IN THE UNITED STATES DISTRICT COURT 

FOR SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CAROL SHULTZ, et al.

 Plaintiffs, 

v. 

GRACELAND FITNESS, LLC, et al. 

 Defendants. 

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CIVIL ACTION NO.: 2:10-CV-1143 

JUDGE SMITH 

MAGISTRATE JUDGE ABEL 

______________________________________________________________________________ 

AGREED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT 

______________________________________________________________________________ 

To expedite the flow of discovery material and facilitate the prompt resolution of disputes 

over confidentiality and privilege, and pursuant to the Court’s authority under Federal Rule of 

Civil Procedure 26(c), it is ORDERED: 

I. Information Subject to Protective and Confidentiality Order 

1. This Order shall govern any document, information or other material which is 

designated as containing “Confidential Information” as defined herein, and is furnished by any 

party or by a third party in connection with this action. The form of information protected 

includes, but is not limited to, documents and things, responses to requests to produce documents 

or other things, responses to interrogatories, responses to requests for admissions, deposition 

testimony and exhibits, and all copies, extracts, summaries, compilations, designations and 

portions thereof. 

2. The term “Confidential Information” shall be interpreted to mean information not 

known or generally available to the public and shall include but not be limited to, trade secrets, 

other confidential and proprietary technical, research, or development information, commercial, 

financial, budgeting and/or accounting information, information about existing and potential 

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customers, marketing studies, and projections, business strategies, decisions and/or negotiations, 

personnel compensation, evaluations and other employment information, and confidential and 

proprietary information about affiliates, parents, subsidiaries and third parties with whom the 

parties to this action have had business relationships, as well as non-public information of a 

sensitive, personal and private nature such as business and personal financial information. 

3. The scope of this Order shall be understood to encompass not only those items or 

things which are expressly designated as Confidential Information, but also any information 

derived therefrom, and all copies, excerpts, and summaries thereof, as well as testimony and oral 

conversation derived therefrom or related thereto. 

4. A producing entity shall designate documents and materials as confidential only 

when the producing entity has a reasonable, good faith belief that the information so designated 

requires the special protection provided to information designated as confidential. 

II. Limitations on Disclosure of Confidential Information

5. Information designated as confidential pursuant to this Order, and any copies 

thereof, any information contained therein, and any notes, abstracts, or summaries made 

therefrom, shall not be disclosed in any matter to anyone other than the following: 

A. Outside and in-house counsel to the parties, and any attorneys, legal 

assistants, and clerical and secretarial personnel employed by such 

counsel assisting in the preparation of this action for trial; 

B. Testifying or consulting experts and consultants assisting in the 

preparation of this action for trial; 

C. The parties to this action or any affiliate, officer, director, owner, 

representative, or employee thereof; 

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D. Any person for whom deposition or trial testimony will be taken in this 

cause, provided that (i) only those portions of the confidential documents 

reasonably necessary for the testimony may be shown to that person, and 

(ii) that person may not retain any copies of such material; 

E. The Court, its personnel, any jury, court reporters, stenographers, 

videographers and persons preparing transcripts of testimony under the 

supervision of a court reporter, stenographer, or videographer; 

F. Other persons only in accordance with paragraph 7 of this Order; 

6. Except for those persons described in subsections A and E of paragraph 5, persons 

given access to Confidential Information are required to execute an “Acknowledgment of Agreed 

Protective and Confidentiality Order” in the form attached hereto as Exhibit A, and the signed 

copy shall be retained during the pendency of this action by lead counsel for the party who 

disclosed Confidential Information to that person. 

7. In the event that counsel for any party determines that the prosecution or defense 

of this action requires that Confidential Information be disclosed to persons not otherwise 

authorized herein, the party seeking to disclose such information shall provide all other parties 

written notice of the intended disclosure, which notice shall specify with particularity the 

Confidential Information to be disclosed and the identity of the otherwise unauthorized personnel 

not less than twenty days prior to disclosure. If any party objects to such disclosure to the party 

giving notice, and states with particularity the basis thereof; the Confidential Information shall 

not be disclosed unless the Court so orders or permits. 

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III. Manner of Designating Information as Confidential

As to Documents and Things Produced 

8. Any party may designate documents and materials produced in response to 

discovery as confidential by marking each page of the designated document with a stamp stating 

“Confidential” or marking the materials as “Confidential.” Instead of marking the originals, 

the party may mark the copies that are produced or exchanged. 

9. If documents are produced in electronic form and cannot be physically marked 

confidential, then the party shall communicate such designation in as clear and unambiguous a 

manner possible. 

10. Any confidential designation shall be without prejudice to any application to the 

Court to have any such designation removed prior to showing such document or material to any 

jury that may sit in the matter. 

As to Interrogatories and Other Written Discovery Responses

11. A party may designate answers and responses to written discovery as confidential 

by marking the first page of the discovery pleading with the appropriate designation, and by 

indicating the specific answer or response that contains Confidential Information. 

As to Confidential Information in Depositions

12. A party claiming that information contained or disclosed in a deposition is 

confidential may designate the information as such in one of the following ways: (a) during the 

deposition, the party may designate portions of the deposition as confidential by a statement on 

the record to this effect during the deposition; or (b) by a written statement furnished to opposing 

counsel of record within thirty (30) days of receipt of the deposition transcript noting the specific 

subject matter as confidential. 

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As to Summaries

13. Any summaries of documents or information marked confidential shall be marked 

with the designation: “Summary from Confidential Information” and shall be accorded the 

same status of confidentiality as the underlying documents marked confidential from which the 

summaries are made, and shall be subject to all of the terms of this Protective Order. 

IV. Use of Confidential Information in this Proceeding

14. Persons obtaining access to documents marked confidential under this Order shall 

use the information only for preparation, proceeding, motion practice and trial of this litigation 

(including appeals and retrials) and shall not, without the written permission of the producing 

party, use such information for any other purpose. 

15. For documents and materials marked confidential, such documents, if filed, shall 

be filed under seal and shall remain sealed so long as they retain their status as Confidential 

Information. 

16. If a party intends to use the Confidential Information of another party at any Court 

proceeding of this matter, the party shall use reasonable efforts to notify the designating party 

prior to the proceeding. 

17. Any party who believes that its Confidential Information may be disclosed in a 

hearing or at trial in this case may at any time move the Court to limit access to the courtroom 

and seal portions of the record to avoid disclosure. Any party who believes that its Confidential 

Information has been disclosed in a hearing or proceeding may designate those portions of the 

transcript or exhibits as confidential. 

V. Timing of Confidential Designations

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18. The inadvertent production of any Confidential Information, as well as the 

inadvertent production of information without an appropriate confidential designation, shall not 

be deemed a waiver or impairment of any claim of confidentiality. Upon receipt of notice from 

the producing party that Confidential Information has not been appropriately designated, 

reasonable efforts shall be used to treat all such information, and any analyses, memoranda, or 

notes generated therefrom, as confidential. 

VI. Challenge Procedure 

19. The parties shall confer in good faith about any disputes relating to the 

designation of Confidential Information and attempt to resolve such disputes. 

20. A party shall not be obligated to challenge the propriety of a confidential 

designation at the time the designation is made. A failure to immediately challenge the 

designation shall not waive any rights or prevent a later challenge. 

21. Any party may challenge and object to the designation of information as 

confidential by notifying the parties in writing. Such notice shall specify with particularity the 

information which is deemed to have been improperly designated as confidential and each reason 

why such material should not continue to be treated as confidential. Within 10 business days of 

such notice of objection, the parties will meet and confer regarding the dispute. If no informal 

resolution is reached at the meet and confer, the party seeking to retain the confidential 

designation shall file a motion for protective order stating the reasons and authorities supporting 

its claim to confidentiality within 10 business days of said determination. During the pendency 

of the meet and confer and the protective order proceedings, the information shall continue to be 

designated and treated as confidential. However, the party asserting that the material is 

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confidential retains the burden of proof to demonstrate that the information is confidential to the 

extent required by law. 

VII. Disposition of Confidential Information 

22. Within 60 days of the conclusion of the litigation: 

A. All copies and duplicates of all documents and materials designated 

confidential by a party shall be returned to that party, upon that party’s 

request, or destroyed if more feasible. 

B. All abstracts, summaries, electronic copies, or descriptions of such 

documents and materials shall be destroyed, upon that party’s request; and 

C. The parties shall provide written confirmation that they have complied 

with this paragraph, upon a party’s request. 

23. Notwithstanding the foregoing, nothing in this Order shall preclude outside 

counsel of record for the parties from retaining copies of pleadings in this case or attorney work 

product after the conclusion of the litigation that contain or reference Confidential Information. 

VIII. Miscellaneous Provisions

24. This Order is binding on each party hereto, their agents, employees, attorneys, 

parents, subsidiaries, and affiliates. In the event of a change in counsel, retiring counsel shall 

provide new counsel with a copy of this Order and fully instruct new counsel of their 

responsibilities under this Order. 

25. In the event that additional parties are named in this action, this Order shall apply 

equally to them. 

26. In the event that any party is served with any judicial process, court order, and/or 

administrative or regulatory order to compel production or disclosure of any documents, 

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materials, papers, testimony, or things that have been designated confidential, that party shall 

inform the other parties to this Order within five days of the receipt of such process or order. 

27. All provisions of this Order restricting the use of Confidential Information 

obtained during discovery shall continue to be binding after the conclusion of this action, 

including all appeals, until further order of the Court, unless the parties agree otherwise in 

writing. 

28. The Court shall retain jurisdiction over the parties, and over any person executing 

an undertaking to be bound by the terms of this Order, during the pendency of this action and for 

such time thereafter as is needed to carry out the terms of this Order. 

IX. Inadvertent Disclosure of Information 

28. Should any document or information designated as “CONFIDENTIAL” be 

disclosed, through inadvertence or otherwise, to any person or party not entitled to receive the 

information, then the parties intend to have such person automatically be bound by this Order 

and (i) such person shall be informed promptly of all the provisions of this Order by the 

disclosing party; (ii) such person be identified immediately to the producing party; (iii) the 

disclosing party shall use its best efforts to have such person sign Exhibit A to this Protective 

Order and forward to the requesting party; and (iv) the disclosing party shall use its best effort to 

retrieve and return such documents or information. If both parties agree that a disclosure of 

“Confidential” information was inadvertent, and the disclosing party has substantially complied 

with this paragraph, the producing party will not seek sanctions associated with the disclosure. If 

the disclosing party claims that the disclosure of “Confidential” information was inadvertent, and 

the producing party disagrees, the producing party agrees to meet and confer with the disclosing 

party before seeking sanctions associated with the disclosure. However, the parties reserve their 

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rights to dispute another party’s claim of inadvertence, and to seek sanctions associated with any 

disclosure a producing party believes was not inadvertent. 

SO ORDERED this ___ day of January, 2012: 

 s/Mark R. Abel 

 MAGISTRATE JUDGE MARK R. ABEL 

TENDERED BY: 

s/James B. Reese 

KU & MUSSMAN, P.A. 

12550 Biscayne Blvd., Suite 406 

Miami, FL 33181 

Tel.: (305) 891-1322 

Fax: (305) 891-4512 

James B. Reese, III, Esq. 

Bar ID No.:0081710 

Bogart & Reese LLC 

35 East Gay Street, Suite 500E 

Tel.: (614) 462-0290 

Fax: (305) 891-4512 

Email: jreese@reeseattorneys.com 

COUNSEL FOR PLAINTIFFS 

s/Mark T. Hayden

Mark T. Hayden 

Bingham Greenebaum Doll LLC 

2350 First Financial Center 

255 East Fifth Street 

Cincinnati, OH 45202 

Phone: (513) 455-7643 

Facsimile: (513) 455-8500 

Email: mhayden@bgdlegal.com

COUNSEL FOR DEFENDANTS 

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IN THE UNITED STATES DISTRICT COURT 

FOR SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CAROL SHULTZ, et al.

 Plaintiffs, 

v. 

GRACELAND FITNESS, LLC, et al. 

 Defendants. 

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CIVIL ACTION NO.: 2:10-CV-1143 

JUDGE SMITH 

MAGISTRATE JUDGE ABEL 

ACKNOWLEDGMENT OF 

AGREED PROTECTIVE AND CONFIDENTIALITY ORDER 

 

I hereby acknowledge that I have read the Agreed Protective and Confidentiality Order in 

the above-styled and numbered cause and I agree to be bound by its terms. I also agree to submit 

to the jurisdiction of the presiding court for enforcement of said Agreed Protective and 

Confidentiality Order. I further agree to return or destroy all Confidential Information I receive 

at the conclusion of this cause. 

_____________________ _______________________________ 

 Date Signature of Person to Be Bound 

 _______________________________ 

 Printed Name of Person to Be Bound 

 Address: ______________________ 

 ______________________ 

 Telephone number: ______________ 

4541867_1.docx 

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