Wright v. Premier Courier, Inc.

Filing 36

Protective Order. Signed by Magistrate Judge Kimberly A. Jolson on 5/3/2017. (ew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
BRANDON WRIGHT, et al.,
Plaintiffs,
v.
PREMIER COURIER, INC., et al.,
Defendants.

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CASE NO. 2:16-cv-00420
JUDGE MICHAEL A. WATSON
Magistrate Judge Kimberly A. Jolson
PROTECTIVE ORDER

The parties to this Stipulated Protective Order have agreed to the terms of this
Order; accordingly, it is ORDERED:
1. Scope. All documents produced in the course of discovery, including initial
disclosures, all responses to discovery requests, all deposition testimony and exhibits, other
materials which may be subject to restrictions on disclosure for good cause and information
derived directly therefrom (hereinafter collectively “documents”), shall be subject to this
Order concerning confidential information as set forth below. As there is a presumption in
favor of open and public judicial proceedings in the federal courts, this Order shall be
strictly construed in favor of public disclosure and open proceedings wherever possible. The
Order is also 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.

Form and Timing of Designation.

A party may designate documents as

confidential and restricted in disclosure under this Order by placing or affixing the words
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” on the document in a manner
that will not interfere with the legibility of the document and that will permit complete removal
of the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER designation. Documents
shall be designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER prior to or at
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the time of the production or disclosure of the documents. The designation “CONFIDENTIAL
- SUBJECT TO PROTECTIVE ORDER” 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.
3.

Documents Which May be Designated CONFIDENTIAL - SUBJECT TO

PROTECTIVE ORDER. Any party may designate documents as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER upon making a good faith determination that the
documents contain information protected from disclosure by statute or that should be protected
from disclosure as confidential personal information, medical or psychiatric information, trade
secrets, personnel records, or such other sensitive commercial information that is not publicly
available. Public records and other information or documents that are publicly available may
not be designated as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.
4. Depositions. Deposition testimony shall be deemed CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER only if designated as such. Such designation shall be specific as
to the portions of the transcript or any exhibit to be designated as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER. Thereafter, the deposition transcripts and any those
portions so designated shall be protected as CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER, pending objection, under the terms of this Order.
5. Protection of Confidential Material.
(a)

General Protections.

Documents designated CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER under this Order shall not be used or
disclosed by the parties, counsel for the parties or any other persons identified in ¶
5(b) for any purpose whatsoever other than to prepare for and to conduct discovery
and trial in this action [adversary proceeding],including any appeal thereof.
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(b) Limited Third-Party Disclosures. The parties and counsel for the
parties shall not disclose or permit the disclosure of any CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER documents to any third person or entity
except as set forth in subparagraphs (1)-(5). Subject to these requirements, the
following categories of persons may be allowed to review documents that have been
designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER:
(1) Counsel. Counsel for the parties and employees and agents
of counsel who have responsibility for the preparation and trial of the
action;
(2)

Parties.

Parties and employees of a party to this Order. 1

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NOTE: If the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents
contain highly sensitive trade secrets or other highly sensitive competitive or confidential
information and disclosure to another party would result in demonstrable harm to the
disclosing party, then the parties may stipulate or move for the establishment of an additional
category of protection that prohibits disclosure of such documents or information to category
(2) or that limits disclosure only to specifically designated in-house counsel or party
representative(s) whose assistance is reasonably necessary to the conduct of the litigation and
who agree to be bound by the terms of the order.
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(3)

Court Reporters and Recorders.

Court reporters and

recorders engaged for depositions;
(4)

Consultants, Investigators and Experts.

Consultants,

investigators, or experts (hereinafter referred to collectively as “experts”)
employed by the parties or counsel for the parties to assist in the preparation
and trial of this action or proceeding, but only after such persons have
completed the certification contained in Attachment A, Acknowledgment of
Understanding and Agreement
to Be Bound; and
(5) 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. All such persons shall execute the certification contained in
Attachment A, Acknowledgment of Understanding and Agreement to Be
Bound.
(c) Control of Documents. Counsel for the parties shall take reasonable
and appropriate measures to prevent unauthorized disclosure of documents
designated as CONFIDENTIAL pursuant to the terms of this Order. Counsel shall
maintain the originals of the forms signed by persons acknowledging their
obligations under this Order for a period of 1 year after dismissal of the action, the
entry of final judgment and/or the conclusion of any appeals arising therefrom.
(d) Copies. Prior to production to another party, all copies, electronic
images, duplicates, extracts, summaries or descriptions (hereinafter referred to
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collectively as “copies”) of documents designated as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER under this Order, or any individual portion
of such a document, shall be affixed with the designation “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” if the word does not already appear on the
copy. All such copies shall thereafter be entitled to the protection of this Order.
The term “copies” shall not include indices, electronic databases or lists of
documents provided these indices, electronic databases or lists do not contain
substantial portions or images of the text of confidential documents or otherwise
disclose the substance of the confidential information contained in those
documents.
(e) Inadvertent Production. Inadvertent production of any document
or information without a designation of “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” shall be governed by Fed. R. Evid. 502.
6.

Filing of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER

Documents Under Seal. To the extent that a brief, memorandum or pleading references any
document marked as CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER, then the
brief, memorandum or pleading shall refer the Court to the particular exhibit filed under seal
without disclosing the contents of any confidential information
(a) Before any document marked as CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER is filed under seal in accordance with S.D. Loc. R. 5.2.1,
the filing party shall first consult with the party that originally designated the
document as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER to

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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.
(b)

Where agreement is not possible or adequate, CONFIDENTIAL–

SUBJECT TO PROTECTIVE ORDER documents must be filed in accordance
with S.D. Loc. R. 5.2.1.
(c)

To the extent that it is necessary for a party to discuss the contents of

any confidential information in a written pleading, then such portion of the
pleading may be filed under seal in accordance with S.D. Loc. R. 5.2.1. In such
circumstances, counsel shall prepare two versions of the pleadings, a public and a
confidential version. The public version shall contain a redaction of references to
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents.

The

confidential version shall be a full and complete version of the pleading and shall
be filed under seal as above. (d)

If the Court or a particular judicial officer has

developed an alternative method for the electronic filing of documents under seal,
then the parties shall follow this alternative method.
7. Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party or
non- party with standing to object (hereafter “party”). Before filing any motions or objections
to a confidentiality designation with the Court, the objecting party shall have an obligation to
meet and confer in a good faith effort to resolve the objection by agreement. If agreement is
reached confirming or waiving the CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER designation as to any documents subject to the objection, the designating party shall
serve on all parties a notice specifying the documents and the nature of the agreement.
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8. Action by the Court. Applications to the Court for an order relating to any
documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER shall be by
motion under Local Rule 7.1 and any other procedures set forth in the presiding judge’s
standing orders or other relevant orders. Nothing in this Order or any action or agreement of a
party under this Order limits the Court’s power to make any orders that may be appropriate
with respect to the use and disclosure of any documents produced or use in discovery or at
trial.
9. Use of Confidential Documents or Information at Trial. All trials are open to the
public. Absent order of the Court, there will be no restrictions on the use of any document that
may be introduced by any party during the trial. If a party intends to present at trial
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents or information derived
therefrom, such party shall provide advance notice to the other party at least five (5) days
before the commencement of trial by identifying the documents or information at issue as
specifically as possible (i.e., by Bates number, page range, deposition transcript lines, etc.)
without divulging the actual CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
documents or information. The Court may thereafter make such orders as are necessary to
govern the use of such documents or information at trial.
10. Obligations on Conclusion of Litigation.
(a) Order Remains in Effect. Unless otherwise agreed or ordered, this
Order shall remain in force after dismissal or entry of final judgment not subject to
further appeal.
(b) Return of CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER Documents. Within thirty days after dismissal or entry of final judgment
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not subject to further appeal, all documents treated as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER under this Order, including copies as
defined in ¶ 5(d), shall be returned to the producing party unless: (1) the document
has been offered into evidence or filed without restriction as to disclosure; (2) the
parties agree to destruction in lieu of return; or (3) as to documents bearing the
notations, summations, or other mental impressions of the receiving party, that
party elects to destroy the documents and certifies to the producing party that it has
done so. Notwithstanding the above requirements to return or destroy documents,
counsel may retain attorney work product, including an index which refers or
relates

to

information

designated

CONFIDENTIAL

–

SUBJECT

TO

PROTECTIVE ORDER, so long as that work product does not duplicate verbatim
substantial portions of the text or images of confidential documents. This work
product shall continue to be CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER under this Order. An attorney may use his or her work product in a
subsequent litigation provided that its use does not disclose or use
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents.
(c) Return of Documents Filed under Seal. After dismissal or entry of
final judgment not subject to further appeal, the Clerk may elect to return to
counsel for the parties or, after notice, destroy documents filed or offered at trial
under seal or otherwise restricted by the Court as to disclosure.
11. Order Subject to Modification. This Order shall be subject to modification by the
Court on its own motion or on motion of a party or any other person with standing concerning

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the subject matter. Motions to modify this Order shall be served and filed under Local Rule
7.1 and the presiding judge’s standing orders or other relevant orders.
12. 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 documents
or information designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER by
counsel or the parties is subject 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.
13. Persons Bound. This Order shall take effect when entered and shall be binding upon
all counsel and their law firms, the parties, and persons made subject to this Order by its terms.
IT IS SO ORDERED.

Date: May 3, 2017

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

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/s/ Ryan A. Winters
Joseph F. Scott (0029780)
Ryan A. Winters (0086917)
Scott & Winters Law Firm, LLC
The Superior Building
815 Superior Avenue E., Suite 1325
Cleveland, OH 44114
440-498-9100
[e-mail]
[e-mail]

/s/ Tyler Tarney
James O’Connor (0063428)
REMINGER CO., L.P.A.
101 West Prospect Avenue, Suite 1400
Cleveland, Ohio 44115
Phone: [phone]
Email: [e-mail]
and
Tyler Tarney (0089082)
REMINGER CO., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, Ohio 43215
Phone: [phone]
Email [e-mail]

/s/ Thomas A. Downie
Thomas A. Downie (0033119)
46 Chagrin Falls Plaza #104
Chagrin Falls, Ohio 44022
440-973-9000

Attorneys for Defendant Premier
Courier, Inc. and Ronald T. Dillard

Attorneys for Plaintiff, the Ohio Class,
and FLSA Collective

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FORM PROTECTIVE ORDER ATTACHMENT A

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
BRANDON WRIGHT, et al.,
Plaintiffs,
v.
PREMIER COURIER, INC., et al.,
Defendants.

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CASE NO. 2:16-cv-00420
JUDGE MICHAEL A. WATSON
Magistrate Judge Kimberly A. Jolson
PROTECTIVE ORDER

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective 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 Northern District of Ohio in matters relating to the
Protective Order and understands that the terms of the Protective Order obligate him/her to use
documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER in
accordance with the Order solely for the purposes of the above-captioned action, and not to
disclose any such documents or information derived directly therefrom to any other person,
firm

or

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concern.

The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:

Date:
Signature

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