Hargis v. Cummins, Inc. et al

Filing 29

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Chelsey M. Vascura on 8/29/2017. (kdp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LARRY HARGIS,
Plaintiff,
vs.
CUMMINS, INC. and DAIMLER
TRUCKS NORTH AMERICA LLC,
Defendants.

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Case No.: 2:17-cv-00487
Judge Michael H. Watson
Magistrate Judge Vascura

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 documents 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 “documents”), shall be
subject to this Order concerning confidential information as set forth below. As there is a
presumption in favor of open and public judicial proceedings in the courts, this Order shall
be strictly construed in favor of public disclosure and open proceedings wherever possible.
The Order is also subject to the Rules of this Court on matters of procedure and calculation
of time periods. The production of such documents or information by a party shall not
constitute a waiver of any privilege or other claim of right of withholding or confidentiality
that it may have.

2.

Form and Timing of Designation.

A party may designate documents as

confidential and restricted in disclosure under this Order by placing or affixing the words
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” on the document in a manner
that will not interfere with the legibility of the document and that will permit complete
removal of the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER designation.
Documents shall be designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
prior to or at the time of the production or disclosure of the documents. The designation
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” 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.
3.

Documents Which May be Designated CONFIDENTIAL - SUBJECT TO

PROTECTIVE ORDER.

Any party may designate documents as CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER upon making a good faith determination that the
documents contain information protected from disclosure by statute or that should be
protected from disclosure as confidential personal information, medical or psychiatric
information, trade secrets, personnel records, or such other sensitive commercial
information that is not publicly available.

Public records and other information or

documents that are publicly available may not be designated as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER.
4.

Depositions. Deposition testimony shall be deemed CONFIDENTIAL - SUBJECT

TO PROTECTIVE ORDER only if designated as such. Such designation shall be specific
as to the portions of the transcript or any exhibit to be designated as CONFIDENTIAL 2

SUBJECT TO PROTECTIVE ORDER.

Thereafter, the deposition transcripts and any of

those portions so designated shall be protected as CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER, pending objection, under the terms of this Order.
5.

Protection of Confidential Material.
(a)

General

Protections.

Documents

designated

CONFIDENTIAL

-

SUBJECT TO PROTECTIVE ORDER under this Order 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 - SUBJECT TO
PROTECTIVE ORDER documents to any third person or entity except as set forth
in subparagraphs (1)-(5). Subject to these requirements, the following categories of
persons may be allowed to review documents that have been designated
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER:
(1)

Counsel. Counsel for the parties and employees and agents of

counsel who have responsibility for and assist counsel with the preparation,
trial or appeal of the action;
(2)

Parties. Parties and employees of a party to this Order. 1

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NOTE: If the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents contain
highly sensitive trade secrets or other highly sensitive competitive or confidential information and
disclosure to another party would result in demonstrable harm to the disclosing party, then the

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(3)

Court Reporters and Recorders. Court reporters and recorders

engaged for depositions;
(4)

Consultants,

Investigators

and

Experts.

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; and
(5)

Others by Consent. Other persons only by written consent of the

producing party or upon order of the Court and on such conditions as may
be agreed or ordered.

All such persons shall execute the certification

contained in Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound.
(c)

Control of Documents.

Counsel for the parties shall take reasonable and

appropriate measures to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL pursuant to the terms of this Order. Counsel shall maintain the
originals of the forms signed by persons acknowledging their obligations under this
Order 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.
parties may stipulate or move for the establishment of an additional category of protection that
prohibits disclosure of such documents or information to category (2) or that limits disclosure only
to specifically designated in-house counsel or party representative(s) whose assistance is
reasonably necessary to the conduct of the litigation and who agree to be bound by the terms of the
order.

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(d)

Copies. Prior to production to another party, all copies, electronic images,

duplicates, extracts, summaries or descriptions (hereinafter referred to collectively
as “copies”) of documents designated as CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER under this Order, 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 documents provided these
indices, electronic databases or lists do not contain substantial portions or images of
the text of confidential documents or otherwise disclose the substance of the
confidential information contained in those documents.
(e)

Inadvertent Production. Inadvertent production of any document or

information without a designation of “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” shall be governed by Fed. R. Evid. 502.
6.

Filing of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER

Documents Under Seal.

The parties will adhere to the U.S. District Court – Southern

District’s Local Rule 5.2.1 regarding the procedure for filing documents under seal and
documents submitted for in camera inspection.
7.

Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party or
non-party with standing to object (hereafter “party”). Before filing any motions or

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objections to a confidentiality designation with the Court, the objecting party shall have an
obligation to meet and confer in a good faith effort to resolve the objection by agreement,
and the parties shall make their best efforts to resolve the objection. If agreement is
reached confirming or waiving the CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER designation as to any documents subject to the objection, the designating party
shall serve on all parties a notice specifying the documents and the nature of the agreement.
8.

Action by the Court. 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 documents produced or used in discovery or at
trial.
9.

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

the public. Absent order of the Court, there will be no restrictions on the use of any
document that may be introduced by any party during the trial. If a party intends to present
at trial CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents or
information derived therefrom, such party shall provide advance notice to the other party at
least five (5) days before the commencement of trial by identifying the documents or
information at issue as specifically as possible (i.e., by Bates number, page range,
deposition transcript lines, etc.) without divulging the actual CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER documents or information.

The Court may

thereafter make such orders as are necessary to govern the use of such documents or
information at trial.

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10.

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 - SUBJECT TO PROTECTIVE ORDER

Documents. Within thirty days after dismissal or entry of final judgment not
subject to further appeal, all documents treated as CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER under this Order, including copies as defined in ¶ 5(d),
shall be returned to the producing party unless: (1) the document 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 documents bearing the notations,
summations, or other mental impressions of the receiving party, that party elects to
destroy the documents and certifies to the producing party that it has done so.
Notwithstanding the above requirements to return or destroy documents, counsel
may retain attorney work product, including an index which refers or relates to
information designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER,
so long as that work product does not duplicate verbatim substantial portions of the
text or images of confidential documents. This work product shall continue to be
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 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 - SUBJECT TO PROTECTIVE
ORDER documents.
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(c)

Return of Documents Filed under Seal. After dismissal or entry of final

judgment not subject to further appeal, the Clerk may elect to return to counsel for
the parties or, after notice, destroy documents filed or offered at trial under seal or
otherwise restricted by the Court as to disclosure.
11.

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.
12.

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
documents or information designated CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER by counsel or the parties is subject to protection under the Federal Rules of Civil
Procedure or otherwise until such time as the Court may rule on a specific document or
issue.
13.

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.
So Ordered.

Dated: ____8/29/2017___________

/s/ Chelsey M. Vascura
Chelsey M. Vascura
United States Magistrate Judge

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WE SO STIPULATE and agree to abide by the terms of this order:

/s/ Elizabeth Ahern Wells ________________
Ronald L. Burdge (15609)
Elizabeth Ahern Wells (78320)
BURDGE LAW OFFICE
2299 Miamisburg - Centerville Road
Dayton, Ohio 45459-3817
Counsel for Plaintiffs

Dated:

August 28, 2017

/s/ Adam W. Martin
______________
Dated: August 28, 2017
Adam W. Martin (77722)
SUTTER O’CONNELL
3600 Erieview Tower
1301 E. 9th Street
Cleveland, OH 14114
Counsel for Defendant Daimler Trucks North America LLC

/s/ Patrick H. Reilly ____________________
Marc S. Blubaugh (68221)
Kelly Mulrane (88133)
BENESCH FRIEDLANDER COPLAN &
ARONOFF LLP
41 S. High Street, 26th Floor
Columbus, Ohio 43215
Patrick H. Reilly (admitted pro hac vice)
Stephanie L. Boxell (admitted pro hac vice)
FAEGRE BAKER DANIELS, LLP
300 N. Meridian Street, Suite 2700
Indianapolis, Indiana 46204
Attorneys for Defendant Cummins Inc.

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Dated:

August 28, 2017

ATTACHMENT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LARRY HARGIS,
Plaintiff,
vs.
CUMMINS, INC. and DAIMLER
TRUCKS NORTH AMERICA LLC,
Defendants.

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Case No.: 2:17-cv-00487
Judge Michael H. Watson

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, Southern District of Ohio - Eastern Division in matters
relating to the Protective Order and understands that the terms of the Protective Order
obligate him/her to use documents designated CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER in accordance with the Order solely for the purposes of the abovecaptioned 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.
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Name:

______________________________________

Job Title:

______________________________________

Employer:

______________________________________

Business Address:

______________________________________
______________________________________
______________________________________

Date: __________________

_______________________________
Signature

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