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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

KURT KUSHNER, ) Case No. 17-cv-715 

) 

 Plaintiff, ) 

) Judge Algenon L. Marbley 

 v. )

) 

NATIONWIDE MUTUAL INSURANCE )

COMPANY, and the BENEFITS )

Magistrate Judge Chelsey M. Vascura

ADMINISTRATIVE COMMITTEE, )

) 

 Defendants. )

STIPULATED PROTECTIVE ORDER 

The parties to this Stipulated Protective Order have agreed to the terms of this Order; 

accordingly, it is ORDERED:

1. Scope. All documents produced in the course of discovery, including initial

disclosures, all responses to discovery requests, all deposition testimony and exhibits, other 

materials which may be subject to restrictions on disclosure for good cause and information derived 

directly therefrom (hereinafter collectively “documents”), shall be subject to this Order concerning 

confidential information as set forth below. As there is a presumption in favor of open and public 

judicial proceedings in the federal courts, this Order shall be strictly construed in favor of public 

disclosure and open proceedings wherever possible. The Order is also subject to the Local Rules of 

this District and the Federal Rules of Civil Procedure on matters of procedure and calculation of 

time periods.

2. Form and Timing of Designation. A party may designate documents as

confidential and restricted in disclosure under this Order by including or affixing the words 

“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” on the document or, if transmitted 

electronically, the link to the document, in a manner that will not interfere with the legibility of the
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document and that will permit complete removal of the “CONFIDENTIAL – SUBJECT TO 

PROTECTIVE ORDER” designation. Documents shall be designated “CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER” prior to or at the time of the production or disclosure of 

the documents. The designation “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER”

does not mean that the document has any status or protection by statute or otherwise except to the 

extent and for the purposes of this Order. 

3. Documents Which May be Designated “CONFIDENTIAL – SUBJECT TO 

PROTECTIVE ORDER.” Any party may designate documents as “CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER” upon making a good faith determination that the 

documents contain information protected from disclosure by statute or that should be protected 

from disclosure as confidential personal information, medical or psychiatric information, trade

secrets, personnel records, or such other sensitive commercial information that is not publicly 

available. Public records and other information or documents that are publicly available may not be 

designated as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER.”

4. Depositions. Deposition testimony shall be deemed “CONFIDENTIAL – SUBJECT 

TO PROTECTIVE ORDER” only if designated as such. Such designation shall be specific as to the 

portions of the transcript or any exhibit to be designated as “CONFIDENTIAL – SUBJECT TO 

PROTECTIVE ORDER.” Thereafter, the deposition transcripts and any those portions so 

designated shall be protected as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,”

pending objection, under the terms of this Order. 

5. Protection of Confidential Material. 

(a) General Protections. Documents designated “CONFIDENTIAL – SUBJECT 

TO PROTECTIVE ORDER” under this Order shall not be used or disclosed by the parties,
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counsel for the parties or any other persons identified in ¶ 5(b) for any purpose whatsoever 

other than to prepare for and to conduct discovery and trial in this action, including any 

appeal thereof. 

(b) Limited Third-Party Disclosures. The parties and counsel for the parties shall 

not disclose or permit the disclosure of any “CONFIDENTIAL – SUBJECT TO 

PROTECTIVE ORDER” documents to any third person or entity except as set forth in 

subparagraphs (1)–(5). Subject to these requirements, the following categories of persons 

may be allowed to review documents that have been designated “CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER”: 

(1) Counsel. Counsel for the parties and employees and agents of counsel who have 

responsibility for the preparation and trial of the action; 

(2) Parties. Parties and employees of a party to this Order.

(3) Court Reporters and Recorders. Court reporters and recorders engaged for 

depositions;

(4) Consultants, Investigators and Experts. Consultants, investigators, or experts 

(hereinafter referred to collectively as “experts”) employed by the parties or counsel 

for the parties to assist in the preparation and trial of this action or proceeding, but

only after such persons have completed the certification contained in Attachment A,

Acknowledgment of Understanding and Agreement to Be Bound; and 

(5) Others by Consent. Other persons only by written consent of the producing 

party or upon order of the Court and on such conditions as may be agreed or 

ordered. All such persons shall execute the certification contained in Attachment A, 

Acknowledgement of Understanding and Agreement to Be Bound. 
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(c) Control of Documents. Counsel for the parties shall take reasonable and 

appropriate measures to prevent unauthorized disclosure of documents designated as 

CONFIDENTIAL pursuant to the terms of this Order. Counsel shall maintain the forms 

signed by persons acknowledging their obligations under this Order for a period of 1 year 

after dismissal of the action, the entry of final judgment and/or the conclusion of any 

appeals arising therefrom. 

(d) Copies. Prior to production to another party, all copies, electronic images,

duplicates, extracts, summaries or descriptions (hereinafter referred to collectively as 

(“copies”) of documents designated as “CONFIDENTIAL – SUBJECT TO PROTECTIVE 

ORDER” under this Order, or any individual portion of such a document, shall be affixed 

with the designation “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” if the 

word does not already appear on the copy. All such copies shall thereafter be entitled to the 

protection of this Order. The term “copies” shall not include indices, electronic databases or 

lists of documents provided these indices, electronic databases or lists do not contain 

portions or images of the text of confidential documents or otherwise disclose the substance 

of the confidential information contained in those documents. 

(e) Inadvertent Production. Inadvertent production of any document or 

information without a designation of “CONFIDENTIAL – SUBJECT TO PROTECTIVE 

ORDER” shall be governed the Order Implementing Fed. R. Evid. 502(d) – Inadvertent 

Disclosure, dated January ____, 2018. 

6. Filing of “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” 

Documents Under Seal. The Court highly discourages the manual filing of any pleadings or 

documents under seal. Before filing any pleadings or documents under seal, the party seeking to 
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file such pleading or document shall seek leave to file under seal in accordance with Local Rule 

5.2.1. To the extent that a brief, memorandum or pleading references any document marked as 

“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” then the brief, memorandum or 

pleading shall refer the Court to the particular exhibit filed under seal without disclosing the 

contents of any confidential information. 

(a) Before any document marked as “CONFIDENTIAL – SUBJECT TO 

PROTECTIVE ORDER” is filed under seal with the Clerk, the filing party shall first 

consult with the party that originally designated the document as “CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER” to determine whether, with the consent of that 

party, the document or a redacted version of the document may be filed with the Court not 

under seal. 

(b) Where agreement is not possible or adequate, before a “CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER” document is filed with the Clerk, it shall be placed 

in a sealed envelope marked “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER 

DOCUMENTS,” displaying the case name, docket number, a designation of what the 

document is, the name of the party in whose behalf it is submitted, and name of the attorney 

who has filed the documents on the front of the envelope. A copy of any document filed 

under seal shall also be delivered to the judicial officer’s chambers. 

(c) To the extent that it is necessary for a party to discuss the contents of any 

confidential information in a written pleading, then such portion of the pleading may be 

filed under seal with leave of Court. In such circumstances, counsel shall prepare two 

versions of the pleadings, a public and a confidential version. The public version shall 

contain a redaction of references to “CONFIDENTIAL – SUBJECT TO PROTECTIVE 
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ORDER” documents. The confidential version shall be a full and complete version of the

pleading and shall be filed with the Clerk under seal as above. A copy of the unredacted 

pleading also shall be delivered to the judicial officer’s chambers. 

(d) If the Court or a particular judicial officer has developed an alternative method 

for the electronic filing of documents under seal, then the parties shall follow this 

alternative method and shall not file any documents or pleadings manually with the Clerk of 

Court.

7. Challenges by a Party to Designation as Confidential. Any “CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER” designation is subject to challenge by any party or nonparty with standing to object (hereafter “party”). Before filing any motions or objections to a 

confidentiality designation with the Court, the objecting party shall have an obligation to meet and 

confer in a good faith effort to resolve the objection by agreement. If agreement is reached 

confirming or waiving the “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” 

designation as to any documents subject to the objection, the designating party shall serve on all 

parties a notice specifying the documents and the nature of the agreement. 

8. Action by the Court. Applications to the Court for an order relating to any 

documents designated “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” shall be by 

motion under Local Rule 5.2.1 and any other procedures set forth in the presiding judge’s standing 

orders or other relevant orders. Nothing in this Order or any action or agreement of a party under 

this Order limits the Court’s power to make any orders that may be appropriate with respect to the 

use and disclosure of any documents produced or use in discovery or at trial. 

9. Use of Confidential Documents or Information at Trial. All trials are open to the 

public. Absent order of the Court, there will be no restrictions on the use of any document that may 
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be introduced by any party during the trial. If a party intends to present at trial “CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER” documents or information derived therefrom, such party 

shall provide advance notice to the other party at least five (5) days before the commencement of 

trial by identifying the documents or information at issue as specifically as possible (i.e., by Bates 

number, page range, deposition transcript lines, etc.) without divulging the actual 

“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” documents or information. The

Court may thereafter make such orders as are necessary to govern the use of such documents or 

information at trial. 

10. Obligations on Conclusion of Litigation. 

(a) Order Remains in Effect. Unless otherwise agreed or ordered, this Order shall remain 

in force after dismissal or entry of final judgment not subject to further appeal. 

(b) Return of “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” 

Documents. Within thirty days after dismissal or entry of final judgment not subject to 

further appeal, each party shall be under an obligation to assemble and to return to the 

originating source all originals and unmarked copies of documents and things containing “ 

CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” material and to destroy, 

should such source so request, all copies of “CONFIDENTIAL – SUBJECT TO 

PROTECTIVE ORDER” material that contain and/or constitute attorney work product as 

well as excerpts, summaries and digest revealing “CONFIDENTIAL – SUBJECT TO 

PROTECTIVE ORDER” material; provided, however, that counsel may retain a complete 

copy of all materials for archival purposes, subject to the provisions of this Order. Copies 

of all “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” materials which have 
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been filed with the Court may be returned to the filing party by the Clerk of the Court, or 

destroyed.

11. Order Subject to Modification. This Order shall be subject to modification by the

Court on its own motion or on motion of a party or any other person with standing concerning the 

subject matter. Motions to modify this Order shall be served and filed under Local Rule 7 .1 and the 

presiding judge's standing orders or other relevant orders. 

12. No Prior Judicial Determination. This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery. Nothing 

herein shall be construed or presented as a judicial determination that any documents or 

information designated “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” by counsel 

or the parties is subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or 

otherwise until such time as the Court may rule on a specific document or issue.

13. Persons Bound. This Order shall take effect when entered and shall be binding upon all

counsel and their law firms, the parties, and persons made subject to this Order by its terms. 

SO ORDERED.

Dated: February 1, 2018

Chelsey M. Vascura 

U.S. Magistrate Judge 

WE SO STIPULATE and agree to abide by the terms of this Order.

Dated: January 30, 2018 Respectfully submitted, 

Attorneys for Plaintiff: Attorneys for Defendants: 

s/ Tybe A. Brett

 Tybe A. Brett, Esquire 

 PA ID #30064 

 Email: tbrett@fdpklaw.com 

 s/ Kimberly J. Gost .

 Kimberly J. Gost, Admitted Pro Hac Vice

 PA ID #82078 

 Email: kgost@littler.com 

 /s/ Chelsey M. Vascura
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FEINSTEIN DOYLE PAYNE 

& KRAVEC, LLC

Law & Finance Building, Suite 1300 

429 Fourth Avenue 

Pittsburgh, PA 15219 

Ph.: (412) 281-8400 

Fax: (412) 281-1007 

Tony C. Merry, Esquire 

Ohio Bar #0042471 

Email: tmerry@tmerrylaw.com 

Law Offices of Tony C. Merry, LLC 

7100 N. High Street, Suite 302 

Worthington, OH 43085 

Ph.: (614) 372-7114 

Fax: (614) 505-6109 

Sarah Bryan Fask, Admitted Pro Hac Vice

PA ID #306549 

Email: sfask@littler.com 

LITTLER MENDELSON, P.C. 

Three Parkway 

1601 Cherry Street, Suite 1400 

Philadelphia, PA 19102-1321 

Ph.: (267) 402-3000 

Fax: (267) 402-3131 

Daniel W. Srsic, Trial Attorney 

Ohio Bar #0064177 

Email: dsrsic@littler.com 

LITTLER MENDELSON, P.C. 

21 East State Street, 16th Floor 

Columbus, OH 43215 

Ph.: (614) 463-4201 

Fax: (614) 221-3301 
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FORM PROTECTIVE ORDER 

ATTACHMENT A 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION

KURT KUSHNER, ) Case No. 17-cv-715 

 ) 

 Plaintiff, ) 

 ) Judge Algenon L. Marbley 

 v. ) 

 ) 

NATIONWIDE MUTUAL INSURANCE ) Magistrate Judge 

COMPANY, and the BENEFITS ) Chelsea M. Vascura 

ADMINISTRATIVE COMMITTEE, ) 

 ) STIPULATED PROTECTIVE ORDER 

 Defendants. ) 

ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND 

The undersigned hereby acknowledges that he/she has read the Protective Order dated 

____________, 2018 in the above-captioned action and attached hereto, understands the terms 

thereof, and agrees to be bound by its terms. The undersigned submits to the jurisdiction of the 

United States District Court for the Southern District of Ohio (Eastern Division) in matters relating 

to the Protective Order and understands that the terms of the Protective Order obligate him/her to 

use documents designated “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” in 

accordance with the Order solely for the purposes of the above-captioned action, and not to disclose 

any such documents or information derived directly therefrom to any other person, firm or concern. 
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The undersigned acknowledges that violation of the Protective Order may result in penalties 

for contempt of court. 

Name: 

Job Title: 

Employer: 

Business Address: 

Date: ________ 

 Signature