In re 3M Combat Arms Earplug Prods. Liab. Litig.
In re 3M Combat Arms Earplug Prods. Liab. Litig.
2024 WL 2262249 (N.D. Fla. 2024)
May 16, 2024
Rodgers, Margaret C., United States District Judge
Summary
The court has issued a protective order governing the production and exchange of confidential information, including ESI, in a litigation involving 3M Company and other defendants. The order outlines the designation, protection, and use of confidential information, and allows for its disclosure to certain parties under specific conditions. The order also addresses the use of confidential information in non-litigation situations and the continued restriction of public access to sealed documents.
Additional Decisions
IN RE: 3M COMBAT ARMS EARPLUG PRODUCTS
LIABILITY LITIGATION This Document Relates to All Cases
LIABILITY LITIGATION This Document Relates to All Cases
Case No. 3:19md2885
United States District Court, N.D. Florida
Filed May 16, 2024
Counsel
David J. Baldwin (No. 1010), Peter C. McGivney (No. 5779), Zachary J. Schnapp (No. 6914), BERGER MCDERMOTT LLP, 1105 N Market Street, Suite 1100, Wilmington, DE 19801, Attorneys for Plaintiffs Aearo Technologies LLC, Aearo Holding LLC, Aearo Intermediate LLC, Aearo LLC, and 3M CompanyJoseph B. Cicero (No. 4388), Gregory E. Stuhlman (No. 4765), Thomas A. Youngman (No. 6968), CHIPMAN BROWN CICERO & COLE LLP, Hercules Plaza, 1313 N Market Steet, Suite 5400, Wilmington, DE 19801, Attorneys for Defendant TIG Insurance Company
Garrett B. Moritz (No. 5646), R. Garrett Rice (No. 6242), ROSS ARONSTAM & MORITZ LLP, 1313 N Market Street, Suite 1001, Wilmington, DE 19801, Attorneys for Defendant ACE American Insurance Company
Kurt M. Heyman (No. 3054), Aaron M. Nelson (No. 5941), Kelly E. Rowe (No. 6199), HEYMAN ENERIO GATTUSO & HIRZEL, LLP, 300 Delaware Avenue, Suite 200, Wilmington, DE 19801, Attorneys for Defendants Illinois National Insurance Company and National Union Fire Insurance Company of Pittsburgh, Pa.
David J. Soldo (No. 4309), MORRIS JAMES LLP, 500 Delaware Avenue, Suite 1500, P.O. Box 2306, Wilmington, DE 19899, Attorneys for Defendant Twin City Fire Insurance Company
Philip Trainer, Jr. (No. 2788), Marie M. Degnan (No. 5602), ASHBY& GEDDES, P.O. Box 1150, Wilmington, DE 19899, Attorneys for Liberty Insurance Underwriters Inc. and Liberty Surplus Insurance Corporation
Peter B. Ladig (No. 3513), Elizabeth A. Powers (No. 5522), Justin C. Barrett (No. 6485), BAYARD P.A., P.O. Box 25130, Wilmington, DE 19899, Attorneys for Defendant Transverse Specialty Insurance Company, f/k/a Royal Surplus Lines Insurance Company
John D. Balaguer (No. 2537), BALAGUER MILEWSKI & IMBROGNO, 2961 Centerville Road, Suite 300, Wilmington, DE 19808, Attorneys for Defendants Steadfast Insurance Company and American Guarantee & Liability Insurance Company
John C. Phillips, Jr. (No. 110), David A. Bilson (No. 4986), PHILLIPS MCLAUGHLIN & HALL, P.A., 1200 N Broom Street, Wilmington, DE 19806, Attorneys for Defendant General Star Indemnity Company
Rodgers, Margaret C., United States District Judge
ORDER AUTHORIZING THE PRODUCTION OF MDL DOCUMENTS IN INSURANCE COVERAGE PROCEEDINGS
*1 Negotiating Plaintiffs' Counsel (“NPC”) and Defendants 3M Company, Aearo Technologies LLC, Aearo Holding LLC, Aearo Intermediate LLC, and Aearo LLC (collectively “Defendants”) have informed the Court that Defendants' insurers and reinsurers are seeking documents and information produced by or otherwise relied on by Plaintiffs in this matter. This includes documents and information designated “Confidential,” “Highly Confidential,” and the like (hereinafter termed “Protected Material”) for which this Court has found special protection from public disclosure to be warranted.
This Court has issued a number of Orders governing the treatment of Protected Material in these MDL proceedings, including Pretrial Order No. 9 - Stipulated Order Governing Confidentiality and Privilege (hereinafter “Pretrial Order No. 9,” ECF No. 442), and this Court's Privacy Act Orders, all of which remain in full force and effect. The Court recognizes that, pursuant to the Parties' written agreement of January 19, 2021, Defendants' insurers and insurance counsel are considered “qualified persons” under Section V.B.i of Pretrial Order No. 9 and are thus permitted access to Plaintiffs' Confidential information under Pretrial Order No. 9. The Court also recognizes that, consistent with Section XII of Pretrial Order No. 9, Plaintiffs may consent to the sharing of their own Protected Material with third parties outside of these MDL proceedings.
Given the number of Plaintiffs in these MDL proceedings, the volume of documents and information sought to be shared (approximately six terabytes of data), and the presence of highly sensitive Protected Material, including records subject to the Privacy Act and other federal statutes, the disclosure of such Protected Material shall be subject to appropriate limitations and protections.
I. CONSIDERATIONS GOVERNING THE DISCLOSURE OF PLAINTIFFS' PROTECTED MATERIAL
The Court finds that the Plaintiffs' Protected Material may be appropriately disclosed to Defendants' insurers and reinsurers in circumstances where: (1) the production is subject to Protective Orders and/or Confidentiality Agreements in place between Defendants and their insurers and reinsurers that offer protections commensurate with the protections afforded such Protected Material under the Orders governing confidentiality in this matter; (2) the Protected Material is used by Defendants and their insurers and reinsurers solely in connection with resolving Defendants' rights to insurance recovery for the Combat Arms Earplug Litigation; (3) access to the Protected Material is appropriately limited to Defendants, their insurers and reinsurers, their counsel, and other individuals assisting those parties in the resolution of Defendants' coverage claims to whom disclosure is reasonably necessary; and (4) this Court retains jurisdiction to enforce its Orders governing confidentiality in this matter, including with respect to any party or non-party's unauthorized disclosure of records originally produced by federal government agencies under order of this Court, and more specifically, Defendants and their insurers and reinsurers recognize and accept the Court's jurisdiction in this regard.
II. DISCLOSURE OF PLAINTIFFS' PROTECTED MATERIAL IN THE DELAWARE COVERAGE LITIGATION
*2 The Court finds that the above conditions governing the disclosure of Plaintiffs' Protected Material have been met with respect to the anticipated production of Plaintiffs' Protected Material in the matter Aearo Technologies LLC, et al. v. ACE American Insurance Company, et al., Case No. N23C-06-255 SKR (CCLD), for the following reasons:
a) The Delaware Superior Court's Order Governing the Production and Exchange of Confidential Information, appended to this Order as Exhibit A (hereinafter the “Delaware Protective Order”) broadly protects as “Confidential Information” non-public information “that reflects, constitutes, discloses, or contains personal, business, financial, or economic information, including competitively sensitive information, personnel information, personal financial information, and/or personal health information, that would ordinarily be maintained in confidence,” including where the Producing Party is “required to keep such information confidential by agreement or law.” See Delaware Protective Order ¶ 2. Plaintiffs' Protected Material qualifies as “Confidential Information” under the terms of the Delaware Protective Order.
b) The Delaware Protective Order provides that non-public Protected Material originally produced in these MDL proceedings may be re-produced “as is” with respect to redactions and designations, and will maintain its protected status and be treated as “Confidential Information” in the Delaware litigation absent a successfully adjudicated challenge to the document's protected status. See ¶¶ 3, 5, 23. Defendants have confirmed that Plaintiffs' Protected Material will be produced “as is” and that redactions and designations will be maintained and shall not be removed absent further Court Order or by the agreement (if appropriate) of the party that designated or redacted the information.
c) The Delaware Protective Order limits access to Confidential Information in a manner that is similar in scope to the access limitations set forth in this Court's Pretrial Order No. 9, with only minor differences (e.g., both Orders permit disclosure to outside counsel, professional vendors, mediators, court personnel, party employees, experts, consultants, and witnesses, and the Delaware Protective Order also permits limited disclosures to regulators, auditors, or reinsurers only as necessary, and with the requirement that those third parties maintain the confidentiality of such information consistent with the terms of the Delaware Protective Order). See Delaware Protective Order ¶ 7; Pretrial Order No. 9 at V.B.
d) The Delaware Protective Order places scope limitations on the use of Confidential Information, providing that Confidential Information “shall be used solely for purposes of litigation in this Litigation and evaluation and consideration of coverage” absent Court Order or written permission (which written permission would need to be obtained from the Plaintiffs who originally produced the Protected Material or, in the case of documents produced by federal governmental agencies, the agencies). See Delaware Protective Order ¶ 7.
e) The Delaware Protective Order requires, with limited exceptions, that Confidential Information be destroyed within sixty calendar days of the final termination of the Delaware litigation. See Delaware Protective Order ¶¶ 33–34.
III. REVIEW OF NON-DESIGNATED AND NON-REDACTED DOCUMENTS PRIOR TO PUBLIC DISCLOSURE
*3 The Court recognizes the possibility that Plaintiffs inadvertently failed to appropriately designate and/or redact one or more documents in the course of their original production. In recognition of this possibility, any litigant that seeks to publicly file Plaintiffs' reproduced documents and information must exercise caution and redact all personal health information, personally identifying information, and any other information that requires redaction pursuant to applicable law and the Delaware Protective Order or other Protective Order in place in the legal proceedings between Defendants and their insurers and reinsurers.
IV. OTHER PERMISSIBLE DISCLOSURES OF PLAINTIFFS' PROTECTED MATERIAL
A. Legal Proceedings
The Court recognizes that there may be other future legal proceedings between Defendants and their insurers and reinsurers, including confidential arbitration proceedings occurring outside of the United States, in which the disclosure or use of Plaintiffs' Protected Material may be sought for the purpose of resolving Defendants' claims for insurance recovery for the Combat Arms Earplug Litigation.
To use Plaintiffs' Protected Material in such legal proceedings, Defendants and NPC must file a Proposed Order Authorizing The Release of Plaintiffs' Protected Material in this matter, which shall identify the legal proceedings, set forth in general terms the documents to be disclosed, and identify the protections in place governing the production of Plaintiffs' Protected Material, consistent with Sections I and II above. The Court will authorize the release of Plaintiffs' Protected Material only if it finds that the Protected Material will receive protections commensurate with the protections afforded such Protected Material under the Orders governing confidentiality in this matter.
B. Disclosures Outside of Legal Proceedings
Outside of the legal proceedings addressed above, Plaintiffs retain the right to share their own Protected Material with third parties, including with Defendants' insurers and reinsurers who are still evaluating coverage for the Combat Arms Earplug Litigation and are not seeking to use such material in litigation or arbitration. Plaintiffs can share their Protected Material (and have done so) while maintaining the protections afforded those documents in this matter, by requiring that the recipient sign Exhibit A to Pretrial Order No. 9 (as counsel for many of Defendants' insurers have done).
The Court recognizes that certain non-U.S. insurers and/or reinsurers contend that they are not subject to the jurisdiction of any U.S. state or federal court and have refused to sign Exhibit A to Pretrial Order No. 9, yet seek access to certain Plaintiffs' Protected Material solely for the purpose of evaluating the Combat Arms Earplug claims and insurance and reinsurance coverage for the same and not for use in litigation or arbitration. Defendants may facilitate the sharing of Plaintiffs' Protected Material with insurers and reinsurers outside of litigation proceedings, for the sole purpose of insurers' evaluation of the Combat Arms Earplug claims and insurance coverage, provided that the sharing is undertaken pursuant to a Confidentiality Agreement that permits re-production of the Protected Material “as is,” and that provides for protections against disclosure, a dispute resolution mechanism providing for litigation or arbitration in the event of a breach, and access and use limitations, commensurate with the limitations set forth in this Court's Pretrial Order No. 9 and/or the Delaware Protective Order. In the event of any breach of any Confidentiality Agreement affecting Plaintiffs' Protected Material by any insurer or reinsurer, Defendants shall promptly notify this Court of the breach, the breaching party or parties, and the steps being taken to rectify the breach.
*4 SO ORDERED, on this 16th day of May, 2024.
EXHIBIT A
So Ordered
Sheldon Rennie Jan 23, 2024
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
AEARO TECHNOLOGIES LLC, et al., Plaintiffs,
v.
ACE AMERICAN INSURANCE COMPANY, et al., Defendants.
C.A. No. N23C-06-255 SKR (CCLD)
STIPULATION AND [PROPOSED] ORDER GOVERNING THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION
WHEREAS, the parties to the above-captioned action (the “Parties”), in the course of discovery proceedings, wish to maintain and protect the confidentiality of proprietary and/or sensitive personal, commercial, financial, and business information exchanged or produced in connection with the above-captioned Litigation (the “Litigation”); and
WHEREAS, those discovery proceedings may involve the production of certain information that the Parties believe to be confidential and sensitive personal, commercial, financial, or business information;
NOW, THEREFORE, subject to the approval of the Court, pursuant to Superior Court Civil Rules 5(g) and 26(c), the Parties, through their undersigned counsel, agree and stipulate as follows with respect to sharing documents, deposition testimony, deposition exhibits, deposition transcripts, written discovery requests, responses to written discovery requests, and any other information or material produced, given, exchanged, or filed, including any information contained therein or derived therefrom by or among any Party or other person providing discovery material (each a “Producing Party”) in this Litigation:
I. Scope of Protective Order
This Protective Order shall govern all materials produced or disclosed in the course of discovery, including all copies, excerpts, summaries, or compilations made thereof, whether revealed in a document, deposition, other testimony, discovery response or otherwise, by any Party to this Litigation to any other Party. This Protective Order is binding upon all the Parties to this Litigation, including their respective corporate parents, subsidiaries, and affiliates and their respective attorneys, principals, agents, experts, consultants, representatives, directors, officers, and employees, and others as set forth in this Protective Order.
To the extent that any other person seeks access to information designated as “Confidential” pursuant to this Protective Order, such person or its counsel must be an “Authorized Person” as defined in Paragraph 7.
II. Definitions
1. Discovery Material is all items or information, regardless of the medium or the manner in which it is generated, stored or maintained, including any response to discovery requests, deposition testimony, or transcript that is exchanged or produced informally or formally in the Litigation in response to any formal or informal request for discovery or information.
2. Confidential Information is any disclosure or Discovery Material that a Producing Party designates as “CONFIDENTIAL.” The Producing Party may designate as “CONFIDENTIAL” Discovery Material that it reasonably and in good faith believes (i) is not in the public domain, and (ii) that reflects, constitutes, discloses, or contains personal, business, financial, or economic information, including competitively sensitive information, personnel information, personal financial information, and/or personal health information, that would ordinarily be maintained in confidence, where the disclosing person has taken appropriate efforts to maintain the confidentiality of such information, and/or the Producing Party is otherwise required to keep such information confidential by agreement or law.
*5 3. Reproduced Confidential Information is Discovery Material produced in this Litigation that was previously produced and designated “CONFIDENTIAL” pursuant to the Stipulated Order Governing Confidentiality And Privilege entered in In re: 3M Combat Arms Earplug Products Liability Litigation, MDL No. 2885 (N.D. Fla.) (the “MDL Protective Order”) and/or the Stipulated Order Governing Confidentiality And Privilege entered in In re: 3M Combat Arms Earplugs Litig., No. 27-CV-19-19916 (Hennepin County Dist. Ct.) (the “Minnesota Protective Order”), or that was previously produced and designated “CONFIDENTIAL” in any other proceeding. Reproduced Confidential Information will be treated as Confidential Information under this Protective Order, unless the Reproduced Confidential Information has entered the public domain in the time since it was produced under either the MDL Protective Order or the Minnesota Protective Order.
III. Designation of Confidential Information
4. Manner and Timing of Designations. If a Party reasonably and in good faith believes that Discovery Material produced in the Litigation contains Confidential Information, that Party shall designate the information as “Confidential – Subject to Protective Order” as appropriate. The designation of Confidential Information shall be made as follows:
a. For information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), the Producing Party shall affix the legend “Confidential – Subject to Protective Order,” “CONFIDENTIAL,” or similar legend on each page that contains Confidential Information.
b. Discovery Material produced or used in a non-hard copy format (i.e., a native format, such as an Excel spreadsheet or Word document file) may be designated as Confidential Information by affixing the legend “Confidential – Subject to Protective Order,” “CONFIDENTIAL,” or similar legend on any compact disc containing such material and/or by otherwise conspicuously indicating, as appropriate for the type of electronic material at issue, that such material is “CONFIDENTIAL” (e.g., by including the term “CONFIDENTIAL” in the name of the electronic file).
c. For testimony given in deposition or in other pretrial proceedings, any Party or other person or entity giving deposition testimony or counsel for a Party in this Litigation or counsel for the witness giving testimony may designate such testimony or any portion thereof, or deposition exhibits or any portion thereof (to the extent not already designated as Confidential Information), by designating the transcript as Confidential on the record during the deposition or advising the court reporter and Parties in written correspondence within 30 calendar days of receipt of the certified transcript of a deposition. The court reporter shall clearly mark any transcript released prior to the expiration of the 30-day period as “Confidential – Subject to Further Confidentiality Review.” Such transcripts will be treated in their entirety as “Confidential – Subject to Protective Order” until expiration of the 30-day period. If no designation by written correspondence is made within the 30-day period, then the entire transcript will be deemed not to contain Confidential Information and the “Confidential – Subject to Further Confidentiality Review” legend shall be removed.
5. The Producing Party must clearly designate qualifying Discovery Material as “Confidential – Subject to Protective Order” but, with respect to Reproduced Confidential Information, the foregoing designation requirement may be satisfied by a legend of “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or any similar legend made in any prior litigation, so long as such legend is visible and not obscured. To the extent any Reproduced Confidential Information is produced in this Litigation, the confidentiality designations on such Reproduced Confidential Information may be modified to comply with the requirements of this Protective Order or reproduced “as is,” with the same confidentiality designations with which the Reproduced Confidential Information was produced in the prior proceeding. A Party may challenge confidentiality designations[1] made by 3M and/or Aearo in Reproduced Confidential Information, pursuant to the terms of this Protective Order, if the Party intends to use the Reproduced Confidential Information with a witness at deposition, to file the designated material on the docket in this Litigation, or to use the designated material at a hearing, trial, or other proceeding in this Litigation. With respect to Discovery Material produced in this Litigation other than Reproduced Confidential Information, in designating such Discovery Material as Confidential Information, the Producing Party shall do so in good faith consistent with the provisions of this Protective Order and any rulings of the Court, and all parties reserve the right to object to any such designation or redaction pursuant to this Protective Order.
*6 6. Inadvertent Failure to Designate. If timely corrected, an inadvertent failure to designate qualified Confidential Information or items as “Confidential – Subject to Protective Order” does not, standing alone, waive the Producing Party's right to secure protection under this Protective Order for such material. Upon timely correction of a designation, the Party receiving the Confidential Information must make reasonable efforts to ensure that the material is treated in accordance with the provisions of this Protective Order.
IV. Access to Confidential Information
7. In the absence of written permission from the Producing Party or an order of the Court, any Confidential Information produced in accordance with the provisions of this Protective Order shall be used solely for purposes of litigation in this Litigation and evaluation and consideration of coverage, and its contents shall not be disclosed to any person unless that person falls within at least one of the following categories (an “Authorized Person”):
a. Outside counsel and in-house counsel, and the associates, paralegals, stenographic, clerical, or other support staff employed by such counsel and working on this Litigation;
b. Vendor agents retained by the Parties or counsel for the Parties, provided that the vendor agrees to be bound by this Protective Order and completes the certification contained in Exhibit A, Acknowledgment and Agreement to Be Bound (“Confidentiality Agreement”);
c. Present or former officers, directors, and employees of a Party to the extent that such disclosure is reasonably necessary to the conduct of this Litigation. Any former officers, directors, or employees of the Party receiving the Confidential Information pursuant to this provision must have completed the certification contained in the Confidentiality Agreement;
d. Stenographic employees and court reporters recording or transcribing testimony in this Litigation;
e. The Court and Court personnel;
f. Mediators and their staff enlisted by the Parties to assist in the resolution of this Litigation;
g. Formally retained independent experts and/or consultants, provided that the recipient agrees to be bound by this Protective Order and completes the certification contained in the Confidentiality Agreement, and their partners, associates, secretaries, clerical, regular and temporary employees, provided that each such person is involved in this Litigation and has a need, reasonably determined in good faith, to know such information;
h. Any regulators or auditors, or reinsurers of the Defendant Insurers or their retrocessionaires to whom it is necessary to disclose the Confidential Information, provided that before disclosing Confidential Information, the receiving Party shall inform such persons of the obligation to maintain the confidentiality of such information consistent with the terms of this Protective Order;
i. Any individual(s) identified in the document marked “Confidential – Subject to Protective Order” as an author, source, addressee, or recipient of the Confidential Information, or who previously reviewed or received the Confidential Information;
j. Witnesses during their deposition or testimony, or in preparation for their deposition or testimony, to whom disclosure is reasonably necessary, who may be shown, but shall not be permitted to retain, Confidential Information, and who shall be advised of their obligation to comply with this Protective Order;
k. Other persons with the express written consent of the Producing Party.
V. Confidentiality Acknowledgment
*7 8. Each person required under this Protective Order to complete the certification contained in the Confidentiality Agreement, shall be provided with a copy of this Protective Order, which he or she shall read, and, upon reading this Protective Order, shall sign a copy of the Confidentiality Agreement, acknowledging that he or she has read this Protective Order and shall abide by its terms. Unless otherwise provided in this Protective Order, counsel for each Party shall maintain the Acknowledgments without giving copies to the other Parties. The Parties expressly agree, and it is hereby ordered that, except in the event of a violation of this Protective Order, there will be no attempt to seek copies of the Acknowledgments or to determine the identities of persons signing them.
VI. Protection and Use of Confidential Information
9. Persons receiving or having knowledge of Confidential Information by virtue of their participation in this Litigation, or by virtue of obtaining any documents or other Confidential Information produced or disclosed pursuant to this Protective Order, shall use that Confidential Information only as permitted by this Protective Order. Counsel shall take reasonable steps to assure the security of any Confidential Information and to limit access to such material to those persons authorized by this Protective Order.
10. All persons qualified to receive Confidential Information pursuant to this Protective Order shall at all times keep all notes, abstractions, or other work product derived from or containing Confidential Information in a manner to protect it from disclosure not in accordance with this Protective Order, and shall be obligated to maintain the confidentiality of such work product and shall not disclose or reveal the contents of said notes, abstractions or other work product after the documents, materials, or other things, or portions thereof (and the information contained therein) are destroyed pursuant to Paragraph 33. Nothing in this Protective Order requires any Party's counsel to disclose work product at the conclusion of the case.
11. Notwithstanding any other provisions hereof, nothing herein shall restrict any Party's counsel from rendering advice to that counsel's client(s) with respect to this proceeding and, in the course thereof, relying upon such information.
12. Nothing contained in this Protective Order shall prejudice in any way the rights of any Party to object to the relevancy, authenticity, or admissibility into evidence of any document or other information subject to this Protective Order, or otherwise constitute or operate as an admission by any Party that any particular document or other information is or is not relevant, authentic, or admissible into evidence at any deposition, at trial, or in a hearing.
13. Nothing contained in this Protective Order shall preclude any Party from using its own Confidential Information in any manner it sees fit, without prior consent of any other Party or the Court.
14. If a Party learns that, by inadvertence or otherwise, it has improperly disclosed Confidential Information, it shall promptly (i) inform the Producing Party in writing of such disclosure; (ii) make its best effort to retrieve all copies of the Confidential Information; (iii) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Protective Order and provide them with a copy of same; and (iv) request that such person or persons execute the Confidentiality Agreement that is attached hereto as Exhibit A.
15. To facilitate the confidential and secure exchange of information outside of litigation, Plaintiffs have entered or may enter into confidentiality agreements with a number of their insurers governing the provision by Plaintiffs of certain documents and other information to those insurers (“Non-Litigation Confidentiality Agreements”). This Protective Order does not modify, diminish, or supersede, and the parties to such agreements shall continue to comply with, the provisions, restrictions, and protections of those Non-Litigation Confidentiality Agreements, including without limitation the terms in such agreements limiting the permitted uses of such documents and information and the persons or entities to whom such documents and information may or may not be disclosed. Plaintiffs confirm that they will not refuse to produce in this Litigation documents or information solely because such documents or information were provided to one or more insurers pursuant to one or more Non-Litigation Confidentiality Agreements, although Plaintiffs reserve the right to object to the production of any such documents or information on any other grounds, including without limitation the attorney-client privilege, work-product doctrine, or any other applicable privilege or protection, as well as the right to object to any argument that such documents or information must be produced by Plaintiffs in this Litigation on account of the fact that they were previously provided to one or more insurers under a Non-Litigation Confidentiality Agreement. The insurer parties to such Non-Litigation Confidentiality Agreements confirm that, before any of them attempt to make use in this Litigation of any document or information provided to them pursuant to a Non-Litigation Confidentiality Agreement, where such document or information has not been produced in this Litigation by Plaintiffs, they will first work cooperatively with Plaintiffs to agree on procedures for such use that are consistent with the non-disclosure, non-waiver, use, and any other limitations set forth in the Non-Litigation Confidentiality Agreement and, failing such agreement, will permit Plaintiffs a reasonable opportunity to pursue judicial relief before attempting to use any such document or information. If any documents or testimony containing, summarizing, or referring to information provided pursuant to a Non-Litigation Confidentiality Agreement are produced, disclosed, used, or sought to be used in this Litigation by any Party, such production, disclosure, or use shall not act as a waiver of any privilege or protection as to any non-party. To the extent such information is produced, disclosed, or used in this Litigation, the Parties shall take all reasonable measures to ensure that such information maintains any and all privileges and protections vis-à-vis any non-party.
*8 16. Unless otherwise agreed or ordered, this Protective Order shall remain in force after dismissal or entry of final judgment not subject to further appeal of this Litigation.
17. Any pleading or other material that is filed with the Court, or is otherwise made a part of the record in this Litigation that discloses or otherwise communicates Confidential Information shall be filed under seal in accordance with the provisions of Superior Court Rule 5(g), Rule 79.1, and the Administrative Directive of the President Judge of the Superior Court of the State of Delaware Amended No. 2007-6, dated December 13, 2007, regarding eFile Administrative Procedures, which may be accomplished by submitting documents formatted with a footer stating the following on every page of the filing:
THIS DOCUMENT IS CONFIDENTIAL AND FILED UNDER SEAL. REVIEW AND ACCESS TO THIS DOCUMENT IS PROHIBITED EXCEPT BY PRIOR COURT ORDER.
Additionally, any such filing under seal must be submitted with a cover page containing the caption in the Litigation, the title of the document, and the following statements and information:
YOU ARE IN POSSESSION OF A DOCUMENT FILED IN THE SUPERIOR COURT OF THE STATE OF DELAWARE THAT IS CONFIDENTIAL AND FILED UNDER SEAL.
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(s):
[Filing Attorney's Name]
[Filing Attorney's Law Firm]
[Filing Attorney's Address]
[Filing Attorney's Telephone Number]
If a paper copy of a filing under seal is to be submitted to the Court for any reason, that document shall be submitted in a sealed envelope or package marked with the caption in the Litigation and bearing a statement substantially in the following form:
CONFIDENTIAL
FILED UNDER SEAL PURSUANT TO A PROTECTIVE ORDER DATED
___, ___
THIS ENVELOPE IS NEITHER TO BE OPENED NOR THE CONTENTS THEREOF DISPLAYED OR REVEALED EXCEPT BY OR TO AUTHORIZED PERSONS OR BY COURT ORDER
18. The Party making a filing under seal must comply with the provisions of Superior Court Rule 5(g), including, without limitation, the provisions of Rule 5(g)(2) governing the filing of a copy of the filing for public inspection that omits only the information that the Party believes should continue to be sealed for good cause. Notwithstanding the foregoing, the Parties have no obligation to file public versions of any exhibits or attachments to a filing unless further ordered by the Court or required by the Prothonotary.
19. All filings under seal shall be released from confidential treatment by the Prothonotary only as provided in Superior Court Rule 5(g)(5) or upon further order of this Court. When any Party receives a notice from the Prothonotary pursuant to Superior Court Rule 5(g)(5) concerning the release of Discovery Material which was filed with the Court by such Party but contains Confidential Information designated as such by another Producing Party, the Party receiving the notice shall deliver a copy of such notice (by email) to counsel for the Producing Party (or Producing Parties) within five business days of receipt of such notice, if such notice is not otherwise sent to such Producing Party by the Prothonotary, so as to enable the Producing Party to seek further confidential treatment or to have the documents returned or destroyed. The provisions of this paragraph may be waived only with the written consent of the Producing Party.
*9 20. In accordance with the provisions of Superior Court Rule 5(g)(4), any Party or other person who objects to the continued restriction on public access to any filing under seal, or any portion thereof, shall give written notice of the objection to the Producing Party. To the extent that the Producing Party seeks to continue the restriction on public access to the Filing Under Seal, or any portion thereof, the Producing Party shall file an application with the Court within the seven-day period mandated by Superior Court Rule 5(g)(4) for a judicial determination as to whether good cause exists for continued restricted access to the filing under seal, or any portion thereof.
VII. Changes in Designation of Information
21. If a Party through inadvertence produces any Confidential Information without labeling or marking or otherwise designating it as such in accordance with the provisions of this Protective Order, the Producing Party may give written notice to the receiving Party, as soon as practicable upon discovering the inadvertent production, that the document or thing produced is deemed “Confidential – Subject to Protective Order” and should be treated as such in accordance with the provisions of this Protective Order, and provide replacement media, images, and any associated production information to conform the document to the appropriate designation and facilitate use of the revised designation in the production. The receiving Party must treat such documents and things as Confidential Information under the provisions of this Protective Order from the date such notice is received. Disclosure, prior to the receipt of such notice of such information, to persons not authorized to receive such information shall not be deemed a violation of this Protective Order. Any Producing Party may designate as “Confidential – Subject to Protective Order” or withdraw a “Confidential – Subject to Protective Order” designation from any material that it has produced consistent with this Protective Order; provided, however, that such redesignation shall be effective only as of the date the Party redesignating the material provides written notice of such redesignation. Upon receipt of any redesignation and replacement image that designates material as “Confidential – Subject to Protective Order”, the receiving Party shall (i) treat such material in accordance with this Protective Order; (ii) take reasonable steps to notify any persons known to have possession of any such material of such redesignation under this Protective Order; and (iii) promptly endeavor to procure all copies of such material from any persons known to have possession of such material who are not entitled to receipt under this Protective Order. If the material redesignated as Confidential Information has already been included in a filing by another Party, it shall be the burden of the redesignating Party to seek to have that information sealed.
VIII. Challenging Confidentiality Designations
22. Counsel for any Party may object to the designation of Discovery Material as Confidential Information and seek the release of such Discovery Material from the terms and provisions of this Protective Order by making such request in writing to the Producing Party. Upon making such a request, the Party requesting the release shall initiate a “meet and confer” with the Party who designated the Discovery Material as Confidential Information. If the requesting Party and the Producing Party are unable to agree in good faith as to whether the Discovery Material at issue is properly designated as Confidential Information, counsel for the Party challenging the designation may file a motion challenging such designation with the Court. In the event such a motion is filed, documents, information and/or material originally designated as Confidential Information shall be treated as such, under the terms of this Protective Order, until the Court rules otherwise. It shall be the burden of the designating Party during any such motion practice to establish that the Discovery Material constitutes Confidential Information.
IX. Assertions of Privilege
*10 23. Privilege Redactions in Reproduced Confidential Information. To the extent any Reproduced Confidential Information is produced in this Litigation, such Reproduced Confidential Information may be reproduced “as is” with respect to privilege redactions. The Parties reserve all rights as to whether Defendants may challenge redactions made by 3M or Aearo in Reproduced Confidential Information for reasons of privilege. For the avoidance of doubt, Defendants reserve the right to argue that they may challenge privilege assertions by 3M and/or Aearo in Reproduced Confidential Information after entry of the supplemental case management order described in Paragraph III.B. of the January ____, 2024 [PROPOSED] Case Management Order, and Plaintiffs reserve the right to oppose this position.
24. Non-Waiver of Privilege. The Parties agree that they do not intend to disclose information subject to a claim of attorney-client privilege, attorney work product protection, common interest privilege, or any other privilege, immunity or protection from production or disclosure (“Privileged Information”). If, nevertheless, a Producing Party discloses Privileged Information, such disclosure (as distinct from use) shall be deemed inadvertent without need of further showing and shall not constitute or be deemed a waiver or forfeiture of the privilege or protection from discovery in this case or in any other federal or state proceeding by that Party. This Section shall be interpreted to provide the maximum protection allowed.
25. Notice of Production of Privileged Information. If a Party discovers that it has produced Privileged Information, it shall promptly notify the receiving Party of the production in writing, shall identify the produced Privileged Information by Bates range where possible, and may demand that the receiving Party return or destroy the Privileged Information. In the event that a receiving Party receives information that it believes is subject to a good faith claim of privilege, the receiving Party shall immediately refrain from examining the information and shall promptly notify the Producing Party in writing that the receiving Party possesses potentially Privileged Information. The Producing Party shall have seven days to assert privilege over the identified information. If the Producing Party does not assert a claim of privilege within the seven-day period, the information in question shall be deemed non-privileged.
26. Recall of Privileged Information. Once the receiving Party has been notified that Privileged Information has been inadvertently produced to it, or a Producing Party has confirmed the production of Privileged Information identified by the receiving Party, regardless whether the receiving Party contests that the documents or things contain Privileged Information, the receiving Party shall immediately take all necessary steps to return, sequester, or destroy such documents or things within 14 calendar days, including all copies and electronic copies, and make a written certification to the Producing Party of such compliance. If the receiving Party disclosed the produced document or thing before being notified by the Producing Party, it must take reasonable steps to retrieve the produced document or thing.
a. If the receiving Party wishes to contest that any such document or thing contains Privileged Information, the receiving Party shall so notify the Producing Party in writing. Within 14 calendar days after receiving such notification, the Producing Party shall provide to the receiving Party a list identifying all such returned or destroyed documents and things and stating the basis for the claim of privilege or immunity. After receiving such a list, and after the parties have attempted to resolve the dispute through a meaningful meet and confer, the receiving Party may file a motion to compel production of such documents and things, the protection of which is still disputed.
*11 b. With respect to documents and things subsequently generated by a receiving Party, which documents and things contain Privileged Information derived from such produced documents and things, upon receiving the notice of produced documents and things from the Producing Party under Paragraph 25, the receiving Party shall immediately destroy, sequester, or redact the derivative documents and things in a manner such that the derivative information cannot in any way be retrieved or reproduced. Such derivative information shall only be used if the receiving Party obtains a favorable ruling from the Court on a motion to compel production of the inadvertently produced documents and things from which the derivative information was derived.
c. In no event, however, shall the return, sequester, or destruction of demanded documents be delayed or refused because of a receiving Party's objection to the demand or by the filing of a motion to compel. Furthermore, until and unless such motion to compel is granted, the receiving Party shall neither quote nor substantively reveal any Privileged Information contained within the documents or things at issue, either prior to or following their return, except to the extent such information is reflected in an appropriate privilege log.
27. Nothing contained herein is intended to or shall serve to limit a Party's right or obligation to conduct a review of documents, electronically stored information (“ESI”) (including metadata), or other information for relevance, responsiveness and/or segregation of Privileged Information before production. Nothing in this Protective Order shall limit the right to request an in-camera review of any Privileged Information.
X. Confidential Information Requested by Third Party; Procedure Following Request
28. If any Party is served with a subpoena, a request for information, or any other form of legal process by a non-party that purports to compel disclosure of any Confidential Information produced by any other Party subject to this Protective Order (“Request”), the Party who receives the Request must inform the non-party of this Protective Order, provide the non-party with a copy of this Protective Order, and give the Party who produced the Confidential Information and, if different, the designating Party, notice of the Request promptly and in no event more than seven court days after receiving the Request, so that the Producing Party and/or designating Party have an opportunity to object and/or challenge the Request before the production of any responsive material. In the absence of an objection or challenge to the Request by the Producing Party or designating Party, the Party receiving the Request may produce responsive documents, materials, or other information.
XI. Miscellaneous Provisions
29. Nothing in this Protective Order shall be construed as a waiver of any rights by any of the Parties with respect to matters not specifically provided for in this Protective Order.
30. Nothing herein shall be construed to affect in any manner the admissibility at trial or any other court proceeding of any document, testimony, or other evidence.
31. Subject always to Paragraph 15 of this Protective Order, nothing herein shall be deemed to limit the use of information or documents obtained outside the scope of formal or informal discovery in this Litigation, nor shall anything herein be deemed to limit any party's ability to use, control or disseminate its own documents and/or information.
32. A Party may move the Court to amend or modify the Protective Order and may request that the Court enter an addendum to the Protective Order setting forth modified or amended language, but only after meeting and conferring with the other Parties.
*12 33. At the conclusion of this Litigation, the Parties shall use reasonable efforts to destroy all copies of any Confidential Information within sixty calendar days of the disposition or final termination of this case (or if a post-hearing motion or appeal is filed, sixty calendar days after the final disposition of those matters). Counsel for each Party or other person who has received Confidential Information shall certify in writing to the producing party that they have used reasonable efforts to destroy all such information. In no event shall any Party be expected or required to destroy or return Confidential Information, originals or copies of reports, correspondence, communications or other documents prepared by the Party or its counsel or agents that summarize or otherwise incorporate the Confidential Information, that is required to be internally stored by the Party, in order for it to fully comply with reinsurance, audit, and regulatory requirements or established procedures regarding the preservation of business records. Parties shall be entitled to retain Confidential Information to the extent necessary to comply with regulatory or contractual requirements or subject to document retention policies, provided that each Party and its employees shall maintain the confidentiality thereof and shall not disclose such Confidential Information to any person except as permitted in this Protective Order, pursuant to a court order or agreement by the Producing Party, or except as otherwise required by law.
34. Notwithstanding the above requirements to destroy documents, the Parties' outside counsel may retain (1) any emails (including attachments to emails) that may include Confidential Information; (2) any materials required to be retained by law or ethical rules; (3) their work file and work product; and (4) all documents filed with the Court including those filed under seal, deposition and trial transcripts, and deposition and trial exhibits. Any retained Confidential Information shall continue to be protected under this Protective Order. An attorney may use his or her work product in subsequent litigation, provided that the attorney's use does not disclose or use Confidential Information.
35. All notices required or permitted to be provided by this Protective Order shall be made by email. In the event that notification by email is impracticable, a notice shall be made by either (i) hand-delivery of the notice to counsel of record in person; or (ii) sending the notice by a courier for overnight delivery to counsel of record.
36. This Protective Order shall survive termination of this Litigation.
SO STIPULATED this 18th day of January 2024.
IT IS SO ORDERED this ___ day of ___, 2024.
The Honorable Sheldon K. Rennie
Footnotes
3M and Aearo understand that no redactions were made to any Reproduced Confidential Information produced by 3M and Aearo for purposes of confidentiality. Defendants have accordingly agreed to this Protective Order based on that representation.