Annex 1, Confidentiality Agreement and Stipulated Protective Order — In re Vyaire Medical, Inc.
Summary
Annex 1, a Confidentiality Agreement and Stipulated Protective Order in the Vyaire Medical Chapter 11 case, Case No. 24-11217 (BLS), filed as Doc 306-1 on 07/24/24. It is entered into by the debtors, the Official Committee of Unsecured Creditors, certain creditors and other constituents that sign it, and others who assent through the Exhibit A Declaration. It applies to discovery material exchanged on or after June 9, 2024, and lets a producing person designate material as "Confidential Material" or "Highly Confidential Material". Material placed in a data room is automatically treated as "Confidential" unless designated otherwise. The parties agree to submit the order to the Court and to abide by its terms even if the Court does not enter it, unless the Court otherwise determines.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
- Date
- 2024-07-24
Cite this document
“Annex 1, Confidentiality Agreement and Stipulated Protective Order — In re Vyaire Medical, Inc.”
Dated 2024-07-24. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2024-07-24-microsoft-word-vyaire-coc-re-protective-order-48167293-1-docx-d93aadfe-1/
, SHA-256 d93aadfe4399f7deb60025ce9c7ad0145d1247b3cd88574e527c84645411bf0f.Full text
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 1 of 26
Annex 1
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 2 of 26
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administered)
)
CONFIDENTIALITY AGREEMENT AND STIPULATED PROTECTIVE ORDER
This Confidentiality Agreement and Stipulated Protective Order (“Order”) is entered into
by and among: (a) the debtors and debtors in possession in the above captioned chapter 11 cases
(collectively, the “Debtors”); (b) the Official Committee of Unsecured Creditors
(the “Committee”); (c) certain of the Debtors’ creditors and other constituents that are signatories
to this Order; and (d) any other persons or entities who become bound by this Order by signifying
their assent through execution of Exhibit A hereto (a “Declaration”). Each of the persons or
entities identified in the foregoing clauses (a) through (c) shall be referred to herein individually
as a “Party,” and, collectively, as the “Parties.” The Parties, by and through their respective
attorneys of record and subject to Court approval, have agreed to entry of this Order pursuant to
11 U.S.C. § 107(b) and Rule 9018 of the Federal Rules of Bankruptcy Procedure
(the “Bankruptcy Rules”), and, with respect to any existing or future contested matter or adversary
proceeding, pursuant to Bankruptcy Rules 7026 and 9014 and Rule 26(c) of the Federal Rules of
Civil Procedure (the “Federal Rules”).
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire. The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 3 of 26
Recitals
WHEREAS, there are, or may be, judicial or other proceedings, including but not limited
to contested matters, adversary proceedings, and other disputes and related activities in
contemplation of same, including, without limitation, investigative efforts (each a “Dispute” and,
collectively, the “Disputes”), arising out of or relating to the cases commenced by the Debtors’
filing of voluntary petitions under chapter 11 of title 11 of the United States Code, U.S.C. §§ 101-
1532 (the “Bankruptcy Code”) in this Court (such cases, the “Chapter 11 Cases”);
WHEREAS, the Parties have sought or may seek certain Discovery Material (as defined
below) from one another with respect to one or more Disputes, including through informal
requests, Rule 2004 motions, or formal document requests, interrogatories, depositions, and other
discovery requests (collectively, “Discovery Requests”) as provided by the Federal Rules, the
Bankruptcy Rules, and the Local Rules of Bankruptcy Practice and Procedure of the United States
Bankruptcy Court for the District of Delaware (the “Local Rules”); and
WHEREAS, the Parties anticipate that there are certain persons or entities other than the
Parties hereto that may also propound or be served with Discovery Requests in connection with
one or more Disputes during the course of the Chapter 11 Cases;
NOW, THEREFORE, to facilitate and expedite the production, exchange, and treatment
of Discovery Material (as defined below), to facilitate the prompt resolution of disputes over
confidentiality, and to protect Discovery Material that a Party seeks to maintain as confidential,
IT IS HEREBY STIPULATED, AGREED, AND, UPON COURT APPROVAL
HEREOF, IT IS ORDERED that the following terms will govern any requests for, and production
and handling of, Discovery Material (as defined below) in connection with Disputes during the
course of the Chapter 11 Cases:
2
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 4 of 26
1. The Parties shall submit this Order to the Court for approval. The Parties shall
abide by the terms of this Order even if this Order is not entered by the Court for any reason, unless
the Court otherwise determines.
2. Unless otherwise agreed by the Parties or ordered by the Court, all deadlines stated
herein shall be computed pursuant to Bankruptcy Rule 9006.
Scope of Order
3. This Order applies to all information, electronically stored information (“ESI”),
deposition testimony, documents and things exchanged, produced, or uploaded to any virtual data
room in connection with the Chapter 11 Cases on or after June 9, 2024, either by a Party or a non-
Party (each a “Producing Person”), to any other Party or non-Party (each a “Receiving Party”),
formally or informally, either prior to or after the filing of a judicial proceeding, in response to or
in connection with any Discovery Requests, including without limitation, deposition testimony,
interrogatories, answers to interrogatories, requests for admission, responses to requests for
admission, expert discovery, documents, information and things produced as well as any and all
copies, abstracts, digests, notes, summaries, and excerpts thereof (collectively referred to as
“Discovery Material”).
4. This Order does not affect, amend, or modify any existing confidentiality
arrangements or agreements (including without limitation any financing orders), intercreditor
agreements, protective orders, or prior court orders applicable to any Producing Person and/or
Receiving Party, and nothing in this Order shall constitute a waiver of any rights under such
agreements or orders.
5. Any non-Party that executes and delivers to the Parties a Declaration in the form
provided as Exhibit A hereto shall be treated as subject to this Order with all rights and obligations
3
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 5 of 26
of the signatory Parties hereto and shall be permitted to review Confidential Material and/or
Highly Confidential Material as set forth in Paragraphs 12 and 13 of this Order.
6. This Order applies to all non-Parties that are served with subpoenas in connection
with a Dispute or who otherwise produce documents or are noticed for depositions with respect to
a Dispute, and all such non-Parties are entitled to the protections afforded hereby and subject to
the obligations contained herein upon signing a Declaration and agreeing to be bound by the terms
of this Order.
7. Any Party or its counsel serving a subpoena upon a non-Party, which subpoena
requires the production of documents or testimony, shall serve a copy of this Order along with
such subpoena and instruct the non-Party recipient of such subpoena that such non-Party may
designate documents or testimony in a Dispute produced pursuant to such subpoena according to
the provisions herein.
Designating Discovery Material
8. Any Producing Person may designate Discovery Material as “Confidential
Material” or “Highly Confidential Material” (any such Discovery Material, “Designated
Material”) in accordance with the following provisions:
a. Confidential Material: A Party may designate Discovery Material as
“Confidential” if such Party believes in good faith (or with respect to
documents received from another person or entity, has been reasonably
advised by such other person or entity) that: (i) such Discovery Material
(A) constitutes or contains nonpublic proprietary or confidential technical,
business, financial, personal or other information of a nature that can be
protected under Bankruptcy Rules 7026 and 9014 and Federal Rule 26(c)
or Bankruptcy Rule 9018 or (B) is subject by law or by contract to a legally
protected right of privacy; or (ii) a Producing Person (A) is under a
preexisting obligation to a third-party to treat such Discovery Material as
confidential or (B) has in good faith been requested by another Party or non-
Party to so designate such Discovery Material on the grounds that such other
Party or non-Party considers such Discovery Material to contain
information that is confidential or proprietary to such Party or non-Party.
All Discovery Material added into any data room or data site by any
4
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 6 of 26
Producing Person or Party shall automatically be considered designated as
and treated as “Confidential” unless expressly designated otherwise.
Receiving Party may object to the designation of Discovery Material in any
data room or data site as “Confidential” in accordance with the objection
process and timeline set forth in Paragraphs 26 and 27 of this Order.
b. Highly Confidential Material: A Party may designate Discovery Material as
“Highly Confidential” if such Party believes in good faith (or with respect
to documents received from another person or entity, has been reasonably
advised by such other person or entity) that such Discovery Material
constitutes or includes material that is of such a nature that a risk of
competitive injury would be created if such Discovery Material were
disclosed to persons other than those identified in Paragraph 13 of this
Order, such as sensitive financial or business information, or material
prepared by its industry advisors, financial advisors, accounting advisors,
experts and consultants (and their respective staff), and only to the extent
that the Party believes in good faith that such material is of such a nature
that “Highly Confidential” treatment is warranted.
c. Attorneys’ Eyes Only Material: A Party may designate Discovery Material
as “Attorney’s Eyes Only” if such Party believes in good faith (or with
respect to documents received from another person or entity, has been
reasonably advised by such other person or entity) that such Discovery
Material contains or reflects extremely sensitive proprietary information,
trade secrets or competitive or commercial information for which disclosure
to another Party or an employee or officer of such other Party would create
a substantial risk of serious harm that could not be avoided by less restrictive
means.
9. Manner Of Designating Discovery Material: Where reasonably practicable, any
Designated Material other than oral deposition testimony shall be designated by the Producing
Person as such by marking each document “Confidential” or “Highly Confidential” or “Attorneys’
Eyes Only,” as applicable. Such markings should not obliterate or obscure the content of the
material that is produced. Native file documents may be designated as “Confidential” or “Highly
Confidential” or “Attorneys’ Eyes Only” by including such terms (or similar terms) in the file
name thereof and in any tiff placeholder slip sheets. Discovery Material produced prior to the
execution of this Order pursuant to an agreement that such Discovery Material would be treated
as “Confidential” or “Highly Confidential” or “Attorneys’ Eyes Only” shall be treated as
5
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 7 of 26
“Confidential” or “Highly Confidential” or “Attorneys’ Eyes Only” pursuant to this Order
notwithstanding such Discovery Material not bearing such markings. A Party that was not the
Producing Person may designate Discovery Material by providing written notice to all Receiving
Parties that such Discovery Material is “Confidential” or “Highly Confidential” or “Attorneys’
Eyes Only.”
10. Late Designation of Discovery Material: The failure to designate particular
Discovery Material as “Confidential” or “Highly Confidential” or “Attorneys’ Eyes Only” at the
time of production shall not operate to waive a Party’s right to later designate such Discovery
Material as Designated Material or later apply another designation pursuant to this Order
(“Misdesignated Material”). Upon receipt of replacement copies of such Misdesignated Material
with the proper designation, the Receiving Party or Parties shall take all commercially reasonable
steps to return or destroy all previously produced copies of such Misdesignated Material. If
reasonably requested by the Producing Person, a Receiving Party shall verify in writing that it has
taken all commercially reasonable steps to return or destroy such Misdesignated Material.
Notwithstanding the foregoing, no Party shall be deemed to have violated this Order if, prior to
notification of any later designation, such Discovery Material was disclosed or used in any manner
consistent with its original designation but inconsistent with its later designation. Once such later
designation has been made, however, any Discovery Material shall be treated in accordance with
that later designation; provided, however, that if the material that was not designated has been, at
the time of the later designation, previously publicly filed with a court or otherwise made publicly
available (other than in violation of this Order), no Party shall be bound by such later designation
except to the extent determined by the Court upon motion of the Party or non-Party that failed to
make the designation.
6
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 8 of 26
Use and Disclosure of Designated Discovery Material
11. General Limitations On Use And Disclosure Of All Discovery Material: All
Discovery Material that is designated “Confidential” or “Highly Confidential” or “Attorneys’ Eyes
Only” shall be used by the Receiving Parties solely for the purposes of a Dispute or the Chapter
11 Cases (including the Parties’ consideration of any Dispute leading up to the commencement of
any case or proceeding), and not for any other purpose, including any other litigation or judicial
proceedings, or any business, competitive, governmental, commercial or administrative purpose
or function.
12. Confidential Material: Confidential Material, and any and all information contained
therein, shall be given, shown, made available to or communicated only to the following:
a. The Debtors;
b. The Committee, its attorneys, advisors, and members;
c. The Debtors’ creditors, any other statutory committees, and other
constituents that are signatories to this Order, including their respective
members, managers, partners, directors, officers, employees, attorneys, and
agents who are assisting with or making decisions with respect to any
Dispute;
d. The DIP Agents and DIP Lenders and their respective members, managers,
partners, directors, officers, employees, attorneys, and agents;
e. The U.S. Trustee;
f. any non-Party who has signed a Declaration, in the form provided as
Exhibit A hereto; and
g. any other persons specified in Paragraph 13 below.
13. Highly Confidential Material: Highly Confidential Material, and any and all
information contained therein, shall be given, shown, made available to or communicated only to
the following:
a. outside counsel, and staff working under the express direction of such
counsel, for:
7
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 9 of 26
(i) The Debtors;
(ii) The Committee;
(iii) Debtors’ creditors, any other statutory committees, and other
constituents that are signatories to this Order;
(iv) The U.S. Trustee; and
(v) any non-Party who has signed a Declaration, in the form provided
as Exhibit A hereto.
b. industry advisors, financial advisors, accounting advisors, experts and
consultants (and their respective staff) that are retained by the signatories to
this Order in connection with the Disputes or these Chapter 11 Cases;
c. any person who is indicated on the face of a document to have been an
author, addressee or copy recipient thereof, an actual or intended recipient
thereof, or in the case of meeting minutes, an attendee of the meeting;
d. for purposes of witness preparation, and upon consent of the Producing
Person (which shall not be unreasonably withheld), any deponent or witness
who was noticed for a deposition, or is on a witness list for hearing or trial,
in preparation for his or her noticed deposition, hearing, or trial testimony
where such Highly Confidential Material is determined by counsel in good
faith to be necessary to the anticipated subject matter of testimony, and that
doing so would not cause competitive harm, provided, however, that such
Highly Confidential Material can only be shared with such person in
connection with preparation for the anticipated testimony, and the persons
identified in this paragraph shall not be permitted to retain copies of or
disclose information contained in such Highly Confidential Material;
e. any adverse witness during the course of a deposition or in court
proceedings, and the witness’s counsel, where counsel questioning the
witness reasonably and in good faith believes that questioning the witness
regarding the document is necessary and that doing so would not cause
competitive harm to the Producing Person and would not cause harm to the
witness or the witness’ employer, for example, by revealing material non-
public information to the witness;
f. outside photocopying, graphic production services, litigation support,
eDiscovery vendors, or data room vendors or services, as necessary for use
in connection with a Dispute or these Chapter 11 Cases;
g. court reporters, stenographers, or videographers who record deposition or
other testimony in connection with a Dispute or these Chapter 11 Cases;
8
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 10 of 26
h. the Court, its officers and clerical staff in any judicial proceeding that may
result from a Dispute or these Chapter 11 Cases;
i. special masters or discovery referees appointed by the Court;
j. mediators and their staff; and
k. any other person or entity with respect to whom the Producing Person may
consent in writing.
14. Attorneys’ Eyes Only Material: Attorneys’ Eyes Only Material, and any and all
information contained therein, shall be given, shown, made available to or communicated only to
the following:
a. outside counsel, and staff working under the express direction of such
counsel, for:
(i) The Debtors;
(ii) The Committee;
(iii) Debtors’ creditors, any other statutory committees, and other
constituents that are signatories to this Order; and
(iv) The U.S. Trustee.
b. industry advisors, financial advisors, accounting advisors, experts and
consultants (and their respective staff) that are retained by the signatories to
this Order in connection with the Disputes or these Chapter 11 Cases;
c. any person who is indicated on the face of a document to have been an
author, addressee or copy recipient thereof, an actual or intended recipient
thereof, or in the case of meeting minutes, an attendee of the meeting;
d. for purposes of witness preparation, and upon consent of the Producing
Person (which shall not be unreasonably withheld), any deponent or witness
who was noticed for a deposition, or is on a witness list for hearing or trial,
in preparation for his or her noticed deposition, hearing, or trial testimony
where such Attorneys’ Eyes Only Material is determined by counsel in good
faith to be necessary to the anticipated subject matter of testimony, and that
doing so would not cause competitive harm, provided, however, that such
Attorneys’ Eyes Only Material can only be shared with such person in
connection with preparation for the anticipated testimony, and the persons
identified in this paragraph shall not be permitted to retain copies of or
disclose information contained in such Attorneys’ Eyes Only Material;
9
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 11 of 26
e. outside photocopying, graphic production services, litigation support
eDiscovery vendors, or data room vendors or services, as necessary for use
in connection with a Dispute or these Chapter 11 Cases;
f. court reporters, stenographers, or videographers who record deposition or
other testimony in connection with a Dispute or these Chapter 11 Cases;
g. the Court, its officers and clerical staff in any judicial proceeding that may
result from a Dispute or these Chapter 11 Cases;
h. special masters or discovery referees appointed by the Court;
i. mediators and their staff; and
j. any other person or entity with respect to whom the Producing Person may
consent in writing.
15. Designated Material To Be Disclosed Only In Accordance With Paragraphs 12, 13,
and 14: Attorneys’ Eyes Only Material, and any and all information contained therein, shall not be
given, shown, made available to, disclosed or communicated in any way, except to those people
and entities provided in Paragraph 14 of this Order. Highly Confidential Material, and any and all
information contained therein, shall not be given, shown, made available to, disclosed or
communicated in any way, except to those people and entities provided in Paragraph 13 of this
Order. Confidential Material, and the substantive information contained therein, shall not be
given, shown, made available to, disclosed or communicated in any way, except to those people
and entities provided in Paragraph 12 of this Order.
16. Prerequisite To Disclosure Of Designated Material: Before any person or entity, or
their representative, identified in Paragraphs 14(b), 14(d), 14 (e), 14 (f), 14 (i), 14 (j), 13(b), 13(d),
13(e), 13(j), or 13(k) hereof is given access to Designated Material, such person, entity, or their
representative shall be provided with a copy of this Order and shall execute a Declaration, in the
form provided as Exhibit A annexed hereto. Each such Declaration shall be retained in the files
of counsel for the Party who gave access to the Designated Material to the person who was
10
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 12 of 26
provided such access. Such executed Declarations shall not be subject to disclosure under the
Federal Rules or the Bankruptcy Rules unless a showing of good cause is made and the Court so
orders. Notwithstanding the foregoing, this Paragraph 16 shall not apply to persons or entities
identified in Paragraph 13(b) to the extent such persons or entities received Designated Material
prior to the entry of this Order.
17. Sealing of Designated Material Filed With Or Submitted To Court: Unless
otherwise agreed by the Producing Person, all Designated Material filed with the Court, and all
portions of pleadings, motions or other papers filed with the Court that disclose Attorneys’ Eyes
Only, Highly Confidential, or Confidential Material, shall be filed under seal in accordance with
the Federal Rules, the Bankruptcy Rules, and the Local Rules. Parties may meet this obligation
by redacting any Designated Material in publicly-filed pleadings, briefs, declarations, and
memoranda, and replacing exhibits that constitute Designated Material with a placeholder, and
providing unredacted and complete copies of all such submissions to all Parties to this Order and
to the Court.
18. Use of Discovery Material In Open Court: The limitations on disclosure in this
Order shall not apply to any Discovery Materials offered or otherwise used by any Party at trial or
any hearing held in open court except as provided in this paragraph. As part of any pretrial
conference or any meet and confer regarding the use of exhibits in any evidentiary hearing, and
where practicable at least 48 hours prior to the use of any Designated Material at trial or any
hearing to be held in open court, counsel for any Party who desires to offer or use such Designated
Material at trial or any hearing to be held in open court shall meet and confer in good faith with
the Producing Person together with any other Parties who have expressed interest in participating
in such meet and confer to discuss ways to limit disclosure of the Designated Material (by redaction
11
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 13 of 26
or otherwise) so that the material may be offered or otherwise used by any party, in accordance
with the provisions of the Bankruptcy Code and Bankruptcy Rules. If the Parties are unable to
resolve a dispute related to such Designated Material, then the Producing Person bears the burden
of requesting relief from the Court and, in the absence of such relief, there shall be no limitations
on the ability of the Parties to offer or otherwise use such Designated Material at trial or any
hearing held in open court.
Depositions
19. Deposition Testimony - Manner Of Designation: In the case of depositions, if
counsel for a Party or non-Party believes that a portion of the testimony given at a deposition
should be Designated Material of such Party or non-Party, such testimony may be designated as
appropriate by:
a. Stating so orally on the record and requesting that the relevant portion(s) of
testimony is so designated; or
b. Providing written notice within seven (7) days of the Party’s or non-Party’s
receipt of the final transcript from the court reporter that the relevant
portion(s) of such transcript or videotape of a deposition thereof is so
designated, except in the event that a hearing on related issues is scheduled
to occur within seven (7) days, in which case the foregoing seven (7) day
period will be reduced to three (3) business days. Such designation and
notice shall be made in writing to the court reporter, with copies to all other
counsel, identifying the portion(s) of the transcript that is so designated, and
directing the court reporter to treat the transcript as provided in Paragraph
23 below. Until expiration of the aforesaid seven (7) day or three (3)
business day period, as applicable, following receipt of the transcript by the
Parties or non-Parties, all deposition transcripts and videotapes shall be
considered and treated as Confidential unless otherwise designated by
counsel to any Party or non-Party on the record at the deposition.
20. Designated Material Used As Exhibits During Depositions: Nothing in Paragraph
19 shall apply to or affect the confidentiality designations on Discovery Material entered as
exhibits at depositions. Designated Material shall not lose its confidentiality status as a result of
being marked as a deposition exhibit.
12
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 14 of 26
21. Witness Review Of Deposition Testimony: Nothing in Paragraph 19 hereof shall
preclude the witness from reviewing his or her deposition transcript and accompanying exhibits.
22. Presence Of Persons During Deposition Testimony: Anyone who is not counsel to
a Party and who wishes to attend a deposition at which Designated Material may be disclosed or
elicited must become a Party to this Order by executing a Declaration, in the form provided as
Exhibit A annexed hereto, prior to such deposition. When Designated Material is elicited during
a deposition, persons not entitled to receive such information under the terms of this Order shall,
upon request, be excluded from the portion of the deposition so designated. If during the deposition
counsel seeks to have portions of the testimony designated as Attorneys’ Eyes Only, the Producing
Person shall have the right to exclude from attendance at the deposition, during such time as the
Attorneys’ Eyes Only Material is to be disclosed, any person other than the deponent, Counsel
(including their staff and associates), the court reporter, and the videographer, and the reporter
shall bind that portion of the transcript of the designated testimony in a separate volume marked
Attorneys’ Eyes Only.
23. Responsibilities And Obligations Of Court Reporters: In the event that testimony
is designated as Confidential, Highly Confidential, or Attorneys’ Eyes Only, the court reporter,
who shall first have agreed to abide by the terms of this paragraph, shall be instructed to include
on the cover page of each such transcript the legend, “This transcript portion contains information
subject to a Protective Order and shall be used only in accordance therewith,” and each page of
the transcript shall include the legend “Confidential” or “Highly Confidential” or “Attorneys’ Eyes
Only,” as appropriate. If the deposition is videotaped, the videotape shall also be subject to the
same level of confidentiality as the transcript and include the legend “Confidential” or “Highly
13
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 15 of 26
Confidential” or “Attorneys’ Eyes Only” as appropriate, if any portion of the transcript itself is so
designated.
General Provisions
24. This Order is a procedural device intended to protect Discovery Materials
designated as Designated Material. Nothing in this Order shall affect any Party’s or non-Party’s
rights or obligations unrelated to the confidentiality of Discovery Materials.
25. Nothing contained herein shall be deemed a waiver or relinquishment by any Party
or non-Party of any objection, including but not limited to, any objection concerning the alleged
confidentiality or proprietary nature of any documents, information, or data requested by a Party
or non-Party, any right to object to any discovery request, or any right to object to the admissibility
of evidence on any ground, or to seek any further protective order, or to seek relief from the Court
or any other applicable court from any provision of this Order by application on notice.
26. Unauthorized Disclosure Of Designated Material: In the event of a disclosure by a
Receiving Party of Designated Material to persons or entities not authorized by this Order to
receive such Designated Material, the Receiving Party making the unauthorized disclosure shall,
upon learning of the disclosure: immediately notify the person or entity to whom the disclosure
was made that the disclosure contains Designated Material subject to this Order; immediately make
reasonable efforts to recover the disclosed Designated Material as well as preclude further
dissemination or use by the person or entity to whom the disclosure was made; and immediately
notify the Producing Person of the identity of the person or entity to whom the disclosure was
made, the circumstances surrounding the disclosure, and the steps taken to recover the disclosed
Designated Material and ensure against further dissemination or use thereof.
27. Manner Of Objecting To Designated Material: If any Receiving Party objects to the
designation of any Designated Material (whether such designation is made on a permanent basis
14
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 16 of 26
or temporary basis with respect to deposition testimony), the Receiving Party shall first raise the
objection with the Producing Person in writing (or on the record with respect to deposition
testimony in accordance with the Federal Rules of Evidence), and then confer in good faith to
attempt to resolve any dispute respecting the terms or operation of this Order. The Receiving Party
may seek relief from the Court if the Receiving Party and the Producing Person cannot resolve
their dispute. Until the Court rules on such an issue, the Designated Material shall continue to be
treated according to its designation. Upon motion, the Court may order the removal of the
“Confidential” or “Highly Confidential” or “Attorneys’ Eyes Only” designation from any
Discovery Material so designated. In connection with any request for relief concerning the
propriety of a “Confidential” or “Highly Confidential” or “Attorneys’ Eyes Only” designation, the
Producing Person shall bear the burden of proof.
28. Timing Of Objections To Designated Material: A Receiving Party shall not be
obliged to challenge the propriety of a “Confidential” or “Highly Confidential” or “Attorneys’
Eyes Only” designation at the time made, and a failure to do so shall not preclude a subsequent
challenge thereto. The failure of any Party to challenge the designation by a Producing Person of
Discovery Materials as “Confidential” or “Highly Confidential” or “Attorneys’ Eyes Only” during
a discovery or disclosure period shall not be a waiver of that Party’s right to object to such
designation at trial.
29. Production Of Privileged Discovery Material: This Order is entered pursuant to
Rule 502(d) of the Federal Rules of Evidence. The production of privileged or work-product
protected documents, ESI or information, whether inadvertent or otherwise (“Privileged
Information”), is not a waiver of the privilege or protection from discovery in this case or in any
other federal or state proceeding. This Order shall be interpreted to provide the maximum
15
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 17 of 26
protection allowed by Federal Rule of Evidence 502(d). Nothing contained here is intended to or
shall serve to limit a party’s right to conduct a review of documents, ESI or information (including
metadata) for relevance, responsiveness and/or segregation of privileged and/or protected
information before production. Within a reasonable period of time after a Producing Person
discovers (or upon receipt of notice from another Party or non-Party) that it has produced
Privileged Information, the Producing Person shall request the return or destruction of such
Privileged Information by identifying in writing the Discovery Materials inadvertently produced
and the basis for withholding such Discovery Materials from production. If a Producing Person
requests the return or destruction of Privileged Information pursuant to this paragraph, the
Receiving Party shall immediately take all commercially reasonable steps to return or destroy the
Discovery Materials (and copies thereof) and shall take all commercially reasonable steps to
sequester or destroy any work product that incorporates the Privileged Information. If the
Receiving Party disputes the privilege claim, it must notify the Producing Person of the dispute
and the basis therefor in writing within ten (10) days of receipt of the Producing Person’s
notification. The Parties shall thereafter meet and confer regarding the disputed privilege claim. If
the Parties cannot resolve their dispute, either Party may seek a determination from the Court
whether the privilege applies. The Producing Person must preserve the Privileged Information
and, other than in connection with seeking a determination by the Court, the Receiving Party may
not use the Privileged Information for any purpose until the dispute is resolved.
30. Use Of Non-Discovery Material: To the extent that any Party has documents or
information that (i) are received or become available to a Party on a non-confidential basis not in
violation of an obligation of confidentiality to any other person; (ii) were independently developed
by such Party without violating its obligations hereunder; or (iii) are published or become publicly
16
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 18 of 26
available in a manner that is not in violation of this Order or of any obligation of confidentiality to
any other person, including a Party (collectively “Non-Discovery Material”), nothing in this Order
shall limit a Party’s ability to use Non-Discovery Material for any purpose, including in a
deposition, hearing, trial or otherwise in connection with any Dispute or the Chapter 11 Cases
provided, however that nothing herein shall alter the treatment of any such information that was
received pursuant to existing confidentiality arrangements, agreements, protective orders, or other
court orders.
31. Obligations Following Conclusion Of The Disputes: Within 90 days of the later of
the conclusion of the relevant Dispute(s) or the Debtors’ emergence from bankruptcy, including
all appeals as to all Parties, all Parties and non-Parties shall, upon the request of the Producing
Person, take all commercially reasonable steps to return to counsel for the respective Producing
Person, or to destroy, all Designated Material, and all copies or notes thereof in the possession of
any person, except that: counsel may retain for its records their work product and a copy of court
filings, deposition transcripts, deposition recordings or videotapes, deposition exhibits, expert
reports, and exhibits introduced at any hearing; and a Receiving Party may retain Designated
Material that is auto-archived or otherwise “backed up” on electronic management and
communications systems or servers, or as may be required for regulatory recordkeeping purposes
or required by law; provided that such retained documents will continue to be treated as provided
in this Order. If a Receiving Party chooses to take all commercially reasonable steps to destroy,
rather than return, documents in accordance with this paragraph, that Receiving Party shall, if
requested by the Producing Person, verify such destruction in writing to counsel for the Producing
Person. Notwithstanding anything in this paragraph, to the extent that the information in the
Designated Material remains confidential, the terms of this Order shall remain binding.
17
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 19 of 26
32. Continuing Applicability Of Confidentiality Agreement And Stipulated Protective
Order: The provisions of this Order shall survive the final termination of the Disputes and the
Debtors’ emergence from bankruptcy for any retained Designated Material. The final termination
of the Disputes or the Debtors’ emergence from bankruptcy shall not relieve counsel or other
persons obligated hereunder from their responsibility to maintain the confidentiality of Designated
Material pursuant to this Order, and the Court shall retain jurisdiction to enforce this Order.
33. Amendment Of Confidentiality Agreement And Stipulated Protective Order: Upon
good cause shown, and on notice to all Parties, any Party may move to amend the provisions of
this Order at any time, or the Parties may agree by written stipulation, subject to further order of
the Court if applicable, to amend the provisions of the Order.
34. Disclosure Of Discovery Material In Other Proceedings: Any Receiving Party that
may be subject to a motion or other form of legal process or any regulatory process, demand or
request seeking the disclosure of a Producing Person’s Discovery Material: (i) shall promptly
notify the Producing Person (unless such notice is prohibited by applicable law) to enable it to
have an opportunity to appear and be heard on whether that information should be disclosed, and
(ii) in the absence of a court order preventing such legally required disclosure, the Receiving Party
shall be permitted to disclose only that portion of the information that is legally required to be
disclosed and shall inform in writing any person to whom such information is so disclosed of the
confidential nature of such information. Nothing in this Order shall be construed as preventing any
disclosure of any Discovery Material as may be required by federal law.
35. Use Of Discovery Material By Producing Person: Nothing in this Order affects the
right of any Producing Person to use or disclose its own Discovery Material in any way. Subject
to Paragraph 30, such disclosure will not waive the protections of this Order and will not entitle
18
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 20 of 26
other Parties, non-Parties, or their attorneys to use or disclose such Discovery Material in violation
of this Order.
36. Objections To Discovery Requests: Nothing herein shall be deemed (a) to prevent
a Party or non-Party from objecting to Discovery Requests or asserting that information being
sought in Discovery Requests is of such a confidential, personal, or proprietary nature that
discovery should not be afforded or (b) to preclude a Party or non-Party from seeking additional
or further limitations on the use or disclosure of such information.
37. Obligations Of Parties: Nothing herein shall relieve a party of its obligations under
the Federal Rules, Bankruptcy Rules, Local Rules, or under any future stipulations and orders,
regarding the production of documents or the making of timely responses to Discovery Requests
in connection with any Dispute.
38. Advice Of Counsel: Nothing herein shall prevent or otherwise restrict counsel from
rendering advice to their clients in connection with the Disputes or these Chapter 11 Cases and, in
the course thereof, relying on examination of Discovery Material; provided, however, that in
rendering such advice and otherwise communicating with such clients, counsel shall not make
specific disclosure of any information in any manner that is inconsistent with the restrictions or
procedures set forth herein.
39. Enforcement: The provisions of this Order constitute an Order of this Court and
violations of the provisions of this Order are subject to enforcement and the imposition of legal
sanctions in the same manner as any other Order of the Court.
40. Conflict or Inconsistency: In the event of any conflict or inconsistency between
the terms and provisions of this Order and the terms and provisions of any other confidentiality
19
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 21 of 26
agreement or non-disclosure agreement executed by any Party, the terms and provisions of this
Order shall control.
41. Notice: When notice is permitted or required by the provisions of this Order, such
notice shall be in writing, directed to the undersigned counsel of the Party to receive such notice,
at the corresponding email address indicated below, or to counsel of any non-Party receiving such
notice. Notice shall be delivered by email and shall be effective upon receipt.
[Remainder of Page Intentionally Left Blank]
20
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 22 of 26
Dated: July 24, 2024
Wilmington, Delaware
/s/ Patrick J. Reilley
COLE SCHOTZ P.C. KIRKLAND & ELLIS LLP
Patrick J. Reilley, Esq. (DE Bar No. 4451) KIRKLAND & ELLIS INTERNATIONAL LLP
500 Delaware Avenue, Suite 1410 Joshua A. Sussberg, P.C. (admitted pro hac vice)
Wilmington, Delaware 19801 601 Lexington Ave
Telephone: (302) 652-3131 New York, New York 10022
Facsimile: (302) 652-3117 Telephone: (212) 446-4800
Email: preilley@coleschotz.com Facsimile: (212) 446-4900
Email: joshua.sussberg@kirkland.com
- and - - and -
Michael D. Sirota, Esq. (admitted pro hac vice) Spencer A. Winters, P.C. (admitted pro hac vice)
Warren A. Usatine, Esq (admitted pro hac vice) Yusuf U. Salloum (admitted pro hac vice)
Court Plaza North, 25 Main Street 333 West Wolf Point Plaza
Hackensack, New Jersey 07601 Chicago, Illinois 60654
Telephone: (201) 489-3000 Telephone: (312) 862-2000
Facsimile: (201) 489-1536 Facsimile: (312) 862-2200
Email: msirota@coleschotz.com Email: spencer.winters@kirkland.com
wusatine@coleschotz.com yusuf.salloum@kirkland.com
Proposed Co-Counsel to the Debtors Proposed Co-Counsel to the Debtors
and Debtors in Possession and Debtors in Possession
21
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 23 of 26
/s/ Maris. J. Kandestin
MCDERMOTT WILL & EMERY LLP
Maris J. Kandestin (No. 5294)
1000 N. West Street, Suite 1400
Wilmington, Delaware 19801
Telephone: (302) 485-3900
Facsimile: (302) 351-8711
Email: mkandestin@mwe.com
-and-
Darren Azman
Kristin Going
Kelly D. Newsome
One Vanderbilt Avenue
New York, New York 10017
Telephone: (212) 547-5400
Facsimile: (646) 547-5444
Email: dazman@mwe.com
kgoing@mwe.com
knewsome@mwe.com
Proposed Counsel to the Official Committee of
Unsecured Creditors
22
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 24 of 26
EXHIBIT A
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 25 of 26
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
)
In re: ) Chapter 11
)
VYAIRE MEDICAL, INC., et al.,1 ) Case No. 24-11217 (BLS)
)
Debtors. ) (Jointly Administered)
)
DECLARATION OF ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND BY
THE CONFIDENTIALITY AGREEMENT AND STIPULATED PROTECTIVE ORDER
I, ___________________, declare under penalty of perjury (this “Declaration”) that:
1. My address is__________________________________________________.
2. My present employer is __________________________________________.
3. My present occupation or job description is __________________________.
4. I hereby certify and agree that I have read and understand the terms of the
Confidentiality Agreement and Stipulated Protective Order (the “Order”) relating to the Disputes
between the Debtors and certain of the Debtors’ creditors and other constituents that are signatories
to the Order. All capitalized terms not otherwise defined in this Declaration have the meanings
ascribed to such terms in the Order. I further certify that I will not use Discovery Material for any
purpose other than the Disputes and the Chapter 11 Cases, and will not disclose or cause Discovery
Material to be disclosed to anyone not expressly permitted by the Order to receive Discovery
Material. I agree to be bound by the terms and conditions of the Order.
1
The last four digits of Debtor Vyaire Medical, Inc.’s federal tax identification number are 6495. A complete list
of each of the Debtors in these chapter 11 cases and each such Debtor’s federal tax identification number may be
obtained on the website of the Debtors’ claims and noticing agent at https://omniagentsolutions.com/Vyaire. The
location of Debtor Vyaire Medical, Inc.’s principal place of business and the Debtors’ service address in these
chapter 11 cases is 26125 North Riverwoods Boulevard, Mettawa, Illinois, USA 60045.
Case 24-11217-BLS Doc 306-1 Filed 07/24/24 Page 26 of 26
5. I understand that I am to retain in confidence from all individuals not expressly
permitted to receive Discovery Material, whether at home or at work, all copies of any Discovery
Materials, and that I will carefully maintain such materials in a manner consistent with the Order.
I acknowledge that the return or destruction of Discovery Material shall not relieve me from any
other continuing obligations imposed upon me by the Order.
6. I acknowledge and agree that I am aware that by receiving Discovery Material (a) I
may be receiving material non-public information about companies that issue securities and
(b) there exist laws, including federal securities laws, which may restrict or prohibit the sale or
purchase of securities of such companies as a result of the receipt of such information.
7. I stipulate to the jurisdiction of this Court solely with respect to the provisions of
the Order.
Date: Signature: ____________________________
2
File and source
- File
- gov.uscourts.deb.193283.306.1.pdf
- Size
- 396,809 bytes
- SHA-256
- d93aadfe4399f7deb60025ce9c7ad0145d1247b3cd88574e527c84645411bf0f
- Original
- No public link identified.