UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION (CINCINNATI)

Case No. 1:18-CV-00016-SJD

Judge Susan J. Dlott

BRADLEY BARTUCH,

Plaintiff,

V.

MAXWELL S. HARRIS

And

TOPSHELF SHOTS, INC.

Defendants.

STIPULATED PROTECTIVE ORDER

Pursuant to the parties' joint request that the Court enter this Order, and their agreement

that the following limitations and restrictions should apply to documents and information

produced for inspection and copying during the course of this litigation (the "Action"), the Court

hereby ORDERS that:

1. Scope. This Protective Order (hereinafter "Protective Order" or "Order") shall

apply to all documents or other information produced in the course of discovery in this Action

that the producing person or entity (the "Producing Entity") has designated as

"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" pursuant to this Order, including

but not limited to, all initial disclosures, all responses to discovery requests, all deposition

testimony and exhibits, and all materials (including documents or testimony) produced by nonparties in response to subpoenas issued in connection with this matter, including all copies,

excerpts, and summaries thereof (collectively the "Confidential Information").

2. Purpose. The purpose of this Protective Order is to protect against the

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 1 of 14 PAGEID #: 184
unnecessary disclosure of Confidential Information.

3. Disclosure Defined. As used herein, "disclosure" or "to disclose" means to

divulge, reveal, describe, summarize, paraphrase, quote, transmit, or otherwise communicate

Confidential Information, and the restrictions contained herein regarding disclosure of

Confidential Information also apply with equal force to any copies, excerpts, analyses, or

summaries of such materials or the information contained therein, as well as to any pleadings,

briefs, exhibits, transcripts or other documents which may be prepared in connection with this

litigation which contain or refer to the Confidential Information or information contained therein.

4. Designating Material As Confidential. Any party, or any third party subpoenaed

by one of the parties, may designate as confidential and subject to this Protective Order any

documents, testimony, written responses, or other materials produced in this case if they contain

information that the Producing Entity asserts in good faith is protected from disclosure by statute

or common law, including, but not limited to, confidential personal information, medical or

psychiatric information, trade secrets, personnel records, or such other sensitive commercial

information that is not publicly available. Information that is publicly available may not be

designated as confidential. The designation of materials as confidential pursuant to the terms of

this Protective Order does not mean that the document or other material has any status or

protection by statute or otherwise except to the extent and for the purposes of this Order.

5. Form and Timing Of Designation.

a. Documents And Written Materials. The Producing Entity shall

designate any document or other written materials as confidential pursuant to this Order

by marking each page of the material with a stamp identifying it as "CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER," if practical to do so. The person or entity

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 2 of 14 PAGEID #: 185
designating the material shall place the stamp, to the extent possible, in such a manner

that it will not interfere with the legibility of the document. Materials shall be sodesignated prior to, or at the time of, their production or disclosure.

b. Electronically Stored Information ("ESI"): If a production response

includes ESI, the Producing Entity shall make an effort to include within the electronic

files themselves the designation "CONFIDENTIAL - SUBJECT TO PROTECTIVE

ORDER" to the extent practicable. If that is not practicable, then the Producing Entity

shall designate in a transmittal letter or email to the party to whom the materials are

produced (the "Receiving Party") using a reasonable identifier (e.g., the Bates range) any

portions of the ESI that should be treated as "CONFIDENTIAL - SUBJECT TO

PROTECTIVE ORDER."

c. Deposition Testimony. Deposition testimony will be deemed confidential

only if designated as such when the deposition is taken or within days after receipt

of the deposition transcript. Such designation must be specific as to the portions of the

transcript and/or any exhibits to be protected, except that any exhibit that has previously

been marked as "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" at the time

of production, and which still bears that mark at the time of its use in a deposition, shall

be presumed to be confidential under this Order without further designation.

6. Limitation Of Use.

a. General Protections. All information designated "Confidential" and

subject to this Protective Order, including all information derived therefrom, shall be

used by the Receiving Party solely for purposes of prosecuting or defending this Action.

The Receiving Party shall not use or disclose the Confidential Information for any other

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 3 of 14 PAGEID #: 186
purpose, including but not limited to any business, commercial, or competitive purpose.

Except as set forth in this Order, the Receiving Party shall not disclose Confidential

Information to any third party. This Order shall not prevent the Producing Entity from

using or disclosing information it has designated as Confidential Information, and that

belongs to the Producing Entity, for any purpose that the Producing Entity deems

appropriate, except that the Producing Entity's voluntary disclosure of Confidential

Information outside the scope of this Action may impact the protection that this Order

would otherwise provide with regard to such information, once disclosed.

b. Persons To Whom Confidential Information May Be Disclosed. Use of

any information, documents, or portions of documents marked "CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER," including all information derived therefrom,

shall be restricted solely to the following persons who agree to be bound by the terms of

this Protective Order, unless additional persons are stipulated by counsel or authorized by

the Court:

1. outside counsel of record for the parties, and the administrative staff of

outside counsel's firms;

2. in-house counsel for the parties, and the administrative staff for each inhouse counsel;

3. any party to this action who is an individual;

4. as to any party to this action who is not an individual, every employee,

director, officer, or manager of that party, but only to the extent necessary

to further the interest of the parties in this litigation;

5. independent consultants or expert witnesses (including partners, associates

and employees of the firm which employs such consultant or expert)

retained by a party or its attorneys for purposes of this litigation, but only

to the extent necessary to further the interest of the parties in this

litigation, and only after such persons have completed the certification

attached hereto as Attachment A, Acknowledgment of Understanding and

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 4 of 14 PAGEID #: 187
Agreement to be Bound;

6. the Court and its personnel, including, but not limited to, stenographic

reporters regularly employed by the Court and stenographic reporters not

regularly employed by the Court who are engaged by the Court or the

parties during the litigation of this action;

7. the authors and the original recipients of the documents;

8. any court reporter or videographer reporting a deposition;

9. employees of copy services, microfilming or database services, trial

support firms, and/or translators who are engaged by the parties during the

litigation of this action;

10. interviewees, potential witnesses, deponents, hearing or trial witnesses,

and any other person, where counsel for a party to this action in good faith

determines the individual should be provided access to such information in

order for counsel to more effectively prosecute or defend this action (as

long as the disclosure occurs in the presence of counsel, and copies,

duplicates, images, or the like are not removed or retained by any

interviewee, potential witness, deponent, or hearing or trial witness),

provided, however, that in all such cases the individual to whom

disclosure is to be made has been informed that the information contained

in the disclosed document(s) is confidential and protected by Court Order,

that the individual understands that he/she is prohibited from disclosing

any information contained in the document(s) to anyone; or

11. any other person agreed to in writing by the parties.

Prior to being shown any documents produced by another party marked "CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER," any person listed imder paragraph 6(b)(3), 6(b)(4), or

6(b)(ll) shall be advised that the confidential information is being disclosed pursuant to and

subject to the terms of this Protective Order.

7. Inadvertent Production. Inadvertent production of any document or information

with the designation of "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" shall be

governed by Fed. R. Evid. 502. Pursuant to subsections (d) and (e) of that Rule, the parties agree

to, and the Court orders, protection of Protected Information against claims of waiver (including

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 5 of 14 PAGEID #: 188
as against third parties and in other Federal and State proceedings) in the event such information

is produced during the course of the Litigation, whether pursuant to a Court order, a parties'

discovery request, or informal production, as follows:

a. the production of documents or electronically stored information ("ESl")

(including, without limitation, metadata) subject to a legally recognized claim of

privilege or other protection from production or other disclosure (collectively,

"Protected Information"), including without limitation the attorney-client

privilege and work-product doctrine, shall in no way constitute the voluntary

disclosure of such Protected Information;

b. the production of Protected Information shall not result in the waiver of any

privilege or protection associated with such Protected Information as to the

receiving party, or any third parties, and shall not result in any waiver of

protection, including subject matter waiver, of any kind;

c. if any document or ESI (including, without limitation, metadata) received by a

party is on its face clearly subject to a legally recognizable privilege, immunity, or

other right not to produce such information, the Receiving Party will promptly

notify the Producing Entity in writing that it has discovered Protected

Information, identify the Protected Information by Bates Number range, and

return or sequester such Protected Information until the Producing Entity confirms

whether it does indeed assert any privilege protecting this information. Once the

Producing Entity asserts privilege over such Protected Information (as described

in Subparagraph (e) below), the Receiving Party will return, sequester, or destroy

all copies of such Protected Information, along with any notes, abstracts or

compilations of the content thereof, within ten (10) business days of notice from

the Producing Entity;

d. upon the request of the Producing Entity, the Receiving Party will promptly

disclose the names of any individuals who have read or have had access to the

Protected Information;

e. if the Producing Entity intends to assert a claim of privilege or other protection

over Protected Information identified by the receiving party, the Producing Entity

will, within ten (10) business days of receiving the Receiving Party's written

notification, inform the Receiving Party of such intention in writing and shall

provide the Receiving Party with a log for such Protected Information that is

consistent with the requirements of the Federal Rules of Civil Procedure, setting

forth the basis for the claim of privilege, immunity or basis for non-disclosure,

and in the event, if any portion of the Protected Information does not contain

privileged or protected information, the Producing Entity shall also provide to the

Receiving Party a redacted copy of the Protected Information that omits the

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 6 of 14 PAGEID #: 189
information that the Producing Entity believes is subject to a claim of privilege,

immunity or other protection;

f. if, during the course of the litigation, a party determines it has produced Protected

Information, the Producing Entity may notify the Receiving Party of such

production in writing. The Producing Entity's written notice must identify the

Protected Information by Bates Number range, the privilege or protection

claimed, and the basis for the assertion of the privilege and shall provide the

receiving party with a log for such Protected Information that is consistent with

the requirements of the Federal Rules of Civil Procedure, setting forth the basis

for the claim of privilege, immunity or basis for non-disclosure, and in the event

any portion of the Protected Information does not contain privileged or protected

information, the Producing Entity shall also provide to the receiving party a

redacted copy of the Protected Information that omits the information Aat the

Producing Entity believes is subject to a claim of privilege, immunity or other

protection. The Producing Entity must also demand the return of the Protected

Information. After receiving such written notification, the Receiving Party must,

within ten (10) business days of receiving the written notification, return,

sequester, or destroy the specified Protected Information and any copies, along

with any notes, abstracts or compilations of the content thereof;

g. a Receiving Party's return, sequestration, or destruction of such Protected

Information as provided in the Subparagraphs above will not act as a waiver of

the Receiving Party's right to move for the production of the returned,

sequestered, or destroyed Protected Information on grounds that the Protected

Information is not in fact subject to a viable claim of privilege or other protection.

However, the Receiving Party is prohibited and estopped from arguing that the

Producing Entity's production of the Protected Information in this matter acts as a

waiver of applicable privileges or protections, that the disclosure of the Protected

Information by the Producing Entity was not inadvertent, that the Producing

Entity did not take reasonable steps to prevent the disclosure of the Protected

Information, or that the Producing Entity did not take reasonable steps to rectify

such disclosure; and

h. nothing contained herein is intended to or shall limit a Producing Entity's right to

conduct a review of documents or ESI (including, without limitation, metadata),

for relevance, responsiveness, and/or the segregation of privileged and/or

protected information before such information is produced to the Receiving Party;

i. prior to production to another party, all copies, electronic images, duplicates,

extracts, summaries, or descriptions (collectively "copies") of documents marked

"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" under this Order,

or in any individual portion of such a document, shall be affixed with the

designation "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" if it

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

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 7 of 14 PAGEID #: 190
databases, or lists do not contain substantial portions or images of the text of

confidential documents or otherwise disclose the substance of the confidential

information contained in those documents.

8. Filing Materials Containing Information Designated Confidential. In the

event a party seeks to file with the Court any confidential information subject to protection under

this Order, that party must take appropriate action to ensure that the document receives proper

protection from public disclosure, including: (a) filing a redacted document with the consent of

the party who designated the document as confidential; (b) where appropriate (e.g., in relation to

discovery and evidentiary motions), submitting the document solely for in camera review; or

(c) when the preceding measures are inadequate, seeking permission to file the document under

seal by filing a motion for leave to file under seal.

Any motion to file a document subject to this Order imder seal must meet the Sixth

Circuit's standard set forth in Shane Group, Inc. v. Blue Cross Blue Shield ofMichigan, 825 F.3d

299 (6th Cir. 2016). The burden of demonstrating the need for and appropriateness of a sealing

order is borne by the moving party, and requires the moving party to analyze in detail, document

by document, the propriety of secrecy, providing reasons and legal citations. Regardless of

whether the parties agree, it remains the Court's independent obligation to determine whether a

seal is appropriate for any given document or portion thereof. Any proposed sealing, even when

compelling reasons exist, must be narrowly tailored to serve the compelling reasons.

When a party to this Order seeks to file documents which it believes may warrant sealing,

but is not the party who may be prejudiced by the document or documents becoming part of the

public record, the filing party shall provide the potentially-prejudiced party or parties, or any

potentially-prejudiced third party or parties, with written notification of its intent to file such

documents at least (14) fourteen days before doing so. After being provided such notice, the

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 8 of 14 PAGEID #: 191
potentially harmed party or parties will then have (7) seven days to file with the Court a motion

for sealing. The Court will rule on the motion as promptly as possible.

9. Attorneys Allowed To Provide Advice. Nothing in this Order shall bar or

otherwise restrict any attorney for any party from rendering advice to his or her client with

respect to this case or from doing anything necessary to prosecute or defend this case and

furthering the interests of his or her client, except for the disclosure of the Confidential

Information as proscribed in this Order.

10. Excluding Others From Access. Whenever information designated as

"Confidential" pursuant to this Protective Order is to be discussed at a deposition, the person or

entity that designated the information as "Confidential" may exclude from the room any person,

other than persons designated in Paragraph 6 of this Order, as appropriate, for that portion of the

deposition.

11. No Voluntary Disclosure To Other Entities. The parties or anyone acting on

their behalf may not voluntarily disclose any Confidential Information to any state or federal law

enforcement or regulatory agency, or any employee thereof, except in this litigation as set forth

in Paragraph 6 of this Order or as otherwise commanded by law or provided in this Order.

Nothing in this Order shall prevent a party from providing information in its possession in

response to a valid order or subpoena fi-om a law enforcement or regulatory agency requiring the

production of such information, except that, prior to such production, the party producing the

information shall provide as much advance notice as possible to the person or entity that

designated the material as confidential to facilitate that party's efforts to preserve the

confidentiality of the material, if warranted.

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 9 of 14 PAGEID #: 192
12. Disputes As To Designations. Each party has the right to dispute the confidential

status claimed by any other party or subpoenaed person or entity in accordance with this

Protective Order. If a party believes that any documents or materials have been inappropriately

designated by another party or subpoenaed party, that party shall confer with counsel for the

person or entity that designated the documents or materials. As part of that conferral, the

designating person or entity must assess whether redaction is a viable alternative to complete

non-disclosure. If any party challenges the "CONFIDENTIAL - SUBJECT TO PROTECTIVE

ORDER" designation of any document or information, the burden to properly maintain the

designation shall, at all times, remain with the person or entity that made the designation to show

that said document or information should remain protected pursuant to Federal Civil Rule 26(c).

In the event of disagreement, then the designating person or entity shall file a motion pursuant to

Federal Civil Rule 26(c). A party who disagrees with the designation must nevertheless abide by

that designation until the matter is resolved by agreement of the parties or by order of the Court.

13. Information Security Protections. Any person in possession of Confidential

Information received from another person or entity in connection with this Action shall maintain

an information security program that includes reasonable administrative, technical, and physical

safeguards designed to protect the security and confidentiality of such Confidential Information,

protect against any reasonably anticipated threats or hazards to the security of such Confidential

Information, and protect against unauthorized access to or use of such Confidential Information.

If the Receiving Party discovers a breach of security, including any actual or suspected

unauthorized access, to Confidential Information subject to this Order, they shall: (1) notify the

person or entity who designated the materials as confidential of such breach; (2) investigate and

take reasonable efforts to remediate the effects of the breach; and (3) provide sufRcient

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 10 of 14 PAGEID #: 193
information about the breach that the Producing Entity can reasonably ascertain the size and

scope of the breach. The Receiving Party agrees to cooperate with the Producing Entity or law

enforcement in investigating any such security incident. In any event, the Receiving Party shall

promptly take all necessary and appropriate corrective action to terminate the unauthorized

access.

14. All Trials Open To Public. All trials, and certain pretrial proceedings and

hearings, are open to the public (collectively a "Public Hearing" or "Public Hearings"). Absent

further order of the Court, there will be no restrictions on any Party's ability to the use during a

Public Hearing any document or information that has been designated as "CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER," or documents or information derived therefrom that

would disclose such confidential information. However, if a party intends to present at a Public

Hearing any document or information that has been so designated, the party intending to present

such document or information shall provide advance notice to the person or entity that

designated the material as Confidential at least (5) five days before the Public Hearing by

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

Number, page range, deposition transcript line, etc.) without divulging the actual documents or

information. Any person may then seek appropriate relief from the Court regarding restrictions

on the use of such documents or information at trial, or sealing of the courtroom, if appropriate.

15. No Waiver Of Right To Object. This Order does not limit the right of any party

to object to the scope of discovery in the above-captioned action.

16. No Determination Of Admissibility. This Order does not constitute a

determination of the admissibility or evidentiary foundation for the documents or a waiver of any

party's objections thereto.

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 11 of 14 PAGEID #: 194
17. No Admissions. Designation by either party of information or documents as

"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER," or failure to so designate, will not

constitute an admission that information or documents are or are not confidential or trade secrets.

Neither party may introduce into evidence in any proceeding between the parties, other than a

motion to determine whether the Protective Order covers the information or documents in

dispute, the fact that the other party designated or failed to designate information or documents

as "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER."

18. No Prior Judicial Determination. This Order is based on the representations and

agreements of the parties and is entered for the purpose of facilitating discovery in this action.

Nothing in this Order shall be construed or presented as a judicial determination that any

documents or information designated as "CONFIDENTIAL - SUBJECT TO PROTECTIVE

ORDER" by counsel or the parties is in fact 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.

19. 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.

20. Parties May Consent To Disclosure. Nothing shall prevent disclosure beyond

the terms of this Order if all parties consent to such disclosure, or if the Court, after notice to all

affected parties, permits such disclosure. Specifically, if and to the extent any party wishes to

disclose any Confidential Information beyond the terms of this Order, that party shall provide all

other parties with reasonable notice in writing of its request to so disclose the materials. If the

parties cannot resolve their disagreement with respect to the disclosure of any Confidential

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 12 of 14 PAGEID #: 195
Information, then a party may petition the Court for a determination of these issues. In addition,

any interested member of the public may also challenge the designation of any material as

confidential, pursuant to the terms of this paragraph.

21. Return Of Materials Upon Termination Of Litigation. Upon the written

request and expense of the Producing Entity, within 30 days after the entry of a final judgment

no longer subject to appeal on the merits of this case, or the execution of any agreement between

the parties to resolve amicably and settle this case, the parties and any person authorized by this

Protective Order to receive confidential information shall return to the Producing Entity, or

destroy, all information and documents subject to this Protective Order, unless the specific

document or information has been offered into evidence or filed without restriction as to

disclosure. The party requesting the return of materials shall pay the reasonable costs of

responding to its request. The party returning or destroying the documents or other information

shall certify that it has not maintained any copies of confidential information, except as permitted

by this Order.

22. Counsel Allowed To Retain Copy Of Filings. Nothing in this Protective Order

shall prevent outside counsel for a party from maintaining in its files a copy of any filings in the

Action, including any such filings that incorporate or attach information designated as

"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER." Moreover, an attorney may use

his or her work product in subsequent litigation provided that such use does not disclose any

information or documents designated in this matter as "CONFIDENTIAL - SUBJECT TO

PROTECTIVE ORDER."

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 13 of 14 PAGEID #: 196
so ORDERED.

Dated: Mc 2CiZ\

U.S. District Jud^ U.S. Magistrate Judge

AGREED TO:

/s/Robert M. Ernst (aiuhority of ll.I9.2J)

James M. Kelly (0016984)

Michael A. Galasso (0072470)

Robert M. Ernst (0084096)

Robbins, Kelly, Patterson & Tucker, LPA

7 West Seventh Street, Suite 1400

Cincinnati. CM 45202-2417

ikcllv@rkDt.coin

mttalasso@rkDt.com

remst@rkpt.com

ATTORNEYS FOR PLAtNTIFF

/s/Samuel A. Gradwob!

David G. Richardson (0062143)

Samuel A. Gradwohl (0071481)

Markesbery & Richardson Co., LPA

2368 Victory Parkway, Suite 200

Cincinnati. OH 45206

Richardson@in-r-law.com

Ciradwohl@m-r-law,com

ATTORNEYS FOR DEFENDANT

TOPSHELF SHOTS, INC.

/s/Kevin C. Connell (authority of 11.20.21)

Kevin C. Connell (0063817)

Adam C. Armstrong (0079178)

Bruns, Connell, Vollmar & Armstrong, LLC

137 N. Main Street. Suite 400

Dayton, OH 45402

kconncll@bcvalaw.coin

aai'ms(ronu@hcv[aw.coin

ATTORNEY FOR DEFENDANT

MAXWELL S HARRIS

Case: 1:18-cv-00016-SJD Doc #: 69 Filed: 11/24/21 Page: 14 of 14 PAGEID #: 197