Orbit Movers & Erectors, Inc. v. Environmental Tectonic Corporation

Filing 26

CONFIDENTIALITY AND PROTECTIVE ORDER. Signed by Magistrate Judge Michael R. Merz on 9/30/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ORBIT MOVERS & ERECTORS, INC.,
Plaintiff,

-

vs

:

Case No. 3:14-cv-118

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-

ENVIRONMENTAL TECTONICS
CORPORATION,

Defendant.

:

CONFIDENTIALITY AND PROTECTIVE ORDER

Plaintiff/Counterclaim Defendant, Orbit Movers & Erectors, Inc. (“Orbit”) and
Defendant/Counterclaim Plaintiff, Environmental Tectonics Corporation (“ETC”) (Orbit and
ETC are each a “Party” and are collectively referred to as the “Parties), through their
undersigned counsel, hereby stipulate and agree to the terms of this Confidentiality and
Protective Order (the “Protective Order”), and the Court concurs that good cause exists for the
entry of this Protective Order to protect the confidentiality of documents, materials, and
information produced during the course of discovery in these proceedings (the “Lawsuit”),
including confidential and proprietary business information the disclosure of which could harm
the Parties’ interests. Upon consideration of the Parties’ Joint Motion For A Protective Order
(ECF No. 25), IT IS HEREBY ORDERED as follows:

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1.

This Protective Order shall apply to all information, documents, materials, and

tangible things subject to discovery in the Lawsuit that are in the possession, custody, and/or
control of the Parties and/or one or more non-parties, irrespective of whether such information,
documents, materials, and/or tangible things are obtained through discovery, by subpoena, or by
any other lawful means, that are believed to contain or embody trade secrets, proprietary,
sensitive or other confidential business information of the Parties. By way of example, and not
limitation, such trade secrets, proprietary, sensitive and/or confidential business information may
include, or be included in, documents, e-mails, agreements, technical specifications, computer
code, drawings, training materials, financial statements, budgets, analyses, reports, memoranda,
abstracts, interrogatory responses, responses to requests for production of documents and things,
responses to requests for admissions, responses to subpoenas, deposition testimony upon oral or
written examination, data that is available electronically on computer systems, deposition
exhibits, pleadings, briefs, motions, affidavits, and any other “writings and recordings,” as
defined in Rule 1001 of the Federal Rules of Evidence, produced by the Parties and/or submitted
to the Court, and any instrument that comprises, embodies, or summarizes matter that any Party
or non-party considers confidential and/or proprietary. This Protective Order also applies to any
inadvertent production of documents, materials or information protected from disclosure by the
attorney-client privilege, work product protection, or other applicable privilege.
2.

A Party’s agreement to observe the confidentiality of information and/or a

document or class of documents pursuant to this Protective Order is not, and may not be used as,
evidence in this or any other proceeding that the Party admits that such information and/or
documents are, in fact, proprietary, sensitive or confidential, except for purposes of enforcing
this Protective Order.

2

3.

Any Party or non-party, when disclosing or producing documents, materials or

information, shall be known herein as the “Producing Party.” The Producing Party, through its
counsel, may reasonably and in good faith designate documents, materials or information
disclosed or produced as “PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED
CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” in the manner hereinafter set
forth. Any Party, when receiving documents or information produced by the Producing Party,
shall be known herein as the “Receiving Party.”
4.

A Producing Party may designate as “PROTECTED CONFIDENTIAL

MATERIAL” those documents, materials and information that the Producing Party in good faith
reasonably believes contain or reflect confidential business information, including trade secrets
and/or sensitive, commercial, financial or other business information.

The “PROTECTED

CONFIDENTIAL MATERIAL” designation shall extend to the information so designated, the
substance of the information so designated, and excerpts, studies, summaries, compilations and
other similar documents compiled from such information.
5.

“PROTECTED

CONFIDENTIAL

MATERIAL”

shall

not

include

any

information that, at the time of disclosure, is or was public knowledge (or in the public domain),
or subsequently becomes public knowledge (or in the public domain) through no violation of this
Protective Order.
6.

Unless prior written consent to further disclosure has been obtained from counsel

for the Producing Party or permission for such disclosure has been given by the Court,
“PROTECTED CONFIDENTIAL MATERIAL” shall not be disclosed or summarized by any
Party or its counsel to any other person other than the following Permitted Recipients:

3

(a)

The officers and employees of the Parties (including in-house counsel)

who are responsible for, or directly involved in, the prosecution or defense of this Lawsuit;
(b)

Outside counsel of record for any Party and their partners, associates,

paralegals, clerical, and support staff who are specifically assigned to assist outside counsel of
record in the prosecution or defense of this Lawsuit, including but not limited to any support
staff, document reviewers, or other professional legal staff retained to assist with the Lawsuit;
(c)

Any witness at a deposition, hearing or trial in this Lawsuit;

(d)

Consultants, experts, or employees thereof who are employed or retained,

or otherwise consulted by any Party, or their respective counsel in connection with this Lawsuit,
but only to the extent necessary for such persons to perform their role as experts or consultants;
(e)

Any representative of any insurer for any Party who is involved in

managing or overseeing the handling of this Lawsuit;
(f)

Any mediator hired or utilized by the Parties in connection with a private

or court-sponsored mediation, and the mediator’s employees and clerical staff;
(g)

Any court that has jurisdiction over this Lawsuit and its employees

(“Court Personnel”);
(h)

Stenographic reporters or videographers who are engaged in proceedings

necessarily incident to the conduct of this Lawsuit;
(i)

The jury; and

(j)

Those other persons to whom the Parties agree in writing that

“PROTECTED CONFIDENTIAL MATERIAL” may be disclosed.
(k)

The persons described in Paragraphs 4(c),(d), (e), and (j) shall have access

to “PROTECTED CONFIDENTIAL MATERIAL” only after they have been made aware of the

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terms of this Protective Order and have manifested their assent in writing to be bound thereby,
by executing the Confidentiality Agreement (“Annex 1”). Further, persons receiving
“PROTECTED CONFIDENTIAL MATERIAL” are enjoined from disclosing it to any other
person, except in conformity with this Protective Order.
7.

The Parties acknowledge that there may be documents, materials and information

produced for which a higher level of protection is required; such documents, materials and
information may be designated by the Producing Party as “PROTECTED CONFIDENTIAL
MATERIAL – ATTORNEYS’ EYES ONLY” provided that counsel for the Producing Party
reasonably believes in good faith that such documents, materials or information contain or reflect
highly sensitive technical, financial, competitive, or personnel information, which is not
generally known by third parties and that the Producing Party would not normally reveal to third
parties. The “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY”
designation may include, but is not limited to, financial information, customer lists, personnel
information, product plans and technical information pertaining to products or their operation,
design files, design drawings, design specifications, manufacturing techniques, laboratory
notebooks, prototypes, financial and accounting information that is not made publicly available,
business and marketing plans or analyses, surveys, customer communications, meeting minutes,
employment records, and similar information provided that the information meets the foregoing
requirements. The “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES
ONLY” designation shall extend to the information so designated, the substance of the
information so designated, and excerpts, studies, summaries, compilations and other similar
documents compiled from such information.

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8.

Unless prior written consent to further disclosure has been obtained from counsel

for the Producing Party or permission for such disclosure has been given by the Court,
documents, materials or information designated “PROTECTED CONFIDENTIAL MATERIAL
– ATTORNEYS’ EYES ONLY” shall not be disclosed or summarized by any Party or its
counsel to any other person other than the following Permitted Recipients:
(a)

Court Personnel;

(b)

Any witness at a deposition, hearing or trial in this Lawsuit, provided that

such witness does not remove or retain the information designated “PROTECTED
CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY”.
(c)

The Parties’ outside and in-house counsel working on this Lawsuit,

including necessary legal assistants and stenographic personnel actually assisting such counsel,
including but not limited to any support staff, document reviewers, or other professional legal
staff retained to assist with the Lawsuit;;
(d)

Outside vendors engaged by such counsel to copy, scan, code documents,

or to record deposition testimony; and
(e)

Experts and consultants retained by any Party for the purpose of testifying,

consulting or assisting in the preparation of this case for trial.
9.

The persons described in Paragraphs 6(b), (c). (d) and (e) shall have access to

“PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” material only
after they have been made aware of the terms of this Protective Order and have manifested their
assent in writing to be bound thereby, by executing the Confidentiality Agreement (“Annex 1”).
10.

The recipient of any “PROTECTED CONFIDENTIAL MATERIAL” or

“PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” material

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agrees to subject himself or herself to the jurisdiction of the Court for the purpose of any
proceedings relating to the performance under, compliance with, or violation of the Protective
Order. The Parties to this Protective Order agree, and agree to inform each person to whom they
disclose or give access to “PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED
CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” material, that damages for
violation of the Protective Order are not an adequate remedy and the appropriate remedy is
injunctive relief. In the event that any Party is awarded injunctive relief, the person or persons
found to have violated this Protective Order shall reimburse the injured Party for the costs,
reasonable attorneys’ fees and any other expenses incurred in obtaining such relief.
11.

All or any part of a document disclosed or produced herein may be designated as

“PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED

CONFIDENTIAL

MATERIAL – ATTORNEYS’ EYES ONLY” by the Producing Party by marking the document
with a legend designating the document as “PROTECTED CONFIDENTIAL MATERIAL:
SUBJECT TO PROTECTIVE ORDER” or “PROTECTED CONFIDENTIAL MATERIAL –
ATTORNEYS’ EYES ONLY: SUBJECT TO PROTECTIVE ORDER,” respectively, or their
substantial equivalents, on the face of the document and on each additional page of the
document, if any.
12.

Any Party may designate deposition testimony or exhibits marked at depositions

as “PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED CONFIDENTIAL
MATERIAL – ATTORNEYS’ EYES ONLY” by advising the court reporter and the other Party
of such fact during the deposition or within fourteen (14) days after receipt of the deposition
transcript.

In addition, the portion of any deposition in which documents designated as

“PROTECTED

CONFIDENTIAL

MATERIAL”

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or

“PROTECTED

CONFIDENTIAL

MATERIAL – ATTORNEYS’ EYES ONLY”

are marked as exhibits or shown to the

deponent/witness or otherwise referenced shall be considered confidential and subject to the
provisions of this Protective Order. The portion of any deposition transcript that contains
“PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED

CONFIDENTIAL

MATERIAL – ATTORNEYS’ EYES ONLY” shall be bound separately with a cover bearing the
legend “CONTAINS CONFIDENTIAL INFORMATION,” as applicable, and such transcript
portions shall not be shown to any person except Permitted Recipients as expressly authorized in
this Protective Order. The restrictions of this paragraph also apply to any condensed transcript,
electronic transcript, computer discs, videotaped depositions, videocassettes, or other media.
13.

In the event that any Party wishes to submit to the Court any documents, materials

or information designated as “PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED
CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” under this Protective Order,
such Party shall move the Court to grant leave to file such material under seal, as well as follow
those procedures identified in S.D. Ohio Civ. R. 79.3. 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. This Protective Order does not authorize filing
under seal. Upon the appropriate order of the Court, all documents that are to be filed with the
Court shall be filed in sealed envelopes or other appropriate sealed containers on which shall be
endorsed the caption of this Lawsuit, an indication of the nature of the contents of such sealed
envelope or container, the words “CONFIDENTIAL: SUBJECT TO PROTECTIVE ORDER” or
substantially similar language, and a statement substantially in the following form:
This envelope, containing documents which are filed in this case
by _______ (“the producing party”) is not to be opened and the
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contents are not to be displayed or revealed except by prior order
of this Court in accordance with Southern District of Ohio Local
Civil Rule 79.3.
14.

Documents,

materials

CONFIDENTIAL MATERIAL”

and

information

designated

as

“PROTECTED

OR “PROTECTED CONFIDENTIAL MATERIAL –

ATTORNEYS’ EYES ONLY” shall be used solely in connection with the preparation for, and
trial of, this Lawsuit and any appeal therein, and shall not be disclosed to any person except in
accordance with the provisions of this Protective Order.
15.

A Producing Party that is not a party to this Lawsuit shall be entitled to the

protections afforded herein upon signing a copy of the Protective Order and serving the same on
all counsel of record.
16.
have

access

In the event additional parties join or are joined in this Lawsuit, they shall not
to

“PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED

CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” material until the newly joined
party or its counsel has executed and, at the request of any Party, submitted to the Court its
agreement to be fully bound by the Protective Order.
17.

Each Party, its counsel, or any individual subject to this Protective Order who

obtains “PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED CONFIDENTIAL
MATERIAL – ATTORNEYS’ EYES ONLY” material shall take all necessary and appropriate
measures to maintain the confidentiality of the documents, materials or information, shall share
such documents, materials or information only with Permitted Recipients, as applicable, pursuant
to this Protective Order, and shall retain the documents, materials or information in a secure
manner. Except as provided in Paragraphs 6 and 8 above, no other person shall be permitted
access to the documents, materials, or information. Before any Party’s counsel shall deliver,

9

exhibit, publish, or disclose any “PROTECTED CONFIDENTIAL MATERIAL” or
“PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” material to
any person qualified to receive it, the Party’s counsel shall advise the person receiving the
“PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED

CONFIDENTIAL

MATERIAL – ATTORNEYS’ EYES ONLY” material that the information is being disclosed
pursuant to and subject to the terms of this Protective Order and may not be disclosed other than
as provided by this Protective Order.
18.

Any

person

who

obtains

access

to

“PROTECTED

CONFIDENTIAL

MATERIAL” or “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES
ONLY” material under this Protective Order may make copies, duplicates, extracts, summaries,
or descriptions of the documents, materials or information only for the purposes of this Lawsuit
and for no other purpose. All such copies, duplicates, extracts, summaries, or descriptions shall
be subject to the terms of this Protective Order to the same extent and manner as original
documents, materials or information.
19.

Each Party will maintain the original and any copies of the Annex 1 signed by

each person to whom access is given with respect to “PROTECTED CONFIDENTIAL
MATERIAL” or “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES
ONLY.” Each Party may request, in good faith, that the other Party make one or more Annex
1(s) available for inspection, and the Party to whom the request is made shall consider the
request in good faith and either agree to produce the requested Annex 1(s) or object to producing
the requested Annex 1(s) within five (5) business days of receipt of the request. If the Party to
whom the request is made objects to producing any requested Annex 1(s), then the requesting
Party may request that the Court compel the production. However, a Party may not request

10

disclosure, and a Party shall not be required to disclose to another Party, an Annex 1 signed by a
consulting expert witness until after the case is concluded and only then to the extent that the
requesting Party seeks the identity of such consulting expert witness to enforce this Agreement.
20.

Any

“PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED

CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” material may be used by any
Party at any hearing or trial of this case subject to the rules of evidence and the requirements of
this Protective Order, or such other Order as the Court may enter. Prior to introducing into
evidence or otherwise disclosing at trial or hearing, or in motions, briefs, pleadings or other
papers filed with the Court, any “PROTECTED CONFIDENTIAL MATERIAL” or
“PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” materials, the
Parties shall agree on a procedure to maintain confidentiality and such procedure shall be
submitted to the Court for its approval.
21.

Each Party or non-party shall exercise good faith in designating material as

“PROTECTED

CONFIDENTIAL

MATERIAL”

MATERIAL – ATTORNEYS’ EYES ONLY.”

or

“PROTECTED

CONFIDENTIAL

If any Party disagrees with the Producing

Party’s designation of certain documents, the receiving Party shall request in writing that the
Producing Party redesignate such documents. The Producing Party shall then either affirm the
designation or redesignate the document within ten (10) business days after receipt of the request
to redesignate. Thereafter, the receiving Party may seek relief from the Court as appropriate.
The Producing Party has the burden of demonstrating that the document (or class of documents)
is entitled to its designated status. Unless and until this Court enters an Order to the contrary, the
documents, materials or information shall be treated as “PROTECTED CONFIDENTIAL

11

MATERIAL” or “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES
ONLY.”
22.

This Protective Order does not preclude any Party from moving to have any other

documents, materials or information designated as protected in accordance with the rules of this
Court. Any such additional documents, materials or information designated as protected may be
treated as “PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED CONFIDENTIAL
MATERIAL – ATTORNEYS’ EYES ONLY” pursuant to the terms of this Protective Order.
23.

Any unauthorized disclosure of documents, materials or information designated as

“PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED

CONFIDENTIAL

MATERIAL – ATTORNEYS’ EYES ONLY” under this Protective Order shall not result in a
waiver of the Producing Party’s claim of confidentiality with respect to such documents,
materials or information.
24.

Any designation that is inadvertently omitted at the time of production by the

Producing Party shall not constitute a waiver and may be corrected by written notification by the
Producing Party to counsel for the receiving Party accompanied by substitute material with the
appropriate designation. The receiving Party shall have ten (10) business days from the receipt
of such notice of redesignation to object to the redesignation in writing. Upon such an objection
being timely made, the Producing Party may seek relief from the Court as appropriate. The
Producing Party has the burden of demonstrating the designated status. Until such a ruling is
made by this Court, the receiving Party shall treat such redesignated material in the same manner
as if the Producing Party had designated such material at the time of its first production to the
receiving Party. Regardless, no Party shall be deemed to have violated this Order, if, prior to
notification of any later redesignation, the receiving Party disclosed or used such material or

12

information in a manner inconsistent with the later designation. In the event that the Court rules
that such material or information shall be redesignated in the manner requested by the Producing
Party, the receiving Party shall take all appropriate steps to secure the return or destruction of
any such material or information from all persons to whom the receiving Party previously
disclosed such material or information and shall disclose to the Producing Party the name and
address of each person to whom the receiving Party disclosed such material or information.
25.

In the event that any Party inadvertently produces a document that otherwise is

not discoverable for reasons of the attorney-client privilege, work product immunity, or any
other applicable privilege or immunity, regardless of whether the information was so designated
at the time of disclosure, such inadvertent production shall not constitute any waiver or forfeiture
of the applicable privilege or immunity and all copies of such inadvertently produced documents
shall promptly be destroyed or returned to the requesting Party within five (5) business days of
receipt of any demand by the Producing Party.
26.

Except as provided below, all documents designated as “PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED CONFIDENTIAL MATERIAL –

ATTORNEYS’ EYES ONLY” in accordance with this Protective Order shall be returned to the
Producing Party upon the conclusion of this action (or, with written permission by the Producing
Party, destroyed). The “conclusion” of this action means, as to the Parties, sixty (60) days
following the completion of this Lawsuit, whether by the entry of judgment and the exhaustion
of (or expiration of time for) appeal rights or as may be determined by the Court. On the
conclusion of this action, the Parties shall agree on a procedure to facilitate the return or
destruction

of

“PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED

CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” material. Counsel for the

13

Parties required to return or destroy said documents, materials or information to the Producing
Party shall provide a certification in writing to the Producing Party stating that, except as
provided below, said counsel has made all reasonable efforts to retrieve any documents,
materials or information subject to this Protective Order and that all such documents, materials
or information have been returned or destroyed, or if not, providing a description of the
circumstances relating to any documents, materials or information not returned or destroyed.
The Clerk of the Court shall maintain under seal all documents filed under seal until the Court
orders otherwise.
If

“PROTECTED

CONFIDENTIAL

MATERIAL”

OR

“PROTECTED

CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” is stored or otherwise
maintained electronically by the Receiving Party or its counsel, including but not limited to on an
email system or server, an internal document storage program, computer or external hard drive,
disk, cloud storage, or other electronic media, the Receiving Party shall take all reasonable steps
to

delete

said

“PROTECTED

CONFIDENTIAL

MATERIAL”

OR

“PROTECTED

CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” to the fullest extent
technologically possible and, in any event, render such material inaccessible by their
representatives, attorneys and staff involved in the Lawsuit.
versions

of

“PROTECTED

CONFIDENTIAL

Further, as to any electronic

MATERIAL”

OR

“PROTECTED

CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” existing on backup storage
media (including but not limited to backup “tapes” and archived email programs), the Parties
agree that such electronic copies shall be subject to and deleted pursuant to such Receiving
Party’s and counsel’s routine data backup and retention policies, and that the actual permanent
deletion of such “PROTECTED CONFIDENTIAL MATERIAL” OR “PROTECTED

14

CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” may occur as such backup
media is overwritten or otherwise as part of document deletion procedures in the normal course
of business. The Receiving Party shall not in any event make any attempt to retrieve, restore,
review, disseminate, or use any “PROTECTED CONFIDENTIAL MATERIAL” OR
“PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” stored on any
such backup storage media for any purpose after the conclusion of the Lawsuit, and must
promptly take steps to delete or sequester such information if a backup containing such data is
ever retrieved or restored for any purpose.
This Paragraph 26 shall not require the Receiving Party or its counsel to destroy or return
documents or information containing, attaching, or constituting work product, nor shall this
paragraph require the destruction of documents filed with the Court or other tribunal for or in this
Lawsuit, including but not limited to hearing or argument transcripts, deposition transcripts, trial
transcripts, trial exhibits, discovery requests and written responses, stipulations, or
correspondence between counsel for the Parties any or all of which contain “PROTECTED
CONFIDENTIAL MATERIAL” OR “PROTECTED CONFIDENTIAL MATERIAL –
ATTORNEYS’ EYES ONLY,” provided, however, that the Receiving Party or its counsel who
retains such documents or information shall maintain them consistent with the provisions of
Paragraphs 6 and 8 above.
27.

A Party who retains any of another Party’s “PROTECTED CONFIDENTIAL

MATERIAL” or “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES
ONLY” materials (as permitted by Paragraph 26 of this Protective Order) may not disseminate
that “PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED CONFIDENTIAL
MATERIAL – ATTORNEYS’ EYES ONLY” material to any third party without prior written

15

consent of the Producing Party, except to the extent permitted by and subject to the provisions of
Paragraphs 6 and 8 of this Protective Order.
28.

To the extent that a Party disseminated any other Party’s “PROTECTED

CONFIDENTIAL

MATERIAL”

or

“PROTECTED CONFIDENTIAL MATERIAL –

ATTORNEYS’ EYES ONLY” material to a third party (as permitted under Paragraphs 6, 8, or
27 of this Protective Order), the Party that disseminated such information to the third party is
responsible for ensuring that the third party has destroyed or returned such “PROTECTED
CONFIDENTIAL

MATERIAL”

or

“PROTECTED CONFIDENTIAL MATERIAL –

ATTORNEYS’ EYES ONLY” material in accordance with Paragraph 26 of this Protective
Order.
29.

This Protective Order shall survive the termination of this Lawsuit and continue in

full force and effect.
30.

This Protective Order shall in no way restrict the Parties in their use of their own

documents, materials and information, irrespective of whether such document or information has
been designated as “PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED
CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY.”
31.

If any court, administrative agency, legislative body, or other governmental entity

requests or subpoenas or orders the production of any material designated under this Protective
Order that a Party, its counsel, or any other person has obtained in connection with this Lawsuit,
such person shall immediately notify the Producing Party in writing of such request, subpoena,
or order by delivering by hand, electronic mail or by facsimile a copy of such request, subpoena,
or order, and will exercise reasonable good faith efforts not to make such documents or
information available until at least twenty (20) days after the Producing Party has been notified.

16

32.

This Protective Order shall be in effect upon execution by counsel for the Parties.

The Parties agree to be bound by the terms of this proposed Order pending its adoption or
supplementation by the Court.
33.

This Court shall retain jurisdiction over all persons subject to this Protective

Order to the extent necessary to enforce any obligation arising hereunder or to impose sanctions
for any contempt thereof.

September 30, 2015
s/ Michael R. Merz
United States Magistrate Judge

17

The undersigned, on behalf of their client, hereby consents to the form and entry of the foregoing
Order.

/s/ Terry W. Posey, Jr.
Daniel F. Edwards (0060017)
THOMPSON HINE LLP
41 South High Street, Suite 1700
Columbus, OH 43215
[phone]
[phone] (facsimile)
[e-mail]

/s/ Erin E. Rhinehart
Erin E. Rhinehart (0078298)
FARUKI IRELAND & COX, P.L.L.
500 Courthouse Plaza, S.W.
Dayton, OH 45402
[phone]
[phone] (facsimile)
[e-mail]

Terry W. Posey, Jr. (0078292)
THOMPSON HINE LLP
10050 Innovation Drive, Suite 400
Miamisburg, OH 45342
[phone]
[phone] (facsimile)
[e-mail]

David H. Colvin (admitted pro hac vice)
FOX ROTHSCHILD LLP
2000 Market Street, 20th Floor
Philadelphia, PA 19103
[phone]
[phone] (facsimile)
[e-mail]

Ronald P. Keller (0016176)
COX, KELLER & LUSARDI
85 W. Main Street
Xenia, OH 45385
[phone]
[phone] (facsimile)
[e-mail]

Attorneys for Defendant/Counterclaim
Plaintiff Environmental Tectonics Corporation
Dated: September 22, 2015

Attorneys for Plaintiff/Counterclaim Defendant
Orbit Movers & Erectors, Inc.
Dated: September 22, 2015

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ANNEX 1
Protective Order Confidentiality Agreement
The undersigned hereby acknowledges that he/she has read the foregoing Confidentiality
and Protective Order (“Protective Order”) entered in the case presently pending in the United
States District Court for the Southern District of Ohio entitled Orbit Movers & Erectors, Inc. v.
Environmental Tectonics Corporation., No. 3:14-cv-118 (S.D. Ohio), understands the terms
thereof, and agrees, upon threat of penalty of contempt, to be bound by such terms. The
undersigned understands that disclosure of information which has been designated as
“PROTECTED CONFIDENTIAL MATERIAL” or “PROTECTED CONFIDENTIAL
MATERIAL – ATTORNEYS’ EYES ONLY” by the party producing that information may
cause substantial harm to the producing party’s business. Accordingly, among other
responsibilities, the undersigned shall only share such “PROTECTED CONFIDENTIAL
MATERIAL” or “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES
ONLY” with persons specifically authorized to receive the “PROTECTED CONFIDENTIAL
MATERIAL” or “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES
ONLY” pursuant to the Protective Order, shall retain the “PROTECTED CONFIDENTIAL
MATERIAL” or “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES
ONLY” in a secure manner, and shall use such “PROTECTED CONFIDENTIAL MATERIAL”
or “PROTECTED CONFIDENTIAL MATERIAL – ATTORNEYS’ EYES ONLY” only for the
purposes authorized by the Protective Order. The undersigned understands that the pledge of
confidentiality under this Agreement continues after this lawsuit is over. The undersigned
further understands his/her obligation after the lawsuit is over to return to counsel of record (or,
with written permission by the producing party, destroy) any such information or documents

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designated as confidential, and submits to the jurisdiction of this Court in conjunction with
his/her compliance or non-compliance with the Protective Order.
Dated: _____________________

Signed: _____________________________
______________________________
[Print Name]
_______________________________
______________________________
Address

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