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IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON

Devan Smith, : 

 Plaintiff, : Case No. 3:18-cv-036 

vs. : U.S. District Judge Thomas M. Rose 

Justin Massie, Officer, et al. : U.S. Magistrate Judge Sharon Ovington 

Defendants. : 

AGREED PROTECTIVE ORDER 

To protect the confidentiality and security of medical and other personal information of the 

parties and in accordance with HIPAA, 45 C.F.R. § 164.512, 26 U.S.C. § 6013, and Rule 26(c) of 

the Federal Rules of Civil Procedure, the parties agree and the Court hereby orders the following: 

1. This Agreed Protective Order (“Order”) governs all documents and information produced 

at any time during the pendency of this action, including any documents produced prior to 

the entry of this Order, by any party or nonparty, or anyone who is subject to a subpoena 

for oral examination or a subpoena duces tecum; all information contained in any such 

documents; and all other information produced or provided in this lawsuit. This Order 

does not otherwise affect any objections to discovery made under the Federal Rules of Civil 

Procedure. 

2. To comply with HIPAA and 45 C.F.R. § 164.512, this Order specifically covers all health 

information protected by HIPAA, including medical records, disclosed by both parties and 

nonparties. All such information shall be deemed confidential and may be used only for 

purposes of this litigation. 
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3. This Order also specifically protects against the unauthorized disclosure of the contents of 

taxpayer information protected by 26 U.S.C. § 6013. 

4. Good cause exists to protect information that either side deems proprietary and confidential 

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. 

5. In responding to discovery submitted by the other side, the parties may designate any 

documents, answers to interrogatories, deposition testimony, exhibits, or other information 

produced through discovery proceedings herein as “Confidential Information.” Any 

“Confidential Information” so designated may only be used in connection with these 

proceedings and shall not be disclosed or utilized in any other respect, except as may be 

otherwise provided for in this Order. 

6. The designation “Confidential Information” shall in the first instance be limited to: (a) 

medical information, tax returns, personnel records and disciplinary records; and (b) other 

information that the party producing it believes, in good faith, to contain sensitive 

information, financial information, or other information that otherwise should be subject 

to confidential treatment. 

7. Nothing in this Order shall be construed as a finding that information designated as 

“Confidential Information” is actually “Confidential Information.” 

8. Any “Confidential Information” designation shall be without prejudice to the rights of any 

other party to apply to the Court for a determination of whether the designation is proper. 

9. Either side may object, in writing, to the designation by the other side by providing a 

description of the document(s) (with Bates number range if so marked) to which it objects 
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and its grounds for objecting to the designation. Neither side shall not be obligated to 

challenge the propriety of a designation at the time made, and failure to do so shall not 

preclude any subsequent challenge. In the event that either side disagrees with any 

“Confidential Information” designation made by the other side, the Parties shall attempt to 

resolve the dispute in good faith on an informal basis. If the dispute is not resolved within 

twenty-one days of service of a written objection, the party challenging a confidentiality 

designation may file a motion with the Court after informal attempts at resolution have 

concluded, stating its objections and request for relief from the Court. The information, 

documents or materials shall continue to receive the protection of their designation until 

the Court rules on the motion. Any party also has the right to apply for a further protective 

order if it believes greater protection than that afforded hereby is necessary for certain 

information to be produced. 

10. The designation of the information as “Confidential Information” for purposes of this 

Order shall be made as follows: 

(a) In the case of documents, answers to interrogatories, or other written materials (apart 

from depositions, other pretrial testimony, transcripts thereof and exhibits thereto), by 

stamping each page of such as “Confidential Information” or some similar designation. 

(b) In the case of depositions, other pretrial testimony, the transcripts thereof, and exhibits 

thereto, by a statement on the record by counsel for the party making the disclosure at 

the time of such disclosure. 

(c) In the case of documents produced by a non-party, by a written statement from counsel 

specifically designating the information to be Confidential Information. 

11. Whenever any “Confidential Information” is disclosed or used at a deposition or other 

pretrial testimony in this action: (i) each portion of any such testimony in which the 

“Confidential Information” is disclosed or used shall be conducted with only those persons 

in attendance who are authorized under this Order to have access to such “Confidential 
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Information;” (ii) the transcript of the confidential portion and all confidential exhibits shall 

be bound separately after transcription, marked “Confidential Information” (or comparable 

language), and shall thereafter be deemed to be fully subject to the provisions of this Order; 

and (iii) the confidential transcript and confidential exhibits shall not be filed with this 

Court except in accordance with Paragraph 12 below. 

12. Any party wishing to file anything designated as “Confidential Information” with the Court 

(including, without limitation, any such material which is revealed by, referred to, 

summarized in, or attached to any pleadings, affidavits, briefs or memoranda) shall first 

file a motion asking the Court to determine that there is good cause for filing the material 

under seal. See Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th 

Cir. 1983); Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996); 

and Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 305-06 (6th 

Cir. 2016). 

13. “Confidential Information” produced by a party may be disclosed by the parties hereto and 

their counsel only to the following persons: 

(a) to the Court at any pretrial or post-trial stage of this action, either in camera, or in 

a sealed envelope, or under such other safeguards as the Court may require in order 

for “Confidential Information” to be used or introduced at any pretrial or post-trial 

hearing herein; 

(b) to the counsel for the parties in this action actually working on this action (including 

attorneys who are officers or employees of a party and who are acting purely in a 

legal and not a business capacity with respect to this action and employees of a 

party with whom counsel may confer with respect to the action) and paralegals, 

legal assistants, and secretaries of such counsel actually working on this action; 

(c) to court reporters recording proceedings in this action; 

(d) to potential witnesses, but only if they agree to be bound by this Order; 

(e) deponents; and 
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(f) any expert(s) consulted or retained to assist in the preparation of the case, or to 

testify, who is designated in writing by any party, so long as they agree to be bound 

by this Order. 

14. Unredacted exhibits containing “Confidential Information” may be offered into evidence 

provided the proponent of the evidence gives notice of the intention to offer such 

“Confidential Information” at the time the Court requires the parties to identify their trial 

exhibits, so that the Court may impose safeguards to preserve the confidentiality of the 

information contained in the exhibits. 

15. This Order may be construed or modified by the Court, on application of any party or on 

its own initiative, to ensure that adjudication of all issues may be had in the light of all 

relevant material facts without publishing or otherwise destroying the value of any 

“Confidential Information,” except to the extent such publication or destruction cannot be 

avoided by the Court in the performance of its duties. This Order is not intended to and 

shall not benefit or be invoked by persons or entities not a party this lawsuit, other than any 

person or entity whose (a) documents that are subject to a subpoena in this action, or (b) 

documents that are in the possession of a party who, in response to discovery requests, are 

obligated to produce the non-party’s documents, may invoke the protection of the Court 

under this Order and, at its discretion, designate documents as confidential. 

16. By agreeing to this Order, none of the Parties waive attorney-client privilege or any other 

protections provided by federal or state law. This Order shall not abrogate or diminish any 

contractual, statutory, or other legal obligations or right of any party or person with respect 

to any “Confidential Information.” 

17. The provisions of this Order shall continue to be binding upon all parties and their counsel 

in this action until the conclusion of this action. The Court retains jurisdiction over the 
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parties and their counsel for enforcement of the provisions of this Order following the 

conclusion of this action. 

18. . This Order is subject to modification by the Court upon application of either party. 

 IT IS SO ORDERED. 

September 7, 2018 s/Sharon L. Ovington 

 Sharon L. Ovington 

 United States Magistrate Judge 

 

Agreed to : 

/s/ Kurtis G. Black 

Kurtis G. Black (0092231) 

Attorney for Plaintiff 

/s/ W. Charles Curley /s/ Jerome M. Strozdas 

W. Charles Curley (0007447) Jerome M. Strozdas (0003263) 

WESTON HURD LLP CITY OF SPRINGFIELD LAW DIRECTOR

10 W. Broad St., Suite 2400 76 East High Street 

Columbus, Ohio 43215 Springfield, Ohio 45502 

Phone: (614) 280-0200 Phone: (937) 324-7352 

Fax: (614) 280-0204 Fax: (937) 328-3416 

E-mail: wcurley@westonhurd.com E-mail: jstrozdas@springfieldohio.gov 

Attorneys for Defendants