Coulter-Owens v. Rodale, Inc.

Filing 34

CONFIDENTIALITY AGREEMENT AND STIPULATED PROTECTIVE ORDER Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 2:14-cv-12688

ROSE COULTER-OWENS,
individually, and on behalf of all others
similarly situated,

Honorable Robert H. Cleland
Plaintiff,
v.
RODALE INC., a Pennsylvania
Corporation,
Defendant.

CONFIDENTIALITY AGREEMENT
AND STIPULATED PROTECTIVE ORDER

This Confidentiality Agreement and Stipulated Protective Order (“Order”) is
entered into between Plaintiff Rose Coulter-Owens (“Coulter-Owens”) though her
counsel, and Defendant Rodale Inc. (“Rodale”) through its counsel, (collectively, the
“Parties”);
WHEREAS, in the course of this litigation, the Parties have sought or may
seek certain discovery from one another or from certain third parties (each, a “NonParty”), including through service of document requests, interrogatories,
depositions, and otherwise as provided by the Federal Rules of Civil Procedure
and the Local Rules of this Court (“Discovery Requests”); and
To expedite the exchange of discovery materials, to facilitate the prompt

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resolution of disputes over confidentiality, and to protect discovery material
entitled to be kept confidential, the Parties stipulate and agree as follows:
1.

This Order applies to all information, documents and things

exchanged in or subject to discovery in this litigation produced on or after April 27,
15 by a Party or a Non-Party (each a “Producing Person”) in response to or in
connection with any request for information or discovery related to the litigation,
including without limitation, deposition testimony (whether based upon oral
examination or written questions), interrogatories, answers to interrogatories,
requests for admission, responses to requests for admission, documents (consistent
with the definitions of Rule 1001 of the Federal Rules of Evidence) and things
produced (including documents and things produced to the receiving Party for
inspection and documents and things provided to the receiving Party, whether in the
form of originals or copies) as well as any and all copies, abstracts, digests, notes,
summaries, and excerpts thereof, except as provided in Paragraph 15 below
(collectively referred to as “Discovery Material”). 
2.

The Parties agree that the Parties shall submit this Order to the Court,

without alteration, to serve as a Stipulated Protective Order for governing
information exchanges and discovery. The Parties expressly agree to abide by the
terms of this agreement even if this Order is not entered by the Court for any reason,
unless the Court otherwise determines.

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3.

A

Producing

Person

may

designate

Discovery

Material

as

“Confidential” if such Producing Person believes in good faith (or with respect to
documents received from another person, has been reasonably advised by such other
person) that such Discovery Material constitutes or includes information: (i) that has
not been made public and that the Producing Person would not want to be made
public in the ordinary course of its activities, including, but not limited to,
technical, business, financial, personal or other information of a nature that can be
protected under Federal Rule of Civil Procedure 26(c), including but not limited
to information containing or concerning Rodale’s customers’ information; or (ii)
that the Producing Person is under a preexisting obligation to a third-party to
treat as confidential; (iii) that the Producing Person has in good faith been
requested by another Party or Non-Party to so designate on the ground that such
other Party or Non-Party considers such material to contain Information that is
confidential or proprietary to such Party or Non-Party; or (iv) records or information
containing data prohibited from public disclosure as delineated in the Michigan
Video Rental Privacy Act, M.C.L §§ 445.1711–15.  
4.

Where reasonably practicable, any Confidential Material shall be

designated by the Producing Person as such by marking every such page
“Confidential.” Such markings should not obliterate or obscure the content of the
material that is produced. Where marking every page of such materials is not

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reasonably practicable, such as with certain native file documents, a Producing
Person may designate material as “Confidential” by informing the person to whom
the material is provided, in writing in a clear and conspicuous manner at the time of
production of such material, that such material is “Confidential.”

5.

Any Discovery Material designated “Confidential” may be used solely

for the prosecution, defense or settlement of this litigation and shall not be used by
any other Party, other than the Party that produced it, in any other proceeding, for
business, competitive, or publicity purposes, or for any other purpose whatsoever.
Nothing herein, however, shall restrict any Party’s use of documents obtained from
any source other than another Party or Non-Party during discovery in this litigation,
regardless of whether such documents are also produced in discovery in this
litigation.
6.

Confidential Material shall be given, shown, made available to or

communicated only to the following:
a.
b.

insurers and auditors of any party to assist with the assessment of
this litigation, including any of their employees, support staff, or
independent contractors;

c.

outside counsel and staff working under the express direction
of the Parties;

d.

inside counsel for Rodale and their staff;

e.

Parties and their Directors, Officers and Employees;

the Court overseeing this litigation, and its officers and clerical
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staff;
f.

g.

any person who is indicated on the face of a document to have
been an author, addressee or copy recipient thereof, provided,
however, that a person identified solely in this subparagraph
shall not be permitted to retain copies of such Confidential
Material;

h.

any deponent or witness who was noticed for a deposition, or
is on a witness list for hearing or trial, during or in preparation
for his or her noticed deposition, hearing or trial testimony where
such Confidential Material is determined by counsel in good faith
to be necessary to the anticipated s u b j e c t matter of testimony,
provided, however that such 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 such
Confidential Material;

i.

outside photocopying, graphic
litigation support services;

j.

court reporters, stenographers, or videographers who record
deposition or other testimony in the litigation; and

k.

7.

experts and consultants (and their respective staff) that are
retained in connection with this litigation;

any other person or entity with respect to whom the Producing
Person may consent in writing.

production

services,

or

Before any person or their representative identified in Paragraph 6(f)

through 6(k) is given access to Discovery Materials designated “Confidential,” if
allowed by this Order, such person or their representative shall be provided with a
copy of this Order and shall acknowledge in a written statement, in the form
provided as Exhibit A hereto, that he or she read the Order and agrees to be bound

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by the terms thereof. Such executed forms shall be retained in the files of counsel for
the Party who gave access to the Discovery Materials designated as “Confidential”
to the person who was provided such access. Such executed forms shall not be
subject to disclosure under the Federal Rules of Civil Procedure or the Local Rules
of this Court unless a showing of good cause is made and the Court so orders. 
8.

Any Party wishing to use Confidential Material in a filing must follow

Local Rule 5.3 regarding the filing of civil materials under seal, specifying
precisely what the parties wish to be kept under seal and making a particularized
showing of good cause as to why the Court should depart from the strong
presumption against sealing any court records to public inspection. The party must
also file a redacted public version of the document in which only the specific,
narrowly drawn material that the party claims is confidential is redacted from the
document. Where a Party seeks and receives permission for the Court to file such
material under seal, the Party must comply with Local Rule 83.31(a)(3)(B), which
requires that “[s]ealed filings authorized by statute, rule, or court order in
accordance with LR 5.3 must have the Court order or notice of filing under seal
affixed to the top of the sealed envelope [and] may be delivered to the clerk's
office.” Each filing party will make a good faith effort to file Confidential Material
under seal. If Confidential Material is not accepted for filing by the Court under
seal, then such Confidential Material shall be filed or presented as the Court

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instructs.
9.

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. Prior to the use of any
Confidential Material at trial or any hearing to be held in open court, counsel for any
Party (whether or not a Producing Person) who desires to so offer or use such
Confidential Material shall meet and confer with the Producing Person together with
any other Parties who have expressed interest in participating in such meet and
confer to discuss ways to redact or limit disclosure of the Confidential Material so
that the material may be offered or otherwise used by any Party. If the Parties are
unable to resolve a dispute involving such redaction, the Party seeking to use such
materials at trial or any hearing may then move the Court to resolve any such
dispute. 
10.

In the case of depositions, if counsel for a Party or Non-Party

believes that a portion or all of the testimony given at a deposition constitutes
Confidential Material of such Party or Non-Party, counsel shall so state on the
record and shall request that the entire transcript or the relevant portion of testimony
be sealed. The court reporter, who shall first have agreed to abide by the terms of
this Order, shall be instructed to include on the cover page of each sealed
transcript the legend: “This transcript portion contains information subject to a

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Protective Order and shall be used only in accordance therewith.” In addition, each
page of the transcript containing information designated as Confidential shall
include the legend “Confidential.” If the deposition is videotaped, the videotape
shall be subject to the same level of confidentiality as the transcript and the cover of
the videotape shall include the legend “Confidential” as appropriate, if any portion
of the transcript itself is so designated. When testimony designated as Confidential
during a deposition, persons not entitled to receive such information under the
terms of this Order shall be excluded from the portion of the deposition so
designated. In addition, any Party or Non-Party may designate the transcript or
videotape of a deposition as Confidential within seven (7) court days of the Party’s
or Non-Party’s receipt of the final transcript from the court reporter.

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 constitute items
designated as Confidential Material, and directing the court reporter to place the
same under seal as provided in this Paragraph 10. Until expiration of the aforesaid
seven (7) court day period following receipt of the transcript by the Parties, all
deposition transcripts and videotapes shall be considered and treated as Confidential
unless otherwise agreed on the record at the deposition. Nothing in this Paragraph
10 shall apply to or affect the confidentiality designations on documents or materials
entered as exhibits at depositions.  

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11.

Nothing herein shall be a waiver or relinquishment by any person of

any right to object to any discovery request, or to the admission 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
on any grounds.

12.

If any receiving Party objects to the designation of any Discovery

Material as Confidential” (whether such designation is made on a permanent basis or
temporary basis with respect to deposition testimony), the receiving Party shall first
raise the objection with the Party responsible for such designation, and seek to
confer in good faith by telephone or in person to attempt to resolve any dispute
respecting the terms or operation of this Order. If such a dispute cannot be resolved
after such objection is first raised, the objecting Party may then move the Court to
do so. Any party may request expedited treatment of any motion challenging the
designation of material or information as confidential. Until the Court rules on such
an issue, the Discovery Material shall continue to be treated as designated. Upon
motion, the Court may order the removal of the “Confidential” designation from any
Discovery Material so designated subject to the provisions of this Order.

In

connection with any motion concerning the propriety of a “Confidential”
designation, the Party objecting to the designation shall bear the burden of proof.
13.

A receiving Party shall not b e o b l i g e d t o c h a l l e n g e t h e
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p r o p r i e t y o f a confidentiality 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 another production Party of Discovery Materials as
“Confidential” during the discovery period shall not be a waiver of that Party’s right
to object to the designation at trial. 
14.

To the extent that any Party has documents or information that (i) were

already in its possession as of April 27, 15; (ii) are received or become available to a
Party on a proper non-confidential basis not in violation of an obligation of
confidentiality to any other person; or (iii) are published or become publicly
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, nothing in this Order shall
limit that Party’s ability to use such documents in a deposition, hearing, trial or
otherwise in connection with this litigation. Nothing in this Order shall affect the
obligation to continue to comply with any confidentiality obligation to another
person, including a Party, with respect thereto. 
15.

Within 30 days of the conclusion of the litigation, including all

appeals as to all Parties, all Confidential Material, and all copies or notes thereof in
the possession of any person (other than the Court), shall be returned to counsel for
the respective Producing Person or destroyed, except that counsel may retain their
work product and copies of court filings, transcripts, and exhibits, provided said

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retained documents will continue to be treated as provided in this Order. If a person
in possession of Confidential Material destroys documents after the conclusion of
these proceedings, that person shall certify such destruction to opposing counsel.
Notwithstanding anything in this paragraph, to the extent that the information in the
Confidential Material remains confidential, the terms of this Order shall remain
binding.  
16.

This Order applies to all Non-Parties that are served with subpoenas in

connection with the litigation or who otherwise produce documents or are noticed
for deposition in connection with the litigation, and all such Non-Parties are entitled
to the protection afforded hereby upon signing a copy of Exhibit A to this Order and
agreeing to be bound by its terms. 
17.

Any Party may move to modify 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 modify the provisions of the Order.  
18.

Any person or Party subject to this Order that may be subject to a

motion or other form of legal process or any regulatory process or demand seeking
the disclosure of another Party’s or Non-Party’s information designated under one of
the categories of confidentiality pursuant to this Order: (i) shall promptly notify that
Party or Non-Party to enable it to have an opportunity to appear and be heard on
whether that information should be disclosed, and (ii) shall not provide such

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materials unless required by law or regulation with the consent of the Producing
Person.
19.

Nothing in this Order affects the right of any Producing Person that

designates material “Confidential” to use or disclose such material in any way.
Such disclosure will not waive the protections of this Order and will not entitle
other Parties, Non-Parties, or their attorneys to use or disclose such material in
violation of this Order, except that if the Producing Person uses such material in a
manner inconsistent with its confidential status, then that will serve as a basis to
object to the designation. 
20.

Except as provided in this paragraph, following a Producing Person’s

production or dissemination of Discovery Material, the failure to designate
particular Discovery Material as “Confidential” at the time of production shall not
operate to waive a claim that the Discovery Material is “Confidential.”

No Party

shall be deemed to have violated this Order if, prior to notification of any later
designation, such Discovery Material has been disclosed or used in a manner
inconsistent with the later designation. Once such a designation has been made,
however, any such Discovery Material shall be treated as “Confidential” in
accordance with this Order; provided, however, that if the Discovery Material that
was not designated is, at the time of the later designation, filed with a court on the
public record, the Party or person that failed to make the designation shall move for

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appropriate relief. If an omitted “Confidential” designation is first claimed during
the course of a deposition or hearing, the subject Discovery Material will be used
during that day’s deposition or hearing as though such designation had been
previously made. 
21.

If information or documents subject to a claim of privilege or of

protection as trial preparation material are produced on or after April 27, 15, such
production will in no way prejudice or otherwise constitute a waiver of, or estoppel
as to, any claim of privilege or work-product immunity for such information either
in connection with the litigation or in any other state or federal proceeding. If
information or documents produced on or after April 27, 15, are subject to a claim of
privilege or of protection as trial preparation material, the Producing Person making
the claim may notify any Party or Non-Party that received the information of the
claim and the basis for it.

After being notified, a Party or Non-Party must

promptly return or destroy the specified information and any copies it has; must not
use or disclose the information until the claim is resolved; must take reasonable
steps to retrieve the information if the party disclosed it before being notified; and
may promptly present the information to the court under seal for a determination of
the claim. The Producing Person must preserve the information until the claim is
resolved.

Nothing herein shall be construed to prejudice any Party’s right to

argue that any document or information is or is not privileged under applicable law. 

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22.

Nothing herein shall be deemed to prevent a Party or Non-Party from

objecting to discovery or asserting that information being sought in discovery is of
such a nature that discovery should not be afforded because of the confidential,
personal or proprietary nature of the information being sought or to preclude a
Party or Non-Party from seeking additional or further limitations on the use or
disclosure of such information.
23.

Plaintiff Rose Coulter-Owens expressly consents to allow the

production to the Parties and their counsel those records or information concerning
her purchase, lease, rental, or borrowing of Rodale’s Prevention magazine that
indicates her identity as Confidential Information for purposes of this litigation,
pursuant to Section 3 of the Michigan Video Rental Privacy Act, M.C.L. §
445.1713. This Court enters this Order pursuant to M.C.L. § 445.1713 subject to the
safeguards imposed by the remainder of this Order for Confidential Information.
24.

The provisions of this Order shall survive the final termination of the

litigation for any retained Confidential Material.

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IT IS SO STIPULATED.
Respectfully submitted,
Date: April 27, 2015

ROSE COULTER-OWENS, individually and
on behalf of all others similarly situated,
/s/ Benjamin S. Thomassen
One of Plaintiff’s attorneys
Ari J. Scharg
[e-mail]
Benjamin S. Thomassen
[e-mail]
EDELSON PC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Tel: [phone]
Fax: [phone]
Henry M. Scharg – P28804
[e-mail]
LAW OFFICE OF HENRY M. SCHARG
718 Ford Building
Detroit, Michigan 48226
Tel: [phone]
Fax: [phone]
Counsel for Plaintiffs and the putative Class

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Date: April 27, 2015

RODALE INC.,
/s/ Natalie J. Spears
One of Defendant’s attorneys
Natalie J. Spears
Anthony T. Eliseuson
Kristen C. Rodriguez
DENTONS US LLP
233 South Wacker Drive
Suite 7800
Chicago, IL 60606
[phone]
[phone] (fax)
[e-mail]
[e-mail]
[e-mail]
Peter B. Kupelian (P31812)
Carol G. Schley (P51301)
CLARK HILL PLC
151 South Old Woodward Ave.
Suite 200
Birmingham, MI
[e-mail]
[e-mail]

IT IS SO ORDERED
Dated: April 27, 2015

S/Robert H. Cleland
Honorable Robert H. Cleland
United States District Judge

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Exhibit A

DECLARATION OF ACKNOWLEDGEMENT AND AGREEMENT TO BE
BOUND BY THE CONFIDENTIALITY AGREEMENT AND STIPULATED
PROTECTIVE ORDER
I,

1.

2.

My address is

.

My present employer is

. 

3.

My present occupation or job description is

4.

, declare under penalty of perjury that:

.
I hereby certify and agree that I have read and understand the terms of

the Stipulated Protective Order relating to the litigation between Coulter-Owens and
Rodale. I further certify that I will not use “Confidential” information for any
purpose other than this litigation, and will not disclose or cause “Confidential”
information to be disclosed to anyone not expressly permitted by the Order to
receive “Confidential,” as applicable, information. I agree to be bound by the terms
and conditions of the Order.
5.

I understand that I am to retain in confidence from all individuals not

expressly permitted to receive information designated as “Confidential,” whether at
home or at work, all copies of any materials I receive which have been designated as
“Confidential,” and that I will carefully maintain such materials in a container,
drawer, room or other safe place in a manner consistent with the Order. I
acknowledge that the return or destruction of “Confidential” material shall not

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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 materials

designated “Confidential” (a) I may be receiving material non-public information
about companies and (b) there exist laws, including federal securities laws, that may
restrict or eliminate the sale or purchase of securities and debt of the 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)

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