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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SCOTT EHLERS, et al., on behalf of ) 

himself and those similarly situated, ) 

 ) CASE NO. 2:10-cv-01147 

 Plaintiffs, ) 

 ) Judge Watson 

v. ) 

 ) Magistrate Judge King 

RESTORATION HARDWARE, INC., ) 

et al., ) 

 ) 

 Defendants. ) 

____________________________________) 

STIPULATED PROTECTIVE ORDER

1. PURPOSE AND LIMITATIONS 

Disclosure and discovery activity in this action may involve the production 

of confidential, proprietary, or private information for which special protection 

from public disclosure and from use for any purpose other than prosecuting this 

litigation would be warranted. Accordingly, the parties hereby stipulate to and 

petition the court to enter the following Stipulated Protective Order. The parties 

acknowledge that this Order does not confer blanket protections on all disclosures 

or responses to discovery and that the protection it affords extends only to the 

limited information or items that are entitled under the applicable legal principles 

to treatment as confidential. 

2. DEFINITIONS 

2.1 Party: any party to this action, including all of its officers, directors, 

employees, consultants, retained experts, and outside counsel (and their support 

staff). 

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2.2 Disclosure or Discovery Material: all items or information, regardless 

of the medium or manner generated, stored, or maintained (including, among other 

things, testimony, transcripts, or tangible things) that are produced or generated in 

disclosures or responses to discovery in this matter. 

2.3 “Confidential” Information or Items: information (regardless of how 

generated, stored or maintained) or tangible things that qualify for protection under 

standards developed under F.R.Civ.P. 26(c). 

2.4 Receiving Party: a Party that receives Disclosure or Discovery 

Material from a Producing Party. 

2.5 Producing Party: a Party or non-party that produces Disclosure or 

Discovery Material in this action. 

2.6 Designating Party: a Party or non-party that designates information or 

items that it produces in disclosures or in responses to discovery as “Confidential.” 

2.7 Protected Material: any Disclosure or Discovery Material that is 

designated as “Confidential.” 

2.8 Outside Counsel: attorneys who are not employees of a Party but who 

are retained to represent or advise a Party in this action. 

2.9 House Counsel: attorneys who are employees of a Party. 

2.10 Counsel (without qualifier): Outside Counsel and House Counsel (as 

well as their support staffs). 

2.11 Expert: a person with specialized knowledge or experience in a 

matter pertinent to the litigation who has been retained by a Party or its counsel to 

serve as an expert witness or as a consultant in this action and who is not a past or 

a current employee of a Party or of a competitor of a Party’s and who, at the time 

of retention, is not anticipated to become an employee of a Party or a competitor of 

a Party’s. This definition includes a professional jury or trial consultant retained in 

connection with this litigation. 

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2.12 Professional Vendors: persons or entities that provide litigation 

support services (e.g., photocopying; videotaping; translating; preparing exhibits or 

demonstrations; organizing, storing, retrieving data in any form or medium; etc.) 

and their employees and subcontractors. 

3. SCOPE 

The protections conferred by this Stipulation and Order cover not only 

Protected Material (as defined above), but also any information copied or extracted 

therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus 

testimony, conversations, or presentations by parties or counsel to or in court or in 

other settings that might reveal Protected Material. 

4. DURATION 

Even after the termination of this litigation, the confidentiality obligations 

imposed by this Order shall remain in effect until a Designating Party agrees 

otherwise in writing or a court order otherwise directs. 

5. DESIGNATING PROTECTED MATERIAL 

5.1 Exercise of Restraint and Care in Designating Material for Protection. 

Each Party or non-party that designates information or items for protection under 

this Order must take care to limit any such designation to specific material that 

qualifies under the appropriate standards. A Designating Party must take care to 

designate for protection only those parts of material, documents, items, or oral or 

written communications that qualify  so that other portions of the material, 

documents, items, or communications for which protection is not warranted are not 

swept unjustifiably within the ambit of this Order. 

Mass, indiscriminate, or routinized designations are prohibited. 

Designations that are shown to be clearly unjustified, or that have been made for an 

improper purpose (e.g., to unnecessarily encumber or retard the case development 

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process, or to impose unnecessary expenses and burdens on other parties), expose 

the Designating Party to sanctions. 

If it comes to a Party’s or a non-party’s attention that information or items 

that it designated for protection do not qualify for protection at all, or do not 

qualify for the level of protection initially asserted, that Party or non-party must 

promptly notify all other parties that it is withdrawing the mistaken designation. 

5.2 Manner and Timing of Designations. Except as otherwise provided in 

this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise 

stipulated or ordered, material that qualifies for protection under this Order must be 

clearly so designated before the material is disclosed or produced. 

Designation in conformity with this Order requires: 

(a) for information in document form (apart from transcripts of 

depositions or other pretrial or trial proceedings), that the Producing Party affix the 

legend “CONFIDENTIAL” at the top of each page that contains protected 

material. If only a portion or portions of the material on a page qualifies for 

protection, the Producing Party also must clearly identify the protected portion(s) 

(e.g., by making appropriate markings in the margins). 

A Party or non-party that makes original documents or materials 

available for inspection need not designate them for protection until after the 

inspecting Party has indicated which material it would like copied and produced. 

During the inspection and before the designation, all of the material made available 

for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has 

identified the documents it wants copied and produced, the Producing Party must 

determine which documents, or portions thereof, qualify for protection under this 

Order, and then, before producing the specified documents, the Producing Party 

must affix the appropriate legend (“CONFIDENTIAL”) at the top of each page 

that contains Protected Material. If only a portion or portions of the material on a 

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page qualifies for protection, the Producing Party also must clearly identify the 

protected portion(s) (e.g., by making appropriate markings in the margins). 

(b) for testimony given in deposition or in other pretrial or trial 

proceedings, that the Party or non-party offering or sponsoring the testimony 

identify on the record, before the close of the deposition, hearing, or other 

proceeding, all protected testimony, and further specify any portions of the 

testimony that qualify as “CONFIDENTIAL.” When it is impractical to identify 

separately each portion of testimony that is entitled to protection, and when it 

appears that substantial portions of the testimony may qualify for protection, the 

Party or non-party that sponsors, offers, or gives the testimony may invoke on the 

record (before the deposition or proceeding is concluded) a right to have up to 20 

days to identify the specific portions of the testimony as “CONFIDENTIAL.” 

Only those portions of the testimony that are appropriately designated for 

protection within the 20 days shall be covered by the provisions of this Stipulated 

Protective Order. 

Transcript pages containing Protected Material must be separately 

bound by the court reporter, who must affix to the top of each such page the legend 

“CONFIDENTIAL” as instructed by the Party or nonparty offering or sponsoring 

the witness or presenting the testimony. The designating party will be responsible 

for any additional costs imposed by the court reporting agency to create separately 

bound confidential excerpts of deposition transcripts. 

(c) for information produced in some form other than documentary, 

and for any other tangible items, that the Producing Party affix in a prominent 

place on the exterior of the container or containers in which the information or 

item is stored the legend “CONFIDENTIAL.” If only portions of the information 

or item warrant protection, the Producing Party, to the extent practicable, shall 

identify the protected “Confidential” portions. 

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5.3 Inadvertent Failures to Designate. An inadvertent failure to designate 

qualified information or items as “Confidential” does not waive the Designating 

Party’s right to secure protection under this Order for such material provided that 

the inadvertent failure to designate is corrected within thirty (30) days of 

production and prior to any public filing of the qualified information with the 

Court. If material is appropriately designated as “Confidential” within thirty (30) 

days after the material was initially produced and before any qualified information 

within the material is filed with the Court, the Receiving Party, on timely 

notification of the designation, must make reasonable efforts to assure that the 

material is treated in accordance with the provisions of this Order.

6. CHALLENGING CONFIDENTIALITY 

6.1 Timing of Challenges. Unless a prompt challenge to a Designating 

Party’s confidentiality designation is necessary to avoid foreseeable substantial 

unfairness, unnecessary economic burdens, or a later significant disruption or delay 

of the litigation, a Party does not waive its right to challenge a confidentiality 

designation by electing not to mount a challenge promptly after the original 

designation is disclosed. 

6.2 Meet and Confer. In the event a Party objects to another Party or nonparty’s designation of information as Confidential, it shall specify in writing to the 

Designating Party those materials or categories of materials the challenging Party 

contends should not be designated as Confidential (“Disputed Designations”) and 

the basis for such contention. The Parties will then meet and confer to attempt to 

resolve all Disputed Designations. If the parties are unable to resolve all Disputed 

Designations, any party may bring the matter to the Court for resolution. Until the 

Court rules on the challenge, all parties shall continue to afford the material in 

question the level of protection to which it is entitled under the Producing Party’s 

designation. 

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6.3 Burden of Persuasion. The burden of persuasion in any such 

challenge proceeding shall be on the Designating Party. 

7. ACCESS TO AND USE OF PROTECTED MATERIAL 

7.1 Basic Principles. A Receiving Party may use Protected Material that 

is disclosed or produced by another Party or by a non-party in connection with this 

case only for prosecuting, defending, or attempting to settle this litigation. Such 

Protected Material may be disclosed only to the categories of persons and under 

the conditions described in this Order. When the litigation has been terminated, a 

Receiving Party must comply with the provisions of section 11, below. 

Protected Material must be carefully maintained so as to limit access to only 

those persons entitled to receive such information. 

7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 

otherwise ordered by the court or permitted in writing by the Designating Party, a 

Receiving Party may disclose any information or item designated 

CONFIDENTIAL only to: 

(a) the Receiving Party’s attorneys in this action, as well as 

employees and agents of said attorneys to whom it is reasonably necessary to 

disclose the information for this litigation; 

(b) the officers, directors and employees (including House 

Counsel) of any Party to whom disclosure is reasonably necessary for this 

litigation; 

(c) the former officers, directors and employees of any Party to 

whom disclosure is reasonably necessary for this litigation and who have signed 

the “Agreement to be Bound by Protective Order” (Exhibit A); 

(d) experts (as defined in this Order) of the Receiving Party to 

whom disclosure is reasonably necessary for this litigation and who have signed 

the “Agreement to be Bound by Protective Order” (Exhibit A); 

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(e) the Court and its personnel; 

(f) court reporters and their staffs; 

(g) professional vendors to whom disclosure is reasonably 

necessary for this litigation and who have signed the “Agreement to be Bound by 

Protective Order” (Exhibit A); 

(h) any testifying witness or person whom a Party’s attorney 

believes is a potential witness, provided that no items designated as “Confidential” 

are left in the witnesses possession without that witness having signed the 

“Agreement to be Bound by Protective Order” (Exhibit A); 

(i) the author or recipient of the document or the original source of 

the information; 

(j) any person serving as a mediator or settlement administrator to 

whom disclosure is reasonably necessary for this litigation; 

(k) any person whom counsel for the Parties agrees should have 

access to such materials and who has signed the “Agreement to be Bound by 

Protective Order” (Exhibit A); and 

(l) any person entitled to receive Protected Material pursuant to a 

court order or compulsory process subject to the notifications set forth in Section 8 

below. 

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 

IN OTHER LITIGATION 

If a Receiving Party is served with a subpoena or an order issued in other 

litigation that would compel disclosure of any information or items designated in 

this action as “CONFIDENTIAL,” the Receiving Party must so notify the 

Designating Party in writing promptly, and in no event more than five court days 

after receiving the subpoena or order. Such notification must include a copy of the 

subpoena or court order. 

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The Receiving Party also must promptly inform in writing the Party who 

caused the subpoena or order to issue in the other litigation that some or all the 

material covered by the subpoena or order is the subject of this Protective Order. 

In addition, the Receiving Party must deliver a copy of this Stipulated Protective 

Order promptly to the Party in the other action that caused the subpoena or order to 

issue. 

The purpose of imposing these duties is to alert the interested parties to the 

existence of this Protective Order and to afford the Designating Party in this case 

an opportunity to try to protect its confidentiality interests in the court from which 

the subpoena or order issued. The Designating Party shall bear the burdens and the 

expenses of seeking protection in that court of its confidential material  and 

nothing in these provisions should be construed as authorizing or encouraging a 

Receiving Party in this action to disobey a lawful directive from another court or 

fail to comply with compulsory process. 

9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 

If a Receiving Party learns that, by inadvertence or otherwise, it has 

disclosed Protected Material to any person or in any circumstance not authorized 

under this Stipulated Protective Order, the Receiving Party must immediately (a) 

notify in writing the Designating Party of the unauthorized disclosures, (b) use its 

best efforts to retrieve all copies of the Protected Material, (c) inform the person or 

persons to whom unauthorized disclosures were made of all the terms of this 

Order, and (d) request such person or persons to execute the “Agreement to be 

Bound by Protective Order” that is attached hereto as Exhibit A. 

10. FILING PROTECTED MATERIAL 

All documents or parts thereof or testimony directly relating thereto that 

having been designated as CONFIDENTIAL and that are submitted to the Court 

prior to trial may be filed under seal with leave of Court. A party wishing to file a 

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CONFIDENTIAL document produced by the other party shall first contact the 

opposing party to determine whether that party requires said document(s) to be 

filed under seal. The party requesting that a document be filed under seal shall 

promptly file a motion with the Court requesting that such documents may be filed 

under seal. If the Court approves such a motion, the CONFIDENTIAL document 

shall be contained in a sealed envelope or envelopes on which shall be noted the 

caption of this case, the nature of the contents, the word CONFIDENTIAL and the 

following statement: 

This envelope contains material that was filed by [name of 

party]in Case No. 2:10-cv-01147 and is not to be opened by, 

nor may its contents be displayed or revealed to, anyone other 

than the Court or counsel in this case, except as otherwise 

directed by this Court. Such sealed documents shall be 

maintained in such condition by the Court subject to access and 

use for this action by the Court or counsel. 

Such sealed documents shall be maintained in such condition by the Court subject 

to access and use for this action by the Court or counsel. In the event that a filing 

deadline occurs prior to a ruling on a motion to file CONFIDENTIAL documents 

under seal, the filing party shall provisionally file such documents under seal until 

the Court rules upon the motion. If the Court denies a motion to file 

CONFIDENTIAL documents under seal, in whole or in part, the filing party shall 

promptly re-file the document in accordance with the Court’s order. 

 

 

11. FINAL DISPOSITION 

Within ninety (90) days after final termination of the Litigation, including all 

appeals, any person or Party who has received Protected Material shall destroy all 

physical objects and documents, including working copies, which contain 

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain 

an archival copy of all pleadings, motion papers, transcripts, legal memoranda, 

correspondence or attorney work product, even if such items contain Protected 

Material. Any such archival copies that contain or constitute Protected Material 

remain subject to this Protective Order as set forth in Section 4, above. 

12. MISCELLANEOUS 

12.1 Right to Further Relief. Nothing in this Order abridges the right of 

any person to seek its modification by the Court in the future. 

12.2 Right to Assert Other Objections. By stipulating to the entry of this 

Protective Order, no Party waives any right it otherwise would have to object to 

disclosing or producing any information or item on any ground not addressed in 

this Stipulated Protective Order. Similarly, no Party waives any right to object on 

any ground to the use in evidence of any of the material covered by this Protective 

Order. 

DONE AND ORDERED this 2d day of November, 2011. 

 

 s/ Norah McCann King 

 United States Magistrate Judge 

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APPROVED: 

Dated: November 2, 2011 

By: /s John M. Kuhl 

John M. Kuhl (0080966) 

Vorys, Sater, Seymour and Pease LLP 

52 East Gay Street, P.O. Box 1008 

Columbus, Ohio 43216-1008 

Telephone: (614) 464-6400 

Facsimile: (614)719-4810 

E-mail: jmkuhl@vorys.com 

Counsel for Defendant Restoration 

Hardware, Inc. 

APPROVED: 

Dated: November 2, 2011 

By: /s John Stock (per telephone authority)

Jonathan K. Stock (0065637) 

Shawn J. Organ (0042052) 

ORGAN STOCK, LLP 

1335 Dublin Road, Suite 104D 

Columbus, Ohio 43215 

Telephone: (614) 481-0900 

Facsimile: (614) 481-0904 

E-mail: jkstock@organstocklaw.com 

E-mail: sjorgan@organstocklaw.com 

Counsel for Plaintiffs Scott Ehlers and Frank 

Harmon 

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EXHIBIT A 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SCOTT EHLERS, et al., on behalf of ) 

himself and those similarly situated, ) 

 ) CASE NO. 2:10-cv-01147 

 Plaintiffs, ) 

 ) Judge Watson 

v. ) 

 ) Magistrate Judge King 

RESTORATION HARDWARE, INC., ) 

et al., ) 

 ) 

 Defendants. ) 

____________________________________) 

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

 The undersigned hereby acknowledges that he/she: (1) has read the foregoing Protective 

Order; (2) understands the terms of the Protective Order; (3) agrees to be bound by the terms of 

the Protective Order; and (4) agrees to submit to the jurisdiction of the United States District 

Court for the Southern District of Ohio for the enforcement of the Protective Order. 

____________________________________ ____________________________________ 

Signature Date 

____________________________________ 

Corporation 

____________________________________ 

Printed Name and Title 

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