Wagner et al v. Circle W Mastiffs et al

Filing 137

PROTECTIVE ORDER. Signed by Magistrate Judge Terence P Kemp on 6/12/12. (jcw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
FREDERICKA WAGNER, et al.,
Plaintiffs,
v.
CIRCLE W MASTIFFS, et al.,
Defendants.
CRAIG W. WILLIAMSON,
Plaintiff,
v.
AMERICAN MASTIFFS
BREEDERS COUNCIL, et al.,
Defendants.

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Civil Action No. 2:08cv431

Judge Smith
Magistrate Judge Kemp

Civil Action No. 2:09cv172

Judge Smith
Magistrate Judge Kemp

PROTECTIVE ORDER
It is hereby stipulated and agreed by and between counsel for the AMBC parties
and Jennifer & Craig Williamson, hereafter referred to as “the Williamsons”, that the terms and
conditions of this Stipulated Protective Order shall govern the handling of documents, answers to
interrogatories, depositions, pleadings, exhibits and other information either exchanged by the
parties or obtained from non-parties in this action:
1.

This Order shall be applicable to and govern all depositions, documents

produced in response to requests for production of documents, answers to interrogatories,
responses to requests for admissions, documents produced in response to subpoena, and all other
discovery taken pursuant to the Federal Rules of Civil Procedure, as well as testimony adduced

at trial, matters in evidence and other information which the disclosing party designates as
“CONFIDENTIAL MATERIALS” or “ATTORNEYS ONLY MATERIAL”, directly or
indirectly, by or on behalf of any party or any non-party witness in connection with this action.
As used herein, “party” shall refer to the parties to this action, members, and to non-party
witnesses.
2.

In designating information as “CONFIDENTIAL MATERIALS” or

“ATTORNEYS ONLY MATERIAL,” a party shall make such a designation only as to materials
which that party in good faith believes constitutes such material or matter used by it in, or
pertaining to, its business or personal affairs, which matter is not generally known and which the
party would normally not reveal to third parties or would cause third parties to maintain in
confidence. “CONFIDENTIAL MATERIALS” and “ATTORNEYS ONLY MATERIAL” shall
be used by the parties to this litigation or any person to whom such materials are revealed
pursuant to this Order, solely for the purpose of conducting this litigation, but not for any other
purpose whatsoever, and such materials shall not be disclosed in any manner to anyone except as
provided here.
3.

Information designated as “CONFIDENTIAL MATERIAL” may be

disclosed only to the following persons:
a.

The attorneys working on this action on behalf of any party,

including in-house attorneys, paralegal assistants, stenographic and clerical employees working
under the direct supervision of such counsel.

Additionally, any “CONFIDENTIAL

MATERIAL” the Williamsons request the Court to see pursuant to Paragraph 13, and the Court
so authorizes, will be disclosed to the Williamsons;

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b.

Any person not employed by a party who is expressly retained or

sought to be retained by any attorney / the Williamsons described in paragraph 3(a) to assist in
preparation of this action for trial, with disclosure only to the extent necessary to perform such
work;
c.

Upper level corporate managers, with disclosure only to the extent

necessary to perform their work;
d.

Any person of whom testimony is taken, except that such person

may only be shown copies of “CONFIDENTIAL MATERIAL” during his testimony, and may
not retain any “CONFIDENTIAL MATERIAL;” and
e.
4.

The Court.

Any “CONFIDENTIAL MATERIAL” which a party believes should not

be disclosed to a director, officer, member, or employee of any other party may be designated by
the party at the time of disclosure of such information as “ATTORNEYS ONLY MATERIAL.”
The parties contemplate that “ATTORNEYS ONLY MATERIAL,” shall include but not be
limited to, customer, economic, financial, and marketing data and information, research and
development and technical information, trade secret information, and current and future business
plans of a highly sensitive nature.

Information designated as “ATTORNEYS ONLY

MATERIAL” may not be disclosed to any party or employee of a party and may be disclosed
only to the following persons:
a.

The attorneys working on this action on behalf of any party and all

paralegal assistants, stenographic and clerical employees working under the direct supervision of
such counsel. Additionally, any “ATTORNEYS ONLY MATERIAL” the Williamsons request

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the Court to see pursuant to Paragraph 13, and the Court so authorizes, will be disclosed to the
Williamsons;
b.

Any person not employed by a party who is expressly retained or

sought to be retained by any attorney / the Williamsons described in paragraph 5(a) to assist in
preparation of this action for trial, with disclosure only to the extent necessary to perform such
work;
c.

Any person of whom testimony is taken, except that such person

may only be shown copies of “ATTORNEYS ONLY MATERIAL” during his testimony, and
may not retain any such material; and
d.
5.

The Court.

The persons described in paragraphs 3(a), (b), (c) and (d) shall have access

to the “CONFIDENTIAL MATERIAL” and the persons described in paragraphs 4(a), (b), (c)
and (d) shall have access to the “ATTORNEYS ONLY MATERIAL” once they have been made
aware of the provisions of this Order and have manifested their assent to be bound thereby by
signing a copy of the annexed “ACKNOWLEDGMENT.” A list shall be maintained by counsel
/ the Williamsons for the parties hereto of the names of all persons to whom “CONFIDENTIAL
MATERIAL” or “ATTORNEYS ONLY MATERIAL” is disclosed, or to whom the information
contained therein is disclosed, and such list shall be available for inspection by the Court, the
Williamsons, and opposing counsel upon request.

Similar but separate lists shall also be

maintained with respect to “CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY
MATERIAL” provided by third parties. At the time of the termination of this lawsuit by
settlement judgment or otherwise, the parties hereto shall provide other counsel / the
Williamsons with a copy of the pertinent aforementioned lists. The persons receiving

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“CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL” are enjoined from
disclosing it to any other person, except in conformance with this Order.
6.

Each individual who receives any “CONFIDENTIAL MATERIAL” or

“ATTORNEYS ONLY MATERIAL” hereby agrees to subject himself/herself to the jurisdiction
of this Court for the purpose of any proceedings relating to the performance under, compliance
with or violation of this Protective Order.
7.

Each person given access to “CONFIDENTIAL MATERIAL” or

“ATTORNEYS ONLY MATERIAL,” shall, prior to being given such access, be advised of the
terms of this Order and shall become subject to its terms, including, without limitation, the
provisions that such “CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL”
may not be disclosed other than as described in Paragraphs 3 and 4 above and shall be used
solely for the purposes of this proceeding. Any person falling under subparts (b), (c) and (d) of
Paragraphs 3 and 4 above who is given access to

“CONFIDENTIAL MATERIAL” or

“ATTORNEYS ONLY MATERIAL,” shall, prior to being given such access, be advised of the
terms of this Order and sign an acknowledgment, in the form substantially similar to Exhibit A
hereto, agreeing to be subject to its terms.
8.

The recipient of any “CONFIDENTIAL MATERIAL” or “ATTORNEYS

ONLY MATERIAL” that is provided under this Order shall maintain such information in a
secure and safe area and shall exercise the same standard of due and proper care with respect to
the storage, custody, use and/or dissemination of such information as is exercised by the
recipient with respect to its own proprietary information.
9.

Parties

shall

designate

“ATTORNEYS ONLY MATERIAL” as follows:

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“CONFIDENTIAL

MATERIAL”

or

a.

In the case of documents, interrogatory answers, responses to

requests to admit, and the information contained therein, designation shall be made by placing
the following legend on any such document prior to production: “CONFIDENTIAL
MATERIAL” or “ATTORNEYS ONLY MATERIAL” In the event that a party inadvertently
fails to stamp or otherwise designate a document or other information as “CONFIDENTIAL
MATERIAL” or “ATTORNEYS ONLY MATERIAL” at the time of its production, that party
shall have five (5) business days after such production to so stamp or otherwise designate the
document or other information.
b.
transcript

(including

In the case of depositions, designation of the portion of the
exhibits)

which

contains

“CONFIDENTIAL

MATERIAL”

or

“ATTORNEYS ONLY MATERIAL” shall be made by a statement to such effect on the record
in the course of the deposition or, upon review of such transcript, by counsel for the party / the
Williamsons

to

whose

“CONFIDENTIAL

MATERIAL”

or

“ATTORNEYS

ONLY

MATERIALS” the deponent has had access, said counsel / the Williamsons shall designate
within seven (7) days after counsel's / the Williamsons’ receipt of the transcript or entry of this
Order, whichever is later. Counsel / the Williamsons shall list on a separate piece of paper the
numbers of the pages of the transcript containing “CONFIDENTIAL MATERIAL” or
“ATTORNEYS ONLY MATERIAL” inserting the list at the end of the transcript, and mailing
copies of the list to counsel / the Williamsons for all parties so that it may be affixed to the face
of the transcript and each copy thereof. Pending such designation by counsel / the Williamsons,
the entire deposition transcript, including exhibits, shall be deemed “CONFIDENTIAL
MATERIAL,” unless counsel / the Williamsons during the deposition states that the information
is “ATTORNEYS ONLY MATERIAL.” If no designation is made within seven (7) days after

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receipt of the transcript or entry of this Order, the transcript shall be considered not to contain
any “CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL.”
c.

Transcripts of depositions will not be filed with the Court unless it

is necessary to do so for purposes of trial, motions for summary judgment, or other matters. If a
deposition transcript is filed and if it contains “CONFIDENTIAL MATERIAL” or
“ATTORNEYS ONLY MATERIAL” the transcript shall bear the appropriate legend on the
caption page and shall be filed under seal.
10.

In the event that discovery is sought from a third party, a copy of this

Stipulated Protective Order shall be enclosed with any subpoena sent, and a third party may, in
its discretion, choose to avail itself of the terms of this Stipulated Protective Order.
11.

In the event that materials are obtained from third parties that a party to

this litigation believes contains material that should be marked “CONFIDENTIAL MATERIAL”
or “ATTORNEYS ONLY MATERIAL,” that party shall have five days after the receipt of those
documents or the entry of this Order, whichever occurs later, to so designate those materials.
12.

The receipt by a party of “CONFIDENTIAL MATERIAL” or

“ATTORNEYS ONLY MATERIAL” shall not in any way limit the ability of that party to seek
third party discovery based on the information learned from that material.
13.

A party shall not be obligated to challenge the propriety of a

“CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL” designation at the
time made, and failure to do so shall not preclude a subsequent challenge thereto. In the event
that any party to this litigation disagrees at any stage of these proceedings with such designation,
such party shall provide to the producing party written notice of its disagreement with the
designation. The parties shall first try to dispose of such dispute in good faith on an informal

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basis. If the dispute cannot be resolved, the party challenging the designation may request
appropriate relief from the Court, but in any event, such relief from the Court shall not be
requested before ten (10) days after the producing party is served with said written notice. The
burden of proving that information has been properly designated as “CONFIDENTIAL
MATERIAL” or “ATTORNEYS ONLY MATERIAL” is on the party making such designation.
14.

The Clerk of the Court is directed to maintain under seal all documents

and all transcripts of deposition testimony filed with this Court in this litigation by any party
which are, in whole or in part, designated as “CONFIDENTIAL MATERIAL” or
“ATTORNEYS ONLY MATERIAL,” including all pleadings, deposition transcripts, exhibits,
discovery responses or memoranda purporting to reproduce or paraphrase such information. The
person filing such material shall designate to the Clerk that all or a designated portion thereof is
subject to this Order and is to be kept under seal, except that upon the default of the filing party
to so designate, any party may do so.
15.

The

inadvertent

failure

by

a

party

to

file

under

seal

any

“CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL,” marked as set forth
in this Order, in no way alters or waives the protection and confidential nature of such materials,
which remain subject to the restrictions and limitations set forth in this Order. In the event that a
party fails to file any “CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL”
with the Court under seal, the opposing party may notify the Clerk of the Court that the material
is properly designation as “CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY
MATERIAL” and request in writing that materials be placed under seal. A copy of this Order
shall be attached to any such written request and a copy of the written request must be served by
facsimile, email, and/or hand-delivery upon the party who had filed the materials with the Court.

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Upon receipt of such a request, the Clerk shall take all steps necessary to maintain the materials
under seal pursuant to this Order.
16.

In the event that any “CONFIDENTIAL MATERIAL” or “ATTORNEYS

ONLY MATERIAL” is used in any court proceeding in connection with this litigation, it shall
not lose its “CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL” status
through such use, and the parties shall take all steps reasonably required to protect its
confidentiality during such use.
17.

Nothing in this Order shall preclude any party to the lawsuit, their

attorneys or any other person from disclosing or using, in any manner or for any purpose, any
information or documents not obtained in discovery in this lawsuit, if such information is
lawfully obtained from a third party having the right to disclose such information, even though
the same information or documents may have been produced in discovery in this lawsuit and
designated as “CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL.”
18.

Nothing in this Order shall preclude any party to the lawsuit or their

attorneys (a) from showing a document designated as “CONFIDENTIAL MATERIAL” or
“ATTORNEYS ONLY MATERIAL” to an individual who either prepared or reviewed the
document prior to the filing of this action, or (b) from disclosing or using, in any manner or for
any purpose, any information or documents from the party's own files which the party itself has
designated as “CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL.”
19.

The parties hereby agree that treatment of any information as

“CONFIDENTIAL MATERIAL” or “ATTORNEYS ONLY MATERIAL” for the purposes of
this Order shall not constitute any admission or evidence in this litigation that such information

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constitutes contractually, statutorily, or otherwise protected confidential business, trade secret, or
proprietary information.
20.

Within sixty (60) days of the termination of litigation between the parties,

all “CONFIDENTIAL MATERIAL,” all “ATTORNEYS ONLY MATERIAL,” and all copies
thereof shall be returned to the party which produced it.
21.

To the extent documentary or deposition discovery is sought by any party

to this litigation from any non-party to this action, the non-party that is the subject of such
discovery may, by written notice to the parties prior to the time such discovery responses become
due or prior to the date of deposition, avail himself, herself or itself of the protections of this
Order, and make any production of documents or give any deposition testimony subject to the
provisions and restrictions contained herein. A copy of this protective order shall be enclosed
with any discovery request or subpoena made of or served on a non-party.
22.

Except as specifically provided herein, the terms, conditions, and

limitations of this Order shall survive the termination of this action.
23.

This Stipulated Protective Order is without prejudice to the right of any

party or non-party to seek relief from the Court, upon good cause shown, from any of the
provisions contained in paragraph 1 through 23, inclusive hereof.

IT IS SO ORDERED.

/s/ Terence P. Kemp
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT
The undersigned hereby acknowledges that he/she has read the Stipulated Protective Order
which was entered by the Court on _______________________________________ in the
above-captioned cases, that he/she is one of the persons contemplated in paragraphs 3 or 4
thereof as authorized to receive disclosure of information designated “CONFIDENTIAL
MATERIAL” OR “ATTORNEYS ONLY MATERIAL,” respectively, by either of the parties or
by non-parties, and that he/she fully understands and agrees to abide by the obligations and
conditions of the Protective Order.

______________________________________
(Signature)

______________________________________
(Title or Position)
Dated: ____________________________

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6/08/2012 13972945