RGT Investments, LLC et al v. DJ Steakburgers, LLC

Filing 12

STIPULATED PROTECTIVE ORDER. Signed by Judge Michael R. Barrett on 1/10/2022. (kkz)

Case: 1:21-cv-00546-KLL Doc #: 12 Filed: 01/10/22 Page: 1 of 11 PAGEID #: 94

United States District Court
For the Southern District of Ohio
Western Division at Cincinnati
RGT INVESTMENTS, LLC, et. al.,
Plaintiffs,

CASE NO. 1:21-cv-00546-MRB
Judge Michael R. Barrett

v.
DJ STEAKBURGERS, LLC,
Defendant.

STIPULATED PROTECTIVE ORDER
Based on the agreement of the parties, and in order to: (1) expedite and facilitate discovery,
and (2) provide appropriate protection for confidential information that may be produced during
discovery in this matter, the Court enters this Order to govern the manner in which the information
described in this Order may be used and disseminated.
ACCORDINGLY, IT IS HEREBY ORDERED:
1.

Designated Material: Any information or material produced, formally or

informally, in response to a discovery request or otherwise, in this action, as well as any
information or material filed with the Court, may be designated in a manner permitted under the
terms of this Order by the person or entity (whether or not a Party to this action) or their legal
counsel producing, providing, or filing the information or material (“Designating Person”). All
such information and material and all extracts or copies thereof, including copies already in the
possession of the Parties, constitute “Designated Material” under this Order. The designation may
be made for the purposes of avoiding invasion of individual privacy and/or protecting trade secrets
or other confidential business information including, but not limited to, research, development,
contracts, financial or commercial information, employee compensation, customers’ business,

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revenue and profit, and other internal business information relating to the Designating Person’s
business. The designation shall be either:
(a)

“CONFIDENTIAL”; or

(b)

“CONFIDENTIAL—ATTORNEYS’ EYES ONLY”.

A Designating Person may designate documents and information “CONFIDENTIAL–
ATTORNEYS’ EYES ONLY” when the Designating Person believes, in good faith, the
information constitutes trade secret or other highly sensitive internal business information or, for
an individual, constitutes Protected Health Information (PHI) as defined under HIPAA or is other
highly confidential personal information, such that the information in any of the foregoing
categories requires or is entitled to more secrecy than information designated “CONFIDENTIAL.”
2.

Access to Designated Material:

Designated Material shall not be used or

disclosed for any purposes other than the litigation in this case and may be disclosed only as
follows:
(a)

Parties:

Material designated “CONFIDENTIAL” may be disclosed

to: (1) the Parties; (2) in the case of corporate Parties, their in-house counsel and in-house counsel’s
administrative, paralegal assistants; (3) the Parties’ officers, directors, members, employees and/or
shareholders who have agreed in writing, by signing a document substantially in the form of
Exhibit A, to be bound by this Order; and (4) those individuals to whom material designated
“CONFIDENTIAL–ATTORNEYS’ EYES ONLY” may be disclosed under the terms of subParagraphs (c) through (f) below.
(b)

Witnesses,

Prospective

Witnesses,

and

Court

Reporters:

All

“CONFIDENTIAL” Designated Material may be disclosed to any witnesses, prospective
witnesses, and court reporters in this action, but only for purposes of fact investigation in this case,

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or for testimony or preparation of testimony in this case whether at trial, hearing or deposition, and
subject to the restrictions set forth in this Agreed Protective Order. Before the disclosure of any
“CONFIDENTIAL” Designated Material to witnesses, prospective witnesses, or court reporters,
each such person shall sign a document substantially in the form of Exhibit A.
(c)

Counsel: Material designated “CONFIDENTIAL–ATTORNEYS’ EYES

ONLY” may be disclosed to outside counsel for Parties, their investigators, their legal associates,
paralegals and their regularly employed office staff.
(d)

Experts Specifically Retained in and for this Litigation: Material

designated “CONFIDENTIAL–ATTORNEYS’ EYES ONLY” may be disclosed to expert
witnesses specifically retained in and for this litigation. All such expert witnesses shall be
instructed not to disclose any Designated Material or the fact that they possess Designated Material
to any person, except as may be necessary within such person’s organization to research, test,
investigate, or perform tasks associated solely with this action. Before the disclosure of Designated
Material to any expert specifically retained by any Party and/or counsel, each such expert shall
first sign a document substantially in the form of Exhibit A, which form shall be retained by
counsel for the disclosing Party or non-Party.
(e)

Court Personnel and Stenographers: All Designated Material filed with

or used as evidence in the Court may be disclosed to and viewed by appropriate Court personnel
and stenographers as necessary without the need of further order of this Court.
(f)

Other Persons: All “CONFIDENTIAL” and “CONFIDENTIAL–

ATTORNEYS’ EYES ONLY” Designated Material may be disclosed to other persons who are
subsequently designated by written agreement of the Parties or by order of the Court. Temporary
disclosure or possession of “CONFIDENTIAL” Designated Material may be provided as

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necessary to copying services, translators, and to litigation support firms providing consultation or
graphics so long as such persons or entities have agreed in writing, in a document substantially in
the form of Exhibit A, to be bound by this Order.
3.

Copies: Copies and extracts may be made by or for the foregoing persons, provided

that all copies and extracts are appropriately marked. All copies and extracts are subject to
Paragraph 12 of this Order.
4.

Custody of Designated Material: Any person having custody of any Designated

Material shall maintain it in a manner that limits access to authorized persons under this Order.
Counsel of record for the Party on whose behalf a person seeks disclosure or temporary possession
of Designated Material shall be responsible for advising such person about this Order’s
requirements and will maintain a copy of the Declaration any such person signs agreeing to be
bound by this Order (Exhibit A).
5.

Designating Material: Documents shall be designated by placing, stamping or

marking the legend “CONFIDENTIAL” or “CONFIDENTIAL–ATTORNEYS’ EYES ONLY” or
similar words clearly identifying the category of Designated Material for which protection is
sought under the terms of this Order. The legend should be placed on each page of the document
prior to production of the document. Other records and items shall be prominently marked in a
reasonably equivalent way. Designated Material not reduced to documentary, tangible or physical
form, or which cannot be conveniently designated in the manner set forth herein, shall be
designated by the producing Party by informing the receiving Party in writing.
6.

Designating Depositions:
(a)

Deposition transcripts or portions thereof may be designated either: (1)

when or before the testimony is recorded, in which case the transcript of the designated testimony

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shall be bound in a separate volume and marked by the reporter, as the Designating Person may
direct; or (2) by captioned, written notice to the reporter and all counsel of record, given within
ten (10) business days after the reporter sends written notice that the transcript is available for
review, in which case all counsel receiving such notice shall be responsible for marking the copies
of the designated transcript or portion thereof in their possession or control as directed by the
Designating Person. Pending and before expiration of the ten (10) business days, the deposition
transcript shall be treated as if it had been designated “CONFIDENTIAL–ATTORNEYS’ EYES
ONLY”.
(b)

Where testimony is designated at a deposition, the Designating Person may

exclude from attendance at the deposition all persons other than those to whom the Designated
Material may be disclosed under Paragraph 2 of this Order.
(c)

Any Party may mark Designated Material as a deposition exhibit and

examine any witness thereon, provided that the deposition witness is one to whom the exhibit may
be disclosed under Paragraph 2 of this Order, and the exhibit and related transcript pages receive
the same confidentiality designation as the original Designated Material.
(d)

If Designated Material produced by a non-Party is introduced, incorporated

in, referred to, or otherwise used in a deposition, the Party responsible for any such use of
Designated Material shall ensure that the transcript or the pertinent portions thereof are designated
on behalf of such non-Party, and shall further ensure that all persons other than those to whom the
Designated Material may be disclosed under Paragraph 2 of this order are excluded from
attendance at the deposition or the relevant portion thereof.
7.

Court Procedures: This Protective Order does not authorize filing protected

materials under seal. No document may be filed with the Court under seal without prior permission

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as to each such filing, upon motion and in accord with the Sixth Circuit’s standard set forth in
Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299 (6th Cir. 2016). The burden
of demonstrating the need for and appropriateness of a sealing order is borne by the moving party,
and requires the moving party to analyze in detail, document by document, the propriety of secrecy,
providing reasons and legal citations. Regardless of whether the parties agree, it remains the
Court’s independent obligation to determine whether a seal is appropriate for any given document
or portion thereof. Any proposed sealing, even when compelling reasons exist, must be narrowly
tailored to serve the compelling reasons.
This provision does not relieve the filing Party of serving the document on other Parties in
accordance with ordinary procedures established by the Civil and Local Rules or Court order. If
any papers to be filed with the Court will contain, quote, paraphrase, compile or otherwise reveal
the substance of documents designated as “CONFIDENTIAL–ATTORNEYS’ EYES ONLY”, the
filing Party’s counsel agrees to confer with opposing counsel before filing to ensure that copies of
any such papers are redacted to omit any text which contains, quotes, paraphrases, compiles, or
otherwise reveals the substance of documents designated “CONFIDENTIAL–ATTORNEYS’
EYES ONLY”.
8.
faith

to

Designations to be Reasonable: The Parties will use reasonable judgment in good
avoid

designating

any

information

or

documents

“CONFIDENTIAL”

or

“CONFIDENTIAL–ATTORNEYS’ EYES ONLY” which are not confidential or generally
available to the public.
9.

Objections:

A Party may challenge the propriety of any designation under this

Order at any time. A challenge may be made by serving on the other Party a captioned notice of
objection, which shall identify with particularity the Designated Material that is challenged, and

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propose a new designation for or declassification of each item and the basis for such objection.
The Parties shall meet and confer in good faith in an effort to resolve the objection informally and
shall otherwise comply with the Court’s Local Rules and Orders regarding discovery disputes
before filing any motions related to the designation of Designated Material. The Designated
Material shall retain its original designation until either the Designating Person agrees to change
or remove the designation or the Court orders that the designation be changed or removed.
10.

No Prejudice:
(a)

Nothing in this Order shall preclude either Party from seeking and obtaining

additional or different protection with respect to the confidentiality of discovery. This Order
governs only the treatment of information and materials in discovery. At trial, the Parties will redesignate or redact Designated Material as appropriate either by agreement or Court order.
(b)

This Order shall not diminish any existing obligation or right with respect

to Designated Material, including the rights of the Designating Persons to use or disclose their own
Designated Material.
(c)

A Party may seek, by written agreement from a Party or Court order, to

make late designations of material otherwise entitled to protection under this Order if the Party
failed to make a timely designation through mistake or inadvertence and failed to correct such
error within a reasonable time in accordance with the requirements of Paragraph 13 of this Order.
11.

Inadvertent Production: Counsel shall exert their best efforts to identify materials

protected by the attorney-client privilege, work product doctrine, or any other statutory, regulatory,
or common law privilege prior to the disclosure of any such materials or information. The
inadvertent production of any document or thing shall be without prejudice to any claim that such
material is protected by the applicable privilege, and no Party shall be held to have waived any

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rights thereunder by inadvertent production. If, after materials are disclosed, a producing Party
asserts that such materials are protected by an applicable privilege and were inadvertently
produced, the receiving Party shall take prompt steps to ensure that all known originals and copies
of such material are returned promptly to the producing Party. The cost, if any, for excising such
materials by the receiving Party shall be borne by the producing Party. The Parties may thereafter
contest such claims of privilege or work product as if the materials had not been produced, but
shall not assert that a waiver occurred as a result of the inadvertent production.
12.

Final Disposition: Upon final termination of this action, and at the written request

of the person designating or producing the material, all Designated Material and all copies and
extracts thereof shall be returned to counsel of record for the person that produced the material or,
in the case of deposition testimony and designated exhibits, the counsel of record for the
Designating Person, or in the alternative, the receiving Party shall provide to the Designating
Person a certification that all such materials have been destroyed. However, counsel of record may
retain Designated Material, including as reflected in pleadings, attorney and consultant work
product, depositions and exhibits, confidentially within counsel’s law office and record storage
system and for archival purposes.
13.

Error in Designation: The inadvertent or unintentional production of documents

containing, or otherwise disclosing, private, proprietary or secret information without being
designated in accordance with this Order at the time of production or disclosure shall not be
deemed a waiver in whole or in part of a Designating Person’s claim of privacy, confidentiality or
secrecy, either as to the specific information disclosed or as to any other information relating
thereto or on the same or related subject matter. Any error in designation or in failing to designate

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shall be corrected promptly within a reasonable time under the circumstances after the Designating
Person becomes aware of the error, but generally by no later than ten (10) business days.
14.

Modification and Survival: The restrictions imposed by this Order may be

modified or terminated only by order of this Court. This Order shall survive termination of this
action.
SO ORDERED.

January 10, 2022
DATE

/s Michael R. Barrett
MICHAEL R. BARRETT
UNITED STATES DISTRICT JUDGE

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AGREED TO AS TO FORM AND CONTENT:
/s/ Sarah B. Cameron
Sarah B. Cameron, trial attorney (0091319)
Michael A. Xavier (0097121)
Dinsmore & Shohl LLP
255 E. Fifth Street, Suite 1900
Cincinnati, OH 45202
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
[e-mail]

/s/ David P. Williamson
David P. Williamson, trial attorney (0032614)
Kevin C. Quinlan (0092999)
Bieser, Greer & Landis LLP
6 N. Main Street, Suite 400
Dayton, OH 45402
Telephone:
[phone]
Facsimilie:
[phone]
Email: [e-mail]
[e-mail]

Attorneys for Plaintiffs

Attorneys for Defendant

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EXHIBIT A
United States District Court
For the Southern District of Ohio
Western Division at Cincinnati
RGT INVESTMENTS, LLC, et. al.,
Plaintiffs,
v.

CASE NO. 1:21-cv-00546-MRB
Judge Michael R. Barrett

DJ STEAKBURGERS, LLC,
Defendant.
DECLARATION
I, ______________________________, hereby declare that I am to receive Designated
Material, labeled pursuant to the terms of the Stipulated Protective Order (“Order”) entered on
_______________________, 2022 in the above-referenced case.
I further declare that I have read a copy of the Order, that I agree to be bound by all terms
set forth in the Order, and that I hereby submit to the jurisdiction of the aforesaid Court for the
limited purpose of any proceeding to enforce the terms of the Order.

Date Signed

Declarant’s Signature
Printed Name
Address
City, State, Zip Code