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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

VERNON SMITH, 

 Plaintiff, 

 Case No. 08-14117 

v Hon. Patrick Duggan 

MICHIGAN TUBE SWAGERS 

& FABRICATORS, INC., d/b/a 

MTS SEATING, 

 Defendant. 

Nicholas Roumel (P37056) Lawrence J. DeBrincat (P43338) 

Carrie Harp (P70401) DeBrincat and Padgett 

Attorneys for Plaintiff Attorney for Defendant 

117 N. First Street, Suite 111 34705 W. Twelve Mile Road, Suite 311 

Ann Arbor, MI 48104 Farmington Hills, MI 48331 

(734) 645-7507 (248) 848-7878 

STIPULATION AND PROTECTIVE ORDER 

To expedite the flow of discovery in this proceeding in a manner consistent 

with the need to protect the confidentiality of certain elements of that discovery, 

counsel for Vernon Smith (“Plaintiff”) and Michigan Tube Swagers & Fabricators, 

Inc. (“Defendant”) stipulate and agree as follows: 

1. For purposes of this agreement, documents (as that term is defined in 

FRCP 34) and information that Michigan Tube Swagers & Fabricators, 

Inc. is producing to the parties to this action will be used only in this 

action and for no other purpose, except by Michigan Tube Swagers & 

Fabricators, Inc. for its customary business purposes. Any documents, 

records or information for which Michigan Tube Swagers & Fabricators, 

Inc. seeks additional protection will be stamped or separately segregated 

and marked “Confidential” and will be treated as confidential documents. 

Such designation will make the documents and all copies, prints, 

summaries, excerpts, or other reproductions of such documents subject 

to this order. 

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2. The contents of Michigan Tube Swagers & Fabricators, Inc. confidential 

documents will not, without leave of the court, be communicated in any 

way to anyone other than (1) this court; (2) counsel for the parties in this 

action and their paralegal and clerical assistants who have a clear need 

for these documents in connection with these actions; (3) non-attorney 

persons retained by a party or outside counsel to serve as expert 

witnesses or otherwise to provide advice to counsel in connection with 

this action, provided such persons have, before disclosure, signed an 

affidavit attesting that they have read this stipulation and protective order 

and agree to be bound by its terms; (4) deponents, according to the 

terms of paragraph 3, below; and (5) the parties and/or their employees, 

to the extent that involvement with this action is part of their job duties. 

With the exception of court personnel, persons permitted to review 

confidential documents under this order will, before obtaining access to 

such documents or information, be shown a copy of this stipulation and 

agree in writing to be bound by its terms by signing a copy of this 

stipulation. Counsel for the party wishing to disclose such material must 

retain the signed stipulation, hold it in escrow, and produce it to opposing 

counsel on request. Each party to this action, its employees, and its 

counsel will be advised of and be bound by the terms of this stipulation. 

3. Attendance at depositions taken in this action at which confidential 

documents or any information contained in those documents is 

identified, discussed, or disclosed will be limited to the deposition notary 

or court reporter, the witness, counsel for the witness, counsel for the 

parties, agents for counsel of the parties, and any representatives of the 

parties who have agreed in writing to be bound by the terms of this 

stipulation. If any such Michigan Tube Swagers & Fabricators, Inc. 

confidential documents are to be used during the deposition in this 

action of any person who is not a Michigan Tube Swagers & Fabricators, 

Inc. officer or employee, the deponent will be required to acknowledge 

on the record that he or she is aware of and agrees to be bound by the 

terms of this stipulation. That portion of the deposition transcript 

concerning any such Michigan Tube Swagers & Fabricators, Inc. 

confidential document subject to this paragraph will not be disclosed to 

any person except as provided in this stipulation and will be bound 

separately by the court reporter and labeled “Confidential.” The parties 

further agree that this stipulation and order will apply, as it applies to 

documents, to all testimony (including depositions) relating to Michigan 

Tube Swagers & Fabricators, Inc. confidential documents and 

transcriptions of the testimony given in this case. 

4. Any party to this action may request, and Michigan Tube Swagers & 

Fabricators, Inc. may agree, that the provisions of this stipulation be 

waived for one or more of the confidential documents. Any such waiver 

must be in writing, must be signed by Michigan Tube Swagers & 

Fabricators, Inc.’s counsel, and must be limited to the particular 

document(s) specifically identified in such written waiver. 

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5. The parties to this action may challenge the propriety of the designation 

by Michigan Tube Swagers & Fabricators, Inc. of specific material as 

confidential by serving a written objection on Michigan Tube Swagers & 

Fabricators, Inc.’s counsel, specifying the particular document(s) about 

which the objection is made and the grounds for the objection. The 

parties must promptly attempt to resolve any challenge in good faith 

informally. If the challenge is not resolved informally, then, after Michigan 

Tube Swagers & Fabricators, Inc.’s counsel’s receipt of the written 

objection, either party may, on reasonable notice, move for appropriate 

ruling(s) from the court. The document(s) in issue must be treated as 

confidential and subject to the restrictions of this stipulation and order 

unless and until the court orders otherwise. 

6. This stipulation and order is intended solely to facilitate the preparation 

and trial of the action and must not be construed in any way as an 

admission or agreement by any party that the designated disclosure 

actually constitutes or contains any privileged, confidential, or proprietary 

information under applicable law. Moreover, the parties recognize that 

there may be information sought in discovery of a highly confidential 

nature and that such information should not be subject to discovery, 

should be discoverable only at a later phase of the litigation, or should 

be subject to discovery only with greater restrictions than contained in 

this stipulation and order. 

7. Confidentiality of the records shall continue beyond the closure of this 

case. This stipulation and order, insofar as it restricts the 

communication and use of Michigan Tube Swagers & Fabricators, Inc.’s

confidential documents, must continue to be binding throughout and 

after the conclusion of this action, including all appeals. At the 

conclusion of this action, including all appeals, upon written request from 

Michigan Tube Swagers & Fabricators, Inc. or their attorneys, all 

Michigan Tube Swagers & Fabricators, Inc.’s confidential documents, 

including copies, must promptly be returned to Michigan Tube Swagers 

& Fabricators, Inc. To the extent such confidential documents then 

contain the work product of attorneys for Vernon Smith, such confidential 

documents must be returned to Michigan Tube Swagers & Fabricators, 

Inc., but any such attorney work product may be redacted from the 

documents. 

 8. Nothing in this stipulation and protective order must be construed to 

preclude Michigan Tube Swagers & Fabricators, Inc. from seeking 

additional protection of confidential materials or from otherwise seeking 

a modification of this stipulation and protective order. 

9. If any party to this action receives a subpoena or other formal demand 

from any source, whether related to another cause of action, proceeding, 

investigation, or otherwise for the production or disclosure of any 

Michigan Tube Swagers & Fabricators, Inc.’s confidential documents 

that are in that party’s possession or control, that party must provide to 

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Michigan Tube Swagers & Fabricators, Inc. counsel written notice of that 

subpoena or demand at least 14 days before the party’s required 

response to the subpoena or demand and that party must not interfere 

with any action that Michigan Tube Swagers & Fabricators, Inc. may 

elect to take to protect the confidentiality of the confidential documents. 

If, however, a response by a party to this action to such a subpoena or 

demand is required in less than 14 days, that party must provide 

Michigan Tube Swagers & Fabricators, Inc. with immediate notice in 

writing by fax and by telephone, to provide Michigan Tube Swagers & 

Fabricators, Inc. with as much time as possible to take action to protect 

the confidentiality of the confidential documents and that party must not 

interfere with any action Michigan Tube Swagers & Fabricators, Inc. may 

elect to take to protect the confidentiality of the confidential documents. 

10. Michigan Tube Swagers & Fabricators, Inc. may notify counsel for 

Vernon Smith that materials that should have been designated as 

confidential under this order were inadvertently produced without the 

confidential designation. On receiving such notice, Vernon Smith will (1) 

immediately treat the material as if it had been so designated; (2) place 

the appropriate designation on the material within two working days of 

receipt of such notice; and (3) provide Michigan Tube Swagers & 

Fabricators, Inc. with a list of all persons who are known to have seen, 

had access to, or learned the contents of such material, except for 

persons designated in paragraph 2 of this stipulation and protective 

order. 

11. Subject to the rules of evidence, confidential documents may be offered 

in evidence at trial, provided that the proponent of the evidence gives 

five days’ notice (or such shorter period as is reasonable under the 

circumstances) to counsel for the party or other person who designated 

the material as confidential. As a result of such notice, any party may 

move the court for an order that the documents be examined only in 

camera or under other conditions that prevent unnecessary disclosure. 

On examination, the court must determine what protection, if any, may 

be afforded the material at trial. 

12. This stipulation and protective order will become effective on its 

execution by the undersigned counsel for the parties notwithstanding the 

date the court enters the stipulation and protective order. 

IT IS SO ORDERED 

 s/Patrick J. Duggan

 Patrick J. Duggan 

 United States District Judge 

Dated: September 2, 2009 

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I hereby certify that a copy of the foregoing document was served upon counsel 

of record on September 2, 2009, by electronic and/or ordinary mail. 

 s/Marilyn Orem

 Case Manager 

 

 

AGREED TO BY: 

By: /s/ Nicholas Roumel Dated: August 31, 2009 

Nicholas Roumel (P37056) 

Attorney for Plaintiff

 

By: /s/ Lawrence J. DeBrincat Dated: August 31, 2009 

Lawrence J. DeBrincat 

(P43338) 

Attorney for Defendant 

 

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