Beach et al v. Secretary of Housing and Urban Development et al

Filing 10

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Norah McCann King on 5/9/2017. (kdp)

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

John C Beach, et al.

Case No. 2:17‐cv‐00240‐MHW‐EPD

Plaintiff,

Judge Michael H. Watson

Magistrate Judge Elizabeth Preston Deavers

v.

Secretary of Housing and Urban
Development, et al.

Defendants.
STIPULATED PROTECTIVE ORDER

The parties to this Stipulated Protective Order have agreed to the terms of this
Order; accordingly, it is ORDERED:
1.

Scope. All material 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 “material” or
“materials”), shall be subject to this Order concerning “Confidential Information” as
defined 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. This Order is also subject to the Federal Rules
of Civil Procedure on matters of procedure and calculation of time periods.
2.

Form and Timing of Designation. (a) A party may designate materials as
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confidential and restricted in disclosure under this Order by placing or affixing the words
“CONFIDENTIAL‐SUBJECT TO PROTECTIVE ORDER” on the material in a manner that will
not interfere with the legibility of the material and that will permit complete removal of
the CONFIDENTIAL‐SUBJECT TO PROTECTIVE ORDER designation. Materials shall be
designated CONFIDENTIAL‐SUBJECT TO PROTECTIVE ORDER prior to or at the time of
the production or disclosure of the materials, notwithstanding the exceptions provided in
¶ 6 of this Order. The designation “CONFIDENTIAL–SUBJECT TO PROTECTIVE ORDER”
does not mean that the material has any status or protection by statute or otherwise
except to the extent and for the purposes of this Order.
(b)

The designation “CONFIDENTIAL‐SUBJECT TO PROTECTIVE ORDER” is a

certification by an attorney or a party appearing pro se that he or she has determined in
good faith that the material contains Confidential Information as defined in this Order.
(c) A party may withdraw its own confidential designation as to any Confidential
Information, except to the extent that it contains unredacted consumer nonpublic personal
information (as defined by 15 U.S.C. § 6809) or other sensitive information as described in
The E‐Government Act of 2002 and the Judicial Conference of the United States Courts’
Policy on Privacy and Public Access to Electronic Case Files. Such withdrawal may be made
by a party’s filing (not under seal) of its own Confidential Information or made in a writing
served upon the parties to this action that specifically identifies the Confidential
Information that shall no longer be treated as confidential pursuant to this Order. Any
withdrawal under this paragraph is limited to the material filed or specified.
3.

Materials Which May be Designated CONFIDENTIAL‐SUBJECT TO

PROTECTIVE ORDER. As used in this Order, “Confidential Information” means materials
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designated as “CONFIDENTIAL‐SUBJECT TO PROTECTIVE ORDER” by the producing
party upon making a good faith determination that the materials fall within one or more
of the following categories: (a) materials prohibited from disclosure by statute, including
consumer nonpublic personal information as defined by 15 U.S.C. § 6809; (b) materials
that reveal trade secrets; (c) research, technical, commercial or financial information that
the party has maintained as confidential; (d) medical information concerning any
individual; (e) personal identity information; (f) income tax returns (including attached
schedules and forms), W‐2 forms and 1099 forms; or (g) personnel or employment
records of a person who is not a party to the case. If any party believes materials not
described above should nevertheless be considered confidential, it may seek a stipulation
among the parties to treat such materials as Confidential Information or it may make an
appropriate application to the Court. Such application shall only be granted for good
cause shown. Materials that are available to the public or generally known in the industry
of the producing party may not be designated as Confidential Information.
4.

Depositions. Deposition testimony shall be deemed Confidential

Information only if designated as such. Such designation shall be made on the record at the
time the testimony is taken or made in writing within 3 business days of the testimony.
Deposition testimony so designated shall be treated as Confidential Information protected
by this Order until 14 days after delivery of the transcript by the court reporter to any party
or the witness. Within 14 days after delivery of the transcript, a designating party may
serve a Notice of Designation to all parties of record identifying the specific portions of the
transcript that are designated Confidential Information, and thereafter those portions
identified in the Notice of Designation shall be protected under the terms of this Order. The
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failure to serve a timely Notice of Designation waives any designation of deposition
testimony as Confidential Information that was previously made, unless otherwise ordered
by the Court.
5.

Protection of Confidential Material.

(a)

General Protections. Confidential Information 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 Information to any third
person or entity except as set forth in subparagraphs (1)‐(12). Subject to these
requirements, the following categories of persons may be allowed to review
Confidential Information:
(1)

Counsel for the parties and employees and agents of counsel who
have responsibility for the preparation and trial of the action.

(2)

Individual parties and employees of a party but only to the extent
counsel determines in good faith that the employee’s assistance is
reasonably necessary to the conduct of the litigation in which the
information is disclosed.

(3)

(4)

(5)

Court reporters and recorders engaged for depositions.
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;
Insurers for the parties and employees of insurers for the parties.
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(6)

The Court and its personnel.

(7)

Those persons specifically engaged for the limited purpose of
making copies of documents or organizing or processing
documents, including outside vendors hired to process
electronically stored documents.

(8)

During their depositions, witnesses in this action to whom disclosure
is reasonably necessary. Witnesses shall not retain a copy of
documents containing Confidential Information, except witnesses
may receive a copy of all exhibits marked at their depositions in
connection with review of the transcripts. Pages of transcribed
deposition testimony or exhibits to depositions that are designated
as Confidential Information pursuant to the process set out in this
Order must be separately bound by the court reporter and may not
be disclosed to anyone except as permitted under this Order.

(9)

The author or recipient of the document (not including a person
who received the document in the course of litigation).

(10)

(11)

Any arbitrator or mediator.

(c)

Other persons whom the attorneys by consent deem reasonably
necessary to review Confidential Information for the prosecution or
defense of this litigation, but only after such persons have completed
the certification contained in Attachment A, Acknowledgment of
Understanding and Agreement to Be Bound.

(12) Other persons only by order of the Court and on such conditions as
may be agreed or ordered.

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

appropriate measures to prevent unauthorized or inadvertent disclosure of
Confidential Information. Each person who is permitted to see or is informed of
Confidential Information shall be shown a copy of this Order and shall be advised, by
counsel or the party appearing pro se showing the person Confidential Information, of
this Order and each person’s obligation to maintain the Confidential designation. Counsel
shall maintain the originals of the forms signed by persons acknowledging their
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obligations under this Order (if required by ¶ 5(b) 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 Confidential Information, or any individual portion of such
a document, shall be affixed with the designation “CONFIDENTIAL ‐ SUBJECT TO
PROTECTIVE ORDER” if the word 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 materials provided these
indices, electronic databases or lists do not contain substantial portions or images of
the text of confidential materials or otherwise disclose the substance of the
confidential information contained in those materials. Parties shall not duplicate any
Confidential Information except for using as working copies and for filing in a manner
consistent with the terms of this Order with the applicable Court Rules.

6.

Inadvertent Failure to Designate. An inadvertent failure to designate

material as Confidential Information does not, standing alone, waive the right to so
designate the material; provided, however, that a failure to serve a timely Notice of
Designation of deposition testimony as required by this Order, even if inadvertent, waives
any protection for deposition testimony. If a party designates material as Confidential
Information after it was initially produced, the receiving party, on notification of the
designation, must make a reasonable effort to assure that the material is treated in
accordance with the provisions of this Order. No party shall be found to have violated this
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Order for failing to maintain the confidentiality of material during a time when that
material has not been designated Confidential Information, even where the failure to so
designate was inadvertent and where the material is subsequently designated
Confidential Information.
7.

Filing of Confidential Information Under Seal. The Court highly

discourages the manual filing of any pleadings or materials under seal. To the extent that a
brief, memorandum or pleading references any Confidential Information, then 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)

This Order does not, by itself, authorize the filing of any material under seal.

Before any Confidential Information is filed under seal with the Clerk, the filing party shall
first consult with the party that originally designated the material as CONFIDENTIAL ‐
SUBJECT TO PROTECTIVE ORDER to determine whether, with the consent of that party,
the material or a redacted version of the material 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, then such portion of the pleading, motion
or filing and/or any attachments and/or exhibits attached thereto may be filed under seal
with leave of Court. In such circumstances, counsel shall prepare two versions of the
pleadings, motion or filing, 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,
motion or filing and shall be filed under in accordance with Local Rule.
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8.

Challenges by a Party to Designation as Confidential. The designation of

any material as Confidential Information is subject to challenge by any party or nonparty
with standing to object (hereafter “party”). The following procedure shall apply to any
such challenge.
(a) Meet and Confer. A party challenging the designation of Confidential
Information must do so in good faith and must begin the process by conferring directly
with counsel for the designating party. In conferring, the challenging party must explain
the basis for its belief that the confidentiality designation was not proper and must give
the designating party an opportunity to review the designated material, to reconsider the
designation, and, if no change in designation is offered, to explain the basis for the
designation. The designating party must respond to the challenge within 3 business days.
If agreement is reached confirming or waiving the CONFIDENTIAL ‐ SUBJECT TO
PROTECTIVE ORDER designation as to any material subject to the objection, the
designating party shall serve on all parties a notice specifying the documents and the
nature of the agreement.

(b)

Judicial Intervention. If no agreement can be reached, a party that elects

to challenge a confidentiality designation may file and serve a motion that identifies the
challenged material and sets forth in detail the basis for the challenge. Each such motion
must be accompanied by a competent declaration that affirms that the movant has
complied with the meet and confer requirements of this procedure. The burden of
persuasion in any such challenge proceeding shall be on the designating party. Until the
Court rules on the challenge, all parties shall continue to treat the materials as Confidential
Information under the terms of this Order.
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9.

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

Confidential Information shall be by motion 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 materials
produced or use in discovery or at trial.
10.

Use of Confidential Materials or Information at Trial. All trials are open

to the public. Absent an order of the Court, there will be no restrictions on the use of any
material that may be introduced by any party during the trial. If a party intends to present
at trial Confidential Information or information derived directly therefrom, such party
shall provide advance notice to the other party at least 5 days before the commencement
of trial by identifying the materials or information at issue as specifically as possible (i.e.,
by Bates number, page range, deposition transcript lines, etc.) without divulging the actual
Confidential Information. The Court may thereafter make such orders as are necessary to
govern the use of such materials or information at trial.
11.

No Greater Protection of Specific Materials. Except on privilege

grounds not addressed by this Order, no party may withhold information from discovery
on the ground that it requires protection greater than that afforded by this Order unless
the party moves for an order providing such special protection.
12.

Confidential Information Subpoenaed or Ordered Produced in

Other Litigation.
(a)

If a receiving party is served with a subpoena or an order issued in other

litigation that would compel disclosure of any material designated in this action as
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Confidential Information, the receiving party must so notify the designating party, in
writing, immediately and in no event more than 5 business days after receiving the
subpoena or order. Such notification must include a copy of the subpoena or court order.
(b)

The purpose of imposing these duties is to afford the designating party in

this case an opportunity to try to protect its Confidential Information in the court from
which the subpoena or order issued. The designating party shall bear the burden and the
expense of seeking protection in that court of its Confidential Information, and nothing in
these provisions should be construed as authorizing or encouraging a receiving party in
this action to disobey a lawful directive from another court. The obligations set forth in
this paragraph remain in effect while the party has in its possession, custody or control
Confidential Information by the other party to this case.
13.

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 Information. Within thirty days after dismissal or

entry of final judgment not subject to further appeal, all Confidential Information under this
Order, including copies as defined in ¶ 5(d), shall be returned to the producing party unless:
(1) the material 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 materials bearing the
notations, summations, or other mental impressions of the receiving party, that party elects
to destroy the materials and certifies to the producing party that it has done so.
Notwithstanding the above requirements to return or destroy materials, counsel may retain
attorney work product, including an index which refers or relates to Confidential
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Information, so long as that work product does not duplicate verbatim substantial portions
of the text or images of confidential materials. This work product shall continue to be
Confidential Information 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
Information.
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
concerning the subject matter.
15.

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
materials 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.
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.
17.

Additional Parties. In the event that any additional persons or entities

become parties to this litigation or make an appearance, no such additional party shall
have access to Confidential Information until the party has executed and filed with the
Court a copy of this Order, or other agreement to be bound thereby.
18.

No Waiver.
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(a)

Review of Confidential Information by counsel, experts, or consultants for

the litigants in this litigation shall not waive the confidentiality of the materials or any
objection to production permitted by the Federal Rules of Civil Procedure.
(b)

The in camera disclosure of Confidential Information shall not, under any

circumstances, be deemed a waiver, in whole or in part, of any party’s claim of
confidentiality.
(c)

Pursuant to Fed. R. E. 502(d), any privilege or protection afforded to

Confidential Information is not waived by disclosure.
19.

Reservation of Rights. Nothing contained in this Order, and no action

taken pursuant to it, shall prejudice the right of any party to contest the alleged relevancy,
admissibility, or discoverability of the documents and information sought.

So Ordered.

s/ Norah McCann King

Magistrate Judge Norah McCann King
May 9, 2017

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WE SO STIPULATE and agree to abide by the

terms of this Order:

By: /s/ David L. Van Slyke

David L. Van Slyke (No. 0077721)
PLUNKETT COONEY

300 East Broad Street Suite 590
Columbus, Ohio 43215
Main: 614/629‐3000
Direct: 614/629.3006 (Van Slyke)
Fax 614/629‐3019
[e-mail]
Counsel for Plaintiffs

s/Leah M. Wolfe

LEAH M. WOLFE (0093299)
Assistant United States Attorney
303 Marconi Boulevard, Suite 200
Columbus, Ohio 43215
Phone No.: (614) 469‐5715
Fax No.: (614) 469‐2200
Email: [e-mail]
Counsel for Defendant HUD

/s/ Kimberly Y. Smith Rivera

Kimberly Y. Smith Rivera (0066849)
McGlinchey Stafford
25550 Chagrin Boulevard, Suite 406
Cleveland, Ohio 44122‐4640
Telephone: (216) 378‐9905
Facsimile: (216) 378‐9910
[e-mail]
Counsel for Defendant Ocwen Loan Servicing, LLC

/s/Mitchell Marczewski (0073258)
MARCZEWSKI LAW OFFICES LLC
1020 Maple Ave.
Zanesville OH 43701
740‐453‐8900
740‐453‐8988 Fax
[e-mail]
Counsel for Defendant Stacy Lang

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ATTACHMENT A

John C Beach, et al.

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

Case No. 2:17‐cv‐00240‐MHW‐EPD

Plaintiff,

Judge Michael H. Watson

Magistrate Judge Elizabeth Preston Deavers

v.

Secretary of Housing and Urban
Development, et al.

Defendants.

ACKNOWLEDGMENT AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the 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 Northern District of Ohio in matters
relating to the Protective Order and understands that the terms of the Protective Order
obligate him/her to use materials designated as Confidential Information 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 Protective Order may result in

penalties for contempt of court.

Name:

Job Title:

Employer:
Business Address:

Date:

Open.10100.70140.18387775‐1

Signature