Yaskawa America Inc. - Motoman Robotics Division v. Intelligent Machine Solutions, Inc.

Filing 10

STIPULATED PROTECTIVE ORDER. Signed by Judge Thomas M Rose on 06/02/14. (pb1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
YASKAWA AMERICA, INC.
MOTOMAN ROBOTICS DIVISION,

* Civil Action No. 3:14-cv-00084
*
* Judge Thomas M. Rose
Plaintiff,
*
*
v.
*
* STIPULATED PROTECTIVE ORDER
INTELLIGENT MACHINE SOLUTIONS, *
INC.
*
*
Defendant.
*
______________________________________________
WHEREAS, the Court recognizes the legitimate interests of the parties (and subpoenaed
non-parties) in the above-captioned action in the confidentiality and security of certain business,
personal, and trade secret information, including electronically stored information;
IT IS HEREBY ORDERED as follows:
1.

This Stipulated Confidentiality and Protective Order ("Order") governs all

documents and information, including electronically stored information, produced at any time
during the pendency of this action, including any documents and information produced prior to
the entry of this Order, by any party or any non-party, which is subject to a subpoena for oral
examination or subpoena duces tecum, or called to testify in this matter at trial; all copies of or
information contained in any such documents; responses to Interrogatories, responses to
Requests for Documents and/or or Requests for Admissions or other discovery; all information
and photographs derived/obtained during any inspection; and all other information produced or
provided in this action by the parties, including without limitation deposition, hearing and trial
testimony (collectively referred to as "Litigation Material").

2.

Litigation Material shall be used solely for the purpose of preparing for, or

conducting the trial of, this action. Litigation Material shall not be disclosed or used for any
other purpose, including business, governmental, commercial, administrative or judicial
proceedings, except as otherwise required by law.
3.

Any party or non-party producing Litigation Materials in this case may designate

any Litigation Materials as “Confidential” if such designation is made in good faith consistent
with the following definition. The designation “Confidential” shall be utilized for Litigation
Materials containing non-public, sensitive commercial, financial or proprietary business
information or protected personal information.
4.

With respect to hard copy information, a party, non-party, or its counsel may

designate as Confidential any documents, or portion or portions thereof, by stamping the word
"Confidential" (or a phrase to that effect, such as "Confidential: Subject to Protective Order") on
every such page at or prior to the time of production.
5.

With respect to electronically stored information (“ESI”) produced in native

format, i.e., the software format in which the document or information was originally created and
stored on the producing entity’s storage media, a party, non-party, or its counsel may designate
as Confidential any native ESI by segregating such files on a separate disk, with each file on the
disk having a unique name or number identifier, and labeling the entire disk with the word
"Confidential " (or a phrase to that effect, such as "Confidential Native Files: Subject to
Protective Order") at or prior to the time of production.
6.

With respect to electronically stored information (“ESI”) produced in image file

format, i.e., portable data file (“PDF) or tagged image file format (“TIFF”), a party, non-party, or
its counsel may designate as confidential any image file ESI by labeling each page of each image

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file as “Confidential” (or a phrase to that effect, such as “Confidential: Subject to Protective
Order”) at or prior to the time of production.
7.

A party, non-party, or its counsel may designate deposition (or other testimony)

and inspections as either “Confidential” by so stating on the record on the day the inspection
takes place or testimony is given or by sending written notice to counsel for all other parties
designating the inspection confidential prior to the inspection or designating, by page and line,
the portion of any transcript or transcripts to be treated as confidential within 20 days of receipt
of the applicable transcript by the witness.
8.

A party, non-party, or its counsel may designate any other Litigation Material not

encompassed within Paragraphs 1 through 3 above, so long as it satisfies the definition of
“Confidential” material in paragraph 3, in the same manner as described in paragraphs 4-7 or by
sending written notice to counsel for all other parties specifically designating the material to be
treated as Confidential at or prior to the time that it is produced.
9.

All Litigation Material designated or stamped as Confidential, any copies thereof,

and the information contained therein, shall not be given, shown, made available to, or
communicated in any way to anyone, except those persons listed below, unless ordered by the
Court or done with the prior written consent of the producing party's counsel. Persons to whom
Litigation Material designated as Confidential may be given, shown, made available, or
communicated without prior written consent are the following:
(a)

the Court (including clerks and other court personnel);

(b)

the parties and their counsel of record, including directors, officers,

representatives, employees, or insurers of the above who are assisting them for the purpose of
preparing for, conducting or settling this action;

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(c)

court reporters who transcribe deposition or other testimony in this action;

(d)

consultants or expert witnesses retained by a party for the purpose of

preparing for, conducting or settling this action, who will utilize any Confidential material
disclosed solely to assist in preparing for, conducting or settling this action; and
(e)

any witness, but only to the extent that such witness' testimony involves

the matters governed by, subsumed within, or otherwise affected by information or documents
designated as Confidential material.
10.

If the producing entity agrees in writing, the parties may include additional

persons or categories of persons, beyond those listed in paragraph 9, to whom Litigation Material
designated as Confidential may be given, shown, made available or communicated. Absent the
agreement of the producing entity, each party reserves the right to move the Court for good cause
shown to seek to include additional persons or categories of persons, beyond those listed in
paragraphs 9, to whom Litigation Material designated as Confidential may be given, shown,
made available or communicated.
11.

Nothing herein shall restrict the persons identified in paragraphs 9 from making

working copies for use in their offices or for use during examination of witnesses, which
working copy shall be automatically designated as Confidential to match the designation of the
document from which it was made.
12.

Any person identified in paragraphs 9(d) or (e) above, who is given access to

Litigation Material designated Confidential shall, prior thereto, be given a copy of this Order and
shall acknowledge receipt thereof, and consent to be bound thereby and subject to sanctions of
this Court, by signing a written statement substantially in the form of Exhibit 1, attached hereto.

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13.

Litigation Material designated as Confidential that is filed with the Court, with the

Court’s permission, shall be filed under seal and shall be maintained under seal, unless the party
that provided the Litigation Material waives this provision by written notice to counsel for the
other parties to the action. Any such written notice may limit the extent of the waiver by
designating specific information to which the waiver attaches.
14.

If Litigation Material designated as Confidential is sought to be filed with the

Court, or otherwise used or introduced at a hearing or trial of this action, counsel for the party
seeking to use or introduce such Litigation Materials shall so advise the Court and request that
the Court take such steps as it deems appropriate to protect the confidentiality of the Litigation
Material. Per authority of Proctor & 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. This Protective Order does not authorize filing under seal.
15.

Nothing in this Order shall prevent any party from disclosing its own Litigation

Material, and any such disclosure shall not be deemed a waiver of any other party's rights or
obligations under this Order.
16.

The production or disclosure of Litigation Material designated as Confidential

shall in no way constitute a waiver of the producing party's right to object to the production or
disclosure of any other information or documents in this action. The parties hereto expressly
reserve the right to seek any appropriate order modifying this Order or imposing additional
restrictions on discovery in this action, including an order that the production be limited to
Attorneys’ Eyes Only or that the production not be had. Nothing herein shall be read as to waive
any privilege or exemption from production that any party may assert independent of this Order.

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17.

The inadvertent or pre-protective order production of any “Confidential”

Litigation Material during discovery in this action without the “Confidential” designation or the
inadvertent production of any privileged or work-product protected Litigation Material shall be
without prejudice to any subsequent claim that such material is “Confidential,” privileged in any
respect, or protected from discovery as work-product within the meaning of Rule 26 of the
Federal Rules of Civil Procedure. No Party shall be held to have waived any rights by any such
inadvertent production.
18.

No party waives the right to challenge another party’s or non-party’s designation

of Litigation Material as Confidential. Any party hereto that objects to another party’s or nonparty’s designation of Litigation Material as Confidential shall first state its objection in writing
to the producing entity. The parties hereto agree to confer in good faith to resolve any dispute
arising under this Order. If the parties to the dispute are unable to resolve such dispute, any party
to the dispute may move the Court to resolve the dispute upon notice in writing to counsel for all
other parties to this action and upon such other notice as is provided by law or rule.
19.

In the event any receiving party has possession, custody or control of any

Litigation Material designated as Confidential that becomes the subject of a subpoena or demand
for the production of such Litigation Material in another matter, that receiving party shall make
all reasonable effort to notify counsel for the producing entity of such a subpoena or demand so
as to permit counsel time to seek an appropriate order modifying or quashing the subpoena or
demand.
20.

This Order shall bind the parties and shall continue to be binding on the parties

throughout and after the conclusion of this action, including any appeals or retrials. This Court
shall retain jurisdiction of this action for the purpose of enabling any party, person or other entity

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to apply for any order or relief as may be deemed necessary or appropriate to enforce this Order.
Upon termination of this action, each party shall return or destroy Litigation Materials designated
as Confidential and any copies, summaries, or digests thereof within thirty (30) days after the
termination. Nevertheless, one law firm for each party to this action may retain for a period not
to exceed five years one complete set of all trial testimony and exhibits, all deposition transcripts
and exhibits, and all pleadings and other papers filed with the Court. Documents retained under
the provisions of this paragraph shall be kept in a secure fashion.
21.

Disclosure pursuant to this Stipulated Protective Order solely for purposes of this

litigation does not violate the terms of any mutual non-disclosure agreement between the parties,
to the extent any such non-disclosure agreement exists.
SO ORDERED:
June 2, 2014

*s/Thomas M. Rose
_________________________________
Judge Thomas M. Rose
UNITED STATES DISTRICT JUDGE

AGREED TO:

s/ J. Steven Justice
J. Steven Justice (OH0063719), Trial Attorney
Glen R. McMurry (OH0082600), Co-Counsel
DUNGAN & LEFEVRE CO., LPA
210 West Main Street
Troy, Ohio 45373
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff Yaskawa America Inc.
Motoman Robotics Division

s/ Christopher w. Carrigg
Christopher W. Carrigg (OH0023947),
Trial Attorney
Lisa A. Hesse (OH0042120), Co-Counsel
FREUND, FREEZE & ARNOLD
1 South Main Street, Suite 1800
Dayton, Ohio 45402-2017
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant Intelligent Machine
Solutions, Inc.

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EXHIBIT 1
I acknowledge my understanding that Litigation Material designated as Confidential, as
defined in the Stipulated Protective Order entered in Yaskawa America, Inc. v. Intelligent
Machine Solutions, Inc., No. 3:14-CV-00084 (S.D. Ohio) is being provided to me pursuant to the
terms and restrictions of that Order. My signature below constitutes an acknowledgement that I
have read the Order and consent to be bound by it and subject to sanctions of this Court. I also
understand and agree that I am subject to penalty for contempt of court for any violation of the
terms of that Order.
Dated:
By:

4823-0036-2523, v. 2

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