IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
`
`C.A. No. 2022-0837-LWW
`
`))))))))))))))))))
`
`ENHABIT, INC.; ADVANCED
`HOMECARE MANAGEMENT, LLC;
`and ENCOMPASS HEALTH
`CORPORATION,
`
`Plaintiffs,
`
`v.
`
`NAUTIC PARTNERS IX, L.P.;
`NAUTIC PARTNERS, LLC;
`CHRISTOPHER COREY; VISTRIA
`FUND III, LP; THE VISTRIA
`GROUP, LP; DAVID SCHUPPAN;
`TVG NP HOMECARE TOPCO, LP;
`and CHRIS A. WALKER,
`
`Defendants.
`
`STIPULATION AND [PROPOSED] ORDER FOR THE
`PRODUCTION AND EXCHANGE OF CONFIDENTIAL
`AND HIGHLY CONFIDENTIAL INFORMATION
`
`WHEREAS, the parties to the above-captioned action (the “Litigation”) will
`
`engage, or are engaged, in discovery proceedings, which may include, among other
`
`things, producing documents, responding to written discovery requests, and taking
`
`depositions and
`
`WHEREAS, those discovery proceedings may involve the production of
`
`certain information that one or more of the parties to the Litigation (collectively the
`
`GRANTED
`
`
`
`EFiled: Nov 17 2022 04:26PM EST
`Transaction ID 68402410
`Case No. 2022-0837-LWW
`
`
`
`C.A. No. 2022-0837-LWW
`
`))))))))))))))))))
`
`ENHABIT, INC.; ADVANCED
`HOMECARE MANAGEMENT, LLC;
`and ENCOMPASS HEALTH
`CORPORATION,
`
`Plaintiffs,
`
`v.
`
`NAUTIC PARTNERS IX, L.P.;
`NAUTIC PARTNERS, LLC;
`CHRISTOPHER COREY; VISTRIA
`FUND III, LP; THE VISTRIA
`GROUP, LP; DAVID SCHUPPAN;
`TVG NP HOMECARE TOPCO, LP;
`and CHRIS A. WALKER,
`
`Defendants.
`
`STIPULATION AND [PROPOSED] ORDER FOR THE
`PRODUCTION AND EXCHANGE OF CONFIDENTIAL
`AND HIGHLY CONFIDENTIAL INFORMATION
`
`WHEREAS, the parties to the above-captioned action (the “Litigation”) will
`
`engage, or are engaged, in discovery proceedings, which may include, among other
`
`things, producing documents, responding to written discovery requests, and taking
`
`depositions and
`
`WHEREAS, those discovery proceedings may involve the production of
`
`certain information that one or more of the parties to the Litigation (collectively the
`
`GRANTED
`
`
`
`EFiled: Nov 17 2022 04:26PM EST
`Transaction ID 68402410
`Case No. 2022-0837-LWW
`
`
`
`“Parties,” and each a “Party”) believe to be confidential and sensitive commercial,
`
`financial, or business information;
`
`IT IS HEREBY STIPULATED AND AGREED, by the Parties hereto,
`
`through their undersigned counsel, subject to the approval of the Court, pursuant to
`
`Court of Chancery Rules 5.1 and 26(c), that this Stipulation and Order for the
`
`Production and Exchange of Confidential and Highly Confidential Information (the
`
`“Stipulation”) will govern the handling of documents, deposition testimony,
`
`deposition exhibits, deposition transcripts, written discovery requests, interrogatory
`
`responses, responses to requests for admissions, and responses to requests for
`
`documents and electronically stored information, and any other information or
`
`material produced, given or exchanged, including any information contained therein
`
`or derived therefrom (“Discovery Material”) by or among any Party or non-Party
`
`providing Discovery Material (each a “Producing Party”) in this Litigation.
`
`1.
`
`Any Producing Party may designate any Discovery Material as
`
`“Confidential” under the terms of this Stipulation if such Producing Party in good
`
`faith and reasonably believes that such Discovery Material contains nonpublic,
`
`confidential, personal, business, strategic, proprietary, or commercially sensitive
`
`information that requires the protections provided in this Stipulation (“Confidential
`
`Discovery Material”). Any Producing Party may designate any Discovery Material
`
`as “Highly Confidential” under the terms of this Stipulation if such Producing Party
`2
`
`
`
`in good faith and reasonably believes that disclosure of the Discovery Material other
`
`than as permitted pursuant to Paragraph 6 of this Stipulation is substantially likely
`
`to cause injury to the Producing Party (“Highly Confidential Discovery Material”).
`
`2.
`
`The designation of Discovery Material as Confidential or Highly
`
`Confidential Discovery Material shall be made in the following manner:
`
`a.
`
`In the case of documents or other materials (apart from
`
`depositions or other pre-trial testimony): (i) by affixing the legend
`
`“Confidential” or “Highly Confidential” to each page containing any
`
`Confidential or Highly Confidential Discovery Material, except that in the
`
`case of multi-page documents bound together by staple or other permanent
`
`binding, the word “Confidential” or “Highly Confidential” need only be
`
`stamped on the first page of the document in order for the entire document to
`
`be treated in accordance with its designation; or (ii) in the case of
`
`electronically stored information produced in native format, by including
`
`“Confidential” or “Highly Confidential” in the file or directory name, or by
`
`affixing the legend “Confidential” or “Highly Confidential” to the media
`
`containing the Discovery Material (e.g., CD-ROM, DVD flash drive) as
`
`applicable.
`
`b.
`
`In the case of depositions or other pretrial testimony: (i) by a
`
`statement on the record, by counsel, at the time of such disclosure or before
`3
`
`
`
`the conclusion of the deposition or testimony; or (ii) by written notice, sent to
`
`all Parties within five (5) business days of receipt of the rough or final
`
`transcript (whichever is received first) designating the entire transcript or
`
`portions thereof; provided that only those portions of the transcript designated
`
`as Confidential or Highly Confidential Discovery Material shall be deemed
`
`Confidential or Highly Confidential Discovery Material. All depositions and
`
`other pretrial testimony will be deemed to be Highly Confidential Discovery
`
`Material until the expiration of the 5th business day after counsel receive a
`
`copy of the rough or final transcript (whichever is received first), after which
`
`such deposition and other pretrial testimony will be treated in accordance with
`
`its confidentiality designation, if any. The Parties may modify this procedure
`
`for any deposition or other pretrial testimony, through agreement either on the
`
`record at such deposition or testimony or in writing, without further order of
`
`the Court.
`
`c.
`
`In the case of any other Discovery Material, by written notice
`
`that the Discovery Material constitutes Confidential or Highly Confidential
`
`Discovery Material, as applicable.
`
`3.
`
`The designation of Discovery Material as Confidential or Highly
`
`Confidential Discovery Material shall constitute a representation that such
`
`4
`
`
`
`Discovery Material has been reviewed by an attorney representing the Party making
`
`the designation, and that there is a good faith basis for such designation.
`
`4.
`
`Inadvertent failure to designate Discovery Material as Confidential or
`
`Highly Confidential Discovery Material shall not constitute a waiver of such claim
`
`and may be corrected promptly upon discovery of such failure. A Producing Party
`
`may designate as “Confidential” or “Highly Confidential” any Discovery Material
`
`that has already been produced, including Discovery Material that the Producing
`
`Party inadvertently failed to designate as Confidential or Highly Confidential
`
`Discovery Material, (i) by notifying in writing the Party to whom the production has
`
`been made that the Discovery Material constitutes Confidential or Highly
`
`Confidential Discovery Material, or (ii) in a manner consistent with Paragraph 2.
`
`The Party making the designation shall mark and replace previously supplied
`
`Discovery Material. Upon receiving notice of the inadvertent failure to designate,
`
`the Parties shall thereafter treat the Discovery Material so designated as Confidential
`
`or Highly Confidential Discovery Material, and such Discovery Material shall be
`
`fully subject to this Stipulation from the date of such supplemental notice forward.
`
`The Party receiving such notice shall make a reasonable, good faith effort to ensure
`
`that any analyses, memoranda, notes, or other such materials generated based upon
`
`such newly designated information are immediately treated as containing
`
`Confidential or Highly Confidential Discovery Material. In addition, upon receiving
`5
`
`
`
`such supplemental written notice, any receiving Party that disclosed the Discovery
`
`Material before its designation as Confidential or Highly Confidential Discovery
`
`Material shall exercise its best efforts to ensure (i) the return or destruction of such
`
`Discovery Material by any person not authorized to receive the Confidential or
`
`Highly Confidential Discovery Material under the terms of this Stipulation, (ii) that
`
`any documents or other materials derived from such Discovery Material are treated
`
`as if the Discovery Material had been designated as Confidential or Highly
`
`Confidential Discovery Material when originally produced, (iii) that such Discovery
`
`Material is not further disclosed except in accordance with the terms of this
`
`Stipulation, and (iv) that any such Discovery Material, and any information derived
`
`therefrom, is used solely for the purposes described in Paragraph 10 of this
`
`Stipulation.
`
`5.
`
`Confidential Discovery Material may be disclosed, summarized,
`
`described, characterized, or otherwise communicated or made available in whole or
`
`in part only to the following persons for use in accordance with this Stipulation:
`
`a.
`
`The Parties and the directors, officers, general partners, limited
`
`partners, managers, members, and employees of the Parties who are assisting
`
`with or making decisions concerning the Litigation, to the extent deemed
`
`reasonably necessary by counsel of record for the purpose of assisting in the
`
`prosecution or defense of the Litigation;
`6
`
`
`
`b.
`
`Counsel who represent Parties in this Litigation (including in-
`
`house counsel), and the partners, counsel, associates, paralegals, secretaries,
`
`clerical, regular and temporary employees, and service vendors of such
`
`counsel (including outside copying and litigation support services) who are
`
`assisting with the Litigation;
`
`c.
`
`Subject to Paragraph 8, experts or consultants assisting counsel
`
`for the Parties, and partners, associates, paralegals, secretaries, clerical,
`
`regular and temporary employees, and service vendors of such experts or
`
`consultants (including outside copying services and outside support services)
`
`who are assisting with the Litigation;
`
`d.
`
`Subject to Paragraph 9, witnesses or deponents, and their
`
`counsel, only to the extent necessary to conduct or prepare for depositions or
`
`testimony or to prepare and submit declarations or affidavits in this Litigation;
`
`e.
`
`Any person indicated on the face of a document or accompanying
`
`cover letter, email, or other communication to be the author, addressee, or an
`
`actual or intended recipient of the document (or indicated as a blind copy
`
`recipient in such document/communication’s metadata); any person indicated
`
`as the custodian of the document/communication in corresponding metadata
`
`or as confirmed by the Producing Party; or, in the case of meeting minutes
`
`and presentations, an attendee of the meeting;
`7
`
`
`
`f.
`
`The Court, persons employed by the Court, and court reporters
`
`transcribing any hearing, trial, or deposition in this Litigation or any appeal
`
`therefrom; and
`
`g.
`
`Any other person only upon (i) order of the Court entered upon
`
`notice to the Parties, or (ii) written stipulation of, or statement on the record
`
`by, the Producing Party who provided the Confidential Discovery Material
`
`being disclosed, provided that such person signs an undertaking in the form
`
`attached as Exhibit A hereto.
`
`6.
`
`Highly Confidential Discovery Material may be disclosed,
`
`summarized, described, characterized, or otherwise communicated or made
`
`available in whole or in part only to the following persons for use in connection with
`
`the Litigation and in accordance with this Stipulation:
`
`a.
`
`Counsel who represent Parties in this Litigation (including in-
`
`house counsel), and the partners, counsel associates, paralegals, secretaries,
`
`clerical, regular and temporary employees, and service vendors of such
`
`counsel (including outside copying and litigation support services) who are
`
`assisting with the Litigation;
`
`b.
`
`Subject to Paragraph 8, experts or consultants assisting counsel
`
`for the Parties, and partners, associates, paralegals, secretaries, clerical,
`
`regular and temporary employees, and service vendors of such experts or
`8
`
`
`
`consultants (including outside copying services and outside support services)
`
`who are assisting with the Litigation;
`
`c.
`
`Subject to Paragraph 9, witnesses or deponents, and their
`
`counsel, only to the extent necessary to conduct or prepare for depositions or
`
`testimony or to prepare and submit declarations or affidavits in this Litigation;
`
`d.
`
`Any person indicated on the face of a document or accompanying
`
`cover letter, email, or other communication to be the author, addressee, or an
`
`actual or intended recipient of the document, (or indicated as a blind copy
`
`recipient in such document/communication’s metadata); any person indicated
`
`as the custodian of the document/communication in corresponding metadata
`
`or as confirmed by the Producing Party; or, in the case of meeting minutes
`
`and presentations, an attendee of the meeting;
`
`e.
`
`The Court, persons employed by the Court, and court reporters
`
`transcribing any hearing, trial, or deposition in this Litigation or any appeal
`
`therefrom; and
`
`f.
`
`Any other person only upon (i) order of the Court entered upon
`
`notice to the Parties, or (ii) written stipulation of, or statement on the record
`
`by, the Producing Party who provided the Highly Confidential Discovery
`
`Material being disclosed, and provided that such person signs an undertaking
`
`in the form attached as Exhibit A hereto.
`9
`
`
`
`7.
`
`Subject to Paragraph 25, to the extent that testimony is sought
`
`concerning Confidential or Highly Confidential Discovery Material during any
`
`deposition or in any other pretrial venue, any Party may exclude any person from
`
`the deposition or other venue during such testimony if the Confidential or Highly
`
`Confidential Discovery Material may not be disclosed to such person under the terms
`
`of this Stipulation.
`
`8.
`
`Notwithstanding Paragraph 5(C) and 6(B), Confidential or Highly
`
`Confidential Discovery Material may be provided to persons listed therein only to
`
`the extent necessary for such expert or consultant to prepare a written opinion, to
`
`prepare to testify, or to assist counsel in this Litigation, provided that such expert or
`
`consultant (i) is not currently an employee of any Party or any known Competitor
`
`(as defined below) or potential transaction counterparty of the Producing Party
`
`designating the Confidential or Highly Confidential Discovery Material, as far as the
`
`expert or consultant can reasonably determine, and (ii) is using said Confidential or
`
`Highly Confidential Discovery Material pursuant to the terms of this Stipulation;
`
`and further provided that such expert or consultant agrees to be bound by the terms
`
`of this Stipulation by signing an undertaking in the form attached as Exhibit A
`
`hereto. Counsel for the Party showing, providing, or disclosing Confidential or
`
`Highly Confidential Discovery Material to any person required to execute an
`
`undertaking pursuant to this paragraph shall be responsible for obtaining and
`10
`
`
`
`retaining such signed undertaking before provision of the Confidential or Highly
`
`Confidential Discovery Material to such expert or consultant. Under no
`
`circumstances shall an expert or consultant who is a Competitor of the Producing
`
`Party be provided access to Confidential or Highly Confidential Discovery Material
`
`absent further order of the Court or consent of the Producing Party. “Competitors”
`
`are persons or entities engaged in the same or similar lines of business as the
`
`Producing Party.
`
`9.
`
`Notwithstanding Paragraph 5(D) and 6(C), Confidential or Highly
`
`Confidential Discovery Material may be provided to persons listed therein only after
`
`(i) such persons confirm their understanding and agreement to abide by the terms of
`
`this Stipulation by making such a statement on the record, and/or by signing an
`
`undertaking in the form attached as Exhibit A hereto, or (ii) a court of competent
`
`jurisdiction orders them to abide by the terms of this Stipulation. Counsel for the
`
`Party showing, providing, or disclosing Confidential or Highly Confidential
`
`Discovery Material to any person required to execute an undertaking pursuant to this
`
`paragraph shall be responsible for obtaining and retaining such signed undertaking
`
`before the provision of such Confidential or Highly Confidential Discovery Material
`
`to such person.
`
`10. Confidential or Highly Confidential Discovery Material shall be used
`
`solely for purposes of this Litigation and shall not be used for any other purpose,
`11
`
`
`
`including, without limitation, any business or commercial purpose; provided,
`
`however, that the foregoing shall not apply to Confidential or Highly Confidential
`
`Discovery Material that is or properly becomes part of the public record; and further
`
`provided that the restrictions on the use of Confidential Discovery Material may be
`
`modified for good cause shown.
`
`11.
`
`Every person to whom Confidential or Highly Confidential 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 Confidential or Highly Confidential 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.
`
`12. Any pleading, brief, memorandum, motion, letter, affidavit, exhibit or
`
`other document filed with the Court that discloses, summarizes, describes,
`
`characterizes, includes or attaches or otherwise communicates Confidential or
`
`Highly Confidential Discovery Material (a “Confidential Filing”) must be filed
`
`confidentially and not available for public access (“Confidential Treatment”) in
`12
`
`
`
`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, every Confidential Filing must be submitted with a cover page bearing
`
`the title of the Litigation, the title of the Confidential 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 Name]
`[Filing Attorney Law Firm]
`[Filing Attorney or Party Address]
`[Filing Attorney or Party Telephone Number]
`
`If a public version of the Confidential Filing will be filed in accordance with Court
`
`of Chancery Rule 5.1(d), then the cover page shall also state:
`
`A public version of this document will be filed on or
`before [DATE]
`
`13
`
`
`
`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
`
`FILED UNDER SEAL PURSUANT TO A
`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.
`
`13.
`
`Party making a Confidential Filing must comply with the provisions of
`
`Court of Chancery Rule 5.1. The definition of Confidential or Highly Confidential
`
`in this stipulation may encompass Confidential or Highly Confidential Discovery
`
`Material that falls within a broader range of material than is covered by Rule 5.1.
`
`Nevertheless, when complying with Rule 5.1, parties must file a copy of the
`
`Confidential Filing for public inspection that omits only such Confidential or Highly
`
`Confidential Discovery Material as to which the Producing Party reasonably and in
`
`good faith believes the public interest in access to Court proceedings is outweighed
`14
`
`
`
`by the harm public disclosure of such Discovery Material would cause because it
`
`contains sensitive, non-public information. For avoidance of doubt, the Parties have
`
`no obligation to file public versions of any exhibits, affidavits, declarations or other
`
`attachments filed as part of a Confidential Filing, except as required by Court of
`
`Chancery Rule 5.1(f)(1) or if otherwise ordered by the Court or required by the
`
`Register in Chancery.
`
`14. All materials filed pursuant to Paragraph 12 shall be released from
`
`Confidential Treatment (as defined in Court of Chancery Rule 5.1) by the Register
`
`in Chancery only as provided in Court of Chancery Rules 5.1(d) and 5.1(g), as
`
`applicable, 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 Filings that were filed with the Court by such Party but contain
`
`Discovery Material designated as Confidential 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 the 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 latter to seek further Confidential Treatment
`
`or to have the documents returned or destroyed. The provisions of this Paragraph
`
`may be waived only with the prior written consent of the Producing Party.
`15
`
`
`
`15.
`
`In accordance with the provisions of Court of Chancery Rule 5.1(f), any
`
`Party who objects to the continued restriction on public access to any Confidential
`
`Filing, or any portion thereof, shall give written notice of the objection to the
`
`Producing Party. If the Confidential Filing was a document for which the filing of
`
`a public version was not required under Rule 5.1(d), the Producing Party seeking to
`
`continue the restriction on public access to the Confidential Filing, or any portion
`
`thereof, shall provide the notices and public filings within the time periods required
`
`by Rule 5.1(f)(1). To the extent that the Producing Party seeks to continue the
`
`restriction on public access to the Confidential Filing, or any portion thereof, to
`
`which a public version is available, the Producing Party shall file a motion with the
`
`Court within the five-day period mandated by Court of Chancery Rule 5.1(f)(2). The
`
`filing of the motion constitutes a certification that the signer of the motion personally
`
`reviewed the Confidential Filing and that continued Confidential Treatment is
`
`appropriate. The person challenging Confidential Treatment shall have five (5) days
`
`to file an opposition. The Court shall then determine whether Confidential
`
`Treatment will be maintained, or whether a reply, hearing or further proceedings are
`
`warranted. If a motion seeking continued Confidential Treatment is not timely filed,
`
`then the Confidential Filing shall become part of the public record, and the Register
`
`in Chancery shall permit access to the Confidential Filing on the docket system to
`
`the same extent as any other public filing. If an opposition to the motion is not timely
`16
`
`
`
`filed, then the challenge shall be deemed withdrawn and the Confidential Filing shall
`
`continue to receive Confidential Treatment.
`
`16. During the pendency of this Litigation, any Party objecting to the
`
`designation of any Discovery Material as Confidential 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 a motion is pending, the Discovery Material in question shall be treated as
`
`Confidential 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 or Highly Confidential Discovery Material, which burden remains on
`
`the Producing Party that designates such Discovery Material as Confidential or
`
`Highly Confidential Discovery Material.
`
`17.
`
`The Parties reserve the right to apply, upon short notice, for an order
`
`seeking additional safeguards with respect to the use and handling of Discovery
`
`Material or to modify the terms of this Stipulation. The Parties agree to meet and
`
`confer in good faith prior to moving the Court for any modifications or additional
`
`safeguards.
`
`17
`
`
`
`18.
`
`Entering into this Stipulation, or agreeing to and/or producing or
`
`receiving Discovery Material (regardless of confidentiality designation, if any) or
`
`otherwise complying with the terms of this Stipulation, shall not:
`
`a.
`
`Prejudice in any way the rights of any Party to (i) seek production
`
`of documents or information the Party considers subject to discovery, or (ii)
`
`object to the production of documents or information it considers not subject
`
`to discovery;
`
`b.
`
`Operate as an admission by any Party that any Discovery
`
`Material constitutes Confidential or Highly Confidential Discovery Material
`
`or contains or reflects trade secrets or any other type of confidential
`
`information;
`
`c.
`
`Prejudice in any way the rights of any Party to (i) petition the
`
`Court for a further protective order relating to any purportedly Confidential or
`
`Highly Confidential Discovery Material, or (ii) seek a determination by the
`
`Court whether any Discovery Material (regardless of confidentiality
`
`designation, if any) should be subject to the terms of this Stipulation;
`
`d.
`
`Prevent any Party from agreeing in writing to alter or waive the
`
`provisions or protections provided herein with respect to any Discovery
`
`Material;
`
`18
`
`
`
`e.
`
`Prejudice in any way the rights of any Party to object to the
`
`relevance, authenticity, use, or admissibility into evidence of any document,
`
`testimony, or other evidence subject to this Stipulation;
`
`f.
`
`Preclude any Party from objecting to discovery that it believes to
`
`be otherwise improper; or
`
`g.
`
`Operate as a waiver of any attorney-client, work product,
`
`business strategy, trade secret, or other privilege immunity or protection.
`
`19.
`
`This Stipulation has no effect upon, and shall not apply to, a Producing
`
`Party’s use or disclosure of its own Discovery Material for any purpose. Nothing
`
`herein shall: (i) prevent a Producing Party from disclosing its own Confidential or
`
`Highly Confidential Discovery Material; or (ii) impose any restrictions on the use or
`
`disclosure by any person of documents, materials, or information designated as
`
`Confidential or Highly Confidential Discovery Material obtained lawfully by such
`
`person independently of the discovery proceedings in this Litigation, and not
`
`otherwise subject to confidentiality restrictions.
`
`20.
`
`If Discovery Material that is subject to a claim of attorney-client
`
`privilege, attorney work product, or any other applicable privilege or immunity or
`
`ground on which production of that information should not be made to any Party
`
`(“Inadvertent Production Material”) is inadvertently produced to that Party or
`
`Parties, such inadvertent production shall in no way prejudice or otherwise constitute
`19
`
`
`
`a waiver of, or estoppel as to, any claim of attorney-client privilege, work product,
`
`or other applicable privilege or immunity; provided further:
`
`a.
`
`A claim of
`
`inadvertent production shall constitute a
`
`representation by that Producing Party that the Inadvertent Production
`
`Material has been reviewed by an attorney for such Producing Party and that
`
`there is a good faith basis for such claim of inadvertent production.
`
`b.
`
`If a claim of inadvertent production is made pursuant to this
`
`Stipulation, with respect to Discovery Material then in the custody of another
`
`Party, the Party possessing the Inadvertent Production Material shall: (i)
`
`refrain from any further examination or disclosure of the claimed Inadvertent
`
`Production Material; (ii) if requested, promptly make a good-faith effort to
`
`return the claimed Inadvertent Production Material and all copies thereof
`
`(including summaries and excerpts) to counsel for the Producing Party, or
`
`destroy all such claimed Inadvertent Production Material (including
`
`summaries and excerpts) and all copies thereof, and certify in writing to that
`
`fact; and (iii) not use the Inadvertent Production Material for any purpose until
`
`further order of the Court.
`
`c.
`
`A Party may move the Court for an order compelling production
`
`of the claimed Inadvertent Production Material; and may retain a copy of the
`
`material on an attorney’s-eyes-only basis for the purpose of bringing such a
`20
`
`
`
`motion; however, while such motion is pending, the Discovery Material in
`
`question shall be treated as Inadvertent Production Material, and such motion
`
`may not assert as a ground for entering such an order the fact or circumstance
`
`of the inadvertent production, nor shall such motion include or otherwise
`
`disclose, as an attachment, exhibit, or otherwise, the Inadvertent Production
`
`Material (or any portion thereof) that is the subject of such motion.
`
`21. Nothing herein shall be deemed to waive any applicable common law
`
`or statutory privilege or work product protection.
`
`22.
`
`In the event additional Parties join or are joined in this Litigation, they
`
`shall not have access to Confidential or Highly Confidential Discovery Material until
`
`the newly joined Party by its counsel has executed and filed with the Court its
`
`agreement to be bound fully by this Stipulation.
`
`23.
`
`The Parties agree to be bound by the terms of this Stipulation pending
`
`the entry by the Court of this Stipulation, and any violation of its terms shall be
`
`subject to the same sanctions and penalties as if this Stipulation had been entered by
`
`the Court.
`
`24.
`
`Subject to the requirements of Court of Chancery Rules 5.1(g) and any
`
`applicable rule of the Delaware Supreme Court, the provisions of this Stipulation
`
`shall, absent written permission of the Producing Party or further order of the Court,
`
`continue to be binding throughout and after the conclusion of the Litigation,
`21
`
`
`
`including, without limitation, any appeals therefrom, except as provided in
`
`Paragraph 25.
`
`25.
`
`In the event that any Confidential or Highly Confidential Discovery
`
`Material is used in open court during any court proceeding or lodged as a trial
`
`exhibit, the material shall lose its confidential status and become part of the public
`
`record, unless the Producing Party applies for and obtains an order from this Court
`
`specifically maintaining the confidential status of particular material. Prior to any
`
`court proceeding in which Confidential or Highly Confidential Discovery Material
`
`is to be used, counsel for the Parties shall confer in good faith on such procedures
`
`that may be necessary or advisable to protect the confidentiality of any such
`
`Confidential or Highly Confidential Discovery Material.
`
`26. Within thirty (30) days after receiving notice of the entry of an order,
`
`judgment, or decree finally disposing of this Litigation, or any other proceeding in
`
`which Confidential or Highly Confidential Discovery Material is permitted to be
`
`used, including the exhaustion of all possible appeals, and upon the written request
`
`of the Producing Party, all persons having received Confidential or Highly
`
`Confidential Discovery Material shall either (i) make a good-faith and reasonable
`
`effort to return such material and all copies thereof (including summaries, excerpts,
`
`and derivative works) to counsel for the Producing Party; or (ii) make a good-faith
`
`and reasonable effort to destroy all Confidential or Highly Confidential Discovery
`22
`
`
`
`Material, and if so requested, to certify to that fact in writing to counsel for the
`
`Producing Party. However, counsel for the Parties shall be entitled to retain court
`
`papers, deposition and trial transcripts, and litigation files (including attorney work
`
`product and discovery material containing Confidential or Highly Confidential
`
`Discovery Material), provided that such counsel, and employees of such counsel,
`
`shall maintain the confidentiality thereof and shall not disclose such court papers,
`
`correspondence, pleadings, depositions and trial transcripts, and litigation files
`
`(including attorney work product and discovery material containing Confidential or
`
`Highly Confidential Discovery Material), to any person except pursuant to a court
`
`order, agr
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