Case 1:19-cv-05354-LGS Document 59 Filed 12/23/19 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`12/23/2019
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`NATURAL ALTERNATIVES
`INTERNATIONAL, INC.,
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` Plaintiff,
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`v.
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`No.: 1:19-cv-05354-LGS
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`STIPULATED PROTECTIVE ORDER
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`BACTOLAC PHARMACEUTICAL, INC., and
`DOES 1-25,
` Defendants.
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`WHEREAS, certain documents and information have been and may be sought,
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`produced, or exhibited by and among the parties to this action, which relate to the parties’
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`trade secrets, financial, competitive, research, product development, commercial
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`information, or other kinds of sensitive information that the parties deem to be confidential;
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`and
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`WHEREAS, it has been agreed by and among the parties to this action, through their
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`respective counsel, that a protective order preserving the confidentiality of certain documents
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`and information should be entered by this Court;
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`It is hereby stipulated and agreed, subject to approval by the Court, that:
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`1.
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`This Protective Order shall govern all documents, the information
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`contained therein, and all other information produced or disclosed during the action
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`whether revealed in a document, deposition, other testimony, discovery response or
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`otherwise, by any party in this action (the “Producing Party”) to any other party (the
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`“Receiving Party”), when same is designated in accordance with the procedures set forth
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`herein. This Protective Order is binding upon the parties to the action, including their
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`Case 1:19-cv-05354-LGS Document 59 Filed 12/23/19 Page 2 of 12
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`respective corporate parents, subsidiaries and affiliates and their respective attorneys,
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`agents, representatives, officers and employees and others as set forth in this Protective
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`Order.
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`2.
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`Any Producing Party shall, through counsel, have the right to identify
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`and designate as “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL” any document or
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`information it produces or provides (whether pursuant to a discovery request, subpoena or
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`agreement), or any testimony given in this action, that the Producing Party believes
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`constitutes, reflects or discloses its confidential and proprietary information.
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`3.
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`Any party to this action as “Designating Party” may designate as
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`“HIGHLY CONFIDENTIAL” or “CONFIDENTIAL” any document or information
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`produced by any other party or third party or testimony given by any other party or third
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`party that the party reasonably believes discloses trade secrets, financial, competitive,
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`research, product development or commercial information, or otherwise qualifies as
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`“Highly Confidential Information” or “Confidential Information” pursuant to this
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`Protective Order.
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`4.
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`“Highly Confidential Information” as used herein means any
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`information that is designated pursuant to this Protective Order as “HIGHLY
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`CONFIDENTIAL” by a party, whether it is a document, information contained in a
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`document, information revealed during a deposition or other testimony, information
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`revealed in an interrogatory answer or information otherwise revealed. A party may
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`designate material “HIGHLY CONFIDENTIAL,” if it reveals information reflecting or
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`regarding trade secrets, financial, competitive, research, product development, sales prices,
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`sales volume, customer information, marketing plans, non-public regulatory information
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`or submissions for any of its products, or other commercially sensitive information, the
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`disclosure of which would provide a business advantage to a competitor.
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`5.
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`“Confidential Information” as used herein means any information that
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`is designated pursuant to this Protective Order as “CONFIDENTIAL” by a party, whether
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`it is a document, information contained in a document, information revealed during a
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`deposition or other testimony, information revealed in an interrogatory answer or
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`information otherwise revealed. In designating material as “CONFIDENTIAL,” a party
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`will make such designation only as to that material that it in good faith believes to be
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`entitled to confidential treatment under applicable law or that unrestricted disclosure could
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`potentially cause prejudice to the business or operations of the Producing Party.
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`6.
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`Specific documents and interrogatory answers produced by a Producing
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`Party shall, if appropriate, be designated as “HIGHLY CONFIDENTIAL” by marking
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`each page of the document and any answer as follows:
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`HIGHLY CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER
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`7.
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`Specific documents and interrogatory answers produced by a Producing
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`Party shall, if appropriate, be designated as “CONFIDENTIAL” by marking each page of
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`the document and any answer as follows:
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`CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER
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`8.
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`Information disclosed at a deposition taken in connection with this
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`action may be designated as “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL” by:
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`a. designating
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`testimony
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`as
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`“HIGHLY CONFIDENTIAL”
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`or
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`“CONFIDENTIAL” on the record during the taking of the deposition; or
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`b. notifying all other parties in writing of the specific pages and lines of the
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`deposition
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`transcript which are designated as “HIGHLY CONFIDENTIAL” or
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`“CONFIDENTIAL” within fifteen (15) calendar days of receipt of the transcript, whereupon
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`each party shall attach a copy of such written designation to the face of the transcript and
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`each copy thereof in that party’s possession, custody or control. Until expiration of the fifteen
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`(15) day period set forth herein, the entire deposition will be treated as “Highly
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`Confidential.” The Producing Party will have the right to exclude from attendance at a
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`deposition, during such time as Confidential Information is to be disclosed, any person other
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`than the deponent, outside counsel, and the court reporter.
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`9.
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`Confidential Information can be disclosed by a Receiving Party only to
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`the following persons:
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`a. Officers, directors, and employees of the Receiving Party to the extent
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`necessary to assist in preparing for trial or otherwise assisting in the litigation;
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`b. The court, court personnel, court reporters, and persons engaged to make
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`copies;
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`c. Outside counsel and the regular employees of such counsel to whom it is
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`necessary that the information be disclosed for purposes of this litigation;
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`d. Any person who has authored, received, or otherwise been provided
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`access (in the ordinary course, outside the context of this litigation) to the Confidential
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`Information.
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`e. Technical personnel of the parties with whom counsel for the parties find
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`it necessary to consult, in the discretion of such counsel in preparation for trial of this action;
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`f. Other persons who are witnesses at depositions or hearings under the
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`following conditions:
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`i.
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`witnesses who are present or former employees of any
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`Producing Party may be shown documents or information containing Confidential
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`Information that were produced by that Producing Party;
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`ii.
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`witnesses as to whom the examining counsel has a good faith
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`belief that said witnesses have knowledge of the specific contents of the Confidential
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`Information that was not obtained in violation of this Protective Order, based upon the
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`document itself, other documents or testimony, or the testimony of the witness before being
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`shown such Confidential Information; and
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`iii.
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`any other witnesses if the procedures specified in paragraph
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`14 below have been complied with;
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`g. Outside experts or consultants who are consulted or engaged expressly for
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`the purpose of testifying or assisting in the preparation of this litigation, provided that the
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`Receiving Party has identified the experts or consultants to the Designating Party and an
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`opportunity for the Designating Party to object and seek a protective order of the Court; and
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`h. Any other person, entity or firm, with the prior written consent of the
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`Producing Party.
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`10.
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`Highly Confidential Information can be disclosed by a Receiving Party to
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`persons listed in subparagraphs (b), (c), (d), (f)(i), (g), and (h) of paragraph 9 above and,
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`subject to the provisions of paragraph 11, to the persons listed in subparagraphs (a), (e),
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`(f)(ii), and (f)(iii) of paragraph 9 above.
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`11.
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`Notification of Counsel in Certain Circumstances.
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`a. If a Party wishes to disclose documents or information marked as
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`“HIGHLY CONFIDENTIAL” to a person in paragraph 9(a), 9(e)or at the deposition of a
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`witness that is within the class of persons in paragraph 9(f)(ii) or paragraph 9(f)(iii) above,
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`the Party must proceed in the following manner (subject to the provisions of paragraph 11(b)
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`below): counsel shall provide in writing to lead counsel for any Designating Party or
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`Producing Party (a) the names of the persons to whom “HIGHLY CONFIDENTIAL”
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`documents or information are to be disclosed, and (b) a specification of the “HIGHLY
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`CONFIDENTIAL” documents or information to be disclosed (for example, by identifying a
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`Bates number or other control number on a document produced in discovery, or an
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`interrogatory response, or a page and line cite to a deposition transcript, or other equally
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`specific means of identification) no less than three (3) business days in advance of the
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`disclosure to afford any Designating Party or Producing Party an opportunity to object to the
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`disclosure and apply to the Court for a protective order. Such an application may be made
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`by letter, of no more than three pages in length, setting forth the nature of the documents as
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`to which objection is made and the reasons for the objection. If no application for a protective
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`order is made within that three (3) business day period, disclosure to such named persons
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`may be made after the expiration of the three (3) business day period. If an application for a
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`protective order is made within the three (3) business day period, such “HIGHLY
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`CONFIDENTIAL” documents or information shall not be disclosed pending a decision by
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`the Court on the application. Any person who becomes authorized to receive documents or
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`information marked “HIGHLY CONFIDENTIAL” pursuant to this paragraph (whether
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`through a lack of objection or otherwise) shall be requested, prior to the receipt of such
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`documents or information, to execute and deliver to counsel a statement in the form annexed
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`hereto as Exhibit A. If the person refuses to execute that statement, the “HIGHLY
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`CONFIDENTIAL” documents and information shall not be disclosed to that person absent
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`a waiver of confidentiality from the party designating the information as such or a further
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`order of the Court.
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`b. A Party need not follow the procedure specified in paragraph 11(a) above
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`in the case of a witness described in paragraph 9(f)(ii) if the examining counsel has a good
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`faith belief that the witness has knowledge of the specific contents of the Highly Confidential
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`Information based upon the contents of the document to be disclosed; provided, however,
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`that the examining counsel shall first disclose the document to counsel for the party that
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`designated the document or information as Highly Confidential Information (and, if
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`different, to counsel for the witness) at the deposition, before disclosure to the witness.
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`12.
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`Persons having knowledge of Highly Confidential or Confidential
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`Information by virtue of their participation in the conduct of the action shall use that Highly
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`Confidential Information or Confidential Information only in connection with the
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`prosecution, defense or appeal of the action, and shall neither use such Highly Confidential
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`Information or Confidential Information for any other purpose nor disclose such Highly
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`Confidential Information or Confidential Information to any person in violation of the
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`terms of this Protective Order.
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`13.
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`Disclosure of Confidential Information beyond the terms of this
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`Protective Order may be made only if the party designating the material as “HIGHLY
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`CONFIDENTIAL” or “CONFIDENTIAL” consents in writing to such disclosure, or if the
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`Court, after reasonable written notice to all affected parties, orders such disclosure.
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`14.
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`Subject to the provision of paragraphs 10 and 11, prior to the disclosure
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`of any Highly Confidential Information or Confidential Information to any person
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`identified in paragraph 9(e), (f), (g), and (h), such person shall be provided with a copy of
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`this Protective Order, which he or she shall read and upon reading shall sign a Certification,
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`in the form annexed hereto as Exhibit A, acknowledging that he or she has read this
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`Protective Order and shall abide by its terms. A file of all written acknowledgments by
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`persons who have read this Protective Order and agreed in writing, in the form annexed
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`hereto as Exhibit A, to be bound by its terms shall be maintained by outside counsel for
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`the party obtaining them and shall be made available upon request.
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`15.
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`Any party may object to the propriety of the designation of specific
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`material as “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL” by serving a written
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`objection upon the Producing Party’s counsel. The Producing Party or its counsel shall
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`thereafter, within ten (10) calendar days, respond (by hand delivery, courier or facsimile
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`transmission) to such objection in writing by either: (i) agreeing to remove the designation;
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`or (ii) stating the reasons for such designation. If the Receiving Party and the Producing
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`Party are subsequently unable to agree upon the terms and conditions of disclosure for the
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`material(s) in issue, the objecting party shall be free to comply with the instructions in
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`Judge Lorna G. Schofield’s Individual Rules and Procedures for Civil Cases to move the
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`Court for an Order removing or modifying the disputed designation. On such a motion the
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`Producing Party shall have the burden of proving that the material is Highly Confidential
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`or Confidential. The material(s) in issue shall continue to be treated in the manner as
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`designated by the Producing Party until the Court orders otherwise.
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`16.
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`Except as agreed in writing by counsel of record, to the extent that any
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`Highly Confidential Information or Confidential Information is, in whole or in part,
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`contained in, incorporated in, reflected in, described in or attached to any pleading, motion,
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`memorandum, appendix or other judicial filing, counsel shall seek permission of the Court
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`to file the material under seal as instructed in Judge Lorna G. Schofield’s Individual Rules
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`and Procedures for Civil Cases. Disclosure of any portion of the transcript of a deposition
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`which reflects or contains Highly Confidential Information or Confidential Information
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`shall be subject to the terms of this Protective Order, and if filed with the Court, such
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`portion containing Highly Confidential Information or Confidential Information shall be
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`filed as a Sealed Document. All Sealed Documents, filed under seal pursuant to this
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`Protective Order, shall be filed in a sealed envelope and shall remain under seal until such
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`time as this Court, or any court of competent jurisdiction, orders otherwise. Such Sealed
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`Documents shall be identified with the caption of this action, a general description of the
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`sealed contents and shall bear the following statement which shall also appear on the sealed
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`envelope:
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`CONFIDENTIAL
`Contents hereof are confidential and are subject to a court-ordered
`protective order governing the use and dissemination of such contents.
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`17.
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`The Clerk of the Court shall maintain such Sealed Documents separate
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`from the public records in this action, intact and unopened except as otherwise directed by
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`the Court. Such Sealed Documents shall be released by the Clerk of the Court only upon
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`further order of the Court.
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`18.
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`Upon the conclusion of the action, including any appeals related thereto,
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`at the written request and option of the Producing Party, all Highly Confidential
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`Information and Confidential Information and any and all copies, summaries, notes,
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`compilations (electronic or otherwise) and memoranda related thereof, shall be returned
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`within sixty (60) calendar days to the Producing Party or destroyed by shredding by the
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`Receiving Party, provided, however, that counsel may retain their attorney work product
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`and all court-filed documents even though they contain Highly Confidential Information
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`or Confidential Information, but such retained work product and court-filed documents
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`shall remain subject to the terms of this Protective Order. At the written request of the
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`Producing Party, any person or entity having custody or control of recordings, notes,
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`memoranda, summaries or other written materials, and all copies thereof, relating to or
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`containing Highly Confidential Information or Confidential Information shall deliver to
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`the Producing Party an affidavit certifying that reasonable efforts have been made to assure
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`that all such Highly Confidential Information or Confidential Information and any copies
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`thereof, any and all records, notes, memoranda, summaries or other written material
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`regarding the Highly Confidential Information or Confidential Information (except for
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`attorney work product and court-filed documents as stated above), have been destroyed by
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`shredding or delivered in accordance with the terms of this Protective Order.
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`19.
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`If Highly Confidential Information or Confidential Information is
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`disclosed to any person other than in the manner authorized by this Protective Order, the
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`party responsible for the disclosure shall immediately upon learning of such disclosure,
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`inform the Producing Party of all pertinent facts relating to such disclosure and shall make
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`all reasonable efforts to prevent disclosure by each unauthorized person who received such
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`information.
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`20.
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`Nothing contained in this Protective Order shall preclude any party
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`from using its own Highly Confidential Information or Confidential Information in any
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`manner it sees fit, without prior consent of any party or the Court.
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`21.
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`It is expressly understood by and between the parties that in producing
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`Highly Confidential Information or Confidential Information in this litigation, the parties
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`shall be relying upon the terms and conditions of this Order. The provisions of this Order
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`shall not terminate at the conclusion of this action. This Protective Order shall continue in
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`force until amended or superseded by express order of the Court and shall survive any final
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`judgment or settlement in this action or as otherwise required by law. By written agreement
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`of the parties, or upon motion and order of the Court, the terms of this Protective Order
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`may be amended or modified.
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`So Ordered.
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`Dated: December 23, 2019
`New York, New York
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`COUNSEL HEREBY CONSENT TO THE ABOVE ORDER ON BEHALF OF THEIR
`RESPECTIVE CLIENTS:
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`ARNALL GOLDEN GREGORY LLP
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`By: /s/ Richard J. Oparil
`Richard J. Oparil (RO9269)
`1775 Pennsylvania Ave. NW, Suite 1000
`Washington DC 20006
`(202) 677-4030
`richard.oparil@agg.com
`Attorneys for Plaintiff Natural Alternatives International, Inc.
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`RAIMONDI LAW, P.C.
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`By: /s/ Christopher A. Raimondi
`Christopher A. Raimondi (CR8118)
`552 Broadway
`Massapequa, NY 11758
`(516) 308-4462
`craimondi@raimondi-law.com
`Attorneys for Defendant Bactolac Pharmaceutical, Inc.
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`EXHIBIT A
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`No.: 1:19-cv-05354-LGS
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`:::::::::::
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`NATURAL ALTERNATIVES
`INTERNATIONAL, INC.,
`
` Plaintiff,
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`- against –
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`BACTOLAC PHARMACEUTICAL, INC., and
`DOES 1-25,
` Defendants.
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`CERTIFICATION
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`The undersigned hereby acknowledges that, having read the Protective Order entered in the
`above-captioned action on __________, the undersigned understands the terms thereof and
`agrees to be bound thereby. The undersigned further agrees to submit to the jurisdiction of
`the Court for purposes of enforcement of the provisions of the Protective Order and
`understands that the Court may impose sanctions for any violation of the Protective Order.
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` _______________________
`Date
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` _____________________________
`Name (typed or printed)
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` ____________________________
`Signature
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