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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROSE COULTER-OWENS, 

individually, and on behalf of all others 

similarly situated, 

 Plaintiff, 

 v. 

RODALE INC., a Pennsylvania 

Corporation, 

 Defendant.

Case No. 2:14-cv-12688

Honorable Robert H. Cleland 

CONFIDENTIALITY AGREEMENT 

AND STIPULATED PROTECTIVE ORDER 

This Confidentiality Agreement and Stipulated Protective Order (“Order”) is 

entered into between Plaintiff Rose Coulter-Owens (“Coulter-Owens”) though her 

counsel, and Defendant Rodale Inc. (“Rodale”) through its counsel, (collectively, the 

“Parties”); 

WHEREAS, in the course of this litigation, the Parties have sought or may 

seek certain discovery from one another or from certain third parties (each, a “NonParty”), including through service of document requests, interrogatories, 

depositions, and otherwise as provided by the Federal Rules of Civil Procedure 

and the Local Rules of this Court (“Discovery Requests”); and 

To expedite the exchange of discovery materials, to facilitate the prompt 

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resolution of disputes over confidentiality, and to protect discovery material 

entitled to be kept confidential, the Parties stipulate and agree as follows: 

1. This Order applies to all information, documents and things 

exchanged in or subject to discovery in this litigation produced on or after April 27, 

15 by a Party or a Non-Party (each a “Producing Person”) in response to or in 

connection with any request for information or discovery related to the litigation, 

including without limitation, deposition testimony (whether based upon oral 

examination or written questions), interrogatories, answers to interrogatories, 

requests for admission, responses to requests for admission, documents (consistent 

with the definitions of Rule 1001 of the Federal Rules of Evidence) and things 

produced (including documents and things produced to the receiving Party for 

inspection and documents and things provided to the receiving Party, whether in the 

form of originals or copies) as well as any and all copies, abstracts, digests, notes, 

summaries, and excerpts thereof, except as provided in Paragraph 15 below 

(collectively referred to as “Discovery Material”).

2. The Parties agree that the Parties shall submit this Order to the Court, 

without alteration, to serve as a Stipulated Protective Order for governing 

information exchanges and discovery. The Parties expressly agree to abide by the 

terms of this agreement even if this Order is not entered by the Court for any reason, 

unless the Court otherwise determines. 

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3. A Producing Person may designate Discovery Material as 

“Confidential” if such Producing Person believes in good faith (or with respect to 

documents received from another person, has been reasonably advised by such other 

person) that such Discovery Material constitutes or includes information: (i) that has 

not been made public and that the Producing Person would not want to be made 

public in the ordinary course of its activities, including, but not limited to, 

technical, business, financial, personal or other information of a nature that can be 

protected under Federal Rule of Civil Procedure 26(c), including but not limited 

to information containing or concerning Rodale’s customers’ information; or (ii) 

that the Producing Person is under a preexisting obligation to a third-party to 

treat as confidential; (iii) that the Producing Person has in good faith been 

requested by another Party or Non-Party to so designate on the ground that such 

other Party or Non-Party considers such material to contain Information that is 

confidential or proprietary to such Party or Non-Party; or (iv) records or information 

containing data prohibited from public disclosure as delineated in the Michigan 

Video Rental Privacy Act, M.C.L §§ 445.1711–15. 

4. Where reasonably practicable, any Confidential Material shall be 

designated by the Producing Person as such by marking every such page 

“Confidential.” Such markings should not obliterate or obscure the content of the 

material that is produced. Where marking every page of such materials is not 

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reasonably practicable, such as with certain native file documents, a Producing 

Person may designate material as “Confidential” by informing the person to whom 

the material is provided, in writing in a clear and conspicuous manner at the time of 

production of such material, that such material is “Confidential.” 

5. Any Discovery Material designated “Confidential” may be used solely 

for the prosecution, defense or settlement of this litigation and shall not be used by 

any other Party, other than the Party that produced it, in any other proceeding, for 

business, competitive, or publicity purposes, or for any other purpose whatsoever. 

Nothing herein, however, shall restrict any Party’s use of documents obtained from 

any source other than another Party or Non-Party during discovery in this litigation, 

regardless of whether such documents are also produced in discovery in this 

litigation. 

6. Confidential Material shall be given, shown, made available to or 

communicated only to the following: 

a. Parties and their Directors, Officers and Employees; 

b. insurers and auditors of any party to assist with the assessment of 

this litigation, including any of their employees, support staff, or 

independent contractors; 

c. outside counsel and staff working under the express direction 

of the Parties; 

d. inside counsel for Rodale and their staff; 

e. the Court overseeing this litigation, and its officers and clerical 

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staff; 

f. experts and consultants (and their respective staff) that are 

retained in connection with this litigation; 

g. any person who is indicated on the face of a document to have 

been an author, addressee or copy recipient thereof, provided, 

however, that a person identified solely in this subparagraph 

shall not be permitted to retain copies of such Confidential 

Material; 

h. any deponent or witness who was noticed for a deposition, or 

is on a witness list for hearing or trial, during or in preparation 

for his or her noticed deposition, hearing or trial testimony where 

such Confidential Material is determined by counsel in good faith 

to be necessary to the anticipated s u b j e c t matter of testimony, 

provided, however that such Confidential Material can only be 

shared with such person in connection with preparation for the 

anticipated testimony, and the persons identified in this 

paragraph shall not be permitted to retain copies of such 

Confidential Material; 

i. outside photocopying, graphic production services, or 

litigation support services; 

j. court reporters, stenographers, or videographers who record 

deposition or other testimony in the litigation; and 

k. any other person or entity with respect to whom the Producing 

Person may consent in writing. 

 7. Before any person or their representative identified in Paragraph 6(f) 

through 6(k) is given access to Discovery Materials designated “Confidential,” if 

allowed by this Order, such person or their representative shall be provided with a 

copy of this Order and shall acknowledge in a written statement, in the form 

provided as Exhibit A hereto, that he or she read the Order and agrees to be bound 

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by the terms thereof. Such executed forms shall be retained in the files of counsel for 

the Party who gave access to the Discovery Materials designated as “Confidential” 

to the person who was provided such access. Such executed forms shall not be 

subject to disclosure under the Federal Rules of Civil Procedure or the Local Rules 

of this Court unless a showing of good cause is made and the Court so orders.

8. Any Party wishing to use Confidential Material in a filing must follow 

Local Rule 5.3 regarding the filing of civil materials under seal, specifying 

precisely what the parties wish to be kept under seal and making a particularized 

showing of good cause as to why the Court should depart from the strong 

presumption against sealing any court records to public inspection. The party must 

also file a redacted public version of the document in which only the specific, 

narrowly drawn material that the party claims is confidential is redacted from the 

document. Where a Party seeks and receives permission for the Court to file such 

material under seal, the Party must comply with Local Rule 83.31(a)(3)(B), which 

requires that “[s]ealed filings authorized by statute, rule, or court order in 

accordance with LR 5.3 must have the Court order or notice of filing under seal 

affixed to the top of the sealed envelope [and] may be delivered to the clerk's 

office.” Each filing party will make a good faith effort to file Confidential Material 

under seal. If Confidential Material is not accepted for filing by the Court under 

seal, then such Confidential Material shall be filed or presented as the Court 

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instructs. 

9. The limitations on disclosure in this Order shall not apply to any 

Discovery Materials offered or otherwise used by any Party at trial or any hearing 

held in open court except as provided in this paragraph. Prior to the use of any 

Confidential Material at trial or any hearing to be held in open court, counsel for any 

Party (whether or not a Producing Person) who desires to so offer or use such 

Confidential Material shall meet and confer with the Producing Person together with 

any other Parties who have expressed interest in participating in such meet and 

confer to discuss ways to redact or limit disclosure of the Confidential Material so 

that the material may be offered or otherwise used by any Party. If the Parties are 

unable to resolve a dispute involving such redaction, the Party seeking to use such 

materials at trial or any hearing may then move the Court to resolve any such 

dispute.

10. In the case of depositions, if counsel for a Party or Non-Party 

believes that a portion or all of the testimony given at a deposition constitutes 

Confidential Material of such Party or Non-Party, counsel shall so state on the 

record and shall request that the entire transcript or the relevant portion of testimony 

be sealed. The court reporter, who shall first have agreed to abide by the terms of 

this Order, shall be instructed to include on the cover page of each sealed 

transcript the legend: “This transcript portion contains information subject to a 

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Protective Order and shall be used only in accordance therewith.” In addition, each 

page of the transcript containing information designated as Confidential shall 

include the legend “Confidential.” If the deposition is videotaped, the videotape 

shall be subject to the same level of confidentiality as the transcript and the cover of 

the videotape shall include the legend “Confidential” as appropriate, if any portion 

of the transcript itself is so designated. When testimony designated as Confidential 

during a deposition, persons not entitled to receive such information under the 

terms of this Order shall be excluded from the portion of the deposition so 

designated. In addition, any Party or Non-Party may designate the transcript or 

videotape of a deposition as Confidential within seven (7) court days of the Party’s 

or Non-Party’s receipt of the final transcript from the court reporter. Such 

designation and notice shall be made in writing to the court reporter, with copies to 

all other counsel, identifying the portion(s) of the transcript that constitute items 

designated as Confidential Material, and directing the court reporter to place the 

same under seal as provided in this Paragraph 10. Until expiration of the aforesaid 

seven (7) court day period following receipt of the transcript by the Parties, all 

deposition transcripts and videotapes shall be considered and treated as Confidential 

unless otherwise agreed on the record at the deposition. Nothing in this Paragraph 

10 shall apply to or affect the confidentiality designations on documents or materials 

entered as exhibits at depositions. 

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11. Nothing herein shall be a waiver or relinquishment by any person of 

any right to object to any discovery request, or to the admission of evidence on any 

ground, or to seek any further protective order, or to seek relief from the Court or 

any other applicable court from any provision of this Order by application on notice 

on any grounds. 

12. If any receiving Party objects to the designation of any Discovery 

Material as Confidential” (whether such designation is made on a permanent basis or 

temporary basis with respect to deposition testimony), the receiving Party shall first 

raise the objection with the Party responsible for such designation, and seek to 

confer in good faith by telephone or in person to attempt to resolve any dispute 

respecting the terms or operation of this Order. If such a dispute cannot be resolved 

after such objection is first raised, the objecting Party may then move the Court to 

do so. Any party may request expedited treatment of any motion challenging the 

designation of material or information as confidential. Until the Court rules on such 

an issue, the Discovery Material shall continue to be treated as designated. Upon 

motion, the Court may order the removal of the “Confidential” designation from any 

Discovery Material so designated subject to the provisions of this Order. In 

connection with any motion concerning the propriety of a “Confidential” 

designation, the Party objecting to the designation shall bear the burden of proof. 

13. A receiving Party shall not b e o b l i g e d t o c h a l l e n g e t h e 

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p r o p r i e t y o f a confidentiality designation at the time made, and a failure to do 

so shall not preclude a subsequent challenge thereto. The failure of any Party to 

challenge the designation by another production Party of Discovery Materials as 

“Confidential” during the discovery period shall not be a waiver of that Party’s right 

to object to the designation at trial.

14. To the extent that any Party has documents or information that (i) were 

already in its possession as of April 27, 15; (ii) are received or become available to a 

Party on a proper non-confidential basis not in violation of an obligation of 

confidentiality to any other person; or (iii) are published or become publicly 

available in a manner that is not in violation of this Order or of any obligation of 

confidentiality to any other person, including a Party, nothing in this Order shall 

limit that Party’s ability to use such documents in a deposition, hearing, trial or 

otherwise in connection with this litigation. Nothing in this Order shall affect the 

obligation to continue to comply with any confidentiality obligation to another 

person, including a Party, with respect thereto.

15. Within 30 days of the conclusion of the litigation, including all 

appeals as to all Parties, all Confidential Material, and all copies or notes thereof in 

the possession of any person (other than the Court), shall be returned to counsel for 

the respective Producing Person or destroyed, except that counsel may retain their 

work product and copies of court filings, transcripts, and exhibits, provided said 

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retained documents will continue to be treated as provided in this Order. If a person 

in possession of Confidential Material destroys documents after the conclusion of 

these proceedings, that person shall certify such destruction to opposing counsel. 

Notwithstanding anything in this paragraph, to the extent that the information in the 

Confidential Material remains confidential, the terms of this Order shall remain 

binding. 

16. This Order applies to all Non-Parties that are served with subpoenas in 

connection with the litigation or who otherwise produce documents or are noticed 

for deposition in connection with the litigation, and all such Non-Parties are entitled 

to the protection afforded hereby upon signing a copy of Exhibit A to this Order and 

agreeing to be bound by its terms.

17. Any Party may move to modify the provisions of this Order at any 

time or the Parties may agree by written stipulation, subject to further order of the 

Court if applicable, to modify the provisions of the Order. 

18. Any person or Party subject to this Order that may be subject to a 

motion or other form of legal process or any regulatory process or demand seeking 

the disclosure of another Party’s or Non-Party’s information designated under one of 

the categories of confidentiality pursuant to this Order: (i) shall promptly notify that 

Party or Non-Party to enable it to have an opportunity to appear and be heard on 

whether that information should be disclosed, and (ii) shall not provide such 

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materials unless required by law or regulation with the consent of the Producing 

Person. 

19. Nothing in this Order affects the right of any Producing Person that 

designates material “Confidential” to use or disclose such material in any way. 

Such disclosure will not waive the protections of this Order and will not entitle 

other Parties, Non-Parties, or their attorneys to use or disclose such material in 

violation of this Order, except that if the Producing Person uses such material in a 

manner inconsistent with its confidential status, then that will serve as a basis to 

object to the designation.

20. Except as provided in this paragraph, following a Producing Person’s 

production or dissemination of Discovery Material, the failure to designate 

particular Discovery Material as “Confidential” at the time of production shall not 

operate to waive a claim that the Discovery Material is “Confidential.” No Party 

shall be deemed to have violated this Order if, prior to notification of any later 

designation, such Discovery Material has been disclosed or used in a manner 

inconsistent with the later designation. Once such a designation has been made, 

however, any such Discovery Material shall be treated as “Confidential” in 

accordance with this Order; provided, however, that if the Discovery Material that 

was not designated is, at the time of the later designation, filed with a court on the 

public record, the Party or person that failed to make the designation shall move for 

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appropriate relief. If an omitted “Confidential” designation is first claimed during 

the course of a deposition or hearing, the subject Discovery Material will be used 

during that day’s deposition or hearing as though such designation had been 

previously made.

21. If information or documents subject to a claim of privilege or of 

protection as trial preparation material are produced on or after April 27, 15, such 

production will in no way prejudice or otherwise constitute a waiver of, or estoppel 

as to, any claim of privilege or work-product immunity for such information either 

in connection with the litigation or in any other state or federal proceeding. If 

information or documents produced on or after April 27, 15, are subject to a claim of 

privilege or of protection as trial preparation material, the Producing Person making 

the claim may notify any Party or Non-Party that received the information of the 

claim and the basis for it. After being notified, a Party or Non-Party must 

promptly return or destroy the specified information and any copies it has; must not 

use or disclose the information until the claim is resolved; must take reasonable 

steps to retrieve the information if the party disclosed it before being notified; and 

may promptly present the information to the court under seal for a determination of 

the claim. The Producing Person must preserve the information until the claim is 

resolved. Nothing herein shall be construed to prejudice any Party’s right to 

argue that any document or information is or is not privileged under applicable law.

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22. Nothing herein shall be deemed to prevent a Party or Non-Party from 

objecting to discovery or asserting that information being sought in discovery is of 

such a nature that discovery should not be afforded because of the confidential, 

personal or proprietary nature of the information being sought or to preclude a 

Party or Non-Party from seeking additional or further limitations on the use or 

disclosure of such information. 

23. Plaintiff Rose Coulter-Owens expressly consents to allow the 

production to the Parties and their counsel those records or information concerning 

her purchase, lease, rental, or borrowing of Rodale’s Prevention magazine that 

indicates her identity as Confidential Information for purposes of this litigation, 

pursuant to Section 3 of the Michigan Video Rental Privacy Act, M.C.L. § 

445.1713. This Court enters this Order pursuant to M.C.L. § 445.1713 subject to the 

safeguards imposed by the remainder of this Order for Confidential Information. 

24. The provisions of this Order shall survive the final termination of the 

litigation for any retained Confidential Material. 

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IT IS SO STIPULATED. 

 Respectfully submitted, 

Date: April 27, 2015 ROSE COULTER-OWENS, individually and 

on behalf of all others similarly situated, 

 /s/ Benjamin S. Thomassen 

 One of Plaintiff’s attorneys 

 

Ari J. Scharg 

ascharg@edelson.com 

Benjamin S. Thomassen 

bthomassen@edelson.com 

EDELSON PC 

350 North LaSalle Street, Suite 1300 

Chicago, Illinois 60654 

Tel: 312.589.6370 

Fax: 312.589.6378 

 

Henry M. Scharg – P28804 

hmsattyatlaw@aol.com 

LAW OFFICE OF HENRY M. SCHARG

718 Ford Building 

Detroit, Michigan 48226 

Tel: 248.596.1111 

Fax: 248.671.0335 

 

Counsel for Plaintiffs and the putative Class 

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Date: April 27, 2015 RODALE INC., 

/s/ Natalie J. Spears 

One of Defendant’s attorneys 

Natalie J. Spears 

Anthony T. Eliseuson 

Kristen C. Rodriguez 

DENTONS US LLP 

233 South Wacker Drive 

Suite 7800 

Chicago, IL 60606 

(312) 876-8000 

(312) 876-7934 (fax) 

natalie.spears@dentons.com 

anthony.eliseuson@dentons.com 

kristen.rodriguez@dentons.com 

Peter B. Kupelian (P31812) 

Carol G. Schley (P51301) 

CLARK HILL PLC 

151 South Old Woodward Ave. 

Suite 200 

Birmingham, MI 

48009pkupelian@clarkhill.com 

cschley@clarkhill.com 

 

IT IS SO ORDERED 

Dated: April 27, 2015 S/Robert H. Cleland 

 Honorable Robert H. Cleland 

 United States District Judge 

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Exhibit A

DECLARATION OF ACKNOWLEDGEMENT AND AGREEMENT TO BE 

BOUND BY THE CONFIDENTIALITY AGREEMENT AND STIPULATED 

PROTECTIVE ORDER

I, , declare under penalty of perjury that:

1. My address is .

2. My present employer is .

3. My present occupation or job description is 

 .

4. I hereby certify and agree that I have read and understand the terms of 

the Stipulated Protective Order relating to the litigation between Coulter-Owens and 

Rodale. I further certify that I will not use “Confidential” information for any 

purpose other than this litigation, and will not disclose or cause “Confidential” 

information to be disclosed to anyone not expressly permitted by the Order to 

receive “Confidential,” as applicable, information. I agree to be bound by the terms 

and conditions of the Order. 

5. I understand that I am to retain in confidence from all individuals not 

expressly permitted to receive information designated as “Confidential,” whether at 

home or at work, all copies of any materials I receive which have been designated as 

“Confidential,” and that I will carefully maintain such materials in a container, 

drawer, room or other safe place in a manner consistent with the Order. I 

acknowledge that the return or destruction of “Confidential” material shall not 

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relieve me from any other continuing obligations imposed upon me by the Order. 

6. I acknowledge and agree that I am aware that by receiving materials 

designated “Confidential” (a) I may be receiving material non-public information 

about companies and (b) there exist laws, including federal securities laws, that may 

restrict or eliminate the sale or purchase of securities and debt of the such companies 

as a result of the receipt of such information. 

7. I stipulate to the jurisdiction of this Court solely with respect to the 

provisions of the Order. 

Date: 

(Signature) 

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