Betts et al v. Central Ohio Gaming Ventures, LLC

Filing 38

AGREED PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 3/7/2018. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HEATHER BETTS, et al.,
Plaintiffs,
v.
CENTRAL OHIO GAMING
VENTURES, LLC,
Defendant.

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Case No. 2:16-cv-373
Judge Michael H. Watson
Magistrate Judge Kimberly A. Jolson

AGREED PROTECTIVE ORDER
The parties to this Agreed Confidentiality Order, through their attorneys, having
stipulated and agreed to the entry of a Protective Order, and the Court finding that good cause
supports entry of this Protective Order and that justice so requires it,
IT IS HEREBY ORDERED, pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure, that the documents and other information, including the substance and content
thereof, produced or otherwise disclosed by any party or non-party in discovery in this litigation,
shall be subject to the terms and provisions of this Protective Order as follows:
1.

Scope. All materials produced or adduced in the course of discovery, including

initial disclosures, responses to discovery requests, deposition testimony and exhibits, and
information derived directly therefrom (hereinafter collectively “documents”), shall be subject to
this Order concerning Confidential Information as defined below. This Order is 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.

Confidential Information. As used in this Order, “Confidential Information”

means any information designated as “CONFIDENTIAL” by a party. Confidential Information
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may include, but is not limited to, the following categories: (a) information prohibited from
disclosure by statute; (b) information that reveals trade secrets or other sensitive business
information; (c) research, technical, commercial, patron or customer, or financial information
that the party has maintained as confidential; (d) medical and/or health information concerning
any individual; (e) personal identity or financial information; (f) income tax returns (including
attached schedules and forms), W-2 forms and 1099 forms; (g) documents referring or related to
confidential and proprietary human resources or business information; or (h) personnel or
employment records of a person who is not a party to the case. Information or documents that
are available to the public may not be designated as Confidential Information.
3.

Designation.

(a)

A party may designate a document as Confidential Information for protection

under this Order (hereinafter, “designating party”) by placing or affixing the words
“CONFIDENTIAL” on the document and on all copies in a manner that will not interfere with
the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries or descriptions that contain the Confidential Information. The
marking “CONFIDENTIAL” shall be applied prior to or at the time the documents are produced
or disclosed. Applying the marking “CONFIDENTIAL” to a document 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. Any copies that are made of any documents marked “CONFIDENTIAL”
shall also be so marked, except that indices, electronic databases or lists of documents that do not
contain substantial portions or images of the text of marked documents and do not otherwise
disclose the substance of the Confidential Information are not required to be marked.

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(b)

A party may designate as “CONFIDENTIAL” specific responses to information

requests by labeling the specific response “CONFIDENTIAL.”
(c)

The designation of a document as containing Confidential Information is a

certification by an attorney or a party appearing pro se that the document contains Confidential
Information as defined in this order.
(d)

The right to designate Confidential Information pursuant to this Order also applies

to discovery, evidence and testimony from third parties who are subpoenaed or called to testify
in this lawsuit. If a third party produces material during the course of this lawsuit that it did not
designate as containing Confidential Information but that a party believes in good faith to satisfy
the definition of Confidential Information as set forth in Paragraph 2, the party may (1) request
that the third party designate the material as Confidential Information at the time of production in
the manner specified above; or (2) the party may itself designate the material as Confidential
Information, in which case the party-designator shall, within ten (10) business days of notifying
counsel, provide counsel for the parties with new copies of such material bearing the appropriate
“CONFIDENTIAL” legend. Upon receipt of the copy bearing the legend, counsel for the parties
and all other persons who have received undesignated copies of the material shall either return
such material to counsel for the party-designator or destroy all such materials, copies and other
reproductions thereof.
4.

Depositions.

The parties may designate deposition testimony or any portion of deposition testimony as
“CONFIDENTIAL” by advising the court reporter and counsel of such designation during the
course of the deposition. In the case of testimony not so designated during the course of a
deposition, counsel may, within 14 days of receipt of the deposition transcript, notify the parties

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that the deposition testimony contains confidential material, and thereafter the designated
testimony shall be subject to the full protections of this Order. Portions of any deposition
designated “CONFIDENTIAL” are to be either: (a) redacted before the deposition transcript is
filed with the Court; or (b) filed with the Court under seal, bearing substantially the following
designation: “Portions of this deposition were taken subject to a Protective Order. These portions
shall remain sealed until further agreement of the parties.”
5.

Protection of Confidential Material.

(a)

General Protections. Confidential Information shall not be used or disclosed by

the parties, counsel for the parties or any other persons identified in subparagraph (b) for any
purpose whatsoever other than in this litigation, 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 Information to any third person or entity
except as set forth in subparagraphs (1)-(9). Subject to these requirements, the following
categories of persons may be allowed to review Confidential Information:
(1)

Counsel. Counsel for the parties and employees of counsel who have
responsibility for the action;

(2)

Parties. Individual parties and employees of a party but only to the extent
counsel determines in good faith that the employee’s assistance is
reasonably necessary to the conduct of the litigation in which the
information is disclosed;

(3)

The Court and its personnel;

(4)

Court Reporters and Recorders. Court reporters and recorders engaged for
depositions;

(5)

Contractors. Those persons specifically engaged for the limited purpose of
making copies of documents or organizing or processing documents,
including outside vendors hired to process electronically stored
documents;

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(6)

(7)

Witnesses. Person noticed for depositions or designated as trial witnesses,
or persons a party reasonably and in good faith believes may be noticed
for depositions or designated as trial witnesses, to the extent reasonably
necessary to testify. Witnesses shall not retain a copy of documents
containing Confidential Information, except witnesses may receive a copy
of all exhibits marked at their depositions in connection with review of the
transcripts. Pages of transcribed deposition testimony or exhibits to
depositions that are designated as Confidential Information pursuant to the
process set out in this Order must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this
Order.

(8)

Author or recipient. The author or recipient of the document (not including
a person who received the document in the course of litigation); and

(9)

(c)

Consultants and Experts. Consultants, investigators, or experts employed
by the parties or counsel for the parties to assist in the preparation and trial
of this action but only after such persons have completed the certification
contained in Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound;

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.

Control of Documents. Counsel for the parties shall make reasonable efforts to

prevent unauthorized or inadvertent disclosure of Confidential Information. All produced
Confidential Information shall be carefully maintained so as to preclude access by persons other
than those identified in subparagraph (b). Counsel shall maintain the forms signed by persons
acknowledging their obligations under this Order for a period of three years after the termination
of the case.
6.

Inadvertent Failure to Designate. A prior or inadvertent failure to designate a

document as Confidential Information does not, standing alone, waive the right to subsequently
designate the document. If a party designates a document as Confidential Information after it was
initially produced, the receiving party, on notification of the designation, must make a reasonable

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effort to assure that the document is treated in accordance with the provisions of this Order. No
party shall be found to have violated this Order for failing to maintain the confidentiality of
material during a time when that material has not been designated Confidential Information, even
where the failure to so designate was inadvertent and where the material is subsequently
designated Confidential Information.
7.

Filing of Confidential Information. This Order does not, by itself, authorize the

filing of any document under seal. Any party wishing to file a document designated as
Confidential Information in connection with a motion, brief, or other submission to the Court
may either: (a) redact all of the information contained on any page that is marked
“CONFIDENTIAL” before filing said document with the Court; (b) if the party wishing to file
the confidential material is the designating party asserting confidential treatment , that party may,
at its discretion, redact only that information that it deems confidential before filing with the
Court; (c) separately file or submit the document under seal with the Court; or (d) before any
document marked “Confidential” is filed or submitted under seal, the filing part may consult
with the designating party to determine whether, with the consent of that party, the document or
a redacted version of the document may be filed with the Court not under seal. If the party
wishes to file a document under seal, the party must comply with Local Rule 5.2.1.
8.

No Greater Protection of Specific Documents. Except on privilege grounds not

addressed by this Order, no party may withhold information from discovery on the ground that it
requires protection greater than that afforded by this Order unless the party moves for an order
providing such special protection.
9.

Challenges by a Party to Designation as Confidential Information. The

designation of any material or document as Confidential Information is subject to challenge by

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any party. The following procedure shall apply to any such challenge.
(a)

Meet and Confer. A party challenging the designation of Confidential Information

must do so in good faith and must begin the process by conferring directly with counsel for the
designating party. In conferring, the challenging party must explain the basis for its belief that
the confidentiality designation was not proper and must give the designating party an opportunity
to review the designated material, to reconsider the designation, and, if no change in designation
is offered, to explain the basis for the designation.
(b)

Judicial Intervention. A party that elects to challenge a confidentiality designation

may file and serve a motion that identifies the challenged material and sets forth in detail the
basis for the challenge. Each such motion must be accompanied by a competent declaration that
affirms that the movant has complied with the meet and confer requirements of this procedure.
The burden of persuasion in any such challenge proceeding shall be on the designating party.
Until the Court rules on the challenge, all parties shall continue to treat the materials as
Confidential Information under the terms of this Order.
10.

Action by the Court. Applications to the Court for an order relating to materials or

documents designated Confidential Information shall be by motion. Nothing in this Order or any
action or agreement of a party under this Order limits the Court’s power to make orders
concerning the disclosure of documents produced in discovery or at trial.
11.

Use of Confidential Documents or Information at Trial or Hearing. Nothing in

this Order shall be construed to affect the use of any document, material, or information at any
trial or hearing. A party that intends to present or that anticipates that another party may present
Confidential Information at a hearing or trial shall bring that issue to the Court’s and parties’
attention by motion or in a pretrial memorandum without disclosing the Confidential

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Information. The Court may thereafter make such orders as are necessary to govern the use of
such documents or information at trial.
12.

Confidential Information Subpoenaed or Ordered Produced in Other Litigation or

by Government Agency.
(a)

If a receiving party is served with a subpoena or an order issued in other litigation

or by a government agency that would compel disclosure of any material or document designated
in this action as Confidential Information, the receiving party must so notify the designating
party, in writing, immediately and in no event more than five court days after receiving the
subpoena or order. Such notification must include a copy of the subpoena or court order.
(b)

The receiving party also must immediately inform 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 the subject of this Order. In addition, the receiving party must deliver a
copy of this Order promptly to the party in the other action that caused the subpoena to issue.
(c)

The purpose of imposing these duties is to alert the interested persons to the

existence of this Order and to afford the designating party in this case an opportunity to try to
protect its Confidential Information in the court from which the subpoena or order issued. The
designating party shall bear the burden and the expense of seeking protection in that court of its
Confidential Information, and nothing in these provisions should be construed as authorizing or
encouraging a receiving party in this action to disobey a lawful directive from another court. The
obligations set forth in this paragraph remain in effect while the party has in its possession,
custody or control Confidential Information by the other party to this case.
13.

Inadvertent Production of Privileged Information. The inadvertent production of

any material that would be protected from disclosure pursuant to the attorney-client privilege, the

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work product doctrine or any other relevant privilege or doctrine shall not itself constitute a
waiver of the applicable privilege or doctrine. Inadvertent production of privileged material
includes the mistaken production of privileged material that has been reviewed by the disclosing
party’s attorneys prior to production. Upon receipt of notice of an inadvertent production, the
receiving party shall (1) promptly sequester material subject to a claimed privilege and any
copies of it if a challenge to the claimed privilege is being made or (2) if no challenge to the
claimed privilege is being made, return the material subject to a claimed privilege and any copies
of it, including deletion of any versions of the privileged materials on any database the receiving
party maintains. The receiving party shall also take reasonable steps to retrieve the information if
it has been further disclosed, and make no use of the information contained in the privileged
materials. If the receiving party contests the claim of privilege, it shall notify the disclosing party
in writing. Within 21 days after it reasonably appears that good faith efforts to resolve the
dispute have failed, the disclosing party may apply to the Court for an order that such materials
are protected from disclosure by privilege. In opposing any such application, the receiving party
may not, however, assert as a ground for such opposition the fact or circumstances of the
inadvertent production. Any claimed privileged material sequestered pending determination by
the Court as to whether it is privileged must not be used or disclosed until the privilege issue is
resolved, and thereafter shall be treated in accordance with the Court’s determination of the
issue.
14.

Challenges by Members of the Public to Sealing Orders. A party or interested

member of the public has a right to challenge the sealing of particular documents that have been
filed under seal, and the party asserting confidentiality will have the burden of demonstrating the
propriety of filing under seal.

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15.

Obligations on Conclusion of Litigation.

(a)

Order Continues in Force. Unless otherwise agreed or ordered, this Order shall

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

Obligations at Conclusion of Litigation. Upon termination of this action by entry

of a final judgment (inclusive of any appeals or petitions for review), the parties may request the
return of all previously furnished Confidential Information, including copies as defined in ¶ 3(a),
and each person or Party to whom such Confidential Information has been furnished or produced
shall be obligated to return it within thirty (30) days of said request. Alternatively, the parties
may agree to destruction to the extent practicable in lieu of return and the receiving party shall
certify the fact of destruction. 1
(c)

Retention of Work Product and one set of Filed Documents. Notwithstanding the

above requirements to return or destroy documents, counsel may retain (1) attorney work
product, including an index that refers or relates to designated Confidential Information so long
as that work product does not duplicate verbatim substantial portions of Confidential
Information, and (2) one complete set of all documents filed with the Court including those filed
under seal. Any retained Confidential Information shall continue to be protected under this
Order. An attorney may use his or her work product in subsequent litigation, provided that its use
does not disclose or use Confidential Information.
(d)

Deletion of Documents filed under Seal from Electronic Case Filing (ECF)

System. Filings under seal shall be deleted from the ECF system only upon order of the Court.
16.

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

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The receiving party shall not be required to locate, isolate and return e-mails (including attachments to e-mails)
that may include Confidential Information, or Confidential Information contained in deposition transcripts or drafts
or final expert reports, provided the receiving party agrees to treat any such material as Confidential Material under
the terms of this Order.

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Court on its own initiative or on motion of a party or any other person with standing concerning
the subject matter.
17.

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 document or
material designated Confidential Information by counsel or the parties is entitled 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.
18.

Nothing Herein to be Construed as Admission. Nothing in this Order shall be

construed as an admission as to the relevance, authenticity, foundation or admissibility of any
document, material, transcript, or other information.
19.

Restriction on Disclosure of Designated Material.

No information or things

designated “CONFIDENTIAL” shall be disclosed by any party, except as set forth in this
Protective Order. No party shall use any material designated “CONFIDENTIAL” for any
purpose other than in connection with preparation, motion practice and trial of this action. No
copies of designated materials shall be made, except by or on behalf of counsel of record for the
parties to this Protective Order, or their experts and/or consultants.
20.

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

upon all counsel of record and their law firms, the parties, and persons made subject to this Order
by its terms.
IT IS SO ORDERED.
Date: March 7, 2018

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

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WE SO MOVE
and agree to abide by the
terms of this Order

WE SO MOVE
and agree to abide by the
terms of this Order

/s/ Gregory R. Mansell
Matthew J. P. Coffman (#0085586)
COFFMAN LEGAL, L.L.C.
1457 South High Street
Columbus, OH 43215
Telephone:
614.949.1181
Facsimile:
614.386.9964
E-mail:
[e-mail]

/s/ Brooke E. Niedecken
Brooke E. Niedecken, Trial Attorney
(#0079142)
LITTLER MENDELSON, P.C.
21 East State Street, 16th Floor
Columbus, OH 43215
Telephone: [phone]
Facsimile:
614.221.3301
E-mails:
[e-mail]
[e-mail]

Gregory R. Mansell (#0085197)
MANSELL LAW, L.L.C.
1457 South High Street
Columbus, OH 43215
Telephone:
614.610.4134
Facsimile:
513.826.9311
E-mail:
[e-mail]

Attorneys for Defendant Central Ohio
Gaming Ventures, LLC

Attorneys for Named Plaintiffs

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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HEATHER BETTS, et al.,
Plaintiffs,
v.
CENTRAL OHIO GAMING
VENTURES, LLC,
Defendant.

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Case No. 2:16-cv-373
Judge Michael H. Watson
Magistrate Judge Kimberly A. Jolson

ACKNOWLEDGEMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality 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
Confidentiality Order and understands that the terms of the Confidentiality Order obligate
him/her to use materials designated as Confidential Information in accordance with the Order
solely for the purposes of the above-captioned action, and not to disclose any such Confidential
Information to any other person, firm or concern.

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The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.

Name: Job Title:
Employer:
Business Address:

Date:______________________________

____________________________________
Signature

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