Bucy v. Comfy Couch Company et al

Filing 30

AGREED PROTECTIVE ORDER. Signed by Magistrate Judge Chelsey M. Vascura on 11/30/2017. (kpt)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DIANE BUCY

CASE NO. 2:16-CV-01188

Plaintiffs,

Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Chelsey M. Vascura

v.
COMFY COUCH COMPANY, et al.
AGREED PROTECTIVE ORDER

Defendants.

Pursuant to Federal Civil Rule 26 and applicable solely to the parties to this suit and to
protect confidential business, financial and personal information of the parties and various thirdparties that is deemed confidential and in a manner consistent with applicable law,
IT IS HEREBY ORDERED:
1.

The purpose of this Order is to limit the publication of the following categories of

information that may be deemed disclosed during the course of the above-captioned case (“the
Litigation”), which are deemed confidential and not available in the public domain
(“Confidential Information”):
(a)

Proprietary information of a party; and

(b)

Propriety and personal information of any non-party; and

(c)

Financial, business or personal information pertaining to the business of a party
and documents containing such information; and

2.

Any documents, answers to interrogatories, responses to requests for admission,

deposition testimony, deposition transcripts and exhibits, other responses to requests for
information and/or other written information which are produced, either in response to discovery
requests or to subpoenas in this litigation by any party (hereafter, collectively “Discovery
1

Materials”), may be designated by a producing party as “Confidential Information” under this
Protective Order.
3.

“Confidential Information” shall include any Discovery Materials which the

producing party has good cause to believe contains information not in the public domain or
contains any trade secret or other confidential, strategic, research, development, or commercial
information.
4.

Any Discovery Materials that are to be designated “Confidential” may be so

designated by the producing party by providing copies of the Discovery Materials so designated
that are stamped with the legend “CONFIDENTIAL” or “CONFIDENTIAL—SUBJECT TO
PROTECTIVE ORDER.” The receiving party must treat such materials as Confidential
Information from the date the material with the designation is received. Prior to the receipt of
such designation, disclosure of such information to persons not authorized to receive
Confidential Information shall not be deemed a violation of this Order.
5.

Each party producing information reserves their respective rights to contend that

otherwise confidential material was inadvertently produced without the necessary designation,
and the receiving party does not waive or relinquish any argument that the production of
allegedly confidential information amounts to a waiver of such claim.
6.

Deposition testimony and the transcripts taken during pretrial discovery shall be

treated as Confidential Information during the deposition and until ten (10) business days after
receipt of such deposition transcript to allow time for the deponent or counsel for that deponent,
or any party or counsel to any party, to notify all parties of any Confidential Information
contained within the testimony. Such Confidential Information shall be designated by page and
line number.

2

7.

Except as provided herein, Confidential Information shall be used solely for the

purposes of this litigation between these parties and not, directly or indirectly, for any
competitive, business or other purpose.
8.

Nothing herein shall impose any restrictions on the use or disclosure by a party of

documents, material or information obtained by such party independently of the discovery
proceedings in this action, whether or not such documents, material or information are also
obtained through discovery proceedings in this action.
9.

Confidential Information may be disclosed only to the following persons:
(a)

the Court;

(b)

counsel for a party;

(c)

consultants, experts, or litigation support service providers, including
outside copying services, retained by a party for the purpose of assisting
that party in this Litigation;

(d)

associated personnel of any person within categories (a) through (c) for
whom access to Confidential Information is necessary to assist such
persons in the Litigation, including any Court personnel assisting the
Court, litigation assistants, paralegals, secretarial or other clerical
personnel, stenographers or other persons involved in taking or
transcribing testimony in this action, and principals and employees of the
firm with which consultants or experts are associated;

(e)

the parties to the Litigation; and

(f)

employees of the parties to the action.

3

10.

Confidential Information shall not be copied or reproduced except to the extent

such copying or reproduction is reasonably necessary to the conduct of this Litigation. All such
copies or reproductions shall be subject to the terms of this Order. If the duplicating process by
which copies of Confidential Materials are made does not reproduce the “CONFIDENTIAL” or
“CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” stamp appearing on the original, all
copies shall be stamped with a “CONFIDENTIAL” or “CONFIDENTIAL SUBJECT TO
PROTECTIVE ORDER” designation. All copies of Confidential Information shall be kept under
the control of person(s) described in paragraphs 9(a) through (f) above. No information obtained
under this Order shall be added to any electronic database for any other purpose.
11.

If the receiving party disagrees with the designation by the producing party of any

Discovery Materials as Confidential Information, then the parties to the dispute will attempt to
resolve the dispute on an informal basis before presenting the dispute to the Court. All items
objected to shall continue to be treated as Confidential in their designated status pending
resolution of the parties’ dispute. If the dispute cannot be resolved informally, the producing
party bears the burden of persuading the Court that the information is in fact Confidential within
the definition(s) of those term(s) set forth above. The parties may dispute the designation of
Confidential Information at any time during the pending proceeding, and any delay in so doing
shall not constitute a waiver of the right to dispute the designation of Confidential Information.
12.

Entering into, agreeing to, and/or complying with the terms of this Order shall

not:
(a) operate as an admission by any party that any particular documents, material or
information contain or reflect currently valuable trade secrets or proprietary or
commercial information; or

4

(b) prejudice in any way the right of a party at any time:
(i) to seek a determination by the Court of whether any particular document, item
of material or piece of information should be subject to the terms of this Order;
(ii) to seek relief on appropriate notice from any provision(s) of this Order, either
generally or as to any particular document, item of material or piece of
information;
(iii) to object to any discovery request, including the right to assert that no
discovery should be had of certain documents or information; or
(iv) to seek documents or other information from any source.
13.

The Court highly discourages the 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, then the brief, memorandum or
pleading shall refer the Court to the particular exhibit filed under seal, after seeking leave of
Court pursuant to Local Rule 5.2.1,

without disclosing the contents of any confidential

information
(i) 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.
(ii) 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

5

may be filed under seal with leave of Court, pursuant to Local Rule 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 with the Clerk under seal as above. A copy of the unredacted pleading
also shall be delivered to the judicial officer’s chambers.
(iii) 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 and shall not file any documents or pleadings
manually with the Clerk of Court.
14.

The parties shall confer and attempt to agree before any trial or other evidentiary

hearing on the procedures under which Confidential Information may be introduced into
evidence or otherwise used at such trial or hearing. Absent agreement, the Court shall be asked to
issue an order governing the use of such Confidential Information at trial or evidentiary hearing
upon reasonable notice to all parties.
15.

Within ten business days following the running of any applicable time to appeal

the final order entered in this litigation, all parties shall return to the person who produced such
materials all originals and copies of all Confidential Information obtained through discovery in
this action, including all copies, excerpts, summaries or other materials derived therefrom
(except attorney work product). Within this same time, the receiving party shall also verify that
all electronically stored Confidential Information has been permanently deleted. Notwithstanding
the foregoing, counsel for each party may retain motion papers, briefs, notes, memoranda or

6

other documents which contain Confidential Information, including electronically stored
information. This Protective Order shall continue to apply to all such documents retained by any
party in accordance with the preceding sentence.
16.

This order shall not affect the right of any party to oppose the production of

Discovery Materials on any ground permitted by the Ohio Rules of Civil Procedure, including
any applicable privilege. Moreover, this Order shall not affect the scope of discovery.
17.

Nothing in this Order shall prejudice the right of any party or non-party to move

the Court to broaden or restrict the rights of access to and use of particular Discovery Materials,
or to seek modifications of this Order upon due notice to all other parties and affected nonparties.
18.

The signature(s) of counsel hereon shall be binding upon themselves, all affiliated

counsel, and their respective clients herein.
19.

Any party to this Litigation who designates any documents as

“CONFIDENTIAL” and it is subsequently determined by the Court not to be confidential, the
party so designating that information “CONFIDENTIAL” shall be responsible for the
reimbursement of any and all costs and expenses incurred by the non-offending party relating to
those “CONFIDENTIAL” documents so challenged.
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

7

HAVE SEEN AND AGREED:

/s/Christopher P. Wido
Christopher P. Wido
The Spitz Law Firm, LLC.
25200 Chagrin Boulevard, Suite 200
Beachwood, Ohio 44122
p. 216.291.4744
f. 216.291.5744
[e-mail]
Attorneys for Plaintiffs

/s/Jennifer K. Nordstrom
Jennifer K. Nordstrom
GARVEY│SHEARER│NORDSTROM, PSC
2400 Chamber Center Drive, Suite 210
Ft. Mitchell, Kentucky 41017
p. 513.445.3373
f. 866.675.3676
[e-mail]
Attorney for Defendants

8