NBBJ LLC v. The Whiting-Turner Contracting Company, Inc.

Filing 27

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Terence P. Kemp on 1/5/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NBBJ LLC,
Plaintiff,
vs.
THE WHITING-TURNER CONTRACTING
COMPANY, INC.,
Defendant.

:
: Case No. 2:16-cv-00855
:
: JUDGE JAMES L. GRAHAM
:
: MAGISTRATE JUDGE KEMP
:
:
:
:

STIPULATED PROTECTIVE ORDER
The parties, Plaintiff NBBJ LLC and Defendant The Whiting-Turner Contracting
Company (collectively, 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.
2.

Form and Timing of Designation. Any party in this action or any third-party

witness may designate documents it produces as confidential and restricted in disclosure under
this Order by placing or affixing the words “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
– Attorneys’ Eyes Only” 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 or HIGHLY
CONFIDENTIAL designation. Any electronically-stored records produced in a format other
than hard copy may be designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL by such

a designation in correspondence accompanying the production of those records and, if possible,
by including the designation in the file name. The designation CONFIDENTIAL or HIGHLY
CONFIDENTIAL 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.

A designation of

confidentiality shall constitute certification by the producing party and a representation in good
faith by counsel upon reasonable investigation that the confidential-designated material has not
previously been disclosed by or on behalf of counsel’s client without restriction on disclosure
(except as may have been disclosed in pre-litigation dispute resolution proceedings), and that it is
not within the public domain. After entry of this Order, documents shall be designated
CONFIDENTIAL or HIGHLY CONFIDENTIAL prior to or at the time of the production or
disclosure of the documents. The Parties may, after entry of this Order, promptly designate any
of its previously produced documents as CONFIDENTIAL or HIGHLY CONFIDENTIAL.
3.

Changes to Levels of Protection.

If a Party or third-party determines that

material it produced was not correctly designated at the time of production, it must promptly
notify all Parties that received the material of the correct designation. If the materials are redesignated with a higher level of confidentiality than when they were originally produced, the redesignating party shall produce replacement copies with appropriate legends affixed to indicate
the corrected designation on the replacement copies that are otherwise identical to the originally
produced documents. All Parties who received a copy of the material before the correction must
remove copies of the originally produced document from its document database and destroy such
document copies, and take reasonable steps to retrieve all original copies of the newly designated
material from persons who were previously given access to the material but who are no longer
permitted to have such access.

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4.

Documents That May be Designated “CONFIDENTIAL”. Any party may

designate documents as “CONFIDENTIAL” 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, trade secrets, personnel records, financial
information, or such other proprietary or 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.
5.

Documents Designated “HIGHLY CONFIDENTIAL – Attorneys’ Eyes

Only.” “HIGHLY CONFIDENTIAL – Attorneys’ Eyes Only” refers to a highly sensitive subset of confidential information, disclosure of which to another Party or third-parties would create
a substantial risk of serious harm that could not be avoided by less restrictive means. For
example, this category might include financial information or other competitively-sensitive
business information or documents that may be of value to an actual or potential competitor,
customers, or supplier.
6.

Depositions.

Deposition testimony shall be deemed CONFIDENTIAL or

HIGHLY CONFIDENTIAL only if designated as such. Such designation shall be specific as to
the portions of the transcript or portions of the exhibit to be designated as CONFIDENTIAL or
HIGHLY CONFIDENTIAL. Thereafter, those portions so designated shall be protected as
CONFIDENTIAL or HIGHLY CONFIDENTIAL, pending objection, under the terms of this
Order. Deposition transcripts, or portions thereof, may be designated as CONFIDENTIAL or
HIGHLY CONFIDENTIAL within 30 days of receipt of the final deposition transcript, by
written notice to counsel of record for all parties. The entire deposition transcript shall be treated

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as HIGHLY CONFIDENTIAL during this 30 day period unless the designating party has earlier
indicated a different designation.
If a portion of a deposition is designated as containing CONFIDENTIAL or HIGHLY
CONFIDENTIAL material before the deposition is transcribed, the transcript with the
CONFIDENTIAL or HIGHLY CONFIDENTIAL material shall be bound in a separate volume
marked CONFIDENTIAL or HIGHLY CONFIDENTIAL as appropriate. If a portion of a
deposition is designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL during the course
of a deposition, counsel may request all persons, except persons entitled to receive the
CONFIDENTIAL or HIGHLY CONFIDENTIAL material pursuant to this Order, to leave the
room while the deposition is proceeding until completion of the answer or answers containing
CONFIDENTIAL or HIGHLY CONFIDENTIAL material.
7.

Protection of Confidential Material.
a.

General Protections.

Documents designated CONFIDENTIAL or

HIGHLY CONFIDENTIAL under this Order shall not be used or disclosed by the Parties
(including current or former employees of the Parties), counsel for the Parties, or any other
persons identified in paragraph 7(b) for any purpose whatsoever other than to prepare for and to
conduct discovery and trial in this action, including any appeal thereof.
b.

Limited Third-Party Disclosures.

The Parties and counsel for the

Parties shall not disclose or permit the disclosure of documents designated CONFIDENTIAL or
HIGHLY CONFIDENTIAL to any third person or entity except as set forth in subparagraphs (i)(vii) below. Subject to these requirements, the following categories of persons may be allowed to
review documents that have been designated CONFIDENTIAL or HIGHLY CONFIDENTIAL:

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i.

Counsel.

Outside counsel for the Parties and employees and

agents of outside counsel who have responsibility for the preparation and trial of the action;
ii.
Order,

including

in-house

Parties.
counsel,

Officers, directors
unless

the

and employees of Parties to this

document

is

designated

HIGHLY

CONFIDENTIAL;
iii.

Authors. The author of information designated CONFIDENTIAL

or HIGHLY CONFIDENTIAL and anyone shown as having received the information in the
ordinary course of business;
iv.

Court Reporters and Recorders. Court reporters, videographers,

and recorders engaged for depositions;
v.

The Court. The Court and Court personnel prior to trial;

vi.

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 the attachment hereto,
“Acknowledgement and Agreement to Be Bound”; and
vii.

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 attached hereto, “Acknowledgement 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 or HIGHLY CONFIDENTIAL pursuant to the terms of this Order.

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d.

Copies. Prior to production to another party, all copies, electronic images,

duplicates, extracts, summaries, or descriptions (hereinafter referred to collectively as “copies”)
of documents designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL under this Order,
or any individual portion of such a document, shall be affixed with the designation
CONFIDENTIAL or HIGHLY CONFIDENTIAL if the word does not already appear on the
copy. All such copies shall thereafter be entitled to the protection of this Order.
8.
Under Seal.

Filing of CONFIDENTIAL or HIGHLY CONFIDENTIAL Documents
To the extent reasonably possible, the Parties shall file under seal

CONFIDENTIAL or HIGHLY CONFIDENTIAL documents or information electronically
pursuant to Local Rule 5.2.1 and the Court’s guidelines for such filings. To the extent that a
brief, memorandum, or pleading references any document marked as CONFIDENTIAL or
HIGHLY CONFIDENTIAL, then the brief, memorandum, or pleading shall refer the Court to
the particular exhibit filed under seal without disclosing the contents of the CONFIDENTIAL or
HIGHLY CONFIDENTIAL information.
9.

Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL

or HIGHLY CONFIDENTIAL designation is subject to challenge by any party or nonparty with
standing to object (hereafter “objecting party”). Before filing any motions or objections to a
confidentiality designation with the Court, the objecting party shall have an obligation to attempt
in good faith to resolve the objection by agreement. If agreement is reached confirming or
waiving the CONFIDENTIAL or HIGHLY CONFIDENTIAL 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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10.

Action by the Court. Applications to the Court for an order relating to any

documents designated CONFIDENTIAL or HIGHLY CONFIDENTIAL shall be by motion
pursuant to Local Rule 7.2 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 used in discovery or at trial.
11.

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 or HIGHLY CONFIDENTIAL documents or information derived therefrom,
such party shall provide advance notice to the other party at the final pretrial conference 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 or HIGHLY CONFIDENTIAL documents or information. The Court may
thereafter make such orders as are necessary to govern the use of such documents or information
at trial.
12.

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

or

HIGHLY

CONFIDENTIAL

Documents. Within thirty days after dismissal or entry of final judgment not subject to further
appeal, all documents treated as CONFIDENTIAL or HIGHLY CONFIDENTIAL under this
Order shall be returned to the producing party upon the producing party’s request and at the

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producing party’s expense unless: (1) the document has been offered into evidence or filed
without restriction as to disclosure; or (2) that party elects to destroy the documents and certifies
to the producing party in writing or electronically that it has done so. Notwithstanding the above
requirements to return or destroy documents, counsel may retain a record including the
following, irrespective of whether or not CONFIDENTIAL or HIGHLY CONFIDENTIAL
documents are included: its correspondence file, its file of court papers, deposition, trial and
hearing transcripts and exhibits, and all memoranda and attorney notes of counsel. However, as
long as such CONFIDENTIAL or HIGHLY CONFIDENTIAL documents are retained, counsel
retaining such documents shall protect those documents in the manner provided for in this Order
and shall use those documents for no other purpose.
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.
13.

Inadvertently Produced Documents. The production of privileged or work-

product protected documents, electronically stored information (“ESI”) or other information
(“Privileged Information”), whether inadvertent or otherwise, is not a waiver of the privilege or
protection from discovery in this case or in any other federal or state proceeding. This Order
shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence
502(d).
a.

The producing party must notify the receiving party promptly, in writing,

upon discovery that Privileged Information has been produced. Upon receiving written notice
from the producing party that Privileged Information has been produced, all such information,

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and all copies thereof, shall be returned to the producing party within ten (10) business days of
receipt of such notice and the receiving party shall not use such information for any purpose,
except as provided in paragraph 13(c), until further Order of the Court. The receiving party shall
also attempt, in good faith, to retrieve and return or destroy all copies of the Privileged
Information in electronic format.
b.

The receiving party may contest the privilege or work product designation

by the producing party, and shall give the producing party written notice of the reason for said
disagreement. However, the receiving party may not challenge the privilege or immunity claim
by arguing that the disclosure itself is a waiver of any applicable privilege.
c.

Any analyses, memoranda, or notes which were internally generated based

upon such produced information shall immediately be placed in sealed envelopes, and shall be
destroyed in the event that (a) the receiving party does not contest that the information is
privileged, or (b) the Court rules that the information is privileged. Such analyses, memoranda,
or notes may only be removed from the sealed envelopes and returned to its intended purpose in
the event that (a) the producing party agrees in writing that the information is not privileged, or
(b) the Court rules that the information is not privileged.
d.

Nothing contained herein is intended to or shall serve to limit a party’s

right to conduct a complete review of documents, ESI, or other information (including metadata)
for relevance, responsiveness, and/or segregation of privileged and/or protected information
before production.
14.

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

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concerning the subject matter. Motions to modify this Order shall be served and filed under this
Court’s Local Rules and the presiding judge’s standing orders or other relevant orders.
15.

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

upon all counsel and their law firms, the Parties, any third-parties producing documents or
providing testimony in this action, and other persons made subject to this Order by its terms.
SO ORDERED.

January 5, 2017
Date

/s/ Terence P. Kemp
UNITED STATES MAGISTRATE JUDGE

So Stipulated,
/s/ Mitchell A. Tobias
Allen L. Rutz, Trial Counsel (0069388)
Mitchell A. Tobias
(0084833)
VORYS, SATER, SEYMOUR AND PEASE LLP
52 East Gay Street
P.O. Box 1008
Columbus OH 43216-1008
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Counsel for Plaintiff NBBJ LLC

/s/ Daniel M. Haymond by MAT per authority
Daniel M. Haymond, Trial Attorney (0062152)
Jeffrey R. Appelbaum
(0013898)
William J. Thrush
(0093219)
THOMPSON HINE LLP
3900 Key Center
127 Public Square
Cleveland, OH 44114-1291
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Counsel for Defendant The Whiting-Turner
Contracting Company

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NBBJ LLC,

:
: Case No. 2:16-cv-00855
:
: JUDGE JAMES L. GRAHAM
:
: MAGISTRATE JUDGE
:
TERENCE P. KEMP
:
:
:
:

Plaintiff,
vs.
THE WHITING-TURNER CONTRACTING
COMPANY, INC.,
Defendant.

ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I,

, have read the Stipulated Protective Order

in the above-captioned action (the “Protective Order”) and agree to be bound by its terms with
respect to any documents, material, or other information designated as “CONFIDENTIAL”
and/or “HIGHLY CONFIDENTIAL – Attorney’s Eyes Only” (collectively, “Restricted
Material”) furnished to me as set forth in the Protective Order.
I further agree not to disclose to anyone any documents, material, or other information
designated as Restricted Material other than as set forth in the Protective Order.
I hereby consent to the jurisdiction of the United States District Court for the Southern
District of Ohio with regard to any proceedings to enforce the terms of the Protective Order.
I hereby agree that any documents, materials, or other information designated as
Restricted Material and furnished to me will be used by me only for the purposes permitted by
the Protective Order and for no other purpose, including any business, commercial, professional,
educational, personal, or any other purpose whatsoever, and will not be imparted by me to any
other person except to the extent permitted under the Protective Order.
I further agree to return any and all documents, materials, or other information designated

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as Restricted Material, together with all copies I may have made thereof, including any notes,
memos, or the like I may have made that contain or reflect any such Restricted Material, to the
attorney(s) that furnished me with any such documents, materials, or other information (a) at the
conclusion of the action; (b) at the conclusion of my engagement in connection with the action;
or (c) at the request of the attorneys who furnished me with such documents, materials, or
information.

Date

Signature

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