Minich v. Keihin Thermal Technology of America, Inc.

Filing 9

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Kimberly A. Jolson on 6/1/2018. (ew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SUSAN MINICH,

Plaintiff,
v.
KEIHIN THERMAL TECHNOLOGY
OF AMERICA, INC.,
Defendant.

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Case No. 2:18-cv-113
Judge Michael H. Watson
Magistrate Judge Jolson
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 federal courts, this Order shall be strictly construed in
favor of public disclosure and open proceedings wherever possible. The Order is also subject to
the Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure
and calculation of time periods.
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
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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.

When electronically stored information is

produced which cannot itself be marked with the designation CONFIDENTIAL, the physical
media on which such electronically stored information is produced shall be marked with the
applicable designation. The party receiving such electronically stored information shall then be
responsible for labeling any copies that it creates thereof, whether electronic or paper, with the
applicable designation. By written stipulation the parties may agree temporarily to designate
original documents that are produced for inspection CONFIDENTIAL, even though the original
documents being produced have not themselves been so labeled. All information learned in the
course of such an inspection shall be protected in accordance with the stipulated designation.
The copies of documents that are selected for copying during such an inspection shall be marked
CONFIDENTIAL, as required under this Order and thereafter the copies shall be subject to
protection under this Order in accordance with their designation.

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
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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 –
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 the preparation and trial of the
action;
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(2)

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

(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.
certification

contained

in

All such persons shall execute the

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.
(d)

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

images, duplicates, extracts, summaries or descriptions (hereinafter referred to

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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. Absent a statute or an order of this Court, documents may not be filed
under seal. See S.D. Ohio Civ. R. 5.2.1. Neither this Stipulated Protective Order nor any other
sealing order constitutes blanket authority to file entire documents under seal. Only confidential
portions of relevant documents are subject to sealing. To the extent that a brief, memorandum or
pleading references any document marked as CONFIDENTIAL – SUBJECT TO PROTECTIVE
ORDER, then the brief, memorandum or pleading shall refer the Court to the particular exhibit
filed under seal without disclosing the contents of any confidential information. If, however, the
confidential information must be intertwined within the text of the document, a party may timely

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move the Court for leave to file both a redacted version for the public docket and an unredacted
version for sealing.
Absent a court-granted exception based upon extraordinary circumstances, any and all
filings made under seal shall be submitted electronically and shall be linked to this Stipulated
Protective Order or other relevant authorizing order. If both redacted and unredacted versions
are being submitted for filing, each version shall be clearly named so there is no confusion as to
why there are two entries on the docket for the same filing.
If the Court has granted an exception to electronic filing, a sealed filing shall be placed in
a sealed envelope marked “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.” The
sealed envelope shall display the case name and number, a designation as to what the document
is, the name of the party on whose behalf it is submitted, and the name of the attorney who has
filed the sealed document.

A copy of this Stipulated Protective Order, or other relevant

authorizing order, shall be included in the sealed envelope.
Any and all documents that may have been subject to sealing during discovery or motion
practice will not enjoy a protected or confidential designation if the matter comes on for hearing,
argument, or trial in the courtroom. The hearing, argument, or trial will be public in all
respects.
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 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. If
agreement is reached confirming or waiving the CONFIDENTIAL – SUBJECT TO
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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. Applications to the Court for an order relating to any

documents designated CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER shall be by
motion under S.D. Ohio Civ. R. 7.2 and any other procedures set forth in the presiding judge’s
standing orders or other relevant orders. 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 use 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.
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.

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(b)

Return of CONFIDENTIAL – SUBJECT TO PROTECTIVE

ORDER Documents. Within thirty (30) 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.
(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.

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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. Motions to modify this Order shall be served and filed under
Local Rule 7.1 and the presiding judge’s standing orders or other relevant orders.
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 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.
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.
Date: June 1, 2018

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

WE SO MOVE/STIPULATE
and agree to abide by the
terms of this Order

WE SO MOVE/STIPULATE
and agree to abide by the
terms of this Order

/s/ Matthew Bruce
Matthew Bruce

/s/ Jocelyn Hoffman
Jocelyn Hoffman

Counsel for Plaintiff Susan Minich

Counsel for Defendant Keihin Thermal Technology
of America, Inc.

Dated: May 31, 2018

Dated: May 31, 2018
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FORM PROTECTIVE ORDER
ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

SUSAN MINICH,

Plaintiff,
v.
KEIHIN THERMAL TECHNOLOGY
OF AMERICA, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 2:18-cv-113
Judge Michael H. Watson
Magistrate Judge Jolson

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 for the Southern District of Ohio 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 above-captioned action, and not to disclose any such
documents or information derived directly therefrom to any other person, firm or concern.

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The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:

Date:
Signature

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