notation “CONFIDENTIAL” on every page of each

document so designated, or in the case of confidential information disclosed in a non-paper

medium (e.g., video tape, audio tape, computer disks, etc.), the notation “CONFIDENTIAL”

shall be affixed to the outside of the medium or its container. 

5. The witness, counsel for the witness, and counsel for any party shall have the right to

exclude from oral depositions, other than the deponent and the deponent’s counsel, any person

who is not authorized by this Order to receive documents or information designated as

confidential information. Such right of exclusion shall be applicable only during periods of

examination or testimony directed to or comprising confidential information. If during the course

of any deposition, and not later than thirty (30) days after the receipt of a written transcript of

such deposition, the witness, counsel for the witness, or counsel for any of the parties in this

action notifies counsel for the parties in writing that the deposition transcript or any portion

thereof is subject to designation as confidential, such transcript or portion thereof shall be treated

as provided by this Order for documents designated as confidential information.

6. Documents or information designated as confidential may be disclosed only by counsel

of record for a party and only to the following persons:

(a) outside counsel for the parties of record including such counsel’s paralegal and

secretarial and clerical personnel;

(b) in-house counsel employed by any party to this action, including paralegal and

secretarial and clerical personnel of such in-house counsel, provided such counsel and persons

have no responsibilities in or related to any research, development, manufacture, marketing, or

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sale of any products which are the subject of this action;

(c) officers, directors, or employees of the Disclosing Entity;

(d) authors, addressees, and recipients of the confidential document or information;

(e) a witness at a deposition if there is a good faith reason to believe that the witness (or

the employer of such witness if upon Rule 30(b)(6) deposition) has previously seen the document;

(f) independent consultants and experts and their staff retained by counsel for a party for

assistance with respect to this action;

(g) the Court and any persons employed by it;

(h) court reporters, including stenographers and video technicians; and

(i) copy and computer services personnel for purposes of copying, imaging, or indexing

documents.

For purposes of this Order, no expert or consultant shall be deemed independent unless counsel

for the party seeking to disclose documents or information designated as confidential to such

expert or consultant shall have first established that neither such expert or consultant nor any

affiliate thereof is currently engaged in, or employed by, engaged by, or affiliated with any

pharmaceutical manufacturer that has filed an abbreviated new drug application to manufacture

generic Immodium Advanced.

7. In addition to the limitations specified in Paragraph 6, documents or information

designated as confidential may be disclosed to the persons described in paragraph 6 only to the

extent necessary for purposes of this action and each person described in subparagraphs 6(b), (e),

(f), (h), or (i) shall first have signed a counterpart of Exhibit A hereto acknowledging that he or

she has read this Order, has agreed to be bound by it and will not disclose confidential documents

or information and each such counterpart of Exhibit A shall be maintained by counsel making the

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disclosure to such person and shall be made available to any party or nonparty Disclosing Entity

requesting access thereto at the conclusion of this action.

8. Disclosure of confidential documents or information to an expert or consultant under

Paragraphs 6 and 7 shall not constitute a designation of the person as an expert whose opinions

may be presented at trial. Absent an express designation of a person as an expert whose opinions

may be presented at trial, discovery relating to experts and consultants shall be limited as provided

in Rule 26(b)(4)(B). 

9. No party shall submit to the Court any documents or information designated as

“Confidential” except in a separate envelope sealed and labeled with the caption of this case and

the notation “Filed Under Seal” together with a motion for leave to file such document or

information under seal, which motion shall clearly set forth the need for filing the same. The filing

of such a motion shall not constitute an acknowledgment by the moving party of, or a waiver of

its right to challenge, the appropriateness of any confidentiality designation made by any other

Disclosing Entity.

10. Any party may contest the designation as “Confidential” of any information or

documents by providing written notice to the Disclosing Entity (with a copy thereof to any other

party) of the specific designations contested and the specific reasons therefor. The addressee of

such notice may, within ten (10) business days after receipt thereof (or such longer period as may

be agreed or the Court may order), file a motion for protective order with respect to some or all

information or documents either in this Court or by a nonparty in the district court from which the

subpoena was issued or within the jurisdiction of which such nonparty supplied such information

or documents. Unless otherwise agreed in writing between the issuer of the notice and the

addressee, failure of the addressee to file such a motion within such time shall be deemed a waiver

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of the designation. Documents and information designated as “Confidential” shall be treated as

such until ten (10) business days after the Court has entered an order on any motion for a

protective order.

11. All documents and information designated as confidential shall be used solely for the

purpose of trial or preparation for trial of this case, or for any alternative dispute resolution

proceeding mutually agreed upon by the parties and for no other purpose whatsoever. Without

limitation, no person receiving confidential information shall use such confidential information in

any other action or proceeding.

12. The terms of this Order shall in no way affect the right of any person (a) to withhold

information on grounds of immunity from discovery such as, attorney-client privilege or work

product; (b) to raise or assert any objections heretofore or hereafter raised or asserted, including

but not limited to defenses or objections with respect to the use, relevance, or admissibility at trial

of any evidence, whether or not comprised of information or documents furnished subject hereto;

or (c) to reveal or disclose to anyone any documents or information designated by that entity as

confidential information. The inadvertent disclosure of any document or information shall not

operate as a waiver of any discovery privilege or exception, including without limitation the

attorney-client privilege or the work product exemption, if the party or person producing the

documents or information requests return of the documents or information within thirty (30) days

after the discovery of the inadvertent disclosure. A party which has received inadvertently

disclosed documents or information subject to a privilege shall, immediately upon discovery of the

same, return (or with respect to any such documents or information which have been altered or

incorporated into other documents in a privileged manner) destroy all documents constituting the

same or incorporating such information and shall make no use thereof.

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13. The parties’ agreement to produce documents or furnish information is conditioned

upon the confidential treatment of them as provided herein. Nothing in this Order shall be

construed to create rights in any person not a party to this litigation except to the extent such

person is a Disclosing Entity hereunder.

14. Unless the parties, through counsel, agree otherwise in writing, upon the final

disposition of this action, counsel for the parties shall promptly return or destroy all documents

designated as confidential, all documents incorporating confidential information, and all copies

made thereof, including all documents or copies of documents provided by the party to any other

person, other than attorney work product. Notwithstanding the foregoing, counsel of record shall

be permitted to retain one file copy of materials made part of the trial record or which have been

filed under seal with the Court and a copy of all depositions and deposition exhibits. 

15. In the event that any person having possession, custody, or control of any document

or information produced in this action and designated as confidential receives a subpoena or other

process or order to produce such document or information, such person shall promptly notify the

Disclosing Entity, shall furnish such Disclosing Entity with a copy of said subpoena or other

process or order, and shall keep confidential such information and documents until the subpoena,

process, or order shall have become final and incontestable. The Disclosing Entity shall have the

burden of defending against such subpoena or other process or order.

16. The Court retains jurisdiction during and (to the extent necessary to enforce

Paragraph 12 thereof) after final disposition of this action to enforce this Order and to make such

amendments, modifications, deletions, and additions to this Order as the Court may from time to

time deem appropriate or as may be requested by the parties.

Case 2:02-cv-04093-MK Document 22 Filed 09/02/2003 Page 7 of 9
17. Perrigo documents are subject to the three conditions in the October 2, 2002 letter

attached as Exhibit A to the Nast Declaration. 

BY THE COURT:

 

MARVIN KATZ, S.J.

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EXHIBIT A

AGREEMENT CONCERNING INFORMATION COVERED

BY CONFIDENTIALITY ORDER

I, _____________________________________, hereby acknowledge that:

(a) I have received a copy of the Confidentiality Order (“Order”) entered in this action by

the United States District Court for the Eastern District of Pennsylvania;

(b) I have either read the Order and/or have had the terms of the Order explained to me by

an attorney;

(c) I understand the terms of the Order and agree to comply with and to be bound by such

terms;

(d) I may receive documents or information designated as confidential and understand that

such documents and information are provided to me pursuant to the terms and restrictions

of the Order;

(e) I agree to hold in confidence any documents and information disclosed to me pursuant

to the terms of the Order; and

(f) I hereby submit myself to the jurisdiction of the United States District Court for the

Eastern District of Pennsylvania for resolution of any matters pertaining to this Order.

My address is: _______________________________________

 

_______________________________________

My present employer is: _______________________________

_______________________________________

Signature: _____________________________ Date: ___________________

Case 2:02-cv-04093-MK Document 22 Filed 09/02/2003 Page 9 of 9