Dennis Baglama et al v. MWV Consumer and Office Products et al
Filing
36
STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Michael J Newman on 03/03/14. (pb1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DENNIS BAGLAMA, et al.,
Plaintiffs,
Case No.: 3:13-cv-276
vs.
MWV CONSUMER AND OFFICE
PRODUCTS, et al.,
Judge Thomas M. Rose
Magistrate Judge Michael J. Newman
Defendants.
STIPULATED PROTECTIVE ORDER
The Court recognizes that disclosure and discovery activity are likely to arise that will
require the disclosure of trade secrets, confidential research, development, manufacturing,
financial, marketing, and business information, or other commercial information subject to
Federal Rule of Civil Procedure 26(c).
Good cause exists to protect this information from public disclosure. In the absence of a
suitable protective order safeguarding the confidentiality of such information, the parties would be
hampered in their ability to produce such information.
Accordingly, the Court ORDERS that the parties shall adhere to the following:
1.
DESIGNATION OF PROTECTED MATERIAL
1.1.
This Order shall govern all documents and other products of discovery obtained by
the parties from one another, and from third parties, all information copied or derived therefrom,
as well as all copies, excerpts, summaries or compilations thereof, including documents produced
pursuant to requests authorized by the Federal Rules of Civil Procedure, answers to
interrogatories, deposition transcripts, responses to requests for admission, affidavits, declarations,
expert reports, and other such material and information as may be produced during the course of
this litigation.
1.2.
In connection with discovery proceedings in this action, any party or third party
may designate any non-public document, material, or information as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” (collectively referred to as
“Protected Material”).
(a)
A party or third-party may designate as “CONFIDENTIAL” any
information, document, or thing that the party or third-party reasonably and in good faith believes
to contain confidential information subject to Fed. R. Civ. P. 26(c) used by it in, or pertaining to,
its business and that is not generally known, and which that party or third-party would not
normally reveal to third parties or, if disclosed, would require such third parties to maintain in
confidence;
(b)
A party or third-party may designate as “HIGHLY CONFIDENTIAL –
ATTORNEY EYES ONLY” such materials as the party or third-party reasonably and in good
faith believes to contain particularly sensitive technical or business information relating to
research for and production of current products; technical, business, and research information
regarding future products; non-public and highly sensitive financial information; marketing and
sales information, such as marketing plans and forecasts, customer lists, pricing data, cost data,
customer orders, and customer quotations; and such other documents, information, or materials
that relate to other proprietary information that the designating party or third-party reasonably
believes is of such nature and character that disclosure of such information would be harmful to
the designating party or third- party.
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1.3.
The following information shall not be designated or protected under this
Protective Order:
(a)
Information that is in the public domain at the time of disclosure;
(b)
Information that at any time is made public through no act of a non-
designating party or any person or entity under a duty to preserve or maintain the confidentiality
of the information;
(c)
Information that the designating party has not undertaken with others to
maintain in confidence and that is in the possession of or becomes available to the receiving party
other than through discovery in this action, but only if the receiving party can show by written
documentation that the information independently came into its rightful possession; or
(d)
Information that is independently developed by the receiving party, as
reflected by written documentation demonstrated to be in existence prior to production by the
party claiming confidentiality.
1.4.
Any documents or things produced pursuant to a discovery request or other written
materials exchanged by the parties (including discovery responses, letters, and briefs) that a party
desires to designate as Protected Material shall be so designated by marking each page of the
document, paper or thing CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY
EYES ONLY, as appropriate, and indicating the identity of the producing party (e.g., through the
use of an identifying prefix to the document identification (Bates) number). HIGHLY
CONFIDENTIAL – ATTORNEY EYES ONLY designations made pursuant to this Stipulated
Protective Order may also be made by an abbreviated designation of “ATTORNEY EYES
ONLY.”
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1.5.
In the event a party may make available certain of its files for inspection by another
party, which files may contain non-confidential material as well as material that may be subject to
protection under this Protective Order, with the intent that following such inspection the
inspecting party will designate certain of the inspected documents to be copied and furnished to it,
such files need not be marked with either confidentiality designation in advance, but shall all be
treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY materials.
Only those
persons identified in paragraph 2.2 below as permitted to view HIGHLY CONFIDENTIAL –
ATTORNEY EYES ONLY materials may be present at any such inspection. When the producing
party copies the documents to furnish to the inspecting party, the producing party shall mark
Protected Material with the appropriate confidentiality designation to the extent warranted under
paragraph 1.2.
1.6.
Whenever a deposition involves a disclosure of Protected Material, the following
procedures shall apply:
(a)
Any party may designate any portion or all of a deposition as
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY by notifying the
other parties on the record during the deposition. The Court Reporter shall be asked to make the
appropriate confidentiality designation on each page of the transcript that contains
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY information. At
that time, all persons not qualified to receive that category of information shall leave the room
prior to continuation of the deposition and until the conclusion of such designated testimony; and
(b)
Any party may also designate any portion or all of a deposition as
CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY by notifying the
other parties separately in writing within thirty days of receipt of the transcript. In such event, the
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parties shall confer as to the most convenient way to segregate the designated portions of the
transcript. All information disclosed at a deposition and all information contained in deposition
transcripts shall be treated as HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY for a
period of thirty days after the receipt of the transcript to permit adequate time for review of the
transcript and notice to other counsel regarding any designation as Protected Material by a
designating party.
2.
ACCESS TO AND USE OF PROTECTED MATERIAL
2.1.
Protected Material, and all summaries, compilations, and derivations thereof,
whether oral or written, shall be maintained in confidence, shall be used solely in the preparation,
prosecution, or trial of this action and not for any other purpose, and shall be disclosed only as
provided in the following paragraphs.
Information which has been designated as HIGHLY CONFIDENTIAL – ATTORNEY
EYES ONLY may be disclosed only to:
(a)
The outside attorneys and employees and contract personnel of such
attorneys’ firms who are actively engaged in assisting in this action;
(b)
The in-house counsel of a receiving party to whom disclosure is reasonably
necessary for this litigation and who have signed the “Agreement to Be Bound by Protective
Order” in Exhibit A;
(c)
Independent consultants or experts retained by the party or its attorneys in
connection with this action, including technical experts, damage and industry experts, and jury or
trial consultants, together with their employees engaged in assisting in this action (including mock
jurors), but only subject to the provisions of paragraph 2.3 below;
(d)
The Court and its personnel;
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(e)
Court reporters and their personnel engaged in proceedings incident to
preparation for trial or engaged in trial;
(f)
Professional vendors and their employees, including copy services,
electronic discovery vendors, trial graphics services, and translation services, engaged by counsel;
(g)
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; and
(h)
Any person other than those identified in subsections (a)-(g) herein only by
written consent of the producing party or upon order of the Court and on such conditions as may
be agreed or ordered.
2.2.
Information that has been designated as CONFIDENTIAL may be disclosed only
to:
(a)
The persons identified in paragraph 2.1; and
(b)
Any employee of a party, to whom disclosure is reasonably necessary for
purposes of this litigation.
2.3.
Protected Material shall be disclosed to independent consultants and experts only
upon the following terms:
(a)
Prior to any disclosure, an independent consultant or expert who has
previously been employed or engaged by a party shall be identified in writing to the other parties’
counsel by name, address, and corporate, business or other professional affiliation or employment,
together with a copy of the expert’s curriculum vitae and a list of the expert’s or consultant’s
litigation or consulting engagements for the past three years;
(b)
Unless another party notifies the proposing party of any objection and that
objection is received within seven business days after notification (by fax, by email, or by
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overnight mail), the consultant or expert shall thereafter be allowed to have access to Protected
Material pursuant to the terms and conditions of this Protective Order;
(c)
In the event of a timely objection, which shall be made in good faith and on
reasonable grounds, the proposing party shall refrain from disclosure of Protected Material to the
consultant or expert until the objection has been resolved between the parties or ruled upon by the
Court;
(d)
The parties shall endeavor in good faith to resolve the dispute without
calling upon the intervention of the Court. The burden is on the objecting party to seek the
intervention of the Court by appropriate motion to preclude the proposing party from disclosing
Protected Material to the consultant or expert. If no such motion is filed within fourteen business
days of receipt of the objection, the proposing party may disclose Protected Material to the
consultant or expert as if no objection had been raised; and
(e)
No party shall use its right to object to a proposed consultant or expert to
interfere with the ability of another party to prepare for trial through the use of consultants and
experts.
2.4.
Prior to receiving any Protected Material, any persons described in sections (b), (c),
(e), (f), or (h) of paragraph 2.1 shall be furnished with a copy of this Protective Order and shall
execute a copy of the “Agreement to be Bound by Protective Order” attached as Exhibit A.
A copy of the signed Agreement shall be maintained by counsel for the party providing
such access.
2.5.
Nothing in this Protective Order shall prevent any counsel of record from utilizing
Protected 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.
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In addition, (a) Parties and present employees of the parties, or employees of third parties, may be
examined as a witness at depositions, hearings and trial and may testify concerning all Protected
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 Protected Material produced or designated by the party or third party that
formerly employed such person and which pertains to the period or periods of his/her employment
and prior thereto; and (c) Former experts of the parties may be examined and may testify
concerning all Protected Material produced or designated by the respective party that pertains to
the subject matter of his/her consultation.
2.6.
Nothing in this Protective Order shall preclude any party from introducing
Protected Material into evidence at any evidentiary hearing or at trial. However, if anyone intends
to introduce or refer to Protected Material at any hearing or trial, the party wishing to make the
disclosure shall provide reasonable advance notice to the producing party so that party has an
opportunity to object and/or to ask the Court to take appropriate precautionary procedures (e.g.,
clearing the Courtroom, sealing the record, etc.).
2.7.
Nothing in this Protective Order shall bar or otherwise restrict any attorney from
rendering advice to his/her clients with respect to this litigation and referring to or relying
generally upon his/her examination of Protected Material, provided that in rendering such advice
and in otherwise communicating with his/her clients, the attorney shall not disclose the content of
such information.
2.8.
All persons in possession of Protected Material shall exercise reasonable and
appropriate care with regard to the storage, custody, and use of such information in order to ensure
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that the provisions of this Protective Order are observed and the confidential nature of the
information is maintained.
2.9.
All copies of documents designated for protection under this Order, or any
individual portion of such a document, shall be marked with the appropriate designation pursuant
to paragraph 1.4 if the words do not already appear on the copy. All such copies shall 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 designated documents or otherwise disclose the
substance of the designated documents.
3.
CHALLENGES TO CONFIDENTIALITY DESIGNATIONS
3.1.
Any party believing that particular information has been improperly marked, i.e.,
that it is not in fact CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES
ONLY, may challenge such designation at any time by raising the issue, in writing to the
designating party, and specifically identifying, by document identification (Bates) number, by
deposition page and line, or by other appropriate specific identifier, the information whose
confidentiality status is challenged. Within ten business days of receipt of such writing, the
designating party shall either remove or reduce the designation, or respond that it has reviewed the
matter and continues to maintain the designation in good faith.
3.2.
The parties shall endeavor in good faith to resolve any such dispute without calling
upon the intervention of the Court. If the designating party maintains its designation and the
parties are unable to reach agreement, the challenging party may bring the issue to the Court. The
party asserting confidentiality shall have the burden of establishing the appropriateness of the
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designation, except that a party claiming that information designated by the other as confidential
is in the public domain shall have the burden of proving such public knowledge.
3.3.
Challenged information shall be treated as initially designated until the resolution
of the dispute by the parties or ruling by the Court.
4.
FILING OF PROTECTED MATERIAL
Parties may not file documents containing protected materials disclosed by another party
unless agreed to in writing by the party that initially disclosed the protected material or unless
filed under seal. Notwithstanding the foregoing, this Protective Order does not automatically
authorize filing protected materials under seal. According to the 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. Unless the Court orders otherwise, all sealed
documents shall be filed according to S.D. Ohio Civ. R. 79.3. This Protective Order does not
authorize filing under seal; any provisions in this Protective Order to the contrary are hereby
stricken.
5.
TERMINATION OF LITIGATION
5.1.
The obligations of this Protective Order shall survive the termination of the action
and continue to bind the parties. Within sixty days after termination of this action by judgment,
settlement, or otherwise from which no appeal can be brought, each party shall destroy, or return
to the disclosing party if the disclosing party so requests, all documents containing or disclosing
Protected Material of any other party. Each party’s outside litigation counsel shall have the right
to retain one copy of the pleadings; of motions, memoranda, documents, and papers filed with the
Court; of deposition transcripts and exhibits; and of any documents constituting work product.
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Within sixty days after termination of this action, each party shall certify in writing that it has
complied with this provision.
6.
THIRD PARTY DISCOVERY
6.1.
In the event that any third party shall be called upon, by subpoena or otherwise, to
provide or produce documents or information considered CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEY EYES ONLY by such third party, such third party may elect to
have its information treated in accordance with the terms of this Protective Order by so notifying
counsel for all parties in writing. Upon service of such notice, such third party may designate
documents and information as CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY
EYES ONLY in the manner set forth in this Protective Order, and such third party’s designated
information shall be protected in the same manner as that of the parties to this action.
7.
INADVERTENT DISCLOSURE
7.1.
If a party inadvertently discloses any document or thing containing information
that it deems CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY
without designating it pursuant to this Protective Order, the disclosing party shall promptly upon
discovery of such inadvertent disclosure inform the receiving party in writing, forwarding a
replacement copy of the inadvertently disclosed material properly marked with the appropriate
confidentiality designation. The receiving party shall thereafter treat the information as if it had
been properly marked from the outset and shall make a reasonable effort to retrieve and destroy
the unmarked version of the inadvertently disclosed material. Disclosure by the receiving party to
unauthorized persons before being notified of the inadvertent disclosure shall not constitute a
violation of this Protective Order. Nothing in this Protective Order shall preclude the receiving
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party from challenging the confidentiality designation of the late-marked material pursuant to the
provisions of paragraph 3.
7.2.
The inadvertent or mistaken production or disclosure of documents or other
information subject to the attorney-client privilege, the work product doctrine, or other privilege
shall not be deemed a waiver of a claim of privilege, either as to the specific information disclosed
or as to any other related information. If a producing party inadvertently produces or otherwise
discloses to a receiving party information that is subject to such privilege or immunity, the
producing party shall promptly upon discovery of such disclosure so advise the receiving party in
writing and request that the inadvertently disclosed information be returned. The receiving party
shall return all copies of the inadvertently produced material within five business days of receipt
of the request. Any notes or summaries referring or relating to any inadvertently produced
privileged material shall be destroyed.
Nothing in this Protective Order shall preclude the
receiving party returning the inadvertently produced material from seeking an order compelling
the production of information previously produced inadvertently.
8.
MISCELLANEOUS PROVISIONS
8.1.
If Protected Material in the possession of any receiving party is subpoenaed by any
court, by any administrative or legislative body, or by any other person purporting to have
authority to subpoena such information, or is the subject of any discovery request under Rules 3036 of the Federal Rules of Civil Procedure or any comparable rule of court or of any adjudicative
body (such subpoena or discovery request collectively referred to as a “Third-Party Request”), the
party to whom the Third-Party Request is directed will not produce such information without first
giving prompt written notice (including a copy of the Third-Party Request) to the attorneys of
record for the producing party, by the later of no more than three business days after receiving the
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Third-Party Request or fourteen business days prior to the return date of such Third-Party
Request. The party receiving the Third-Party Request must also promptly inform in writing the
party who caused the Third-Party Request to issue in the other litigation or proceeding that some
or all the material covered by the Third-Party Request is subject to this Protective Order. The
party receiving the Third-Party Request must deliver a copy of this Protective Order promptly to
the party in the other action that caused the Third-Party Request to issue.
8.2.
The producing party shall bear the burden and expense of seeking protection in
court of its own Protected Material, and nothing in this Protective Order should be construed as
authorizing or encouraging a party receiving a Third-Party Request in this action to disobey a
lawful directive from another court. Disclosure of information in response to a properly issued
Third-Party Request shall not constitute a violation of this Protective Order.
8.3.
This Protective Order may be modified only by further Order of the Court, whether
sua sponte or by agreement of the parties or their counsel and approval by the Court, and is
without prejudice to the rights of any party to move for relief from any of its provisions, or to seek
or agree to different or additional protection for any particular material or information.
8.4.
Treatment by counsel or the parties of information designated CONFIDENTIAL or
HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY as designated shall not be construed as
an admission by any party that the designated information contains trade secrets or other
proprietary or confidential information. Conversely, failure to so designate shall not constitute a
waiver of any party’s claims, either within or outside this action, that any such documents or
information do contain trade secrets or other proprietary or confidential information.
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8.5.
No party shall be obligated to challenge the propriety of any designation, and
failure to challenge a claim of confidentiality at the time of receipt shall not constitute a waiver of
the right to challenge a confidentiality designation at any later time.
IT IS SO ORDERED.
March 3, 2014
/s Michael J. Newman
United States Magistrate Judge
Stipulated and Agreed:
LAWRENCE J. GREGER
BARNES & THORNBURG LLP
/s/ Lawrence J. Greger, Esq.
Lawrence J. Greger, Esq. 002592
Trial Attorney
Attorney at Law
Suite 1100 Liberty Tower
120 W. Second Street
Dayton, OH 45402
/s/ Brian J. Downey, Esq.
Brian J. Downey, Esq. 0069163
Trial Attorney
BARNES & THORNBURG LLP
41 S. High Street, Suite 3300
Columbus, Ohio 43215
Telephone: (937) 223-3153
Email: lgreger912@aol.com
Michael W. Johnson, Esq. (pro hac vice)
Mohamad Reza Pejuhesh, Esq.
MICHAEL WALLACE JOHNSON PLC
26060 Acero Parkway, Suite 115
Mission Viejo, CA 92691
Telephone: (949) 661-8610
Fax: (949) 661-8611
Email: mike@jojolaw.com
Telephone: (614) 628-1424
Fax: (614) 628-1433
Email: Brian.Downey@btlaw.com
Alexander L. Conti, Esq. (pro hac vice)
CONTI LAW
511 Acacia Avenue
Corona Del Mar, CA 92625
Telephone: (949) 791-8555
Fax: (949) 791-8556
Email: aconti@conti-law.com
Attorneys for Defendants.
Attorneys for Plaintiffs
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EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DENNIS BAGLAMA, et al.,
Plaintiffs,
Case No.: 3:13-cv-276
vs.
MWV CONSUMER AND OFFICE
PRODUCTS, et al.,
Judge Thomas M. Rose
Magistrate Judge Michael J. Newman
Defendants.
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I,
, hereby acknowledge that I received a copy of the
Protective Order in this action. I read and understood the Protective Order and agree to be
bound by its provisions. I agree not to copy or use any CONFIDENTIAL or HIGHLY
CONFIDENTIAL – ATTORNEY EYES ONLY information that may be provided to me for
any purpose other than in connection with my retention in connection with this action, and I
agree not to reveal any such information to any person not authorized by the Protective Order.
I further acknowledge and understand that a violation of the Protective Order may
subject me to penalties of the Court, and I hereby submit to the jurisdiction of the United States
District Court for the Southern District of Ohio in connection with any proceedings concerning
enforcement of the Protective Order.
Dated:
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