IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

JOHN BEAN TECHNOLOGIES 

CORPORATION, a Delaware corporation, 

 Plaintiff, 

 v. 

TWIST, INC., an Ohio corporation, 

 Defendant. 

Civil No. 3:18-cv-00137-WHR-MJN 

District Judge: Judge Walter H. Rice 

Magistrate Judge: Michael J. 

Newman 

PROTECTIVE ORDER 

The Court recognizes that disclosure and discovery activity are likely to arise 

that will require the disclosure of trade secrets, confidential research, development, 

manufacturing, financial, process, marketing, and business information, or other 

commercial information within the meaning of Federal Rule of Civil Procedure 

26(c). Good cause exists to protect this information from public disclosure. In the 

absence of a suitable protective order safeguarding the confidentiality of such 

information, the parties would be hampered in their ability to produce such 

information. The parties have stipulated to abide by all terms herein, with the 

exception of the terms of paragraph 4.d infra. 

Accordingly, after considering the parties’ respective arguments as to 

paragraph 4.d, the Court hereby ORDERS that the parties shall adhere to the 

following: 
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1. Scope of this Protective Order. This Protective Order shall govern 

any record of information produced in this action and designated pursuant to this 

Protective Order, including all designated deposition testimony, all designated 

testimony taken at a hearing or other proceeding, all designated deposition exhibits, 

interrogatory answers, admissions, documents and other discovery materials, 

whether produced informally or in response to interrogatories, requests for 

admissions, requests for production of documents or other formal methods of 

discovery, as well as any designated record of information produced in this action 

pursuant to required disclosures under any federal procedural rule or local rule of 

the Court and any supplementary disclosures thereto. This Protective Order shall 

apply to the Parties and to any non-party from whom discovery may be sought who 

desires the protection of this Protective Order.

Nonparties may challenge the confidentiality of the protected information by 

filing a motion to intervene and a motion to de-designate. 

2. Definitions.

a. “Party” means a named party in this case. “Person” means an 

individual or an entity. “Producer” means a person who produces information via 

the discovery process in this case. “Recipient” means a person who receives 

information via the discovery process in this case. 

b. “Confidential” information is information concerning a Person’s 

business operations, processes, and technical and development information within 

the scope of Fed. R. Civ. P. 26(c)(1)(G), the disclosure of which is likely to harm that 
3 

person’s competitive position, or the disclosure of which would contravene an 

obligation of confidentiality to a third person or to a Court. 

c. “Highly Confidential” information is information within the 

scope of Rule 26(c)(1)(G) that is current or future business or technical trade secrets 

and plans more sensitive or strategic than Confidential information, the disclosure 

of which is likely to significantly harm that Person’s competitive position, or the 

disclosure of which would contravene an obligation of confidentiality to a third 

person or to a Court. 

d. Information is not Confidential or Highly Confidential if it is 

disclosed in a printed publication, is known to the public, was known to the 

Recipient without obligation of confidentiality before the Producer disclosed it, or is 

or becomes known to the Recipient by means not constituting a breach of this 

Order. Information is likewise not Confidential or Highly Confidential if a Person 

lawfully obtained it independently of this litigation. 

3. Designation of Information as Confidential or Highly 

Confidential.

a. A Person’s designation of information as Confidential or Highly 

Confidential means that the Person believes in good faith, upon reasonable inquiry, 

that the information qualifies as such. 

b. A Person designates information in a document or thing as 

Confidential or Highly Confidential by clearly and prominently marking it on its 

face as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” A Producer may make 
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documents or things containing Confidential or Highly Confidential information 

available for inspection and copying without marking them as confidential without 

forfeiting a claim of confidentiality, so long as the Producer causes copies of the 

documents or things to be marked as Confidential or Highly Confidential before 

providing them to the Recipient. 

c. A Person designates information in deposition testimony as 

Confidential or Highly Confidential by stating on the record at the deposition that 

the information is Confidential or Highly Confidential or by advising the opposing 

Party and the stenographer and videographer in writing, within ten (10) days after 

receipt of the deposition transcript, that the information is Confidential or Highly 

Confidential. 

d. A Person designates information in its discovery responses, 

responses to requests for admission and all other papers sent to opposing counsel as 

Confidential or Highly Confidential by clearly and prominently marking it on its 

face as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” before serving or 

sending such papers. 

e. A Person’s failure to designate a document, thing, or testimony 

as Confidential or Highly Confidential does not constitute forfeiture of a claim of 

confidentiality as to any other document, thing, or testimony. 

f. A Person who has designated information as Confidential or 

Highly Confidential may withdraw the designation by written notification to all 

Parties in the case. 
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g. If a Person inadvertently fails to designate any of its 

information pursuant to paragraph 3, it may later designate the information by 

notifying the Recipient(s) in writing and promptly providing replacement copies of 

the document or things properly designated pursuant to paragraph 3. The 

Recipient(s) shall take reasonable steps to see that the information is thereafter 

treated in accordance with the designation. However, no Person shall incur any 

liability hereunder with respect to disclosure that occurred prior to receipt of 

written notice of a belated designation. 

h. If a Party disputes a Producer’s designation of information as 

Confidential or Highly Confidential, the Party shall notify the Producer in writing 

of the basis for the dispute, identifying the specific document[s] or thing[s] as to 

which the designation is disputed and proposing a new designation for such 

materials. The Party and the Producer shall then meet and confer to attempt to 

resolve the dispute without involvement of the Court. If they cannot resolve the 

dispute, the proposed new designation shall be applied fourteen (14) days after 

notice of the dispute unless within that fourteen day period the Producer files a 

motion with the Court to maintain the Producer’s designation. The Producer bears 

the burden of proving that the information is properly designated as Confidential or 

Highly Confidential. The information shall remain subject to the Producer’s 

Confidential or Highly Confidential designation until the Court rules on the 

dispute. A Party’s failure to contest a designation of information as Confidential or 
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Highly Confidential is not an admission that the information was properly 

designated as such. 

4. Use and Disclosure of Confidential and Highly Confidential 

Information. 

a. Confidential and Highly Confidential information may be used 

exclusively for purposes of this litigation, subject to the restrictions of this 

Protective Order. 

b. Absent written permission from the Producer or further order by 

the Court, the Recipient may not disclose Confidential information to any person 

other than the following: 

(i) a Party’s outside counsel of record, including necessary 

paralegal, secretarial and clerical personnel assisting such counsel; 

(ii) a Party’s in-house counsel; 

(iii) a Party’s officers and employees directly involved in this 

case whose access to the information is reasonably required to supervise, manage, 

or participate in this case; 

(iv) a stenographer and videographer recording testimony 

concerning the information; 

(v) subject to the provisions of paragraph 4(d) of this Protective 

Order, experts and consultants and their staff whom a Party employs for purposes 

of this litigation only; and 

(vi) the Court and personnel assisting the Court. 
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c. Absent written permission from the Producer or further order by 

the Court, the Recipient may not disclose Highly Confidential information to any 

person other than those identified in paragraph 4(b)(i), (iv), (v), and (vi). 

d. A Party may not disclose Confidential or Highly Confidential 

information to an expert or consultant pursuant to paragraph 4(b) or 4(c) of this 

Protective Order until after the expert or consultant has signed an undertaking in 

the form of Exhibit A to this Protective Order. The Party obtaining the undertaking 

must serve it on all other Parties at least ten days before the first disclosure of 

Confidential or Highly Confidential information to such expert or consultant (or 

member of their staff), along with a copy of the curriculum vitae of the expert or 

consultant. If the Producer has good cause to object to the disclosure (which does 

not include challenging the qualifications of the expert or consultant), it must serve 

the Party proposing to make the disclosure with a written objection within ten days 

after service of the identification. Unless the Parties resolve the dispute within ten 

days after service of the objection, the Producer must move the Court promptly for a 

ruling, and the Confidential or Highly Confidential information may not be 

disclosed to the expert or consultant without the Court’s approval.

e. Notwithstanding paragraph 4(a) and (b), a Party may disclose 

Confidential or Highly Confidential information to: (i) any employee or author of the 

Producer; (ii) any person, no longer affiliated with the Producer, who authored the 

information in whole or in part; and (iii) any person who received the information 

before this case was filed. 
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f. A Party who wishes to disclose Confidential or Highly 

Confidential information to a person not authorized under paragraph 4(b) or 4(c) 

must first make a reasonable attempt to obtain the Producer’s permission. If the 

Party is unable to obtain permission, it may move the Court to obtain permission. 

5. Inadvertent Disclosure. Inadvertent disclosures of material 

protected by the attorney-client privilege or the work product doctrine shall be 

handled in accordance with Fed. R. Civ. P. 26(b)(5)(B) and Fed. R. Evid. 502. 

6. Filing of Confidential Information with the Court. 

a. This Protective Order does not, by itself, authorize the filing of 

any document under seal. No document may be filed under seal without prior leave 

of the Court. See Shane Group, Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299 

(6th Cir. 2016) (finding that no document may be filed with a court under seal 

without prior permission from the court as to each document, upon motion and upon 

demonstrating “why the interests in support of nondisclosure are compelling, why 

the interests supporting access are less so, and why the seal [requested] is no 

broader than necessary”). A Party wishing to file under seal a document containing 

Confidential or Highly Confidential information must submit the information to the 

Court, and if the Court approves, the Party shall submit the information pursuant 

to S.D. Ohio Civ. R. 5.2.1. 

b. If a Party submits a document containing Confidential or Highly 

Confidential information to the Court for approval to file under seal, and the Court 

denies such approval, this Protective Order does not prevent the Party from filing in 
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the public record such document that the Court has determined is not appropriate 

for filing under seal. 

c. If a Party wishes to file in the public record a document that

another Producer has designated as Confidential or Highly Confidential, the Party 

must advise the Producer of the document no later than five business days before 

the document is due to be filed, so that the Producer may move the Court to require 

the document to be filed under seal. 

7. Document Disposal. Upon the conclusion of this case, each Party

must return to the Producer all documents and copies of documents containing the 

Producer’s Confidential [or Highly Confidential] information, and must destroy all 

notes, memoranda, or other materials derived from or in any way revealing 

confidential or highly confidential information. Alternatively, if the Producer 

agrees, the Party may destroy all documents and copies of documents containing 

the Producer’s Confidential or Highly Confidential information. The Party returning 

and/or destroying the Producer’s Confidential and Highly Confidential information 

must promptly certify in writing its compliance with the requirements of this 

paragraph. Notwithstanding the requirements of this paragraph, a Party and its 

counsel may retain one complete set of all documents filed with the Court, 

remaining subject to all requirements of this Protective Order.

IT IS SO ORDERED: 

Dated: December 1, 2018 s/ Michael J. Newman 

United States Magistrate Judge 
EXHIBIT A 

IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

JOHN BEAN TECHNOLOGIES 

CORPORATION, a Delaware corporation, 

 Plaintiff, 

vs. 

TWIST, INC., an Ohio corporation, 

 Defendant. 

Civil No. 3:18-cv-00137-WHR-MJN 

District Judge: Judge Walter H. Rice 

Magistrate Judge: Michael J. 

Newman 

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 

I, _______________________, state the following under penalties of perjury as 

provided by law: 

I have been retained by _______________ as an expert or consultant in 

connection with this case. I will be receiving Confidential and/or Highly 

Confidential information that is covered by the Court’s Protective Order dated 

_________, 2018. I have read the Court’s Protective Order and understand that the 

Confidential and Highly Confidential information is provided pursuant to the terms 

and conditions in that Protective Order. 

I agree to be bound by the Court’s Protective Order. I agree to use the 

Confidential and/or Highly Confidential information solely for purposes of this case. 

I understand that neither the Confidential nor the Highly Confidential information 
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nor any notes concerning that information may be disclosed to anyone that is not 

bound by the Court’s Protective Order. I agree to return the Confidential and 

Highly Confidential information and any notes concerning that information to the 

attorney for _____________________ or to destroy the information and any notes at 

that attorney’s request. 

I further acknowledge and understand that a violation of the Protective 

Order may subject me to penalties of the Court, and I hereby submit to the 

jurisdiction of the United States District Court for the Southern District of Ohio, 

Western Division at Dayton in connection with any proceedings concerning 

enforcement of the Protective Order. 

_______________________________ 

(signature) 

_______________________________ 

Name (printed) 

Date: __________________________ 

4835-5216-2662.5