EFiled: Jun 17 2020 11:ISAMPERTY
`Transaction ID 65705605={°/,\4i.1")
`Case No. 2017-0901-PAF YerDES
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`EXHIBIT B
`EXHIBIT B
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`EFiled: Jun 17 2020 11:13AM EDT
`Transaction ID 65705605
`Case No. 2017-0901-PAF
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`Transaction ID 65705605={°/,\4i.1")
`Case No. 2017-0901-PAF YerDES
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`EXHIBIT B
`EXHIBIT B
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`EFiled: Jun 17 2020 11:13AM EDT
`Transaction ID 65705605
`Case No. 2017-0901-PAF
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`SCHEDULE A
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`DEFINITIONS
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`1.
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`Throughout this subpoena, including the Definitions and the
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`Instructions, words used in the masculine gender include the feminine, and words
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`used in the singular include the plural.
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`2. Wherever the words “all,” “each,” or “every” appear, the meaning is
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`intended as necessary to bring within the scope of the Requests all responses that
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`might otherwise be construed to be outside the scope of these Requests—that is,
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`the terms shall be construed as all and each.
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`3. Wherever the word “and” or the word “or” appears, the meaning is
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`intended as necessary to bring within the scope of the Requests all responses that
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`might otherwise be construed to be outside the scope of these Requests—that is,
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`the terms shall be construed either disjunctively or conjunctively as necessary to
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`encompass all responses that might otherwise be construed to be outside the scope
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`of these Requests.
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`4.
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`The term “document” or “documents” is intended to be interpreted in
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`the broadest possible sense and includes, but is not limited to, all electronic data
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`and all communications which are stored or retrievable or recorded in any manner
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`and also includes, without limitation, any writing or other record of information or
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`images, including print, handwriting, photographs, film, recordings, memoranda,
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`books, records, accounts, ledgers, vouchers, invoices, drafts, bills, charge slips,
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`letters, electronic mail or “e-mail,” compact discs, CD-ROM discs, electronic data,
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`magnetic tape, videotape, magnetic or optical disks, “floppy disks,” “PowerPoint”
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`or other presentation software systems, telegrams, mailgrams, correspondence,
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`notes and minutes of meetings, conversations or telephone calls, resolutions,
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`interoffice memoranda, work papers, reports, projects, tabulations, studies, surveys,
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`legal complaints and other pleadings, affidavits, interrogatories, legal briefs, legal
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`motions, judgments, designs, drawings, schematics, maps, manuals, models,
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`notebooks, contracts, agreements, diaries, telephone records, desk calendars,
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`appointment books, circulars, charts, transcripts, news releases, trade releases,
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`advertisements, press books, teletype messages, licenses, financial statements,
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`stenographers’ notebooks, punchcards, computer printouts and data, telecopier or
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`facsimile transmissions and printouts, letters of credit, stock certificates and
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`securities. The term “document” also includes drafts or revisions or non-identical
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`copies of any such document.
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`5.
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`The term “including” means “including without limitation” or
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`“including, but not limited to.”
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`6.
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`The
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`term “Nutraceutical” means Nutraceutical
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`International
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`Corporation.
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`6
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`7.
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`The term “You” or “Your” means the entity to which this subpoena is
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`directed and any of its divisions or business segments, together with its
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`predecessors, successors, assigns, parents, subsidiaries, affiliates, members,
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`partners, shareholders, owners, officers, directors, employees and agents, and any
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`person acting or purporting to act on their respective behalf.
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`INSTRUCTIONS
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`The following instructions shall apply to the Requests contained herein.
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`1.
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`All documents shall be produced in the order they are kept in the
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`ordinary course of business and shall be produced in their original folders, binders,
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`covers or containers, or facsimile thereof. For those documents that were created,
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`or were at any time stored, digitally, then those documents should be delivered in
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`their native format on standard read-only digital media or as bit-stream
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`duplications on standard read-only digital media.
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`2.
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`In responding to these Requests, You shall produce separately all
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`documents in Your possession, custody or control, including documents in the
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`possession, custody or control of Your agents and representatives.
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`3.
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`If any portion of any document or communication is responsive to any
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`Request, the entire document must be produced.
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`4.
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`You should produce the original of each document described below
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`or, if the original is not in Your custody, then a copy thereof, and in any event, all
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`non-identical copies which differ from the original or from the other copies
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`produced for any reason, including the making of notes thereon.
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`5.
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`If there are no documents responsive to any particular Request or
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`subpart thereof, You shall state so in writing.
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`6.
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`If any objection is made to any of these Requests, the response shall
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`state whether documents are being withheld from inspection and production on the
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`basis of such objection, or whether inspection or production of the responsive
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`items will occur notwithstanding such objection.
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`7.
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`If any form of privilege or other protection from disclosure is claimed
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`as a ground for withholding a document requested to be produced or identified, set
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`forth the following information:
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`a. Which privilege is claimed;
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`b. A precise statement of the facts upon which said claim of privilege is
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`based;
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`c. The following information describing each purportedly privileged
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`document: (i) its nature, (e.g., email, agreement, letter, memorandum,
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`etc.); (ii) the date it was prepared; (iii) the date it bears; (iv) the date it
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`was sent; (v) the date it was received; (vi) the identity of the person
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`preparing it; (vii) the identity of the person sending it; (viii) the
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`identity of each person to whom it was sent or was to have been sent,
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`including all addressees and all recipients of copies; (ix) a statement
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`as to whom each identified person represented or purported to
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`represent at all relevant times; and
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`d. The job titles and affiliations for each person who prepared, sent or
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`received each purportedly privileged document.
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`8. Whenever a document is not produced in full or is produced in
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`redacted form, so indicate on the document and state with particularity the reason
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`or reasons it is not being produced in full and describe to the best of Your
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`knowledge, information and belief, and with as much particularity as possible,
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`those portions of the document which are not being produced.
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`9.
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`If any Request is objected to on grounds of overbreadth, You are
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`instructed to respond to the Request as narrowed to conform to Your objection
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`within the time period specified herein.
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`10.
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`If any document or copy thereof was but is no longer in Your
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`possession, custody or subject to Your control, please state and specify in detail for
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`each such document: date, sender, recipient, persons to whom copies were
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`provided together with their job titles, the information contained therein, the date
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`upon which it ceased to exist, the disposition that was made of it and the identity of
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`all persons having knowledge of the contents thereof.
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`11. These Requests are to be considered continuing in nature, and,
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`therefore, answers and document production should be modified or supplemented
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`as You obtain further or different information up until the date of trial.
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`RELEVANT TIME PERIOD
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`Unless otherwise stated, the relevant time period for these Requests is from
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`May 22, 2017 to December 31, 2018. The Requests seek the production of all
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`documents, whenever prepared, which concern that period.
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`REQUESTS FOR PRODUCTION
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`1.
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`All documents concerning any valuation of Nutraceutical.
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`10
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`EXHIBIT 1
`EXHIBIT 1
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` IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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`C.A. No. 2017-0901-TMR
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`BROOKDALE INTERNATIONAL
`PARTNERS, L.P., BROOKDALE
`GLOBAL OPPORTUNITY FUND,
`2017 BERKELEY LLC, and QUADRE
`INVESTMENTS, LP,
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`Petitioners,
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`v.
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`NUTRACEUTICAL
`INTERNATIONAL CORPORATION,
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`Respondent.
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`STIPULATION AND [PROPOSED] ORDER GOVERNING
`PRODUCTION AND EXCHANGE OF CONFIDENTIAL
`AND HIGHLY CONFIDENTIAL INFORMATION
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`WHEREAS, the parties to the above-captioned action (the “Litigation”) are
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`engaged in discovery proceedings, which include, among other things, taking
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`depositions and producing documents; and
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`WHEREAS, those discovery proceedings will necessarily involve the
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`production of certain information that the parties to the Litigation (the “Parties,”
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`and each a “Party”) believe to be confidential and sensitive commercial, financial,
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`or business information;
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`IT IS HEREBY STIPULATED AND AGREED, by the Parties hereto,
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`through their undersigned counsel, subject to the approval of the Court, pursuant to
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`Court of Chancery Rules 5.1 and 26(c), that this Stipulation and Order Governing
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`GRANTED
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`EFiled: Feb 21 2019 09:35AM EST
`Transaction ID 62989422
`Case No. 2017-0901-TMR
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`Production and Exchange of Confidential and Highly Confidential Information (the
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`“Stipulation”) will govern the handling of documents, deposition testimony,
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`deposition exhibits, deposition transcripts, written discovery requests, interrogatory
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`responses, responses to requests to admit, and responses to requests for documents,
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`as well as any other information or material produced, given or exchanged,
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`including any information contained therein or derived therefrom (“Discovery
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`Material”) by or among any Party or non-Party providing Discovery Material (each
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`a “Producing Party”) in this Litigation.
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`1.
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`Any Producing Party may designate any Discovery Material as
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`“Confidential” under the terms of this Stipulation if such Producing Party in good
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`faith believes that such Discovery Material contains non-public, confidential,
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`proprietary, or commercially sensitive information that requires the protections
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`provided in this Stipulation (“Confidential Discovery Material”). Any Producing
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`Party may designate any Discovery Material as “Highly Confidential” under the
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`terms of this Stipulation if such party in good faith believes that such disclosure of
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`the Discovery Material other than as permitted pursuant to Paragraph 7 of this
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`Stipulation is substantially likely to cause injury to the Producing Party (“Highly
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`Confidential Discovery Material”).
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`2.
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`Information prepared or derived by utilizing Confidential
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`Discovery Material or Highly Confidential Discovery Material shall also be
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`considered “Confidential” or “Highly Confidential”, as appropriate, pursuant to
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`this Stipulation.
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`3.
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`The designation of Discovery Material as Confidential
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`Discovery Material or Highly Confidential Discovery Material shall be made in the
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`following manner:
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`a.
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`In the case of documents or other materials (apart from
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`depositions or other pre-trial testimony): (i) by affixing the legend “Confidential”
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`or “Highly Confidential” to each page containing any Confidential Discovery
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`Material or Highly Confidential Discovery Material, except that in the case of
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`multi-page documents bound together by staple or other permanent binding, the
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`words “Confidential” or “Highly Confidential” need only be stamped on the first
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`page of the document in order for the entire document to be treated as
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`“Confidential” or “Highly Confidential” Discovery Material; or (ii) in the case of
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`electronically stored information produced in native format, by including
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`“Confidential” or “Highly Confidential” in the file or directory name, or by
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`affixing the legend “Confidential” or “Highly Confidential” to the media
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`containing the Discovery Material (e.g., CD-ROM, floppy disk, DVD).
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`b.
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`In the case of depositions or other pre-trial testimony:
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`(i) by a statement on the record, by counsel, at the time of such disclosure or before
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`the conclusion of the deposition or testimony; or (ii) by written notice, sent to all
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`Parties within ten (10) business days of receipt of the final transcript designating
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`the entire transcript or portions thereof. All depositions and other pre-trial
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`testimony shall be treated as Confidential Discovery Material until the expiration
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`of the tenth business day after counsel receive a copy of the final transcript, after
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`which such deposition and other pre-trial testimony will be treated in accordance
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`with its confidentiality designation, if any. Only those portions of the transcript
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`designated as “Confidential” or “Highly Confidential” shall be deemed
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`Confidential Discovery Material or Highly Confidential Discovery Material,
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`respectively. The Parties may modify this procedure for any particular deposition
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`or other pre-trial testimony through agreement on the record at such deposition or
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`testimony, without further order of the Court.
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`c.
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`In the case of any other Discovery Material, by written
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`notice that the Discovery Material constitutes Confidential Discovery Material or
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`Highly Confidential Discovery Material.
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`4.
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`The designation of Discovery Material as Confidential
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`Discovery Material or Highly Confidential Discovery Material shall constitute a
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`representation that such Discovery Material has been reviewed by an attorney
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`representing the Party making the designation, and that there is a good faith basis
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`for such designation.
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`5.
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`Inadvertent
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`failure
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`to designate Discovery Material as
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`Confidential Discovery Material or Highly Confidential Discovery Material shall
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`not constitute a waiver of such claim and may be corrected. A Producing Party
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`may designate as Confidential or Highly Confidential any Discovery Material that
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`has already been produced, including Discovery Material that the Producing Party
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`inadvertently failed to designate as Confidential or Highly Confidential, (i) by
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`notifying in writing the Party to whom the production has been made that the
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`Discovery Material constitutes Confidential Discovery Material or Highly
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`Confidential Discovery Material, or (ii) in a manner consistent with Paragraph 3.
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`Upon receiving such supplemental notice, the Parties shall thereafter mark and
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`treat the Discovery Material so designated as Confidential Discovery Material or
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`Highly Confidential Discovery Material, and such Discovery Material shall be
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`fully subject to this Stipulation from the date of such supplemental notice forward.
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`The Party receiving such notice shall make a reasonable, good-faith effort to
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`ensure that any analyses, memoranda, notes, or other such materials generated
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`based upon such newly-designated information are immediately treated as
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`containing Confidential Discovery Material or Highly Confidential Discovery
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`Material. In addition, upon receiving such supplemental written notice, any
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`receiving Party that disclosed the Discovery Material prior to its designation as
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`“Confidential ” or “Highly Confidential” shall exercise its best efforts (i) to ensure
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`the return or destruction of such Discovery Material, (ii) to ensure that any
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`documents or other materials derived from such Discovery Material are treated as
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`if the Discovery Material had been designated as Confidential or Highly
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`Confidential when originally produced, (iii) to ensure that such Discovery Material
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`is not further disclosed except in accordance with the terms of this Stipulation, and
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`(iv) to ensure that any such Discovery Material, and any information derived
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`therefrom, is used solely for the purposes described in Paragraph 11 of this
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`Stipulation.
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`6.
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`Confidential Discovery Material may
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`be
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`disclosed,
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`summarized, described, characterized, or otherwise communicated or made
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`available in whole or in part only to the following persons for use in accordance
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`with this Stipulation:
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`a.
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`The Parties and the directors, officers, employees,
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`partners, and managers of the Parties, or any parent, subsidiary, or affiliate thereof,
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`who are assisting with or making decisions concerning the Litigation, to the extent
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`deemed reasonably necessary by counsel of record for the purpose of assisting in
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`the prosecution or defense of the Litigation;
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`b.
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`Counsel who
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`represent Parties
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`in
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`this Litigation
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`(including in-house counsel), and the partners, associates, paralegals, secretaries,
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`clerical, regular and temporary employees, and service vendors of such counsel
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`(including outside copying and litigation support services) who are assisting with
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`the Litigation for use in accordance with this Stipulation;
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`c.
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`Subject
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`to Paragraph 9, experts, accountants, or
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`consultants assisting counsel for the Parties, and partners, associates, paralegals,
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`secretaries, clerical, regular and temporary employees, and service vendors of such
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`experts or consultants (including outside copying services and outside support
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`services) who are assisting with the Litigation;
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`d.
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`Subject to Paragraph 10, witnesses or deponents, and
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`their counsel, only to the extent necessary to conduct or prepare for depositions or
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`testimony in this Litigation;
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`e.
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`Accountants for
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`the Parties as needed for such
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`accountants to render services to the Parties, provided that such accountant signs
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`an undertaking in the form attached as Exhibit A hereto;
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`f.
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`Any person indicated on the face of a document or
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`accompanying cover letter, email, or other communication to be the author,
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`addressee, or an actual or intended recipient of the document, or, in the case of
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`meeting minutes and presentations, an attendee of the meeting;
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`g.
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`The Court, persons employed by the Court, and court
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`reporters transcribing any hearing, trial, or deposition in this Litigation or any
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`appeal therefrom; and
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`h.
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`Any other person only upon (i) order of the Court entered
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`upon notice to the Parties, or (ii) written stipulation of, or statement on the record
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`by, the Producing Party who provided the Discovery Material being disclosed,
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`provided that such person signs an undertaking in the form attached as Exhibit A
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`hereto.
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`7.
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`Highly Confidential Discovery Material may be disclosed,
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`summarized, described, characterized, or otherwise communicated or made
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`available in whole or in part only to the following persons for use in accordance
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`with this Stipulation:
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`a.
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`Internal counsel for Petitioners Brookdale International
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`Partners, L.P., Brookdale Global Opportunity Fund, and 2017 Berkeley LLC
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`(collectively, the “Brookdale Petitioners”); five designated representatives from
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`Brookdale Petitioners, namely (1) Will Garrity, (2) Eitan Milgram, (3) Paul
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`Sherman, (4) Di Wu, and (5) Andrew Weiss; two designated representatives from
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`Petitioner Quadre Investments, LP, namely (1) Matthew Giffuni and (2) Neil
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`Chelo; Internal counsel for Respondent; and five designated representatives from
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`Respondent, namely (1) Leslie Brown, (2) David Bunch, (3) Chad Clawson, (4)
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`Kurt Krieger, and (5) Cory McQueen, who are assisting with or making decisions
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`concerning the Litigation, to the extent deemed reasonably necessary by counsel of
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`record for the purpose of assisting in the prosecution or defense of the Litigation,
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`and provided that each such person signs an undertaking in the form attached as
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`Exhibit A hereto;
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`b.
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`Counsel who
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`represent Parties
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`in
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`this Litigation
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`(including in-house counsel), and the partners, associates, paralegals, secretaries,
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`clerical, regular and temporary employees, and service vendors of such counsel
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`(including outside copying and litigation support services) who are assisting with
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`the Litigation for use in accordance with this Stipulation;
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`c.
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`Subject
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`to Paragraph 9, experts, accountants, or
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`consultants assisting counsel for the Parties, and partners, associates, paralegals,
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`secretaries, clerical, regular and temporary employees, and service vendors of such
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`experts or consultants (including outside copying services and outside support
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`services) who are assisting with the Litigation;
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`d.
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`Subject to Paragraph 10, witnesses or deponents, and
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`their counsel, only to the extent necessary to conduct or prepare for depositions or
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`testimony in this Litigation;
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`e.
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`Any person indicated on the face of a document or
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`accompanying cover letter, email, or other communication to be the author,
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`addressee, or an actual or intended recipient of the document, or, in the case of
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`meeting minutes and presentations, an attendee of the meeting;
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`f.
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`The Court, persons employed by the Court, and court
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`reporters transcribing any hearing, trial, or deposition in this Litigation or any
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`appeal therefrom; and
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`g.
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`Any other person only upon (i) order of the Court entered
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`upon notice to the Parties, or (ii) written stipulation of, or statement on the record
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`by, the Producing Party who provided the Discovery Material being disclosed, and
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`provided that such person signs an undertaking in the form attached as Exhibit A
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`hereto.
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`8.
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`To the extent that testimony is sought concerning Confidential
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`Discovery Material or Highly Confidential Discovery Material during any
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`deposition or in any other pretrial venue, any Party may exclude any person from
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`the deposition or other venue during such testimony if the Confidential Discovery
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`Material or Highly Confidential Discovery Material may not be disclosed to such
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`person under the terms of this Stipulation.
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`9.
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`Notwithstanding Paragraphs 6(c) and 7(c) above, Confidential
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`Discovery Material or Highly Confidential Discovery Material may be provided to
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`persons listed therein only to the extent necessary for such expert, accountant, or
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`consultant to prepare a written opinion, to prepare to testify, or to assist counsel in
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`this Litigation, provided that such expert, accountant, or consultant (i) is not
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`currently an employee of, or advising or discussing employment with, or
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`consultant to, any Party or any competitor (as defined below) or potential
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`transaction counterparty of any Party, as far as the expert or consultant can
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`reasonably determine, and (ii) is using said Discovery Material solely in
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`connection with this Litigation; and further provided that such expert or consultant
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`agrees to be bound by the terms of this Stipulation by signing an undertaking in
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`the form attached as Exhibit A hereto. Counsel for the Party showing, providing,
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`or disclosing Confidential Discovery Material or Highly Confidential Discovery
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`Material to any person required to execute an undertaking pursuant to this
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`paragraph shall be responsible for obtaining such signed undertaking and retaining
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`the original, executed copy thereof. Upon written request, counsel in possession of
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`the original undertaking shall provide a copy of the undertaking to the Party
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`requesting such undertaking within five business days. Under no circumstances
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`shall an expert, accountant, or consultant who is a competitor (as defined below) or
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`an employee of a competitor of a Party, or who is providing services to any of the
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`foregoing, be provided access to Confidential Discovery Material or Highly
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`Confidential Discovery Material absent further order of the Court or consent of
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`the Producing Party. “Competitors” are persons or entities endeavoring to engage
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`in the same or similar lines of business, provide the same or similar services,
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`sell the same or similar products, and/or operate in the same markets, as well as
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`any persons who are actually engaged in any of these activities. For the purpose of
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`this Stipulation, as applied to Respondent, “Competitors” are manufacturers of
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`nutritional supplements. Within 5 days of entry of this Order, Respondent shall
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`provide to Petitioners a list of Competitors known to it.
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`10. Notwithstanding Paragraphs 6(d) and 7(d), Confidential
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`Discovery Material or Highly Confidential Discovery Material may be provided to
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`persons listed therein only after (i) they confirm their understanding and agreement
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`to abide by the terms of this Stipulation by making such a statement on the record,
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`and/or by signing an undertaking in the form attached as Exhibit A hereto, or (ii) a
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`court of competent jurisdiction orders them to abide by the terms of t he
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`Stipulation. Counsel for the Party showing Confidential Discovery Material or
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`Highly Confidential Discovery Material to any person required to execute an
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`undertaking pursuant to this paragraph shall be responsible for obtaining such
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`signed undertaking and retaining the original, executed copy thereof. Upon written
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`request, counsel in possession of the original undertaking shall provide a copy of
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`the undertaking to the Party requesting such undertaking within five business days.
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`11. Confidential Discovery Material and Highly Confidential
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`Discovery Material, or information derived therefrom, shall be used solely for
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`purposes of this Litigation and in accordance with this Stipulation. Such material
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`or information shall not be used for any other purpose, including, without
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`limitation, any personal, business or commercial purpose, or any other litigation or
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`proceeding; provided, however, that the foregoing shall not apply to Discovery
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`Material that is or becomes part of the public record in accordance with the Court
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`of Chancery Rules or the terms of this Stipulation; and provided, however, that any
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`Party may use Confidential Discovery Material or Highly Confidential Discovery
`
`Material (i) to file a complaint under seal in the Delaware Court of Chancery (the
`
`“Related Litigation”) and (ii) in the Related Litigation for any purpose that would
`
`be permitted herein if this Order is interpreted as though in force in the Related
`
`Litigation, unless this Order is superseded by a confidentiality order entered in the
`
`Related Litigation.
`
`12. Every person to whom Discovery Material is disclosed,
`
`summarized, described, characterized, or otherwise communicated or made
`
`available, in whole or in part, shall be advised that the information is being
`
`disclosed pursuant and subject to the terms of this Stipulation and may not be
`
`disclosed or used for purposes other than those permitted hereunder. Each such
`
`person shall maintain the Discovery Material, or information derived therefrom, in
`
`a manner reasonably calculated to prevent unauthorized disclosure. Any Party
`
`issuing a subpoena to a non-Party shall enclose a copy of this Stipulation and
`
`notify the non-Party that the protections of this Stipulation are available to such
`
`non-Party.
`
`13
`
`
`
`13. Any pleading, brief, memorandum, motion, letter, affidavit, or
`
`other document filed with the Court (a “Filing”) that discloses, summarizes,
`
`describes, characterizes, or otherwise communicates Confidential Discovery
`
`Material or Highly Confidential Discovery Material (a “Confidential Filing”) must
`
`be filed with the Court in accordance with the provisions of Court of Chancery
`
`Rules 5.1 and 79.1 and the Administrative Directive of the Chancellor of the Court
`
`of Chancery of the State of Delaware Amended No. 2003-1, dated March 15, 2007,
`
`regarding e-File Administrative Procedures, which may be accomplished by
`
`submitting documents, every page of which shall have a footer stating:
`
`THIS DOCUMENT IS A CONFIDENTIAL FILING.
`ACCESS IS PROHIBITED EXCEPT AS AUTHORIZED
`BY COURT ORDER.
`
`In addition, all such documents must be submitted with a cover page bearing the
`
`title of the Litigation, the title of the filing, and stating:
`
`YOU ARE IN POSSESSION OF A CONFIDENTIAL
`FILING FROM THE COURT OF CHANCERY OF
`THE STATE OF DELAWARE.
`If you are not authorized by Court Order to view or
`retrieve this document, read no further than this
`page. You should contact the following person:
`[Filing Attorney or Party’s name]
`[Filing Attorney’s Law Firm]
`[Filing Attorney or Party’s Address]
`[Filing Attorney or Party’s Telephone Number]
`
`If a public version of the filing will be filed in accordance with Court of Chancery
`
`Rule 5.1(d), then the cover page shall also state:
`
`14
`
`
`
`A public version of this document will be filed on or before
`[DATE].
`
`If a paper copy of that document is to be submitted to the Court for any reason, that
`
`document shall be submitted in a sealed envelope or package marked with the title
`
`of the Litigation and bearing a statement substantially in the following form:
`
`CONFIDENTIAL
`
`PURSUANT TO A
`FILING
`CONFIDENTIAL
`PROTECTIVE ORDER DATED ______________, 20__,
`GOVERNING CONFIDENTIALITY OF DOCUMENTS
`AND INFORMATION OBTAINED DURING THE
`COURSE OF THIS LITIGATION.
`
`THIS ENVELOPE IS NEITHER TO BE OPENED NOR
`THE CONTENTS THEREOF DISPLAYED OR
`REVEALED EXCEPT BY OR TO QUALIFIED
`PERSONS OR BY COURT ORDER.
`14. The Parties making a Confidential Filing must comply with the
`
`provisions of Court of Chancery Rule 5.1 including, without limitation, the
`
`provisions governing the filing of a copy of the Filing for public inspection that
`
`omits only the information that the party believes should continue to receive
`
`Confidential Treatment for good cause. Notwithstanding the foregoing, the Parties
`
`have no obligation to file public versions of any documentary exhibits or
`
`deposition transcripts, unless otherwise ordered by the Court or required by the
`
`Register in Chancery.
`
`15
`
`
`
`15. All materials filed pursuant to Paragraph 13 shall be released
`
`from confidential treatment by the Register in Chancery only as provided in Court
`
`of Chancery Rule 5.1 or upon further order of this Court. When any Party receives
`
`a notice from the Register in Chancery pursuant to Rule 5.1 concerning the release
`
`of Confidential Discovery Material or Highly Confidential Discovery Material
`
`which was filed with the Court by such Party but contains Discovery Material
`
`designated as Confidential Discovery Material or Highly Confidential Discovery
`
`Material by another Producing Party, the Party receiving the notice shall deliver a
`
`copy of such notice (by hand, email, or facsimile transmission) to counsel for the
`
`Producing Party (or Producing Parties) within three (3) business days of receipt of
`
`such notice, if such notice is not otherwise sent to such Producing Party by the
`
`Register in Chancery, so as to enable the Producing Party to seek further
`
`Confidential Treatment (as defined in Court of Chancery Rule 5.1) or to have the
`
`documents returned or destroyed. The provisions of this paragraph may be waived
`
`only with the written consent of the Producing Party.
`
`16. Any person who objects to the continued restriction on public
`
`access to any Confidential Filing, or any portion thereof, shall file a notice raising
`
`the challenge with the Register in Chancery as provided in Court of Chancery Rule
`
`5.1(f). To the extent that any Party seeks to continue the restriction on public
`
`access to the Confidential Filing, or any portion thereof, that Party shall follow the
`
`16
`
`
`
`procedures in Rule 5.1(f) for a judicial determination as to whether continued
`
`restricted access to the Confidential Filing, or any portion thereof, is appropriate.
`
`The provisions of this Stipulation are not intended to shift any burdens of proof,
`
`and the Party seeking to maintain Confidential Treatment bears the burden of
`
`establishing “good cause” for Confidential Treatment.
`
`17.
`
`In the event of a conflict between this Stipulation and Rule 5.1,
`
`Rule 5.1 will control.
`
`18. During the pendency of this Litigation, any Party objecting
`
`to the designation of any Discovery Material or testimony as Confidential
`
`Discovery Material or Highly Confidential Discovery Material may, after making
`
`a good-faith effort to resolve any such objection, move on reasonable notice for
`
`an order vacating the designation. While such an application is pending, the
`
`Discovery Material or testimony in question shall be treated as Confidential
`
`Discovery Material or Highly Confidential Discovery Material pursuant to this
`
`Stipulation. The provisions of this Stipulation are not intended to shift any
`
`burdens of proof, including the burden of establishing that any Discovery Material
`
`validly constitutes Confidential Discovery Material or Highly Confidential
`
`Discovery Material, which burden remains on the party that designates such
`
`Discovery Material or testimony as Confidential or Highly Confidential.
`
`17
`
`
`
`19. The Parties reserve the right to apply, pursuant to Court of
`
`Chancery Rule 5.1 and/or Rule 26(c), upon short notice, for an order seeking
`
`additional safeguards with respect to the use an
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