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\vha
‘ NOTIFY
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
NO. 2084-CV-02375-BLS1
frefucteng-
OG.06.2A/
TRANSFORMATIVE HEALTHCARE, INC.
And FALLON AMBULANCE SERVICES, LLC,
Plaintiffs,
v.
PATRICK SEAN TYLER AND RANDSECO, LLC,
Defendants.
eee rH SY
PROTECTIVE ORDER WO
This Stipulated Protective Order (“Order”) is entered into by plaintiffs Transformative
Healthcare, Inc. (“Transformative”) and Fallon Ambulance Services, LLC (“Fallon”) (together,
the “Plaintiffs”) and defendants Patrick Sean Tyler (“Tyler”) and Randseco, LLC (“Randseco”)
(together, the “Defendants”), in connection with the above-captioned action (the “Action ji
order to protect from disclosure what the parties deem to be confidential and highly confidential
information. The Order permits parties to designate documents and information as
“CONFIDENTIAL” or as “ATTORNES EYES ONLY — HIGHLY CONFIDENTIAL.”
Documents and information so designated may only be disclosed or used as further provided
herein. Pursuant to Rule 26(c) of the Massachusetts Rules of Civil Procedure, this Court has
determined and ORDERS as follows:
B5211865.11. PURPOSES AND LIMITATIONS. Discovery activity in this action will likely
involve production of confidential, proprietary, and/or private information for which special
protection from public disclosure and from use for any purpose other than prosecuting and/or
defending this action would be warranted. Accordingly, the parties hereby stipulate to and
petition the Court to enter the following Stipulated Protective Order. The parties further
acknowledge that Trial Court Rule VIII (Uniform Rules on Impoundment Procedure) sets forth
the procedures that must be followed to impound materials and file materials under seal, and
reflects the standards that will be applied when a party seeks permission from the Court to
impound materials or file material under seal.
2. SCOPE OF ORDER. This Order shall govern discovery in this action and shall
be applicable to all information provided, produced, or obtained, whether formally or informally,
in the course of discovery in this action, including, without limitation, information provided,
produced, or obtained in or through any deposition, interrogatory response, response to a request
for admission, and any document or thing provided or made available for inspection and/or
copying (collectively, “document, thing or testimony”).
3. DEFINITIONS:
3.1. Document: all forms of information delineated in Massachusetts Rule of
Civil Procedure 34(a).
3.2. Party: any party to this action, including all of its officers, directors,
employees, retained experts, and outside counsel (and their support staff).
3.3. Person: any natural person or any business, legal, or government entity.
B5211865,.14
3.4. - Disclosure or Discovery Material: all items or information, regardless of
‘the medium or manner generated, stored, or maintained that are produced or-generated in
‘disclosures 0 or responses to discovery i in this matter,
3.5, Receiving Party: a Party that receives or received Disclosure or
Discovery Material from a Producing! ‘Person.
3.6. .. Producing Person: a Person that produces Disclosure or Discovery
. Material i in: this action.
37. Designating Person: a Person that designates information or items that it
produces in disclosures or in ‘Tesponses to discovery as “CONFIDENTIAL” or “ATTORNEYS”
EYES. ONLY - HIGHLY CONFIDENTIAL”:
3.8. Authorized Persons: Persons to whom access to Protected Material is
granted pursuant.to the terms of this ‘Order; see-section 10 below.
3.9. Protected Material: any Disclosure or Discovery Material that is
designated as “Confidential” or as “Highly Confidential — Attorneys’ Eyes Only.
3.10. Outside Counsel: attorneys who have entered a notice of appearance
and/or who ar are admitted pro hac vice on behalf of a Party in this action,am
3.11. House Counsel: attomeys who are employees of a Party, or who are
retained in that capacity.
3.12. Counsel (without qualifier): Outside.Counsel and House Counsel (as
well as their support staffs).
3.13. Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its Counsel to serve as an expert
B5211865.1witness or as a consultant in this action and who is not a past or a current employee of a Party or
of a competitor of a Party’s and who, at the time of retention, is not anticipated to become an
employee of a Party or a competitor of a Party’s, This definition includes a professional jury or
trial consultant retained in connection with this litigation.
3.14. Professional Vendors: persons or entities that provide clerical (e.g.,
copying and scanning) and/or trial support services (e.g., preparing exhibits or demonstrations,
etc.) and their employees and subcontractors.
4. DESIGNATION OF INFORMATION. Any person, whether a party or
nonparty, and whether acting on its own or through counsel, that is participating in discovery in
this action may designate any documents, things, or testimony as “CONFIDENTIAL” or
" “ATTORNEYS” EYES ONLY — HIGHLY CONFIDENTIAL” in the manner set forth in this
Order.
The person designating information as CONFIDENTIAL shall make such designation
only relative to documents or categories of documents or testimony that contain confidential
information that it in good faith believes legitimately fall within the definition of protectable
documents or information under Massachusetts Rule of Civil Procedure 26(c}, for example,
including but not limited to, personal health information (PHI), confidential research,
development, and commercial information, and sensitive personnel information.
The person designating information as ATTORNEYS’ EYES ONLY — HIGHLY
CONFIDENTIAL” shall make such designation only as to sensitive information covering or
pertaining to presently undisclosed technology and/or products/information, undisclosed
financial information, undisclosed client or competitive information or other sensitive business
information relating to both disclosed, undisclosed technology and business
B5211865.1practices/relationships, as well as undisclosed and sensitive personal information, including but
not limited to those related to financial and health matters.
Documents marked CONFIDENTIAL and ATTORNEYS’ EYES ONLY — HIGHLY
CONFIDENTIAL - i.e., Protected Material — may include any type or classification of
information which is so designated by the producing person in accordance with the provisions of
this Order in any document, thing, or testimony. to the extent that they reveal information
designated by the person producing such information as Protected Material.
5. DOCUMENT PRODUCTION AND EXHIBITS. Documents produced by any
person and exhibits used by any person shall be designated as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL by marking each page of such
documents and exhibits with a legend indicating “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY — HIGHLY CONFIDENTIAL,” respectively. In lieu of marking the original of a
document, the designating person may mark the copy that is produced or exchanged.
6. MARKING OF DOCUMENTS GENERATED DURING SUIT. The front
page of all documents produced, discovery requests, responses, exhibits, deposition transcripts,
and other documents which reproduce, paraphrase, summarize, or otherwise contain Protected
Material shall be labeled in accordance with the provisions of Section 5 above. Where only
certain discovery responses within a set of responses contain Protected Material, the Producing
Party may designate those specific responses as “CONFIDENTIAL” or “ATTORNEYS EYES
ONLY — HIGHLY CONFIDENTIAL?” by writing at the start of the response, “This response is
designated CONFIDENTIAL,” or “This response is designated ATTORNEYS EYES ONLY —
HIGHLY CONFIDENTIAL”, respectively.
BS5211865.17. FAILURE TO DESIGNATE. In the event any person produces Protected
Information that has not been designated as such or not correctly designated, the Producing
Person may designate or re-designate the information to the same extent as it may have
designated the information before production, by a subsequent notice in writing specifically
identifying the re-designated information, in which event the recipients of such information shall
henceforth treat such information in accord with this Order, and shall undertake their best efforts
to correct any disclosure of such information contrary to the re-designation, including retrieving
any documents from persons not qualified to receive them under the re-designation and
informing such persons that they should not further use or disseminate the information thereon.
No demonstration or proof of error, inadvertence, or excusable neglect by the Designating
Person shall be required for such re-designation.
8. DEPOSITIONS. Persons providing testimony at a deposition may designate
portions or all of their testimony as CONFIDENTIAL or ATTORNEYS’ EYES ONLY —
HIGHLY CONFIDENTIAL by making such a designation on relevant pages of a copy of the
transcript of such deposition within thirty (30) days of receiving a copy thereof. Ifa person
providing testimony at a deposition wishes any testimony to be designated ATTORNEYS’
EYES ONLY — HIGHLY CONFIDENTIAL, and someone who is not permitted’by this Order to
obtain such information is present during the deposition, such designation must be made on the
record prior to the time such information is disclosed and the objectionable person must depart
the deposition. Any testimony provided while a person who is not permitted by this Oder to
obtain ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL is present shall not be
protected as ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL, but may be protected
B5211865.1as CONFIDENTIAL. Until thirty (30) days after a deponent has received a copy of his/her/its
transcript, all deposition testimony shall be deemed CONFIDENTIAL.
9. RESTRICTIONS ON USE AND DISCLOSURE. Except as agreed by the
Designating Person (or its counsel) or as otherwise provided herein, information and/or
documents designated as Protected Material: (a) shall be maintained in confidence by the
Authorized Persons to whom it is furnished, as defined in Section 10 below; (b) may be
disclosed by such Authorized Persons only to other Authorized Persons entitled to access thereto
and shall not be disclosed or made available by such Authorized Persons to anyone who is not an
Authorized Person; and (c) may be used by such Authorized Persons only for the purposes of this
litigation and for no other purpose whatsoever.
Nothing herein shall prevent disclosure beyond the terms of this Order if the Designating
Party consents to disclosure, or if the Court, after notice to all affected parties, orders such
disclosure.
Nothing herein shall prevent any counsel of record from utilizing Protected Material in
the examination or cross-examination of any person who (i) is the author or source of the
Protected Material; (ii) was previously provided with such information by means that do not
constitute a violation of this Protective Order; or (iii) testifies pursuant to Massachusetts Rule of
Civil Procedure 30(b)(6) concerning the Protected Material or subject matter related thereto.
Nothing in this Order shall be construed as a restriction on the use or disclosure of
information by the Producing Person. Nothing herein shall prevent disclosure as required by
law, or by any judicial, governmental, or administrative body under any law, regulation, or order,
provided, however, that unless precluded by law, a Receiving Party being required to disclose
Protected Material received through this Action shall give five (5) business days prior written
B5211865.1AUTHORIZED PERSONS. Access to CONFIDENTIAL information furnishied
“to. a Rece ‘ing Paty shall be restricted to the following Authorized Persons, subject to the
: provisions of Section u below: =
10.1. The patties, by. their respective directors, officers, and employees to the
-extent:such disclosure is necessary for the preparation, trial, OF sppea of this action
10. 2.: Outside Counsel of record. for:the Patties and tegular employees of such
attorneys to whom it itis necessary. that the material be shown for the purposes of this litigation
10.3: Experts, as that term is defined in Paragtaph 3.1 3 of this Order, and their
staff retained by any party. or its counsel:to assist in the preparation and trial of this action;
10.4. : Any person, and their counsel, as to whom it is apparent from the face of.
the- document that such person was either the author or recipient of the Protected Material to be
disclosed, ora person: as to. whom it has been established at a deposition or through interrogatory
: Tesponises i is an author 0 or recipient of such information prior to the intended disclosure i in this
: action; et
B5211865.110.5. The Court and any persons employed by it working on this action, and any
appellate court to which an appeal may be taken or in which review is sought, and any persons
employed by it;
10.6. Court reporters (including stenographers and video technicians);
10.7. Professional vendors, as that term is defined in Paragraph 3.14 of this
Order, who are working at the direction of Outside Counsel or its staff;
10.8. Any others as ordered by the Court or to whom the Designating Person
has given written consent.
Access to ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL material
furnished to a Receiving Party shall be restricted to the Authorized Persons set forth in Sections
10.2-10.8 above.
11. OPPOSITION. Prior to providing any person identified above in Sections 10.3,
10.7, and 10.8 with access to any Protected Material, the Receiving Party seeking to provide
such access shall deliver a copy of the Acknowledgement attached as Exhibit A hereto, fully
executed by such person, and written notice to the attorneys for the Producing Person of the
intention to make such disclosure at least ten (10) calendar days in advance of the proposed
disclosure. In the case of a disclosure to persons identified in Section 10.3, the notice shall state
the name and address of the Expert to whom disclosure is proposed and include a resume of the
background, qualifications, and employment of such person. In the case of a disclosure to
persons identified in Section 10.4 hereof, the notice shall state the individual’s name and
position.
For proposed disclosures to persons identified in Section 10.3 hereof, the Producing
Person, within five (5) business days from receiving the signed Exhibit A, may object to such
B5211865.1disclosure by delivery of a written notice of objection on the attorneys for the Receiving Party
seeking to make the disclosure, stating the reasons for the objection. No disclosure of Protected
Information may occur prior to the expiration of five (5) business days from the date of receipt of
the signed Acknowledgement (Exhibit A) and the required accompanying information unless
consent is granted earlier by the Producing Person or ordered by the court, Consent pursuant to
the provisions of this Section shall not be unreasonably withheld. If the Producing Person
objects to the disclosure and gives timely written notice thereof, and the Parties are unable to
resolve the objection, the person opposing the disclosure must file a motion for a protective order
within ten (10) business days of giving the written notice of objection; otherwise, the information
may be disclosed to the identified person. If such a motion is made, no disclosure may be made
until the objection is resolved by agreement of the Designating Person and Receiving Party or
the Court denies the motion. Failure to timely object to the disclosure based on information
then-disclosed in the Acknowledgement and accompanying information described above shall
operate as a waiver of the objection, Waiver as to a specific disclosure shall not constitute
waiver for any subsequent disclosures. In the event that a motion is made, the objecting person
shall have the burden of proving that disclosure should not occur.
The Acknowledgement for each person having executed Exhibit A shall be retained by
counsel for a period of two (2) years following the termination of this Action. After termination
of this Action, any party may request acknowledgements and shall be provided copies of the
acknowledgements within ten (10) business days of the request.
12. FILING UNDER SEAL. Any Protected Material, including any documents,
motions, memoranda, exhibits, affidavits and discovery responses that contain any information
designated as Protected Material, that are filed, shall be filed in accordance with Massachusetts
B5211865.1Rule of Civil Procedure 5(h), Superior Judicial Court Rule 1:24, Superior Court Rule 18, and
Trial Court Rule VIII (Uniform Rules on Impoundment Procedure).
Such information shall be kept under seal by the Clerk of this Court and excluded from
the electronic docket.
After close of the case in the Superior Court, i.e., a judgment has entered with no appeal
or further appeal, and/or an order of dismissal has entered the parties shall have sixty-three (63)
days to file a motion with the Court for return of any previously-sealed or previously-restricted
documents. Thereafter, all documents that remain with the Court shall become a part of the
public case file.
13. CHALLENGING DESIGNATIONS. A party shall not be obligated to
challenge the propriety of a designation of information or documents as Protected Material at the
time of disclosure, and a failure to do so shall not preclude a subsequent challenge thereto.
In the event that any party to this litigation objects at any stage of these proceedings to
the designation by another person of any information or documents as Protected Material, the
Parties shall try to resolve such dispute in good faith on an informal basis. If the dispute cannot
be resolved, the objecting party may seek appropriate relief from the Court, in which case the
Producing Person shall have the burden of proof that the material at issue should continue to be
deemed to be CONFIDENTIAL or ATTORNES EYES ONLY — HIGHLY CONFIDENTIAL, as
the case may be .
14. | EXCEPTIONS AND MODIFICATIONS. Exceptions to this Order may be
made by agreement of all the Parties, and any party may seek an order of this Court modifying
this Order. This Order shall be without prejudice to any party to bring before the Court at any
time the questions of whether any particular information is or is not, in fact, confidential,
B5211865.1proprietary, or secret information or otherwise appropriately designated in accordance with this
Order.
15. NO ADMISSION IMPLIED. The authorization contained herein for the Parties
to designate any information as CONFIDENTIAL or ATTORNEYS' EYES ONLY - HIGHLY
CONFIDENTIAL is intended solely to facilitate the discovery phase, settlement, preparation for
trial, and trial of this case, and such designation shall not be construed in any way as an.
admission or agreement by the other parties that such information constitutes or contains
confidential, proprietary, or secret information in contemplation of law. However, irrespective of
whether in contemplation of law such information contains or constitutes confidential,
proprietary, or secret information, all information designated as Protected Material shall not be
disclosed or used by the receiving parties except pursuant to the specific provisions of this Order
or such other order as this Court may issue. The provisions of this Order are without prejudice to
the right: (a) of a party receiving Protected Material to apply to the Court for an order that a
given document or item of information received need not be treated as confidential and is not
subject to the restrictions contained in this Order; and (b) of a person producing documents or
disclosing information to apply to the Court for an order imposing further restrictions on specific
documents or information.
16. | ERROR IN DESIGNATION OR PRODUCTION. The inadvertent or
unintentional production of documents containing, or other disclosure of, confidential,
proprietary, or secret information without being designated as Protected Material at the time of
the production or disclosure shall not be deemed a waiver in whole or in part of a person's claim
of confidentiality or secrecy, either as to the specific information disclosed or as to any other
information relating thereto or on the same or related subject matter.
B5211865.1The inadvertent or unintentional production of documents or other information containing
privileged information or attorney work product shall not be deemed a waiver in whole or in part
of a party's claim of privilege or work product protection, either as to the specific information
disclosed or as to any other information relating thereto or on the same or related subject matter.
Any error in designation or production shall be corrected as soon as reasonably possible
after the designating party becomes aware of the error. Documents subject to a claim of
privilege or work product protection and inadvertently produced shall, after notification by the
Producing Person, be destroyed by the party in receipt of such documents and no copies shall be
made, distributed or otherwise relied upon in this action, without waiver of the right of any party
to challenge any claim of privilege.
The production of documents or other tangible filings pursuant to a request for
production by a party herein shall not be deemed a waiver of any right by the producing party to
object to the admissibility of such document or other thing on grounds of relevancy, materiality,
privilege, or other valid ground of objection.
17. USE AT TRIAL. Nothing in this Order shall be construed as an admission or
limitation about the use, disclosure, or admissibility of Protected Material and/or documents and
things containing the same at any trial or hearing in this matter. Subject to the Massachusetts
Rules of Evidence and other applicable laws and authorities, Protected Material may be offered
into evidence at trial or any Court hearing, provided that the proponent of the evidence advises
the Court, the other party and the Producing Person of the confidential nature of the material
prior to its offer. Any party may move the Court for an order that the evidence be received in-
camera or under other conditions to prevent unnecessary disclosure. The Court will then
BS5211865.1determine whether the proffered evidence should continue to be treated as confidential and, if so,
what protection, if any, may be afforded to such materials at the trial.
18. ADVICE TO CLIENTS. Nothing in this Order shall bar or otherwise prevent
any attorney herein from rendering advice to their client with respect to this litigation and, in the
course thereof, from relying upon their examination or knowledge of Protected Material,
provided, however, that in rendering such advice and in otherwise communicating with their
client, such attorney shall not disclose the contents or source of any Protected Material produced
by another person herein to any person who is not authorized to receive such information under
the provisions of this Order.
19. | CONCLUSION OF SUIT. This Order shall not terminate at the conclusion of
this action.
20. MODIFICATION. The terms of this Order are subject to modification,
extension, or limitation as may hereinafter agreed to by all Parties, or by order of the Court.
B5211865.1IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED:
Michael P. Boudett (BBO #558800)
Nicholas Theodorou (BBO #495730)
Erin J. Olesen (BBO #696168)
Foley Hoag LLP
Seaport West
155 Seaport Boulevard
Boston, MA 02210-2600
Tel: 617-832-1000
ntheodorou@foleyhoag.com
mboudett@foleyhoag.com
eolesen@foleyhoag.com
DATED:
Shepard Davidson (BBO #557082)
Laura Lee Mittelman (BBO #689752)
Burns & Levinson LLP
125 High Street
Boston, MA 02110-2602
(617) 345-3000
sdavidson@burnslev.com
Imittelman@burnslev.com
Hon. JeassSantters' FE 6rten
Sup. aaa Judge — 3S ee uw. tC Session
PURSUANT TO STIPULATION, IT IS SO ORDERED.
paah Csit af 282/ Bute Dl
{ J a
B5211865.1
Preview
\vha ‘ NOTIFY COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2084-CV-02375-BLS1 frefucteng- OG.06.2A/ TRANSFORMATIVE HEALTHCARE, INC. And FALLON AMBULANCE SERVICES, LLC, Plaintiffs, v. PATRICK SEAN TYLER AND RANDSECO, LLC, Defendants. eee rH SY PROTECTIVE ORDER WO This Stipulated Protective Order (“Order”) is entered into by plaintiffs Transformative Healthcare, Inc. (“Transformative”) and Fallon Ambulance Services, LLC (“Fallon”) (together, the “Plaintiffs”) and defendants Patrick Sean Tyler (“Tyler”) and Randseco, LLC (“Randseco”) (together, the “Defendants”), in connection with the above-captioned action (the “Action ji order to protect from disclosure what the parties deem to be confidential and highly confidential information. The Order permits parties to designate documents and information as “CONFIDENTIAL” or as “ATTORNES EYES ONLY — HIGHLY CONFIDENTIAL.” Documents and information so designated may only be disclosed or used as further provided herein. Pursuant to Rule 26(c) of the Massachusetts Rules of Civil Procedure, this Court has determined and ORDERS as follows: B5211865.11. PURPOSES AND LIMITATIONS. Discovery activity in this action will likely involve production of confidential, proprietary, and/or private information for which special protection from public disclosure and from use for any purpose other than prosecuting and/or defending this action would be warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The parties further acknowledge that Trial Court Rule VIII (Uniform Rules on Impoundment Procedure) sets forth the procedures that must be followed to impound materials and file materials under seal, and reflects the standards that will be applied when a party seeks permission from the Court to impound materials or file material under seal. 2. SCOPE OF ORDER. This Order shall govern discovery in this action and shall be applicable to all information provided, produced, or obtained, whether formally or informally, in the course of discovery in this action, including, without limitation, information provided, produced, or obtained in or through any deposition, interrogatory response, response to a request for admission, and any document or thing provided or made available for inspection and/or copying (collectively, “document, thing or testimony”). 3. DEFINITIONS: 3.1. Document: all forms of information delineated in Massachusetts Rule of Civil Procedure 34(a). 3.2. Party: any party to this action, including all of its officers, directors, employees, retained experts, and outside counsel (and their support staff). 3.3. Person: any natural person or any business, legal, or government entity. B5211865,.14 3.4. - Disclosure or Discovery Material: all items or information, regardless of ‘the medium or manner generated, stored, or maintained that are produced or-generated in ‘disclosures 0 or responses to discovery i in this matter, 3.5, Receiving Party: a Party that receives or received Disclosure or Discovery Material from a Producing! ‘Person. 3.6. .. Producing Person: a Person that produces Disclosure or Discovery . Material i in: this action. 37. Designating Person: a Person that designates information or items that it produces in disclosures or in ‘Tesponses to discovery as “CONFIDENTIAL” or “ATTORNEYS” EYES. ONLY - HIGHLY CONFIDENTIAL”: 3.8. Authorized Persons: Persons to whom access to Protected Material is granted pursuant.to the terms of this ‘Order; see-section 10 below. 3.9. Protected Material: any Disclosure or Discovery Material that is designated as “Confidential” or as “Highly Confidential — Attorneys’ Eyes Only. 3.10. Outside Counsel: attorneys who have entered a notice of appearance and/or who ar are admitted pro hac vice on behalf of a Party in this action,am 3.11. House Counsel: attomeys who are employees of a Party, or who are retained in that capacity. 3.12. Counsel (without qualifier): Outside.Counsel and House Counsel (as well as their support staffs). 3.13. Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its Counsel to serve as an expert B5211865.1witness or as a consultant in this action and who is not a past or a current employee of a Party or of a competitor of a Party’s and who, at the time of retention, is not anticipated to become an employee of a Party or a competitor of a Party’s, This definition includes a professional jury or trial consultant retained in connection with this litigation. 3.14. Professional Vendors: persons or entities that provide clerical (e.g., copying and scanning) and/or trial support services (e.g., preparing exhibits or demonstrations, etc.) and their employees and subcontractors. 4. DESIGNATION OF INFORMATION. Any person, whether a party or nonparty, and whether acting on its own or through counsel, that is participating in discovery in this action may designate any documents, things, or testimony as “CONFIDENTIAL” or " “ATTORNEYS” EYES ONLY — HIGHLY CONFIDENTIAL” in the manner set forth in this Order. The person designating information as CONFIDENTIAL shall make such designation only relative to documents or categories of documents or testimony that contain confidential information that it in good faith believes legitimately fall within the definition of protectable documents or information under Massachusetts Rule of Civil Procedure 26(c}, for example, including but not limited to, personal health information (PHI), confidential research, development, and commercial information, and sensitive personnel information. The person designating information as ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL” shall make such designation only as to sensitive information covering or pertaining to presently undisclosed technology and/or products/information, undisclosed financial information, undisclosed client or competitive information or other sensitive business information relating to both disclosed, undisclosed technology and business B5211865.1practices/relationships, as well as undisclosed and sensitive personal information, including but not limited to those related to financial and health matters. Documents marked CONFIDENTIAL and ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL - i.e., Protected Material — may include any type or classification of information which is so designated by the producing person in accordance with the provisions of this Order in any document, thing, or testimony. to the extent that they reveal information designated by the person producing such information as Protected Material. 5. DOCUMENT PRODUCTION AND EXHIBITS. Documents produced by any person and exhibits used by any person shall be designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL by marking each page of such documents and exhibits with a legend indicating “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL,” respectively. In lieu of marking the original of a document, the designating person may mark the copy that is produced or exchanged. 6. MARKING OF DOCUMENTS GENERATED DURING SUIT. The front page of all documents produced, discovery requests, responses, exhibits, deposition transcripts, and other documents which reproduce, paraphrase, summarize, or otherwise contain Protected Material shall be labeled in accordance with the provisions of Section 5 above. Where only certain discovery responses within a set of responses contain Protected Material, the Producing Party may designate those specific responses as “CONFIDENTIAL” or “ATTORNEYS EYES ONLY — HIGHLY CONFIDENTIAL?” by writing at the start of the response, “This response is designated CONFIDENTIAL,” or “This response is designated ATTORNEYS EYES ONLY — HIGHLY CONFIDENTIAL”, respectively. BS5211865.17. FAILURE TO DESIGNATE. In the event any person produces Protected Information that has not been designated as such or not correctly designated, the Producing Person may designate or re-designate the information to the same extent as it may have designated the information before production, by a subsequent notice in writing specifically identifying the re-designated information, in which event the recipients of such information shall henceforth treat such information in accord with this Order, and shall undertake their best efforts to correct any disclosure of such information contrary to the re-designation, including retrieving any documents from persons not qualified to receive them under the re-designation and informing such persons that they should not further use or disseminate the information thereon. No demonstration or proof of error, inadvertence, or excusable neglect by the Designating Person shall be required for such re-designation. 8. DEPOSITIONS. Persons providing testimony at a deposition may designate portions or all of their testimony as CONFIDENTIAL or ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL by making such a designation on relevant pages of a copy of the transcript of such deposition within thirty (30) days of receiving a copy thereof. Ifa person providing testimony at a deposition wishes any testimony to be designated ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL, and someone who is not permitted’by this Order to obtain such information is present during the deposition, such designation must be made on the record prior to the time such information is disclosed and the objectionable person must depart the deposition. Any testimony provided while a person who is not permitted by this Oder to obtain ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL is present shall not be protected as ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL, but may be protected B5211865.1as CONFIDENTIAL. Until thirty (30) days after a deponent has received a copy of his/her/its transcript, all deposition testimony shall be deemed CONFIDENTIAL. 9. RESTRICTIONS ON USE AND DISCLOSURE. Except as agreed by the Designating Person (or its counsel) or as otherwise provided herein, information and/or documents designated as Protected Material: (a) shall be maintained in confidence by the Authorized Persons to whom it is furnished, as defined in Section 10 below; (b) may be disclosed by such Authorized Persons only to other Authorized Persons entitled to access thereto and shall not be disclosed or made available by such Authorized Persons to anyone who is not an Authorized Person; and (c) may be used by such Authorized Persons only for the purposes of this litigation and for no other purpose whatsoever. Nothing herein shall prevent disclosure beyond the terms of this Order if the Designating Party consents to disclosure, or if the Court, after notice to all affected parties, orders such disclosure. Nothing herein shall prevent any counsel of record from utilizing Protected Material in the examination or cross-examination of any person who (i) is the author or source of the Protected Material; (ii) was previously provided with such information by means that do not constitute a violation of this Protective Order; or (iii) testifies pursuant to Massachusetts Rule of Civil Procedure 30(b)(6) concerning the Protected Material or subject matter related thereto. Nothing in this Order shall be construed as a restriction on the use or disclosure of information by the Producing Person. Nothing herein shall prevent disclosure as required by law, or by any judicial, governmental, or administrative body under any law, regulation, or order, provided, however, that unless precluded by law, a Receiving Party being required to disclose Protected Material received through this Action shall give five (5) business days prior written B5211865.1AUTHORIZED PERSONS. Access to CONFIDENTIAL information furnishied “to. a Rece ‘ing Paty shall be restricted to the following Authorized Persons, subject to the : provisions of Section u below: = 10.1. The patties, by. their respective directors, officers, and employees to the -extent:such disclosure is necessary for the preparation, trial, OF sppea of this action 10. 2.: Outside Counsel of record. for:the Patties and tegular employees of such attorneys to whom it itis necessary. that the material be shown for the purposes of this litigation 10.3: Experts, as that term is defined in Paragtaph 3.1 3 of this Order, and their staff retained by any party. or its counsel:to assist in the preparation and trial of this action; 10.4. : Any person, and their counsel, as to whom it is apparent from the face of. the- document that such person was either the author or recipient of the Protected Material to be disclosed, ora person: as to. whom it has been established at a deposition or through interrogatory : Tesponises i is an author 0 or recipient of such information prior to the intended disclosure i in this : action; et B5211865.110.5. The Court and any persons employed by it working on this action, and any appellate court to which an appeal may be taken or in which review is sought, and any persons employed by it; 10.6. Court reporters (including stenographers and video technicians); 10.7. Professional vendors, as that term is defined in Paragraph 3.14 of this Order, who are working at the direction of Outside Counsel or its staff; 10.8. Any others as ordered by the Court or to whom the Designating Person has given written consent. Access to ATTORNEYS’ EYES ONLY — HIGHLY CONFIDENTIAL material furnished to a Receiving Party shall be restricted to the Authorized Persons set forth in Sections 10.2-10.8 above. 11. OPPOSITION. Prior to providing any person identified above in Sections 10.3, 10.7, and 10.8 with access to any Protected Material, the Receiving Party seeking to provide such access shall deliver a copy of the Acknowledgement attached as Exhibit A hereto, fully executed by such person, and written notice to the attorneys for the Producing Person of the intention to make such disclosure at least ten (10) calendar days in advance of the proposed disclosure. In the case of a disclosure to persons identified in Section 10.3, the notice shall state the name and address of the Expert to whom disclosure is proposed and include a resume of the background, qualifications, and employment of such person. In the case of a disclosure to persons identified in Section 10.4 hereof, the notice shall state the individual’s name and position. For proposed disclosures to persons identified in Section 10.3 hereof, the Producing Person, within five (5) business days from receiving the signed Exhibit A, may object to such B5211865.1disclosure by delivery of a written notice of objection on the attorneys for the Receiving Party seeking to make the disclosure, stating the reasons for the objection. No disclosure of Protected Information may occur prior to the expiration of five (5) business days from the date of receipt of the signed Acknowledgement (Exhibit A) and the required accompanying information unless consent is granted earlier by the Producing Person or ordered by the court, Consent pursuant to the provisions of this Section shall not be unreasonably withheld. If the Producing Person objects to the disclosure and gives timely written notice thereof, and the Parties are unable to resolve the objection, the person opposing the disclosure must file a motion for a protective order within ten (10) business days of giving the written notice of objection; otherwise, the information may be disclosed to the identified person. If such a motion is made, no disclosure may be made until the objection is resolved by agreement of the Designating Person and Receiving Party or the Court denies the motion. Failure to timely object to the disclosure based on information then-disclosed in the Acknowledgement and accompanying information described above shall operate as a waiver of the objection, Waiver as to a specific disclosure shall not constitute waiver for any subsequent disclosures. In the event that a motion is made, the objecting person shall have the burden of proving that disclosure should not occur. The Acknowledgement for each person having executed Exhibit A shall be retained by counsel for a period of two (2) years following the termination of this Action. After termination of this Action, any party may request acknowledgements and shall be provided copies of the acknowledgements within ten (10) business days of the request. 12. FILING UNDER SEAL. Any Protected Material, including any documents, motions, memoranda, exhibits, affidavits and discovery responses that contain any information designated as Protected Material, that are filed, shall be filed in accordance with Massachusetts B5211865.1Rule of Civil Procedure 5(h), Superior Judicial Court Rule 1:24, Superior Court Rule 18, and Trial Court Rule VIII (Uniform Rules on Impoundment Procedure). Such information shall be kept under seal by the Clerk of this Court and excluded from the electronic docket. After close of the case in the Superior Court, i.e., a judgment has entered with no appeal or further appeal, and/or an order of dismissal has entered the parties shall have sixty-three (63) days to file a motion with the Court for return of any previously-sealed or previously-restricted documents. Thereafter, all documents that remain with the Court shall become a part of the public case file. 13. CHALLENGING DESIGNATIONS. A party shall not be obligated to challenge the propriety of a designation of information or documents as Protected Material at the time of disclosure, and a failure to do so shall not preclude a subsequent challenge thereto. In the event that any party to this litigation objects at any stage of these proceedings to the designation by another person of any information or documents as Protected Material, the Parties shall try to resolve such dispute in good faith on an informal basis. If the dispute cannot be resolved, the objecting party may seek appropriate relief from the Court, in which case the Producing Person shall have the burden of proof that the material at issue should continue to be deemed to be CONFIDENTIAL or ATTORNES EYES ONLY — HIGHLY CONFIDENTIAL, as the case may be . 14. | EXCEPTIONS AND MODIFICATIONS. Exceptions to this Order may be made by agreement of all the Parties, and any party may seek an order of this Court modifying this Order. This Order shall be without prejudice to any party to bring before the Court at any time the questions of whether any particular information is or is not, in fact, confidential, B5211865.1proprietary, or secret information or otherwise appropriately designated in accordance with this Order. 15. NO ADMISSION IMPLIED. The authorization contained herein for the Parties to designate any information as CONFIDENTIAL or ATTORNEYS' EYES ONLY - HIGHLY CONFIDENTIAL is intended solely to facilitate the discovery phase, settlement, preparation for trial, and trial of this case, and such designation shall not be construed in any way as an. admission or agreement by the other parties that such information constitutes or contains confidential, proprietary, or secret information in contemplation of law. However, irrespective of whether in contemplation of law such information contains or constitutes confidential, proprietary, or secret information, all information designated as Protected Material shall not be disclosed or used by the receiving parties except pursuant to the specific provisions of this Order or such other order as this Court may issue. The provisions of this Order are without prejudice to the right: (a) of a party receiving Protected Material to apply to the Court for an order that a given document or item of information received need not be treated as confidential and is not subject to the restrictions contained in this Order; and (b) of a person producing documents or disclosing information to apply to the Court for an order imposing further restrictions on specific documents or information. 16. | ERROR IN DESIGNATION OR PRODUCTION. The inadvertent or unintentional production of documents containing, or other disclosure of, confidential, proprietary, or secret information without being designated as Protected Material at the time of the production or disclosure shall not be deemed a waiver in whole or in part of a person's claim of confidentiality or secrecy, either as to the specific information disclosed or as to any other information relating thereto or on the same or related subject matter. B5211865.1The inadvertent or unintentional production of documents or other information containing privileged information or attorney work product shall not be deemed a waiver in whole or in part of a party's claim of privilege or work product protection, either as to the specific information disclosed or as to any other information relating thereto or on the same or related subject matter. Any error in designation or production shall be corrected as soon as reasonably possible after the designating party becomes aware of the error. Documents subject to a claim of privilege or work product protection and inadvertently produced shall, after notification by the Producing Person, be destroyed by the party in receipt of such documents and no copies shall be made, distributed or otherwise relied upon in this action, without waiver of the right of any party to challenge any claim of privilege. The production of documents or other tangible filings pursuant to a request for production by a party herein shall not be deemed a waiver of any right by the producing party to object to the admissibility of such document or other thing on grounds of relevancy, materiality, privilege, or other valid ground of objection. 17. USE AT TRIAL. Nothing in this Order shall be construed as an admission or limitation about the use, disclosure, or admissibility of Protected Material and/or documents and things containing the same at any trial or hearing in this matter. Subject to the Massachusetts Rules of Evidence and other applicable laws and authorities, Protected Material may be offered into evidence at trial or any Court hearing, provided that the proponent of the evidence advises the Court, the other party and the Producing Person of the confidential nature of the material prior to its offer. Any party may move the Court for an order that the evidence be received in- camera or under other conditions to prevent unnecessary disclosure. The Court will then BS5211865.1determine whether the proffered evidence should continue to be treated as confidential and, if so, what protection, if any, may be afforded to such materials at the trial. 18. ADVICE TO CLIENTS. Nothing in this Order shall bar or otherwise prevent any attorney herein from rendering advice to their client with respect to this litigation and, in the course thereof, from relying upon their examination or knowledge of Protected Material, provided, however, that in rendering such advice and in otherwise communicating with their client, such attorney shall not disclose the contents or source of any Protected Material produced by another person herein to any person who is not authorized to receive such information under the provisions of this Order. 19. | CONCLUSION OF SUIT. This Order shall not terminate at the conclusion of this action. 20. MODIFICATION. The terms of this Order are subject to modification, extension, or limitation as may hereinafter agreed to by all Parties, or by order of the Court. B5211865.1IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: Michael P. Boudett (BBO #558800) Nicholas Theodorou (BBO #495730) Erin J. Olesen (BBO #696168) Foley Hoag LLP Seaport West 155 Seaport Boulevard Boston, MA 02210-2600 Tel: 617-832-1000 ntheodorou@foleyhoag.com mboudett@foleyhoag.com eolesen@foleyhoag.com DATED: Shepard Davidson (BBO #557082) Laura Lee Mittelman (BBO #689752) Burns & Levinson LLP 125 High Street Boston, MA 02110-2602 (617) 345-3000 sdavidson@burnslev.com Imittelman@burnslev.com Hon. JeassSantters' FE 6rten Sup. aaa Judge — 3S ee uw. tC Session PURSUANT TO STIPULATION, IT IS SO ORDERED. paah Csit af 282/ Bute Dl { J a B5211865.1