IN THE UNITED ST ATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

DAVID DURHAM, Case No. 1: 18-cv-00091-SJD-KLL 

Plaintiff 

vs. 

DETECTIVE JERRY NIFFENEGGER, 

et. al., 

Defendants. 

Judge Matthew W. McFarland 

Magistrate Karen L. Litkovitz 

STIPULATED PROTECTIVE ORDER 

The parties, by and through their legal counsel, stipulate and agree to the terms of this 

Order, under Fed.R.Civ.P. 26(c). The parties further agree that the terms of this Agreed Protective 

Order shall remain in place until further order of the Court. The Court, having reviewed the 

agreement and stipulation of the parties, finds that good cause supports the entry of such an order 

and that justice so requires. Accordingly, it is ORDERED: 

1. Scope. All documents produced in the course of discovery including initial disclosures, all 

responses to discovery requests, all deposition testimony and exhibits, other materials that 

may be subject to restrictions on disclosure for good cause, and information derived 

directly therefrom (hereinafter collectively "documents"), shall be subject to this Order 

concerning confidential information as set forth below. As there is a presumption in favor 

of open and public judicial proceedings in the federal courts, this Order shall be strictly 

construed in favor of public disclosure and open proceedings wherever possible. The Order 

is also subject to the Local Rules of this District and the Federal Rules of Civil Procedure 

on matters of procedure and calculation of time periods. 

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2. Form and Timing of Designation. A party may designate documents as confidential and 

restricted in disclosure under this Order by placing or affixing the words 

"CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER" on the document in a manner 

that will not interfere with the legibility of the document and that will permit complete 

removal of the CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER designation. 

Documents shall be designated "CONFIDENTIAL - SUBJECT TO PROTECTIVE 

ORDER" prior to or at the time of the production or disclosure of the documents. The 

designation "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" 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. 

3. Documents Which May be Designated "CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER." Any party may designate documents as "CONFIDENTIALSUBJECT TO PROTECTIVE ORDER" upon making a good faith determination that the 

documents contain information protected from disclosure by statute or that should be 

protected from disclosure as confidential medical or psvchiatric infor.mation. Public 

records and other information or documents that are publicly available may not be 

designated as "CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER." 

4. Depositions. Deposition testimony shall be deemed "CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER" only if designated as such. Such designation shall be specific as 

to the portions of the transcript or any exhibit to be designated as "CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER." Thereafter, the deposition transcripts and any of 

those portions so designated shall be protected as CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER, pending objection, under the terms of this Order. 

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5. Protection of Confidential Material. 

a. General Protections. Documents designated "CONFIDENTIAL- SUBJECT TO 

PROTECTIVE ORDER" under this Order shall not be used or disclosed by the 

parties, counsel for the parties, or any other persons identified in if 5(b) for any 

purpose whatsoever other than to prepare for and to conduct discovery and trial in 

this action, including any appeal thereof. 

b. Limited Third-Party Disclosures. The parties and counsel for the parties shall not 

disclose or permit the disclosure of any CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER documents to any third person or entity except as set forth 

in subparagraphs (1)-(5). Subject to these requirements, the following categories of 

persons may be allowed to review documents that have been designated 

"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER:" 

1. Counsel. Counsel for the parties and employees and agents of counsel who 

have responsibility for the preparation and trial of the action; 

11. Parties. Parties and employees of a party to this Order, their insurance 

earners, brokers, and their claims investigation and administrative 

employees reasonably necessary to the evaluation and administration of the 

claims; 

111. Court Reporters and Recorders. Court reporters and recorders engaged 

for depositions; 

1v. Consultants, Investigators, and Experts. Consultants, investigators, or 

experts (hereinafter referred to collectively as "experts") employed by the 

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

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action or proceeding, but only after such persons have completed the 

certification contained m Attachment A, Acknowledgment of 

Understanding and Agreement to Be Bound; and 

v. 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. All such persons shall execute the certification contained in 

Attachment A, Acknowledgment of Understanding and Agreement to Be 

Bound. 

c. Control of Documents. Counsel for the parties shall take reasonable and 

appropriate measures to prevent unauthorized disclosure of documents designated 

as "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" pursuant to the 

terms of this Order. Counsel shall maintain the originals of the forms signed by 

persons acknowledging their obligations under this Order for a period of 1 year 

after dismissal of the action, the entry of final judgment and/or the conclusion of 

any appeals arising therefrom. 

d. Copies. Prior to production to another party, all copies, electronic images, 

duplicates, extracts, summaries or descriptions (hereinafter referred to collectively 

as "copies") of documents designated as "CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER" under this Order, or any individual portion of such a 

document, shall be affixed with the designation "CONFIDENTIAL - SUBJECT 

TO PROTECTIVE ORDER" if the designation 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 

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provided these indices, electronic 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. 

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

without a designation of "CONFIDENTIAL - SUBJECT TO PROTECTIVE 

ORDER" shall be governed by Fed. R. Evid. 502. Counsel receiving documentation 

which has been inadvertently produced shall notify producing Counsel immediately 

upon the discovery of the production and shall return the documents to producing 

Counsel. Inadvertent production of any document or information without a 

designation of "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" shall 

not waive the protections of this Order. 

6. Filing of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER Documents 

Under Seal. This Protective Order does not authorize filing protected materials under seal. 

No document may be filed with the Court under seal without prior permission as to each 

such filing, upon motion and for good cause shown, including the legal basis for filing 

under seal. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996). 

Unless the Court orders otherwise, all sealed documents shall be filed according to S. D. 

Ohio Civ. R. 5.2.1. To the extent that a brief, memorandum, or pleading references any 

document marked as "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER," the 

brief, memorandum, or pleading shall refer the Court to the particular exhibit filed under 

seal without disclosing the contents of any confidential information. 

a. Before any document marked as "CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER" is filed under seal with the Clerk, the filing party shall 

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first consult with the party that originally designated the document as 

"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" to determine 

whether, with the consent of that party, the document or a redacted version of the 

document may be filed with the Court not under seal. 

b. To the extent that it is necessary for a party to discuss the contents of any 

confidential information in a written pleading, such portion of the pleading may be 

filed under seal with leave of the Court. In such circumstances, counsel shall 

prepare two versions of the pleadings: a public and a confidential version. The 

public version shall contain a redaction of references to CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER documents. The confidential version shall 

be a full and complete version of the pleading and shall be filed with the Clerk 

under seal as above with leave of the Court. A copy of the unredacted pleading also 

shall be delivered to the judicial officer's chambers. 

c. Where agreement is not possible or adequate, before a CONDIFENTIALSUBJECT TO PROTECTIVE ORDER document is filed with leave of the Court, 

it shall be marked "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 

DOCUMENTS", displaying the case name, docket number, a designation of what 

the document is, the name of the party on whose behalf it is submitted, and name 

of the attorney who has filed the documents. 

7. Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER designation is subject to challenge by any party or 

nonparty with standing to object (hereafter "party"). Before filing any motions or 

objections to a confidentiality designation with the Court, the objecting party shall have an 

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obligation to meet and confer in a good-faith effort to resolve the objection by agreement. 

If agreement is reached confirming or waiving the CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER designation as to any documents subject to the objection, the 

designating party shall serve on all parties a notice specifying the documents and the nature 

of the agreement. 

8. Action by the Court. Applications to the Court for an order relating to any documents 

designated "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" shall be by 

motion under Local Rule 7.2 and any other procedures set forth in the presiding judge's 

standing orders or other relevant orders. Nothing in this Order or any action or agreement 

of a party under this Order limits the Court's power to make any orders that may be 

appropriate with respect to the use and disclosure of any documents produced or used in 

discovery or at trial. 

9. Use of Confidential Documents or Information at Trial. All trials are open to the public. 

Absent order of the Court, there will be no restrictions on the use of any document that 

may be introduced by any party during the trial. If a party intends to present at trial 

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents or information 

derived therefrom, such party shall provide advance notice to the other party at least five 

(5) days.before the commencement of trial by identifying the documents or information at 

issue as specifically as possible (i.e., by Bates number, page range, deposition transcript 

lines, etc.) without divulging the actual CONFIDENTIAL- SUBJECT TO PROTECTIVE 

ORDER documents or infonnation. The Court may thereafter make such orders as are 

necessary to govern the use of such documents or information at trial. 

10. Obligations on Conclusion of Litigation. 

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a. Order Remains in Effect. Unless otherwise agreed or ordered, this Order shall 

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

appeal. 

b. Return of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER 

documents. Within thirty (30) days after dismissal or entry of final judgment not 

subject to further appeal, all documents treated as CONFIDENTIAL - SUBJECT 

TO PROTECTIVE ORDER under this Order, including copies as defined in if 5( d), 

shall be returned to the producing party unless: 

I. the document has been offered into evidence or filed without restriction as 

to disclosure; 

IL the parties agree to destruction in lieu of return; or 

ni. as to documents bearing the notations, summations, or other mental 

impressions of the rece1vmg party, that party elects to destroy the 

documents and certifies to the producing party that it has done so. 

Notwithstanding the above requirements to return or destroy documents, 

counsel may retain attorney work product, including an index which refers 

or relates to information designated "CONFIDENTIAL - SUBJECT TO 

PROTECTIVE ORDER," so long as that work product does not duplicate 

verbatim substantial portions of the text or images of confidential 

documents. This work product shall continue to be CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER under this Order. An attorney may 

use his or her work product in a subsequent litigation provided that its use 

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does not disclose or use CONFIDENTIAL - SUBJECT TO PROTECTIVE 

ORDER documents. 

c. Return of Documents Filed Under Seal. After dismissal or entry of final judgment 

not subject to further appeal, the Clerk may elect to return to counsel for the parties 

or, after notice, destroy documents filed or offered at trial under seal or otherwise 

restricted by the Court as to disclosure. 

11. 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. 

12. 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 documents or information 

designated "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" by counsel or the 

parties is 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. 

13. Persons Bound. This Order shall take effect when entered and shall be binding upon all 

counsel and their law firms, the parties, and persons made subject to this Order by its terms. 

So ordered, 

MAGISTRATE JUDGE LITKOVITZ 

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AGREED: 

Isl Brad Snyder (per phone authority) 

Bradley Snyder (0006276) 

Roetzel & Andress, LP A 

41 South High Street 

Huntington Center, 21st Floor 

Columbus, Ohio 43215 

Phone: (614) 463-9770 

Fax: (614) 463-9792 

bsnyder@ralaw.com 

Counsel for Target & James Christian 

Isl Nathan Lennon (per phone authority) 

Robert W. Hojnoski (0070062) 

Nathan A. Lennon (0091743) 

Reminger Co., LP A 

525 Vine Street, Ste. 1700 

Cincinnati, Ohio 45202 

Phone: (513) 721-1311 

Fax: (513) 721-2553 

rhojnoski@reminger.com 

nlennon@reminger.com 

Counsel for Wal-Mart Stores, Inc. 

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Isl Grant J. Bacon 

Daniel T. Downey (0063753) 

Grant J. Bacon (0093708) 

Fishel Downey Albrecht & Riepenhoff 

7775 Walton Parkway, Suite 200 

New Albany, OH 43054 

Phone: (614) 221-1216 

Fax: (614-221-8769 

ddowney@fisheldowney.com 

gbacon@fisheldowney.com 

Counsel for Defendants Detective Jerry 

Niffenegger and Detective Mark Purdy 

Isl Jason Phillabaum (per email authority) 

Jason R. Phillabaum (0072219) 

Y onas & Rink, LLC 

810 Sycamore St., 5th Floor 

Cincinnati, Ohio 45202 

Phone:(513)338-1800 

Fax: (513) 263-9031 

Counsel for the Plaintiff 

Case: 1:18-cv-00091-MWM-KLL Doc #: 64 Filed: 08/25/20 Page: 10 of 11 PAGEID #: 380
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 

The undersigned hereby acknowledges that he/she has read the Agreed Protective 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 Agreed 

Protective Order and understands that the terms of the Agreed Protective Order obligate him/her 

to use documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER in 

accordance with the Order solely for the purposes of the above-captioned action, and not to 

disclose any such documents or information derived directly therefrom to any other person, firm 

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

result in penalties for contempt of court. 

Employer: ______________ _ 

Business Address --------------

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