Opinion
Civil Action 3:23-CV-472-DPJ-ASH
09-20-2024
ADAM I. LEWIS PLAINTIFF v. FUSIO MEDICAL DEVICES, LLC ET AL DEFENDANTS
PROTECTIVE ORDER
ANDREW S. HARRIS, UNITED STATES MAGISTRATE JUDGE
This Protective Order governs the use and disclosure of documents produced by nonparty Lauren Chase Thornburg pursuant to a subpoena for documents and to testimony provided by Thornburg at his subpoenaed deposition.
1. Plaintiff Adam I. Lewis and Thornburg claim the documents requested by Defendants via subpoena contain confidential research, development, or commercial information subject to protection.
2. This Protective Order shall govern all documents produced by Thornburg in response to the subpoena, including all copies, excerpts, and summaries of the documents; information contained within the documents; and any testimony by Thornburg regarding the documents or other testimony by Thornburg designated confidential by Lewis or Thornburg.
3. The Court orders that the documents produced by Thornburg pursuant to the subpoena (the “Subpoenaed Documents”) shall be designated “Confidential - Attorneys' Eyes Only” and subject to the following restrictions: Absent the prior written consent of counsel for both Lewis and Thornburg, or unless otherwise ordered by the Court, the Subpoenaed Documents shall only be viewed by (a) Lewis's counsel of record and the regularly employed associate counsel, paralegals, and clerical staff of Lewis's counsel of record; (b) Thornburg, his counsel of record, and the regularly employed associate counsel, paralegals, and clerical staff of Thornburg's counsel; (c) Defendants' counsel of record and the regularly employed associate counsel, paralegals, and clerical staff of Defendants' counsel of record; (d) court reporters and videographers responsible for the deposition of Thornburg; (e) the Court and its staff via a filing under seal in accordance with L.U. Civ. R. 79 (the “Authorized Persons”). The Subpoenaed Documents may be used only used in connection with this case and may not be disclosed orally, in writing, or by any other means to any other person including the Defendants and their principal(s).
4. Nothing in this Protective Order precludes any Authorized Person from using the Subpoenaed Documents at the deposition of Thornburg subject to the other limitations in this Protective Order.
5. If Defendants' counsel of record deems it necessary to have an expert witness assist with any of the Subpoenaed Documents, counsel shall provide Lewis and Thornburg seven days advance notice of the identity of the expert to allow them the opportunity to object and to, at a minimum, provide the expert a copy of this Protective Order, and/or direct the expert to affirm in writing an agreement to comply with this Protective Order and to the jurisdiction of this Court. Should Lewis or Thornburg object to Defendants' counsel's proposed expert, the Subpoenaed Documents may not be disclosed to any expert prior to the resolution of the objection by the parties or the Court.
6. During the deposition of Thornburg, only the Authorized Persons and no other agent or representative of the Defendants shall be present when Thornburg is questioned about the Subpoenaed Documents. These portions of the record shall be designated confidential and available for review only by the Authorized Persons. Lewis and Thornburg shall present a copy of this Protective Order to any court reporter and/or videographer and obtain their consent to comply with and be bound by this Protective Order. Their failure to do so shall not relieve any party of the requirements of this Protective Order.
7. In the event this litigation is concluded by any means, including settlement, dismissal, or final judgment not subject to appeal, the provisions of this Order will remain in effect in perpetuity. If requested by the Thornburg or Lewis, the Subject Documents shall be promptly returned or certified destroyed within thirty (30) days of the Court's final order. This shall not apply to counsel's work product to the extent it discusses the Subject Documents.
8. Any party seeking to challenge the designation of information as confidential under this Order shall comply with the procedures set forth in Section 6.F.4. of the Case Management Order. The failure to object to the designation of the Subpoenaed Documents as confidential under this Protective Order shall not be deemed a legal admission as to the substance of the document or other discovery, including but not limited to whether such material constitutes a trade secret under any applicable federal or state law.
9. This protective order is not a judicial determination that any specific document or information designated by a party as confidential is subject to sealing under L.U. Civ. R. 79 or otherwise. In order for any document or information to be filed under seal, a party must first file a motion to file the document or information under seal in accordance with the procedure set forth in L.U. Civ. R. 79.
SO ORDERED AND ADJUDGED this the 20th day of September, 2024.