Wheeler v. City of Columbus
AGREED PROTECTIVE ORDER. Signed by Magistrate Judge Chelsey M. Vascura on 2/12/2018. (kpt)
THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
SARAH A. WHEELER,
CITY OF COLUMBUS,
CIVIL ACTION NO. 16cv1159
MAGISTRATE JUDGE VASCURA
AGREED PROTECTIVE ORDER
The parties, by and through their legal counsel, stipulate and agree to the terms of this
Order, under Fed.R.Civ.P. 26(c). The parties further agree that the terms of this Agreed
Protective Order shall remain in place until further order of the Court. The Court, having
reviewed the agreement and stipulation of the parties, finds that good cause supports the entry of
such an order and that justice so requires. 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
that 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 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 CONFIDENTIALSUBJECT 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 medical or psychiatric information. 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 of
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, 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 - 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:
i. Counsel. Counsel for the parties and employees and agents of counsel
who have responsibility for the preparation and trial of the action;
ii. Parties. Parties and employees of a party to this Order, their insurance
carriers, brokers, and their claims investigation and administrative
employees reasonably necessary to the evaluation and administration of
iii. Court Reporters and Recorders. Court reporters and recorders engaged
iv. 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
v. 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 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 designation 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
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. Counsel receiving
documentation which has been inadvertently produced shall notify producing
Counsel immediately upon the discovery of the production and shall return the
documents to producing Counsel. Inadvertent production of any document or
information without a designation of “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” shall not waive the protections of this Order.
6. Filing of CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER Documents
Under Seal. The Court highly discourages the manual filing of any pleadings or
documents under seal. To the extent that a brief, memorandum, or pleading references
any document marked as CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,
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 with the Clerk, the filing party shall
first consult with the party that originally designated the document as
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 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.
b. To the extent that it is necessary for a party to discuss the contents of any
confidential information in a written pleading, such portion of the pleading may
be filed under seal with leave of Court. 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 with the Clerk
under seal as above. A copy of the unredacted pleading also shall be delivered to
the judicial officer’s chambers.
c. Where agreement is not possible or adequate, before a CONDIFENTIALSUBJECT TO PROTECTIVE ORDER document is filed, it shall be marked
"CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER DOCUMENTS",
displaying the case name, docket number, a designation of what the document is,
the name of the party on whose behalf it is submitted, and name of the attorney
who has filed the documents.
d. All filing of confidential documents under seal shall be done electronically.
7. Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party
or nonparty 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.
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 7.2 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.
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
b. Return of CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER
documents. Within thirty (30) days after dismissal or entry of final judgment not
subject to further appeal, provided that the producing party has requested the
return in writing, 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:
i. the document has been offered into evidence or filed without restriction as
ii. the parties agree to destruction in lieu of return; or
iii. 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
the subject matter.
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
__/s/ Chelsey M. Vascura
MAGISTRATE JUDGE VASCURA
By: /s/ Samuel M. Schlein
Samuel M. Schlein (0092194)
John S. Marshall (0015160)
Edward R. Forman (0076651)
MARSHALL AND Forman LLC
250 Civic Center Dr., Suite 480
Columbus, Ohio 43215-5296
Fax (614) 463-9780
By: /s/ Jennifer L. Shea per e-mail consent
Jennifer L. Shea (0085239)
Assistant City Attorneys
77 N. Front St., 4 Floor
Columbus, Ohio 43215-9013
Attorneys for Defendants
CERTIFICATE OF SERVICE
On February 09, 2018, the undersigned submitted a copy of the foregoing for electronic
filing, which will constitute service on all registered users pursuant to Civ. R. 5(B)(2)(f).
By: /s/ Samuel M. Schlein
Samuel M. Schlein (0092194)
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Agreed 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 Southern District of Ohio in matters relating to the Agreed
Protective Order and understands that the terms of the Agreed 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 concern. The undersigned acknowledges that violation of the Agreed Protective Order may
result in penalties for contempt of court.
Job Title: _________________________________
Business Address _________________________________
Date: ____________________________ Signature: _________________________________
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