Guster-Clark v. G6 Hospitality, LLC et al

Filing 20

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 9/14/2017. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EUGENA GUSTER-CLARK,
Plaintiff,
v.
G6 HOSPITALITY LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 2:17-CV-361
Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson

STIPULATED PROTECTIVE ORDER
Plaintiff EUGENA GUSTER-CLARK and Defendant G6 HOSPITALITY LLC
(collectively “the Parties”) have agreed to the terms of this Order; accordingly, it is
ORDERED:
1.

Scope. All materials produced or adduced in the course of discovery, including

initial disclosures, responses to discovery requests, deposition testimony and
exhibits, and information derived directly therefrom (hereinafter collectively “documents”),
shall be subject to this Order concerning Confidential Information as defined below. This
Order is subject to the Local Rules of the Southern District of Ohio and the Federal Rules of
Civil Procedure on matters of procedure and calculation of time periods.
2.

Confidential Information.

As used in this Order, “Confidential

Information” means information designated as “CONFIDENTIAL-SUBJECT TO
PROTECTIVE ORDER” by the producing party that falls within one or more of the following
categories: (a) information prohibited from disclosure by statute; (b) information that reveals
trade secrets; (c) research, technical, commercial or financial information that the party has
maintained as confidential; (d) medical information concerning any individual; (e) personal

39917480v.3

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. Information or documents that are available to the public may not be designated as
Confidential Information.
3.

Designation.
(a)

A party may designate a document as Confidential Information for

protection under this Order by placing or affixing the words “CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER” on the document and on all copies in a manner that will not
interfere with the legibility of the document. As used in this Order, “copies” includes
electronic images, duplicates, extracts, summaries or descriptions that contain the Confidential
Information. The marking “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall
be applied prior to or at the time the documents are produced or disclosed. Applying the
marking “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” to a document does not
mean that the document has any status or protection by statute or otherwise except to the extent
and for the purposes of this Order. Any copies that are made of any documents marked
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall also be so marked, except
that indices, electronic databases or lists of documents that do not contain substantial portions
or images of the text of marked documents and do not otherwise disclose the substance of the
Confidential Information are not required to be marked.
(b)

The designation of a document as Confidential Information is a

certification by an attorney or a party appearing pro se that the document contains

2

Confidential Information as defined in this order. 1
4.

Depositions. Unless all parties agree on the record at the time the deposition

testimony is taken, all deposition testimony taken in this case shall be treated as Confidential
Information until the expiration of the following: No later than the fourteenth day after the
transcript is delivered to any party or the witness, and in no event later than 60 days after the
testimony was given. Within this time period, a party may serve a Notice of Designation to all
parties of record as to specific portions of the testimony that are designated Confidential
Information, and thereafter only those portions identified in the Notice of Designation shall be
protected by the terms of this Order. The failure to serve a timely Notice of Designation shall
not waive any designation of testimony taken in that deposition as Confidential Information,
provided that the parties meet and confer on such designations within fourteen (14) day of
when that testimony will be used in a public filing or public hearing, or 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 subparagraph
(b) for any purpose whatsoever other than in this litigation, 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
1

An attorney who reviews the documents and designates them as CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER must be admitted to the Bar of at least one state but need not be
admitted to practice in the Southern District of Ohio unless the lawyer is appearing generally in
the case on behalf of a party. By designating documents confidential pursuant to this Order,
counsel submits to the jurisdiction and sanctions of this Court on the subject matter of the
designation.
3

person or entity except as set forth in subparagraphs (1)-(9). Subject to these requirements, the
following categories of persons may be allowed to review Confidential Information:
(1) counsel of record to any party to this Order;
(2) the legal, clerical, paralegal staff, or other personnel utilized during this
action;
(3) the parties to this Order and the principals, officers, agents and employees of
a party;
(4) outside photocopying, data processing or graphic production services
employed by the parties or their counsel to assist in this Proceeding;
(5) persons utilized or retained by either party to this Order to furnish advice,
expert services, or to give expert testimony in this action (and their
employees);
(6) any witness and their counsel during the course of or in preparation for a
deposition and/or testimony in the Proceeding;
(7) court reporters in this action;
(8) any person who (i) authored or received the Confidential Information to be
disclosed to that person, (ii) who is specifically referenced by name and
substantively discussed in the Confidential Information, (iii) has information
related to this matter and the Confidential Information; or (iv) has access to
the Confidential Information in the ordinary course of business; and
(9) the Court, Court personnel, Persons or businesses retained by the Court and
jurors.
(c)

Control of Documents. Counsel for the parties shall make

reasonable efforts to prevent unauthorized or inadvertent disclosure of Confidential
Information. Counsel shall maintain the originals (or a scanned version of the originals) of
the forms signed by persons acknowledging their obligations under this Order for a period
of one year after any appeal and/or the conclusion of the matter.

4

6.

Inadvertent Failure to Designate or Inadvertent Production.
(a)

Inadvertent Failure to Designate. An inadvertent failure to designate a

document as Confidential Information does not, standing alone, waive the right to so designate
the document; 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 a document 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 document is treated in accordance with the provisions of this
Order. No party shall be found to have violated this 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.
(b)

Inadvertent Production of Confidential Document. The inadvertent

production of any confidential, privileged or attorney work product documents shall be without
prejudice to any claims that the document is confidential or privileged, and shall constitute
neither a waiver of any claim or privilege that may otherwise attach thereto nor a general
waiver of such claim or privilege. In each such case, the designating person shall provide to
all other parties notice, either orally followed by written notice within five (5) business days or
by written notice, of that subsequent designation and a copy of the document or thing marked in
accordance with this paragraph. Upon demand of the producing party, all copies of any
inadvertently produced document shall be returned forthwith, and such documents shall not be
introduced into evidence, or subject to production, in this or any other proceeding without the
consent of the producing party. “If a party disagrees with any such designation of attorney

5

client privilege then that party may seek a review of the matter with the Court through any
process that the Court deems appropriate. The party may retain a copy of the document until
such time as the Court rules upon the matter and any subsequent appeal. The document shall
be treated as Confidential and subject to this Protective Order.”
7.

Filing of Confidential Information. This Order does not, by itself,

authorize the filing of any document under seal. Any party wishing to file a document
designated as Confidential Information in connection with a motion, brief or other
submission to the Court must comply with Local Rule 5.2.1.
8.

No Greater Protection of Specific Documents. 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.
9.

Challenges by a Party to Designation as Confidential Information. The

designation of any material or document as Confidential Information is subject to challenge
by any 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 five (5) business
days.

6

(b)

Judicial Intervention. 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.
10.

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

materials or documents designated Confidential Information shall be by motion. Nothing in
this Order or any action or agreement of a party under this Order limits the Court’s power to
make orders concerning the disclosure of documents produced in discovery or at trial.
11.

Use of Confidential Documents or Information at Trial. Nothing in

this Order shall be construed to affect the use of any document, material, or information
at any trial or hearing. A party that intends to present or that anticipates that another
party may present Confidential Information at a hearing or trial shall bring that issue to
the Court’s and parties’ attention by meeting and conferring over the use of that
confidential information or by motion or a pretrial memorandum without disclosing the
Confidential Information. The Court may thereafter make such orders as are necessary
to govern the use of such documents or information at trial.
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

7

litigation that would compel disclosure of any material or document designated in this action
as Confidential Information, the receiving party must so notify the designating party, in
writing, as soon as practicable. No Confidential Information protected by this Order will be
produced to any subpoenaing party without first providing reasonable notice to the producing
party. Such notification must include a copy of the subpoena or court order.
(b)

The receiving party also must immediately inform in writing the party

who caused the subpoena or order to issue in the other litigation that some or all of the
material covered by the subpoena or order is the subject of this Order. In addition, the
receiving party must deliver a copy of this Order promptly to the party in the other action that
caused the subpoena to issue.
(c)

The purpose of imposing these duties is to alert the interested

persons to the existence of this Order and 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 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.

Challenges by Members of the Public to Sealing Orders. A party or

interested member of the public has a right to challenge the sealing of particular documents
that have been filed under seal, and the party asserting confidentiality will have the burden of
demonstrating the propriety of filing under seal.

8

14.

Obligations on Conclusion of Litigation.
(a)

Order Continues in Force. Unless otherwise agreed or ordered, this

Order shall remain in force after dismissal or entry of final judgment not subject to further
appeal.
(b)

Obligations at Conclusion of Litigation. After the final

resolution of this Proceeding, and any appeals thereof, all Confidential Information
shall be returned to counsel for the party that produced it, shall be destroyed, or
shall be retained in counsel's legal files. As to those materials that contain or reflect
Confidential Information, but that constitute or reflect counsel's work product,
counsel of record for the parties shall be entitled to retain such work product in their
files in accordance with the provisions of this Order. Counsel shall be entitled to
retain pleadings, affidavits, motions, briefs, other papers filed with the Court,
deposition transcripts, and the trial record (including exhibits), even if such
materials contain Confidential Information, so long as such materials are clearly
marked to reflect that they contain information subject to this Order. The provisions
of this Protective Order, insofar as they restrict the communication and use of
Confidential Information, shall, without written permission of the producing party
or further order of this Court, continue to be binding on all parties and individuals
receiving Confidential Information after the conclusion of this litigation.
(c)

Retention of Work Product and one set of Filed Documents.

Notwithstanding the above requirements to return or destroy documents, counsel may retain
(1) attorney work product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial portions of

9

Confidential Information, and (2) one complete set of all documents filed with the Court
including those filed under seal. Any retained Confidential Information shall continue to be
protected under this Order. An attorney may use his or her work product in subsequent
litigation, provided that its use does not disclose or use Confidential Information.
(d)

Deletion of Documents filed under Seal from Electronic Case

Filing (ECF) System. Filings under seal shall be deleted from the ECF system only upon
order of the Court.
15.

Order Subject to Modification. This Order shall be subject to

modification by the Court on its own initiative or on motion of a party or any other
person with standing concerning the subject matter.
16.

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 document
or material designated as Confidential Information by counsel or the parties is entitled 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.
17.

Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel of record and their law firms, the parties, and persons made subject to this
Order by its terms. Any party to this Order may request the Court to grant relief from any
provision of this Order.

10

IT IS SO ORDERED.
Date: September 14, 2017

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

It is so Stipulated:
__/s Laren E. Knoll _________________
Laren E. Knoll
THE KNOLL LAW FIRM LLC
7240 Muirfield Drive
Suite 120
Dublin, Ohio
614-372-8890
Fax: [phone]
Email: [e-mail]

__/s Erin Dougherty Foley ____________________
Erin Dougherty Foley (admitted pro hac vice)
SEYFARTH SHAW LLP
233 South Wacker Drive
Suite 8000
Chicago, Illinois 60606
312-460-5000
Fax: [phone]
Email: [e-mail]

Attorneys for Plaintiff

Joseph Edward Conley, Jr.
Buechel & Conley, PLLC
182 Barnwood Drive
Edgewood, KY 41017
859-331-5500
Fax: [phone]
Email: [e-mail]
Attorneys for Defendant

11