DWS International, Inc. v. George William Job, et al

Filing 21

STIPULATED PROTECTIVE ORDER. Signed by Judge Thomas M Rose on 7/15/13. (Attachments: # 1 Exhibit A) (ep)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION (DAYTON)
DWS INTERNATIONAL, INC. d/b/a :
Marble Dimensions Worldwide, Inc.,
:
:
Plaintiff,
:
:
vs.
:
:
GEORGE WILLIAM JOB, TRUSTEE, et :
al.,
:
:
Defendants. :

Civil Action No.: 3:12-cv-00339
Judge Thomas M. Rose

STIPULATED PROTECTIVE ORDER
The issues in the above-captioned litigation (the “Litigation") involve confidential
financial, product, and customer information, as well as other confidential and
proprietary internal business and strategic information. Thus, good cause appearing, it
is hereby ORDERED as follows:
1.

Scope of Order. This Stipulated Protective Order (the “Protective

Order") governs the use and handling of documents, electronic information in any form
(including embedded data and metadata), testimony, interrogatory responses, and other
information, including all copies, excerpts, and summaries thereof (collectively, the
"Material") produced or given by any defendant, plaintiff, or other individual or entity in
pre-trial proceedings in this Litigation. Material produced in this Litigation shall be
used only for the purpose of this Litigation, and not for any other business, competitive,
personal, private, public, or other purpose whatsoever.
2.

Designation of CONFIDENTIAL MATERIAL. The Producing Party

may designate as "CONFIDENTIAL" any Material that it produces in this Litigation
which the Producing Party reasonably and in good faith believes to contain confidential

information, within the meaning of Fed. R. Civ. P. 26 and/or other applicable law, used
by it in, or pertaining to, its business, and that is not generally known, and which the
Producing Party would not normally reveal to third parties or, if disclosed, would
require such third parties to maintain in confidence. The designations will be made by
an attorney, and will be designated in conformance with Paragraph 9 of this Protective
Order.
3.
ONLY

Designation of HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
MATERIAL.

The

Producing

Party

may

designate

as

"HIGHLY

CONFIDENTIAL – ATTORNEYS EYES ONLY" any CONFIDENTIAL MATERIAL that
the Producing Party reasonably and in good faith believes to contain highly sensitive
and non-public financial or other business information, including, but not limited to,
information subject to any confidentiality agreement or applicable privacy law. The
designations will be made by an attorney, and will be designated in conformance with
Paragraph 9 of this Protective Order.
4.

Persons Who May Access CONFIDENTIAL MATERIAL. Except as

provided in Paragraph 9, absent written consent from the Producing Party or unless
otherwise directed by the Court, CONFIDENTIAL MATERIAL may be disclosed only to
the following persons:
(a)

Any person who is indicated on the face of a document to have been
an author, addressee, or copy recipient of the document, or the
original source of the information;

(b)

Representatives of the parties responsible for overseeing, directing,
or working with outside counsel in connection with the Litigation,
but only for purpose of assisting with the prosecution or defense of
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this Litigation or otherwise consulting with outside counsel in
connection with the other competitive purposes;
(c)

Outside counsel of record for the Parties;

(d)

Outside experts or consultants, who are not regular employees of a
Party but are retained on behalf of any of the Parties by their
outside counsel to assist in the preparation of this Litigation;

(e)

Outside photocopying, graphic production services or litigation
support services employed by the Parties' counsel to assist in this
Litigation, and computer service personnel performing duties in
relation to a computerized litigation system;

(f)

The Court, court reporters, videographers, stenographers, and court
personnel; and

(g)

The direct staff of, and any contract support personnel employed or
retained by, any of the foregoing persons listed in (c) above
provided that such persons are actively involved in assisting with
the prosecution or defense of this Litigation.

5.

Persons

Who

May

Access

HIGHLY

CONFIDENTIAL

-

ATTORNEYS EYES ONLY MATERIAL. Except as provided in Paragraph 9, absent
written consent from the Producing Party or unless otherwise directed by the Court,
HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL may be disclosed
only to the following persons:
(a)

Outside counsel of record for the Parties;

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(b)

Outside experts or consultants, who are not regular employees of a
Party but are retained on behalf of any of the Parties by their
outside counsel to assist in the preparation of this Litigation;

(c)

Outside photocopying, graphic production services or litigation
support services employed by the Parties' outside counsel to assist
in this Litigation, and computer service personnel performing
duties in relation to a computerized litigation system;

(d)

The Court, court reporters, videographers, stenographers, and court
personnel; and

(e)

The direct staff of, and any contract support personnel employed or
retained by, any of the foregoing persons listed in (a) above
provided that such persons are actively involved in assisting with
the prosecution or defense of this Litigation.

6.

Application of this Protective Order to Persons with Access to

CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY
MATERIAL. Each person given access to CONFIDENTIAL MATERIAL or HIGHLY
CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL shall be advised that the
CONFIDENTIAL MATERIAL or HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY
MATERIAL is being disclosed pursuant to and subject to the terms of this Protective
Order and may not be disclosed or used other than as set forth in this Protective Order.
(a)

Before any person described above in Paragraphs 4(d) or 5(b) is
given

access

to

CONFIDENTIAL

MATERIAL

or

HIGHLY

CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL, such
person

must

read

and
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agree

in

writing,

by

signing

an

acknowledgment in the form attached hereto as Exhibit A, to be
bound by the provisions of this Protective Order.
(b)

Before any other person described in Paragraphs 4 or 5 is shown
any CONFIDENTIAL MATERIAL or HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY MATERIAL, that person must be
instructed that he or she is bound by the provisions of this
Protective Order.

(c)

In the event that a person, other than the Producing Party, to whom
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS
EYES ONLY MATERIAL has been disclosed receives a discovery
request, subpoena, order, or other form of compulsory process
(“Third Party Request”) requiring that it (the “Subpoenaed Party”)
produce information, documents, things, or other materials that
have

been

designated

as

CONFIDENTIAL

or

HIGHLY

CONFIDENTIAL – ATTORNEYS EYES ONLY MATERIAL, the
Subpoenaed Party will not produce such materials without first
giving prompt written notice (including a copy of the Third Party
Request) to the attorneys of record for the Producing Party, no
more than three (3) business days after receiving the Third Party
Request.

The Subpoenaed Party must also promptly inform in

writing the party who caused the Third Party Request to issue that
some or all of the materials covered by the Third Party Request are
subject to this Protective Order.

The Subpoenaed Party must

deliver a copy of this Protective Order promptly to the party in the
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other action that caused the Third Party Request to issue. If the
Producing Party elects to seek protection in court of its
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS
EYES ONLY MATERIAL, it shall bear the burden and expense
involved therewith. Nothing in this Protective Order should be
construed as authorizing or encouraging a Subpoenaed Party to
disobey a lawful directive of another court.
7.

Filing

Documents

Containing

Confidential

or

HIGHLY

CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL. In the event a party
wishes to use any CONFIDENTIAL MATERIAL or HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY MATERIAL, or any papers containing or making reference to
the contents of such material or information, in any pleading or document filed with the
Court in this Litigation, such pleading or document and CONFIDENTIAL MATERIAL or
HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL shall, upon order of
the Court, be filed under seal. The sealed material, information or papers shall plainly
state on the first page of any bound or stapled document "CONFIDENTIAL - FILED
UNDER SEAL" and shall be filed only in sealed envelopes on which shall be endorsed
the caption of this action, and a statement substantially in the following form:
CONFIDENTIAL
This envelope contains documents that are subject to a Protective Order
entered by the Court in this action. This envelope shall neither be opened
nor the contents revealed except by Order of the Court.
Alternatively, the Parties may follow other procedures set out by the Court for the filing
of documents under seal.

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8.

Production of Documents and Other Material Containing

Confidential or HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY
MATERIAL.

The

designation

of

CONFIDENTIAL

MATERIAL

or

HIGHLY

CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL for the purposes of this
Protective Order shall be made in the following manner:
(a)

In the case of documents and written discovery responses, by
affixing the legend "CONFIDENTIAL" to each page containing any
CONFIDENTIAL MATERIAL and "HIGHLY CONFIDENTIALATTORNEYS EYES ONLY" to each page containing any HIGHLY
CONFIDENTIAL - ATTORNEYS EYES ONLY.

(b)

In the case of electronically stored information in any form
(including embedded data and metadata) (collectively, "Electronic
Data"), by designating the Electronic Data as CONFIDENTIAL or
HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY in a cover
letter accompanying the production of the Electronic Data. Where
feasible, counsel for the Producing Party will also mark the disk,
tape, or other electronic media on which the Electronic Data is
produced with the appropriate designation.

If a Party reduced

CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS
EYES ONLY Electronic Data to hardcopy form, it shall mark the
hardcopy with the appropriate designation.

Whenever any

CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS
EYES ONLY Electronic Data is copied, all copies shall be marked
with the appropriate designation.
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(c)

In the case of depositions or other pretrial testimony: (i) by a
statement on the record, by counsel, at the time of such disclosure,
or (ii) by written notice of the specific pages and lines of the
transcript(s)

or

exhibit(s)

which

are

intended

to

be

CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS
EYES ONLY sent to all counsel of record for the Parties and the
court reporter within twenty business days after receipt of the
transcript of the deposition. All transcripts shall be considered
Confidential and subject to this Protective Order until expiration of
that twenty day period.
containing

video

of

All videotapes, DVDs or other media
depositions

shall

be

clearly

labeled

CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS
EYES ONLY, as appropriate pursuant to this Protective Order.
Upon receipt of a notice designating specific pages or lines of
testimony as CONFIDENTIAL or HIGHLY CONFIDENTIAL –
ATTORNEYS EYES ONLY, each Party shall then attach a copy of
that notice to the face of the transcript and of each copy in its
possession, custody, or control.
(d)

The inadvertent failure to stamp a document as CONFIDENTIAL or
HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY shall not be
deemed a waiver of a claim of confidentiality. The Producing Party
shall give written notice to the Party receiving the CONFIDENTIAL
and HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY
MATERIAL promptly after the omission is discovered, and the
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receiving Party shall then treat those materials as CONFIDENTIAL
or HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY
MATERIAL in accordance with this Protective Order. The receiving
Party may not be subject to sanctions based upon its use of such
information before being notified that it is CONFIDENTIAL or
HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY.
9.

Use of Confidential or HIGHLY CONFIDENTIAL - ATTORNEYS

EYES ONLY MATERIAL at Depositions.

Nothing in this Protective Order shall

prevent any counsel of record from utilizing CONFIDENTIAL MATERIAL or HIGHLY
CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL in the examination of any
person who is reasonably alleged to be the author or source of the Protected Material or
who is reasonably believed to have knowledge relating thereto. In addition:
(a)

Parties and present employees of the parties, or employees of third
parties, may be examined as witnesses at depositions and trial and
may testify concerning all CONFIDENTIAL MATERIAL or
HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL
produced or designated by that party, or by the employee’s
employer if a third party;

(b)

Former employees of the parties, or former employees of third
parties, may be examined and may testify concerning all
CONFIDENTIAL MATERIAL or HIGHLY CONFIDENTIAL ATTORNEYS EYES ONLY MATERIAL produced or designated by
the party or third party that formerly employed such person and

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which pertains to the period or periods of his/her employment and
prior thereto; and
10.

Use of Confidential or HIGHLY CONFIDENTIAL - ATTORNEYS

EYES ONLY MATERIAL at Trial or Hearing. Nothing in this Protective Order
shall preclude any party from introducing CONFIDENTIAL MATERIAL or HIGHLY
CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL into evidence at any
evidentiary hearing or at trial. However, if anyone intends to introduce or refer to
CONFIDENTIAL MATERIAL or HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY
MATERIAL at any hearing or trial, the Party wishing to make the disclosure shall first
notify the Producing Party and provide that Party with an opportunity to object and/or
to ask the Court to take appropriate precautionary procedures (e.g., clearing the
Courtroom, sealing the record, etc.).
11.

Previously Obtained Material. Within thirty (30) days after the entry

of this Protective Order, a Party may designate materials, including portions of
deposition transcripts, already furnished to be protected by this Protective Order, and
each Party in possession of such materials shall have the responsibility of marking each
page and certifying such marking to the Producing Party. Except as addressed in the
foregoing sentence, nothing in this Protective Order shall preclude any Party to this
Protective Order or its attorney from showing a document designated as
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY to an
individual who prepared, authored, received, or reviewed the material prior to the filing
of this Litigation.

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12.

No Waiver of Privilege. If information subject to a claim of attorney-

client privilege, work product protection, or any other privilege or immunity is
inadvertently produced, such production shall in no way prejudice or otherwise
constitute a waiver of, or estoppel as to, any claim of privilege, work product protection
or other ground for withholding production to which any Producing Party would
otherwise be entitled.

Any inadvertently produced privileged materials shall be

returned promptly to the Producing Party upon request and all copies destroyed.
13.

Removal of Confidential or Highly Confidential Designation.

Any Party may object to the designation of any Material as CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEYS EYES ONLY by giving written notice to the Producing
Party that it objects to the designation.

Such notice shall specifically identify the

Material at issue by document identification (Bates) number, by deposition page and
line, or by other appropriate specific identifier, and state the reasons for questioning the
confidentiality designation. The Objecting and Producing Party shall confer in good
faith to resolve any such dispute. If the Parties are unable to resolve the dispute, the
Objecting Party may apply to the Court for a ruling that the Material is not appropriately
designated, giving notice to the Producing Party. If such a motion is made, the
Producing Party will have the burden to establish that the designation is proper. Until
the Court rules on the motion, the documents shall be treated as CONFIDENTIAL or
HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY, as originally designated.
14.

Modification of the Protective Order. This Protective Order shall not

prevent a Party from applying to the Court for relief therefrom, or from applying to the
Court for further or additional Protective Orders, or from agreeing to modifications of
this Protective Order by stipulation of the Parties.
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15.

Court Retains Jurisdiction. This Protective Order shall survive the

termination of this Litigation. This Court expressly retains jurisdiction over this action
for enforcement of the provisions of this Protective Order following the final resolution
of this Litigation.
16.

Return

or

Destruction

of

Confidential

and

HIGHLY

CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL. Within sixty days of
the termination of this Litigation, including all appeals, all CONFIDENTIAL MATERIAL
or HIGHLY CONFIDENTIAL - ATTORNEYS EYES ONLY MATERIAL supplied by any
Producing Party, and any copies thereof, shall be returned to the Producing Party or
shall be destroyed and their destruction certified.
17.

Parties May Use Their Own CONFIDENTIAL or HIGHLY

CONFIDENTIAL – ATTORNEYS EYES ONLY Documents.

Nothing in this

Order shall affect a Party's use or disclosure of its own documents in any way.
18.

No Waiver of Rights. This Protective Order shall not affect or impair

the right of any person or party to assert any applicable privilege to the discovery or use
of any information sought in this Litigation, or to contest the relevancy, admissibility, or
discoverability of the confidential materials sought.
19.

Additional Parties. In the event additional parties join or are joined in

this Litigation, they shall not have access to Confidential or Highly Confidential –
Attorneys Eyes Only materials until the newly-joined Party or its counsel has executed
and filed with the Court this Protective Order.

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IT IS SO ORDERED.

Date: July 15, 2013

s/ Thomas M. Rose
UNITED STATES DISTRICT JUDGE

Stipulated and agreed by:
Dated: July 12, 2013

Dated: July 12, 2013

/s/ Peter J. Georgiton
Peter J. Georgiton (0075109)
Dinsmore & Shohl LLP
255 E. Fifth Street, Suite 1900
Cincinnati, OH 45202
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

/s/ Toby K. Henderson (by PJG with
authority granted by e-mail on 7-12-13)
Toby K. Henderson (0071378)
Erin Moosbrugger (0086497)
Sebaly Shillito + Dyer
1900 Kettering Tower
40 North Main Street
Dayton, OH 45423-1013
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

Counsel for Defendants
George William Job, Trustee, et al.

Counsel for Plaintiff
DWS International, Inc. d/b/a
Marble Dimensions Worldwide, Inc.

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