Spielman v. IMG College, LLC et al

Filing 56

STIPULATION AND ORDER for the Provision of Confidential Information. Signed by Magistrate Judge Kimberly A. Jolson on 5/18/2018. (Attachments: # 1 Exhibit) (ew)

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES C. SPIELMAN aka CHRIS
SPIELMAN, on behalf of himself and all
others similarly situated,
Plaintiff,
vs.
IMG COLLEGE, LLC, et al.,
Defendants.

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CASE NO. 2:17-CV-00612-MHW-KAJ
JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE KIMBERLY A.
JOLSON
STIPULATION AND ORDER FOR THE
PROVISION OF CONFIDENTIAL
INFORMATION

WHEREAS, the parties to the above-captioned action (the “Litigation”), by and through
their undersigned counsel, are engaged in a voluntary exchange of information not subject to the
discovery rules, and receiving information from each other and third parties for the purpose of
understanding the dispute; and
WHEREAS, that exchange and receipt will involve the provision of certain information
that one or more of the parties to the Litigation (the “Parties,” each a “Party”) and/or others
believe to be confidential and sensitive information;
IT IS HEREBY STIPULATED AND AGREED by the Parties hereto, through their
undersigned counsel, subject to the approval of the Court, that this Stipulation and Order for the
Production and Exchange of Confidential Information (the “Stipulation”) shall govern the
handling of information exchanges of all kinds (“Disclosed Material”) by any Party or non-Party
providing Disclosed Material (each a “Providing Party”) to a Party to this action (a “Receiving
Party”) related in any way to this Litigation during the pendency thereof.

1.

Any Providing Party may designate any Disclosed Material as “Confidential” or

“Confidential – Attorneys’ Eyes Only” under the terms of this Stipulation if such Providing Party
reasonably believes in good faith that such Disclosed Material contains non-public, confidential,
proprietary, or commercially sensitive information that requires the protections provided in this
Stipulation (“Confidential Disclosed Material”).
2.

The designation of Disclosed Material as Confidential Disclosed Material or

Confidential – Attorneys’ Eyes Only Disclosed Material shall be made in the following manner:
A.

In the case of documents or other materials: (i) by affixing the legend

“Confidential” or “Confidential – Attorneys’ Eyes Only” to each page containing any
Confidential Disclosed Material; or (ii) in the case of electronically stored information
produced in native format, by including “Confidential” or “Confidential – Attorneys’
Eyes Only” in the file or directory name, or by affixing the legend “Confidential” or
“Confidential – Attorneys’ Eyes Only” to the media containing the Confidential
Disclosed Material (e.g., CD-ROM, floppy disk, DVD).
B.

In the case of oral information disclosure, by written notice, sent to all

Parties before or within 5 business days after the disclosure.
C.

In the case of any other Disclosed Material, by written notice that the

Disclosed Material constitutes Confidential or Confidential – Attorneys’ Eyes Only
Disclosed Material.
3.

The designation of Disclosed Material as Confidential or Confidential –

Attorneys’ Eyes Only Disclosed Material shall constitute a representation that such material has
been reviewed by an attorney representing the Party making the designation, and that there is a
good faith basis for such designation.

4.

Inadvertent failure to designate Disclosed Material as Confidential or Confidential

– Attorneys’ Eyes Only Disclosed Material shall not constitute a waiver of such claim and may
be corrected. A Providing Party may designate as Confidential or Confidential – Attorneys’
Eyes Only any Disclosed Material that has already been produced, including Disclosed Material
that the Providing Party inadvertently failed to designate as such, (i) by notifying in writing the
Party to whom the production has been made that the Disclosed Material constitutes Confidential
or Confidential Attorneys’ Eyes Only Disclosed Material, or (ii) in a manner consistent with
Paragraph 2. Upon receiving such supplemental notice, the Parties shall thereafter mark and
treat the Disclosed Material so designated as Confidential or Confidential – Attorneys’ Eyes
Only Disclosed Material, and such Disclosed Material shall be fully subject to this Stipulation
from the date of such supplemental notice forward.

The Receiving Party shall make a

reasonable, good-faith effort to ensure that any analyses, memoranda, notes, or other such
materials generated based upon such newly designated information are immediately treated as
containing Confidential Disclosed Material.

In addition, upon receiving such supplemental

written notice, any Receiving Party that disclosed the Disclosed Material prior to its designation
as Confidential or Confidential – Attorneys’ Eyes Only shall exercise its best efforts (i) to ensure
the return or destruction of such Disclosed Material, (ii) to ensure that any documents or other
materials derived from such Disclosed Material are treated as if the Disclosed Material had been
designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” when originally
produced, (iii) to ensure that such Disclosed Material is not further disclosed except in
accordance with the terms of this Stipulation and Order, and (iv) to ensure that any such
Disclosed Material, and any information derived therefrom, is used solely for the purposes
authorized by the express terms of this Stipulation and Order. To the extent that disclosures are

sought or made concerning Confidential or Confidential – Attorneys’ Eyes Only Disclosed
Material during mediation or in any other pre-trial venue, any Party may exclude any person
from the venue if the Confidential or Confidential – Attorneys’ Eyes Only Disclosed Material
may not be disclosed to such person under the terms of this Stipulation.
5.

Confidential Disclosed Material may be disclosed, summarized, described,

characterized, or otherwise communicated or made available in whole or in part only to the
following persons:
A.

The Parties and the officers and employees of the Parties, or any

subsidiary or affiliate thereof, who are assisting with or making decisions concerning the
Litigation, to the extent deemed reasonably necessary by counsel of record for the
purpose of assisting in the conduct of the Litigation for use in accordance with this
Stipulation;
B.

Counsel who represent Parties in this Litigation (including in-house

counsel), and the partners, associates, paralegals, secretaries, clerical, regular and
temporary employees, and service vendors of such counsel (including outside copying
and litigation support services) who are assisting with the Litigation for use in accordance
with this Stipulation;
C.

Subject to Paragraph 7, outside experts or consultants assisting counsel for

the Parties, and partners, associates, paralegals, secretaries, clerical, regular and
temporary employees, and service vendors of such experts or consultants (including
outside copying services and outside support services) who are assisting with the
Litigation;

D.

Subject to Paragraph 8, witnesses or deponents, and their counsel, only to

the extent necessary to conduct or prepare for depositions or testimony in this Litigation;
E.

Any person indicated on the face of a document or accompanying

covering letter, email, or other communication to be the author, addressee, or an actual or
intended recipient of the document, or, in the case of meeting minutes, an attendee of the
meeting;
F.

The Court, persons employed by the Court, and court reporters

transcribing any hearing, trial, or deposition in this Litigation or any appeal therefrom;
and
G.

Any other person only upon (i) order of the Court entered upon notice to

the Parties, or (ii) written stipulation of the Providing Party who provided the Disclosed
Material being disclosed, and provided that such person signs an undertaking in the form
attached as Exhibit A hereto.
6.

Material designated as “Confidential – Attorneys’ Eyes Only” may be disclosed,

summarized, described, characterized, or otherwise communicated or made available in whole or
in part only to the following persons:
A.

Counsel who represent Parties in this Litigation (including in-house

counsel), and the partners, associates, paralegals, secretaries, clerical, regular and
temporary employees, and service vendors of such counsel (including outside copying
and litigation support services) who are assisting with the Litigation, solely for the
purpose of assisting with the Litigation and in accordance with this Stipulation, and only
after signing an undertaking in the form attached as Exhibit A hereto.

B.

Subject to Paragraph 7, outside experts or consultants who are not

employed by or affiliated with a Party, assisting counsel for the Parties, and partners,
associates, paralegals, secretaries, clerical, regular and temporary employees, and service
vendors of such experts or consultants (including outside copying services and outside
support services), solely for the purpose of assisting with the Litigation, and only after
signing an undertaking in the form attached as Exhibit A hereto;
C.

Subject to Paragraph 8, witnesses or deponents, and their counsel, only to

the extent necessary to conduct depositions or testimony in this Litigation (all preparation
for testimony instead to be governed by Subparagraph E(ii) hereof);
D.

The Court, persons employed by the Court, and court reporters

transcribing any hearing, trial, or deposition in this Litigation or any appeal therefrom;
and
E.

Any other person only upon (i) order of the Court entered upon notice to

the Parties, or (ii) written stipulation of, or statement on the record by, the Producing
Party who provided the Disclosed Material being disclosed, and provided that such
person signs an undertaking in the form attached as Exhibit A hereto.
7.

Notwithstanding Paragraph 5(C) and 6(B) above, Confidential and Confidential –

Attorneys’ Eyes Only Disclosed Material may be provided to persons listed therein only to the
extent necessary for such expert or consultant to prepare a written opinion, to prepare to testify,
or to assist counsel in this Litigation, provided that such expert or consultant (i) is not currently
an employee of, or advising or discussing employment with, or consultant to, any Party or any
competitor or potential transaction counterparty of any Party, as far as the expert or consultant
can reasonably determine, and (ii) is using said Disclosed Material solely in connection with this

Litigation, and further provided that such expert or consultant agrees to be bound by the terms of
this Stipulation by signing an undertaking in the form attached as Exhibit A hereto. Counsel for
the Party showing, providing, or disclosing Confidential or Confidential – Attorneys’ Eyes Only
Disclosed Material to any person required to execute an undertaking pursuant to this paragraph
shall be responsible for obtaining such signed undertaking and retaining the original, executed
copy thereof. Under no circumstances shall an expert or consultant who is a competitor or an
employee of a competitor of a Providing Party, or who is providing services to any of the
foregoing, be provided access to Confidential and Confidential – Attorneys’ Eyes Only
Disclosed Material absent further order of the Court or consent of the Providing Party.
“Competitors” are persons or entities endeavoring to engage in the same or similar lines of
business, provide the same or similar services, sell the same or similar products, and/or operate
in the same markets, as well as any persons who are actually engaged in any of these activities.
8.

Notwithstanding Paragraph 5(D) and 6(C) above, Confidential Disclosed Material

may be provided to persons listed therein only after (i) they confirm their understanding and
agreement to abide by the terms of this Stipulation by making such a statement on the record,
and/or by signing an undertaking in the form attached as Exhibit A hereto, or (ii) a court of
competent jurisdiction orders them to abide by the terms of the Stipulation. Counsel for the
Party showing Confidential or Confidential – Attorneys’ Eyes Only Disclosed Material to any
person required to execute an undertaking pursuant to this paragraph shall be responsible for
obtaining such signed undertaking and retaining the original, executed copy thereof.
9.

Disclosed Material shall be used solely for purposes of this Litigation and shall

not be provided to any other person or used for any other purpose, including, without limitation,
any business or commercial purpose, or any other litigation or proceeding; provided, however,

that the foregoing shall not apply to Disclosed Material that is or becomes part of the public
record without disclosure by a Receiving Party.
10.

Every person to whom Disclosed Material is disclosed, summarized, described,

characterized, or otherwise communicated or made available, in whole or in part, shall be
advised that the information is being disclosed pursuant and subject to the terms of this
Stipulation and may not be disclosed or used for purposes other than those permitted hereunder.
Each such person shall maintain the Disclosed Material, or information derived therefrom, in a
manner reasonably calculated to prevent unauthorized disclosure.
11.

Before filing with the Court any pleading, brief, memorandum, motion, letter,

affidavit, or other document that discloses, summarizes, describes, characterizes or otherwise
communicates or contains Confidential or Confidential – Attorneys’ Eyes Only Disclosed
Material, a Receiving Party shall redact the document and seek leave of Court to file an
unredacted version under seal pursuant to Local Rule 5.2.1. The Providing Party shall have the
opportunity to support the motion for filing under seal and to argue, in the alternative, that the
information related to the Disclosed Material should not be filed..
12.

During the pendency of this Litigation, any Party objecting to the designation of

any Disclosed Material or testimony as Confidential or Confidential – Attorneys’ Eyes Only
Disclosed Material may, after making a good faith effort to resolve any such objection, move on
reasonable notice for an order vacating the designation. While such an application is pending,
the Disclosed Material or testimony in question shall be treated as Confidential or Confidential –
Attorneys’ Eyes Only Disclosed Material pursuant to this Stipulation. The provisions of this
Stipulation are not intended to shift any burden of proof, including the burden of establishing that
any Disclosed Material validly constitutes Confidential or Confidential – Attorneys’ Eyes Only

Disclosed Material, which burden remains on the Party that designates such Disclosed Material
or testimony as Confidential or Confidential – Attorneys’ Eyes Only.
13.

The Parties reserve the right to apply, upon short notice, for an order seeking

additional safeguards with respect to the use and handling of Disclosed Material or to modify the
terms of this Stipulation.
14.

Entering into this Stipulation, or agreeing to and/or providing or receiving

Disclosed Material or otherwise complying with the terms of this Stipulation, shall not:
A.

Prejudice in any way the rights of any Party to (i) seek production of

documents or information it considers subject to discovery, (ii) object to the production
of documents or information its considers not subject to discovery, or (iii) object to the
commencement of formal discovery;
B.

Prejudice in any way the rights of any Party to object to the authenticity or

admissibility into evidence of any Disclosed Material;
C.

Operate as an admission by any Party that any particular Disclosed

Material constitutes Confidential or Confidential – Attorneys’ Eyes Only Disclosed
Material or contains or reflects trade secrets or any other type of confidential information;
D.

Prejudice in any way the rights of any Party to (i) petition the Court for a

further protective order relating to any purportedly Confidential or Confidential –
Attorneys’ Eyes Only Disclosed Material, or (ii) seek a determination by the Court
whether any Disclosed Material or Confidential or Confidential – Attorneys’ Eyes Only
Disclosed Material should be subject to the terms of this Stipulation;
E.

Prevent any Party from agreeing in writing to alter or waive the provisions

or protections provided herein with respect to any particular Disclosed Material;

F.

Prejudice in any way the rights of any Party to object to the relevance,

authenticity, use, or admissibility into evidence of any document, testimony, or other
evidence subject to this Stipulation and Order;
G.

Preclude any Party from objecting to discovery that it believes to be

otherwise improper;
H.

Operate as a waiver of any attorney-client, work product, business

strategy, trade secret, or other privilege; or
I.

Preclude any party from asserting that it should be dismissed from the case

for lack of personal jurisdiction or otherwise; the signing of this Stipulation and Order,
and the Court’s entry of this Stipulation and Order is not a consent to jurisdiction by any
party.
15.

If Disclosed Material that is subject to a claim of attorney-client privilege,

attorney work product, or any other applicable privilege or immunity or ground on which
production of that information should not be made to any Party (“Inadvertently Disclosed
Material”) is inadvertently provided to that Party or Parties, such inadvertent provision shall in
no way prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorneyclient privilege, work product or other applicable privilege or immunity.
A.

A claim of inadvertent production shall constitute a representation by that

Providing Party that the Inadvertently Disclosed Material has been reviewed by an
attorney for such Providing Party and that there is a good-faith basis for such claim of
inadvertent production.
B.

If a claim of inadvertent production is made, pursuant to this Stipulation,

with respect to Disclosed Material then in the custody of another Party, the Party

possessing the Inadvertently Disclosed Material shall: (i) refrain from any further
examination or disclosure of the claimed Inadvertently Disclosed Material; (ii) if
requested, promptly make a good-faith effort to return the claimed Inadvertently
Disclosed Material and all copies thereof (including summaries and excerpts) to counsel
for the Providing Party, or destroy all such claimed Inadvertently Disclosed Material
(including summaries and excerpts) and all copies thereof, and certify in writing to that
fact; and (iii) not use the Inadvertently Disclosed Material for any purpose until further
order of the Court.
C.

A Party may move the Court for an order compelling production of the

claimed Inadvertent Production Material; however, while such motion is pending, the
Disclosed Material in question shall be treated as Inadvertently Disclosed Material, and
such motion may not assert as a ground for entering such an order the fact or
circumstance of the inadvertent production, nor shall such motion include or otherwise
disclose, as an attachment, exhibit, or otherwise, the Inadvertent Production Material (or
any portion thereof) that is the subject of such motion.
16.

Nothing herein shall be deemed to waive any applicable common law or statutory

privilege or work product protection.
17.

In the event additional Parties appear, join, or are joined in this Litigation, they

shall not have access to Confidential or Confidential – Attorneys’ Eyes Only Disclosed Material
until the newly appearing or joined Party by its counsel has executed and provided to the
Providing Party its agreement to be fully bound by this Stipulation.

18.

The Parties agree to be bound by the terms of this Stipulation pending the entry

by the Court of this Stipulation, and any violation of its terms shall be subject to the same
sanctions and penalties as if this Stipulation had been entered by the Court.
19.

Subject to the requirements any applicable rule of the Court, the provisions of this

Stipulation shall, absent written permission of the Providing Party or further order of the Court,
continue to be binding throughout and after the conclusion of the Litigation, including, without
limitation, any appeals therefrom.
20.

Prior to any court proceeding or mediation in which Confidential or Confidential

– Attorneys’ Eyes Only Disclosed Material is to be used, counsel shall confer in good faith on
such procedures that may be necessary or advisable to protect the confidentiality of any such
Disclosed Material.
21.

Within 30 days after receiving notice of the entry of an order, judgment, or decree

finally disposing of this Litigation, or any other proceeding in which Confidential or Confidential
– Attorneys’ Eyes Only Disclosed Material is permitted to be used, including the exhaustion of
all possible appeals, and upon the written request of the Providing Party, all persons having
received Confidential or Confidential – Attorneys’ Eyes Only Disclosed Material shall either (i)
make a good-faith and reasonable effort to return such material and all copies thereof (including
summaries, excerpts, and derivative works) to counsel for the Providing Party; or (ii) make a
good-faith and reasonable effort to destroy all such Confidential or Confidential – Attorneys’
Eyes Only Disclosed Material, and certify to that fact in writing to counsel for the Providing
Party. However, counsel for the Parties shall be entitled to retain court papers, deposition and
trial transcripts, and litigation files (including attorney work product and discovery material
containing Confidential or Confidential – Attorneys’ Eyes Only Disclosed Material), provided

that such counsel, and employees of such counsel, shall maintain the confidentiality thereof and
shall not disclose such court papers, depositions and trial transcripts, and litigation files
(including attorney work product and discovery material containing Confidential or Confidential
– Attorneys’ Eyes Only Disclosed Material) to any person except pursuant to a court order or
agreement by the Providing Party or except as otherwise required by law. All materials returned
to the Parties or their counsel by the Court likewise shall be disposed of in accordance with this
Paragraph.
22.

If any person in possession of Disclosed Material (the “Receiver”) receives a

subpoena or other compulsory process seeking the production or other disclosure of Disclosed
Material produced or designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” by
a Providing Party other than the Receiver (collectively, a “Demand”), the Receiver shall give
written notice (by hand, email, or facsimile transmission) to counsel for the Providing Party (or
Providing Parties) within three business days of receipt of such Demand (or if a response to the
Demand is due in less than three business days, at least 24 hours prior to the deadline for a
response to the Demand), identifying the Confidential or Confidential – Attorneys’ Eyes Only
Disclosed Material sought and enclosing a copy of the Demand, and must object to the
production of the Confidential or Confidential – Attorneys’ Eyes Only Disclosed Material on the
grounds of the existence of this Stipulation. The burden of opposing the enforcement of the
Demand will fall on the Providing Party. Compliance by the Receiver with any order directing
production pursuant to a Demand of any Confidential or Confidential – Attorneys’ Eyes Only
Disclosed Material will not constitute a violation of this Stipulation.
23.

No Receiver shall reveal any Disclosed Material, or the information contained

therein, to anyone not entitled to receive such Disclosed Material under the terms of this

Stipulation. In the event that Disclosed Material is disclosed to any person other than in the
manner authorized by this Stipulation, or that any information comes to the Receiver’s attention
that may indicate there was or is likely to be a loss of confidentiality of any Confidential or
Confidential – Attorneys’ Eyes Only Disclosed Material, the Receiver responsible for the
disclosure or loss of confidentiality shall immediately inform the Providing Party of all pertinent
facts relating to the disclosure or loss of confidentiality, including, if known, the name, address,
and employer of each person to whom the disclosure was made. The Receiver responsible for
the disclosure or loss of confidentiality shall also make reasonable efforts to prevent disclosure
of Confidential or Confidential – Attorneys’ Eyes Only Disclosed Material by each unauthorized
person who receives the information.
24.

The Parties agree that the provision of any Disclosed Material by any non-Party

shall be subject to and governed by the terms of this Order.
IT IS SO ORDERED.
Date: May 18, 2018

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

/s/ Gregory J. Phillips
JOSEPH A. CASTRODALE (0018494)
GREGORY J. PHILLIPS (0077601)
JAMES E. VON DER HEYDT (0090920)
BENESCH, FRIEDLANDER, COPLAN &
ARONOFF LLP
200 Public Square, Suite 2300
Cleveland, Ohio 44114-2378
Telephone: [phone]
Facsimile: 216.363.4588
Email: [e-mail]
[e-mail]
[e-mail]
NICHOLAS J. SECCO (pro hac vice)
333 West Wacker Drive, Suite 1900
Chicago, IL 60606
Telephone: [phone]
[e-mail]
Attorneys for Defendants IMG College, LLC;
IMG Worldwide, Inc.; WME Entertainment;
International Management Group; Ohio State
Sports Marketing

/s/ Brian K. Duncan
Brian K. Duncan (0080751)
BKD LEGAL, LLC
119 East Granville Street
Sunbury, OH 43074
Tel: [phone]
Fax: [phone]
Email: [e-mail];
Trial Attorney for Plaintiff Charles C. Spielman,
on behalf of himself and all others similarly
situated
/s/ Gregory P. Barwell
Gregory P. Barwell (0070545)
Wesp Barwell LLC
100 E. Broad Street, Suite 2350
Columbus, OH 43215
Tel. and Fax: [phone]
Email: [e-mail]
/s/ Samir B. Dahman (by email consent)
Samir B. Dahman (0082647)
Alexis V. Preskar (0095619)
KOHRMAN JACKSON & KRANTZ LLP
10 West Broad Street, Suite 1900
Columbus, OH 43215
Tel: [phone]
Fax: [phone]
Email: [e-mail]; [e-mail]
Co-counsel for Plaintiff Charles C. Spielman, on
behalf of himself and all others similarly situated