Upperman v. Southwest Airlines et al

Filing 16

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 8/15/2017. (ew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVE UPPERMAN,
Plaintiff,
v.
SOUTHWEST AIRLINES CO., et al.,
Defendants.

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CASE NO. 2:17-CV-00348
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE JOLSON
STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE ORDER

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, IT IS HEREBY
STIPULATED AND AGREED by the parties, Plaintiff Steve Upperman (“Plaintiff”) and
Defendants Southwest Airlines Co. (“Southwest Airlines”), Tim Cavanagh, and Jeff Slicer
(collectively “Defendants”),1 by and through their respective counsel, that:
(A)

(i) This Stipulation and Order governs the handling of all documents (whether

in written, taped, or electronic form), testimony and other information, including all copies,
excerpts, and summaries thereof (collectively, “material”), produced, given or filed during
discovery and other proceedings in this action.
(ii)

The provisions of this Stipulation and Order shall apply to (1) the parties

in this action, and (2) any other person producing or disclosing material in this action who agrees
to be bound by the terms of this Stipulation and Order. As used herein, “person” includes the
named parties to the above-captioned case and others who have agreed to be bound by this
Stipulation and Order.

1 By stipulating to this Confidentiality Agreement and Protective Order, Defendants do not waive their argument
that Plaintiff’s Complaint should be dismissed for lack of subject matter jurisdiction. Further, Defendant Slicer does
not waive his defenses as to failure of service of process upon him.

(B)

Any person may designate as “Confidential” any material produced in the course

of this litigation (including appeals) when such person (in the case of a corporate party, through a
representative of the corporate party, which can include its in-house counsel and outside counsel)
in good faith believes such material contains: (1) non-public information relating to Southwest
Airlines including, but not limited to, personnel and operational policies, financial performance,
and other documents containing confidential and/or proprietary commercial, financial, and/or
business information; (2) information regarding current and/or former employees of Southwest
Airlines including, but not necessarily limited to, personnel-related records and compensation
information; and/or (3) medical records (hereinafter “Confidential Material”).2
(C)

Confidential Material shall be subject to the following restrictions:
(i)

Confidential Material shall be used only for the purpose of this litigation

(including appeals) and for no other purpose (unless authorized by this Court) and may only be
disclosed, given, shown, made available or communicated, directly or indirectly, to the persons
listed in Paragraph (C)(ii) below.
(ii)

Confidential Material may be disclosed only to:
(1)

the parties to this action and/or employees of the parties who need
access to Confidential Material for a purpose articulated in
Paragraph (i) above;

(2)

counsel of record in this case for the parties and employees of such
counsel;

(3)

the Court (including court reporters, stenographic reporters and
court personnel) and jury;

2 The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) prohibits disclosure of certain
HIPAA-protected information.

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(4)

experts and consultants retained by the parties or counsel in this
action;

(5)

any government agency seeking access to the information in order
to fulfill its jurisdictional responsibilities; and

(6)

any other person as to whom the producing person agrees in
writing in advance of such disclosure.

(iii)

Notwithstanding any of the foregoing provisions, this Stipulation and

Order has no effect upon, and its scope shall not extend to, any party’s use of its own
Confidential Material.
(D)

Each person given access to Confidential Material pursuant to the terms hereof

(other than persons described in Paragraphs (C)(ii)(2)-(3) and (5) above) shall be advised that the
Confidential Material is being disclosed in accordance with the terms of this Stipulation and
Order and may be disclosed only in accordance with the terms hereof; and that the violation of
the terms of this Stipulation and Order may constitute contempt of a court order. Before any
person (other than persons described in Paragraphs (C)(ii)(2)-(3) and (5) above) is given access
to Confidential Material, he or she must first execute an Acknowledgement of Receipt of this
Confidentiality Agreement and Protective Order in the form attached hereto, agreeing to the
terms of this Stipulation and Order. In the event a dispute arises, Acknowledgements of Receipt
will be produced upon written request.
(E)

Confidential Material shall be designated as follows:
(i)

In the case of documents, the designation shall be made by placing the

legend “CONFIDENTIAL” on each page of any such document prior to the production.

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(ii)

In the case of discovery responses, the designation shall be made by

stating in response to the discovery request that the information contained in the response is
“CONFIDENTIAL” and subject to protective order.
(iii)

In the case of deposition transcripts, a designation can be made by any

party by indicating on the record at the deposition that the testimony is “CONFIDENTIAL” and
subject to protective order or by providing notice in writing to the other party (no later than 15
business days after receipt of the deposition transcript) that all or any portion of the deposition
transcript be designated as “CONFIDENTIAL” under the terms of the Stipulation and Order.
All copies of deposition transcripts that contain Confidential Material shall be prominently
marked “CONFIDENTIAL” on the cover thereof.
(F)

If a party wishes to file with the Court any information or documents that the

other party has designated as “CONFIDENTIAL,” such information or documents shall be filed
in accordance with Local Rule 5.2.1(a) “Filing Under Seal.” This Paragraph shall not apply to
the use of any confidential materials at trial, although either party may seek a further order of this
Court with regard to such issues if appropriate.
(G)

No party concedes that any material designated by any other person as

Confidential Material does in fact contain or reflect proprietary or confidential information, or
has been properly designated as Confidential Material. Any party may, upon ten (10) business
days’ advance written notice to the other party, move this Court for (1) modification of this
Stipulation and Order, or (2) relief from the provisions of this Stipulation and Order. In addition,
the parties may agree in writing or on a transcribed record to necessary modifications of this
Stipulation and Order.

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(i)

A party shall not be obligated to challenge the propriety of the designation

of material as Confidential Material, at the time made, and failure to do so shall not preclude a
subsequent challenge thereof. If a party challenges such designation, it shall provide written
notice of such challenge to the designating person, and the parties shall attempt to resolve any
challenge in good faith on an expedited and informal basis. If the challenge cannot be expeditiously and informally resolved, either the designating person or the challenging party may, on
ten (10) business days’ advance written notice to the other party, apply for an appropriate
ruling(s) from the Court. The material in issue shall continue to be treated as designated until the
Court orders otherwise.
(ii)

Inadvertent or unintentional production of documents or information

containing information which should have been designated as Confidential Material shall not be
deemed a waiver in whole or in part of a party’s claims of confidentiality.
(H)

This Stipulation and Order, insofar as it restricts the communication and use of

Confidential Material, shall continue to be binding throughout and after the conclusion of this
litigation, including any appeals. Within thirty (30) days of the conclusion of this litigation
(including appeals), every party and person subject to the terms of this Stipulation and Order
shall collect and either return to the producing party or person all Confidential Material obtained
from the producing party or person, and all copies of such Confidential Material, or destroy the
Confidential Material. Notwithstanding the foregoing, there shall be no obligation to return any
Confidential Material that became a part of the Court’s record in this action (by use as a trial
exhibit, inclusion in a court filing, inclusion in the record on any appeal, or otherwise).

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(I)

Notwithstanding anything to the contrary contained in this Stipulation and Order,

the obligations of secrecy, confidentiality, non-disclosure, and non-use on the part of either party
shall not apply to information that:
(i)

is already in the unrestricted and rightful possession of the non-

designating party or in the public domain at the time of receipt;
(ii)

becomes public knowledge after receipt through no fault of the non-

designating party, the non-designating party’s counsel, or any expert or consultant retained by
the non-designating party; or
(iii)

is transmitted to the non-designating party by a third party having no

obligation to the designating party.
(J)

This Court shall retain jurisdiction over the parties and those persons subject to

this Stipulation and Order for purposes of enforcing the provisions of this Stipulation and Order;
and all parties consent to the personal jurisdiction of this Court for such purposes.
IT IS SO ORDERED.
Date: August 15, 2017

/s/ Kimberly A. Jolson
Kimberly A. Jolson
United States Magistrate Judge

APPROVED BY:
/s/ Fred M. Bean (per email consent)
Fred M. Bean (0086756)
The Spitz Law Firm, LLC
25200 Chagrin Blvd., Suite 200
Beachwood, OH 44122
216.291.4744
216.291.5744 Fax
[e-mail]
Attorney for Plaintiff

/s/ Natalie M. Stevens
Natalie M. Stevens (0079963)
Kathleen J. Sanz (0089386)
Ogletree Deakins Nash Smoak & Stewart, P.C.
127 Public Square
4100 Key Tower
Cleveland, OH 44114
216.241.6100
216.357.4733 Fax
[e-mail]
[e-mail]
Attorneys for Defendants
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ACKNOWLEDGEMENT OF RECEIPT OF
CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER

I acknowledge that I have received and read a copy of the Stipulated Confidentiality
Agreement and Protective Order in the matter of Steve Upperman v. Southwest Airlines Co., et
al., United States District Court, Southern District of Ohio, Eastern Division, Case No. 2:17-CV00348, and agree to be bound by its provisions.

Printed Name:
Signature:
Date:

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