Reynolds v. Smith et al
Filing
49
PROTECTIVE ORDER in re: confidential information. Signed by Magistrate Judge Mark R. Abel on 10/15/12. (sh1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DOROTHEA REYNOLDS,
Plaintiff,
v.
Case Number: 2:11CV277
JUDGE ALGENON L. MARBLEY
ROBERT W. SMITH, et al.,
MAGISTRATE MARK R. ABEL
Defendants.
STIPULATED PROTECTIVE ORDER FOR THE PROTECTION
OF CONFIDENTIAL INFORMATION
Undersigned counsel, on behalf of their respective parties move the Court to enter into
the following protective order (“Stipulated Order”). The Order is made pursuant to Rule 26(c) of
the Federal Rules of Civil Procedure to limit the disclosure of discovered information, for the
protection of third parties and to preserve confidentiality of certain matters. The parties agree to
be bound by the restrictions of this Order limiting the use of such information as hereinafter
provided from the date that each party signs this order.
Each party signing this Stipulated Order and anyone else who may subscribe to this
Stipulated Order agrees as follows:
INFORMATION SUBJECT TO THIS ORDER
1. It is anticipated that some information: (a) conveyed by or contained in a document
produced, or; (b) stated in answer to an interrogatory or request for admission, or; (c) disclosed
in an oral deposition by a party or a non-party during the course of discovery in this proceeding,
or; (d) disclosed pursuant to a voluntary agreement among counsel, may include protected
information regarding correction officers as prohibited under R.C. § 149.43, or may constitute a
security risk, or may include other personal, sensitive information to which the public would not
ordinarily have access, including but not limited to, personnel files, disciplinary files, names of
individuals who are not a party to this action that may be protected from disclosure under Fed. R.
Civ. P. 26(c), or any other statute or regulation restricting disclosure, when justice so requires.
The word “document” means all documents and things subject to copying and inspection under
Rule 34 of the Federal Rules of Civil Procedure.
2. Any party or non-party that produces information as to which it then has a reasonable
good faith basis in law and fact to believe is of the type described in Paragraph 1, at the time of
production, shall designate such information “confidential.”
Information so designated
(hereinafter “confidential information”) shall thereafter be subject to the provisions of this
Stipulated Order. Such records will be for counsel for parties’ eyes only, to include any experts
retained by any party or any staff working for any counsel of any party, upon execution of the
attached release, marked as Exhibit A.
3. Confidential information, as described in this section, shall, if in writing, be stamped
on the face of the writing, or shall otherwise be clearly marked “confidential” or “confidential
material.” The stamp shall be affixed in such a manner that the written material is not obliterated
or obscured.
4. Parties may designate as confidential, information which is referenced at any
deposition or portion thereof by making such designation on the record at the time of the
deposition. If no confidential designation is made during a deposition, the contents shall be
treated as confidential under this Stipulated Protective Order until 15 days after receipt of the
transcript or 20 days after the court reporter mails copies of the transcripts, whichever is longer.
Within that period, any party wishing to designate all or any portion of the deposition transcript
as confidential shall make the appropriate designation in writing and then serve that designation
by mail upon the court reporter and counsel for all parties. However, if no party orders a copy of
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the transcript at the time of the deposition or within 5 business days of the deposition, the
contents of the deposition shall only be treated as confidential information for 5 business days.
5. The designation of any material as “confidential” or “confidential material” will also
render confidential any copies, excerpts, summaries, disclosures, or other documents containing
the substance or content of such material.
In the event of an inadvertent disclosure of confidential information without proper
designation, the producing party shall inform the receiving party of the error. Inadvertent failure
to designate any information pursuant to this Protective Order shall not constitute a waiver of
any otherwise valid claim for protection, so long as such claim is asserted within thirty (30) days
of the discovery of the inadvertent failure. The producing party shall provide within three (3)
business days a properly designated set of such confidential information to the receiving party,
which shall destroy copies of the improperly designated documents and certify such destruction
to the producing party.
PERSONS AUTHORIZED TO RECEIVE “CONFIDENTIAL” INFORMATION
6. Confidential information protected by this Stipulated Order may be disclosed only to:
a.
Counsel of record;
b.
Members of the legal, paralegal, secretarial, and clerical staff of such
counsel who are engaged in the preparation for and trial of this action;
c.
The court in which this action is pending and persons associated with it;
d.
Expert consultants;
e.
Defendants in the presence of their counsel;
f.
A deponent and his or her attorney, but only during the course of his or her
deposition;
g.
A court reporter, and;
h.
Plaintiff is specifically excluded from the pre-trial viewing or obtaining,
either directly or indirectly, any of the information contained in
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Defendants’ personnel files, disciplinary files, etc. Information obtained
during a trial in this matter will be governed as set forth in Paragraph 19.
7. If counsel for any party intends to disclose confidential information to any person
described in Paragraph 7(d), counsel for that party shall require, prior to disclosure, that such
person first read this Stipulated Order, agree to be bound by its terms and submit to the authority
of this Court for enforcement of this Stipulated Order, and execute the Agreement attached
hereto as Exhibit A. The signed Agreement shall be maintained by counsel until the conclusion
of this action.
LIMITATIONS ON THE USE OF “CONFIDENTIAL” INFORMATION
8. While protected by this Stipulated Order, any information designated “confidential”
or “confidential material” pursuant to Paragraphs 1-6 of this Stipulated Order shall be held in
confidence by each person to whom it is disclosed, shall be used by the person who receives such
information only for the purposes of this proceeding, and shall not be used by the recipient of the
information for the purposes of any other proceeding.
9. Unless otherwise agreed in advance in writing by counsel for the parties, in the event
any party to this action files with the Court any pleading, motion, exhibit, or other paper that
appends, attaches, or discloses any confidential information, counsel will file a motion in
accordance Rule 79.3 of the Southern District of Ohio Civil Rules. Confidential information
shall be filed under seal and bear the following legend:
THIS DOCUMENT IS FILED UNDER SEAL AND IS SUBJECT TO
AN ORDER REGARDING CONFIDENTIAL INFORMATION
ENTERED BY THE COURT IN THIS ACTION.
10. Within thirty (30) days following a final determination of this litigation, every person
or party to whom confidential information has been furnished or produced shall destroy all
copies, and provide the producing party with counsel’s certification of that destruction. This
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paragraph includes deposition exhibits, but not attorney notes. This paragraph does not require
any party to return or destroy any information which was filed with the Court.
11. This Stipulated Order is entered solely for the purpose of protecting the
confidentiality of information and facilitating the exchange of documents and information
between the parties to this proceeding, and may be amended as need may arise by the mutual
consent and agreement of counsel, subject to the ultimate approval of the Court, as provided
below.
12. This Stipulated Order shall be without prejudice to the right of any party or non-party
to move for a separate protective or other discovery order as to any such particular document or
information, to seek exemptions or restrictions differing from those specified herein, or to
challenge the status of any information as being protected by Fed. Civ. R. 26(c), regardless of its
designation as confidential information by a producing party.
13. After the termination of this proceeding, this Protective Order shall continue to be
binding upon the parties hereto, and upon all persons to whom confidential information has been
disclosed or communicated, and the Court shall retain jurisdiction for enforcement of its
provisions.
MODIFICATION AND DISPUTE RESOLUTION
14. If any party disputes the designation of any document as “confidential,” that party
shall notify the producing party of the objections in writing. The designating party of the
materials shall, within five (5) business days of receipt of such notice, review the designated
material sought to be reclassified, and notify the objecting party in writing whether or not it will
agree to the reclassification requested. Counsel shall attempt to resolve the dispute extrajudicially in good faith.
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15. If counsel for the parties are unable to resolve a dispute extra-judicially, then the
procedures set forth in Fed. R. Civ. P. 26(c) shall be followed by the party asserting
confidentiality.
16. If another court or a government entity or agency, or any other person or entity,
subpoenas or orders production of any of the documents or information that a party has obtained
under the terms of this Stipulated Protective Order, such party shall promptly provide written
notice to the party or other person who produced the documents or information, and counsel for
the other parties to this action of the pendency of such subpoenas or order as soon as reasonably
possible, and, in any event, before the return date of the subpoena or order. If written notice
cannot be provided at least fourteen (14) days before the time for production or other disclosure,
the party receiving the subpoena or order shall immediately, in addition to the written notice,
give notice by telephone to the party or person who produced the documents or information. In
no event shall production or disclosure be made before notice is given. The purpose of this
paragraph is to provide the party or person who produced the documents or information the
opportunity to intervene at its own expense to object to the production of documents or
information. This Protective Order shall not alter a party’s or person’s obligations to comply
with subpoenas or orders of production to produce the documents or information made by a
government entity or agency, or any other person or entity.
17. Notwithstanding anything above to the contrary, this Stipulated Protective Order does
not govern the procedures for the use of the documents or information to which this Stipulated
Protective Order applies at any trial of this matter. Rather, in the event of any trial of this matter,
the parties will work to enter into an agreement as to the use of the documents or information to
which this Stipulated Protective Order applies at any such trial, subject to the instructions of the
Court.
This Protective Order is subject to modification by the Court.
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IT IS SO ORDERED.
s/Mark R. Abel
Magistrate Judge Mark Abel
Approved by and agreed to:
MICHAEL DEWINE
Ohio Attorney General
/s/ David B. Malik as authorized per 10/10/12
e-mail on behalf of all Plaintiff’s counsel
DAVID B. MALIK (0023763)
Dbm50@sbcglobal.net
8437 Mayfield Road, Suite 101
Chesterland, OH 44026
Phone: (440) 729-8260
Fax: (440) 729-8262
/s/Debra Gorrell Wehrle
DEBRA GORRELL WEHRLE (0062747)
Debra.Wehrle@OhioAttorneyGeneral.gov
Assistant Attorney General
Criminal Justice Section
150 East Gay St., 16th Floor
Columbus, Ohio 43215
Phone: (614)644-7233
Fax: (866)429-9043
DENNIS J. NIERMANN (0007988)
dennis@niermannlaw.com
8437 Mayfield Road, Suite 101
Chesterland, OH 44026
Phone: (216) 375-2696
Fax: (440)729-8262
Trial Counsel for Defendants
NADER NABIL MALEK (0067380)
nnmlaw@aol.com
29025 Bolingbrook Road
Cleveland, OH 44124
Chesterland, OH 44026
Phone: (216) 443-0450
Fax: (216)292-2909
Trial Counsel for Plaintiff
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EXHIBIT A
County of ______
State of Ohio
:
:
:
ss
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________________, the undersigned, acknowledge that I
have received a copy of the “Stipulated Protective Order for the Protection of Confidential
Information” entered in this action, which is attached hereto as Exhibit 1, have read the
Stipulated Order, and agree to be bound by all of the provisions in it. I recognize that during my
participation in this case, I may have occasion to read or hear matters which are designated as
“confidential information.” I agree not to disclose any such confidential information to any
person not entitled to receive disclosure of same under the provisions of the Stipulated Order,
and to use any such confidential information solely in connection with my participation in this
case. I also agree to return to counsel for the party that produces, in accordance with the
Stipulated Order, any such confidential materials as soon as my participation in this case is
concluded.
______________________________
Signature
SUBSCRIBED TO AND SWORN BEFORE ME THIS ____ DAY OF _____________, 2012.
______________________________
Notary Public
My commission expires: ___________
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CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of October, 2012, a copy of the foregoing was filed
electronically. Notice of this filing will be sent to all parties by the operation of the Court’s
electronic filing system. Parties may access this filing through the Court’s system.
/s/ Debra Gorrell Wehrle
DEBRA GORRELL WEHRLE (0062747)
Assistant Attorney General
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