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Michleski v. LLC

United States District Court, S.D. Ohio, Eastern Division

May 8, 2017



          Anthony J. Hornbach (0082561) THOMPSON HINE LLP Attorney for Defendant LLC

          William McAllum Harrelson, II FAUST HARRELSON FULKNER MCCARTHY & SCHLEMMER, LLP Steven L Woodrow (Admitted Pro Hac Vice) Patrick H. Peluso (Admitted Pro Hac Vice) WOODROW & PELUSO, LLC Attorneys for Plaintiff Veronica Michleski.



         Plaintiff Veronica Michleski ("Michleski") and Defendant LLC, ("Contactability") have represented to the Court that a Protective Order ("Protective Order") is necessary in this case. According to the parties, such an Order will minimize the disclosure of confidential materials or trade secrets through discovery, thus streamlining the discovery process and minimizing the need for Court intervention. This Court hereby finds that the entry of this Protective Order is necessary and desirable to achieve that end, and good cause therefore appearing for the entry of this order, it is hereby ORDERED as follows:

         1. DEFINITIONS:

         In connection with discovery in this action, including the production of electronically-stored information ("ESI"), documents and things, discovery responses, deposition and trial testimony and exhibits, or any other material that contains trade secrets or other confidential research, development, or commercial information, as those terms are used in Fed.R.Civ.P. 26(c), or any information the disclosure of which would cause annoyance, embarrassment, or oppression to the disclosing individual or entity under Fed.R.Civ.P. 26(c) (hereinafter collectively referred to as "Confidential Information"), a party or nonparty who in good faith deems such materials to contain Confidential Information may designate such as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" pursuant to the terms of this Protective Order. The designation "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" shall apply to ESI, documents, discovery responses, deposition testimony or exhibits, trial testimony or exhibits, or any other materials that contain proprietary and/or competitive information regarding, inter alia, research, development, internal operations, costs, pricing, financial information, customer information, sales, marketing, technical information or other trade secrets, which would not be disclosed in the ordinary course of business without an obligation of confidentiality and which if otherwise disclosed would cause the disclosing party competitive and/or commercial harm or could place the receiving party at a competitive advantage.


         Subject to a contrary ruling by this Court, nothing in this Protective Order requires Michleski or Contactability to produce ESI, documents and things, discovery responses, and/or allow deposition or trial testimony reflecting, referring, or relating in any way to any document or ESI that Michleski or Contactability have objected to as confidential, proprietary, irrelevant, non-responsive or privileged. Should this Court order that any document or ESI that Michleski or Contactability have objected to as confidential, proprietary, irrelevant, non-responsive or privileged is discoverable, the documents, ESI, and things, discovery responses, deposition testimony, and/or deposition exhibits reflecting, referring, or relating to any disputed document(s) or ESI will be subject to the terms, conditions, and protections of this Protective Order. Notwithstanding the above, nothing in this paragraph will operate to expand or modify any Order by this Court regarding the discoverability of information that any party objected to as confidential, propriety, irrelevant, non-responsive or privileged and/or limit the parties' ability to file objections, or to file any appeal pursuant to the Federal Rules of Civil Procedure.


         a. Production: Any ESI, documents, things, discovery responses, or any other material or portions thereof designated as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" shall be so designated by the producing party or non-party at the time of their production by stamping, writing or affixing the designated materials with the legend "CONFIDENTIAL, " or "ATTORNEYS' EYES ONLY, " or if necessary for materials which cannot be conveniently designated in the manner set forth above (such as models or electronic files), by separate written statement and/or by so labeling the media on which the electronic files are produced, or as set forth in Paragraph 4 of this Protective Order. The availability of a "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" designation shall not constitute a basis for requiring production of ESI, documents and things that are otherwise privileged, irrelevant, non-responsive and/or subject to dispute regarding its discoverability.

         b. Depositions: If any question asked during a deposition calls for the disclosure of Confidential Information, counsel for the disclosing party may, to the extent possible, designate those portions of the depositions for which such claim is made at the time the testimony is given. The transcript or portions thereof shall be stamped "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY, " except as otherwise set forth in Paragraph 4 of this Protective Order,

i. After transcription, any party may appropriately designate portions of the transcript of depositions as containing Confidential Information by providing written notice of such designation is given to the other party within fourteen (14) days after receipt of the transcript. Following such notice, the parties shall confer as to the most convenient way to segregate the designated portions of this transcript.
ii. Receiving parties shall not disseminate a deposition transcript, the contents thereof, or exhibits thereto beyond the class of Qualified Persons designated in subparagraphs 7(A)(b) and 7(B)(b) and/or consultants or experts as described in subparagraphs 7(A)(g) and 7(B)(d) herein for a period of twenty-one (21) days after receipt in order to allow adequate time for notice as set forth in subparagraph 3(b)(i) of this paragraph.

         c. Filing with the Court: Any party seeking to file Confidential Information, properly designated under this Protective Order, shall seek leave of Court as set forth in Local Civil Rule 5.2.1 and attempt to file that information under seal and shall further comply with all other procedures set forth in that Local Rule. Filing of Confidential Information under seal shall not prevent or limit access of that information consistent with this Protective Order by the Court or counsel of record for the parties.

         d. The designation of any ESI, document or other material as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" shall not preclude any party from showing such Confidential Information to any person who appears as the author or as an addressee or recipient on the face of the ESI or document, or who has been provided with the ESI, document or the information therein by the designating party pursuant to paragraph 7 herein;

         e. Confidential Information shall be used solely for the purposes of this litigation and shall not be used for any business, commercial, competitive or personal use, or other proposed or pending litigation, However, nothing in this Protective Order is intended to prevent or restrict any party or non-party from using or disclosing its own Confidential Information in any manner or for any purpose. Nor shall this Protective Order restrict the use or disclosure by a party or non-party of materials obtained in good faith and independently of discovery in this action or obtained or obtainable from another source or already in the possession or knowledge of a party or non-party, who is not obligated to maintain such ESI or documents in confidence.

         f. All ESI, documents and/or tangible things comprising or containing Confidential Information, and all transcripts of testimony or exhibits thereto and copies of Court-filed papers containing Confidential Information, other than those on file with the Court, shall be kept only in the possession of the counsel of record in this litigation, or with their consultants or experts, or organizations/individuals retained to provide litigation support services and as part of the scope of their activity in this litigation.

         g. The terms of this Protective Order shall not prejudice the right of any party to introduce at trial information designated as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY, " but may do so only after giving notice to the Court and opposing counsel and after taking adequate measures to protect such Confidential Information pursuant to this Protective Order.


         A producing party or non- party may designate under Paragraphs 1 through 3 hereof any material it deems to be Confidential Information that it previously produced, but did not, through inadvertence or error, designate as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" during the production or during deposition testimony. Such designation should be made as promptly after the discovery or inadvertent production as possible. However, such subsequent designation shall be effective only as of the date it is received. The absence of any notice of confidentiality on any materials disclosed shall not constitute waiver or give rise to an inference that the information disclosed is not Confidential Information. The subsequently designating party or non-party shall notify each other party in writing specifically identifying the ESI, documents and/or things by production number or ...

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