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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANGELLA STREETER, )

)

Plaintiff, )

)

vs. ) No. 17-cv-1125

Judge Algenon L. Marbley

Magistrate Kimberly A. Jolson

AGREED PROTECTIVE ORDER

The parties to this Agreed Confidentiality Order have agreed to the terms of this Order;

accordingly, it is ORDERED:

1. Scope. All materials produced or adduced in the course of discovery, including

initial disclosures, responses to discovery requests, deposition testimony and exhibits, and

information derived directly therefrom (hereinafter collectively “documents”), shall be subject to

this Order concerning Confidential Information as defined below. This Order is 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. Confidential Information. As used in this Order, “Confidential Information”

means information designated as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER”

or “CONFIDENTIAL” by the producing party that falls within one or more of the following

categories: (a) information prohibited from disclosure by statute; (b) information that reveals

trade secrets or proprietary information that the party has maintained as confidential; (c) nonpublic research, technical, commercial, financial, pricing, budgeting, and/or accounting

information that the party has maintained as confidential; (d) medical information concerning

any individual; (e) personal identity information (which the parties may also choose to redact

)

ADAPTASOFT, INC., )

)

Defendant. )
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from document production); (f) income tax returns (including attached schedules and forms),

W-2 forms, and 1099 forms; (g) personnel or employment records of persons not party to this

litigation; (h) non-public information about past, present, or potential customers that the party

has maintained as confidential; (i) non-public marketing studies, or projections that the party

has maintained as confidential; or (j) non-public information regarding equipment, processes,

and/or intellectual property that the party has maintained as confidential and is under an

obligation to keep confidential based on a business relationship with a customer and/or thirdparty. Information or documents that are available to the public may not be designated as

Confidential Information. Information or documents that are available to the public may not be

designated as Confidential Information.

3. Designation.

(a) A party may designate a document as Confidential Information for

protection under this Order by placing or affixing the words “CONFIDENTIAL-SUBJECT TO

PROTECTIVE ORDER” or “CONFIDENTIAL” on the document and on all copies in a manner

that will not interfere with the legibility of the document. As used in this Order, “copies”

includes electronic images, duplicates, extracts, summaries or descriptions that contain the

Confidential Information. The marking “CONFIDENTIAL-SUBJECT TO PROTECTIVE

ORDER” or “CONFIDENTIAL” shall be applied prior to or at the time the documents are

produced or disclosed. Applying the marking “CONFIDENTIAL-SUBJECT TO PROTECTIVE

ORDER” or “CONFIDENTIAL” to a document 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. Any

copies that are made of any documents marked “CONFIDENTIAL-SUBJECT TO

PROTECTIVE ORDER” or “CONFIDENTIAL” shall also be so marked, except that indices,
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electronic databases or lists of documents that do not contain substantial portions or images of

the text of marked documents and do not otherwise disclose the substance of the Confidential

Information are not required to be marked.

(b) The designation of a document as Confidential Information is a

certification by an attorney or a party appearing pro se that the document contains Confidential

Information as defined in this order.

4. Depositions. Deposition testimony is protected by this Order only if designated

as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” or “CONFIDENTIAL” on the

record at the time the testimony is taken. Such designation shall be specific as to the portions

that contain Confidential Information. Deposition testimony so designated shall be treated as

Confidential Information protected by this Order until fourteen days after delivery of the

transcript by the court reporter to any party or the witness. Within fourteen days after delivery of

the transcript, a designating party may serve a Notice of Designation to all parties of record

identifying the specific portions of the transcript that are designated Confidential Information,

and thereafter those portions identified in the Notice of Designation shall be protected under the

terms of this Order. The failure to serve a timely Notice of Designation waives any designation

of deposition testimony as Confidential Information that was made on the record of the

deposition, unless otherwise ordered by the Court.

5. Protection of Confidential Material.

(a) General Protections. Confidential Information shall not be used or

disclosed by the parties, counsel for the parties or any other persons identified in subparagraph

(b) for any purpose whatsoever other than in this litigation, including any appeal thereof.
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(b) Limited Third-Party Disclosures. The parties and counsel for the parties

shall not disclose or permit the disclosure of any Confidential Information to any third person or

entity except as set forth in subparagraphs (1)-(9). Subject to these requirements, the following

categories of persons may be allowed to review Confidential Information:

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

have responsibility for the action;

(2) Parties. Individual parties and employees of a party but only to the

extent counsel determines in good faith that the employee’s assistance is reasonably necessary to

the conduct of the litigation in which the information is disclosed;

(3) The Court and its personnel;

(4) Court Reporters and Recorders. Court reporters and recorders

engaged for depositions;

(5) Contractors. Those persons specifically engaged for the limited

purpose of making copies of documents or organizing or processing documents, including

outside vendors hired to process electronically stored documents;

(6) Consultants and Experts. Consultants, investigators, or experts

employed by the parties or counsel for the parties to assist in the preparation and trial of this

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

Acknowledgment of Understanding and Agreement to Be Bound;

(7) Witnesses at depositions. During their depositions, witnesses in

this action, to whom disclosure is reasonably necessary. Witnesses shall not retain a copy of

documents containing Confidential Information, except witnesses may receive a copy of all

exhibits marked at their depositions in connection with review of the transcripts. Witnesses
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receiving copies of documents containing Confidential Information must first complete the

certification contained in Attachment A. Pages of transcribed deposition testimony or exhibits to

depositions that are designated as Confidential Information pursuant to the process set out in this

Order must be separately bound by the court reporter and may not be disclosed to anyone except

as permitted under this Order.

(8) Author or recipient. The author or recipient of the document (not

including a person who received the document in the course of litigation); and

(9) 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.

(c) Control of Documents. Counsel for the parties shall make reasonable

efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel

shall maintain the originals of the forms signed by persons acknowledging their obligations

under this Order for a period of three years after the termination of the case.

6. Inadvertent Failure to Designate. An inadvertent failure to designate a

document as Confidential Information does not, standing alone, waive the right to so designate

the document; provided, however, that a failure to serve a timely Notice of Designation of

deposition testimony as required by this Order, even if inadvertent, waives any protection for

deposition testimony. If a party designates a document as Confidential Information after it was

initially produced, the receiving party, on notification of the designation, must make a reasonable

effort to assure that the document is treated in accordance with the provisions of this Order. No

party shall be found to have violated this Order for failing to maintain the confidentiality of

material during a time when that material has not been designated Confidential Information, even
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where the failure to so designate was inadvertent and where the material is subsequently

designated Confidential Information.

7. Filing of Confidential Information. This Order does not, by itself, authorize the

filing of any document under seal. Any party wishing to file a document designated as

Confidential Information in connection with a motion, brief or other submission to the Court

must comply with the rules of the Court.

8. No Greater Protection of Specific Documents. Except on privilege grounds not

addressed by this Order, no party may withhold information from discovery on the ground that it

requires protection greater than that afforded by this Order unless the party moves for an order

providing such special protection.

9. Challenges by a Party to Designation as Confidential Information. The

designation of any material or document as Confidential Information is subject to challenge by

any party. The following procedure shall apply to any such challenge.

(a) Meet and Confer. A party challenging the designation of Confidential

Information must do so in good faith and must begin the process by conferring directly with

counsel for the designating party. In conferring, the challenging party must explain the basis for

its belief that the confidentiality designation was not proper and must give the designating party

an opportunity to review the designated material, to reconsider the designation, and, if no change

in designation is offered, to explain the basis for the designation. The designating party must

respond to the challenge within five (5) business days.

(b) Judicial Intervention. A party that elects to challenge a confidentiality

designation may file and serve a motion that identifies the challenged material and sets forth in

detail the basis for the challenge. Each such motion must be accompanied by a competent
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declaration that affirms that the movant has complied with the meet and confer requirements of

this procedure. The burden of persuasion in any such challenge proceeding shall be on the

designating party. Until the Court rules on the challenge, all parties shall continue to treat the

materials as Confidential Information under the terms of this Order.

10. Action by the Court. Applications to the Court for an order relating to materials

or documents designated Confidential Information shall be by motion. Nothing in this Order or

any action or agreement of a party under this Order limits the Court’s power to make orders

concerning the disclosure of documents produced in discovery or at trial.

11. Use of Confidential Documents or Information at Trial. Nothing in this Order

shall be construed to affect the use of any document, material, or information at any trial or

hearing. A party that intends to present or that anticipates that another party may present

Confidential Information at a hearing or trial shall bring that issue to the Court’s and parties’

attention by motion or in a pretrial memorandum without disclosing the Confidential

Information. The Court may thereafter make such orders as are necessary to govern the use of

such documents or information at trial.

12. Confidential Information Subpoenaed or Ordered Produced in Other

Litigation.

(a) If a receiving party is served with a subpoena or an order issued in other

litigation that would compel disclosure of any material or document designated in this action as

Confidential Information, the receiving party must so notify the designating party, in writing,

immediately and in no event more than three court days after receiving the subpoena or order.

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

(b) The receiving party also must immediately inform in writing the party

who caused the subpoena or order to issue in the other litigation that some or all of the material
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covered by the subpoena or order is the subject of this Order. In addition, the receiving party

must deliver a copy of this Order promptly to the party in the other action that caused the

subpoena to issue.

(c) The purpose of imposing these duties is to alert the interested persons to

the existence of this Order and to afford the designating party in this case an opportunity to try to

protect its Confidential Information in the court from which the subpoena or order issued. The

designating party shall bear the burden and the expense of seeking protection in that court of its

Confidential Information, 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. The

obligations set forth in this paragraph remain in effect while the party has in its possession,

custody or control Confidential Information by the other party to this case.

13. Challenges by Members of the Public to Sealing Orders. A party or interested

member of the public has a right to challenge the sealing of particular documents that have been

filed under seal, and the party asserting confidentiality will have the burden of demonstrating the

propriety of filing under seal.

14. Obligations on Conclusion of Litigation.

(a) Order Continues in Force. Unless otherwise agreed or ordered, this

Order shall remain in force after dismissal or entry of final judgment not subject to further

appeal.

(b) Obligations at Conclusion of Litigation. Upon written notice of the

producing party, within sixty-three days after dismissal or entry of final judgment not subject to

further appeal, all Confidential Information and documents marked “CONFIDENTIALSUBJECT TO PROTECTIVE ORDER” or “CONFIDENTIAL” under this Order, including
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copies as defined in ¶ 3(a), shall be returned to the producing party or destroyed unless the

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

Notwithstanding the above requirements to return or destroy documents, counsel may retain

attorney work product, including an index that refers or relates to designated Confidential

Information so long as that work product does not duplicate verbatim substantial portions of

Confidential Information, and one complete set of all documents filed with the Court including

those filed under seal. Any retained Confidential Information shall continue to be protected

under this Order. An attorney may use his or her work product in subsequent litigation provided

that it does not disclose or use Confidential information.

(c) Deletion of Documents filed under Seal from Electronic Case Filing

(ECF) System. Filings under seal shall be deleted from the ECF system only upon order of the

Court.

15. Order Subject to Modification. This Order shall be subject to modification by

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

concerning the subject matter.

16 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 document or

material designated Confidential Information by counsel or the parties is entitled 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.
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17. Persons Bound. This Order shall take effect when entered and shall be binding

upon all counsel of record and their law firms, the parties, and persons made subject to this Order

by its terms.

So Ordered.

ENTERED:

Date: March 30, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE

WE SO MOVE WE SO MOVE

and agree to abide and agree to abide

by the terms of this Order by the terms of this Order

Attorney for Plaintiff(s): Attorney for Defendant(s):

/s/ Edward R. Forman /s/ Michelle L. Casper

Counsel for Angella Streeter Counsel for Adaptasoft, Inc.

Bar # 0076651 Bar # 0091321 

/s/ Helen M. Robinson /s/ Heather A. Bailey 

Counsel for Angella Streeter Counsel for Adaptasoft, Inc.

Bar # 0097070 Bar # 6274501 (pro ha vice admission)

Dated: Dated:
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ATTACHMENT A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANGELLA STREETER, )

)

Plaintiff, )

)

vs. ) No. 17 cv 1125

Judge Algenon L. Marbley

Magistrate Kimberly A. Jolson

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

dated 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 in matters relating to the Confidentiality Order and understands that

the terms of the Confidentiality Order obligate him/her to use materials designated as

Confidential Information in accordance with the Order solely for the purposes of the abovecaptioned action, and not to disclose any such Confidential Information to any other person, firm

or concern. The undersigned acknowledges that violation of the Confidentiality Order may

result in penalties for contempt of court.

Name: Signature:

Job Title: Date:

Employer:

Business Address:

)

ADAPTASOFT, INC., )

)

Defendant. )