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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

ERI ASSOCIATES, LLC, 

 

 Plaintiff, 

v. 

DRT HOLDINGS, INC., 

 Defendant. 

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Case No. 3:18-cv-00031 

Judge Thomas M. Rose 

Magistrate Judge Michael J. Newman 

STIPULATED PROTECTIVE ORDER

The parties to this action recognize that disclosure and discovery activities are 

likely to arise that will require the disclosure of trade secrets, confidential research, 

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

commercial information within the meaning of Federal Rule of Civil Procedure 26(c). The 

parties believe that 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. 

Accordingly, the parties hereby stipulate as follows, subject to the approval of the 

Court: 

1. DESIGNATION OF PROTECTED MATERIAL 

1.1 This Order shall govern all documents and other products of discovery 

obtained by the parties from one another, and from third parties, all information copied 

or derived therefrom, as well as all copies, excerpts, summaries or compilations thereof, 

including documents produced pursuant to requests authorized by the Federal Rules of 

Civil Procedure, answers to interrogatories, deposition transcripts, responses to requests 

for admission, affidavits, declarations, expert reports, and other such material and 

information as may be produced during the course of this litigation. 
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1.2 In connection with discovery proceedings in this action, any party or third 

party may designate any non-public document, material, or information as 

“CONFIDENTIAL” (referred to herein as “Protected Material”). A party may designate as 

“CONFIDENTIAL” any information, document, or thing that the party reasonably and in 

good faith believes to contain confidential information within the meaning of Fed. R. Civ. 

P. 26(c) used by it in, or pertaining to, its business and that is not generally known, and 

which that party would not normally reveal to third parties or, if disclosed, would require 

such third parties to maintain in confidence. 

1.3 The following information shall not be designated or protected under this 

Protective Order: 

(a) Information that is in the public domain at the time of disclosure, 

including publicly available publications, catalogs, packaging, and advertising 

materials; 

(b) Information that the designating party has not undertaken with 

others to maintain in confidence and that is in the possession of or becomes 

available to the receiving party other than through discovery in this action, but only 

if the receiving party can show by written documentation that the information 

independently came into its rightful possession; or 

(c) Information that is independently developed by the receiving party, 

as reflected by written documentation demonstrated to be in existence prior to 

production by the party claiming confidentiality. 

1.4 Any documents or things produced pursuant to a discovery request or other 

written materials exchanged by the parties (including discovery responses, letters, and 

briefs) that a party desires to designate as Protected Material shall be so designated by 
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marking each page of the document, paper, or thing CONFIDENTIAL and indicating the 

identity of the producing party (e.g., through the use of an identifying prefix to the 

document identification (Bates) number). 

1.5 In the event a party may make available certain of its files for inspection by 

another party, which files may contain non-confidential material as well as material that 

may be subject to protection under this Protective Order, with the intent that following 

such inspection the inspecting party will designate certain of the inspected documents to 

be copied and furnished to it, such files need not be marked with either confidentiality 

designation in advance, but shall all be treated as CONFIDENTIAL materials. Only those 

persons identified in paragraph 2.2 below as permitted to view CONFIDENTIAL 

materials may be present at any such inspection. When the producing party copies the 

documents to furnish to the inspecting party, the producing party shall mark Protected 

Material with the appropriate confidentiality designation to the extent warranted under 

paragraph 1.2. 

1.6 Whenever a deposition involves a disclosure of Protected Material, the 

following procedures shall apply: 

(a) Any party may designate any portion or all of a deposition as 

CONFIDENTIAL by notifying the other parties on the record during the 

deposition. The Court Reporter shall be asked to make the appropriate 

confidentiality designation on each page of the transcript that contains 

CONFIDENTIAL information. At that time, all persons not qualified to receive 

that category of information shall leave the room prior to continuation of the 

deposition and until the conclusion of such designated testimony. 

(b) Any party may also designate any portion or all of a deposition as 
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CONFIDENTIAL by notifying the other parties separately in writing within thirty 

days of receipt of the transcript. In such event, the parties shall confer as to the 

most convenient way to segregate the designated portions of the transcript. All 

information disclosed at a deposition and all information contained in deposition 

transcripts shall be treated as CONFIDENTIAL for a period of thirty days after the 

receipt of the transcript to permit adequate time for review of the transcript and 

notice to other counsel regarding any designation as Protected Material by a 

designating party. For purposes of this paragraph, the thirty day period begins to 

run from the date that any party receives a copy of the transcript and notifies all 

other parties that a transcript has been received. 

2. ACCESS TO AND USE OF PROTECTED MATERIAL 

2.1 Protected Material, and all summaries, compilations, and derivations 

thereof, whether oral or written, shall be maintained in confidence, shall be used solely in 

the preparation, prosecution, or trial of this action and not for any other purpose, and 

may be disclosed only as provided in the following paragraphs. 

2.2 Information which has been designated as CONFIDENTIAL may be 

disclosed only to: 

(a) The outside attorneys of record and their partners, associates, and 

employees who are engaged in assisting in this action; 

(b) The employees and/or representatives of the parties who are 

engaged in assisting in this action; 

(c) Independent consultants or experts retained by the party or its 

attorneys in connection with this action, including technical experts, damage and 

industry experts, and jury or trial consultants, together with their employees 
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engaged in assisting in this action (including mock jurors), but only subject to the 

provisions of paragraphs 2.3 and 2.4 below; 

(d) The Court and its personnel; 

(e) Court reporters and their personnel engaged in proceedings incident 

to preparation for trial or trial; 

(f) Professional vendors and their employees, including copy services, 

trial graphics services, and translation services, engaged by counsel; and 

(g) Any person who is indicated on the face of a document to have been 

an author, addressee, or copy recipient of the document, or the original source of 

the information. 

2.3 Protected Material shall be disclosed to consultants and experts only upon 

the following terms: 

(a) Prior to any disclosure, the consultant or expert shall be identified in 

writing to the other party’s counsel by name, address, and corporate, business or 

other professional affiliation or employment, together with a copy of the expert’s 

curriculum vitae and a list of the expert’s litigation or consulting engagements for 

the past ten years; 

(b) Unless another party notifies the proposing party of any objection 

within five business days after notification (by fax, by email, or by overnight mail), 

the consultant or expert shall thereafter be allowed to have access to Protected 

Material pursuant to the terms and conditions of this Protective Order; 

(c) In the event of a timely objection, which objection shall be made in 

good faith and on reasonable grounds, the proposing party shall refrain from 

disclosure of Protected Material to the consultant or expert until the objection has 
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been resolved between the parties or ruled upon by the Court; 

(d) The parties shall endeavor in good faith to resolve any such dispute 

without calling upon the intervention of the Court. The burden is on the objecting 

party to seek the intervention of the Court by appropriate motion to preclude the 

proposing party from disclosing Protected Material to the consultant or expert. If 

no such motion is filed within seven business days of receipt of the objection, the 

proposing party may disclose Protected Material to the consultant or expert as if 

no objection had been raised; and 

(e) No party shall use its right to object to a proposed consultant or 

expert to unreasonably interfere with the ability of another party to prepare for 

trial through the use of consultants and experts. 

2.4 Prior to receiving any Protected Material, any persons described in sections 

(c) or (f) of paragraph 2.2 shall be furnished with a copy of this Protective Order and shall 

execute a copy of the “Agreement to Be Bound by Protective Order” attached as Exhibit 

A. A copy of the signed Agreement shall be maintained by counsel for the party providing 

such access. 

2.5 Nothing in this Protective Order shall prevent any counsel of record from 

utilizing Protected Material in the examination of any person who is reasonably alleged 

to be the author or source of the Protected Material or who is reasonably believed to have 

knowledge relating thereto. In addition, 

(a) Officers, directors, employees, and agents of the parties and of third 

parties, may be examined as a witness at depositions and trial and may testify 

concerning all Protected Material produced or designated by that party, or by the 

third party; 
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(b) Former officers, directors, employees, and agents of the parties, or of 

third parties, may be examined and may testify concerning all Protected Material 

produced or designated by the party or third party that formerly employed such 

person and which pertains to the period or periods of his/her employment and 

prior thereto. 

2.6 Nothing in this Protective Order shall preclude any party from introducing 

Protected Material into evidence at any evidentiary hearing or at trial. However, if anyone 

intends to introduce or refer to Protected Material at any hearing or trial, the party 

wishing to make the disclosure shall first notify the producing party and provide them 

with an opportunity to object and/or to ask the Court to take appropriate precautionary 

procedures (e.g., clearing the Courtroom, sealing the record, etc.). 

2.7 Nothing in this Protective Order shall bar or otherwise restrict any attorney 

from rendering advice to his or her clients with respect to this litigation and referring to 

or relying generally upon his examination of Protected Material, provided that in 

rendering such advice and in otherwise communicating with his or her clients, the 

attorney shall not disclose the content of such information. 

2.8 All persons in possession of Protected Material shall exercise reasonable 

and appropriate care with regard to the storage, custody, and use of such information in 

order to ensure that the provisions of this Protective Order are observed, and the 

confidential nature of the information is maintained. 

3. CHALLENGES TO CONFIDENTIALITY DESIGNATIONS 

3.1 Any party believing that particular information has been improperly 

marked, i.e., that it is not in fact CONFIDENTIAL, may challenge such designation at any 

time by raising the issue, in writing to the designating party, and specifically identifying, 
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by document identification (Bates) number, by deposition page and line, or by other 

appropriate specific identifier, the information whose confidentiality status is challenged. 

Within ten business days of receipt of such writing, the designating party shall either 

remove or reduce the designation, or respond that it has reviewed the matter and 

continues to maintain the designation in good faith. 

3.2 The parties shall endeavor in good faith to resolve any such dispute without 

calling upon the intervention of the Court. If the designating party maintains its 

designation and the parties are unable to reach agreement, the challenging party may 

bring the issue to the Court. The party asserting confidentiality shall have the burden of 

establishing the appropriateness of the designation, except that a party claiming that 

information designated by the other as confidential is in the public domain shall have the 

burden of proving such public knowledge. 

3.3 Challenged information shall be treated as designated until the resolution 

of the dispute by the parties or ruling by the Court. 

4. FILING OF PROTECTED MATERIAL 

 This Order does not authorize filing Protected Materials under seal. If any party 

wishes to file any Protected Materials with the Court, the party shall first move the Court 

for leave to file the same under seal. If permission is granted, the designating party shall 

propose specific findings and conclusions that justify filing the Protected Materials under 

seal, which the Court may approve, edit, or reject at its discretion. See Shane Group, Inc. 

v. Blue Cross Blue Shield of Michigan, 825 F.3d 299 (6th Cir. 2016). The filing of records 

under seal shall follow those procedures identified in the Federal Rules of Civil Procedure 

and the Local Rules (particularly S.D. Ohio Civ. R. 5.2.1), unless the Court orders 

otherwise. Any materials rejected for sealing by the Court shall be permitted to be filed 
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in their entirety irrespective of the materials’ CONFIDENTIAL nature as noted by the 

designating party. 

5. TERMINATION OF LITIGATION 

5.1 The obligations of this Protective Order shall survive the termination of the 

action and continue to bind the parties. Within sixty days after termination of this action 

by judgment, settlement, or otherwise from which no appeal can be brought, each party 

shall destroy all documents containing or disclosing Protected Material of any other party. 

Each party’s outside litigation counsel shall have the right to retain one copy of the 

pleadings; of motions, memoranda, documents and papers filed with the Court; of 

deposition transcripts and exhibits; and of any documents constituting work product. 

5.2 In accordance with a file retention policy, or as mandated by any applicable 

Bar Association with authority on the issue of file retention upon completion of litigation, 

each party’s outside litigation counsel shall have the right to retain one copy of the 

Protected Material, pleadings, motions, memoranda, documents and papers filed with the 

Court, deposition transcripts and exhibits, and of any documents constituting work 

product. Outside litigation counsel shall continue to be bound by this Protective Order 

for so long as it is in possession of Protected Materials. 

6. THIRD PARTY DISCOVERY 

6.1 In the event that any third party shall be called upon, by subpoena or 

otherwise, to provide or produce documents or information considered CONFIDENTIAL 

by such third party, such third party may elect to have its information treated in 

accordance with the terms of this Protective Order by so notifying counsel for all parties 

in writing. Upon service of such notice, such third party may designate documents and 

information as CONFIDENTIAL in the manner set forth in this Protective Order, and 
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such third party’s designated information shall be protected in the same manner as that 

of the parties to this action. 

6.2 The parties understand that certain discovery in this litigation may seek 

information in a party’s possession for which the party owes a duty of confidentiality to 

another third party (e.g., documents involving the party and third party which are covered 

by a confidentiality agreement, or other information provided by the third party to the 

party subject to a non-disclosure agreement). If a party receives a request for information 

which implicates such a third-party confidentiality obligation, the receiving party shall be 

entitled to notify the third party of the request and allow the third party to intervene and 

seek to protect its interests. Such third party may elect to have its information treated in 

accordance with the terms of this Protective Order or it may seek an alternative remedy. 

7. INADVERTENT DISCLOSURE 

7.1 If a party inadvertently discloses any document or thing containing 

information that it deems CONFIDENTIAL without designating it pursuant to this 

Protective Order, the disclosing party shall promptly upon discovery of such inadvertent 

disclosure inform the receiving party in writing, forwarding a replacement copy of the 

inadvertently disclosed material properly marked with the appropriate confidentiality 

designation. The receiving party shall thereafter treat the information as if it had been 

properly marked from the outset and shall make a reasonable effort to retrieve and 

destroy the unmarked version of the inadvertently disclosed material. Disclosure by the 

receiving party to unauthorized persons before being notified of the inadvertent 

disclosure shall not constitute a violation of this Protective Order. Nothing in this 

Protective Order shall preclude the receiving party from challenging the confidentiality 

designation of the late-marked material pursuant to the provisions of paragraph 3. 
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7.2 The inadvertent or mistaken production or disclosure of documents or other 

information subject to the attorney-client privilege, the work product doctrine, or other 

privilege shall not be deemed a waiver of a claim of privilege, either as to the specific 

information disclosed or as to any other related information. If a producing party 

inadvertently produces or otherwise discloses to a receiving party information that is 

subject to such privilege or immunity, the producing party shall promptly upon discovery 

of such disclosure so advise the receiving party in writing and request that the 

inadvertently disclosed information be returned. The receiving party shall return all 

copies of the inadvertently produced material within five business days of receipt of the 

request. Any notes or summaries referring or relating to any inadvertently produced 

privileged material shall be destroyed. Nothing in this Protective Order shall preclude the 

receiving party returning the inadvertently produced material from seeking an order 

compelling the production of information previously produced inadvertently, if such 

production is permitted by law. 

8. MISCELLANEOUS PROVISIONS 

8.1 If Protected Material in the possession of any receiving party is subpoenaed 

by any court, administrative or legislative body, or by any other person purporting to have 

authority to subpoena such information, or is the subject of any discovery request under 

Rules 30-36 of the Federal Rules of Civil Procedure or any comparable rule of court or of 

any adjudicative body (such subpoena or discovery request collectively referred to as a 

“Third Party Request”) the party to whom the Third Party Request is directed will not 

produce such information without first giving prompt written notice (including a copy of 

the Third Party Request) to the attorneys of record for the producing party, no more than 

three business days after receiving the Third Party Request. The party receiving the Third 
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Party Request must also promptly inform in writing the party who caused the Third Party 

Request to issue in the other litigation that some or all the material covered by the Third 

Party Request is subject to this Protective Order. The party receiving the Third Party 

Request must deliver a copy of this Protective Order promptly to the party in the other 

action that caused the Third Party Request to issue. 

8.2 The producing party shall bear the burden and expense of seeking 

protection in court of its own Protected Material, and nothing in this Protective Order 

should be construed as authorizing or encouraging a party receiving a Third Party Request 

in this action to disobey a lawful directive from another court. Disclosure of information 

in response to a properly issued Third Party Request shall not constitute a violation of 

this Protective Order. 

8.3 This Protective Order may be modified by further Order of the Court, or by 

agreement of the parties or their counsel and approved by the Court, and is without 

prejudice to the rights of any party to move for relief from any of its provisions, or to seek 

or agree to different or additional protection for any particular material or information. 

8.4 Treatment by counsel or the parties of information designated 

CONFIDENTIAL as designated shall not be construed as an admission by any party that 

the designated information contains trade secrets or other proprietary or confidential 

information. Conversely, failure to so designate shall not constitute a waiver of any 

party’s claims, either within or outside this action, that any such documents or 

information do contain trade secrets or other proprietary or confidential information. 

8.5 No party shall be obligated to challenge the propriety of any designation, 

and failure to challenge a claim of confidentiality at the time of receipt shall not constitute 

a waiver of the right to challenge a designation at any later time. 
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So Ordered: 

Dated: September 6, 2018 s/ Michael J. Newman 

United States 0DJLVWUDWH Judge 

So Stipulated: 

Attorney for Plaintiff 

/s/ John H. Phillips 

John H. Phillips (0043934) 

PHILLIPS LAW FIRM,INC. 

9521 Montgomery Road 

Cincinnati, Ohio 45242 

Phone: (513) 985-2500 

Fax: (513) 985-2503 

Email: jhp@phillipslawfirm.com 

Trial Attorney for Plaintiff 

ERI Associates, LLC

Attorney for Defendant 

/s/ Robert M. Zimmerman 

Robert M. Zimmerman (0079584) 

DINSMORE & SHOHL LLP 

255 East Fifth Street, Suite 1900 

Cincinnati, Ohio 45202 

Phone: (513) 977-8549 

Fax: (513) 977-8141 

Email: robert.zimmerman@dinsmore.com 

Trial Attorney for Defendant 

DRT Holdings, Inc. 
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EXHIBIT A 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

ERI ASSOCIATES, LLC, 

 

 Plaintiff, 

v. 

DRT HOLDINGS, INC., 

 Defendant. 

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Case No. 3:18-cv-00031 

Judge Thomas M. Rose

Magistrate Judge Michael J. Newman 

AGREEMENT TO BE BOUND BY 

PROTECTIVE ORDER

I, _______________________, hereby acknowledge that I received a copy of 

the Protective Order in this action. I read and understood the Protective Order and agree 

to be bound by its provisions. I agree not to copy or use any CONFIDENTIAL information 

that may be provided to me for any purpose other than in connection with my retention 

in connection with this action, and I agree not to reveal any such information to any 

person not authorized by this Protective Order. 

I further acknowledge and understand that a violation of this 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 in connection with any proceedings 

concerning enforcement of this Protective Order. 

Dated: 

 

 Printed Name 

 Title (if applicable) 

 Company (if applicable)