Doherty et al. v. Steak n Shake, Inc., et al.

Filing 9

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Michael R. Merz on 9/20/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
EUGENE A. DOHERTY, et al.,
Plaintiffs,

-

vs

:

-

Case No. 3:16-cv-315

Magistrate Judge Michael R. Merz

STEAK N SHAKE OPERATIONS,
INC., et al.,

Defendants.

:

STIPULATED PROTECTIVE ORDER

On stipulation of the parties and for good cause shown, IT IS HEREBY ORDERED
1.

(a)

This Stipulated Protective Order (“Protective Order”) governs the

handling of all documents, electronically stored information, depositions or other testimony,
interrogatory responses, responses to requests for admissions, and other information, produced,
given, or filed during discovery and other proceedings in this action, including all copies,
excerpts, and summaries thereof (collectively “Material”).
(b)

The provisions of this Protective Order shall apply to (i) the parties in this

case and (ii) any other person producing or disclosing Material in this action who agrees to be
bound by the terms of this Protective Order. However, nothing herein shall be construed to
modify the restriction set out below in Section 3 regarding access to Confidential Material.

1

(c)

“Court,” as used in this Protective Order means the United States District

Court, Southern District of Ohio, and any court in which the above-captioned action is or may
later be filed.
(d)

As used herein “person” includes the persons as outlined at l(b)(i) and (ii)

above, and those defined in 3(b) herein who have agreed to be bound by this Protective Order.
2.

Any person may designate as “Confidential” any Material produced in the course

of discovery proceedings herein only when such designating person in good faith believes that
such Material contains sensitive personal information, trade secrets or other confidential or
proprietary information that is of such a sensitive nature that disclosure would result in
competitive harm, or damage its business or financial welfare, or cause damage to the reputation
or standing in the community of the parties, and such Material is not otherwise accessible to the
public.
3.

Confidential Material shall be subject to the following restrictions:
(a)

Confidential Material shall be used only for the purpose of this proceeding

and litigation (including appeals) and not for any business purpose, in any other litigation or
other proceeding, or for any other purpose whatsoever and shall not be given, shown, made
available, or communicated in any way to anyone except those to whom it is necessary that such
Material be given or shown for the purposes permitted under this paragraph, as set forth in
subparagraph (b) below;
(b)

Confidential Material shall be disclosed, for the purposes set forth above,

only to:
(i)

the parties;

(ii)

counsel of record for the parties and employees of counsel;

2

(iii)

the Court (including court reporters, stenographic reporters and

(iv)

any expert to whom Confidential Material is to be disclosed shall

Court personnel);

first be advised by the person making the disclosure that, pursuant to this Protective Order, such
persons shall not divulge such Material to any other person other than in accordance with this
Protective Order.

The attorney making the disclosure shall secure from each person a

declaration in the form attached as Exhibit A, stating that such person has read the Protective
Order and agrees to be bound by it. Further, each person to whom Confidential Material is
disclosed must be advised that violation of this Protective Order may constitute breach of
contract and possible contempt of a court order in the event a protective order is in place. Such
declaration shall be maintained in the possession of the attorneys securing the declaration until
further order of the Court, except that, upon request of opposing counsel, the counsel securing
the declaration shall provide a copy of the designation to opposing counsel.
(v)

any other person as to whom the producing person expressly

agrees in writing after the name of such person has been disclosed;
(vi)

any person as further ordered by the Court;

(vii)

officers, directors, and employees of the parties actually assisting

counsel of record or in-house counsel in preparation of this case;
(viii)

outside vendors performing clerical functions, but only for so long

as necessary to perform those services;
(ix)

witnesses in preparation for and/or during their examination as

witnesses at trial or in a deposition, but prior to such use the party taking the deposition shall
make reference to the confidentiality of the Confidential Material;

3

(x)

as to any specific document, any person who is identified on the

face of a confidential document as an author, addressee, or recipient of the document; and
(x)
(c)

all persons that the Parties may agree upon in writing.

All pleadings or other court filings which incorporate or disclose

Confidential Material shall be filed under seal electronically in accordance with the Court’s
CM/ECF Manual or, if permitted to be filed manually, in a sealed envelope or other container
marked on the outside with the title of the action, and identification of each item within and a
statement as follows:
“CONFIDENTIAL MATERIAL- SUBJECT TO PROTECTIVE ORDER”.
This envelope contains documents or transcripts which are subject to a Protective
Order entered by the Court. This envelope shall not be opened or the contents
thereof displayed or revealed except by specific further Order of Court or as is
allowed by the Protective Order entered in the action. Violation of this prohibition
may be treated as contempt of court.”
(d)

Any disclosure of Confidential Material at trial or in any other court

(e)

Confidential Material produced or disclosed without a “Confidential”

proceeding.

designation may be retroactively designated “Confidential” by notifying the other Party, within
thirty (30) days after the production or disclosure, in writing of the specific document bates
numbers or transcript pages and lines that should be treated as “Confidential.” If such notice is
timely provided, such retroactively designated Confidential Material will be treated accordingly
from the date written notice of the designation is provided to the recipient Party.
(f)

All Material produced by the Parties is subject to the following

“Clawback” provision of this Protective Order:

4

(i) Subject to the provisions of paragraph (3)(f)(ii) below, any production
of privileged or protected documents, materials, or electronic information will not result in a
waiver of privilege or protection, either in part or in whole or as to the subject matter.
(ii)

Any Party that produced documents, material or electronic

information that is privileged, protected, or otherwise exempt from discovery does not waive that
claim if, within thirty (30) days after the producing Party discovers that such production was
made, the producing Party provides written notice to the requesting Party identifying the material
or information produced and stating the privilege asserted. If the producing Party provides such
written notice, the requesting Party shall promptly return the specified material or information
and any copies to the producing Party and shall not use, otherwise disclose or seek to admit the
inadvertently produced material into evidence during trial or during pretrial proceedings.
4.

Each person given access to Confidential Material pursuant to the terms hereof

(other than persons described in paragraph 3(b)(ii) and 3(b)(iii), above) shall be advised that the
Confidential Material is being disclosed pursuant to and subject to the terms of this Protective
Order and may not be disclosed other than pursuant to the terms hereof. The signature on this
Protective Order of a member of a law firm acting as litigation counsel to a party shall constitute
an agreement by all lawyers and employees of that firm to be so bound.
5.

The failure of any party, attorney. or other person subject to this Protective Order

to abide by the terms and conditions hereof shall be referred to this Court for appropriate action.
6.

Confidential Material shall be designated as follows:
(a)

In the case of documents (including electronic media), designation shall be

made by placing the legend “CONFIDENTIAL” on the first page of any such document prior to

5

production.

Video will be designated as “CONFIDENTIAL” in the correspondence

accompanying its production, and on the outside of any CD’s.
(b)

In the case of interrogatory answers, designation shall be made by placing

the legend “CONFIDENTIAL” on each page of any answer that contains Confidential Material.
(c)

In the case of deposition testimony, counsel for the testifying person may

designate on the record at the time of the deposition those portions of testimony to be treated as
“Confidential.”

Those designated portions, if transcribed, shall be prepared in a separate

transcript marked as “Confidential,” and, if filed with the Court, shall be filed under seal
pursuant to paragraph (c) above.
(d)

All briefs, pleadings or other filings with the Court that incorporate or

disclose Confidential Material shall be appropriately labeled on the cover page and filed 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.
This Protective Order does not authorize filing under seal.
(e)

The Confidential Material will be kept in the custody and care of the

persons authorized to receive such Confidential Material under the provisions of Section 3 of this
Protective Order.
7.

(a)

No party concedes that any Material designated by any other person as

Confidential Material does in fact contain or reflect sensitive personal information, trade secrets,
proprietary or confidential information or has been properly designated as such. Any party may
at any time, on reasonable notice, move for
(i)

modification of this Protective Order, or

6

(ii)

relief from the provisions of this Protective Order with respect to

specific Material. In addition, the parties may agree in writing or on the record to necessary
modifications of this Protective Order.
(b)

A party shall not be obligated to challenge the propriety of the designation

of Material as Confidential Material at the time made, and failure to do so shall not preclude a
subsequent challenge thereof. If a party challenges such designation, it shall send or give notice
to the designating person, and they shall attempt to resolve any challenge in good faith on an
expedited and informal basis. If the challenge cannot be expeditiously and informally resolved,
either the designating person or the challenging party may, on reasonable notice, apply for
appropriate ruling(s) from the Court. The Material in issue shall continue to be treated as
designated Confidential until the Court orders otherwise.
8.

This Protective Order, insofar as it restricts the communication and use of

Confidential Material, shall continue to be binding throughout and after the conclusion of this
proceeding and litigation, including any appeals.
9.

Any Material which was possessed by a receiving party prior to its disclosure by

the producing party or comes within the possession of such other party through means not
constituting breach of this Protective Order need not be treated as Confidential Material under
the terms of this Protective Order.
10.

The parties do not waive any rights they may otherwise have by execution of this

Protective Order.

Nothing in this Protective Order shall prevent any party from seeking

modification, or from objecting to discovery that it believes to be improper. The Court may
enter such other and further orders that it deems appropriate and this Protective Order is without
prejudice to the right of any party to apply for another further order including, but not limited to,

7

a protective order providing greater protection for certain documents or categories of documents
and without prejudice to the parties agreeing to any modification thereof.
11.

Any non-party producing Material during discovery in the course of litigation,

pursuant to subpoena or otherwise may designate its Material in accordance with the terms of
this Protective Order.
12.

This Protective Order shall be submitted to Court with a request that it be

executed and filed by the Court, immediately upon execution by the Parties. Prior to approval by
the Court, this Protective Order shall be effective as if approved.
13.

At the conclusion of this case, counsel for Plaintiff and Defendant shall assemble

and return to opposing counsel, as soon as reasonably practical, all Confidential Material and any
abstracts, summaries, notes or other work product relating to the Confidential Material. Counsel
for Plaintiff and Defendant shall provide to opposing counsel a certificate that all Confidential
Material has been delivered to counsel. Until so returned, such Confidential Material shall
remain subject to this Protective Order. In the alternative, counsel for Plaintiff and Defendant
may confirm in writing that all Confidential Material has been destroyed.

IT IS SO ORDERED.

September 20, 2016.
s/ Michael R. Merz
United States Magistrate Judge

AGREED:

/s/ Barry S. Galen _________________
Barry S. Galen, Trial Attorney (0045540)

/s/ Robert Nichols
Robert H. Nichols, Trial Attorney (0060124)
8

22 S. St. Clair St.
Dayton, Ohio 45423
P: [phone]
F: [phone]
[e-mail]
Attorneys for Plaintiffs Eugene and
Doris Doherty

Juan Jose Perez (0030400)
Perez & Morris LLC
8000 Ravine’s Edge Court, Suite 300
Columbus, Ohio 43235
P: [phone]
F: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant Steak n Shake Inc. fka
Steak n Shake Operations, Inc.

9

EXHIBIT A
I certify my understanding that Confidential Material is being disclosed to me pursuant to
the terms and restrictions of the Protective Order dated September ___, 2016 in Eugene and
Doris Doherty v. Steak n Shake Operations, Inc., Case No. 3:16-cv-00315, before the United
States District Court, Southern District of Ohio, Western Division at Dayton, and that I have
been given a copy of and have read that Protective Order and agreed to be bound by it. I
understand that all Confidential Material and copies including, but not limited to, any notes or
other transcription made from such protected documents, shall be returned to counsel for the
party providing them or destroyed, no later than thirty (30) days after the termination of this
proceeding. I understand that violation of the Protective Order by me or anyone acting under my
direction may be treated as breach of contract and possibly contempt of court in the event a
protective order is in place.

Dated: ________________

__________________________________
Signature
__________________________________
Print Name
__________________________________
Address
__________________________________

10