Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 1 of
`10
`
`IN THE UNITED STATES DISTRICT COURT FOR
`THE DISTRICT OF COLORADO
`
`Case No. 18-cv-00691-PAB
`
`JURY TRIAL DEMANDED
`
`
`
`)))))))))
`
`WRIGHT MEDICAL TECHNOLOGY, INC.,
`
`Plaintiff,
`
`vs.
`
`PARAGON 28, INC.,
`
`Defendant.
`
`
`JOINT MOTION TO RESTRICT PUBLIC ACCESS (LEVEL 1) TO CERTAIN
`PORTIONS OF AND CERTAIN EXHIBITS TO PLAINTIFF’S OPPOSITION TO
`PARAGON’S MOTION FOR SUMMARY JUDGMENT (ECF NOS. 500 THROUGH 501)
`
`Pursuant to D.C.COLO.LCivR 7.2, Plaintiff Wright Medical Technology, Inc. (“Wright”)
`
`and Defendant Paragon 28, Inc. (“Paragon”) (collectively, the “Parties”) jointly move this Court
`
`for an order restricting public access, under Level One restricted access, to certain portions of
`
`and certain exhibits to Wright Medical Technology, Inc.’s Opposition to Paragon 28 Inc.’s
`
`Motion for Summary Judgment (ECF Nos. 500 through 501, “WMT’s Opposition”), filed on
`
`June 1, 2022. The Parties provide justifications for the portions of the Motion and the supporting
`
`exhibits that pertain to each Parties’ confidential information that they request the Court restrict.
`
`The Parties state as follows:
`
`1.
`
`All Parties to this action have stipulated to an amended protective order
`
`(“Amended Stipulated Protective Order”) that is consistent with the requirements set forth in
`
`Gillard v. Boulder Valley School District RE-2, 196 F.R.D. 382, Appendix A (D. Colo. 2000).
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 2 of
`10
`
`
`
`The Court entered the Amended Stipulated Protective Order on October 9, 2019. (See ECF No.
`
`188).
`
`2.
`
`The Amended Stipulated Protective Order applies to “any document, information
`
`or material that constitutes or includes, in whole or part, confidential or proprietary information
`
`or trade secrets of the Party, or a Third Party to whom the Party reasonably believes it owes an
`
`obligation of confidentiality with respect to such document, information or material.” Id. ¶ 1.
`
`3.
`
`The Amended Stipulated Protective Order further specifically states that “[t]he
`
`protections conferred by this Protective Order cover not only Discovery Material governed by
`
`this Protective Order, but also any information copied or extracted therefrom, as well as all
`
`copies, excerpts, summaries, or compilations thereof, as well as testimony, conversations, or
`
`presentations by parties or their Counsel in Court or in other settings that might reveal Protected
`
`Material.” Id. ¶ 17.
`
`4.
`
`All Parties to this action have agreed that access to and disclosure of documents
`
`and information designated as “CONFIDENTIAL” or “CONFIDENTIAL – OUTSIDE
`
`ATTORNEYS’ EYES ONLY” will be limited to certain persons as set forth in Paragraphs 6 and
`
`7 of the Amended Stipulated Protective Order. Id. ¶¶ 6–7.
`
`5.
`
`Therefore, any documents that contain information appropriately designated as
`
`“CONFIDENTIAL” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” require
`
`either Level 1 or Level 2 restricted access, in accordance with D.C.COLO.LCivR 7.2(b).
`
`6.
`
`Wright filed its Opposition on June 1, 2022. ECF No. 500. The Parties attach
`
`hereto a redacted version of Wright’s Opposition, which redacts only the portions that The
`
`Parties request be Level One restricted (Exhibit A). The Parties believe in good faith that the
`
`
`
`2
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 3 of
`10
`
`
`
`information contained within the redacted portions of Wright’s Opposition has been designated
`
`as “CONFIDENTIAL” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” and
`
`should be restricted from public access. Specifically, the redacted portions of Wright’s
`
`Opposition contain references to, quotes from, and discussion of the Parties’ design,
`
`development, manufacturing, and other business information that the Parties allege is
`
`confidential as set forth in detail below.
`
`7.
`
`Wright filed supporting Exhibits 1 through 45 to its Motion on June 1, 2022. ECF
`
`No. 501. The Parties believe in good faith that Exhibits 1-5, 8-14, 16-19, 21-24, 26-39 to
`
`Wright’s Opposition contains information designated by the Parties as “CONFIDENTIAL” or
`
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” and should be restricted from
`
`public access. Specifically:
`
`EXHIBIT 1:
`
`EXHIBIT 2:
`
`EXHIBIT 3:
`
`Excerpts from the deposition of Patrick Fisher taken on February 15, 2021
`and February 16, 2021, which Wright alleges is confidential, and which has
`been designated “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
`ONLY.”
`
`Exhibit 0003 from the deposition of Patrick Fisher taken on February 16,
`2021, which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`The Declaration of Kenneth A. Gall, PhD, dated May 28, 2022, with
`accompanying Exhibit 1 (Expert Report of Professor Kenneth A. Gall, PhD,
`March 19, 2021, with Exhibits A & B) and Exhibit 2 (Addendum to the
`Expert Report of Professor Kenneth A. Gall, PhD, September 22, 2021),
`which the Parties allege is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”.
`
`EXHIBIT 4:
`
`Excerpts from the deposition of Joseph Woodard taken on October 17, 2019,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 5:
`
`Plaintiff Wright Medical Technology, Inc.’s Second Supplemental Response
`to Defendant Paragon 28, Inc.’s Interrogatory No. 12, served July 3, 2019,
`
`
`
`3
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 4 of
`10
`
`
`
`
`
`EXHIBIT 8:
`
`EXHIBIT 9:
`
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”.
`
`Document produced by Paragon at Bates No. P28-0074054-127, which
`Paragon alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`Declaration of Peter Crosby, dated May 25, 2022, which Wright alleges is
`confidential, and which has been designated “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 10: Excerpts from the deposition of Luke A. Gordon taken on November 9,
`2018, which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 11: Exhibit 4 to the deposition of Luke A. Gordon taken on November 9, 2018,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 12: Excerpts from the deposition of Shannon Cummings taken on December 17,
`2020, which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 13: Excerpts from the deposition of Kenneth Gall taken on August 18, 2021,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 14: Excerpts from the deposition of Erik Antonsson, PhD taken on August 17,
`2021, which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 16: Excerpts from the deposition of Geoffrey Bessom Higgs taken on August 20,
`2021, which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 17: Excerpts from the deposition of Frank Scott Bono taken on February 9,
`2021, which the Parties allege is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 18: ORTHOLOCTM 3Di Locking Mechanism Optimization Study, produced at
`Bates No. WMT_GALL_000006-186, which Wright alleges is confidential,
`and which has been designated “CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY.”
`
`4
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 5 of
`10
`
`
`
`
`
`EXHIBIT 19: Excerpts from the deposition of Shannon Cummings taken on May 18, 2021,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 21: Excerpts from the transcript of the discovery hearing before Magistrate
`Judge Scott T. Varholak, held on February 21, 2019, previously entered
`under level 1 restriction by the Court.
`
`EXHIBIT 22: Plaintiff Wright Medical Technology, Inc.’s Fourth Supplemental Response
`to Defendant Paragon 28, Inc.’s Interrogatory No. 12, served April 22, 2022,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 23: Excerpts from the deposition of Brian Carey taken on January 8, 2021,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 24: Excerpts from the deposition of Layne Featherngil taken on February 15,
`2021, which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 26: Excerpts from the deposition of Peter Crosby taken on April 1, 2022, which
`the Parties allege is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 27: Document produced by Paragon at Bates No. P28-0068225-30, which the
`Parties allege is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 28: Exhibit 10 to the deposition of Geoffrey Bessom Higgs taken on August 20,
`2021, which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 29: Declaration of Geoffrey B. Higgs, MD, dated May 27, 2022, with
`accompanying Exhibit 1 (Expert Rebuttal Report of Geoffrey B. Higgs, MD
`on Validity, July 9, 2021), which the Parties allege is confidential, and which
`has been designated “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES
`ONLY.”
`
`EXHIBIT 30: Exhibit 10 to Expert Report of Javier Castaneda Regarding Invalidity, dated
`March 19, 2021, which Wright alleges is confidential, and which has been
`designated “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`5
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 6 of
`10
`
`
`
`
`
`EXHIBIT 31: Excerpts from the deposition of Brian Thoren taken on February 5, 2021,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 32: Excerpts from the deposition of Steven Yopko taken on March 1, 2019,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 33: Document produced by Wright Medical at Bates No. WMT0216171-172,
`with attachment produced at Bates No. WMT0216173-177, which Wright
`alleges is confidential, and which has been designated “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 34: Excerpts from the deposition of Bruce Werber taken on September 9, 2021,
`which Wright alleges is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 35: Email produced by Paragon at Bates No. P28-0074134, with attachment
`produced at Bates No. P28-0074135-207, which the Parties allege is
`confidential, and which has been designated “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 36: Email produced by Paragon at Bates No. P28-0190409, which the Parties
`allege is confidential, and which has been designated “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 37: A 2012 Wright Medical Excel file reflecting discount pricing with Ascension
`Health that was produced by Paragon 28 (Lee Rosenthal, a Paragon VP) as
`Bates No. P28-0012885; and a print-out that Wright alleges reflects the
`metadata associated with P28-0012885, which Wright alleges is confidential,
`and which has been designated “CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 38: Email produced by Paragon at Bates No. P28-0121192-94, which the Parties
`allege is confidential, and which has been designated “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`EXHIBIT 39: Excerpts from the Expert Report of Dr. Bruce Werber Regarding Invalidity,
`which the Parties allege is confidential, and which has been designated
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`
`
`6
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 7 of
`10
`
`
`
`8.
`
`Without the requested restricted access under Level One, information contained in
`
`the redacted portions of Wright’s Opposition and in the above-listed exhibits that the Parties
`
`have designated as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”
`
`or information that has otherwise been alleged as confidential during the course of this litigation,
`
`will be accessible to the public, which would cause direct injury to the Parties, at least by
`
`revealing alleged confidential information. The Parties seek to restrict access to the redacted
`
`portions of Wright’s Opposition (as set forth in attached Exhibit A) and to the above-listed
`
`Exhibits to Wright’s Opposition. For these portions of Wright’s Opposition and for these
`
`exhibits, no alternative to restriction is practicable and only the requested restrictions will
`
`adequately protect the Parties’ interests.
`
`9.
`
`WHEREFORE, for the foregoing reasons, the Parties respectfully request this
`
`Court issue an Order restricting public access, under Level One restricted access, to the redacted
`
`portions of Wright’s Opposition (ECF 500) as identified in Exhibit A and to Exhibits 1-5, 8-14,
`
`16-19, 21-24, 26-39 to Wright’s Opposition (ECF 501).
`
`
`Dated: June 29, 2022
`
`Diana M. Sangalli
`Thomas W. Sankey, Lead Counsel
`DUANE MORRIS LLP
`1330 Post Oak Boulevard, Ste. 800
`Houston, TX 77056-3166
`Telephone: 713-402-3900
`dmsangalli@duanemorris.com
`twsankey@duanemorris.com
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Brent R. Owen
`Brent R. Owen
`SQUIRE PATTON BOGGS (US) LLP
`717 17th Street, Suite 1825
`Denver, Colorado 80202
`Telephone: 303-830-1776
`brent.owen@squirepb.com
`
`
`
`
`
`7
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 8 of
`10
`
`
`
`Anthony J. Fitzpatrick, Esq.
`Christopher S. Kroon, Esq.
`DUANE MORRIS LLP
`100 High Street, Suite 2400
`Boston, MA 02110-1724
`AJFitzpatrick@duanemorris.com
`CSKroon@duanemorris.com
`
`Chris J. Lind
`Mark L. Levine
`Andrew C. MacNally
`Nevin M. Gewertz
`Anastasiya Maione
`BARTLIT BECK LLP
`54 West Hubbard Street
`Chicago, IL 06254
`chris.lind@bartlitbeck.com
`mark.levine@bartlitbeck.com
`nevin.gewertz@bartlit-beck.com
`stacy.maione@bartlitbeck.com
`
`Attorneys for Plaintiff Wright Medical
`Technology, Inc.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`8
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 9 of
`10
`
`
`
`
`
`
`
`Luke Lucien Dauchot & Sharre Lotfollahi
`KIRKLAND & ELLIS LLP
`2049 Century Park East, Suite 3700
`Los Angeles, CA 90067
`Telephone: 310-552-4200
`luke.dauchot@kirkland.com
`sharre.lotfollahi@kirkland.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Greg Polins
`Kathryn A. Reilly & Chuan (“CiCi”) Cheng
`370 Seventeenth Street, Suite 4500
`Denver, CO 80202-5647
`Telephone: 303-244-1800
`Facsimile: 303-244-1879
`reilly@wtotrial.com
`cheng@wtotrial.com
`
`Gregory Polins
`KIRKLAND & ELLIS LLP
`300 North LaSalle Street
`Chicago, IL 60654
`Telephone: 312-862-2000
`greg.polins@kirkland.com
`
`Attorneys for Defendant Paragon 28, Inc.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`9
`
`

`

`Case No. 1:18-cv-00691-PAB-STV Document 532 filed 06/29/22 USDC Colorado pg 10 of
`10
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on June 29, 2022, I electronically filed the foregoing with the Clerk
`
`of Court using the CM/ECF system, which will send notification of such filing to all counsel of
`
`record.
`
`
`
`/s/ Brent R. Owen
`Brent R. Owen
`
`
`
`
`
`
`
`
`
`
`
`10
`
`