Lupin Ltd. v. Salix Pharmaceuticals, Inc.

Background

Lupin Ltd. and defendants Salix Pharmaceuticals, Inc. and Bausch Health US, LLC jointly requested a protective order under Federal Rule of Civil Procedure 26(c). They represented that discovery would involve confidential documents or information whose public disclosure could harm the producing person or a third party owed a duty of confidentiality. The parties agreed to the order’s terms.

Protective Order

The court found good cause to issue a tailored confidentiality order for the pretrial phase of the action. The order covers discovery material produced or disclosed in the case and binds the parties, their representatives, agents, experts, consultants, third parties providing discovery, and other persons with actual or constructive notice of the order.

A producing person may designate material “Confidential” when it contains qualifying nonpublic information, including financial information; ownership or control information about a nonpublic company; business plans, product-development information, marketing plans, formulas, or specifications; information subject to a third-party confidentiality agreement; personal or intimate information; and other categories later given confidential status by the court.

Material may receive the more restrictive designation “Highly Confidential—Outside Counsel’s Eyes Only” when it contains information such as trade secrets, know-how, research and development, business plans or forecasts, market-share analysis, cost or pricing data, or other commercially sensitive information whose disclosure would create a substantial risk of serious harm that less restrictive means could not avoid.

The order limits disclosure of “Confidential” material to specified recipients, including the parties, insurers and their counsel, litigation counsel and assigned staff, approved vendors, mediators or arbitrators, certain document authors or recipients, qualifying witnesses, experts who sign nondisclosure agreements, stenographers, and the court. “Highly Confidential—Outside Counsel’s Eyes Only” material may generally be disclosed only to the receiving party’s outside counsel and staff working on the action, qualifying experts, the court, mediators or arbitrators, court reporters, approved vendors or trial consultants, and certain people during depositions.

Recipients may use protected material only to prosecute or defend this action and related appeals, not for business, commercial, competitive, or other litigation purposes. The order does not waive objections to discovery, privilege, or other protections, and it does not decide whether evidence will be admissible at trial.

Challenges, Sealing, and Privilege

A party may object in writing to a confidentiality designation before trial. If the parties cannot resolve the dispute, counsel must bring it to the court under the applicable procedures. The order does not automatically permit protected material to be filed under seal. Parties filing such material must follow the presiding judge’s sealing procedures, publicly file a redacted version, and file the unredacted version under seal when required. The court retains discretion over confidential treatment and stated that it is unlikely to seal material introduced as evidence at trial.

The order also provides procedures for third-party confidential information, subpoenas, personally identifying information, and inadvertent disclosure of material claimed to be protected by attorney-client privilege or attorney work-product protection. An inadvertent disclosure does not by itself waive those protections. After a claim of inadvertent disclosure, the receiving party generally must return or destroy the material within five business days and provide a certification, while retaining the ability to ask the court to compel production. The producing party retains the burden of establishing that the material is privileged or protected.

Duration and Disposition

The protective order survives termination of the litigation. Within 30 days after final disposition, recipients must return or, with the producing party’s permission, destroy protected material and certify that they have not retained copies or other reproductions. Counsel specifically retained for the action may keep archival copies of specified case materials, but those copies remain subject to the order. Willful violations may result in contempt of court, and the court retains jurisdiction to enforce the order.

Judge Robert W. Lehrburger signed and entered the stipulated protective order on March 15, 2024.