Kelly et al v. Bare Escentuals Beauty, Inc. et al

Filing 22

CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER. Signed by Magistrate Judge Terence P. Kemp on 5/19/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SUSAN WELCH KELLY, et al.
Plaintiffs
v.
BARE ESCENTUALS BEAUTY, INC.,
et al.
Defendants

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CASE NO. 2:14-cv-01359
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
CONFIDENTIALITY AGREEMENT
AND PROTECTIVE ORDER

This Confidentiality Agreement and Order (“Agreement”) is made by and among the
Parties listed on Exhibit A hereto (“Parties”), and their past, present and future parents,
subsidiaries, affiliates, agents, representatives, predecessors, successors, and assigns.
WHEREAS, the Parties are litigating an action venued in the United States District
Court, Southern District of Ohio, Case No. 2:14-cv-01359, styled Susan Welch Kelly, et al. v.
Bare Escentuals Beauty, Inc., et al. (hereinafter “this Lawsuit”).
WHEREAS, in the course of this Lawsuit, a Party (hereinafter “Designating Party”) may
designate information they contend is “Confidential Material,” as defined in Paragraph 2 below;
and
WHEREAS, the Parties desire to protect this information disclosed pursuant to the terms
of this Agreement;

NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties hereto agree as follows:
1.

Material That May Be Designated As Confidential. The Designating Party may

designate as “Confidential Material,” in accordance with Paragraph 2 of this Agreement, any of
the following: (a) documents produced by any Party at any time in this Lawsuit; (b) the Party’s
interrogatory answers, responses to document requests and responses to requests for admissions;
(c) transcripts of depositions of the Party’s employees and/or designees; and (d) other
information produced by any Party in the course of this Lawsuit. The Designating Party may
designate any of the foregoing as “Confidential Material” at the time of or within ten (10) days
of its disclosure.
2.

Basis For Designation Of Material As Confidential. A Designating Party may

designate material as “Confidential Material” based upon a belief that the material: (a)
constitutes trade secrets or other confidential research, proprietary, development, financial, or
commercial information not reasonably available to the public; (b) is subject to confidential
settlement agreements and/or negotiations; (c) contains confidential information regarding
clients; and/or (d) is otherwise confidential. The Designating Party will act in good faith in
designating any material as Confidential Material.
3.

Permissible Use Of Confidential Material.

Any person having access to

Confidential Material shall use it only for the purposes of this Lawsuit. In no event shall any
person receiving Confidential Material use it for a commercial or competitive purpose, or make
any public disclosure of the contents thereof. Confidential Material containing information
relating to nonparties shall not be used to contact those non-parties except for the purpose of
developing evidence for use in this litigation or as otherwise required in connection with the
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prosecution or defense of this action. However, nothing contained in this Protective Order shall
affect the right of the Designating Party to use its own Confidential Material.
4.

Persons With Access To Confidential Material. Access to Confidential Material

shall be limited to:
a.

The Parties to this Lawsuit;

b.

Counsel for the Parties;

c.

The Court presiding over this Lawsuit;

d.

Experts and consultants employed, retained, or otherwise consulted by the

Parties for the purpose of analyzing data, conducting studies, or providing opinions for assistance
in this Lawsuit;
e.

A Party’s insurers, reinsurers, or auditors;

f.

A deponent, during the course of his or her examination;

g.

Court reporters who record testimony taken in the course of this litigation;

h.

Copy or computer services for the purpose of copying or indexing

documents, provided all Confidential Material is retrieved by the Party furnishing it immediately
upon completion of the service; and,
i.

Such other persons as may be subsequently designated by either written

agreement of the parties after a request by one of them, or by Order of this Court upon motion of
any party, after notice to the opposing party.
5.

Precondition To Access To Confidential Material.

Any Party disclosing

Confidential Material to persons listed in Paragraph 4 of this Agreement shall advise such
persons of the existence of this Agreement and the terms hereof.

Any Party disclosing

Confidential Information to persons listed in subparagraph (d) of Paragraph 4 shall, prior to

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disclosing Confidential Material, obtain a signed declaration (in the form attached as Exhibit B
hereto) from such persons.
6.

List Of Persons With Access To Confidential Material.

Counsel for the

inspecting party shall maintain a list of the names and addresses of all persons listed in
Paragraphs 4(d) of this Agreement to whom Confidential Material is disclosed and, upon request,
shall promptly make that list available to counsel for the Designating Party. Counsel for the
inspecting party shall promptly provide new versions of the list if and when names are added.
7.

Prohibitions On Disclosure Of Confidential Materials. Individuals and entities

permitted access pursuant to Paragraph 4 hereof to “Confidential Material,” or any parts thereof,
must be provided a copy of the Agreement. Such Individuals and entities must be informed that
the material is “Confidential Material” and that they may not show or convey any such
documents or things, or any parts thereof, or any copies thereof, or any matters contained therein,
or any extracts or summaries thereof, to any individual or entity who does not otherwise have
access to “Confidential Material” under the provisions of this Order.
8.

Jurisdiction. Any person receiving Confidential Material under the terms of this

Agreement hereby agrees to subject himself or herself to the jurisdiction of this Court for
purposes of any proceedings relating to the performance under, compliance with, or violations of
this Agreement.
9.

Procedures For Designating Confidential Material.
a. Documents.

Written notice of confidentiality to the receiving Party or

marking a document as “Confidential” or “Confidential Material” shall suffice to designate
documents produced by a Designating Party as Confidential Material.
b. Interrogatory Answers, Responses To Document Requests, And Responses To
Requests For Admissions. Specific Interrogatory answers, responses to document requests and
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responses to requests for admissions may be designated by the responding Party as Confidential
Material by identifying the specific answer or response with “Confidential” or “Confidential
Material” or by written notice of confidentiality to the receiving Party.
c.

Deposition Testimony. A Party may designate portions of the Party’s

employees and/or designees deposition testimony as “Confidential Material” by noting same on
the record during the deposition or by giving written notice to the other Parties within thirty (30)
days after receipt of the deposition transcript. Notice of intent to mark portions of the Party’s
employees’ and/or designees’ deposition testimony as “Confidential Material” must be made on
the record at the conclusion of that deponent’s testimony.
d. Copies Of Confidential Material.

All copies of any document which is

designated as “Confidential Material” shall be treated as confidential and subject to the terms of
this Agreement.
10.

Filing Of Confidential Documents Under Seal.

To the extent that a pleading or

other paper references a document designated as Confidential under this Agreement, then the
pleading or other paper shall refer the Court to the particular document, which document shall be
filed under seal in accordance with Local Rule 79.3, without disclosing the contents of any
confidential information. Any party seeking to file a document under seal must first file a
motion for leave to do so with the Court and obtain the approval of the Court.
11.

Treatment Of Documents Produced For Inspection.

If any Party makes its

documents available for inspection to permit any other Party to select documents it wishes to
have copied (regardless of where such production takes place), then all such documents shall be
deemed to be Confidential Material, under the terms of this Agreement, during the course of
such inspection. After the inspecting Party identifies those documents it wishes to have copied,
the producing Party may mark any such documents, as “Confidential Material” in accordance
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with the terms of this Agreement, before permitting the documents to be copied or before
providing such copies to the inspecting Party. Upon providing the inspected documents to the
inspecting Party, only the documents marked “Confidential Material,” and any documents
subsequently designated as “Confidential” pursuant to this Agreement, shall be deemed to be
Confidential Material.
12.

Disclosure Of Confidential Material In Other Actions. If any person subject to

this Agreement (“Recipient”) receives a subpoena or discovery demand to copy, inspect, or
produce Confidential Material, then the Recipient shall, within five (5) days after receiving the
request, provide notice thereof to the Designating Party. The Recipient shall object to any such
request for production on the ground of this Confidentiality Agreement and shall not disclose
said Confidential Material until either: (a) the Recipient receives written permission from the
Designating Party allowing disclosure; or (b) the Recipient is ordered by a court or other tribunal
to produce the Confidential Material.
13.

Objections To Designations. If a Party objects to the designation of any material

as Confidential Material, then that Party shall state the objection by letter to counsel for the Party
making the designation. If the Parties cannot resolve the objections, then the Party challenging
the Confidential Material designation may move the Court for an order withdrawing such
designation.

Until the Court rules on any such motion, the materials shall be deemed

Confidential Material under the terms of this Agreement.
14.

Return Of Confidential Material. Within thirty (30) days after the conclusion of

this Lawsuit, and at the discretion of the Designating Party, each Party shall: (a) return to
counsel for the Designating Party all Confidential Material produced by that Party, including any
copies thereof; or (b) destroy such Confidential Material or maintain the Material as confidential
until the Receiving Party destroys or returns the Material, and provide a certification or
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affirmation that the Confidential Materials have been destroyed. The return and/or destruction of
Confidential Material includes originals and all copies of all items designated as Confidential
Material, whether in paper, electronic or digital format and whether stored on computer servers,
hard drives, or other digital storage media, and includes all Confidential Material provided to
testifying and/or consulting experts.
15.

Reservation Of Rights. The Parties agree that the execution of this Agreement

shall not constitute a waiver of any rights or duties existing under any applicable law or court
rules, including, but not limited to, the attorney-client privilege and the work-product doctrine.
16.

Disputes Arising Out Of This Agreement. The Parties agree that money damages

for any breach or threatened breach of this Agreement are inadequate and that, without prejudice
to any other rights and remedies otherwise available to them, the Parties shall be entitled to seek
and obtain temporary or injunctive relief for any breach or threatened breach of this Agreement
without the necessity of posting a bond.
17.

Duly Authorized Representatives.

Each of the undersigned declares and

represents that he or she is competent to execute this Agreement and that he or she is duly
authorized and has the full right and authority to execute this Agreement on behalf of the Party
for which he or she is signing.
18.

Applicable Law. This Agreement shall be governed by the laws of Ohio, but not

including and without regard to the choice of law rules of Ohio or of any other State.

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Dated: May 19, 2015

SO ORDERED:

/s/ Terence P. Kemp
United States Magistrate Judge
APPROVED:

s/Leah M. Hohenberger_
__________
Paul J. Schumacher (0014370)
Leah M. Hohenberger (0075640)
Dickie, McCamey & Chilcote, P.C.
127 Public Square
Suite 2820, Key Tower
Cleveland, Ohio 44114
216.685.1827 – Telephone
[e-mail]
[e-mail]
Attorneys for Defendant,
Bare Escentuals Beauty, Inc.

s/Christopher R. Pettit___ ________
Christopher R. Pettit (0069926)
Lane, Alton & Horst, LLC
Two Miranova Place, Suite 500
Columbus, Ohio 43215
614.228.6885 – Telephone
[e-mail]
Attorney for Plaintiffs
s/Alan Wayne Sheppard ___ ________
Alan Wayne Sheppard (0009025)
Loveland Law, LLC
3300 Riverside Drive
Upper Arlington, Ohio 43221
614.928.9107 - Telephone
[e-mail]
Attorney for Plaintiffs
s/Vaseem S. Hadi_
_____________
Vaseem S. Hadi (0075617)
Gibson & Sharps, PSC
9420 Bunsen Parkway, Suite 250
Louisville, Kentucky 40220
800.426.2796 x8759 – Telephone
502.214.1064 – Facsimile
[e-mail]
Attorney for Defendant,
Highmark Blue Cross & Blue Shield

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EXHIBIT A to CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
Susan Welch Kelly, et al. v. Bare Escentuals Beauty, Inc., et al., United States District Court,
Southern District of Ohio Case No. 2:14-cv-01359
We consent to the form and entry of this Order.

s/Christopher R. Pettit___ ________
Christopher R. Pettit (0069926)
Lane, Alton & Horst, LLC
Two Miranova Place, Suite 500
Columbus, Ohio 43215
614.228.6885 – Telephone
614.228.0146 – Facsimile
[e-mail]
Attorney for Plaintiffs

s/Leah M. Hohenberger_
__________
Paul J. Schumacher (0014370)
Leah M. Hohenberger (0075640)
Dickie, McCamey & Chilcote, P.C.
127 Public Square
Suite 2820, Key Tower
Cleveland, Ohio 44114
216.685.1827 - Telephone
[e-mail]
[e-mail]
Attorneys for Defendant,
Bare Escentuals Beauty, Inc.

s/Alan Wayne Sheppard ___ ________
Alan Wayne Sheppard (0009025)
Loveland Law, LLC
3300 Riverside Drive
Upper Arlington, Ohio 43221
614.928.9107 - Telephone
[e-mail]
Attorney for Plaintiffs
s/Vaseem S. Hadi_
_____________
Vaseem S. Hadi (0075617)
Gibson & Sharps, PSC
9420 Bunsen Parkway, Suite 250
Louisville, Kentucky 40220
800.426.2796 x8759 – Telephone
502.214.1064 – Facsimile
[e-mail]
Attorney for Defendant,
Highmark Blue Cross & Blue Shield

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EXHIBIT B to CONFIDENTIALITY AGREEMENT AND
PROTECTIVE ORDER
Susan Welch Kelly, et al. v. Bare Escentuals Beauty, Inc., et al., United States District Court,
Southern District of Ohio Case No 2:14-cv-01359
DECLARATION
I, __________________________, hereby understand and agree that any information or
documents designated as "Confidential Material" shall be provided to me subject to the terms
and conditions set forth in the Confidentiality Agreement executed by the Parties in the matter
entitled Susan Welch Kelly, et al. v. Bare Escentuals Beauty, Inc., et al., United States District
Court, Southern District of Ohio Case No 2:14-cv-01359.
I hereby acknowledge that I have been given a copy of and have read the Confidentiality
Agreement. I agree that I shall not disclose the information or documents to any other party and
that the information or documents shall be used only for the purposes of this Lawsuit. I agree
that following the conclusion of this Lawsuit, I will return Confidential Material, including all
copies thereof and all summaries or descriptions thereof contained in other documents, to the
attorney or other person who provided such information or documents to me; in the alternative, I
will affirm that I have destroyed all Confidential Material.
I further agree to be bound by the terms of the Confidentiality Agreement and to subject
myself to the jurisdiction of Ohio, for the enforcement of the Confidentiality Agreement. I
understand that in the event I fail to abide by the terms of the Confidentiality Agreement, I may
be subject to sanctions by the Court.

Dated: __________________
Name

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