Siemens Product Lifecycle Management Software In v. Manufacturing Services International, Inc.

Filing 18

STIPULATED PROTECTIVE ORDER. Signed by Chief Magistrate Judge Sharon L. Ovington on 10/19/2016. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

SIEMENS PRODUCT LIFECYCLE
MANAGEMENT SOFTWARE INC.,

:
:

Plaintiff,
:
v.
:
MANUFACTURING SERVICES
INTERNATIONAL, INC.,
Defendant.

Case No. 3:16-cv-182
District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

:
:

STIPULATED PROTECTIVE ORDER
Based on the stipulation of the parties, the Court hereby enters the following Protective
Order pursuant to Fed. R. Civ. P. 26(c).
1.

As used in this Protective Order, these terms have the following meanings:
a)

“Attorneys” means counsel of record;

b)

“CONFIDENTIAL” Documents are Documents designated pursuant to
paragraph 2;

c)

“CONFIDENTIAL - ATTORNEYS' EYES ONLY” Documents are
Documents designated pursuant to paragraph 5;

d)

“Designated Materials” are all materials designated either
CONFIDENTIAL or CONFIDENTIAL - ATTORNEYS' EYES ONLY;

e)

“Documents” are all materials within the scope of Fed. R. Civ. P. 34,
including interrogatory responses, other discovery responses, or
transcripts;

f)

“Written Assurance” means an executed document in the form attached as
Exhibit A.

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2.

By identifying a Document as “CONFIDENTIAL”, a party may designate any

Document that it in good faith contends to constitute or contain trade secret or other confidential
information.
3.

All Confidential Documents, along with the information contained in the

Documents, shall be used solely for the purpose of this action, and no person receiving such
Documents shall, directly or indirectly, transfer, disclose, or communicate in any way the
contents of the Documents to any person other than those specified in paragraph 4.
4.

Access to any Confidential document shall be limited to:
a)
b)

attorneys and their office associates, legal assistants, and stenographic and
clerical employees;

c)

persons shown on the face of the document to have authored or received
it;

d)

court reporters or videographers retained to transcribe testimony;

e)

up to two employees of Siemens and MSI as necessary to assist the
Attorneys in representing their client’s interests.

f)

outside independent persons (i.e., persons not currently or formerly
employed by, consulting with, or otherwise associated with any party)
who are retained by a party or its attorneys to furnish technical or expert
services, or to provide assistance as mock jurors or focus group members
or the like, and/or to give testimony in this action; and

g)

5.

the Court and its officers;

commercial copy services, translators, data entry and computer support
organizations, and such persons who assist in preparing demonstrative trial
exhibits, hired by and assisting outside Attorneys for a party, provided
such commercial organizations are made aware of and agree to abide by
the provisions of this Protective Order.

The parties shall have the right to designate Documents or portions of Documents

relating to highly sensitive and proprietary trade secrets as “CONFIDENTIAL - ATTORNEYS'

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EYES ONLY”. Disclosure of such information shall be limited to the persons designated in
paragraphs 4(a), (b), (c), (d), (f) and (g).
6.

Third parties producing documents in the course of this action may also designate

Documents as “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS' EYES ONLY”,
subject to the same protections and constraints as the parties to the action. A copy of this
Protective Order shall be served along with any subpoena served in connection with this action.
All Documents produced by such third parties shall be treated as “CONFIDENTIAL ATTORNEYS' EYES ONLY” for a period of 15 days from the date of their production, and
during that period any party may designate such Documents as “CONFIDENTIAL” or
“CONFIDENTIAL - ATTORNEYS' EYES ONLY” pursuant to the terms of this Protective
Order.
7.

Each person appropriately designated pursuant to paragraph 4(f) to receive

Designated Materials shall execute a “Written Assurance” in the form attached as Exhibit A.
Opposing counsel shall be notified at least 10 days prior to disclosure to any person pursuant to
paragraph 4(f). Such notice shall provide the signed Written Assurance, a reasonably current CV,
and a description of any known relationships between the outside independent person to whom
disclosure is sought and any competitors of the party whose designated Documents are sought to
be disclosed, sufficient to permit objection to be made. If a party objects in writing to such
disclosure within 10 days after receipt of notice, no disclosure shall be made until the party
seeking disclosure obtains the prior approval of the Court or the objecting party.
8.

All depositions or portions of depositions taken in this action that contain trade

secret or other confidential information may be designated as “CONFIDENTIAL” or
“CONFIDENTIAL - ATTORNEYS' EYES ONLY” and thereby obtain the protections accorded

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other Designated Materials. Confidentiality designations for depositions shall be made either on
the record or by written notice to the other party within 30 days of date of the deposition. Unless
otherwise agreed, or otherwise designated on the record, depositions shall be treated as
“CONFIDENTIAL - ATTORNEYS' EYES ONLY” during a 10-day period following the
deposition. The deposition of any witness (or any portion of such deposition) that encompasses
Designated Material shall be taken only in the presence of persons who are qualified to have
access to such information.
9.

Any party who inadvertently fails to designate material pursuant to this Protective

Order shall have 10 days from the discovery of its oversight to correct its failure. Such failure
shall be corrected by providing written notice of the error and substituted copies of the
incorrectly designated documents. Any person who has distributed a document that is designated
pursuant to this paragraph to any persons not entitled to receive documents with the new
designation shall instruct the unauthorized recipients to destroy any copies and confirm the
destruction in writing.
10.

Any party who inadvertently discloses documents that are privileged or otherwise

immune from discovery shall, promptly upon discovery of such inadvertent disclosure, so advise
the receiving party and request that the documents be returned. The receiving party shall return
such inadvertently produced documents, including all copies, within 10 days of receiving such a
written request. The party returning such inadvertently produced documents may thereafter seek
re-production of any such documents pursuant to applicable law.
11.

Any party may request a change in the designation of any information Designated

pursuant to this Protective Order. Any such Document shall be treated as designated until the
change is completed. If the requested change in designation is not agreed to, the party seeking

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the change may move the Court for appropriate relief, providing notice to any third party whose
Designated Material in the action may be affected. The party asserting the Designation shall have
the burden of proving that the information in question is within the scope of protection afforded
by Fed. R. Civ. P. 26(c).
12.

Parties or third-parties who intend to file Designated Materials of another, in

support of a motion or otherwise, are obliged to first advise the party or third-party who
produced the Designated Materials of such intention at least ten (10) days in advance of filing,
identifying with particularity the Designated Materials that the party or third-party intends to
file. Thereafter, the party or third-party who produced the Designated Materials shall have five
(5) days within which to:
a) seek an order that requires the Designated Materials be filed under seal, in
accordance with S. D. Ohio Local Rule 5.2.1 and Shane Grp., Inc. v. Blue
Cross Blue Shield, 825 F.3d 299 (6th Cir. 2016); or
b) advise that it does not intend to seek an order requiring the Designated
Materials be filed under seal.
13.

To the extent that the party or third-party who produced the Designated Materials

proceeds in accordance with Paragraph 12(a) above, the Designated Materials may not be filed
before the Court issues a decision on whether to seal the Designated Materials. If necessary to
preserve a filing deadline, a party or third-party may submit to the Court a filing that redacts
Designated Materials or references to Designated Materials, until such time that the Court is able
to rule on whether the unredacted Designated Materials may become part of the public record.
14.

Within 60 days of the termination of this action, including any appeals, each party

shall either destroy or return to the opposing party all Designated Material, and all copies of such

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Documents, and shall destroy all extracts and/or data taken from such documents, except as
incorporated in correspondence or attorney work product described below. Each party shall
provide a certification as to such return or destruction as within the 60-day period. Attorneys
shall be entitled to retain, however, a set of all documents filed with the Court, all attorney work
product, and all correspondence generated in connection with the action.
15.

Any party may apply to the Court for a modification of this Protective Order, and

nothing in this Protective Order shall be construed to prevent a party from seeking such further
provisions enhancing or limiting confidentiality as may be appropriate.
16.

No action taken in accordance with this Protective Order shall be construed as a

waiver of any claim or defense in the action or of any position as to discoverability or
admissibility of evidence.
17.

The obligations imposed by this Protective Order shall survive the termination of

this action. Within 60 days following the expiration of the last period for appeal from any order
issued in connection with this action, the parties may request the return of any Designated
Materials, which were not admitted or filed as part of the public record, from the office of the
Clerk of Court. Following that 60-day period, the Clerk of Court shall destroy any remaining
Designated Materials.

Dated: October 19, 2016

s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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AGREED:

/s/Glenn D. Bellamy (per 10/6/16 email authorization)
Glenn D. Bellamy (0070321)
Trial Attorney
Stephen E. Gillen (0033094)
WOOD HERRON & EVANS LLP
2700 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

/s/Jeffrey T. Cox
Jeffrey T. Cox (0055420)
Trial Attorney
Jade K. Smarda (0085460)
FARUKI IRELAND & COX. P.L.L.
110 North Main Street, Suite 1600
Dayton, OH 45402
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

Counsel for Defendant
Manufacturing Services International, Inc.

Robert R. Riddle
(admitted pro hac vice)
Texas Bar No. 24035495
Andrew Bluebond
(admitted pro hac vice)
Texas Bar No. 24092147
REED SMITH, LLP
811 Main Street, Suite 1700
Houston, TX 77002-6110
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Counsel for Plaintiff
Siemens Product Lifecycle Management
Software Inc.

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EXHIBIT A
WRITTEN ASSURANCE

_____________________ declares that:

I reside at _________________________ in the City of _______________, County of
_______________ , State of ________________________;

I am currently employed by _____________________________ located at
__________________________________________ and my current job title is
______________________________.

I have read and believe I understand the terms of the Protective Order dated
___________, filed in Civil Action No. 3:16-CV-182, pending in the United States District Court
for the Southern District of Ohio. I agree to comply with and be bound by the provisions of the
Protective Order. I understand that any violation of the Protective Order may subject me to
sanctions by the Court.

I shall not divulge any Documents, or copies of Documents, designated “Confidential” or
“Confidential – Attorneys’ Eyes Only” obtained pursuant to such Protective Order, or the
contents of such Documents, to any person other than those specifically authorized by the
Protective Order. I shall not copy or use such Documents except for the purposes of this action
and pursuant to the terms of the Protective Order.

As soon as practical, but no later than 30 days after final termination of this action, I shall
return to the attorney from whom I have received them any Documents in my possession
designated “Confidential” or “Confidential – Attorneys’ Eyes Only” and all copies, excerpts,
summaries, notes, digests, abstracts, and indices relating to such documents.

I submit myself to the jurisdiction of the United States District Court for the Southern
District of Ohio for the purpose of enforcing or otherwise providing relief relating to the
Protective Order.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on _______________, 20__

___________________________
(Signature)