Harris v. Exel, Inc.

Filing 30

STIPULATION AND PROTECTIVE ORDER. Signed by Magistrate Judge Terence P. Kemp on 11/30/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

KELVIN W. HARRIS, on behalf of himself
and all others similarly situated,
CASE NO. 2:14-cv-1231
Plaintiff,
v.

JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE TERENCE P.
KEMP

EXEL, INC.
Defendant.

STIPULATION AND PROTECTIVE ORDER

Plaintiffs and Defendants (collectively the “Parties”) having agreed that it would serve
their interests to conduct certain discovery in this proceeding under a voluntary agreement, and
having further agreed to be bound by the terms of this Agreement,
IT IS STIPULATED AND AGREED THAT:
1.

This Order specifically governs the production, use, and handling of confidential

and/or proprietary information that is produced, exchanged by, to, or with any person involved in
this lawsuit. This Order and the term “Producing Party” extends to all Parties as well as any
non-parties who produce records or deposition testimony in this case in response to a subpoena
issued by a Party as long as the non-party signs a copy of the “Attachment A” attached hereto.
Other than as expressly provided in this Order, this provision does not entitle any non-parties to
receipt of any discovery materials exchanged between the Parties.
2.

As used below, the term “Confidential Materials” may include information,

documents and things subject to discovery in this action, including testimony adduced at any

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deposition upon oral examination or upon written questions, answers to interrogatories,
documents produced, information obtained from inspection of premises or things and responses
to requests for admission, whether such information, documents and things are in the possession,
custody or control of one of a Producing Party.
3.

Based on a good faith determination by counsel that any information, documents

or things may be entitled to protection under Fed. R. Civ. P. 26(c)(1)(g) (involving “a trade
secret or other confidential research, development, or commercial information”) the Producing
Party shall either: (1) label or mark any information, documents and things that it deems to be
Confidential Materials with the legend “CONFIDENTIAL” at the time of production or copying;
or (2) expressly identify to the opposing party a document or thing by bates stamp number as
“CONFIDENTIAL.” Where large numbers of documents are produced for inspection by the
producing party, the producing party may produce them for inspection with a written statement
that the information contained in the documents may include confidential material and then
specifically label or mark or identify “CONFIDENTIAL” only those documents of which the
opposing party requests a copy.
4.

Deposition testimony shall be deemed CONFIDENTIAL only if so designated.

Any designation shall be specific as to the portions of the transcript or any exhibit to be
designated.

Thereafter, the deposition transcripts and any portions so designated shall be

protected as CONFIDENTIAL, pending objection, under the terms of this Order.
5.

Confidential Materials shall be used solely for the purpose of this action,

including any appeal, and not for any other purpose or in any other action, including but not
limited to use in any business or commercial enterprise.

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6.

Access to Confidential Materials shall be limited to the parties and to the

following, unless and until the Court rules that there may be further disclosure:
a.

Attorneys and employees in the following law firms: O’Toole McLaughlin

Dooley & Pecora, Co. LPA and Ice Miller, LLP;
b.

The following third-parties:
i.

non-party experts or independent consultants engaged by counsel

or the parties to assist in this action, provided that each such person is deemed by counsel to need
to learn the content of such Confidential Materials, but only after such persons have completed
the certification contained in Attachment A;
ii.

an assistant, stenographic, secretarial or clerical personnel

employed by an expert or assisting such expert in the preparation of this case for trial;
iii.

the Court and any court reporter transcribing testimony; and

iv.

any other persons with the prior written consent of the opposing

party in this case.
7.

To the extent that a brief, memorandum, or pleading attaches any documents

marked as CONFIDENTIAL, the filing party shall, consistent with Local Rule 5.2.1 seek leave
of Court to file the document(s) under seal; (2) if leave is granted, file electronically with the
Court the document(s) with all attachments that do not contain the confidential information, and
shall separately file the Confidential Materials under seal via the Court’s ECF system for filing
confidential documents. The filing party shall also mail or hand deliver the opposing party the
unredacted versions of those attachments.
8.

The acceptance of information, documents or things designated as Confidential

Materials by any party shall not constitute an admission or create a presumption that any such

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designation is appropriate. Any party challenging a confidential designation shall designate in
writing to the Producing Party those portions of the information, documents and things
challenged as improperly designated and shall confer with Producing Party’s counsel about those
objections in order to try to resolve such dispute in good faith on an informal basis. All
information, documents and things which are subject to any such challenge shall be treated as
Confidential Materials by all parties until the Court has made a judicial determination that any
such information, documents and things are not properly labeled Confidential Materials, or until
thirty (30) days before trial, whichever comes first. If such a motion is made, nothing in this
Order shall alter any burden of proof that would otherwise apply in determining whether the
information, documents or things are within the scope of Fed. R. Civ. P. 26.
9.

This Agreement shall not be construed as an agreement by either Party to produce

any document, or as a waiver by either Party of its right to object to the production of any
document or assert a claim of privilege with regard to the production of any document. Nothing
herein shall be deemed as limiting a Party’s use of its own Confidential Information and such use
shall not constitute a waiver of the terms of this Order. Any Party may remove their designation
of Confidential Information from any information it has previously so designated.

These

restrictions may be altered or supplemented only by written stipulation between the Parties filed
with and approved by the Court or by order of the Court on motion.
10.

If a Producing Party discovers after the production of discovery material that it

has inadvertently failed to designate the material as CONFIDENTIAL, it shall give written
notice to the receiving party that the material is Confidential. Within 5 (five) business days of
the notice, (i) the receiving party shall, to the extent possible, retrieve all copies of the
advertently produced discovery material from any person or persons in possession of such copies

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and return them to the Producing Party; (ii) the Producing Party will simultaneously provide
copies of the same discovery material marked with the appropriate designation; and (iii)
thereafter the Parties shall treat such copies as designated.
11.

Within thirty days after dismissal or entry of final judgment not subject to further

appeal, all documents treated as Confidential under this Order, including any copies, shall be
destroyed.
SO ORDERED.

/s/ Terence P. Kemp
United States Magistrate Judge
HAVE SEEN AND AGREED:
O’TOOLE, McLAUGHLIN, DOOLEY &
PECORA CO., LPA
s/ Matthew Dooley, per written authority
Anthony R. Pecora (0069660)
Matthew A. Dooley (0081482)
455 Detroit Road
Sheffield Village, Ohio 44054
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Counsel for Plaintiff and the Putative Class

ICE MILLER, LLP
s/Steven D. Forry
James E. Davidson (0024534)
Trial Attorney
Steven D. Forry (0075520)
250 West Street
Columbus, Ohio 43212
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
Counsel for Defendant Exel Inc.

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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

KELVIN W. HARRIS, on behalf of himself
and all others similarly situated,
CASE NO. 2:14-cv-1231
Plaintiff,
v.

JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE TERENCE P.
KEMP

EXEL, INC.
Defendant.

ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND TO STIPULATION
AND PROTECTIVE ORDER
The undersigned hereby acknowledges that he/she read the Stipulation and Protective
Order dated

in the above-captioned action and attached hereto (the “Order”),

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, Eastern
Division in matters relating to the Order and understands that he/she is obligated to all of the
protections and obligations set forth in the Order. The undersigned acknowledges that violation
of the Order may result in penalties for contempt of Court.
Name:
Job Title:
Employer:
Business:
Address

Date:

Signature:
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