Bond et al v. Antero Resources Corporation et al

Filing 29

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 12/14/2017. (ew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JEFFREY T. BOND, et al.,
Plaintiffs,
v.
ANTERO RESOURCES CORPORATION,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 2:17-cv-00014

JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE JOLSON

STIPULATED PROTECTIVE ORDER
The parties to this Stipulated Protective Order have agreed to the terms of this Order and,
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, and other
electronically stored information or 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)

Form. A party may designate a document as confidential and restricted in

disclosure under this Order by placing or affixing the words “CONFIDENTIAL” or
1

“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 designation.

Documents produced in native format may be designated as

CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY by separate letter
indicating the Bates numbers and designations of each document so designated and/or by
placing CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY in the title
of the document.

Deposition testimony may be designated CONFIDENTIAL or

CONFIDENTIAL-ATTORNEYS EYES ONLY by making a statement so designating
specific portions of testimony or exhibits on the record or in writing and directing the
court reporter to mark the affected pages of the transcript.
(b)

Timing.
(1)

Initial Designation.

Documents shall be initially designated

CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY prior to or
at the time of the production or disclosure of the documents.

A statement

designating testimony as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS
EYES ONLY shall be made at the deposition or hearing, or within thirty (30)
days after receipt of a final transcript.
(2)

Subsequent Designation. A party may designate any document as

CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY subsequent
to its first disclosure or production, provided that any such designation (i) must be
in writing; (ii) must specifically identify the document designated; and (iii) shall
only apply to the treatment and disclosure of such document after such written
designation is received. Where a subsequent designation is made, any party that

2

previously received the document shall immediately return copies of the
document

not

bearing

the

“CONFIDENTIAL”

or

“CONFIDENTIAL-

ATTORNEYS EYES ONLY” stamp and shall make all reasonable efforts to
retrieve such document from any persons not authorized to hold it under this
Order.
3.

Documents

Which

May

be

Designated

CONFIDENTIAL

or

CONFIDENTIAL-ATTORNEYS EYES ONLY.
(a)

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, medical or psychiatric information, trade
secrets, personnel records, competitively sensitive business or technical information,
proprietary business methods or practices, and/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.
(b)

CONFIDENTIAL-ATTORNEYS EYES ONLY.

Any party may

designate documents that meet the requirements of ¶ 3(a) as CONFIDENTIALATTORNEYS EYES ONLY upon making a good faith determination that the disclosure
of the documents to another party or non-party would create a heightened risk of harm to
the competitive, commercial, financial, or business position of the disclosing party.
4.

Protection of Confidential Material.
(a)

General Protections. Documents designated CONFIDENTIAL shall not

be used or disclosed by the parties, counsel for the parties, or any other persons identified

3

in ¶ 4(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 – CONFIDENTIAL Documents.

The parties and counsel for the parties shall not disclose or permit the disclosure of any
CONFIDENTIAL documents to any third persons except the following categories of
persons:
(1)

Parties.

Named parties in this litigation, and their officers,

directors, or employees assisting in the preparation and trial of this action or
proceeding;
(2)

Counsel. Counsel for the parties, and employees and agents of

counsel who have responsibility for the preparation and trial of the action;
(3)

Court.

The Court, its officers, and court reporters providing

stenographic or video services in this litigation;
(4)

Court Reporters and Recorders. Court reporters and recorders

engaged for depositions, but only after such persons have completed the
certification contained in Attachment A, Acknowledgement of Understanding and
Agreement to Be Bound;
(5)

Consultants,

Investigators,

and

Experts.

Consultants,

investigators, or 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;

4

(6)

Mediators. Any special master, mediator, or arbitrator engaged by

the parties or authorized by the Court for purposes of mediation, arbitration, or
other dispute resolution regarding issues arising in this litigation;
(7)

Witnesses.

A witness in this litigation to whom disclosure is

reasonably necessary and who is not otherwise authorized to view the
CONFIDENTIAL information in question, during or in preparation for that
witness’s testimony at a deposition in the litigation, provided that if the individual
is not an employee of the Parties, then only after such witness is executes a copy
of the acknowledgment contained in Attachment A or, alternatively, states
affirmatively on the record in connection with being shown CONFIDENTIAL
information during the deposition that he or she received the form and consent to
the restrictions contained in this Stipulated Protective Order, a copy of which
shall be offered to the deponent;
(8)

Authors/Prior Recipients. An individual who, according to the

face of the designated documents, authored or received the confidential
information, provided that if the individual is not an employee of the Parties, then
only after such person has completed the certification contained in Attachment A,
Acknowledgement of Understanding and Agreement to Be Bound;
(9)

Service Bureaus. Service bureaus engaged by counsel of record

to perform electronic discovery or clerical-type services in connection with this
litigation, such as electronic discovery services, photocopying, imaging, computer
data entry, clerical aids, trial preparation, and graphics firms, provided that such
service bureaus complete the certification contained in Attachment A,

5

Acknowledgement of Understanding and Agreement to Be Bound, or sign a
contract of engagement with enforceable confidentiality obligations that are
substantially similar to those set forth in Attachment A prior to receiving any
confidential documents; and
(10)

Others by Consent. Other persons only by written consent of the

designating party or upon order of the Court and on such conditions as may be
agreed or ordered, including a condition that such persons must execute the
certification contained in Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound.
(c)

Limited Third-Party Disclosures – CONFIDENTIAL-ATTORNEYS

EYES ONLY Documents. The parties and counsel for the parties shall not disclose or
permit the disclosure of any CONFIDENTIAL-ATTORNEYS EYES ONLY documents
to any persons except as set forth in ¶ 4(b)(2)-(10), provided that if the individual set
forth in ¶ 4(b)(7)-(8) is an employee of one of the Parties, such individual shall sign the
acknowledgement contained in Attachment A before viewing any CONFIDENTIALATTORNEYS EYES ONLY documents.
(d)

Control of Documents. Counsel for the parties shall take reasonable and

appropriate measures to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY 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 one year after the
conclusion of this litigation by dismissal or entry of final judgment not subject to further
appeal.

6

(e)

Copies.

Prior to production to another person, all copies, electronic

images, duplicates, extracts, summaries or descriptions (hereinafter referred to
collectively

as

“copies”)

of

documents

designated

as

CONFIDENTIAL

or

CONFIDENTIAL-ATTORNEYS EYES ONLY under this Order, or any individual
portion of such a document, shall be affixed with the appropriate confidentiality
designation if it does not already appear on the copy. All such copies shall 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.
5.

Filing of CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES

ONLY Documents Under Seal. Pursuant to Local Rule 5.2.1, the parties cannot file documents
under seal without first obtaining leave of Court.
(a)

Before any motion for leave to file a document marked CONFIDENTIAL

or CONFIDENTIAL-ATTORNEYS EYES ONLY under seal is filed with the Clerk, the
filing party shall first consult with the party that originally designated the document as
CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY to determine
whether, with the consent of the designating party, the document or a redacted version of
the document may be filed with the Court not under seal.
(b)

The Court highly discourages the manual filing of any documents under

seal. Upon obtaining leave of Court, all filings made under seal shall be submitted
electronically whenever possible and linked to this authorizing Order. A document shall

7

only be filed manually under seal if electronic filing is not possible. If a sealed document
cannot be filed electronically, before a CONFIDENTIAL or CONFIDENTIALATTORNEYS EYES ONLY document is manually filed with the Clerk, it shall be
placed in a sealed envelope marked “CONFIDENTIAL – DOCUMENTS SUBJECT TO
PROTECTIVE ORDER” on the front of the envelope with the case name, case number, a
designation of what the document is, the name of the party on whose behalf it is
submitted, a reference to the specific electronic filing number of this Order, and the name
of the attorney who has filed the document.
(c)

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

confidential information in a written pleading or filing, such portion of the pleading or
filing shall also be filed under seal after obtaining leave of Court. In such circumstances,
counsel shall prepare two versions of the pleading or filing: a public one and a
confidential one.

The public version shall contain a redaction of all references to

CONFIDENTIAL or to CONFIDENTIAL ATTORNEYS EYES ONLY documents
and/or contain a redaction of all references to CONFIDENTIAL or to CONFIDENTIAL
ATTORNEYS EYES ONLY information derived from the CONFIDENTIAL or to
CONFIDENTIAL ATTORNEYS EYES ONLY documents. The confidential version
shall be a full and complete version of the pleading or filing and shall be filed under seal
after obtaining leave of Court.

If both redacted and unredacted versions are being

submitted for filing, each version shall be clearly named so there is no confusion as to
why there are two entries on the docket for the same filing.
6.

Challenges by a Party to Designation.

Any CONFIDENTIAL or

CONFIDENTIAL-ATTORNEYS EYES ONLY designation is subject to challenge by any party

8

or non-party with standing to object (hereafter the “objecting party”). Before filing any motions
or objections to a confidentiality designation with the Court, the objecting party shall notify the
designating party of such dispute in writing, identifying the documents in dispute and the nature
of the dispute. The designating party must respond in writing within twenty-one (21) days of
service of the notification. If the parties are unable to amicably resolve their dispute, the
objecting party may, within thirty (30) days of service of the designating party’s response, file a
motion with the Court seeking a ruling as to whether the designated document should be treated
as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY under this Order. Any
documents submitted for in camera inspection shall be submitted pursuant to Section 7 of this
Order and Local Rule 5.2.1(b).

If agreement is reached confirming or waiving the

CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY 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.
7.

Documents Submitted for In Camera Inspection.

Pursuant to Local Rule

5.2.1(b), unless the Court directs otherwise, documents submitted for in camera inspection must
be submitted to the Clerk in a securely sealed envelope or box. The face of the envelope or box
containing such documents, as well as the first page of each document, must state that it contains
“DOCUMENTS FOR IN CAMERA INSPECTION” or “DOCUMENTS UNDER SEAL.” The
face of the envelope or box shall also contain the case caption, a descriptive title of the
documents (unless such information is to be, or has been, included among the information
ordered sealed), and a reference to the specific order or statute permitting the documents to be
sealed.

9

8.

Breach of the Order. It shall be the obligation of counsel, upon learning of any

breach or threatened breach of this Order by any person, to promptly notify counsel for the
designating parties of such breach or threatened breach. In the event of a disclosure of any
confidential documents to any person not authorized to receive such documents under this Order,
the party responsible for having made such disclosure, and each party with knowledge thereof,
shall promptly notify counsel for the designating party and provide to such counsel all known
relevant information concerning the nature and circumstances of the disclosure. The party
responsible for the unauthorized disclosure shall also promptly undertake all reasonable best
efforts to retrieve the improperly disclosed documents and to ensure that no further or greater
unauthorized disclosure and/or use thereof is made.
9.

Action by the Court. 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 for use in discovery or at trial.
10.

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 CONFIDENTIAL-ATTORNEYS EYES ONLY documents or information
derived therefrom, such party shall provide advance notice to the other parties at least thirty (30)
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 or CONFIDENTIAL-ATTORNEYS EYES
ONLY 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

11.

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 CONFIDENTIAL-ATTORNEYS

EYES ONLY Documents. Within thirty (30) days after dismissal or entry of final
judgment not subject to further appeal, all documents treated as CONFIDENTIAL or
CONFIDENTIAL-ATTORNEYS EYES ONLY under this Order, including copies as
defined in ¶ 4(e), shall be returned to the designating 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 designating 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 or CONFIDENTIAL-ATTORNEYS EYES ONLY, so long
as that work product does not duplicate substantial portions of the text or images of
confidential documents. This work product shall continue to be protected under this
Order and said work product may not be used in any subsequent litigation or matter.
(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

12.

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.
13.

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 or CONFIDENTIAL-ATTORNEYS EYES ONLY 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.
Nothing in this Order shall be taken as or constitute a waiver of attorney-client privilege, workproduct protections, or other applicable protections provided by law.
14.

Rule 502(d) Order. The production or disclosure of an attorney-client, work-

product, or other privileged or protected document shall not be deemed a waiver of the attorneyclient privilege, work-product protection, or other protection or immunity from discovery by the
producing or protected party in this or any subsequent state or federal proceeding pursuant to
Federal Rule of Evidence 502 regardless of the circumstances of disclosure.

If any party

becomes aware of the production or disclosure of privileged or protected documents by any other
party, that party shall provide written notice of such production or disclosure within thirty (30)
days of learning of the production or disclosure.
15.

Asserting Attorney-Client Privilege or Work-Product Protection. Any party

may assert attorney-client, work-product, or other privilege or protection at any time by notifying
the other parties in writing.

12

(a)

Where the Receiving Party Does Not Contest Privilege/Protection.

Promptly, no later than fourteen (14) days of service of this written notice, the receiving
party shall, to the extent it does not contest the assertion of privilege or protection, certify
in writing to the party claiming privilege that the receiving party has returned or
destroyed the applicable documents and has made all reasonably diligent efforts to
retrieve, identify, and destroy each copy thereof and all information derived therefrom.
Normal reasonable diligence will not include disaster recovery media.
(b)

Where the Receiving Party Contests Privilege/Protection. Promptly,

no later than fourteen (14) days of service of this written notice, the receiving party shall,
to the extent that it contests the assertion of privilege or protection notify the party
claiming privilege to what extent the receiving party contests the assertion of privilege or
protection. The parties thereafter shall meet and confer in good faith. If the contest is not
resolved, either party may move the Court for a ruling on the privileged or protected
nature of the document. However, the party challenging the assertion of privilege or
protection must protect the confidentiality of the contested document and treat it as
privileged pending resolution of the contest by the Court.
16.

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. Paragraph thirteen (14) of this Order is binding to the fullest extent allowed by Fed. R.
Evid. 502(d).
IT IS SO ORDERED.
Date: December 14, 2017

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

13

Dated: December 14, 2017

/s/ Larry D. Shenise
Larry D. Shenise (0068461)
P.O Box 471
Tallmadge, Ohio 44278
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
/s/ Warner Mendenhall
Warner D. Mendenhall (0070165)
190 N. Union Street, Suite 201
Akron, OH 44305
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
Counsel for Plaintiffs

WE SO STIPULATE
and agree to abide by the
terms of this Order

/s/ Peter A. Lusenhop
William G. Porter (0017296), Trial Attorney
Peter A. Lusenhop (0069941)
Steven A. Chang (0088321)
Jessica Knopp Cunning (0089165)
VORYS, SATER, SEYMOUR AND PEASE
LLP
52 E. Gay St.
Columbus, OH 43215
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants Antero Resources
Corporation

14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JEFFREY T. BOND, et al.,
Plaintiffs,
v.
ANTERO RESOURCES CORPORATION,
et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case No. 2:17-cv-00014

JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE JOLSON

ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
December _____, 2017, 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 Protective
Order and understands that the terms of the Protective Order obligate him/her/it to use
documents designated CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS EYES ONLY
and/or information derived from said documents 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.

15

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

16