IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ANTHONY J. CASALE, : Case No. 2:11-CV-1124 

 : 

 Plaintiff, : Judge Watson 

 : 

 v. : Magistrate Judge Abel 

 : 

NATIONWIDE CHILDREN’S : 

HOSPITAL, : 

 : 

 Defendant. 

: 

STIPULATED PROTECTIVE ORDER

Defendant Nationwide Children’s Hospital, (“Defendant”) and Plaintiff Anthony J. 

Casale (“Plaintiff”) have asked the Court to enter a protective order in the above-captioned case 

to facilitate the exchange of discovery materials among the parties, to protect confidential 

business or proprietary information. The Court, having considered the motion and for good 

cause, hereby enters the following protective order pursuant to the Court’s authority under 

Fed.R.Civ.P. 26(c): 

 IT IS HEREBY ORDERED that “Confidential Information”, as defined herein, produced 

by the parties is hereby subject to the terms of this Order and is produced pursuant to and 

because of this Order. 

 IT IS HEREBY FURTHER ORDERED: 

A. Definition of Confidential Information

1. “Confidential Information,” as used in this Order means any confidential, 

sensitive or proprietary information produced or provided during the course of this action which 

is stamped by the party producing the material with the notation “Confidential” or “Confidential 

– Attorneys’ Eyes Only” to signify that it contains documents, information or testimony believed 

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to be Confidential Information pursuant to paragraph B hereof. For purposes of this Agreement 

and Order, the term “document” shall have the meaning as defined in Federal Rule of Civil 

Procedure 34(a). 

B. Procedure for Designating Material as Confidential Information

1. A party producing “Confidential Information” shall designate the material as 

confidential by stamping or otherwise marking the notation “Confidential” or “Confidential – 

Attorneys’ Eyes Only” on the first page of such designated document or by other means that 

notifies the parties that the information is subject to this Protective Order. In lieu of marking 

originals, the producing party may mark copies of the documents that are produced or 

exchanged. With respect to electronic data or information, the designating party may designate 

such material as confidential by marking the notation “Confidential” or “Confidential – 

Attorneys’ Eyes Only” on a label affixed to the disk, tape, or other medium on which the 

information is stored or by other means that notifies the parties that the information is subject to 

this Protective Order. 

2. All depositions, including any document marked as an exhibit or otherwise 

appended to the deposition, shall be treated as confidential under the terms of this Protective 

Order if designated at any time during a deposition or within ten (10) days after receipt of a 

deposition transcript. During that ten (10) day period, all transcripts and the information 

contained in them will be deemed to be confidential in their entirety under the terms of this 

Protective Order. Where practical, the party making such a designation will indicate the pages or 

sections of the transcript that are to be treated as confidential. All copies of deposition 

transcripts that contain Confidential Information shall be prominently marked “Confidential” or 

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“Confidential – Attorneys’ Eyes Only” on the cover and, if filed with any court, be filed under 

seal. 

3. All Confidential Information in any affidavits, briefs, memoranda, or other papers 

filed with any court shall be designated as “Confidential” or “Confidential – Attorneys’ Eyes 

Only” and filed under seal. 

4. A party may designate as Confidential Information any documents, information or 

testimony produced or furnished in this matter by it or a non-party who came into possession of 

such information under circumstances in which the confidentiality was not waived as a matter of 

law, including, but not limited to, attorneys, experts, accountants, consultants, health care 

providers, appraisers, agents and employees, by informing opposing counsel in writing of such 

designation within twenty (20) business days of receipt of the document, information or 

testimony. 

5. Inadvertent production of any document or information without a designation of 

“Confidential” will not be deemed to waive a party’s claim to its confidential nature or estop that 

party from designating the document or information as “Confidential” at a later date through a 

supplemental written notification. Upon receipt of such a supplemental written notice, counsel 

for the Receiving Party shall undertake to recover from any person to whom such Confidential 

Information was disclosed all copies and abstracts of the Confidential Information that is the 

subject of the supplemental written notice and shall instruct all persons who viewed the material 

as to the appropriate treatment thereof. Disclosure of the document or information by the other 

party prior to such later designation shall not be deemed a violation of the provisions of this 

Order. 

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C. Qualified Persons with Access to Confidential Information

The designation of documents, information or testimony as Confidential Information 

shall mean that such shall be used only for the litigation, trial and/or settlement of this action and 

shall not be disclosed or transmitted, verbatim or in substance, to anyone except the following: 

1. The attorneys of record in this action and their associated attorneys, legal 

assistants, and staff members working on the action to the extent reasonably necessary to render 

professional services in the action; 

2. The named parties to this litigation, their agents, and witnesses provided that they 

first agree to be bound by this Order; 

3. Independent consultants and/or experts retained by the parties or counsel to work 

on the action who agree to abide by this Order, provided that before making disclosure of 

Confidential Information to outside experts or consultants, the party must obtain an agreement in 

writing from such person reciting that he or she has read a copy of this Protective Order and 

agrees to be bound by its provisions including, without limitation, that he or she will not use the 

Confidential Information for any purpose other than this litigation and will return all 

Confidential Information that has been provided to him or her at the conclusion of the litigation 

(including any appeals); 

4. Such persons as the undersigned counsel shall mutually consent to in writing or 

on the record prior to the proposed disclosure 

5. Stenographic reporters engaged for depositions or other proceedings necessary to 

the conduct of the action; 

6. The Court and Court personnel. 

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D. Restrictions on the Use and Disclosure of Confidential Information

1. Persons obtaining access to items designated as “Confidential” shall use the 

information solely for the litigation, trial and/or settlement of this action. 

2. Confidential Information shall not be shown to (except in connection with an 

interview conducted by or under the supervision of counsel) and copies shall not be provided to 

non-party witnesses. 

3. In the event that any Confidential Information is filed, included in, or referred to 

in any paper filed with the Court, counsel responsible for such filing shall notify the Clerk of the 

Court in accordance with the Court’s procedures at the time of filing that such paper contains 

Confidential Information protected by this Order, and shall notify the other parties of the 

confidential nature of the filing. The Clerk of the Court shall keep such Confidential Information 

under seal until further order of the Court; provided, however, that access to such Confidential 

Information filed with the Court shall be afforded to the Court and to counsel for the undersigned 

parties. 

4. If, at the time of trial or in connection with any pretrial or settlement hearing, 

counsel for a party intends to introduce any material made subject to this Order, he or she shall 

so inform the Court and opposing counsel as far in advance as possible, and the Court may take 

such steps, at the request of the opposing counsel or on its own initiative, as it deems necessary 

to preserve the confidentiality of such material subject to this Order. 

5. Neither the parties nor their counsel of record shall discuss or disclose the 

contents of any Confidential Information with any other person, except between themselves for 

purposes of this action and as otherwise permitted in this Order. 

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E. Confidential – Attorneys’ Eyes Only

 Information designated as “Confidential – Attorneys’ Eyes Only” shall be disclosed only to 

counsel of record for the parties, in-house counsel for the parties, paralegal assistants, and 

clerical employees working directly on the Action under the supervision of such attorneys. 

“Confidential Attorney’s Eyes Only” information may also be disclosed to the Court or to a court 

reporting service under seal, as provided in Paragraph D.3. Absent consent of the disclosing 

party, before “Confidential – Attorneys’ Eyes Only” information can be disclosed to any other 

person (such as parties, witnesses, deponents, or experts), the party seeking to disclose such 

information must apply for an appropriate ruling from the Court. Such application, any response 

from a party opposing the request, and the Court’s ruling on the request shall be under seal. 

F. No Admission or Waiver

The inadvertent or unintentional disclosure of any Confidential Information by the 

designating party shall not be construed to be a waiver, in whole or in part, of that party’s claim 

of confidentiality either as to the specific Confidential Information disclosed or as to any other 

related information. If a party produces multiple identical copies of a document (but with 

different bates numbers) and one has not been designated as confidential, all identical copies 

shall be treated according to the most restrictive designation. Similarly, the inadvertent or 

unintentional disclosure of any documents, information or testimony protected by the attorneyclient privilege and/or work product doctrine shall not be construed to be a waiver, in whole or in 

part, of that party’s claim to privilege; nor shall any discreet waiver of privilege constitute a 

general waiver of privilege or protection. Any documents or information inadvertently produced 

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and all copies and records thereof shall be immediately returned to the producing or providing 

party. 

G. Jurisdiction and Return of Documents

1. This Order shall survive the final termination of this case, and the Court shall 

retain jurisdiction to resolve any dispute concerning the use of information disclosed hereunder. 

2. Within ten (10) business days after the conclusion of this action, by settlement or 

adjudication, including any appellate proceedings, the Confidential Information (and all copies, 

transcriptions, or reproductions in any form whatsoever) produced or provided by the parties 

shall be returned to the producing party or destroyed at the election of the producing party. 

Nothing in this paragraph shall preclude counsel for either party from maintaining copies of 

work product materials which in the good faith judgment of counsel must be maintained for 

purposes of defending against potential malpractice claims. If counsel for either party has a good 

faith belief that work product abstracts or summaries of Confidential Information must be 

maintained for the defense of potential malpractice claims, counsel shall serve opposing counsel 

with a written request to maintain copies of such information until the end of the applicable 

statutes of limitations periods for professional malpractice claims. 

H. Dispute as to Confidential Information Designation

1. If any party believes that a document, testimony or other information that has 

been designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” is not entitled to be 

treated as such, the party will notify the designating party of its disagreement with the 

confidential designation. Counsel for the parties shall meet and confer in an attempt to reach an 

agreement regarding the confidential status of the document, testimony or information within ten 

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(10) business days after the opposing party has advised the producing party of its disagreement 

with the confidential designation. If the matter is not resolved by the parties themselves, the 

party claiming the confidential status of documents, information or testimony shall bring the 

dispute before the Court for a determination and have the burden of proof. 

2. Except as expressly provided herein, nothing in this Agreement and Order is 

intended to limit or have the effect of limiting either party’s right to make use of or object to the 

use of such information for any purposes or uses permitted under the Federal Rules of Civil 

Procedure, or the Federal Rules of Evidence, at any time during the pretrial preparation or trial of 

this lawsuit or any time up to and including the entry of judgment and conclusion of any appeals 

taken therefrom. Accordingly, subject to the Federal Rules of Evidence, materials protected by 

this Order may be offered in evidence at trial or at any court hearing subject to such protective 

measures as may be provided by this Order or directed by this Court. Nothing in this Order shall 

prevent either party from seeking amendments broadening or restricting the rights of access to or 

the use of Confidential Information or otherwise modifying this Order; and this Order may be 

amended without leave of the Court by the agreement of the undersigned attorneys for the parties 

in the form of a stipulation that shall be filed in this case. 

3. The provisions of this Order shall apply from the date this Order is signed to any 

and all documents produced in this action and to any and all information produced or disclosed, 

whether produced or disclosed before or after the execution of this Order. 

4. The provisions of this Order shall survive and remain in full force and effect after 

the entry of final judgment, including any appellate proceedings in this case, whether by 

settlement or adjudication. 

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I. Inadvertent Failure to Withhold Privileged Material. 

A Party who produces or discloses any Privileged Material without intending to waive 

the claim of privilege associated with such Privileged Material may, within ten (10) days after 

the producing party actually discovers that such inadvertent production or disclosure occurred, 

amend its discovery response and notify the other party that such Privileged Material was 

inadvertently produced and should have been withheld as privileged. Once the producing party 

provides such notice to the requesting party, the requesting party shall: (a) promptly return the 

specified Privileged Material and any copies thereof; (b) retrieve from any third parties to which 

the requesting party has disclosed such Privileged Material such material and any copies thereof, 

and any notes or any other documents or ESI such third party created that reflect the contents of 

the Privileged Material; (c) destroy, and certify such destruction to the producing party, of any 

notes or any other documents or ESI it or third parties created that reflect the contents of the 

Privileged Material; and (d) refrain from disclosing the substance of such Privileged Material to 

any third-party. By complying with these obligations, the requesting party does not waive any 

right to challenge the assertion of privilege and to request an order of the Court denying such 

privilege and compelling production of such Privileged Material. In the event of a challenge by 

the requesting party to the assertion of privilege with respect such inadvertently produced 

document or ESI, the party asserting the privilege shall submit such document or ESI to the 

Court for in camera inspection. The burden will remain with the party asserting the privilege to 

demonstrate the privileged nature of the document or ESI. Upon compliance with this paragraph 

by the producing Party, inadvertent disclosure of Privileged Material shall not be deemed a 

waiver with respect to the particular item of Privileged Material, or other documents and ESI 

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involving similar subject matter. Nothing in this Order is intended to alter any professional 

conduct or ethics requirements with respect to inadvertently produced information. 

IT IS SO ORDERED. 

 s/Mark R. Abel 

 Magistrate Judge Abel 

AGREED AND SUBMITTED BY: 

s/Richard Evans_(w/email auth. by DJC)

Ann Oldfather (KY Bar No. 52553) 

Richard Evans (KY Bar No. 86908 

Sheldon Haden (KY Bar No. 88876) 

Oldfather Law Firm 

1330 South Third St. 

Louisville, KY 40208 

(502) 637-7200 

David I. Shroyer (0024099) 

536 South High Street 

Columbus, Ohio 43215 

(614) 228-6453 

Attorneys for Plaintiff 

 

s/Daniel J. Clark_______________ 

Jonathan R. Vaughn (0022897) 

Douglas R. Matthews (0039431) 

Daniel J. Clark (0075125) 

Vorys, Sater, Seymour and Pease LLP 

52 East Gay Street 

P.O. Box 1008 

Columbus, OH 43216-1008 

Telephone: (614) 464-6400 

Facsimile: (614) 464-6350 

jrvaughn@vorys.com

drmatthews@vorys.com

djclark@vorys.com

Attorneys for Defendant 

10/03/2012 14807765 

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