Daniels v. Grange Mutual Casualty Company

Filing 12

JOINT STIPULATION AND PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 9/18/2017. (ew)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kendra Daniels,
Plaintiff,
v.
Grange Mutual Casualty Company,

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Case No. 2:17-cv-271
Judge George C. Smith
Magistrate Judge Jolson

Defendant.
JOINT STIPULATION AND PROTECTIVE ORDER
Pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure and the stipulation of
the Parties, the Court enters this Protective Order. It is hereby ORDERED THAT:
(1)

Designation of Confidential Material. Any Party to this lawsuit (individually, a

“Party,” and collectively the “Parties”) may designate any items or information produced by her
or it, or produced by a non-party agent in possession of her or its information, as Confidential
Information (“Confidential Information”), if such designating Party has a good faith belief that
(i) the designated information constitutes, contains, and/or relates to a trade secret, as defined
under Ohio law, the Defend Trade Secrets Act of 2016, or other confidential research,
development or commercial information as described in Fed.R.Civ.P. 26(c)(1)(G), (ii) the
designated information is protected by law and/or contract, or (iii) the designated information is
information that a Party reasonably believes contains confidential business or personal
information such as non-party personnel documents or proprietary business procedures and
practices or other similar information that a reasonable person or business would regard as
personal and confidential. Any “Confidential Information” so designated may only be used in

connection with these proceedings and shall not be disclosed or utilized in any other respect,
except as otherwise provided for in this Protective Order.
(2)

Procedure

to

Challenge

Confidential

Information

Designations.

Any

“Confidential Information” designation shall be without prejudice to the rights of any other Party
to apply to the Court for a determination of whether the designation is proper. The challenging
Party, however, shall first use extrajudicial attempts as set forth in Fed. R. Civ. P. 37(a)(1). If
those attempts fail, then the challenging Party shall have the right to file an appropriate motion
seeking a ruling from the Court regarding the propriety of the “Confidential Information”
designation. If the challenging Party files such a motion, the designating Party shall bear the
burden of establishing to the Court’s satisfaction that the designated material qualified for
treatment as Confidential Information.
(3)

Method of Confidential Information Designation. The designation of information

as “Confidential Information” for purposes of this order shall be made as follows:
(a)

In the case of items or information in documentary form, including
without limitation documents, answers to interrogatories, or other written
materials (apart from depositions, other pretrial testimony, transcripts
thereof or exhibits thereto), by stamping each page of such “Confidential
Information” with “Confidential” or “Confidential, Subject to Protective
Order,” or some similar or comparable designation.

(b)

In the case of depositions, including the transcripts thereof and exhibits
thereto, by a statement on the record by counsel for the Party making the
disclosure at the time of such disclosure, or in writing to opposing counsel
anytime within 30 days after the deposition is transcribed and transmitted
for review.

(c)

For items or information in some form other than documentary, and for
any other tangible items, the Party designating the information shall affix
in a prominent place on the exterior of the container, disk or other media
in which the item or information is stored the legend “Confidential,” or
“Confidential, Subject to Protective Order,” or some similar designation.

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(4)

Inadvertent Failures to Designate Confidential Information.

Inadvertent failure to identify information as Confidential Information pursuant to this
Protective Order shall not constitute a waiver of any otherwise valid claim for protection,
provided that the provisions of this paragraph are followed. If a Party discovers that information
should have been but was not designated as Confidential Information, that Party must notify all
other Parties in writing within 7 days of such discovery, and must specify which information
should be designated as “CONFIDENTIAL.” In that event, within 7 days of notifying all other
Parties, that Party must provide copies of the Protected Materials with the appropriate
designation in accordance with this Protective Order.

After receipt of such re-designated

information, the Confidential Information shall be treated in accordance with the protections
afforded under this Protective Order. The Party in receipt of the information shall have no
liability, under this Protective Order or otherwise, for any disclosure of information occurring
before that Party was placed on notice of the producing Party’s claims of confidentiality.
(5)

Use of Confidential Information at Deposition or Pretrial.

Whenever any

“Confidential Information” is disclosed or used at a deposition or other pretrial testimony in this
action, (i) each portion of any such testimony in which the “Confidential Information” is
disclosed or used shall be conducted with only those persons in attendance who are authorized
under this Protective Order to have access to such “Confidential Information,” (ii) the transcript
of the confidential portion and all confidential exhibits shall be bound separately after
transcription, marked “Confidential – Subject to Protective Order,” (or comparable language),
and shall thereafter be deemed to be fully subject to the provisions of this Protective Order.
(6)

Electronic Filing and Confidential Information. All electronic filings that contain

Confidential Information shall be filed in compliance with the Electronic Case Filing Procedures

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for the Southern District of Ohio. A Party may file Confidential Material under seal only with
leave of the Court upon motion for good cause shown and only to the extent necessary to
preserve legitimate confidentiality concerns.
(7)

Persons Who May View Confidential Information. “Confidential Information”

produced by a Party may be disclosed by the Parties hereto and their counsel only to the
following persons:
(a)

the Court and its personnel at any pretrial or post-trial stage of this
action, either in camera, or in a sealed envelope, or under such
other safeguards as the Court may require in order for
“Confidential Information” to be used or introduced at any pretrial
or post-trial hearing herein;

(b)

the Parties and counsel for the Parties in this action who have
entered an appearance in this action (including attorneys who are
officers or employees of a Party) and paralegals, legal assistants,
secretaries, or other staff of such counsel working on this action;

(c)

court reporters and their staff recording proceedings in this action;

(d)

witnesses in preparing for or at the deposition, hearing, or trial, but
only to the extent disclosure is reasonably necessary, and in no
event shall a witness retain any Confidential Information or any
copies thereof;

(e)

any expert(s) consulted or retained to assist in the preparation of
the case, or to testify, who have first signed the “Acknowledgment
and Agreement to Be Bound by Protective Order” (Exhibit A);

(f)

persons employed or retained by an independent litigation support
company assisting the attorneys referred to herein, including, but
not limited to, jury consultants and document management
companies, who have first signed the “Acknowledgment and
Agreement to Be Bound by Protective Order” (Exhibit A);

(g)

any investigator hired for purposes of this litigation and who has
first signed the “Acknowledgment and Agreement to Be Bound by
Protective Order” (Exhibit A);

(h)

any person whom Counsel for the Parties collectively agree should
have access to such materials and who has first signed the

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“Acknowledgment and Agreement to Be Bound by Protective
Order” (Exhibit A).
(8)

Duration of Protective Order. This Protective Order shall apply through trial as

more fully set forth in numbered paragraph (12) below, subject to the understanding that the
Court will determine when the documents will be treated as public records when and if they are
introduced in open court at trial and with the further understanding that any Party may seek
additional in-court protection or safeguards as to documents designated as Confidential.
(9)

Inadvertent Production of Privileged or Other Legally Protected Information. The

Parties have negotiated and agree to the following terms governing “Privileged Material,” as that
term is defined herein. “Privileged Material” includes any materials, documents, papers,
communications, information, notes, and all other items or materials related to this action that the
producing party in good faith believes are protected by the attorney-client privilege, workproduct doctrine, or any other privilege under the law or applicable rules.
The parties agree that production of Privileged Material, whether inadvertent or otherwise
(“Inadvertent Production Material”), is not a waiver of, or estoppel as to any claim of attorneyclient privilege, work-product, or other applicable privilege, immunity, or other protection and
shall not be deemed to be either (a) a general waiver of the attorney-client privilege, the workproduct privilege or other similar privilege; or (b) a specific waiver of any such privilege with
respect to any such matters.
A claim of inadvertent disclosure shall constitute a representation by that producing party
that the Inadvertent Production Material has been reviewed by an attorney for such producing
party and that there is a good faith basis for such claim of inadvertent disclosure. In the event
that a Party inadvertently produces information that the Party considers to be subject to any
privilege or other legal protection from disclosure, that Party shall give written or electronic
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notice to the receiving Party no later than 7 days after discovery by the producing Party of the
inadvertent production of such information. Such written and electronic notice shall (a) identify
the information; and (b) state the nature of the privilege(s) or legal protection(s) asserted and
provide the necessary details in order to allow the receiving Party to evaluate the claim of
privilege. Upon receipt of such notice, any receiving Party that has received a copy of such
information shall return it to the producing Party and shall destroy any other copies thereof,
without waiver of the right to challenge the substantive label of privilege or other protection after
receipt of an updated or supplemental privilege log for this information.
In the event the receiving party discovers that it has received Privileged Material, upon
discovery the receiving party shall cease review of the same and bring that fact to the attention of
the producing party.
(10)

Modification of Protective Order. This Protective Order may be construed or

modified by the Court, on application of any Party or on its own initiative, to insure that
adjudication of all issues may be had in the light of all relevant material facts without publishing
or otherwise destroying the value of any “Confidential Information,” except to the extent such
publication or destruction cannot be avoided by the Court in the performance of its duties.
(11)

No Waiver of Other Rights. Nothing in this Protective Order shall be deemed a

waiver of a producing Party’s right to (a) oppose discovery on grounds other than that the
discovery sought constitutes or contains Confidential Information, (b) seek further protection
other than that which this Protective Order prescribes with respect to Confidential Information,
or (c) object on any ground to the admission in evidence, at any trial, or public proceeding in this
matter, of any type or classification of material produced or disclosed pursuant to this Protective
Order.

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Nothing in this Protective Order shall limit in any manner a Party’s own use of any
documents, deposition testimony, materials and/or other information produced by it and/or
designated by it as Confidential, merely because such Confidential Information was produced
and/or designated by it as Confidential, or because such Confidential Information was also
produced and/or designated as Confidential by another Party.
(12)

Treatment of Confidential Information After Case Termination. Unless otherwise

ordered, within 45 days after the final termination of this action, or such other time period as
agreed to by the Parties, upon written request of the producing Party, the receiving Party must
return to the other Party or Parties or destroy (at the receiving Party’s option) all Confidential
Information. As used in this subdivision, “all Confidential Information” includes all copies,
abstracts, compilations, summaries or any other form of reproducing or capturing any of the
Confidential Information. Whether the information is returned or destroyed, the receiving Party,
at the producing Party’s request, must submit a written certification to the other Party or Parties
that confirms that all the Confidential Information identified in the producing Party’s request was
returned or destroyed. Notwithstanding this provision, counsel for either Party are entitled to
retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda,
correspondence or attorney work product, even if such materials contain Confidential
Information.

Any such archival copies that contain or constitute Confidential Information

remain subject to this Protective Order.
(13)

Duration of Protective Order.

The provisions of this Protective Order shall

continue to be binding upon all Parties and their counsel in this action until the conclusion of this
action. The Court retains jurisdiction indefinitely with respect to any dispute of the Parties
regarding improper use of information disclosed in this Protective Order.

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IT IS SO ORDERED.

Date: September 18, 2017

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

Signatures:
Attorney for Plaintiff(s):

Attorney for Defendant(s):

/s/ Daniel I. Bryant
Counsel for Kendra Daniels
Bar # 0090859

/s/ Benjamin A. Shepler
Counsel for Grange Mutual Casualty Company
Bar # 0082562

/s/ Matthew J. P. Coffman
Counsel for Kendra Daniels
Bar # 0085586

/s/ J. Alexander Blueblond
Counsel for Grange Mutual Casualty Company
Bar # 0091273

Date: September 15, 2017

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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kendra Daniels,

:
:
:
:
:
:
:
:

Plaintiff,
v.
Grange Mutual Casualty Company,

Case No. 2:17-cv-271
Judge George C. Smith
Magistrate Judge Jolson

Defendant.

EXHIBIT A
DECLARATION OF COMPLIANCE
I,

acknowledge that I have been given a copy

of and have read the Agreed Protective Order in Kendra Daniels v. Grange Mutual Casualty
Company, Case No. 2:17-cv-271, and I agree to be bound by its terms. I acknowledge and agree
that any document marked “Confidential,” that I receive in connection with this matter shall not
be disclosed to or discussed with anyone except as expressly provided in the Agreed Protective
Order, and that any such documents shall be destroyed at the conclusion of this case. I consent
to the jurisdiction of the United States District Court, Southern District of Ohio, for the purposes
of enforcing this Agreed Protective Order.
I declare under penalty of perjury under the laws of the State of ____________ that the
foregoing is true and correct.
Executed on

, 201_, at

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.