IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

GREAT NORTHERN INSURANCE 

COMPANY, et al., 

 Plaintiffs 

vs. 

BMW OF NORTH AMERICA, et al. 

 Defendants. 

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Case No.: 2:11-cv-01153-ALM-MRA 

Judge Algenon L. Marbley 

PROTECTIVE ORDER 

NOW on this 22 day of March , 2013, for good cause shown and with the consent of the 

parties, it is hereby ordered and the parties hereby stipulate as follows: 

1. The purpose of this Stipulated Protective Order (the “Protective Order”) is to 

facilitate expeditious discovery and exchange of information and documents in the above 

captioned action (hereinafter the “Action”) and protect the interests of all Parties’ confidential 

and commercially-sensitive information and documents. 

2. This Protective Order shall govern the handling of documents, deposition 

exhibits, portions of any marked deposition transcripts, interrogatory responses, admissions, 

electronic data and any other information (hereinafter “information”) produced, governed or 

exchanged by and among any person or entity, whether a party or a nonparty (hereinafter 

“person”) and whether acting on its own or through counsel to the Action. 

3. The information contained or disclosed in material that has been designated as 

“Confidential” or “Confidential – Attorneys’ Eyes Only” in accordance with this Protective 

Order shall be referred to as “Protected Information.” Protected Information shall be used solely 

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for the purpose of this action (including any appeals), and not in any other litigation, and not for 

any business or other purpose whatsoever. 

4. Information containing trade secrets, proprietary research, product research and 

development, product design and manufacturing, or commercial or business information may be 

designated as confidential. A party may designate any other information as “Confidential” if the 

party believes in good faith that there is good cause to treat the information as confidential. 

5. Information may be marked “Confidential – Attorneys’ Eyes Only” only when a 

party reasonably believes that it contains proprietary and/or confidential information so sensitive 

that disclosure of such information to persons other than counsel and their non-party experts is 

likely to harm the designating person(s). 

6. Protected Information shall be prominently marked “Confidential” or 

“Confidential-Attorneys’ Eyes Only” by the disclosing party prior to furnishing such 

information. To designate any electronic information as confidential, a party shall stamp 

“Confidential” or Confidential – Attorneys’ Eyes Only” on the media on which the electronic 

information is produced, and any such designation will apply to the electronic content contained 

on that media. 

7. If a party inadvertently fails to designate Protected Information as “Confidential” 

or “Confidential – Attorneys’ Eyes Only” when that information is produced, disclosed, or 

otherwise provided in this litigation, the party shall give notice to the other parties of the 

inadvertent omission promptly upon discovery thereof. The information shall then be treated as 

if the designation of “Confidential” or “Confidential – Attorneys’ Eyes Only” had been made 

when the Protected Information was first produced, disclosed or otherwise provided in this 

litigation. 

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8. Information subject to a claim of attorney-client privilege or work product 

immunity inadvertently or mistakenly produced shall 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. Any person receiving information subject to a claim of attorney-client privilege or 

work product immunity shall return the original and all copies of such information to the 

disclosing party within ten (10) days after being notified of the inadvertent or mistaken 

disclosure. 

9. Confidential information produced by third parties may also be marked 

“Confidential” or “Confidential – Attorneys’ Eyes Only.” A party may designate Protected 

Information produced by third parties as confidential by providing a log to the other Parties. The 

log shall identify the Protected Information by Bates number, if available, or by description of 

the information for which it claims confidentiality under this Protective Order. The Parties will 

then prominently mark all such information in their possession as “Confidential” or 

“Confidential – Attorneys’ Eyes Only.” The designating party shall have thirty (30) days, which 

may be extended by agreement, to provide the log. 

10. Counsel shall not furnish any document or disclose any information designated as 

“Confidential” pursuant to this Protective Order except as provided herein: 

 a. A party may, without any waiver of “Confidential” status, disclose to any 

person “Confidential” information of which it is the source. 

 b. A party may disclose “Confidential” information of which it is not the 

source as follows: 

i. “Confidential” information may be used to take or defend 

testimony at any deposition, hearing or trial in this action subject to 

the requirements of paragraph 13. 

ii. “Confidential” information may be used in any oral or written 

argument in the case, subject to the requirements of paragraph 14. 

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Any transcript of any oral argument referring to “Confidential” 

information shall be made available only to persons qualified to 

receive “Confidential” documents and information under this 

Protective Order. 

iii. “Confidential” information may be shown to any witness or 

potential witness in interviews or in preparation for any deposition, 

hearing or trial, and at any deposition, hearing or trial subject to the 

requirements of paragraphs 11 and 13. 

11. “Confidential” information may be disclosed to the following persons (hereinafter 

“Qualified Persons”): 

a. Outside counsel subject to this Order for any party to this Action and their 

associates, paralegal, clerical or service support staff; 

b. In-house counsel for any party to this Action and their associates, 

paralegal, clerical or service support staff; 

c. Experts or consultants (including their employees and/or support staff) 

retained by a party to this Action; 

d. Deponents or hearing witnesses and court reporters, in accordance with 

paragraph 15. 

e. The court and its personnel; 

f. The parties; 

g. Any person agreed to in writing by the parties. 

12. Information stamped “Confidential – Attorneys’ Eyes Only” and produced in this 

Action may not be disclosed to any person other than those designated in subparagraphs 11(a), 

11 (c), 11(d), 11(e) and 11 (g). A party may, without any waiver of “Confidential – Attorneys’ 

Eyes only” status, disclose to any person “Confidential – Attorneys’ Eyes Only” information of 

which it is the source. 

13. Except as otherwise provided in this Protective Order, any disclosure or 

dissemination of Protected Information shall be preceded by execution of a declaration in a form 

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substantially similar to the Declaration attached as “Exhibit A.” Each executed Declaration shall 

be kept on file by counsel who obtained that Declaration and shall be available for inspection by 

the Court or a party’s counsel upon good cause shown. Counsel of record shall exchange the 

signed Declarations upon request at the conclusion of litigation. 

 While this Protective Order shall in all other respects apply to the following persons, 

declarations shall not be required of: 

 a. Counsel of record and legal, paralegal, clerical, secretarial, and other 

persons employed by counsel of record for any party on a regular basis 

and not solely for purposes of the instant litigation; 

 b. The parties, or their employees, officers, and directors, to the extent such 

disclosure pertains to “Confidential” information only and is necessary for 

the carrying out of their respective duties in connection with this litigation. 

 14. If it becomes necessary for a party to file Protected Information with the Court, 

either directly or as a part of another paper, the party shall file a motion for leave to file the 

documents under seal and file the documents according to Rule 79.3 of the Southern District of 

Ohio Civil Rules. 

 15. If a person believes that Protected Information belonging to it has been or may be 

disclosed in the course of any deposition (whether through any question, answer, colloquy and/or 

exhibit), then such person may designate the deposition, portion thereof, or exhibit as 

“Confidential” or “Confidential – Attorneys’ Eyes Only” by (1) stating on the record of the 

deposition that such deposition, portion thereof, or exhibit is “Confidential” or Confidential – 

attorneys’ Eyes Only” or by (2) stating in a writing served on counsel for the other party, up to 

thirty (30) days after receipt of such deposition transcript by the designating person, that such 

deposition, portion thereof, or exhibit is “Confidential” or Confidential – Attorneys’ Eyes Only.” 

The deposition transcript and exhibits shall be treated as “Confidential” in accordance with the 

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provisions of this Protective Order until written designation is made or the time within which to 

make such designation has expired. When a claim of confidentiality is made at any deposition, 

all persons in attendance who, by virtue of the terms of this Protective Order, do not have access 

to such Protected Information shall be excluded from attendance at the portion or portions of the 

deposition at which such Protected Information will be or might be disclosed. If any deposition, 

portions thereof, or exhibits are identified as “Confidential” or “Confidential – Attorneys’ Eyes 

Only,” then all originals, copies, and synopses thereof shall be marked in accordance with this 

Protective Order. If all or part of a videotaped deposition is designated as confidential, the video 

media shall be labeled “Confidential” or “Confidential – Attorneys’ Eyes Only.” Nothing in this 

Protective Order shall be construed to limit the right of the producing person to use its Protected 

Information for any purpose. 

 16. The “Confidential” or “Confidential – Attorneys’ Eyes Only” status of all 

Protected Information shall survive the conclusion of this litigation. At the conclusion of this 

litigation, everyone shall return that information (and all copies of that information) to the 

designating counsel of record. The designating party shall pay any shipping costs incurred in 

returning all information (and all copies of that information) at the conclusion of this Action. 

Upon request, counsel of record shall certify in writing that they have complied with this 

paragraph. Persons other than counsel of record to whom Protected Information has been 

disclosed also shall certify in writing that they have complied with this paragraph upon request 

by the designating party. 

 17. Upon request, the designating party agrees to store any and all documentation 

received from a party’s counsel for a specified time period, not to exceed seven (7) years from 

the conclusion of the Action. 

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 18. Nothing in this Protective Order shall affect the right of any party to seek greater 

protection than that provided for herein for any information including, but not limited to, 

defenses or objections to the discovery or production of information, and to the use or 

admissibility at trial of any evidence, whether or not comprise of information governed by this 

Protective Order. A party may seek relief from any of these provisions or challenge the 

designation of confidentiality of any information by motion to this Court with notice and an 

opportunity to be heard provided to all parties, and any third party producing such information. 

 19. If a party objects to another party’s designation of Protected Information, it shall 

advise the designating party in writing of the reasons for the objection, and the designating party 

shall have fifteen (15) days to review the matter. The party objecting shall attach a copy of the 

Protected Information subject to challenge or shall identify such information by production 

number or other appropriate designation and shall set forth in detail the reason for the objection. 

If the designating party decides to retain the “Confidential” or Confidential – Attorneys’ Eyes 

Only” designation, the objecting party may move for an order to remove the designation. The 

information at issue shall be treated as Protected Information until the Court rules on any such 

motion. For good cause shown, the objecting party may ask the Court to shorten the time 

periods allowed by this Paragraph. 

 20. This Protective Order shall be binding on any future party to this litigation who 

executes it. 

 21. This Protective Order shall continue in force after the completion of this litigation 

including, without limitation, any appeal therefrom. 

 22. In entering into this Protective Order, the parties preserve all rights and objections 

they may have in this lawsuit to the use of Protected Information. 

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 23. The provisions of this Protective Order may be modified upon written agreement 

of the parties or upon application to this Court for good cause shown. 

SO STIPULATED: 

This ____ day of __________, 2013 

Date: ___________________ 

 

___________________________________ 

Paul R. Bartolacci 

pbartolacci@cozen.com 

Cozen O’Conner 

1900 Market Street 

Philadelphia, PA 19103 

Attorney for Plaintiffs 

Date: ___________________ ___________________________________ 

Jonathan W. Philipp 

jonathan.philipp@zurichna.com 

Philipp & Gregory 

5005 Rockside Road 

Suite 200 

Independence, OH 44131 

Attorney for Defendant Brentlinger Enterprises 

Date: __________________ ___________________________________ 

Lawrence A. Sutter (0042664) 

John R. Conley (0084079) 

Sutter O’Connell 

3600 Erieview Tower 

1301 E. 9th Street 

Cleveland, Ohio 44114 

Phone: (216) 928-2200 

Fax: (216) 928-4400 

Attorneys for Defendants BMW of North America 

and BMW AG 

IT IS SO ORDERED: 

s/Mark R. Abel 

United States Magistrate Judge 

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IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

GREAT NORTHERN INSURANCE 

COMPANY, et al., 

 Plaintiffs 

vs. 

BMW OF NORTH AMERICA, et al. 

 Defendants. 

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Case No.: 2:11-cv-01153-ALM-MRA 

Judge Algenon L. Marbley 

NON-DISCLOSURE AGREEMENT 

By signing below, I acknowledge and agree as follows: 

 1. I have received and read a copy of the Protective Order entered by the United 

States District Court, Southern District of Ohio, Eastern Division in this case. 

 2. I agree to be bound by the terms of the Protective Order. I understand that 

documents and information which are to be disclosed to me by counsel of record for 

___________________________ (name of party) are to be used by me solely to assist such 

counsel in prosecution or defense of claims involved in the action Great Northern Insurance 

Company, et al. v. BMW of North America, et al. I further understand that a Protective Order 

entered by the Court, a copy of which has been shown to me and which I have read, prohibits me 

from either using such documents and information for any other purpose or disclosing such 

documents and information to any person other than counsel of record for 

______________________ (name of party) or person assisting them, or to the Court via report, 

deposition and/or testimony. In accepting disclosure of documents to me, I agree to be bound by 

that Protective Order and submit to the jurisdiction of the Court for the purposes of its 

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enforcement. At the conclusion of the case, or my involvement in the case, should that occur 

sooner, I will return all “Confidential” or “Confidential – Attorneys’ Eyes Only” information I 

have to the attorney who provided it to me. Upon request, I will confirm in writing that I have 

complied with the terms of the aforementioned Protective Order. 

 3. I submit to the jurisdiction of the United States District Court for the Southern 

District of Ohio, for purposes of enforcement of this Non-Disclosure agreement and the 

Protective Order. 

________________, 2013 

 ________________________________ 

 Signature 

 ________________________________ 

 Printed Name 

 ________________________________ 

 Address 

 ________________________________ 

 Address 

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