IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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`CHARLES C. OSBORNE, JR. and
`HORTENSIA D. OSBORNE, Individually and
`On Behalf of All Others Similarly Situated,
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`Plaintiffs,
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`v.
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`INHIBITEX, INC., M. JAMES BARRETT,
`RUSSELL M. MEDFORD, A. KEITH
`WILLARD, GABRIELE M. CERRONE,
`RUSSELL H. PLUMB, MICHAEL A. HENOS,
`MARC L. PREMINGER, CHRISTOPHER
`MCGUIGAN, INTA ACQUISITION
`CORPORATION, and BRISTOL-MYERS
`SQUIBB COMPANY,
`
`
`Defendants.
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`JOHN P. HEGARTY, Individually and On
`Behalf of All Others Similarly Situated,
`
`
`Plaintiff,
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`
`
`v.
`
`
`INHIBITEX, INC., MICHAEL A. HENOS, M.
`JAMES BARRETT, GABRIELE M.
`CERRONE, CHRIS MCGUIGAN, RUSSELL
`M. MEDFORD, RUSSELL H. PLUMB,
`MARC L. PREMINGER, A. KEITH
`WILLARD, INTA ACQUISITION
`CORPORATION, and BRISTOL-MYERS
`SQUIBB COMPANY,
`
`
`Defendants.
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`[Additional Caption Follows]
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` C.A. No. 7169-VCN
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` C.A. No. 7175-VCN
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`EFiled: Jan 20 2012 6:35PM EST
`Transaction ID 42052343
`Case No. Multi-case
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` C.A. No. 7178-VCN
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`FERNANDO GALO, Individually and On
`Behalf of All Others Similarly Situated,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`INHIBITEX, INC., MICHAEL A. HENOS, M.
`JAMES BARRETT, GABRIELE M.
`CERRONE, CHRIS MCGUIGAN, RUSSELL
`M. MEDFORD, RUSSELL H. PLUMB,
`MARC L. PREMINGER, A. KEITH
`WILLARD, INTA ACQUISITION
`CORPORATION, and BRISTOL-MYERS
`SQUIBB COMPANY,
`
`
`Defendants.
`
`STIPULATION AND [PROPOSED] ORDER GOVERNING THE
`PRODUCTION AND EXCHANGE OF CONFIDENTIAL
`AND HIGHLY CONFIDENTIAL INFORMATION
`
`WHEREAS, the parties to the above-captioned action (the “Litigation”) are engaged in
`
`discovery proceedings, which include, among other things, taking depositions and producing
`
`documents; and
`
`WHEREAS, those discovery proceedings will necessarily involve the production of
`
`certain information that the parties to the Litigation (the “Parties,” each a “Party”) believe to be
`
`confidential and sensitive commercial, financial, or business information;
`
`IT IS HEREBY STIPULATED AND AGREED, by the Parties hereto, through their
`
`undersigned counsel, subject to the approval of the Court, pursuant to Court of Chancery Rules
`
`5(g) and 26(c), that this Stipulation and Order for the Production and Exchange of Confidential
`
`Information (the “Stipulation”) will govern the handling of documents, deposition testimony,
`
`deposition exhibits, deposition transcripts, written discovery requests, interrogatory responses,
`
`responses to requests to admit, and responses to requests for documents, and any other
`
`
`
`2
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`

`

`information or material produced, given or exchanged, including any information contained
`
`therein or derived therefrom (“Discovery Material”) by or among any Party or non-party
`
`providing Discovery Material (each a “Producing Party”) in this Litigation.
`
`1.
`
`Any Producing Party may designate any Discovery Material as “Confidential”
`
`under the terms of this Stipulation if such party in good faith believes that such Discovery
`
`Material contains non-public, confidential, proprietary, or commercially sensitive information
`
`that requires the protections provided in this Stipulation (“Confidential Discovery Material”).
`
`Any Producing Party may designate any Discovery Material as “Highly Confidential” under the
`
`terms of this Stipulation if such party in good faith reasonably believes that disclosure of the
`
`Discovery Material other than as permitted pursuant to Paragraph 6 of this Stipulation is
`
`substantially likely to cause injury to the Producing Party (“Highly Confidential Discovery
`
`Material”).
`
`2.
`
`The designation of Discovery Material as Confidential Discovery Material or
`
`Highly Confidential Discovery Material shall be made in the following manner:
`
`A.
`
`In the case of documents, by affixing the legend “Confidential” or
`
`“Highly Confidential” to each page containing any Confidential Discovery Material or
`
`Highly Confidential Discovery Material;
`
`B.
`
`In the case of electronically stored information produced in native
`
`format, by including “Confidential” or “Highly Confidential” in the file or directory
`
`name, or by affixing the legend “Confidential” or “Highly Confidential” to the media
`
`containing the Discovery Material (e.g., CD-ROM, floppy disk, DVD).
`
`C.
`
`In the case of depositions or other pre-trial testimony: (i) by a statement
`
`on the record, by counsel, at the time of such disclosure or before the conclusion of the
`
`deposition or testimony; or (ii) by written notice, sent to all Parties within 14 business
`
`
`
`3
`
`

`

`days of receipt of the rough or final transcript (whichever is received first) designating
`
`the entire transcript or portions thereof; provided that only those portions of the transcript
`
`designated as Confidential Discovery Material or Highly Confidential Discovery Material
`
`shall be deemed Confidential Discovery Material or Highly Confidential Discovery
`
`Material. The Parties may modify this procedure for any particular deposition or other
`
`pre-trial testimony, through agreement on the record at such deposition or testimony,
`
`without further order of the Court.
`
`D.
`
`In the case of any other Discovery Material, by written notice that the
`
`Discovery Material constitutes Confidential Discovery Material or Highly Confidential
`
`Discovery Material.
`
`3.
`
`The designation of Discovery Material as Confidential Discovery Material or
`
`Highly Confidential Discovery Material shall constitute a representation that such Discovery
`
`Material has been reviewed by an attorney representing the Party making the designation, and
`
`that there is a good faith basis for such designation.
`
`4.
`
`Inadvertent failure to designate Discovery Material as Confidential Discovery
`
`Material or Highly Confidential Discovery Material shall not constitute a waiver of such claim
`
`and may be corrected. A Producing Party may designate as Confidential or Highly Confidential
`
`any Discovery Material that has already been produced, including Discovery Material that the
`
`Producing Party inadvertently failed to designate as Confidential or Highly Confidential, (i) by
`
`notifying in writing the Party to whom the production has been made that the Discovery Material
`
`constitutes Confidential Discovery Material, or (ii) in a manner consistent with Paragraph 2.
`
`Upon receiving such supplemental notice, the Parties shall thereafter mark and treat the
`
`Discovery Material so designated as Confidential Discovery Material or Highly Confidential
`
`Discovery Material, and such Discovery Material shall be fully subject to this Stipulation from
`
`
`
`4
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`

`

`the date of such supplemental notice forward. The Party receiving such notice shall make a
`
`reasonable, good-faith effort to ensure that any analyses, memoranda, notes, or other such
`
`materials generated based upon such newly designated information are immediately treated as
`
`containing Confidential Discovery Material or Highly Confidential Discovery Material. In
`
`addition, upon receiving such supplemental written notice, any receiving Party that disclosed the
`
`Discovery Material prior to its designation as Confidential or Highly Confidential shall exercise
`
`its best efforts (i) to ensure the return or destruction of such Discovery Material, (ii) to ensure that
`
`any documents or other materials derived from such Discovery Material are treated as if the
`
`Discovery Material had been designated as Confidential or Highly Confidential when originally
`
`produced, (iii) to ensure that such Discovery Material is not further disclosed except in
`
`accordance with the terms of this Stipulation, and (iv) to ensure that any such Discovery Material,
`
`and any information derived therefrom, is used solely for the purposes described in Paragraph 8
`
`of this Stipulation.
`
`5.
`
`Confidential Discovery Material may be disclosed, summarized, described,
`
`characterized, or otherwise communicated or made available in whole or in part only to the
`
`following persons:
`
`A.
`
`The Parties and the directors, officers, employees, general partners, and
`
`limited partners of the Parties, or any subsidiary or affiliate thereof, who are assisting
`
`with or making decisions concerning the Litigation, to the extent deemed reasonably
`
`necessary by counsel of record for the purpose of assisting in the prosecution or defense
`
`of the Litigation for use in accordance with this Stipulation;
`
`B.
`
`Counsel who represent Parties in this Litigation (including in-house
`
`counsel), and the partners, associates, paralegals, secretaries, clerical, regular and
`
`temporary employees, and service vendors of such counsel (including outside copying
`
`
`
`5
`
`

`

`and litigation support services) who are assisting with the Litigation for use in accordance
`
`with this Stipulation;
`
`C.
`
`Subject to Paragraph 8, experts or consultants assisting counsel for the
`
`Parties, and partners, associates, paralegals, secretaries, clerical, regular and temporary
`
`employees, and service vendors of such experts or consultants (including outside copying
`
`services and outside support services) who are assisting with the Litigation;
`
`D.
`
`Subject to Paragraph 9, witnesses or deponents, and their counsel, only to
`
`the extent necessary to conduct or prepare for depositions or testimony in this Litigation;
`
`E.
`
`Any person indicated on the face of a document or accompanying
`
`covering letter, email, or other communication to be the author, addressee, or an actual or
`
`intended recipient of the document, or, in the case of meeting minutes, an attendee of the
`
`meeting;
`
`F.
`
`The Court, persons employed by the Court, and court reporters
`
`transcribing any hearing, trial, or deposition in this Litigation or any appeal therefrom;
`
`and
`
`G.
`
`Any other person only upon (i) order of the Court entered upon notice to
`
`the Parties, or (ii) written stipulation of, or statement on the record by, the Producing
`
`Party who provided the Discovery Material being disclosed, provided that such person
`
`signs an undertaking in the form attached as Exhibit A hereto.
`
`6.
`
`Highly Confidential Discovery Material may be disclosed, summarized,
`
`described, characterized, or otherwise communicated or made available in whole or in part only
`
`to the following persons:
`
`A.
`
`Counsel who represent Parties in this Litigation (including in-house
`
`counsel), and the partners, associates, paralegals, secretaries, clerical, regular and
`
`
`
`6
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`

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`temporary employees, and service vendors of such counsel (including outside copying
`
`and litigation support services) who are assisting with the Litigation for use in accordance
`
`with this Stipulation;
`
`B.
`
`Subject to Paragraph 8, experts or consultants assisting counsel for the
`
`Parties, and partners, associates, paralegals, secretaries, clerical, regular and temporary
`
`employees, and service vendors of such experts or consultants (including outside copying
`
`services and outside support services) who are assisting with the Litigation;
`
`C.
`
`Subject to Paragraph 9, witnesses or deponents, and their counsel, only to
`
`the extent necessary to conduct or prepare for depositions or testimony in this Litigation;
`
`D.
`
`Any person indicated on the face of a document or accompanying
`
`covering letter, email, or other communication to be the author, addressee, or an actual or
`
`intended recipient of the document, or, in the case of meeting minutes, an attendee of the
`
`meeting;
`
`E.
`
`The Court, persons employed by the Court, and court reporters
`
`transcribing any hearing, trial, or deposition in this Litigation or any appeal therefrom;
`
`and
`
`F.
`
`Any other person only upon (i) order of the Court entered upon notice to
`
`the Parties, or (ii) written stipulation of, or statement on the record by, the Producing
`
`Party who provided the Discovery Material being disclosed, and provided that such
`
`person signs an undertaking in the form attached as Exhibit A hereto.
`
`7.
`
`To the extent that testimony is sought concerning Confidential Discovery
`
`Material or Highly Confidential Discovery Material during any deposition or in any other pre-
`
`trial venue, any Party may exclude any person from the deposition or other venue during such
`
`
`
`7
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`

`

`testimony if the Confidential Discovery Material or Highly Confidential Discovery Material may
`
`not be disclosed to such person under the terms of this Stipulation.
`
`8.
`
`Notwithstanding Paragraph 5(C) and 6(B) above, Confidential Discovery
`
`Material or Highly Confidential Discovery Material may be provided to persons listed therein
`
`only to the extent necessary for such expert or consultant to prepare a written opinion, to prepare
`
`to testify, or to assist counsel in this Litigation, provided that such expert or consultant (i) is not
`
`currently an employee of, or advising or discussing employment with, or consultant to, any Party
`
`or any competitor or potential transaction counterparty of any Party, as far as the expert or
`
`consultant can reasonably determine, and (ii) is using said Discovery Material solely in
`
`connection with this Litigation; and further provided that such expert or consultant agrees to be
`
`bound by the terms of this Stipulation by signing an undertaking in the form attached as Exhibit
`
`A hereto. Counsel for the Party showing, providing, or disclosing Confidential Discovery
`
`Material or Highly Confidential Discovery Material to any person required to execute an
`
`undertaking pursuant to this paragraph shall be responsible for obtaining such signed undertaking
`
`and retaining the original, executed copy thereof. Under no circumstances shall an expert or
`
`consultant who is a competitor or an employee of a competitor of a Party, or who is providing
`
`services to any of the foregoing, be provided access to Confidential Discovery Material or Highly
`
`Confidential Discovery Material absent further order of the Court or consent of the Producing
`
`Party. “Competitors” are persons or entities endeavoring to engage in the same or similar lines of
`
`business, provide the same or similar services, sell the same or similar products, and/or operate in
`
`the same markets, as well as any persons who are actually engaged in any of these activities.
`
`9.
`
`Notwithstanding Paragraph 5(D) and 6(C), Confidential Discovery Material or
`
`Highly Confidential Discovery Material may be provided to persons listed therein only after (i)
`
`they confirm their understanding and agreement to abide by the terms of this Stipulation by
`
`
`
`8
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`

`

`making such a statement on the record, and/or by signing an undertaking in the form attached as
`
`Exhibit A hereto, or (ii) a court of competent jurisdiction orders them to abide by the terms of the
`
`Stipulation. Counsel for the Party showing Confidential Discovery Material or Highly
`
`Confidential Discovery Material to any person required to execute an undertaking pursuant to this
`
`paragraph shall be responsible for obtaining such signed undertaking and retaining the original,
`
`executed copy thereof.
`
`10.
`
`Discovery Material shall be used solely for purposes of this Litigation and shall
`
`not be used for any other purpose, including, without limitation, any business or commercial
`
`purpose, or any other litigation or proceeding; provided, however, that the foregoing shall not
`
`apply to Discovery Material that is or becomes part of the public record.
`
`11.
`
`Every person to whom Discovery Material is disclosed, summarized, described,
`
`characterized, or otherwise communicated or made available, in whole or in part, shall be advised
`
`that the information is being disclosed pursuant and subject to the terms of this Stipulation and
`
`may not be disclosed or used for purposes other than those permitted hereunder. Each such
`
`person shall maintain the Discovery Material, or information derived therefrom, in a manner
`
`reasonably calculated to prevent unauthorized disclosure. Any Party issuing a subpoena to a non-
`
`party shall enclose a copy of this Stipulation and notify the non-party that the protections of this
`
`Stipulation are available to such non-party.
`
`12.
`
`Any pleading, brief, memorandum, motion, letter, affidavit, or other document
`
`filed with the Court (a “Filing”) that discloses, summarizes, describes, characterizes, or otherwise
`
`communicates Confidential Discovery Material or Highly Confidential Discovery Material (a
`
`“Filing Under Seal”) must be filed with the Court under seal in accordance with the provisions of
`
`Court of Chancery Rules 5(g) and 79.1 and the Administrative Directive of the Chancellor of the
`
`Court of Chancery of the State of Delaware Amended No. 2003-1, dated March 15, 2007,
`
`
`
`9
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`

`

`regarding eFile Administrative Procedures, which may be accomplished by submitting documents
`
`stating the following:
`
`THIS DOCUMENT IS CONFIDENTIAL AND
`FILED UNDER SEAL. REVIEW AND
`ACCESS TO THIS DOCUMENT
`IS
`PROHIBITED EXCEPT BY PRIOR COURT
`ORDER.
`
`In addition, all such documents must be submitted with a cover page containing the caption in the
`
`Litigation and the following statements and information:
`
`IN POSSESSION OF A
`YOU ARE
`DOCUMENT FILED IN THE COURT OF
`CHANCERY 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:
`
`[filing attorney’s name]
`[firm name of filing attorney]
`[address of filing attorney]
`[telephone number of filing attorney]
`
`If a paper copy of that document is to be submitted to the Court for any reason, that document
`
`shall be submitted in a sealed envelope or package marked with the title of the Litigation and
`
`bearing a statement substantially in the following form:
`
`
`
`10
`
`

`

`CONFIDENTIAL
`
`FILED UNDER SEAL PURSUANT TO A PROTECTIVE
`ORDER DATED _____________, 20__, GOVERNING
`CONFIDENTIALITY OF DOCUMENTS AND INFORMATION
`OBTAINED DURING THE COURSE OF THIS LITIGATION.
`
`THIS ENVELOPE IS NEITHER TO BE OPENED
`NOR THE CONTENTS THEREOF DISPLAYED
`OR REVEALED EXCEPT BY OR TO
`QUALIFIED PERSONS OR BY COURT ORDER.
`
`13.
`
`The Parties making a Filing Under Seal must comply with the provisions of
`
`Court of Chancery Rule 5(g), including, without limitation, the provisions 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 otherwise
`
`ordered by the Court or required by the Register in Chancery.
`
`14.
`
`All materials filed pursuant to Paragraph 12 shall be released from confidential
`
`treatment by the Register in Chancery only as provided in Court of Chancery Rule 5(g)(7) or
`
`upon further order of this Court. When any Party receives a notice from the Register in Chancery
`
`pursuant to Rule 5(g)(7) concerning the release of Confidential Discovery Material or Highly
`
`Confidential Discovery Material which was filed with the Court by such Party but contains
`
`Discovery Material designated as Confidential Discovery Material or Highly Confidential
`
`Discovery Material by another Producing Party, the Party receiving the notice shall deliver a copy
`
`of such notice (by hand, email, or facsimile transmission) 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 Register in Chancery, so as to enable the latter 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.
`
`
`
`11
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`

`

`15.
`
`In accordance with the provisions of Court of Chancery Rule 5(g)(6), any Party
`
`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 Court of Chancery Rule 5(g)(6) for a judicial determination as to whether
`
`good cause exists for continued restricted access to the Filing Under Seal, or any portion thereof.
`
`Any Party who seeks the continued sealing of any Filing Under Seal, or any portion thereof, shall
`
`file the certification required by Court of Chancery Rule 5(g)(5).
`
`16.
`
`During the pendency of this Litigation, any Party objecting to the designation of
`
`any Discovery Material or testimony as Confidential Discovery Material or Highly Confidential
`
`Discovery Material may, after making a good-faith effort to resolve any such objection, move on
`
`reasonable notice for an order vacating the designation. While such an application is pending, the
`
`Discovery Material or testimony in question shall be treated as Confidential Discovery Material
`
`or Highly Confidential Discovery Material pursuant to this Stipulation. The provisions of this
`
`Stipulation are not intended to shift any burdens of proof, including the burden of establishing
`
`that any Discovery Material validly constitutes Confidential Discovery Material or Highly
`
`Confidential Discovery Material, which burden remains on the party that designates such
`
`Discovery Material or testimony as Confidential or Highly Confidential.
`
`17.
`
`The Parties reserve the right to apply, pursuant to Court of Chancery Rule 5(g)
`
`and/or Rule 26(c), upon short notice, for an order seeking additional safeguards with respect to
`
`the use and handling of Discovery Material or to modify the terms of this Stipulation.
`
`18.
`
`Entering into this Stipulation, or agreeing to and/or producing or receiving
`
`Discovery Material or otherwise complying with the terms of this Stipulation, shall not:
`
`
`
`12
`
`

`

`A.
`
`Prejudice in any way the rights of any Party to (i) seek production of
`
`documents or information it considers subject to discovery, or (ii) object to the
`
`production of documents or information it considers not subject to discovery;
`
`B.
`
`Prejudice in any way the rights of any Party to object to the authenticity
`
`or admissibility into evidence of any Discovery Material;
`
`C.
`
`Operate as an admission by any Party that any particular Discovery
`
`Material constitutes Confidential Discovery Material or Highly Confidential Discovery
`
`Material or contains or reflects trade secrets or any other type of confidential information;
`
`D.
`
`Prejudice in any way the rights of any Party to (i) petition the Court for a
`
`further protective order relating to any purportedly Confidential Discovery Material or
`
`Highly Confidential Discovery Material, or (ii) seek a determination by the Court
`
`whether any Discovery Material or Confidential Discovery Material or Highly
`
`Confidential Discovery Material should be subject to the terms of this Stipulation;
`
`E.
`
`Prevent any Party from agreeing in writing to alter or waive the
`
`provisions or protections provided herein with respect to any particular Discovery
`
`Material;
`
`F.
`
`Prejudice in any way the rights of any Party to object to the relevance,
`
`authenticity, use, or admissibility into evidence of any document, testimony, or other
`
`evidence subject to this Stipulation;
`
`G.
`
`Preclude any Party from objecting to discovery that it believes to be
`
`otherwise improper; or
`
`H.
`
`Operate as a waiver of any attorney-client, work product, business
`
`strategy, trade secret, or other privilege.
`
`
`
`13
`
`

`

`19.
`
`This Stipulation has no effect upon, and shall not apply to, a Producing Party’s
`
`use or disclosure of its own Discovery Material for any purpose. Nothing herein shall: (i) prevent
`
`a Producing Party from disclosing its own Discovery Material; or (ii) impose any restrictions on
`
`the use or disclosure by any person of documents, materials, or information designated as
`
`Confidential Discovery Material or Highly Confidential Discovery Material obtained lawfully by
`
`such person independently of the discovery proceedings in this Litigation, and not otherwise
`
`subject to confidentiality restrictions.
`
`20.
`
`If Discovery Material that is subject to a claim of attorney-client privilege,
`
`attorney work product, or any other applicable privilege or immunity or ground on which
`
`production of that information should not be made to any Party (“Inadvertent Production
`
`Material”) is inadvertently produced to that Party or Parties, such inadvertent production shall in
`
`no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorney-
`
`client privilege, work product, or other applicable privilege or immunity.
`
`A.
`
`A claim of inadvertent production shall constitute a representation by
`
`that Producing Party that the Inadvertent Production Material has been reviewed by an
`
`attorney for such Producing Party and that there is a good faith basis for such claim of
`
`inadvertent production.
`
`B.
`
`If a claim of inadvertent production is made pursuant to this Stipulation,
`
`with respect to Discovery Material then in the custody of another Party, the Party
`
`possessing the Inadvertent Production Material shall: (i) refrain from any further
`
`examination or disclosure of the claimed Inadvertent Production Material; (ii) if
`
`requested, promptly make a good-faith effort to return the claimed Inadvertent Production
`
`Material and all copies thereof (including summaries and excerpts) to counsel for the
`
`Producing Party, or destroy all such claimed Inadvertent Production Material (including
`
`
`
`14
`
`

`

`summaries and excerpts) and all copies thereof, and certify in writing to that fact; and (iii)
`
`not use the Inadvertent Production Material for any purpose until further order of the
`
`Court.
`
`C.
`
`A Party may move the Court for an order compelling production of the
`
`claimed Inadvertent Production Material; however, while such motion is pending, the
`
`Discovery Material in question shall be treated as Inadvertent Production Material, and
`
`such motion may not assert as a ground for entering such an order the fact or
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`circumstance of the inadvertent production, nor shall such motion include or otherwise
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`disclose, as an attachment, exhibit, or otherwise, the Inadvertent Production Material (or
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`any portion thereof) that is the subject of such motion.
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`21.
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`Nothing herein shall be deemed to waive any applicable common law or statutory
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`privilege or work product protection.
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`22.
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`In the event additional Parties join or are joined in this Litigation, they shall not
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`have access to Confidential Discovery Material or Highly Confidential Discovery Material until
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`the newly joined Party by its counsel has executed and filed with the Court its agreement to be
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`fully bound by this Stipulation.
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`23.
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`The Parties agree to be bound by the terms of this Stipulation pending the entry
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`by the Court of this Stipulation, and any violation of its terms shall be subject to the same
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`sanctions and penalties as if this Stipulation had been entered by the Court.
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`24.
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`Subject to the requirements of Court of Chancery Rules 5(g)(7) and 5(g)(8), and
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`any applicable rule of the Delaware Supreme Court, the provisions of this Stipulation shall,
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`absent written permission of the Producing Party or further order of the Court, continue to be
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`binding throughout and after the conclusion of the Litigation, including, without limitation, any
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`appeals therefrom, except as provided in Paragraph 25.
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`
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`15
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`

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`25.
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`In the event that any Confidential Discovery Material or Highly Confidential
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`Discovery Material is used in open court during any court proceeding or filed as a trial exhibit,
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`the material shall lose its confidential status and become part of the public record, unless the
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`Producing Party applies for and obtains an order from this Court specifically maintaining the
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`confidential status of particular material. Prior to any court proceeding in which Confidential
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`Discovery Material or Highly Confidential Discovery Material is to be used, counsel shall confer
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`in good faith on such procedures that may be necessary or advisable to protect the confidentiality
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`of any such Discovery Material.
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`26. Within 30 days after receiving notice of the entry of an order, judgment, or
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`decree finally disposing of this Litigation, or any other proceeding in which Confidential
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`Discovery Material or Highly Confidential Discovery Material is permitted to be used, including
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`the exhaustion of all possible appeals, and upon the written request of the Producing Party, all
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`persons having received Confidential Discovery Material or Highly Confidential Discovery
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`Material shall either (i) make a good-faith and reasonable effort to return such material and all
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`copies thereof (including summaries, excerpts, and derivative works) to counsel for the Producing
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`Party; or (ii) make a good-faith and reasonable effort to destroy all such Confidential Discovery
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`Material or Highly Confidential Discovery Material, and certify to that fact in writing to counsel
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`for the Producing Party. However, counsel for the Parties shall be entitled to retain court papers,
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`deposition and trial transcripts, and litigation files (including attorney work product and discovery
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`material containing Confidential Discovery Material or Highly Confidential Discovery Material),
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`provided that such counsel, and employees of such counsel, shall maintain the confidentiality
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`thereof and shall not disclose such court papers, depositions and trial transcripts, and litigation
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`files (including attorney work product and discovery material containing Confidential Discovery
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`Material or Highly Confidential Discovery Material) to any person except pursuant to a court
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`
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`order or agreement by the Producing Party or except as otherwise required by law. All materials
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`returned to the Parties or their counsel by the Court likewise shall be disposed of in accordance
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`with this paragraph.
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`27.
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`If any person in possession of Confidential Discovery Material or Highly
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`Confidential Discovery Material (the “Receiver”) receives a subpoena or other compulsory
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`process seeking the production or other disclosure of Confidential Discovery Material or Highly
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`Confidential Discovery Material produced or designated as “Confidential” or “Highly
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`Confidential” by a Producing Party other than the Receiver (collectively, a “Demand”), the
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`Receiver shall give written notice (by hand, email, or facsimile transmission) to counsel for the
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`Producing Party (or Producing Parties) within three business days of receipt of such Demand (or
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`if a response to the Demand is due in less than three business days, at least 24 hours prior to the
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`deadline for a response to the Demand), identifying the Confidential Discovery Material or
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`Highly Confidential Discovery Material sought and enclosing a copy of the Demand, and must
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`object to the production of the Confidential Discovery Material or Highly Confidential Discovery
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`Material on the grounds of the existence of this Stipulation. The burden of opposing the
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`enforcement of the Demand will fall on the Producing Party. Nothing herein shall be construed
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`as requiring the Receiver or anyone else covered by this Stipulation to challenge or appeal any
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`order requiring production of Confidential Discovery Material or Highly Confidential Discovery
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`Material covered by this Stipulation, or to subject itself to any penalties for noncompliance with
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`any legal process or order, or to seek any relief from this Court or any other court. Compliance by
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`the Receiver with any order directing production pursuant to a Demand of any Confidential
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`Discovery Material or Highly Confidential Discovery Material will not constitute a violation of
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`this Stipulation.
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`17
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`28.
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`No Receiver shall reveal any Confidential Discovery Material or Highly
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`Confidential Discovery Material, or the information contained therein, to anyone not entitled to
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`receive such Confidential Discovery Material or Highly Confidential Discovery Material under
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`the terms of this Stipulation. In the event that Confidential Discovery Material or Highly
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`Confidential Discovery Material is disclosed to any person other than in the manner authorized by
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`this Stipulation, or that any information