Casale v. Nationwide Children's Hospital

Filing 24

STIPULATED PROTECTIVE ORDER: in re: Confidential Information. Signed by Magistrate Judge Mark R. Abel on 10/11/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTHONY J. CASALE,
Plaintiff,
v.
NATIONWIDE CHILDREN’S
HOSPITAL,

:
:
:
:
:
:
:
:
:

Case No. 2:11-CV-1124
Judge Watson
Magistrate Judge Abel

Defendant.
:
STIPULATED PROTECTIVE ORDER
Defendant Nationwide Children’s Hospital, (“Defendant”) and Plaintiff Anthony J.
Casale (“Plaintiff”) have asked the Court to enter a protective order in the above-captioned case
to facilitate the exchange of discovery materials among the parties, to protect confidential
business or proprietary information. The Court, having considered the motion and for good
cause, hereby enters the following protective order pursuant to the Court’s authority under
Fed.R.Civ.P. 26(c):
IT IS HEREBY ORDERED that “Confidential Information”, as defined herein, produced
by the parties is hereby subject to the terms of this Order and is produced pursuant to and
because of this Order.
IT IS HEREBY FURTHER ORDERED:
A.

Definition of Confidential Information
1.

“Confidential Information,” as used in this Order means any confidential,

sensitive or proprietary information produced or provided during the course of this action which
is stamped by the party producing the material with the notation “Confidential” or “Confidential
– Attorneys’ Eyes Only” to signify that it contains documents, information or testimony believed

to be Confidential Information pursuant to paragraph B hereof. For purposes of this Agreement
and Order, the term “document” shall have the meaning as defined in Federal Rule of Civil
Procedure 34(a).
B.

Procedure for Designating Material as Confidential Information
1.

A party producing “Confidential Information” shall designate the material as

confidential by stamping or otherwise marking the notation “Confidential” or “Confidential –
Attorneys’ Eyes Only” on the first page of such designated document or by other means that
notifies the parties that the information is subject to this Protective Order. In lieu of marking
originals, the producing party may mark copies of the documents that are produced or
exchanged. With respect to electronic data or information, the designating party may designate
such material as confidential by marking the notation “Confidential” or “Confidential –
Attorneys’ Eyes Only” on a label affixed to the disk, tape, or other medium on which the
information is stored or by other means that notifies the parties that the information is subject to
this Protective Order.
2.

All depositions, including any document marked as an exhibit or otherwise

appended to the deposition, shall be treated as confidential under the terms of this Protective
Order if designated at any time during a deposition or within ten (10) days after receipt of a
deposition transcript. During that ten (10) day period, all transcripts and the information
contained in them will be deemed to be confidential in their entirety under the terms of this
Protective Order. Where practical, the party making such a designation will indicate the pages or
sections of the transcript that are to be treated as confidential. All copies of deposition
transcripts that contain Confidential Information shall be prominently marked “Confidential” or

2

“Confidential – Attorneys’ Eyes Only” on the cover and, if filed with any court, be filed under
seal.
3.

All Confidential Information in any affidavits, briefs, memoranda, or other papers

filed with any court shall be designated as “Confidential” or “Confidential – Attorneys’ Eyes
Only” and filed under seal.
4.

A party may designate as Confidential Information any documents, information or

testimony produced or furnished in this matter by it or a non-party who came into possession of
such information under circumstances in which the confidentiality was not waived as a matter of
law, including, but not limited to, attorneys, experts, accountants, consultants, health care
providers, appraisers, agents and employees, by informing opposing counsel in writing of such
designation within twenty (20) business days of receipt of the document, information or
testimony.
5.

Inadvertent production of any document or information without a designation of

“Confidential” will not be deemed to waive a party’s claim to its confidential nature or estop that
party from designating the document or information as “Confidential” at a later date through a
supplemental written notification. Upon receipt of such a supplemental written notice, counsel
for the Receiving Party shall undertake to recover from any person to whom such Confidential
Information was disclosed all copies and abstracts of the Confidential Information that is the
subject of the supplemental written notice and shall instruct all persons who viewed the material
as to the appropriate treatment thereof. Disclosure of the document or information by the other
party prior to such later designation shall not be deemed a violation of the provisions of this
Order.

3

C.

Qualified Persons with Access to Confidential Information
The designation of documents, information or testimony as Confidential Information

shall mean that such shall be used only for the litigation, trial and/or settlement of this action and
shall not be disclosed or transmitted, verbatim or in substance, to anyone except the following:
1.

The attorneys of record in this action and their associated attorneys, legal

assistants, and staff members working on the action to the extent reasonably necessary to render
professional services in the action;
2.

The named parties to this litigation, their agents, and witnesses provided that they

first agree to be bound by this Order;
3.

Independent consultants and/or experts retained by the parties or counsel to work

on the action who agree to abide by this Order, provided that before making disclosure of
Confidential Information to outside experts or consultants, the party must obtain an agreement in
writing from such person reciting that he or she has read a copy of this Protective Order and
agrees to be bound by its provisions including, without limitation, that he or she will not use the
Confidential Information for any purpose other than this litigation and will return all
Confidential Information that has been provided to him or her at the conclusion of the litigation
(including any appeals);
4.

Such persons as the undersigned counsel shall mutually consent to in writing or

on the record prior to the proposed disclosure
5.

Stenographic reporters engaged for depositions or other proceedings necessary to

the conduct of the action;
6.

The Court and Court personnel.

4

D.

Restrictions on the Use and Disclosure of Confidential Information

1.

Persons obtaining access to items designated as “Confidential” shall use the

information solely for the litigation, trial and/or settlement of this action.
2.

Confidential Information shall not be shown to (except in connection with an

interview conducted by or under the supervision of counsel) and copies shall not be provided to
non-party witnesses.
3.

In the event that any Confidential Information is filed, included in, or referred to

in any paper filed with the Court, counsel responsible for such filing shall notify the Clerk of the
Court in accordance with the Court’s procedures at the time of filing that such paper contains
Confidential Information protected by this Order, and shall notify the other parties of the
confidential nature of the filing. The Clerk of the Court shall keep such Confidential Information
under seal until further order of the Court; provided, however, that access to such Confidential
Information filed with the Court shall be afforded to the Court and to counsel for the undersigned
parties.
4.

If, at the time of trial or in connection with any pretrial or settlement hearing,

counsel for a party intends to introduce any material made subject to this Order, he or she shall
so inform the Court and opposing counsel as far in advance as possible, and the Court may take
such steps, at the request of the opposing counsel or on its own initiative, as it deems necessary
to preserve the confidentiality of such material subject to this Order.
5.

Neither the parties nor their counsel of record shall discuss or disclose the

contents of any Confidential Information with any other person, except between themselves for
purposes of this action and as otherwise permitted in this Order.

5

E.

Confidential – Attorneys’ Eyes Only
Information designated as “Confidential – Attorneys’ Eyes Only” shall be disclosed only to

counsel of record for the parties, in-house counsel for the parties, paralegal assistants, and
clerical employees working directly on the Action under the supervision of such attorneys.
“Confidential Attorney’s Eyes Only” information may also be disclosed to the Court or to a court
reporting service under seal, as provided in Paragraph D.3. Absent consent of the disclosing
party, before “Confidential – Attorneys’ Eyes Only” information can be disclosed to any other
person (such as parties, witnesses, deponents, or experts), the party seeking to disclose such
information must apply for an appropriate ruling from the Court. Such application, any response
from a party opposing the request, and the Court’s ruling on the request shall be under seal.
F.

No Admission or Waiver
The inadvertent or unintentional disclosure of any Confidential Information by the

designating party shall not be construed to be a waiver, in whole or in part, of that party’s claim
of confidentiality either as to the specific Confidential Information disclosed or as to any other
related information. If a party produces multiple identical copies of a document (but with
different bates numbers) and one has not been designated as confidential, all identical copies
shall be treated according to the most restrictive designation. Similarly, the inadvertent or
unintentional disclosure of any documents, information or testimony protected by the attorneyclient privilege and/or work product doctrine shall not be construed to be a waiver, in whole or in
part, of that party’s claim to privilege; nor shall any discreet waiver of privilege constitute a
general waiver of privilege or protection. Any documents or information inadvertently produced

6

and all copies and records thereof shall be immediately returned to the producing or providing
party.

G.

Jurisdiction and Return of Documents
1.

This Order shall survive the final termination of this case, and the Court shall

retain jurisdiction to resolve any dispute concerning the use of information disclosed hereunder.
2.

Within ten (10) business days after the conclusion of this action, by settlement or

adjudication, including any appellate proceedings, the Confidential Information (and all copies,
transcriptions, or reproductions in any form whatsoever) produced or provided by the parties
shall be returned to the producing party or destroyed at the election of the producing party.
Nothing in this paragraph shall preclude counsel for either party from maintaining copies of
work product materials which in the good faith judgment of counsel must be maintained for
purposes of defending against potential malpractice claims. If counsel for either party has a good
faith belief that work product abstracts or summaries of Confidential Information must be
maintained for the defense of potential malpractice claims, counsel shall serve opposing counsel
with a written request to maintain copies of such information until the end of the applicable
statutes of limitations periods for professional malpractice claims.
H.

Dispute as to Confidential Information Designation
1.

If any party believes that a document, testimony or other information that has

been designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” is not entitled to be
treated as such, the party will notify the designating party of its disagreement with the
confidential designation. Counsel for the parties shall meet and confer in an attempt to reach an
agreement regarding the confidential status of the document, testimony or information within ten

7

(10) business days after the opposing party has advised the producing party of its disagreement
with the confidential designation. If the matter is not resolved by the parties themselves, the
party claiming the confidential status of documents, information or testimony shall bring the
dispute before the Court for a determination and have the burden of proof.
2.

Except as expressly provided herein, nothing in this Agreement and Order is

intended to limit or have the effect of limiting either party’s right to make use of or object to the
use of such information for any purposes or uses permitted under the Federal Rules of Civil
Procedure, or the Federal Rules of Evidence, at any time during the pretrial preparation or trial of
this lawsuit or any time up to and including the entry of judgment and conclusion of any appeals
taken therefrom. Accordingly, subject to the Federal Rules of Evidence, materials protected by
this Order may be offered in evidence at trial or at any court hearing subject to such protective
measures as may be provided by this Order or directed by this Court. Nothing in this Order shall
prevent either party from seeking amendments broadening or restricting the rights of access to or
the use of Confidential Information or otherwise modifying this Order; and this Order may be
amended without leave of the Court by the agreement of the undersigned attorneys for the parties
in the form of a stipulation that shall be filed in this case.
3.

The provisions of this Order shall apply from the date this Order is signed to any

and all documents produced in this action and to any and all information produced or disclosed,
whether produced or disclosed before or after the execution of this Order.
4.

The provisions of this Order shall survive and remain in full force and effect after

the entry of final judgment, including any appellate proceedings in this case, whether by
settlement or adjudication.

8

I.

Inadvertent Failure to Withhold Privileged Material.

A Party who produces or discloses any Privileged Material without intending to waive
the claim of privilege associated with such Privileged Material may, within ten (10) days after
the producing party actually discovers that such inadvertent production or disclosure occurred,
amend its discovery response and notify the other party that such Privileged Material was
inadvertently produced and should have been withheld as privileged. Once the producing party
provides such notice to the requesting party, the requesting party shall: (a) promptly return the
specified Privileged Material and any copies thereof; (b) retrieve from any third parties to which
the requesting party has disclosed such Privileged Material such material and any copies thereof,
and any notes or any other documents or ESI such third party created that reflect the contents of
the Privileged Material; (c) destroy, and certify such destruction to the producing party, of any
notes or any other documents or ESI it or third parties created that reflect the contents of the
Privileged Material; and (d) refrain from disclosing the substance of such Privileged Material to
any third-party. By complying with these obligations, the requesting party does not waive any
right to challenge the assertion of privilege and to request an order of the Court denying such
privilege and compelling production of such Privileged Material. In the event of a challenge by
the requesting party to the assertion of privilege with respect such inadvertently produced
document or ESI, the party asserting the privilege shall submit such document or ESI to the
Court for in camera inspection. The burden will remain with the party asserting the privilege to
demonstrate the privileged nature of the document or ESI. Upon compliance with this paragraph
by the producing Party, inadvertent disclosure of Privileged Material shall not be deemed a
waiver with respect to the particular item of Privileged Material, or other documents and ESI

9

involving similar subject matter. Nothing in this Order is intended to alter any professional
conduct or ethics requirements with respect to inadvertently produced information.
IT IS SO ORDERED.
s/Mark R. Abel
Magistrate Judge Abel

AGREED AND SUBMITTED BY:

s/Richard Evans_(w/email auth. by DJC)
Ann Oldfather (KY Bar No. 52553)
Richard Evans (KY Bar No. 86908
Sheldon Haden (KY Bar No. 88876)
Oldfather Law Firm
1330 South Third St.
Louisville, KY 40208
[phone]
David I. Shroyer (0024099)
536 South High Street
Columbus, Ohio 43215
[phone]
Attorneys for Plaintiff
s/Daniel J. Clark_______________
Jonathan R. Vaughn (0022897)
Douglas R. Matthews (0039431)
Daniel J. Clark (0075125)
Vorys, Sater, Seymour and Pease LLP
52 East Gay Street
P.O. Box 1008
Columbus, OH 43216-1008
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant

10
10/03/2012 14807765