MedArbor, LLC v. Ohio River Laboratory/iPath, LLC d/b/a Ohio River Laboratories, LLC et al

Filing 12

ORDER: The Court approves the Stipulation and Protective Order. Signed by Magistrate Judge Chelsey M. Vascura on 10/5/2017. (kdp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION, COLUMBUS
MEDARBOR LLC
Plaintiff,
v.
OHIO RIVER LABORATORY/IPATH,
LLC, et al.,
Defendants.

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Case No. 2:17-cv-00442-MHW-CMV
District Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura

STIPULATION REGARDING CONFIDENTIAL
INFORMATION AND PROTECTIVE ORDER
IT IS HEREBY STIPULATED on October 3, 2017, between and among the parties
hereto, MedArbor, LLC, Ohio River Laboratory/iPath, LLC, Uday R. Shah, and Mitali Uday Shah
(collectively, the “Parties”), by and through their respective counsel of record, that in order to
facilitate the exchange of information and documents which may be subject to confidentiality
limitations on disclosure due to federal laws; state laws; trade secrets, proprietary, confidential or
competitively sensitive business, commercial, financial, or personal information; and privacy
rights, the parties will agree as follows:
1.

In this Stipulation Regarding Confidential Information and Protective Order, the

words set forth below shall have the following meanings:
a.

“Proceeding” means the above-entitled proceeding Case No. 2:17-cv00442-MHW-CMV.

b.

“Court” means the Honorable Michael H. Watson, Magistrate Judge
Chelsey M. Vascura, or any other judge to whom the Proceeding may be
assigned, including Court staff participating in such proceedings.

c.

“Confidential” means any information which is in the possession of a
Designating Party who believes in good faith that such information is
entitled to confidential treatment under applicable law.

d.

“Confidential

Information”

means

any

Documents,

Testimony,

Information, Materials, or Discovery Response as defined below designated
as “Confidential” pursuant to the provisions of this Stipulation and
Protective Order.
e.

“Designating Party” means the Party that designates Information as
“Confidential.”

f.

“Disclose” or “Disclosed” or “Disclosure” means to produce, reveal,
divulge, give, or make available materials, or any part thereof, or any
Information contained therein.

g.

“Discovery Request” means any formal request for Information in the
Proceeding.

“Discovery Request” includes: (a) any formal document

request; (b) any formal interrogatory; (c) any formal request for admissions;
and (d) any subpoena or subpoena duces tecum.
h.

“Discovery Response” means all Information produced in response to any
Discovery Request as defined above. “Discovery Response” includes
answers or responses provided or objections asserted in response to any
Discovery Request.

i.

“Documents” means (i) any “Writing,” “Original,” and “Duplicate” as
those terms are defined by Ohio law, which have been produced in

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discovery in the Proceeding by any person, and (ii) any copies,
reproductions, reports, or summaries of all or any part of the foregoing.
j.

“Information” means any and all information, including but not limited to
the content of Documents, Testimony or Discovery Responses, in whatever
form that such Information may be kept, retained, or stored, whether paper,
recordings, electronically stored, or otherwise.

k.

“Testimony” means all depositions, declarations, affidavits, or other
testimony obtained, taken, or used in the Proceeding.

2.

The Designating Party shall have the right to designate as “Confidential” any

Information, including but not limited to Documents, Testimony, Materials, or Discovery
Responses that the Designating Party in good faith believes to contain non-public information that
is entitled to confidential treatment under applicable law or business practice.
3.

All Confidential Information shall not be Disclosed to any person or entity except

in accordance with the terms, conditions, and instructions of this Stipulation and Protective Order.
Any employee, agent, expert witness, or other person who receives any Confidential Information
shall enter into a Consent Agreement, agreeing to be bound by the terms of this Stipulation
4.

The entry of this Stipulation and Protective Order, and inter alia, the production of

Information pursuant hereto, does not prejudice, alter, waive, modify or abridge any right,
privilege, or protection otherwise available to any Party with respect to the discovery of matters,
including, but not limited to, any Party’s right to assert the attorney-client privilege, the attorney
work product doctrine, other privileges or protections, or any Party’s right to contest any such
assertion.

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5.

Any Information, including but not limited to Documents, Testimony, or Material

to be designated as “Confidential” should be clearly designated.
a.

For Documents or Discovery Responses (apart from transcripts of
depositions or other pretrial or trial proceedings), the Designating Party
should designate Confidential Material.

b.

For Testimony given in depositions, the Designating Party should either:
i.

identify on the record, before the close of the deposition, all
“Confidential” Testimony, by specifying all portions of the
Testimony that qualify as “Confidential;” or

ii.

designate the entirety of the Testimony at the deposition as
“Confidential” (before the deposition is concluded) with the right to
identify more specific portions of the Testimony as to which
protection is sought within thirty (30) days following receipt of the
deposition transcript.

In circumstances where portions of the

deposition Testimony are designated for protection, the transcript
pages containing “Confidential” Information may be separately
bound by the court reporter, who must affix to the top of each page
the legend “Confidential,” as instructed by the Designating Party.
c.

For Information produced in some form other than Documents, and for any
other tangible items, including, without limitation, electronically stored
information, compact discs or DVDs, the Designating Party should affix in
a prominent place on the exterior of the container or containers in which the
Information or item is stored the legend “Confidential.” If only portions of

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the Information or item warrant protection, the Designating Party, to the
extent practicable, should identify the “Confidential” portions.
6.

For Information, Documents, or Testimony produced in the form of access to a

database or some other medium in which it is not feasible to affix the “Confidential" legend, the
Parties agree that such Information, Documents, or Testimony (except publicly filed pleadings),
shall be deemed "Confidential" and that providing such access does not constitute a waiver of any
privilege or protection afforded such Information, Documents, or Testimony. Any and all
electronically stored information that is produced shall be considered "Confidential" regardless of
whether designated as such prior to producing same.
7.

In the case of any Information, including but not limited to Documents, Testimony,

Materials, or Discovery Responses Disclosed by a non-Party, the designation also may be made
by a Party requesting that the non-Party’s Information, including Documents, Testimony,
Materials, or Discovery Responses be stamped or identified in some other fashion, such as
“CONFIDENTIAL [NAME OF PERSON’S] DESIGNATION,” in accordance with paragraph 6
hereof.
8.

Any Information, including Document, Testimony, Materials, or Discovery

Responses produced by a non-Party will be treated as confidential by all Parties if so designated
by the non-Party or by a Party.
9.

The production by any of the undersigned Parties or non-Parties to the Proceeding

of any Information during discovery in the Proceeding with or without a “Confidential”
designation, shall be without prejudice to any claim that such item is “Confidential” and such Party
or non-Party shall not be held to have waived any rights by such production. In the event that any
Information, that is subject to a “Confidential” designation is produced without such designation,

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the Party or non-Party that produced the document should give written notice of such production
within thirty (30) days of discovery of the production, together with a further copy of the subject
Document, Testimony, Information, or Discovery Response designated as “Confidential” (the
“Production Notice”). Upon receipt of such Production Notice, the Party that received the
produced Information shall promptly segregate and maintain as “Confidential” pending further
proceedings set forth in Paragraph 10 below the produced Information and all copies thereof. This
provision is not intended to apply to any production of any Information protected by attorneyclient or work product privileges, which shall be returned within ten (10) days after notice from a
Party. In the event that this provision conflicts with any applicable law regarding waiver of
confidentiality through the inadvertent production of Information such law shall govern.
10.

In the event that counsel for a Party receiving Information in discovery designated

as “Confidential” objects to such designation with respect to any or all of such items, said counsel
shall advise counsel for the Designating Party, in writing, of such objections, the specific
Information to which each objection pertains, and the specific reason and support for such
objections (the “Designation Objections”) and file a motion with the Court seeking to uphold any
or all objections to any designations of Information addressed by the Designation Objections (the
“Designation Motion”). Pending a resolution of the Designation Motion by the Court, any and all
existing designations on the Information, at issue in such Motion shall remain in place.
11.

Access to and/or Disclosure of Confidential Information shall be permitted only to

the following persons:
a.

the Court;

b.

any mediator, special master, arbitrator, or other person conducting another
alternative dispute resolution process in this Proceeding;

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c.

(i) attorneys of record in the Proceeding and their affiliated attorneys,
paralegals, clerical, and secretarial staff employed by such attorneys who
are actively involved in the Proceeding and are not employees of any Party
and (ii) the Parties’ in-house counsel, and such other persons regularly
employed by the Parties, who are involved in or consulted with respect to
the prosecution or defense of this Proceeding or handling the underlying
claims, including claims representatives of any Party; provided, however,
that each non-lawyer given access to Confidential Information shall be
advised that such Information is being Disclosed pursuant to, and is subject
to, the terms of this Stipulation and Protective Order and that it shall not be
Disclosed other than pursuant to its terms;

d.

insurers, reinsurers, retrocessionaires, accountants, regulators, auditors, and
any other person to whom the Parties have a contractual, regulatory, or
statutory obligation to report; provided, however, that each such person
given access to Confidential Information shall be advised that such
Information is being Disclosed pursuant to, and is subject to, the terms of
this Stipulation and Protective Order and that it shall not be Disclosed other
than pursuant to its terms;

e.

any deposition, trial, or hearing witness in the Proceeding who previously
has had access to the Confidential Information, or who is currently or was
previously an officer, director, partner, member, employee, representative,
or agent of an entity that has had access to the Confidential Information;
provided, however, that prior to the Disclosure of Confidential Information

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to any such officer, director, partner, member, employee, representative, or
agent, counsel for the Party making the Disclosure shall deliver a copy of
this Stipulation and Protective Order to such person, shall explain that such
person is bound to follow the terms of such Order, and shall secure the
signature of such person on a statement in the Consent form attached hereto
and incorporated by reference as Exhibit A;
f.

any deposition or non-trial hearing witness in the Proceeding who
previously did not have access to the Confidential Information and who has
a legitimate basis for receiving such Information; provided, however, that
prior to the Disclosure of Confidential Information to any such deposition
or non-trial witness in the Proceeding, counsel for the Party desiring to
make the Disclosure shall notify in writing the Designating Party and
deliver a copy of this Stipulation and Protective Order to such person, shall
explain that such person is bound to follow the terms of such Order, and
shall secure the signature of such person on a statement in the Consent form
attached hereto as Exhibit A. Any Party may object to disclosure of
Confidential Information to any such witness and no disclosure of
Confidential Information shall occur until resolved and agreed in writing
by the objecting Party or order of the Court;

g.

outside experts or consultants consulted by the undersigned Parties or their
counsel in connection with the Proceeding, whether or not retained to testify
at any oral hearing; provided, however, that prior to the Disclosure of
Confidential Information to any such expert or consultant, counsel for the

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Party making the Disclosure shall deliver a copy of this Stipulation and
Protective Order to such person, shall explain its terms to such person, and
shall secure the signature of such person on a statement in the Consent form
attached hereto as Exhibit A. It shall be the obligation of counsel, upon
learning of any breach or threatened breach of this Stipulation and
Protective Order by any such expert or consultant, to promptly notify
counsel for the Designating Party of such breach or threatened breach;
h.

court reporters in the Proceeding (whether at depositions, hearings, or any
other proceedings) and other persons involved in recording depositions,
hearings, or any other proceedings;

i.

employees of imaging, copying, scanning, or microfilming services utilized
with respect to the Proceeding;

j.

employees of litigation support vendors utilized with respect to the
Proceeding; and

k.
12.

any other person that the Designating Party agrees to in writing.

Confidential Information shall be used by the persons receiving it only for the

purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or
defending the Proceeding — including any mediation, arbitration, or other alternative dispute
resolution process connected with the Proceeding — and not for any business or other purpose
whatsoever. Nothing in this Stipulation and Protective Order, however, restricts the use that a
Party may make of any Documents or Information Disclosed by it. Nor does this Stipulation and
Protective Order preclude the use of any Documents or Information possessed or obtained by any

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Party outside of this Proceeding merely because the Document or Information has been Disclosed
in the Proceeding and has been marked “Confidential.”
13.

Any Party to the Proceeding (or other person subject to the terms of this Stipulation

and Protective Order) may ask the Court, after appropriate notice to the other Parties to the
Proceeding, to modify or grant relief from any provision of this Stipulation and Protective Order.
14.

Entering into, agreeing to, and/or complying with the terms of this Stipulation and

Protective Order shall not:
a.

operate as an admission by any person that any particular Information
marked “Confidential” contains or reflects trade secrets, proprietary,
confidential, or competitively sensitive business, commercial, financial, or
personal information; or

b.

prejudice in any way the right of any Party (or any other person subject to
the terms of this Stipulation and Protective Order):
i.

to seek a determination by the Court of whether any particular
Confidential Information should be subject to protection as
“Confidential” under the terms of this Stipulation and Protective
Order; or

ii.

to seek relief from the Court on appropriate notice to all other Parties
to the Proceeding from any provision(s) of this Stipulation and
Protective Order, either generally or as to any particular
Information,

including

Response.

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Document,

Material,

or

Discovery

15.

Any Party to the Proceeding who has not executed this Stipulation and Protective

Order as of the time it is presented to the Court for signature may thereafter become a Party to this
Stipulation and Protective Order by its counsel’s signing and dating a copy thereof and filing the
same with the Court, and serving copies of such signed and dated copy upon the other Parties to
this Stipulation and Protective Order.
16.

If any person subject to this Stipulation and Protective Order who has custody of

any Confidential Information receives a subpoena or other process or request (“Subpoena”) from
any person, entity, government entity, or other person demanding production of Confidential
Information, the recipient of the Subpoena shall promptly give notice of the same by electronic
mail transmission, followed by either express mail or overnight delivery to counsel of record for
the Designating Party, and shall furnish such counsel with a copy of the Subpoena. Upon receipt
of this notice, the Designating Party may, in its sole discretion and at its own cost, move to quash
or limit the Subpoena, otherwise oppose production of the Confidential Information, and/or seek
to obtain confidential treatment of such Confidential Information from the subpoenaing person or
entity to the fullest extent available under law. The recipient of the Subpoena may not produce
any Confidential Information, pursuant to the Subpoena prior to the date specified for production
on the Subpoena.
17.

Nothing in this Stipulation and Protective Order shall be construed to preclude any

Party from asserting in good faith that certain Confidential Information requires additional
protection. The Parties shall meet and confer to agree upon the terms of such additional protection.
18.

If, after execution of this Stipulation and Protective Order, any Confidential

Information submitted by a Designating Party under the terms of this Stipulation and Protective
Order is Disclosed by a non-Designating Party to any person other than in the manner authorized

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by this Stipulation and Protective Order, the non-Designating Party responsible for the Disclosure
shall bring all pertinent facts relating to the Disclosure of such Confidential Materials to the
immediate attention of the Designating Party and, without prejudice to any other rights and
remedies of the Parties, make every effort to prevent further disclosure of it or the recipient of the
Confidential Materials.
19.

Where any Confidential Information, or other information derived from

Confidential Information, is included in any motion or other proceeding governed by Ohio law,
the Party shall follow those rules. With respect to discovery motions or other proceedings not
governed by Ohio law, the following shall apply: If information derived from Confidential
Information (e.g., a summary of information created from Confidential Information) is submitted
to or otherwise Disclosed to the Court in connection with discovery motions and proceedings, the
same shall be filed in compliance with Local Rule 5.2.1.
20.

The Parties shall attempt to agree upon procedures to protect at any hearing the

confidentiality of Information, including Documents, Testimony, Information, or Discovery
Responses filed under seal, as well as for use of Confidential Information at trial, and shall move
the Court for entry of an appropriate order, if necessary.
21.

Nothing in this Stipulation and Protective Order shall affect the admissibility into

evidence of Confidential Information, or abridge the rights of any person to seek judicial review
or to pursue other appropriate judicial action with respect to any ruling made by the Court
concerning the issue of the status of Protected Information.
22.

This Stipulation and Protective Order shall continue to be binding after the

conclusion of the Proceeding and all subsequent proceedings arising from the Proceeding,
including any appeal or retrial, except that a Party may seek the written permission of the

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Designating Party or may move the Court for relief from the provisions of this Stipulation and
Protective Order. To the extent permitted by law, the Court shall retain jurisdiction to enforce,
modify, or reconsider this Stipulation and Protective Order, even after the Proceeding is
terminated.
23.

Upon written request made within thirty (30) days after the settlement or other

termination of the Proceeding, the undersigned Parties shall have thirty (30) days to either (a)
promptly return to counsel for each Designating Party all Confidential Information and all copies
thereof (except that counsel for each Party may maintain in its files, in continuing compliance with
the terms of this Stipulation and Protective Order, all work product, and one copy of each pleading
filed with the Court and one copy of each deposition together with the one copy of each exhibit
marked at the deposition; and to the extent a Party needs to retain Confidential Information for
legitimate business reasons, it may do so but such Confidential Information shall remain subject
to this Order), (b) agree with counsel for the Designating Party upon appropriate methods and
certification of destruction or other disposition of such Confidential Information, or (c) as to any
Information, Documents, Testimony, or Discovery Response not addressed by sub-paragraphs (a)
and (b), file a motion seeking a Court order regarding proper preservation of such Information.
To the extent permitted by law the Court shall retain continuing jurisdiction to review and rule
upon the motion referred to in sub-paragraph (c) herein.
24.

After this Stipulation and Protective Order has been signed by counsel for all

Parties, it shall be presented to the Court for entry. The Parties, counsel and all signatories to the
Certification attached hereto as Exhibit A agree to be bound by this Stipulation and Protective
Order pending its approval and entry by the Court. In the event that the Court modifies this
Stipulation and Protective Order, or in the event that the Court enters a different Protective Order,

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the Parties and counsel agree to be bound by this Stipulation and Protective Order until such time
as the Court may enter such a different Order. It is the Parties’ intent to be bound by the terms of
this Stipulation and Protective Order pending its entry so as to allow for immediate production of
Confidential Materials under the terms herein.
25.

This Stipulation and Protective Order may be executed in counterparts.

/s/ Brian E. Dickerson
Brian E. Dickerson, Esq. (0069227)
FISHERBROYLES, LLP
2390 Tamiami Trail North, Suite 100
Naples, FL 34103
[phone]
[e-mail]
Amy L. Butler, Esq. (0075714)
6800 W. Central Ave., Suite E
Toledo, OH 43617
[phone]
[e-mail]
Attorneys for Plaintiff

/s/ Jeffrey S. Sharkey_______
Jeffrey S. Sharkey, Esq. (0067892)
Christopher C. Hollon, Esq. (0086480)
FARUKI IRELAND COX RHINEHART &
DUSING P.L.L.
110 North Main Street, Ste. 1600
Dayton, Ohio 45402
[phone]
[e-mail]
[e-mail]
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION, COLUMBUS
MEDARBOR LLC
Plaintiff,
v.
OHIO RIVER LABORATORY/IPATH, LLC, et
al.
Defendants.

)
) Case No. 2:17-cv-00442-MHW-CMV
)
) Judge Michael H. Waston
) Magistrate Judge Chelsey M. Vascura
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ORDER
GOOD CAUSE APPEARING, the Court hereby approves this Stipulation and
Protective Order. The Parties are hereby ordered to comply with the Stipulation and Protective
Order. The Court shall retain jurisdiction over this Stipulation and Protective Order in order to
interpret, enforce, and award relief regarding this matter.
IT IS SO ORDERED.

/s/ Chelsey M. Vascura
_
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A
CERTIFICATION RE CONFIDENTIAL DISCOVERY MATERIALS
I

hereby

acknowledge

that

I,

_________________________________[NAME],

____________________________ [POSITION/EMPLOYER], am about to receive Confidential
Materials supplied in connection with the Proceeding, Case No 2:27-CV-00442-MHW-CMV. I
certify that I understand that the Confidential Materials are provided to me subject to the terms
and restrictions of the Stipulation and Protective Order filed in the Proceeding. I have been given
a copy of the Stipulation and Protective Order; I have read it, and I agree to be bound by its terms.
I understand that Confidential Materials, as defined in the Stipulation and Protective Order,
including any notes or other records that may be made regarding any such materials, shall not be
Disclosed to anyone except as expressly permitted by the Stipulation and Protective Order. I will
not copy or use, except solely for the purposes of the Proceeding, any Confidential Materials
obtained pursuant to this Stipulation and Protective Order, except as provided therein or otherwise
ordered by the Court in the Proceeding.
I further understand that I am to retain all copies of all Confidential Materials provided to
me in the Proceeding in a secure manner, and that all copies of such Materials are to remain in my
personal custody until termination of my participation in the Proceeding, whereupon the copies of
such Materials will be returned to counsel who provided me with such Materials.
I declare under penalty of perjury, under the laws of the State of Ohio, that the foregoing
is true and correct.
Executed this ____ day of _______________, 20__, at _________________________________.

BY:
Signature
Title:
Address:
City, State, Zip:
Telephone Number

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