Kilgore v. Petsmart, Inc.

Filing 10

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Elizabeth Preston Deavers on 10/9/2013. (sln1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CONNIE KILGORE,
Plaintiff,

CASE NO.: 2: 13-CV-00508

)
)
)

JUDGE JAMES L. GRAHAM

)

v.

PETSMART, INC.
Defendant.

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)
)
)
)

MAGISTRATE JUDGE ELIZABETH
PRESTON DEAVERS
STWULATEDPROTEC~

ORDER

The parties to this Stipulated Protective Order have agreed to the terms of this Order;
accordingly, it is ORDERED:
1.

Scope. All documents produced in the course of discovery, including initial

disclosures, all responses to discovery requests, all deposition testimony and exhibits, other
materials that may be subject to restrictions on disclosure for good cause and information
derived directly therefrom (hereinafter collectively "documents"), shall be subject to this Order
concerning confidential information as set forth below. As there is a presumption in favor of
open and public judicial proceedings in the federal courts, this Order shall be strictly
construed in favor of public disclosure and open proceedings wherever possible. The Order is
also subject to the Local Rules of this District and the Federal Rules of Civil Procedure on
matters of procedure and calculation of time periods.
2.

Form and Timing of Designation. A party may designate documents as

confidential and restricted in disclosure under this Order by placing or affixing the words
"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" on the document in a manner that
will not interfere with the legibility of the document and that will permit complete removal of the
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER designation. Documents shall be

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designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER prior to or at the time of
the production or disclosure of the documents. The designation "CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER" does not mean that the document has any status or protection by
statute or otherwise except to the extent and for the purposes of this Order.
3.

Documents That May be Designated CONFIDENTIAL - SUBJECT TO

PROTECTIVE ORDER. Any party may designate documents as CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER upon making a good faith determination that the
documents contain information protected from disclosure by statute or that should be protected
from disclosure as confidential personal information, medical or psychiatric information, trade
secrets, personnel records, or such other sensitive commercial information that is not publicly
available. Public records and other information or documents that are publicly available may not
be designated as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.
4.

Depositions. Deposition testimony shall be deemed CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER only if designated as such. Such designation shall be
specific as to the portions of the transcript or any exhibit to be designated as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER. Thereafter, the deposition transcripts and any those
portions so designated shall be protected as CONFIDENTIAL- SUBJECT TO PROTECTIVE
ORDER, pending objection, under the terms of this Order.
5.

Protection of Confidential Material.
(a)

General Protections. Documents designated CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER under this Order shall not be used or disclosed
by the parties, counsel for the parties or any other persons identified in

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5(b) for any

purpose whatsoever other than to prepare for and to conduct discovery and trial in this
action, including any appeal thereof.
(b)

Limited Third-Party Disclosures. The parties and counsel for the parties

shall not disclose or permit the disclosure of any CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER documents to any third person or entity except as set forth in
subparagraphs (1)-(5).

Subject to these requirements, the following categories of

persons may be allowed to review documents that have been designated
CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER:
(1)

CounseL

Counsel for the parties and employees and agents of

counsel who have responsibility for the preparation and trial of the action;
(2)

Parties. Parties and employees of a party to this Order. 1

(3)

Court Reporters and Recorders.

Court reporters and recorders

engaged for depositions;
(4)

Consultants,

Investigators

and

Experts.

Consultants,

investigators, or experts (hereinafter referred to collectively as "experts")
employed by the parties or counsel for the parties to assist in the preparation and
trial of this action or proceeding, but only after such persons have completed the
certification contained in Attachment A, Acknowledgment of Understanding
and Agreement to Be Bound; and

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NOTE: If the CONFIDENTIAL- SUBJECT TO PROTECTNE ORDER documents contain highly-sensitive trade
secrets or other highly-sensitive competitive or confidential information and disclosure to another party would result in
demonstrable harm to the disclosing party, then the parties may stipulate or move for the establishment of an
additional category of protection that prohibits disclosure of such documents or information to category (2) or that
limits disclosure only to specifically designated in-house counsel or party representative(s) whose assistance is reasonably
necessary to the conduct of the litigation and who agree to be bound by the terms of the order.

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(5)

Others by Consent. Other persons only by written consent of the

producing party or upon order of the Court and on such conditions as may be
agreed or ordered. All such persons shall execute the certification contained in
Attachment A, Acknowledgment of Understanding and Agreement to Be Bound.
(c)

Control of Documents. Counsel for the parties shall take reasonable and

appropriate measures to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL pursuant to the terms of this Order.

Counsel shall maintain the

originals of the forms signed by persons acknowledging their obligations under this Order
for a period of one year after dismissal of the action, the entry of fmal judgment and/or
the conclusion of any appeals arising therefrom.
(d)

Copies. Prior to production to another party, all copies, electronic images,

duplicates, extracts, summaries or descriptions (hereinafter referred to collectively as
"copies")

of documents

designated

as

CONFIDENTIAL

SUBJECT

TO

PROTECTIVE ORDER under this Order, or any individual portion of such a
document, shall be affixed with the designation "CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER" if the word does not already appear on the copy. All such
copies shall thereafter be entitled to the protection of this Order. The term "copies"
shall not include indices, electronic databases or lists of documents provided these
indices, electronic databases or lists do not contain substantial portions or images of the
text of confidential documents or otherwise disclose the substance of the confidential
information contained in those documents.

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(e)
information

Inadvertent Production. Inadvertent production of any document or
without

a

designation

of "CONFIDENTIAL

-

SUBJECT

TO

PROTECTIVE ORDER" shall be governed by Fed. R. Evid. 502.
6.

Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL

- SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party or nonparty with standing to object (hereafter "party"). Before filing any motions or objections to a
confidentiality designation with the Court, the objecting party shall have an obligation to meet
and confer in a good faith effort to resolve the objection by agreement. If agreement is reached
confirming or waiving the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
designation as to any documents subject to the objection, the designating party shall serve on all
parties a notice specifying the documents and the nature of the agreement.
7.
Confidential.

Action by the Court regarding Challenges by a Party to a Designation as
Applications to the Court for an order relating to any documents designated

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER shall be by motion and any other
procedures set forth in the presiding judge's standing orders or other relevant orders. Nothing in
this Order or any action or agreement of a party under this Order limits the Court's power to
make any orders that may be appropriate with respect to the use and disclosure of any documents
produced or use in discovery, dispositive motions or at trial.
8.

Filing of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER

Documents under Seal.

Absent order of the Court, there will be no restrictions on the use of

any CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER document that may be filed
with the Court. If a party intends to file any CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER documents or information derived therefrom, with a dispositive motion, opposition to a

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dispositive motion or any other public filing, such party shall provide advance notice to the other
party at least five days before the filing by identifying the documents or information at issue as
specifically as possible (i.e., by Bates number, page range, deposition transcript lines, etc.). If
the other party objects to such filing of CONFIDENTIAL -SUBJECT TO PROTECTIVE
ORDER documents or information, it must file a motion with the Court seeking approval to file
such documents under seal. The Court may thereafter make such orders as are necessary to
govern the filing of such documents or information.
9.

Use of Confidential Documents or Information at Trial. All trials are open to

the public. Absent order of the Court, there will be no restrictions on the use of any document
that may be introduced by any party during the trial.

If a party intends to present at trial

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents or information derived
therefrom, such party shall provide advance notice to the other party at least five days before the
commencement of trial by identifying the documents or information at issue as specifically as
possible (i.e., by Bates number, page range, deposition transcript lines, etc.) without divulging
the actual CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents or information.
The Court may thereafter make such orders as are necessary to govern the use of such documents
or information at trial.
10.

Obligations on Conclusion of Litigation.

(a)

Order Remains in Effect.

Unless otherwise agreed or ordered, this

Order shall remain in force after dismissal or entry of final judgment not subject to
further appeal.
(b)

Return of CONFIDENTIAL - SUBJECT TO PROTECTIVE

ORDER Documents. Within 30 days after dismissal or entry of final judgment not

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subject to further appeal, all documents treated as CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER under this Order, including copies as defmed in ~ 5(d), shall be
returned to the producing party unless: (I) the document has been offered into
evidence or filed without restriction as to disclosure; (2) the parties agree to destruction
in lieu of return; or (3) as to documents bearing the notations, summations, or other
mental impressions of the receiving party, that party elects to destroy the documents and
certifies to the producing party that it has done so. Notwithstanding the above
requirements to return or destroy documents, counsel may retain attorney work
product, including an index which refers or relates to information designated
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER, so long as that work
product does not duplicate verbatim substantial portions of the text or images of
confidential documents. This work product shall continue to be CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER under this Order. An attorney may use his or
her work product in a subsequent litigation provided that its use does not disclose or
use CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents.
(c)

Return of Documents Filed under Seal. After dismissal or entry offmal

judgment not subject to further appeal, the Clerk may elect to return to counsel for the
parties or, after notice, destroy documents filed or offered at trial under seal or
otherwise restricted by the Court as to disclosure.

11.

Order Subject to Modification. This Order shall be subject to modification by

the Court on its own motion or on motion of a party or any other person with standing
concerning the subject matter. Motions to modify this Order shall be served and filed under the
presiding judge's standing orders or other relevant orders.

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12.

No Prior Judicial Determination.

This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any documents or
information designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER by counsel
or the parties is subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or
otherwise until such time as the Court may rule on a specific document or issue.

13.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel and their law firms, the parties, and persons made subject to this Order by its
terms.

IT IS SO ORDERED.

0 tnflfz ~I )op
DATE

WE SO STIPULATE and agree to bide
by the terms of this Order,

By s/Garv A. Reeve
Gary A. Reeve, Esq. (#0064872)
Law Offices of Gary A. Reeve, LLC
P.O. Box 7866
Columbus, Ohio 43207
Ph: 614.808.1881
Fax: [phone]
Email: [e-mail]
Attorney for Plaintiff

By s/Ellen Toth
Ellen Toth, Esq. (#0056176)
Josephine S. Noble, Esq. (#0078410)
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
127 Public Square
4130 Key Tower
Cleveland, Ohio 44114
Ph: 216.241.6100
Fax: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendant
PetSmart, Inc.

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ATTACHMENT A
UNITED STATES DISTRICT COURT
SOUTERN DISTRICT OF OHIO
CONNIE KILGORE,
Plaintiff,

)
)
)

CASE NO.: 2:13-CV-00508
JUDGE JAMES L. GRAHAM

)

v.
PETSMART, INC.,
Defendant.

)
)
)
)
)

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
in the above-captioned action and attached hereto,
understands the terms thereof, and agrees to be bound by its terms. The undersigned submits to
the jurisdiction of the United States District Court for the Southern District of Ohio in matters
relating to the Protective Order and understands that the terms of the Protective Order obligate
him/her to use documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER in accordance with the Order solely for the purposes of the above-captioned action,
and not to disclose any such documents or information derived directly therefrom to any other
person, ftrm or concern.

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The undersigned acknowledges that violation of the Protective Order may result in penalties
for contempt of court.
Name:
Job Title:
Employer:
Business Address:

Date

Signature

15967228.1

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