Korda/Nemeth Engineering, Inc. v. Travelers Insurance Company et al

Filing 22

AMENDED STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Michael J. Newman on 3/14/16. (pb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KORDA/NEMETH ENGINEERING,
INC.
Plaintiff,
vs.
TRAVELERS INSURANCE
COMPANY d/b/a TRAVELERS
CASUALTY AND SURETY
COMPANY OF AMERICA, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 3:15-CV-00210

Judge Thomas M. Rose
Magistrate Judge Michael J. Newman

AMENDED STIPULATED PROTECTIVE ORDER
Pursuant to the Court’s authority under Federal Rule of Civil Procedure Rule 26(c) and
upon stipulation of the Parties, the Court finds that there is good reason to expedite the flow of
discovery material, facilitate the prompt resolution of disputes concerning confidentiality,
provide adequate protection for material entitled to be kept confidential, and ensure that
protection is afforded only to material so entitled. Accordingly:
IT IS HEREBY ORDERED as follows:
1.

This Order shall govern all Documents and information that Plaintiff,

Korda/Nemeth Engineering, Inc. (“K/N”) and Defendant The Phoenix Insurance Company
(“Phoenix”), incorrectly sued herein as Travelers Insurance Company d/b/a Travelers Casualty
and Surety Company of America and The Phoenix Insurance Company, or non-parties produce
in connection with this action, as well as all information derived therefrom, and all copies,
excerpts, or summaries thereof, including, but not limited to, Documents or other materials

produced pursuant or in response to the Federal Rules of Civil Procedure, deposition notices, or
subpoenas; answers to interrogatories; deposition transcripts; responses to requests for
admission; affidavits; declarations; and other such material and information as may be produced
during this action.
2.

The following definitions shall apply to this Order:
a.

“Communication” means any transmission or exchange of information

(in the form of facts, ideas, inquiries or otherwise) by Document, by electronic transmission,
orally, or by any other medium, including conversations, discussions, interviews, meetings, and
conferences whether in person or by some other medium, including, without limitation,
telephone, letter, memorandum, telegram, facsimile, electronic mail, computer, or word
processing system.
b.

“Confidential Information” shall mean and include any Document,

deposition transcript, discovery response, or other information (or portions thereof) of a
proprietary or confidential nature within the meaning of Federal Rule of Civil Procedure 26. It
does not include documents or information that are in the public domain, even if designated as
confidential under this Order. Documents meeting these criteria shall be identified on their face
as “Confidential Information – Subject to Court Order.” For multi-page Documents, each and
every page of the Document deemed to be Confidential Information shall be so designated by a
legend on each such page. A single legend on the first page of a multi-page Document will not
be deemed to designate the entire Document as Confidential Information.

However, for

databases, CD-ROMs, and other electronic materials, a single legend affixed on the CD-ROM or
computer disk containing the Confidential Information will be deemed to designate the entire
contents thereof as Confidential Information.

2

c.

“Document” shall be interpreted in the broadest sense permitted by the

Federal Rules of Civil Procedure, and shall include any writing or other record whatsoever of
any nature, whether transcribed by hand or by some mechanical, electronic, photographic, or
other means, and regardless of the medium in, or upon which, it is retained or stored, including
the following: correspondence, letters, financial and accounting records, memoranda, electronic
mail, notes, records, summaries of meetings or any other oral communication, opinions, studies,
reports, drafts, agreements and releases, telegrams, transcripts, facsimiles, manuals, diaries, tape
recordings, computer disks or files, computer printouts, logs, notebooks, drawings, plans,
photographs, audio and video tapes, films, data compilations, all forms of electronic data, and
Communications. “Document” includes originals and all copies.
d.

“Party” shall mean K/N and Phoenix (sometimes referred to by the

Parties as (“Travelers”) (collectively, the “Parties”).
e.

“Producing Party” shall mean any person or entity, including Parties and

any non-party, that produces Documents or information in connection with this action.
3.

Any Producing Party may designate as Confidential Information any Document or

information contained within such Document that the Producing Party produces that is of a
confidential or proprietary nature.
4.

Except with the prior written consent of the Producing Party, or as otherwise

provided under this Order, no Confidential Information may be disclosed to any person or entity.
5.

Notwithstanding Paragraph 4, Confidential Information may be disclosed, solely

for the purposes of this litigation, to: (i) the Parties, and officers or employees, including inhouse counsel, of the Parties; (ii) outside counsel for the Parties in the action, including the
partners, counsel, associates, secretaries, paralegal assistants, and employees of such attorneys;

3

(iii) the Court, jury, and other court officials involved in this litigation, including the clerk’s
office, court reporters, persons operating video recording equipment at depositions, and any
special master appointed by the Court; (iv) non-parties specifically retained in connection with
this action to assist in photo-copying, imaging, database development, graphics or design
services, but only after they agree, in writing, to be bound by the terms of this Order; (v) nonparty consultants, investigators, experts, and their staffs who are retained or may be retained by a
Party or Parties or their counsel in connection with this action, but only after they agree, in
writing, to be bound by the terms of this Order; (vi) witnesses and potential witnesses; (vii) any
other person whom counsel for the Parties agree, in writing, should have access to such
Confidential Information; and (viii) any person designated by the Court in the interest of justice,
upon such terms as the Court may deem proper.
6.

Notwithstanding Paragraph 4, Confidential Information may be disclosed to

reinsurers, accountants, and auditors of any Party or a third party to whom a Party is legally
obligated or to whom it has a pre-existing contractual obligation, in the ordinary course of
business, to disclose Confidential Information.
7.

Nothing in this Order shall impose any restrictions on the use or disclosure by, or

to, any Party or person of Documents or information obtained by a Party or person independently
of proceedings in this litigation, regardless of whether such documents or information are also
obtained through discovery proceedings in this litigation.

Nor shall it restrict the use of

Documents or information that are in the public domain.
8.

Nothing in this Order shall limit or restrict the manner in which a Producing Party

shall handle its own Confidential Information.

4

9.

Notwithstanding Paragraph 4 or the other provisions in this Order, any person

may be shown any Document or information containing Confidential Information if it appears on
the face of the Document or information, or from other Documents or information, that the
individual authored or received a copy of the Document or information.
10.

Nothing herein shall prevent disclosure of any Confidential Information beyond

the terms of this Order if all Parties and, if applicable, all third-party signatories to any
confidential settlement agreements or releases produced herein, consent in writing to such
disclosure.
11.

Nothing herein shall prohibit a Producing Party from disclosing Confidential

Information where such disclosure is required by law or by court order. Any Producing Party
that receives a demand or request for disclosure of Confidential Information shall, within ten
(10) days of receipt of the demand or request, give written notice to all other Parties and
Producing Parties of the demand or request, unless the giving of such notice would violate a law
or court order.
12.

In the case of deposition testimony, designation of Confidential Information shall

be made by notifying all counsel on the record at the deposition or in writing of those portions
which are to be stamped and otherwise treated as Confidential Information at any time up to 30
days after the transcript is received by counsel for the Party asserting the confidential treatment.
Prior to the expiration of such 30 day period (or until a designation is made by counsel, if such
designation is made in a shorter period of time), all deposition testimony shall be treated as if it
contains Confidential Information.
13.

Any Party seeking to file with the Court any Document (including any pleading,

deposition transcript, exhibit, discovery response, or memorandum) that contains, in whole or in

5

part, Confidential Information or purports to reproduce or paraphrase Confidential Information,
shall seek leave to file such Document 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 5.2.1. This
Protective Order does not authorize filing under seal; any provisions in this Protective Order to
the contrary are hereby stricken.
14.

If any Party objects to a Confidential Information designation by any Producing

Party, the Parties and Producing Party involved shall attempt to resolve the dispute by
agreement. If the Parties and Producing Party are unable to resolve the dispute amicably, the
objecting Party or Producing Party may raise the matter with the Court for resolution. The
Producing Party shall bear the burden of establishing that the challenged item, in fact, constitutes
Confidential information under Paragraph 2(b) above. Until the dispute is resolved, all Parties
shall treat the designated Document or information that is at issue in the dispute as Confidential
Information. A Party’s failure promptly to challenge or object to the designation of a Document
or information as Confidential Information shall not be deemed a waiver of its right to challenge
or object to such designation at any other time.
15.

If a Producing Party mistakenly fails to designate any Document or other

information in this action as Confidential Information, the Producing Party shall inform all
Parties receiving the Document or other information promptly after discovering the mistake. The
Producing Party shall promptly provide substitute copies of the Document or information,
designated as Confidential Information, and the Parties receiving the non-designated Document

6

or other information shall destroy or return the non-designated Document or other information
(and all copies thereof) to the Producing Party.
16.

Subject to the Federal Rules of Evidence, in the event that Confidential

Information is used in any trial, hearing, or other court proceeding in this action, the Confidential
Information shall not lose its status as Confidential Information through such use. Counsel shall
confer with the Court on such procedures as may be necessary to protect the confidentiality of
any Confidential Information used in any such proceeding.
17.

If a Producing Party inadvertently discloses any Document or other information

that the Producing Party believes contains Confidential Information (and that Document or other
information has not been so designated in accordance with this Order) or is subject to attorneyclient privilege, work product, or any other protection or privilege, the Producing Party reserves
all rights to assert such designation, privilege, or protection in this or in any other proceeding
notwithstanding the fact that the material has been disclosed. The inspection, copying, and/or
review by a Party in the course of this proceeding of such Document or other information shall
not, by itself, be deemed a waiver of the asserted designation, privilege, or protection, whether in
this or any other proceeding, for the produced Document or information, or any other Document
or information covering the same or similar subject matter.
18.

If a claim of inadvertent production of a Document subject to the attorney-client

privilege, work product, or any other protection, privilege, or immunity from discovery is made
pursuant paragraph 17 with respect to information then in the custody of another Party, such
party shall promptly destroy or return to the claiming Party that material as to which the claim of
inadvertent production has been made, and the receiving Party shall not use such information for
any purpose other than in connection with a motion to compel. The Party destroying or returning

7

such material may then move the Court for an order compelling production of the material, but
said motion shall not assert the fact or circumstance of the inadvertent production as grounds for
requiring the production of such material.
19.

Except as otherwise provided herein, persons obtaining access to Confidential

Information under this Order shall use the information only for preparation and trial of this
litigation (including any appeals and re-trials), and shall not use such information for any other
purpose, including, without limitation, business, governmental, commercial, administrative, or
judicial purposes or proceedings.
20.

Nothing in this Order shall prevent any Party or other person from seeking, upon

notice and a showing of good cause, modification, extension, or limitation of this Order, or from
objecting to discovery that it believes to be otherwise improper. This Order may be changed by
further order of the Court, and is without prejudice to the right of any Party to move for relief
from any of the provisions of this Order or to seek to agree to different or additional treatment of
any particular Document or information.
21.

The provisions of this Order shall remain in full force and effect following the

conclusion of this litigation. Within 90 days after the final conclusion of this litigation by
judgment, settlement, or otherwise from which no appeal can be brought, all Confidential
Information and all copies of same (other than exhibits of record) shall be returned to the
Producing Party or, at the option of the Producing Party, destroyed. Notwithstanding anything in
this Paragraph to the contrary, outside counsel for the Parties shall have the right to retain one
copy of documents constituting work product, all pleadings, deposition transcripts, hearing or
trial transcripts, and deposition or trial exhibits.

8

22.

Nothing contained in this Order and no action taken pursuant to it shall prejudice

the right of any Party to contest the alleged relevancy, admissibility, or discoverability of the
Confidential Information sought.
23.

Nothing contained in this Order is intended to modify, alter, amend, or supersede

any other agreements between the Parties.
24.

The Parties agree that, from the time when they execute this Order until the Court

enters the Order, the Parties will be bound by this Order as though the Court had entered it.
IT IS SO ORDERED.

s/ Michael J. Newman
Hon. Michael J. Newman
United States District Magistrate Judge
Approved for entry:
Dated: March 14, 2016

/s/Amy K. Schermer ______________
Amy K. Schermer (0068012)
[e-mail]
Schermer Law, LLC
8372 Firstgate Dr.
Reynoldsburg, Ohio 43068
[phone]
Fax: [phone]

/s/ Michael E. Smith_____________
Michael E. Smith (0042372)
[e-mail]
Frantz Ward, LLP
200 Public Square, Suite 3000
Cleveland, Ohio 441144
[phone]
Fax: [phone]

Attorney for Plaintiff

Attorney for Defendant

9