Bethel v. Wal-Mart Stores East, LP

Filing 17

AGREED PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 10/18/2017. (ew)

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

Vicki Bethel, et al.,
Plaintiffs,
v.
Wal-Mart Stores East, LP.,
Defendant.

:
:
: Case No.: 2:16-cv-00960
:
: District Judge: Watson
:
: Magistrate Judge: Jolson
:
:
AGREED PROTECTIVE ORDER

The parties have agreed to and have submitted to the Court, and for good cause shown
the Court hereby enters, the following Protective Order:
1.

This Protective Order shall govern the disclosure of materials designated as

Confidential Material during the course of discovery. Confidential Material, as used in this
Order, shall refer to any document or item designated as Confidential or Highly Confidential –
Attorneys’ Eyes Only, including but not limited to, documents or items produced during
discovery, all copies thereof, and the information contained in such material.
2.

Confidential Material, as used in this Order, consists of the following materials

and categories of materials:
a. Materials relating to any privileged, confidential, or nonpublic information,
including, but not limited to, trade secrets, research, design, development,
financial, technical, marketing, planning, personal, or commercial information, as
such terms are used in the Federal Rules of Civil Procedure contracts; proprietary
information; vendor agreements; personnel files; and claim/litigation information.
b. Materials containing corporate trade secrets, nonpublic research and
development data, pricing formulas, prospective inventory management
programs, confidential business information not generally known to the general
public, and customer-related Protected Data are considered Highly Confidential
Material and shall be deemed “ATTORNEYS’ EYES ONLY”. Qualified
recipients of materials marked "ATTORNEYS' EYES ONLY" shall include only

the following: In-house counsel and law firms for each party and the secretarial,
clerical and paralegal staff of each.
c. Protected Data shall refer to any information that a party believes in good faith
to be subject to federal, state or foreign data protection laws or other privacy
obligations. Examples of such data protection laws include but are not limited to
The Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. (financial information);
and, The Health Insurance Portability and Accountability Act and the regulations
thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 (medical
information). Certain Protected Data may compel alternative or additional
protections beyond those afforded Highly Confidential Material, in which event
the parties shall meet and confer in good faith, and, if unsuccessful, shall move
the Court for appropriate relief.
3.

If any party seeks to designate additional documents or categories of documents

as Confidential Material, it will be the burden of the party seeking protected status to move for a
Court Order designating the materials as confidential after the parties confer.
4.

The parties agree that such Confidential Material as described in paragraph 2

should be given the protection of an order of this Court to prevent injury through disclosure to
persons other than those person involved in the prosecution or defense of this litigation.
5.

To designate information as confidential, the producing party shall mark

Confidential Material with the legend “CONFIDENTIAL- SUBJECT TO PROTECTIVE
ORDER” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY – SUBJECT TO
PROTECTIVE ORDER” and shall submit confidential discovery, such as answers to
interrogatories or answers to requests for admissions, in a separate document stamped with the
appropriate legend. The Receiving Party may make copies of Confidential Material and such
copies shall become subject to the same protections as the Confidential Material from which
those copies were made.
a. Information on a disk or other electronic format may be designated confidential
by marking the storage medium itself with the legend “CONFIDENTIAL-

SUBJECT TO PROTECTIVE ORDER” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY – SUBJECT TO PROTECTIVE ORDER.” The
Receiving Party shall mark any hard-copy printouts and the storage medium of
any permissible copies of such electronic material with the corresponding legend
contained on the original and such copies shall become subject to the same
protections, as the Confidential Material from which those copies were made.
b. Information disclosed at any deposition of a party taken in this action may be
designated by the party as confidential by indicating on the record at the
deposition that the information is confidential and subject to the provisions of this
Order. Alternatively, the party may designate information disclosed at the
deposition as confidential by notifying the court reporter and other parties in
writing, within 15 business days of receipt of the transcript, of the specific pages
and lines of the transcript which are designated as confidential. The parties may
agree to a reasonable extension of the 15 business day period for designation.
Designations of transcripts will apply to audio, video, or other recordings of the
testimony. During such 15 business day period, the entire transcript shall receive
confidential treatment. Upon such designation, the court reporter and each party
shall affix the “CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER” or
“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY – SUBJECT TO
PROTECTIVE ORDER”” legend to the designated pages and segregate them as
appropriate.
c. Copies of material described in paragraph 2 above, or incorporated into
paragraph 2 by Court Order, and which were produced without the designation of

“CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER” or “HIGHLY
CONFIDENTIAL

-

ATTORNEYS’

EYES

ONLY

–

SUBJECT

TO

PROTECTIVE ORDER” may be so designated later if the Producing Party failed
to make such designation at the time of production through inadvertence or error.
If such information has been disclosed to persons not qualified pursuant to
paragraph 7 below, the party who disclosed such information shall take
reasonable efforts to retrieve previously disclosed Confidential Material and
advise such persons that the material is Confidential.
6.

Pursuant to Federal Rule of Evidence 502(d), disclosure (including production) of

information that a party or non-party later claims should not have been disclosed because of a
privilege, including, but not limited to, the attorney-client privilege or work product doctrine
(“Privileged Information”), shall not constitute a waiver of, or estoppels as to, any claim or
attorney-client privilege, attorney work product, or other ground for withholding production as to
which the Producing Party would be entitled in the Litigation or any other federal or state
proceeding. Pursuant to Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of
Evidence 502(e), the Receiving Party hereby agrees to return, sequester, or destroy any
Privileged Information disclosed or produced by the Producing Party upon request. If the
Receiving Party reasonably believes that Privileged Information has been inadvertently disclosed
or produce to it, it shall promptly notify the Producing Party and sequester such information until
instructions as to disposition are received.

The failure of any party to provide notice or

instructions under this Paragraph shall not constitute a waiver of, or estoppels as to, any claim of
attorney-client privilege, attorney work product, or other ground for withholding production as to
which the Producing Party would be entitled in the Litigation or any other federal or state

proceeding. This provision is designed to foreclose any arguments that by making such
production, the production of Confidential Materials subject to a legally recognized claim of
privilege, including without limitation the attorney-client privilege, work-product doctrine, or
other applicable privilege:
(a)
(b)
(c)
(d)

7.

was not inadvertent by the Producing Party;
that the Producing Party did not take reasonable steps to
prevent the disclosure of privileged Documents;
that the Producing Party did not take reasonable or timely steps
to rectify such Disclosure; and/or
that such Disclosure acts as a waiver of applicable privileges or
protections associated with such Documents

Any Confidential Material and the information contained therein shall be

disclosed only to the Court, its staff, and counsel of record, and also shall be disclosed on a needto-know basis only to the parties, counsel’s staff personnel, employees of a party to whom
disclosure is necessary in connection with the preparation for and trial of this action, and any
witnesses in the case (including consulting and testifying experts) as may from time to time
reasonably be necessary in prosecution or defense of this action. Confidential Material shall not
be disclosed to any outside experts or consultants who are current or former employees or
current or former consultants of a direct competitor of any party named in the Litigation. Counsel
shall advise all persons to whom Confidential Material is disclosed pursuant to this Order of the
existence of this Order, and shall provide all such persons (other than the Court and its staff) with
a copy of this Order. Counsel also shall require all persons, except the Court, its staff, the parties,
counsel of record and counsel’s staff personnel, to execute the Affidavit attached as Exhibit A,
prior to the disclosure of Confidential Material. It shall be the obligation of counsel, upon
learning of any breach or threatened breach of this Protective Order, to promptly notify counsel
for the Producing Party of such breach or threatened breach. Counsel shall not otherwise offer

or permit disclosure of any Confidential Material, its contents, or any portion or summary
thereof. Disputes concerning the confidential nature of such materials shall be resolved by the
Court upon motion prior to dissemination of any Confidential Material.
8.

Persons having knowledge of Confidential Material and information by virtue of

their participation in the conduct of this litigation shall use them for that purpose only and only
as permitted herein, and shall not disclose such Confidential Material, their contents or any
portion or summary thereof to any person(s) not involved in the conduct of this litigation. If any
person having access to the Confidential Material herein shall violate this Order, he/she may be
subject to sanctions by the Court.
9.

The provisions of this Protective Order shall not affect, and this Order does not

limit, the use or admissibility of Confidential Material (or references to that material) as evidence
at trial, or during a hearing or similar proceeding in this action or as part of the record on appeal,
provided that either party may seek an appropriate Court Order to protect Confidential Material.
10.

Nothing in this Protective Order shall be deemed to preclude any party or

interested member of the public from seeking and obtaining, on an appropriate showing, a
modification of this Order including additional protection with respect to confidentiality of
material or the removal of a confidential designation. Should counsel or an interested member of
the public disagree with any designation of material as confidential, he or she first shall attempt
to resolve such dispute with the parties’ counsel and, if unsuccessful, apply to the Court for a
determination as to whether the material or information should remain designated as Confidential
Material. Pending resolution of any challenges, the material at issue shall continue to be treated
as Confidential Material until ordered otherwise by the Court.

11.

The restrictions set forth in any of the preceding paragraphs shall not apply to

information or material that was, is or becomes public knowledge in a manner other than by
violation of this Order.
12.

Confidential Material may be filed with the Court. Should any party have good

cause to seal from public view any Confidential Material that is filed with the Court, that party
must file a separate and specific motion for such protection, and the motion will only be granted
for good cause shown and if consistent with Sixth Circuit case law regarding filing materials
under seal. Any member of the public may challenge any attempt by any party to the sealing of
the documents filed with the Court.
13.

In the event Confidential Materials or portions of transcripts are sealed as

confidential by the Court as described in paragraph 12 above, they shall be filed in an envelope
bearing the following designation when deposited:
CONFIDENTIAL
IN ACCORDANCE WITH THE PROTECTIVE ORDER OF THE
COURT, THE CONTENTS OF THIS ENVELOPE SHALL BE
TREATED AS CONFIDENTIAL AND MUST NOT BE SHOWN
TO A PERSON OTHER THAN THE COURT, ATTORNEYS IN
THIS CASE, OR TO PERSONS ASSISTING THOSE
ATTORNEYS.
14.

This Order shall continue to be binding throughout and after the conclusion of this

litigation, including all appeals. Within 30 days of settlement or final adjudication, including but
not limited to final adjudication of any appeals or petitions for extraordinary writs, all items
designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only,” and all copies or
summaries thereof shall be returned to the party that produced such materials or shall be
destroyed. Whether the Confidential Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party by the 30-day deadline that (1) identifies (by

category, where appropriate) all the Confidential Material that was returned or destroyed and (2)
affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries
or any other format reproducing or capturing any of the Confidential Material. Notwithstanding
this provision, counsel is entitled to retain any attorney work product.
15. If any person receiving documents covered by this Order is served with a subpoena,
order, interrogatory, or document or civil investigative demand (collectively, a “Demand”)
issued in any other action, investigation, or proceeding, and such Demand seeks material that
was produced or designated as Confidential Material by someone other than the Receiving Party,
the Receiving Party shall give prompt written notice by hand or facsimile transmission within
five (5) business days of receipt of such Demand to the party or non-party who produced or
designated the material as Confidential Material, and shall object to the production of such
materials on the grounds of the existence of this Order. The burden of opposing the enforcement
of the Demand shall fall upon the party or non-party who produced or designated the material as
Confidential Material.

Unless the party or non-party who produced or designated the

Confidential Material obtains an order directing that the Demand not be complied with, and
serves such order upon the Receiving Party prior to production pursuant to the Demand, the
Receiving Party shall be permitted to produce documents responsive to the Demand on the
Demand response date, provided sufficient notice of the Demand is provided. Compliance by
the Receiving Party with any order directing production pursuant to the Demand of any
Confidential Material shall not constitute a violation of this Order. Nothing in this Order shall be
construed as authorizing a party to disobey a lawful subpoena issued in another action.
16. In the event additional parties join or intervene in this litigation, the newly joined
party(ies) shall not have access to Confidential Material until its/their counsel has executed and,

at the request of any party, filed with the Court the agreement of such party(ies) and such counsel
to be fully bound by this Order.
17. The parties agree that nothing in this Order shall be deemed to limit the extent to
which counsel for the parties may advise or represent their respective clients, conduct discovery,
prepare for trial, present proof at trial, including any document herein, or oppose the production
or admissibility of any information or documents which have been requested.
18.

This Order shall remain in full force and effect until such time as it is modified,

amended or rescinded by the Court.
APPROVED:
Jackie M. Jewell (0090499)
Reminger Co., L.P.A.
200 Civic Center Drive, Ste. 800
Columbus, Ohio 43215
Counsel for Defendant Wal-Mart Stores East,
L.P.

Melissa R. Lipchak (0055957)
[e-mail]
7658 Slate Ridge Boulevard
Reynoldsburg, Ohio 43068
Attorney for Plaintiffs
IT IS SO ORDERED.

Date: October 18, 2017

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

AFFIDAVIT
1. My name is _____________________________________________________. I live
at ________________________________________________________________.
2.

I

am

aware

that

a

Protective

Order

has

been

entered

in

____________________________________________, and a copy thereof has been given to me.
3. I acknowledge that documents and information designated as confidential pursuant to
such Protective Order are being disclosed to me only upon the condition that I agree to be subject
to the jurisdiction of this Court and to that Order. I hereby agree to abide by such Order, subject
to all penalties prescribed therein, including contempt of Court, for disobedience of said Order. I
promise that the documents and information given confidential treatment under the Protective
Order entered in this case will be used by me only in connection with assisting counsel for the
parties in preparing for litigation of the above-captioned matters. I understand that any use of
such Confidential Material in any manner contrary to the provisions of the Protective Order will
subject me to the sanctions of this Court for contempt.
4. I promise that I will not disclose or discuss such Confidential Materials or information
any person other than the parties and counsel for the parties or members of their staff.

DATED: _________________, 20

.

____________________________________

EXHIBIT A