Hookman v. Aaron's Inc. et al

Filing 19

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Norah McCann King on 12/28/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JENNIFER HOOKMAN,
Plaintiff,
CIVIL ACTION FILE NO.:
2:15-cv-02318-EAS-NMK

v.
AARON’S, INC. and TIFFANY
IRVING,
Defendants.

STIPULATED PROTECTIVE ORDER
This cause having come before the Court on agreement of the parties
requesting entry of a protective order pursuant to Federal Rule of Civil Procedure
26(c), the Court being otherwise fully advised in the premises, IT IS HEREBY
ORDERED:
1.

This Order shall apply to all information and documents (including

responses to discovery requests, deposition transcripts, and deposition exhibits)
produced during discovery in this action that is designated by the party or person
producing it (the “producing party”) as “Confidential.” Such information and
documents are referred to herein as “Designated Information.” This Order shall
not apply to information that, before disclosure, is properly in the possession or

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knowledge of the party to whom such disclosure is made, or that is public
knowledge.

The restrictions contained in this Order shall also not apply to

information that is, or after disclosure becomes, public knowledge other than by an
act or omission of the party to whom such disclosure is made (the “receiving
party”) in violation of this Order, or that is legitimately acquired from a source not
subject to this Order.
2.

If a document contains information that is not available in the public

sector and that counsel for the party has determined in good faith to (i) be protected
from disclosure by statute, (ii) be personal information (e.g., Social Security
numbers), including but not limited to, personnel information concerning non-party
employees or contractors, (iii) constitute a trade secret (as defined by O.C.G.A. §
10-1-761(4)); (iv) contain confidential or otherwise sensitive business information;
or (v) contain sensitive security data, such document may be designated by the
party as confidential by marking it with the legend “CONFIDENTIAL” in a
manner that will not interfere with legibility of the document and that will permit
complete removal of the confidential designation. If practicable, such notation
shall be placed on every page of each document so designated. The parties shall
endeavor, where reasonable, to break transcripts into separate Confidential and
non-Confidential portions.

With respect to any material designated as

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“Confidential” that is not produced in paper form (such as data storage devices,
diskettes, magnetic media, and other material not produced in paper form) and that
is not susceptible to the imprinting of a stamp signifying its confidential nature, the
producing party shall, to the extent practicable, produce such material with a cover
labeled “CONFIDENTIAL” and shall inform the receiving party in writing of the
Confidential designation of such material at the time such material is produced or
within thirty (30) days of filing of this Order, whichever is later.
3.

All Designated Information shall be used by all receiving parties only

for the purpose of this litigation and not for any other business, proceeding,
litigation, or other purpose whatsoever. Further, such Designated Information may
not be disclosed by a receiving party to anyone except as provided in this Order.
4.

Information disclosed at a deposition or other testimony may be

designated as “Confidential,” by page and line number, at the time of the testimony
or deposition, or within thirty (30) days following receipt of the transcript, and
shall be subject to the provisions of this Order. Unless otherwise agreed on the
record of the deposition or other testimony, all transcripts shall be treated as
“Confidential” for a period of thirty (30) days after their receipt, and the transcript
shall not be disclosed by a non-designating party to persons other than those

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persons named or approved according to Paragraphs 7-10 to review documents or
materials designated “Confidential” on behalf of that non-designating party.
5.

In the event a party seeks to file any Designated Information with the

Court, or any pleading or memorandum purporting to reproduce, paraphrase, or
otherwise disclose such Designated Information, or otherwise offer any Designated
Information into evidence pursuant to Paragraph 11 of this Order, that party shall
take appropriate action to ensure that the document receives proper protection from
public disclosure including (i) filing a redacted copy of the document, thereby
concealing all allegedly confidential portions thereof, and (ii) where appropriate
(e.g., in relation to discovery disputes and evidentiary motions), submitting the
documents solely for in camera review. Where the preceding measures are not
adequate, the party desiring to file the Designated Information shall file a motion
for leave to file the Designated Information under seal pursuant to Federal Rule of
Civil Procedure 5.2 and any applicable Local Rule or Standing Order of the Court.
Absent extraordinary circumstances making prior consultation impractical or
inappropriate, the party seeking to file the Designated Information shall first
consult with counsel for the party who designated the document(s) as confidential
to determine if some measure less restrictive than filing the Designated
Information under seal may serve to provide adequate protection.
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6.

As used in this Order, “Trial Counsel” refers exclusively to the

attorneys, paralegals, and support staff of the attorneys for a party.
7.

Material designated as “Confidential” that has been obtained during

the course of this proceeding may be disclosed or made available only to the Court
and its staff, Trial Counsel, the parties to the above-captioned litigation, and any
other individual(s) who may be joined as a party, and the persons designated
below, subject to the provisions of Paragraphs 8, 10 and 11 of this Order:
(a) any officer, director, or employee of Defendant Aaron’s, Inc.
deemed necessary by Defendant to aid in the prosecution, defense, or
settlement of this action to the extent approved pursuant to Paragraph
10;
(b) Plaintiff Jennifer Hookman to aid in the prosecution, defense,
or settlement of this action to the extent approved pursuant to
Paragraph 10;
(c) independent experts or consultants (together with their clerical
staff) retained by Trial Counsel to assist in the prosecution, defense,
or settlement of this action to the extent approved pursuant to
Paragraph 10;
(d)

court reporters employed in this action;

(e) agents of Trial Counsel needed to perform various services such
as, for example, copying, drafting of exhibits, and support and
management services, including vendors retained by the parties, or by
counsel for parties, for the purpose of encoding, loading into a
computer and storing and maintaining for information control and
retrieval purposes, transcripts of depositions, hearings, trials,
pleadings, exhibits marked by a party, or attorneys’ work product, all
of which may contain material designated Confidential;
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(f)
actual or potential witnesses in any deposition or other
proceeding of this action who are the author(s) or recipient(s) of the
“Confidential” material, or who, based on independent evidence, are
reasonably believed by Trial Counsel to have been persons who have
previously received a copy of the material; and
(g)
8.

any other persons as to whom the parties in writing agree.

Before being provided access to any Designated Information, any

person identified in Paragraph 7(c), (e), (f), or (g) shall be given a copy of this
Order and shall sign a document in the form of Exhibit A attached hereto.
9.

For the purpose of this Order an independent expert or consultant

shall be defined as a person, who is not an employee of a party or scheduled to
become an employee in the near future, and who is retained or employed as a
bona fide consultant or expert for purposes of this litigation, either full or parttime, by or at the direction of counsel of a party.
10.

The parties may request that another party identify some or all of the

persons to whom that party has disclosed or made available Designated
Information of the requesting party pursuant to Paragraphs 7(c), (e) and (f),
pursuant to the procedures set forth below.
(a)

For good cause, a party may request another party, within seven

(7) calendar days of receiving the request, to identify some or all of the
persons to whom that party has disclosed or made available Designated
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Information of the requesting party pursuant to Paragraphs 7(c), (e) and (f),
and to produce the Acknowledgements signed by such persons.
(b)

Within seven (7) calendar days after receiving the information

and Acknowledgements requested in Paragraph 10(a), the requesting party
may object in writing (by electronic mail or otherwise) to the disclosure of
that party’s Designated Information to any of the persons so identified upon
a reasonable basis. Failure to object within seven (7) calendar days shall not
preclude the requesting party from later objecting to continued access by any
of the identified persons to the Designated Information of the requesting
party where facts suggesting a basis for objection are subsequently learned
by the requesting party or its counsel. If objection is made, no additional
Designated Information of the requesting party shall be disclosed to the
person(s) in issue except under the provisions of Paragraph 10(c) or until the
requesting party withdraws its objection.
(c)

If the requesting party so objects, the parties shall, within seven

(7) calendar days from the date of the mailing of notice of objection, confer
and attempt to resolve the dispute. At that conference, the requesting party
shall inform the other party of its reasons for objecting to the person. If the
parties cannot resolve the dispute, or if the conference does not take place
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because of the actions or inactions of the requesting party, then the
requesting party may move the Court for an appropriate order, including for
sanctions or other relief if the requesting party believes that the other party
did not comply with this Order in disclosing or making available the
requesting party’s Designated Information to the person.

Designated

Information may continue to be disclosed to the person if the requesting
party fails to move the Court for an appropriate order within fourteen (14)
calendar days after the conference. If the requesting party timely files a
motion with the Court for an appropriate order within the 14-day period, no
additional Designated Information may be disclosed to the person unless and
until the Court denies the requesting party’s motion. These time periods are
not to restrict either party from moving for a Court order earlier if the
circumstances so require.
11.

Prior to any hearing or trial, the parties are to confer regarding

whether any exhibits intended to be offered into evidence are designated as
“Confidential” and, if so, to confer regarding how such documents should be
treated for the hearing or trial. If the parties cannot reach agreement, then they
shall approach the Court regarding the appropriate treatment of such documents
including, but not limited to, continued treatment of the documents as
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“Confidential” or an exclusion of witnesses and other persons from the courtroom
during the presentation of such evidence.
12.

Any Designated Information may be used in any deposition (i) of the

producing party or its officers, directors, or employees, (ii) of a person to whom
the Designated Information has been or may be disclosed or made available
pursuant to Paragraph 7, or (iii) with the written consent of the party that produced
such Designated Information, subject to the condition that when such Designated
Information is so used in a deposition, it may be designated as “Confidential” in
accordance with Paragraph 4. Further, whenever any Designated Information is to
be discussed or disclosed in a deposition, any party claiming such confidentiality
may exclude from the room any person not entitled to receive such Designated
Information pursuant to the terms of this Order.
13.

If counsel for a party receiving Designated Information hereunder

objects to such designation of any or all of such items, the following procedure
shall apply:
(a)

Trial Counsel for the objecting party shall serve on the

producing party or third party a written objection to such designation, which
shall describe with particularity the documents or information in question
and shall state the grounds for objection. Trial Counsel for the producing
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party or third party shall respond in writing to such objection within fourteen
(14) days, and shall state with particularity the grounds for asserting that the
document or information is Confidential. If no timely written response is
made to the objection, the challenged designation will be deemed to be void.
If the producing party or third party makes a timely response to such
objection asserting the propriety of the designation, counsel shall then confer
in good faith in an effort to resolve the dispute.
(b)

If a dispute as to a Confidential designation of a document or

item of information cannot be resolved by agreement, the proponent of the
designation being challenged (i.e. the producing party) shall present the
dispute to the Court initially by telephone or letter, in accordance with the
Local Rules and the Presiding Judge’s Standing Orders before filing a
formal motion for an order regarding the challenged designation.

The

Designated Information that is the subject of the filing shall be treated as
originally designated pending resolution of the dispute.
14.

Notwithstanding anything to the contrary herein, if a party through

inadvertence or mistake produces any Designated Information without marking it
with the legend “Confidential,” the producing party may give written notice to the
receiving party that the document, information, or testimony contains Designated
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Information and should be treated as such in accordance with the provisions of this
Order.

Upon receipt of such notice, and upon receipt of properly marked

materials, the receiving party must treat such documents, information, or
transcripts as Designated Information, and shall cooperate in restoring the
confidentiality of such Designated Information. The receiving party shall not be
responsible for the disclosure or other distribution of belatedly-labeled Designated
Information as to such disclosure or distribution that occurred prior to the receipt
of such notification of a claim of confidentiality, and any such disclosure or
distribution shall not be deemed to be a waiver or a violation of this Order.
15.

If information subject to a claim of attorney-client privilege or work-

product immunity is inadvertently produced, such production shall in no way
prejudice or otherwise constitute a waiver of, or estoppel as to, any such claim. If
a party has inadvertently produced information subject to a claim of immunity or
privilege, upon request, such information shall be returned promptly and, if a
document, all copies of that document shall be destroyed. However, if the party
asked to return or destroy such information or documents believes that there is a
good faith basis for challenging the privilege or protection, other than waiver based
on inadvertent production in the first instance, it may retain and sequester the

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information and copies of documents until this dispute is resolved by the parties or
by the Court.
16.

It is not the intention of this Order to fully address discovery

objections to produce, answer, or respond on the grounds of attorney-client
privilege or work product immunity, nor to preclude any party, including the
producing party, from seeking further relief or protective orders from the Court as
may be appropriate under the Federal Rules of Civil Procedure.
17.

This Order shall not abrogate or diminish any contractual, statutory, or

other legal obligation or right of any party or other person or entity subject to this
Order with respect to any Designated Information. The fact that information is
designated “Confidential” under this Order shall not be deemed to be determinative
of what a trier of fact may determine to be confidential or proprietary. This Order
is applicable to the parties, any additional parties joined in this action, and any
non-parties required to respond to discovery in this matter, for the sole purpose of
facilitating discovery in this action. It is ordered that this Order will not be used, in
any manner or form, as direct or indirect evidence in any trial or any hearing, or
referred to in any trial or any hearing on the merits of this case, except a hearing
that involves issues related to the enforcement of any provision of this Order.
Thus, the lack of an objection to the designation of material as “Confidential” shall
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not be deemed or construed as an admission that such information is confidential,
proprietary, or a trade secret. This Order shall be without prejudice to the right of
any party to bring before the Court the question of:
(a) whether any particular document, information, or transcript is
or is not Designated Information;
(b) whether any particular document, information, or transcript is
or is not entitled to a greater or lesser degree of protection than provided
hereunder; or
(c) whether any particular document, information, or transcript is
or is not relevant to any issue in this case; provided that in doing so the
party complies with the foregoing procedures.
18.

A non-party to this action may designate information requested via

subpoena as “Confidential,” and such Designated Information produced by a nonparty in connection with this litigation is protected by the remedies and relief
provided by this Order.
19.

Upon final conclusion of this litigation, each party or other individual

subject to the terms hereof shall be under an obligation to destroy documents and
things containing Designated Information pursuant to the procedures set forth
below.
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(a)

All copies of documents containing Designated Information

shall be destroyed (or, to the extent stored electronically, deleted) by the
receiving party at the termination of this action, except that trial counsel for
the parties may each retain one archival copy of the pleadings, deposition
exhibits, court exhibits, documents and other materials submitted to the
Court; deposition transcripts and transcripts of court proceedings; and
Designated Information to the extent that it includes or reflects an attorney’s
work product. Such material shall continue to be treated as Designated
Information under this Agreement. The destruction of documents containing
Designated Information shall be completed no later than sixty (60) days after
the time limit for final appeal has expired, and counsel shall send a letter
within the sixty (60) day period to the producing party, confirming that the
receiving party is in compliance with the destruction protocol under this
Agreement.
(b)

A party providing documents to an expert or other person shall

ensure that all copies of documents containing Designated Information are
destroyed at the termination of the Action.
20.

The restrictions provided for above shall not terminate upon the

conclusion of this lawsuit, but shall continue until further Order of this Court. This
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Order is without prejudice to the right of a party hereto to seek relief from the
Court, upon good cause shown, from any of the provisions or restrictions provided
herein.
Respectfully submitted,

Respectfully submitted,

s/Fred M. Bean
Fred M. Bean
Ohio Bar No. 0086756

s/Alisa P. Cleek
Alisa P. Cleek (PHV-7333-2015)
TAYLOR ENGLISH DUMA LLP
1600 Parkwood Circle, Suite 400
Atlanta, Georgia 30339
[phone] Telephone
[phone] Facsimile
[e-mail]

THE SPITZ LAW FIRM
25200 Chagrin Blvd., Suite 200
Beachwood, Ohio 44120
[phone] Telephone
[phone] Facsimile
[e-mail]

Attorney for Defendant Aaron’s, Inc.
Attorney for Plaintiff Jennifer Hookman

SO ORDERED:
This 28th day of December 2015.
s/ Norah McCann King
Honorable Norah McCann King
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND NONDISCLOSURE AGREEMENT

I,

, declare under penalty of perjury

under the laws of the United States that:
1.

My address is:

.

2.

My present employer is

.

3.

My present occupation or job description is
.

I HEREBY CERTIFY AND AGREE that I have been provided with a
copy of, have read, and understand the terms of the Protective Order (the
“Order”) entered in Case No. 2:15-cv-02318-EAS-NMK pending in the United
States District Court for the Southern District of Ohio (the “Court”). I agree
that I will not disclose or use any documents or information received by me
pursuant to the Order, except for purposes directly related to this litigation, as
explicitly allowed by the Order, and I agree to be bound by the terms and
conditions of the Order unless and until modified by further order of the Court.
I hereby consent to the jurisdiction of the Court for purposes of enforcing the
Order. I understand that I am to retain all copies of any of the materials I

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receive which have been labeled as Designated Information in a safe place in a
manner consistent with the Order, and that all copies are to remain in my
custody until I have completed my assigned or legal duties, whereupon the
copies are to be returned or destroyed as specified in the Order. I acknowledge
that such return or the subsequent destruction of such materials shall not relieve
me from any of the continuing obligations imposed upon me by the Order.

Name

Dated:
Signature

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