Majestic Building Maintenance, Inc. v. Huntington Bancshares Incorporated

Filing 30

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 10/31/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MAJESTIC BUILDING
MAINTENANCE, INC.
Plaintiff,
vs.
HUNTINGTON BANCSHARES
INCORPORATED dba THE
HUNTINGTON NATIONAL BANK
Defendant.

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Case No. 2:15-cv-3023
JUDGE JAMES L. GRAHAM
MAGISTRATE JUDGE
KIMBERLY A. JOLSON
STIPULATED PROTECTIVE
ORDER

Majestic Building Maintenance, Inc. and The Huntington National Bank
(each individually a “Party,” and collectively the “Parties”) acknowledge that
discovery in this action is likely to involve production of confidential, proprietary, or
private information for which special protection may be warranted. The Parties
agree that good cause exists to protect the confidential, proprietary, or private
nature of the information contained in documents, interrogatory responses,
responses to requests for admission, and deposition testimony. Accordingly, the
Parties agree that the entry of this Stipulated Protective Order (“Protective Order”)
is warranted to protect against disclosure of such information.
Based upon the above stipulation of the Parties, and the Court being duly
advised, IT IS HEREBY ORDERED as follows:
1.

“Confidential Material” shall include the following documents and

tangible things produced or otherwise exchanged among the Parties and/or third
parties subpoenaed by a party to the litigation, including but not limited to
electronically stored information: (a) trade secret or other confidential research,
development, proprietary or commercial information that is suitable for protection

under Federal Rule of Civil Procedure 26(c)(1)(G); (b) “personally identifiable
information” defined herein as an individual’s name, address, or phone number in
the combination with one or more of the following: date of birth, social security
number, driver’s license number or other state identification number or a foreign
government equivalent, passport number, financial account number, payment card
number, insurance claim numbers or insurance policy numbers; and (c) any other
information that may be protected from disclosure under an individual’s
constitutional right of privacy such as employment information.
The Parties may identify additional documents during the course of the
litigation, and may agree that these documents should also be designated
Confidential Material.
2.

The protections conferred by this Protective Order cover not only

Confidential Material as defined above, but also (1) any information copied or
extracted from Confidential Material; (2) all copies, excerpts, summaries, or
compilations of Confidential Material; and (3) any testimony, conversations, or
presentations by the Parties or their counsel that might reveal Confidential
Material. However, the protections conferred by this Protective Order do not cover
information that is in the public domain or becomes part of the public domain
through trial or otherwise.
3.

A receiving party may use Confidential Material that is disclosed or

produced by another party or by a non-party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation. Confidential Material
may be disclosed only to the categories of persons and under the conditions
described in this Protective Order. Confidential Material must be stored and
maintained by a receiving party at a location and in a secure manner that ensures
that access is limited to the persons authorized under this Protective Order.

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4.

Unless otherwise ordered by the Court or permitted in writing by the

designating party, a receiving party may disclose any Confidential Material only to:
(a) the receiving party’s counsel of record in this action, as well as
employees of counsel of record in this action to whom it is reasonably necessary to
disclose the information for this litigation;
(b) the officers, directors, and employees (including in house counsel)
of the receiving party to whom disclosure is reasonably necessary for this litigation;
(c) experts and consultants engaged for purposes of the litigation to
whom disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court, court personnel, and court reporters and their staff;
(e) copy or imaging services retained by counsel to assist in the
duplication of Confidential Material, provided that counsel for the party retaining
the copy or imaging service instructs the service not to disclose any Confidential
Material to third parties and to immediately return all originals and copies of any
Confidential Material;
(f) during their depositions, witnesses in the action to whom
disclosure is reasonably necessary and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating
party or ordered by the court. Pages of transcribed deposition testimony or exhibits
to depositions that reveal Confidential Material must be separately bound by the
court reporter and may not be disclosed to anyone except as permitted under this
Protective Order; or
(g) the author or recipient of a document containing Confidential
Material or a custodian or other person who otherwise possessed or knew the
Confidential Material.

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5.

Before filing Confidential Material or discussing such material in court

filings, the filing party will seek leave of Court to file under seal under Local Rule
5.2.1. The filing party may confer with the designating party to determine whether
the material qualifies for protection, if an alternative solution exists to avoid
designating such material for protection, if the confidential designation should be
removed, whether the document can be redacted, and/or whether a motion to seal or
stipulation and proposed order is warranted. The parties will use good faith efforts
to resolve any dispute before seeking assistance from the Court to resolve said
dispute.
6.

Each party or non-party that designates information or items for

protection under this Protective Order must take care to limit any such designation
to specific material that qualifies under the appropriate standards. The designating
party must designate for protection only those parts of material, documents, items,
or oral or written communications that qualify, so that other portions of the
material, documents, items, or communications for which protection is not
warranted are not swept unjustifiably within the ambit of this Protective Order.
If it comes to a designating party’s attention that information or items that it
designated for protection do not qualify for protection, the designating party must
promptly notify all other parties that it is withdrawing the mistaken designation.
7.

Except as otherwise provided in this Protective Order, or as otherwise

stipulated or ordered, disclosure or discovery material that qualifies for protection
under this Protective Order must be clearly so designated before or when the
material is disclosed or produced.
(a) Information in documentary form: For information such as paper
or electronic documents and deposition exhibits, but excluding transcripts of
depositions or other pretrial or trial proceedings, the designating party must affix
the word “CONFIDENTIAL” to each page that contains Confidential Material.
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(b) Testimony given in deposition or in other pretrial or trial
proceedings: the Parties must identify on the record, during the deposition,
hearing, or other proceeding, all confidential testimony, without prejudice to their
right to so designate other testimony after reviewing the transcript. Any party or
non-party may, within fifteen days after receiving a deposition transcript, designate
portions of the transcript, or portions of the exhibits thereto, as Confidential
Material.
(c) Other tangible items: the producing party must affix in a
prominent place on the exterior of the container or containers in which the
information or item is stored the word “CONFIDENTIAL.” If only a portion or
portions of the information or item warrant protection, the producing party shall
identify the protected portion(s).
8.

An inadvertent failure to designate qualified information or items does

not, standing alone, waive the designating party’s right to secure protection under
this Protective Order for such material. Upon timely good faith correction of a
designation, the receiving party must make reasonable efforts to ensure that the
material is treated in accordance with the provisions of this Protective Order. In
the event that the receiving party disagrees with the designation, the parties will
meet and confer and the document will be treated in accordance with the provisions
of this Protective Order until such disagreement is resolved. The producing party is
required to provide substitute copies of any material designated after the initial
production of the material.
9.

Any party or non-party may challenge a designation of confidentiality

at any time. The Parties do not waive the right to challenge a confidentiality
designation by electing not to mount a challenge promptly after the original
designation is disclosed.

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10.

Pursuant to Local Rule 37.1, the Parties must exhaust among

themselves all extrajudicial means for resolving any disputes regarding confidential
designations before requesting the Court’s involvement. Any motion regarding
confidential designations or for a protective order may include a certification, in the
motion or in a declaration or affidavit, that the movant has engaged in good faith
attempts to resolve the dispute without court action.
11.

If the Parties cannot resolve a challenge without court intervention,

the designating party may file and serve a motion to retain confidentiality. The
burden of persuasion in any such motion shall be on the designating party.
Frivolous challenges, and those made for an improper purpose (e.g., to harass or
impose unnecessary expenses and burdens on other parties) may expose the
challenging party to sanctions consistent with the Federal Rules. The Parties shall
continue to maintain the material in question as confidential until the court rules
on the challenge.
12.

If a Party is served with a subpoena or a court order issued in other

litigation that compels disclosure of any information or items designated in this
action as “CONFIDENTIAL,” the Party must:
(a) promptly notify the designating party in writing and include a
copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or
order to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall include
a copy of this Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be
pursued by the designating party whose Confidential Material may be affected.
13.

If a receiving party learns that, by inadvertence or otherwise, it has

disclosed Confidential Material to any person or in any circumstance not authorized
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under this Protective Order, the receiving party must within a reasonable time (a)
notify in writing the designating party of the unauthorized disclosures, (b) use its
best efforts to retrieve all unauthorized copies of the protected material, (c) inform
the person or persons to whom unauthorized disclosures were made of all the terms
of this Protective Order, and (d) use good faith efforts to obtain such person or
persons’ signature on the “Acknowledgment and Agreement to Be Bound” that is
attached hereto as Exhibit A.
14.

Issues relating to the review, production, and return of documents

claimed by the producing party to be privileged shall be governed by the Parties’
Electronic Discovery Plan, executed contemporaneously herewith.
15.

Within 30 days after the termination of this action, including all

appeals, each receiving party must return all Confidential Material to the producing
party, including all copies, extracts and summaries thereof. Alternatively, the
Parties may agree upon appropriate methods of destruction.
Notwithstanding this provision, counsel are entitled to retain one archival
copy of all documents filed with the court, trial, deposition, and hearing transcripts,
correspondence, deposition and trial exhibits, expert reports, attorney work product,
and consultant and expert work product, even if such materials contain
Confidential Material.
16.

The confidentiality obligations imposed by this Protective Order shall

remain in effect until a designating party agrees otherwise in writing or a court
orders otherwise.
17.

The Parties shall treat this proposed order as an Order of the Court

prior to it being entered by the Court. Nothing in this Protective Order prevents
the Court from modifying the obligations herein.

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PURSUANT TO STIPULATION, IT IS SO ORDERED:
The Parties’ Stipulated Protective Order is adopted.
Date: August 31, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

Respectfully submitted,

/s/ Brett A. Wall

/s/ Sean M. Kohl (via email)

Sean M. Kohl (0086726)
Andrew J. Gerling (0087605)
Troy J. Doucet (0086350)
700 Stonehenge Parkway
Suite 2B
Dublin, OH 43017
[phone] PH
[phone] FAX
[e-mail]
[e-mail]
[e-mail]

Brett A. Wall, Trial Attorney (0070277)
[e-mail]
Lisa M. Ghannoum (0080950)
[e-mail]
Baker & Hostetler LLP
Key Tower
127 Public Square, Suite 2000
Cleveland, Ohio 44114-1214
Telephone: [phone]
Facsimile: 216.696.0740

Attorneys for The Huntington
National Bank

Attorneys for Majestic Building
Maintenance, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on
October 30, 2017 via the Court’s ECF system to each individual listed on the Court’s
Electronic Mail Notice List.
/s/ Brett A. Wall
Brett A. Wall (0070277)

One of the attorneys for
The Huntington National Bank

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

[print or type full name], of
[print or type full address], declare under penalty of perjury that

I have read in its entirety and understand the Stipulated Protective Order that was
issued by the United States District Court for the Southern District of Ohio on
in the case of Majestic Building Maintenance, Inc. v. The Huntington

National Bank, Case No. 2:15-cv-3023. I agree to comply with and to be bound by
all the terms of this Stipulated Protective Order and I understand and acknowledge
that failure to so comply could expose me to sanctions and punishment in the
nature of contempt. I solemnly promise that I will not disclose in any manner any
information or item that is subject to this Stipulated Protective Order to any person
or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District
Court for the Southern District of Ohio for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action.
Date:
City and State where sworn and signed:
Printed name:
Signature: