`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 1 of 13 PageID #: 368
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`SEAGEN INC.,
`
`
`
`v.
`
`DAIICHI SANKYO CO., LTD.,
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`Defendant.
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`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`
`
`PROTECTIVE ORDER
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`
`
`CIVIL ACTION NO. 2:20-CV-00337-JRG
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`
`
`WHEREAS, Plaintiff Seagen Inc. and Defendant Daiichi Sankyo Company, Limited,
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`hereafter referred to as “the Parties,” believe that certain information that is or will be encompassed
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`by discovery demands by the Parties involves the production or disclosure of trade secrets,
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`confidential business information, or other proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
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`Federal Rule of Civil Procedure 26(c):
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`1.
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`Each Party may designate as confidential for protection under this Order, in whole or in part,
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`any document, information or material that constitutes or includes, in whole or in part,
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`confidential or proprietary information or trade secrets of the Party or a Third Party to whom
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`the Party reasonably believes it owes an obligation of confidentiality with respect to such
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`document, information or material (“Protected Material”). Protected Material shall be
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`designated by the Party producing it by affixing a legend or stamp on such document,
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`information or material as follows: “CONFIDENTIAL.” The word “CONFIDENTIAL”
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`shall be placed clearly on each page of the Protected Material (except deposition and hearing
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 2 of 13 PageID #: 369
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`transcripts) for which such protection is sought. For deposition and hearing transcripts, the
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`word “CONFIDENTIAL” shall be placed on the cover page of the transcript (if not already
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`present on the cover page of the transcript when received from the court reporter) by each
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`attorney receiving a copy of the transcript after that attorney receives notice of the
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`designation of some or all of that transcript as “CONFIDENTIAL.”
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`2.
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`Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance of this
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`Order with the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes Only”
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`shall receive the same treatment as if designated “HIGHLY CONFIDENTIAL” under this
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`Order, unless and until such document is redesignated to have a different classification
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`under this Order.
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`3.
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`With respect to documents, information or material designated “CONFIDENTIAL” or
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`“HIGHLY CONFIDENTIAL”
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`(“DESIGNATED MATERIAL”),1 subject
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`to
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`the
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`provisions herein and unless otherwise stated, this Order governs, without limitation: (a)
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`all documents, electronically stored information, and/or things as defined by the Federal
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`Rules of Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents
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`marked as exhibits or for identification in depositions and hearings; (c) pretrial pleadings,
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`exhibits to pleadings and other court filings; (d) affidavits; and (e) stipulations. All copies,
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`reproductions, extracts, digests and complete or partial summaries prepared from any
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`DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and
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`treated as such under this Order.
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`4.
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`Notwithstanding
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`any
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`designation
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`as
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`“CONFIDENTIAL”
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`or
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`“HIGHLY
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`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer
`to the class of materials designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” both
`individually and collectively.
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 3 of 13 PageID #: 370
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`CONFIDENTIAL,” the protections conferred by this Order do not cover the following
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`information: (a) any information that is in the public domain at the time of disclosure to a
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`receiving Party or becomes part of the public domain after its disclosure to a receiving
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`Party as a result of publication not involving a violation of this Order, including becoming
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`part of the public record through trial or otherwise; and (b) any information known to the
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`receiving Party through proper and lawful means, under no obligation of confidentiality,
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`prior to the disclosure by the designating Party or obtained by the receiving Party through
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`proper and lawful means, under no obligation of confidentiality, after the disclosure from
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`a source who obtained the information lawfully and under no obligation of confidentiality
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`to the designating Party.
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`5.
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`A designation of Protected Material
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`(i.e., “CONFIDENTIAL” or “HIGHLY
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`CONFIDENTIAL”) may be made at any time. Inadvertent or unintentional production of
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`documents, information or material that has not been designated as DESIGNATED
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`MATERIAL shall not be deemed a waiver in whole or in part of a claim for confidential
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`treatment. Any Party that inadvertently or unintentionally produces Protected Material
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`without designating it as DESIGNATED MATERIAL may request destruction of that
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`Protected Material by notifying the recipient(s), as soon as reasonably possible after the
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`producing Party becomes aware of the inadvertent or unintentional disclosure, and
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`providing replacement Protected Material that is properly designated. The recipient(s) shall
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`then destroy all copies of the inadvertently or unintentionally produced Protected Materials
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`and any documents, information or material derived from or based thereon.
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`6.
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`“CONFIDENTIAL” documents, information and material may be disclosed only to the
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`following persons, except upon receipt of the prior written consent of the designating Party,
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 4 of 13 PageID #: 371
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`
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`upon order of the Court, or as set forth in paragraph 12 herein:
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`(a)
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`(b)
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`(c)
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`(d)
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`(e)
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`outside counsel of record in this Action for the Parties;
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`employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action;
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`in-house counsel for the Parties who either have responsibility for making decisions
`dealing directly with the litigation of this Action, or who are assisting outside
`counsel in the litigation of this Action;
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`up to and including three (3) designated representatives of each of the Parties to the
`extent reasonably necessary for the litigation of this Action, such representatives to
`be identified by name and title to the designating Party at least seven (7) days prior
`to any disclosure, except that either Party may in good faith request the other
`Party’s consent to designate one or more additional representatives, the other
`party shall not unreasonably withhold such consent, and the requesting Party may
`seek leave of Court to designate such additional representative(s) if the requesting
`Party believes the other party has unreasonably withheld such consent;
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`outside consultants or experts (i.e., not existing employees or affiliates of a Party or
`an affiliate of a Party) retained for the purpose of this litigation, provided that: (1)
`such consultants or experts are not presently employed by the Parties hereto for
`purposes other than this Action; (2) before access is given, the consultant or expert
`has completed the Undertaking attached as Exhibit A hereto and the same is served
`upon the producing Party with a current curriculum vitae of the consultant or expert
`at least ten (10) days before access to the Protected Material is to be given to that
`consultant or Undertaking to object to and notify the receiving Party in writing that
`it objects to disclosure of Protected Material to the consultant or expert. The Parties
`agree to promptly confer and use good faith to resolve any such objection. If the
`Parties are unable to resolve any objection, the objecting Party may file a motion
`with the Court within fifteen (15) days of the notice, or within such other time as the
`Parties may agree, seeking a protective order with respect to the proposed disclosure.
`The objecting Party shall have the burden of proving the need for a protective order.
`No disclosure shall occur until all such objections are resolved by agreement or
`Court order;
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`(f)
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`independent litigation support services, including persons working for or as court
`reporters, graphics or design services, jury or trial consulting services, and
`photocopy, document imaging, and database services retained by counsel and
`reasonably necessary to assist counsel with the litigation of this Action; and
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`(g)
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`the Court and its personnel.
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`A Party shall designate documents, information or material as “CONFIDENTIAL” only
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`7.
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 5 of 13 PageID #: 372
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`upon a good faith belief that the documents, information or material contains confidential
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`or proprietary information or trade secrets of the Party or a Third Party to whom the Party
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`reasonably believes it owes an obligation of confidentiality with respect to such documents,
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`information or material.
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`8.
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`Documents, information or material produced pursuant to any discovery request in this
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`Action, including but not limited to Protected Material designated as DESIGNATED
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`MATERIAL, shall be used by the Parties only in this Action unless the Parties obtain leave
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`from this Court beforehand. Nothing in this Protective Order means that another tribunal
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`or the Parties agree that documents produced in this Action may be used in the proceeding
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`over which another tribunal presides. Any person or entity who obtains access to
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`DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not make
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`any copies, duplicates, extracts, summaries or descriptions of such DESIGNATED
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`MATERIAL or any portion thereof except as may be reasonably necessary in the litigation
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`of this Action unless the Parties obtain leave from this Court beforehand.
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`9.
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`To the extent a producing Party believes that certain Protected Material qualifying to be
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`designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
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`limitation, the producing Party may designate such Protected Material “HIGHLY
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`CONFIDENTIAL.”
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`10.
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`For Protected Material designated HIGHLY CONFIDENTIAL, access to, and disclosure
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`of, such Protected Material shall be limited to individuals listed in paragraphs 6(a-c) and
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`(e-g); provided, however, that access by in-house individuals pursuant to paragraph 6(c)
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`be limited to in-house individuals who exercise no competitive decision-making authority
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`on behalf of the Party.
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 6 of 13 PageID #: 373
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`11.
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`Any attorney representing a Party, whether in-house or outside counsel, and any person
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`associated with a Party and permitted to receive the other Party’s Protected Material that
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`is designated HIGHLY CONFIDENTIAL, who obtains, receives, has access to, or
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`otherwise learns, in whole or in part, the other Party’s HIGHLY CONFIDENTIAL
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`Protected Material under this Order shall not prepare, prosecute, supervise, or assist in the
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`preparation or prosecution of any patent application pertaining to the field of the invention
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`of the patent-in-suit on behalf of the receiving Party or its acquirer, successor, predecessor,
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`or other affiliate during the pendency of this Action and for one year after the conclusion
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`of this Action, including any appeals. To ensure compliance with the purpose of this
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`provision, each Party shall create an “Ethical Wall” between those persons with access to
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`HIGHLY CONFIDENTIAL Protected Material and any individuals who, on behalf of the
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`Party or its acquirer, successor, predecessor, or other affiliate, prepare, prosecute,
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`supervise or assist in the preparation or prosecution of any patent application pertaining to
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`the field of invention of the patent-in-suit.
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`12.
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`Nothing in this Order shall require production of documents, information or other material
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`that a Party contends is protected from disclosure by the attorney-client privilege, the work
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`product doctrine, or other privilege, doctrine, or immunity. If documents, information or
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`other material subject to a claim of attorney-client privilege, work product doctrine, or other
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`privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
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`production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
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`any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally
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`produces documents, information or other material it reasonably believes are protected under
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`the attorney-client privilege, work product doctrine, or other privilege, doctrine, or immunity
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 7 of 13 PageID #: 374
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`may obtain the return of such documents, information or other material by promptly
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`notifying the recipient(s) and providing a privilege log for the inadvertently or
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`unintentionally produced documents, information or other material. The recipient(s) shall
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`gather and return all copies of such documents, information or other material to the
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`producing Party, except for any pages containing privileged or otherwise protected markings
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`by the recipient(s), which pages shall instead be destroyed and certified as such to the
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`producing Party.
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`13.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized
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`to have access thereto to any person who is not authorized for such access under this Order.
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`The Parties are hereby ORDERED to safeguard all such documents, information and
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`material to protect against disclosure to any unauthorized persons or entities.
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`14.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use any
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`DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
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`the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have
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`access to the DESIGNATED MATERIAL by virtue of his or her employment with the
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`designating Party, (ii) identified in the DESIGNATED MATERIAL as an author, addressee,
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`or copy recipient of such information, (iii) although not identified as an author, addressee,
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`or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of
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`business, seen such DESIGNATED MATERIAL, (iv) a current or former officer, director
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`or employee of the producing Party or a current or former officer, director or employee of
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`a company affiliated with the producing Party; (v) counsel for a Party, including outside
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`counsel and in-house counsel (subject to paragraph 9 of this Order); (vi) an independent
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`contractor, consultant, and/or expert retained for the purpose of this litigation; (vii) court
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`reporters and videographers; (viii) the Court; or (ix) other persons entitled hereunder to
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`access to DESIGNATED MATERIAL.
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` DESIGNATED MATERIAL shall not be
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`disclosed to any other persons unless prior authorization is obtained from counsel
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`representing the producing Party or from the Court.
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`15.
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`Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
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`deposition or hearing transcript, designate the deposition or hearing transcript or any portion
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`thereof as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to this Order.
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`Access to the deposition or hearing transcript so designated shall be limited in accordance
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`with the terms of this Order. Until expiration of the 30-day period, the entire deposition
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`or hearing transcript shall be treated as confidential.
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`16.
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`Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal and
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`shall remain under seal until further order of the Court. The filing party shall be responsible
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`for informing the Clerk of the Court that the filing should be sealed and for placing the
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`legend “FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER” above the
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`caption and conspicuously on each page of the filing. Exhibits to a filing shall conform to
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`the labeling requirements set forth in this Order. If a pretrial pleading filed with the Court,
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`or an exhibit thereto, discloses or relies on confidential documents, information or material,
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`such confidential portions shall be redacted to the extent necessary and the pleading or
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`exhibit filed publicly with the Court.
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`17.
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`The Order applies to pretrial discovery. Nothing in this Order shall be deemed to prevent
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`the Parties from introducing any DESIGNATED MATERIAL into evidence at the trial of
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`this Action, or from using any information contained in DESIGNATED MATERIAL at
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`the trial of this Action, subject to any pretrial order issued by this Court.
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 9 of 13 PageID #: 376
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`18.
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`A Party may request in writing to the other Party that the designation given to any
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`DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does
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`not agree to redesignation within ten (10) days of receipt of the written request, the
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`requesting Party may apply to the Court for relief. Upon any such application to the Court,
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`the burden shall be on the designating Party to show why its classification is proper. Such
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`application shall be treated procedurally as a motion to compel pursuant to Federal Rules
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`of Civil Procedure 37, subject to the Rule’s provisions relating to sanctions. In making
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`such application, the requirements of the Federal Rules of Civil Procedure and the Local
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`Rules of the Court shall be met. Pending the Court’s determination of the application, the
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`designation of the designating Party shall be maintained.
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`19.
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`Each outside consultant or expert to whom DESIGNATED MATERIAL is disclosed in
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`accordance with the terms of this Order shall be advised by counsel of the terms of this
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`Order, shall be informed that he or she is subject to the terms and conditions of this Order,
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`and shall sign an acknowledgment that he or she has received a copy of, has read, and has
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`agreed to be bound by this Order. A copy of the acknowledgment form is attached as
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`Appendix A.
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`20.
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`To the extent that any discovery is taken of persons who are not Parties to this Action
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`(“Third Parties”) and in the event that such Third Parties contended the discovery sought
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`involves trade secrets, confidential business information, or other proprietary information,
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`then such Third Parties may agree to be bound by this Order.
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`21.
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`To the extent that discovery or testimony is taken of Third Parties, the Third Parties may
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`designate as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” any documents,
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`information or other material, in whole or in part, produced or given by such Third Parties.
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 10 of 13 PageID #: 377
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`The Third Parties shall have ten (10) days after production of such documents, information
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`or other materials to make such a designation. Until that time period lapses or until such
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`a designation has been made, whichever occurs sooner, all documents, information or other
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`material so produced or given shall be treated as “CONFIDENTIAL” in accordance with
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`this Order.
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`22. Within sixty (60) days of final termination of this Action and any appeals therefrom,
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`all DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes,
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`summaries, descriptions, and excerpts or extracts thereof (excluding excerpts or extracts
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`incorporated into any privileged memoranda of the Parties and materials which have been
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`admitted into evidence in this Action), shall at the producing Party’s election either be
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`returned to the producing Party or be destroyed. The receiving Party shall verify the
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`return or destruction by affidavit furnished to the producing Party, upon the producing
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`Party’s request.
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`23.
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`The failure to designate documents, information or material in accordance with this Order
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`and the failure to object to a designation at a given time shall not preclude the filing of a
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`motion at a later date seeking to impose such designation or challenging the propriety
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`thereof. The entry of this Order and/or the production of documents, information and
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`material hereunder shall in no way constitute a waiver of any objection to the furnishing
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`thereof, all such objections being hereby preserved.
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`24.
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`Any Party knowing or believing that any other party is in violation of or intends to violate
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`this Order and has raised the question of violation or potential violation with the opposing
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`party and has been unable to resolve the matter by agreement may move the Court for such
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`relief as may be appropriate in the circumstances. Pending disposition of the motion by
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 11 of 13 PageID #: 378
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`the Court, the Party alleged to be in violation of or intending to violate this Order shall
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`discontinue the performance of and/or shall not undertake the further performance of any
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`action alleged to constitute a violation of this Order.
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`25.
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`Production of DESIGNATED MATERIAL by each of the Parties shall not be deemed a
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`publication of the documents, information and material (or the contents thereof) produced
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`so as to void or make voidable whatever claim the Parties may have as to the proprietary and
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`confidential nature of the documents, information or other material or its contents.
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`26.
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`Nothing in this Order shall be construed to effect an abrogation, waiver or limitation of any
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`kind on the rights of each of the Parties to assert any applicable discovery or trial privilege.
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`27.
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`Each of the Parties shall also retain the right to file a motion with the Court (a) to modify this
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`Order to allow disclosure of DESIGNATED MATERIAL to additional persons or entities
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`if reasonably necessary to prepare and present this Action and (b) to apply for additional
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`protection of DESIGNATED MATERIAL.
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`.
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`____________________________________
`RODNEY GILSTRAP
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 12th day of February, 2021.
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 12 of 13 PageID #: 379
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`SEAGEN INC.,
`
`v.
`
`Plaintiff,
`
`DAIICHI SANKYO CO., LTD.,
`
`
`
`
`
`
`
`Defendant.
`
`
`
`Case No. 2:20-cv-00337-JRG
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`1.
`
`APPENDIX A
`UNDERTAKING OF EXPERTS OR CONSULTANTS REGARDING
`PROTECTIVE ORDER
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`I, ___________________________________________, declare that:
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`My address is _________________________________________________________.
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`My current employer is _________________________________________________.
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`My current occupation is ________________________________________________.
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`2.
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`I have received a copy of the Protective Order in this Action. I have carefully read and
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`understand the provisions of the Protective Order.
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`3.
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`I will comply with all of the provisions of the Protective Order. I will hold in confidence,
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`will not disclose to anyone not qualified under the Protective Order, and will use only for
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`purposes of this Action, unless the Parties obtain leave from this Court, any information
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`designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” that is disclosed to
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`me.
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`4.
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`Promptly upon termination of the last pending proceeding in this Action, I will return all
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`documents and things designated as “CONFIDENTIAL” or “HIGHLY
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`CONFIDENTIAL” that came into my possession, and all documents and things that I
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`Case 2:20-cv-00337-JRG Document 55 Filed 02/12/21 Page 13 of 13 PageID #: 380
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`have prepared relating thereto, to the outside counsel for the Party by whom I am
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`employed.
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`5.
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`I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the
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`Protective Order in this Action.
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`
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`I declare under penalty of perjury that the foregoing is true and correct.
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`
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`Signature ________________________________________
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`Date ____________________________________________
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