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Schmitt v. Nationwide Life Insurance Co.

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

May 7, 2018

ALANA SCHMITT, Plaintiff,
v.
NATIONWIDE LIFE INSURANCE COMPANY, et al. Defendants.

          Attorneys for Plaintiffs: John A. Smalley, Esq., Dyer, Garafalo, Mann & Schultz, Paul R. Wood, Esq., Keith Scranton, Esq., Franklin D. Azar & Associates, P.C.

          Attorneys for Defendants: Steven D. Forry, Ice Miller LLP, Brian D. Boyle, Shannon M. Barrett, Meaghan VerGow, O'Melveny & Myers LLP.

          Algenon L. Marbley Judge.

          STIPULATED PROTECTIVE ORDER

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Alana Schmitt (“Plaintiff”) and Defendants Nationwide Company, Nationwide Bank, and Nationwide Trust Company (collectively, “Nationwide”) have mutually agreed to the terms of this Stipulated Protective Order (“Order”). Accordingly, it is ORDERED:

         DEFINITIONS

         A. As used in this Order, the term “Action” shall mean the above-captioned litigation.

         B. As used in this Order, the terms “Party” or “Parties” shall mean all named parties to this litigation, including Nationwide and Plaintiff, and any third parties who may produce discoverable material in this litigation, so long as the Non-Party signs a copy of the “Attachment A” attached hereto. The terms “Party” and “Parties” do not include any members of a putative or certified class other than the named Plaintiff in this Action. Should amended pleadings name additional individuals or entities as named plaintiffs or defendants, such individuals or entities will also be included within the definition of the terms “Party” and “Parties” for purposes of this Order.

         C. As used in this Order, the terms “Non-Party” or “Non-Parties” shall mean any individual, corporation, association, or other natural person or entity that is not a Party to the Action.

         D. As used in this Order, the terms “Document” or “Documents” is intended to be comprehensive and includes any and all materials in the broadest sense contemplated by Rule 34 of the Federal Rules of Civil Procedure, and shall include all written, oral, recorded, or graphic material, however produced or reproduced including, but not limited to: all written or printed matter of any kind, including the originals and all non-identical copies thereof, whether different from the originals by reason of any notation made on such copies or otherwise; electronically stored information, software, and other computer data including, but not limited to, information stored in a computer at any time; all graphic or manual records or representations of any kind including, but not limited to, photographs, microfiche, microfilm, videotape, records, and motion pictures; electronic, mechanical, or electric records or representations of any kind including, but not limited to, cassettes, discs, magnetic cards and recordings, optical and other media; and all drafts, alterations, modifications, changes, and amendments to any of the foregoing. This Order shall govern all Documents, materials, and information disclosed during the course of this litigation in any form, including, but not limited to, Documents, materials, and information produced by a Party or Non-Party, disclosed through testimony or discovery responses, or contained in pleadings, briefs, or other Documents filed with the Court.

         E. As used in this Order, the term “Protected Material” shall mean any documents, information, or other material that is designated “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” (referred to herein as “Confidential”) or “HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY” (referred to herein as “Highly Confidential”) pursuant to this Order.

         F. As used in this Order, the term “Privilege” shall mean the attorney-client Privilege, the work-product doctrine, the common-interest doctrine, and any other Privilege, protection, or immunity recognized by law.

         PROVISIONS

         1. Scope.

This Order specifically governs the production, use, and handling of confidential and/or proprietary information that is produced, exchanged by, to, or with any person involved in this lawsuit. The protections conferred by this Order cover not only Protected Material but also (i) any information copied or extracted from Protected Material; (ii) all copies, excerpts, summaries, or compilations of Protected Material; and (iii) any testimony, conversations, or presentations by Parties or their counsel that might reveal Protected Material. This Order and the term “Producing Party” extends to all Parties as well as any Non-Parties who produce records or deposition testimony in this case in response to a subpoena issued by a Party, so long as the Non-Party signs a copy of the “Attachment A” attached hereto. Other than as expressly provided in this Order, this provision does not entitle any Non-Parties to receive any discovery materials exchanged between the Parties. Nothing in this Order shall prevent or restrict a Producing Party's own disclosure or use of its own Protected Material for any purpose.

         2. Material which may be designated Confidential.

Any Producing Party may designate as Confidential any Document, material or information supplied in any form, or any portion thereof, which contains confidential or proprietary business, commercial, research, personal, personnel, process, product, or financial information of the Producing Party or Non- Party. By way of example, and not limitation, Confidential material includes: discussions of business operations, processes, and procedures; customer lists and information; personally identifiable information such as social security numbers; proprietary software or systems; proprietary edits or customizations to software; proprietary product information; margin, cost, and pricing information; trade secrets; confidential research and analysis; board materials, discussions, and presentations; executive meeting minutes, materials, discussions, and presentations; non-public interactions with government regulatory bodies; negotiation strategies; information that a Party is legally or contractually required to keep confidential; information pertaining to Defendants' employees or customers that is not publicly available; and technical, sales, or other commercially sensitive information, including without limitation information or data relating to strategic plans, data received from a Non-Party pursuant to a current NonDisclosure Agreement, commercial agreements, settlement negotiations, and settlement agreements. A designation of Confidential by a Party shall constitute a representation to the Court that such Party or a Non-Party believes in good faith that the information constitutes confidential material. The Parties and Non-Parties shall make a good-faith effort to designate information only as needed.

         3. Documents which may be designated as Highly Confidential.

Any Producing Party may designate Documents as Highly Confidential upon making a good faith determination that the Documents contain highly sensitive trade secrets or other highly sensitive competitive or confidential information and disclosure to another Party may potentially cause substantial harm.

         4. Form and Timing of Designation.

A Producing Party may designate Documents as Protected Material by placing or affixing the words “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” or “HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY” on the Document in a manner that will not interfere with the legibility of the Document and that will permit complete removal of the designation, if necessary. Any electronically stored information may be designated as Confidential or Highly Confidential through a correspondence providing the media and a hard copy or printout shall be treated as protected material of the same designation. Documents shall be designated Confidential or Highly Confidential prior to or at the time of the production or disclosure of the Documents. A Confidential or Highly Confidential designation 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. Unless otherwise agreed by the parties in writing, prior to designating any material as a Protected Document, counsel of record must make a good faith determination that the material is subject to the protections of this Order.

         5. Additionally, any Party or Non-Party may designate as Confidential or Highly Confidential any Documents produced by any other Party, following its or its counsel's determination that the Document was provided or produced without such designation. In each such case, the Party or Non-Party designating the document shall provide to the receiving Parties written notice of that designation and, as necessary, a copy of the document marked or identified in accordance with Paragraph 4.

         6. Depositions.

From the date of a deposition or other pretrial or trial proceedings until twenty (20) business days after the date on which the court reporter makes available to all Parties the certified transcript of the proceeding, such transcript shall be treated as Highly Confidential in accordance with this Order. Alternatively, designating Parties may, but are not required to, identify Protected Material on the record, before the close of the deposition, hearing, or other proceeding in question. Absent a timely designation (or other agreement between the Parties as to timing) of some or all of the final transcript as Confidential or Highly Confidential, this presumptive designation shall lapse. The designation by a Party of a transcript, exhibit, or videotape (or any portion of these) as Confidential or Highly Confidential shall be made in writing and served upon all counsel of record and the relevant court reporter. Any transcript, exhibit, or videotape (or portion thereof) designated as Confidential or Highly Confidential shall thereafter be treated in accordance with this Order. Any designation of a transcript (or portion thereof) shall be treated as a designation of the corresponding portion of the video, and vice-versa. Any designation shall be specific as to the portions of the transcript or any exhibit to be designated.

         7. Any Party may use material designated Confidential in an examination of a witness at a deposition, provided that (i) the witness is an author, addressee, recipient, or source of the Confidential material; (ii) the witness is a current or former employee of the Producing Party or Non-Party that produced the Confidential material; (iii) the witness is likely to have had knowledge of the material to be disclosed that is designated Confidential; or (iv) the witness is one of the persons identified in Paragraph 9(b) below. Any Party may use material designated Highly Confidential in an examination of a witness at a deposition, provided that (i) the witness is an author, addressee, recipient, or source of the material designated Highly Confidential; (ii) an appropriate 30(b)(6) designee of the producing party; or (iii) the witness is one of the persons identified in Paragraph 9(c) below. Absent any of these circumstances, the Party wishing to use Protected Material in an examination of a witness must obtain consent from the Producing Party or entity and such consent may not be unreasonably withheld. If the Parties cannot agree on whether a Party may use Protected Material in an examination of a witness not otherwise permitted under this Paragraph, then the Court shall be asked to resolve the dispute.

         8. The Producing Party shall have the right to exclude from attendance at the deposition, during such time as the Protected Material is to be discussed or disclosed, any person other than the deponent, the deponent's counsel, the court reporter and videographer as applicable, and persons entitled to access to the Protected Material pursuant to Paragraph 9(b) of this Order. The Producing Party shall have the right to exclude from attendance at the deposition, during such time as the Highly Confidential Protected Material is to be discussed or disclosed, any person other than the deponent, the deponent's counsel, the court reporter and videographer as applicable, and persons entitled to access to the Highly Confidential Protected Material pursuant to Paragraph 9(c) of this Order.

         9. Protection of Confidential and Highly ...


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