Nestick v. Unison Industries, LLC

Filing 9

AGREED PROTECTIVE ORDER. Signed by Magistrate Judge Michael J Newman on 06/17/13. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DANIEL NESTICK,
Plaintiff,
-vUNISON INDUSTRIES, LLC
Defendant.

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Case No. 3:12-cv-403
District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

AGREED PROTECTIVE ORDER
Plaintiff Daniel Nestick (“Plaintiff”) and Defendant Unison Industries, LLC
(“Defendant”) stipulate and agree to the following Agreed Protective Order to be entered in this
case pursuant to Rule 26(c) of the Federal Rules of Civil Procedure.
1.

CONFIDENTIAL INFORMATION
This Order shall apply to all documents, materials, things or information produced during

the course of this action, including depositions, productions of documents, answers to
interrogatories, responses to requests for admissions, and all other discovery taken pursuant to
the Federal Rules of Civil Procedure, as well as testimony adduced at trial or in hearings, matters
in evidence and any other information that shall in good faith be designated by the party or
person producing it as “CONFIDENTIAL.”
For purposes of this Order, “CONFIDENTIAL” information means information in
written, oral, electronic, graphic/pictorial, audiovisual, or other form, whether it be a document,
information contained in a document, information revealed during a deposition, information
revealed in a hearing, information revealed in an interrogatory answer, or otherwise produced
during discovery that is in good faith designated as such by the producing party, and that, as

claimed by the producing party, constitutes confidential personal, business, legal, regulatory,
financial, research, or development information or confidential policies or procedures, business
plans, commercially-sensitive information, personal information or other non-public information
within the meaning of Federal Rule of Civil Procedure 26(c), the dissemination of which
generally is protected by the designating party in its normal course of business.
“CONFIDENTIAL” information shall include any copies, excerpts, summaries, abstracts, or
other documents that contain “CONFIDENTIAL” information. Any party may challenge the
designation of any document as “CONFIDENTIAL,” as provided herein.
2.

INADVERTENT FAILURE TO DESIGNATE
Except as otherwise provided herein, inadvertent failure to designate information as

“CONFIDENTIAL” shall not be deemed a waiver of any claim of confidentiality as to such
matter, and the same thereafter may be corrected by supplemental written notice. Upon receipt
of the supplemental written notice, the terms of this Order shall apply and the receiving party
shall retrieve, to the extent reasonably possible, the information and any documents containing
the same.
3.

INADVERTENT PRODUCTION
The inadvertent production of any document or information during discovery in this case

shall be without prejudice to any claim that such material is privileged under the attorney-client
or other privilege, or protected from discovery as work product. No party or entity shall be held
to have waived any rights by such inadvertent production as long as the receiving party is
notified within 10 days of the inadvertent production. Upon written request by the inadvertently
producing party, the receiving party shall not use the information in the document for any
purpose until further order of the Court. If the receiving party disagrees that the document is
privileged or has been produced inadvertently, it shall file the appropriate motion within 14 days

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of receipt of the written request from the inadvertently producing party. The burden of proof of
privilege and inadvertence shall be on the producing party.
4.

PERMITTED DISCLOSURE
a.

Any information that is designated as “CONFIDENTIAL” by the party or person
producing it shall not be disclosed to any person other than the following:
i.
ii.

The Court and appropriate court personnel;

iii.

Outside counsel of record for the parties;

iv.

Members of the legal, paralegal, secretarial, or clerical staff of such
counsel who are assisting in or responsible for working on this litigation;

v.

Outside experts or consultants for the parties as permitted herein;

vi.

Court reporters during depositions in which confidential material is
marked;

vii.

Deponents during depositions in which such material is marked; and

viii.

b.

The parties and in-house counsel for the parties;

Deponents or actual trial witness whose review of confidential
information is reasonably necessary to his or her examination.

Disclosure to those persons listed in paragraphs 4(a)(v) may not be made until the
person to whom disclosure is to be made is given a copy of this Order and signs a
copy of the Confidentiality Agreement in the form attached hereto as Exhibit A.

The provisions of this paragraph 4 shall survive final termination of this action.
5.

FILING WITH COURT
Any pleading, brief, or other document filed with the Court in this case which discloses

or reveals, directly or indirectly, any “CONFIDENTIAL” information shall be filed under seal.
Such materials shall be placed in a sealed envelope that shall be endorsed with the title of this
action, the words “CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER,” and a
statement containing substantially the following information:
This envelope (container) is sealed because it contains CONFIDENTIAL
information filed in this case by [INSERT THE NAME OF THE PARTY OR

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PERSON FILING SUCH CONFIDENTIAL INFORMATION], and is not to be
opened or the contents thereof displayed or revealed except by the Order of the
Court.
6.

DEPOSITIONS
A party may designate any portion of a deposition containing Confidential Information

(as defined above) as “CONFIDENTIAL” by so stating on the record at the time testimony is
given. In the event any party wishes to place under seal the deposition transcript or portions of
the deposition testimony designated as “CONFIDENTIAL,” the Court shall be given the
opportunity to determine upon motion by the party seeking to place the testimony or portions
thereof under seal whether good cause exists to seal the record in accordance with the Federal
Rules of Civil Procedure.
7.

TESTIMONY AT HEARINGS OR TRIAL
In the event any party wishes to place under seal the transcript or portions thereof of

testimony containing “CONFIDENTIAL” information provided before the Court at a hearing or
at trial, the Court shall be given the opportunity to determine upon motion by the party seeking to
place the testimony or portions thereof under seal whether good cause exists to seal the record in
accordance with the Federal Rules of Civil Procedure.
8.

USE FOR THIS ACTION
Any person receiving information designated “CONFIDENTIAL” pursuant to discovery

in this matter shall make no use of such information, directly or indirectly, except for the
purposes of presenting claims or defenses in this action and may not use this information in any
other case or dispute nor for any private business or commercial purpose whatsoever.
9.

NO WAIVER OF OBJECTIONS
Nothing contained in this Order: (a) shall be construed as a waiver by a party or person

of its right to object to the subject matter of any discovery request, or as an agreement by any

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party or person to produce documents, supply information or permit entry upon land under Rule
34 of the Federal Rules of Civil Procedure; (b) shall constitute an admission that any evidence
exists or that evidence that may exist is relevant in any way to the issues; (c) shall be construed
as a waiver of any privilege; or (d) shall be construed as an admission by the receiving party that
produced information is entitled to the designation of “CONFIDENTIAL.” No party shall be
obligated to challenge immediately the propriety of a “CONFIDENTIAL” designation and the
failure to do so shall not preclude a later challenge to the propriety of such designation.
10.

AFTER TERMINATION OF ACTION
After final termination of this action, including appeals or expiration of the time in which

to appeal, each counsel of record, upon written request made within 60 days of the date of final
termination, shall within 60 days of such request: (a) destroy and certify in writing that such
destruction has occurred; or (b) assemble and return to the counsel of record all material in their
possession and control embodying information designated “CONFIDENTIAL,” including all
copies thereof. To the extent that any information has been filed under seal with the Court,
pursuant hereto, such documents may be retrieved from the clerk’s office by the party seeking to
maintain the confidentiality of such documents within 60 days of said final termination.
11.

CHALLENGE TO CONFIDENTIALITY DESIGNATION
No party to the Action shall be deemed, by treating information as confidential, to have

conceded that the information actually is confidential. Nothing in this Order shall operate to
prejudice the rights of access to or use of information designated as “CONFIDENTIAL,” nor
shall it prejudice or impair the right of a party to challenge the propriety of the designation as to
certain information, or the procedure for handling same.

The party producing the

“CONFIDENTIAL” information or documents shall have the burden of proving that the

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information or documents so produced are protected in accordance with the Federal Rules of
Civil Procedure and the standards adopted by this Court.
Any party to the Action may object to the designation of any materials as
“CONFIDENTIAL” information by stating in writing its objection and the basis therefore to the
party or nonparty who produced the materials or who made the designation. The party making
the objection and the person who produced or designated the material shall attempt in good faith
to resolve the objection. At the expiration of twenty-one (21) days from receipt of the objection
(unless this period is extended by agreement or by court order), the objecting party may move
this Court for an order determining the confidentiality of such materials. Until the Court rules on
any such motion, documents, transcripts and information designated “CONFIDENTIAL” shall
continue to be deemed “CONFIDENTIAL” under the terms of this Protective Order. If the
disclosing party agrees to remove the “CONFIDENTIAL” designation, then the disclosing party
will provide a new copy of the document without the “CONFIDENTIAL” designation.
12.

NON-PARTY CONFIDENTIALITY
In the event any non-party is called upon to produce information, which it reasonably

believes constitutes or discloses trade secrets, such non-party may elect to become a party to the
terms of this Order for the purpose of protecting its information by serving a written notice of its
election on counsel for each party. After service of such a notice of election, this Order will be
binding on and inure to the benefit of such non-party.
13.

FURTHER RELIEF
Nothing in this Order shall (i) preclude any party from petitioning the Court for different

protection with respect to any information as that party considers necessary and appropriate,
including applying for an order modifying this Order in any respect, or (ii) preclude the Court
from altering this Order.

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14.

EXCLUSION OF INDIVIDUALS
Counsel for any party may exclude from the room at a deposition or other discovery

proceeding any person (other than the witness then testifying) who is not authorized under this
Order

during

any

questioning

that

involves

“CONFIDENTIAL”

information.

“CONFIDENTIAL” information shall not be disclosed to the witness then testifying except in
conformity with the provisions of this Order, including the requirement that the testifying
witness agree to be bound by the terms of this Order (unless already bound by this Order) by
executing the Agreement set forth in Exhibit A.
Counsel for any party may seek a Court Order excluding from a hearing or trial any
person (other than the witness then testifying) who is not authorized under this Order, during any
questioning that involves “CONFIDENTIAL” information.
15.

AUTHORITY TO FILE UNDER SEAL
Per authority of Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996),

no document may be filed with the Court under seal without prior permission as to each such
filing, upon motion and for good cause shown, including the legal basis for filing under seal.
Documents filed under seal shall comply with Southern District of Ohio Local Rule 79.3. This
Protective Order does not authorize filing under seal; any provisions in this Protective Order to
the contrary (including but not limited to Section Five above) are hereby stricken.
IT IS SO ORDERED.
June 17, 2013

s/ Michael J. Newman
United States Magistrate Judge

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AGREED TO:

/s/ Brandi M. Stewart
_____________
Rachael A. Rowe (0066823)
Brandi M. Stewart (0082546)
Keating Muething & Klekamp PLL
One East Fourth Street, Suite 1400
Cincinnati, Ohio 45202
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant,
Unison Industries, LLC
4829902.1

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/s/ _David M. Duwel______
David M. Duwel
130 West Second Street, Suite 2101
Dayton, Ohio 45202
Phone: [phone]
Fax: [phone]
[e-mail]
Attorney for Plaintiff, Daniel Nestick

EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DANIEL NESTICK,
Plaintiff,
-vUNISON INDUSTRIES, LLC
Defendant.

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Case No. 3:12-cv-00403-WHR
District Judge Walter H. Rice
(Magistrate Judge Michael J. Newman)

CONFIDENTIALITY AGREEMENT
I have read the Agreed Protective Order concerning the confidentiality of information in
the above-captioned litigation. I understand that the Agreed Protective Order is a court order
designed to preserve the confidentiality of certain confidential information. I also understand
that the Agreed Protective Order restricts the use, disclosure, and retention of such confidential
information and also requires the safeguarding and return of documents and other materials
containing confidential information.
I agree to comply with all provisions of the Agreed Protective Order with respect to any
information designated confidential that is furnished to me. I further hereby submit myself to the
jurisdiction of the Court for purposes of enforcement of the provisions of the Agreed Protective
Order.

AGREED TO: ___________________________________

Printed Name: ___________________________________
4905069.1