The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ELECTRIC INSURANCE COMPANY, ) Case No. 1:19-cv-1082
)
Plaintiff, )
) (Hon. Timothy S. Black)
-v- )
)
HAMILTON COUNTY, OHIO, et al., )
)
Defendants. )
STIPULATED PROTECTIVE ORDER
This Stipulated Protective Order (“Protective Order”) is submitted by Plaintiff Electric
Insurance Company (“EIC” or “Plaintiff”), and Defendants, Hamilton County, Ohio and Board of
Commissioners for Hamilton County Ohio (the “County”), Defendant Asplundh Tree Expert Co.
(“Asplundh”), and Defendant Davey Tree Expert Co. (“Davey”) (collectively the “Parties”).
RECITALS
WHEREAS, to promote the efficient administration of this case and to adequately protect
information and material entitled to be kept confidential, and to ensure that protection is afforded
only to material so entitled, the undersigned parties jointly submit this Protective Order, which
shall govern the production and treatment of confidential material (as defined herein) in this
Action.
WHEREAS, the Parties recognize that during the course of this action (the “Action”), it
may be necessary to disclose trade secrets or non-public commercial, research, financial, process,
marketing or business information or other confidential information within the meaning of Rule
26(c) of the Federal Rules of Civil Procedure; and
WHEREAS, the Court has considered the principles set forth in Shane Group, Inc. v. Blue
Cross Blue Shield of Michigan, 825 F.3d 299 (6th Cir. 2016), regarding the importance of the
Court’s involvement in and review of the Protective Order; and
WHEREAS, the parties desire to minimize the necessity for objections and motions and
to facilitate the flow of information relevant to this Action without piecemeal motions for
protective orders or other unnecessary discovery motions;
Accordingly, pursuant to Rule 26(c), Federal Rules of Civil Procedure, it is hereby:
ORDERED and ADJUDGED that this Protective Order shall govern the production and
handling of information exchanged by both the Parties and by third parties in these proceedings as
follows:
1. This Protective Order is entered for the purpose of the Parties exchanging
confidential documents and information in connection with this litigation. This Protective Order
also shall apply to and govern the production of confidential documents by third parties in
connection with the litigation. The Protective Order is necessary because some documents
produced hereunder contain information protected from disclosure by law, confidential
information, trade secrets, proprietary work product, or commercially sensitive information,
disclosure of which could result in violation of law, or harm to individual consumers, third parties,
or the Parties.
2. For purposes of this Protective Order, the term “document” as used herein includes
all documents and things as described in Rule 34(a) of the Federal Rules of Civil Procedure. A
“Confidential Document” means any document which bears the legend (or which otherwise brings
it to the attention of a reasonable examiner): “Confidential.” Confidential Documents must be
designated as such concurrently with the disclosure of the documents. “Confidential Information”
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means any oral or non-documentary information designated confidential at any deposition or
hearing, or in writing within twenty days of such deposition or hearing by the declarant or his or
her counsel; provided that any designation of oral or non-documentary information as confidential
must be specific as to the portion to be protected. “Confidential Materials” means Confidential
Documents and/or Confidential Information.
3. Documents provided by any Party or third party pursuant to this Protective Order
that are deemed and denominated by any Party or producing third party as “Confidential” pursuant
to this Protective Order shall be deemed to be Confidential Material, unless and until that
designation is challenged pursuant to paragraph 4, below. Confidential Material may be
designated as such by affixing to the material the legend “Confidential” or “Confidential-
Attorney’s Eyes Only.” The failure to designate any documents with such legend shall not
constitute a waiver by any Party or producing third party of the right to assert that such documents
contain protected Confidential Material. In the event that any Party or third party produces
Confidential Material without designating it as such, the producing Party or third party may notify
the receiving Parties that the documents or information should have been designated Confidential
Material, and the Parties will treat the documents as Confidential Material under this Protective
Order. Disclosure, prior to receipt of such notice, of such Confidential Material to persons not
authorized to receive Confidential Material shall not be deemed a violation of this Protective
Order. Confidential Material shall only mean and shall be limited to the documents produced in
this Action marked with a Bates Stamp number or a native format document tracked with a hashtag
value or the like. In the event a Party obtains a duplicate copy of a document produced in discovery
in this litigation from a publicly available source, the Party acquiring the document shall not be
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required to comply with the terms of this Order regarding the use of the duplicate document, and
the use of such duplicate document shall not be subject to the provisions of the Order.
4. A Party shall not be obligated to challenge the propriety of a designation of
confidentiality at the time made, and a failure to do so shall not preclude a subsequent challenge
thereto. In the event that any Party disagrees at any stage of these proceedings with the
confidentiality designation by the producing Party or third party, the Parties shall first try to dispose
of such dispute in good faith on an informal basis. If after fifteen (15) days the dispute cannot be
resolved, the Party objecting to the designation may, at any time thereafter, seek appropriate relief
from the Court in which this Action is pending. The challenged designation shall be maintained
and shall remain in full force and effect pending the Court’s determination on the challenged
designation.
5. All Confidential Material provided pursuant to this Protective Order is provided
solely and exclusively for purposes of litigating this Action. Absent further written agreement
between the Parties or further court order, all such materials shall be maintained confidential
pursuant to this Protective Order and shall not be disclosed, discussed, or in any way divulged to
any person for any other purpose, except as permitted under this Protective Order.
6. Confidential Materials, or copies or extracts of Confidential Materials, or
compilations and summaries of Confidential Materials, may be disclosed, summarized, described,
characterized, or otherwise communicated or made available, in whole or in part, only to the
following persons (each an “Authorized Person”):
a. Counsel for the parties or their agents;
b. The Parties;
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c. The parties’ experts and their agents for the purpose of assisting in the
preparation of the case or for the purpose of testifying by deposition or at
the trial of this matter;
d. Actual or proposed witnesses;
e. Court personnel;
f. Any party’s internal public auditor, regulator, or other governmental entity
with jurisdictional authority over the recipient;
g. Any insurance company potentially responsible for indemnifying a party
for defense costs or a judgment in this proceeding;
h. Any arbitrator or mediator if this case is submitted to arbitration or
mediation; or
i. Other persons whom the attorneys deem reasonably necessary to review the
Confidential Materials for the prosecution or defense of this Action.
Nothing in this Protective Order restricts the use of Confidential Materials during trial,
subject to an objection of a Party opposing the introduction of Confidential Materials as evidence
during trial. Each person who is permitted to see or is informed of Confidential Materials must be
shown a copy of this Protective Order and must be advised, by counsel showing the person
Confidential Materials, of this Protective Order and each person’s obligation to maintain the
Confidential designation. For each such person, counsel must document in written form
(Attachment A) that he or she has advised that person in accordance with this paragraph. The
Parties shall keep all of their respective Agreements to Maintain Confidentiality containing
original signatures.
Confidential Materials designated as “Confidential-Attorney’s Eyes Only” may only be
shown to or shared with (a) the Court and personnel assisting the Court in this Action, including
Court Reporters and stenographic or clerical personally and (b) the Parties’ counsel, including in-
house counsel. Confidential Material designated as “Confidential-Attorney’s Eyes Only” shall not
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be disclosed or communicated in any manner, either directly or indirectly, to any other persons,
except with the express written consent of the Producing Party.
7. Individuals other than those set forth in Paragraph 6 to whom such confidential
documents or information are shown, furnished, or otherwise disclosed, shall be first shown a copy
of this Protective Order, and then shall sign the document in the form of Exhibit A hereto. Counsel
shall retain the signed acknowledgement form, and, upon demand, shall permit opposing counsel
to inspect and copy the same, provided disclosure is not inconsistent with provisions of the Federal
Rules of Civil Procedure.
8. Individuals authorized to review Confidential Materials provided to them under
Paragraph 6 and 7 shall hold the Confidential Materials in confidence and shall not divulge the
Confidential Materials, either verbally or in writing, to any other person, entity, or government
agency unless authorized by court order.
9. The Party or Party’s counsel who discloses the Confidential Materials pursuant to
Paragraph 6 and 7 shall be responsible for assuring compliance with the terms of this Protective
Order with respect to each such person.
10. No copies of Confidential Materials shall be made except by or on behalf of counsel
in this litigation, and such copies shall be made and used solely for purposes of this litigation.
11. It is specifically understood and agreed to by the Parties that any Confidential
Materials so designated pursuant to this Protective Order may only be used for the specific
purposes of this Action and not for the business purposes of the Parties.
12. If any other person or entity demands, by subpoena or other judicial process, or by
operation of law production of documents produced and marked as Confidential pursuant to this
Protective Order, the Party receiving such demand shall promptly notify the producing Party or
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third party of such demand. At its option, the producing Party or third party may elect to challenge
the demand and assert any applicable protections. The objecting Party or third party shall notify
the other Parties hereto and issuing court or tribunal of its challenge as required by law, the
subpoena, or other judicial process. The burden of proving that Confidential Material is entitled
to protection from disclosure shall be with the Party or third party making the claim of
confidentiality. When such a challenge is made, the Party who received the demand shall not
produce any Confidential Material in the absence of consent by the producing Party or third party
or an order by the issuing court or tribunal compelling production.
13. The Parties hereto shall not contend or assert that a Party’s production of
Confidential Material pursuant to this Protective Order in any way acts as a waiver of any privilege,
work product doctrine, or discovery or evidentiary objections by the producing Party, or otherwise
entitles the receiving Party to obtain or use Confidential Material in a manner contrary to this
Protective Order. In the event any party, who has designated a document (the “Designating Party”)
as Confidential Material pursuant to this Order, wishes to file under seal the Confidential Material,
the Designating Party shall first consult with the Non-Designating Party as soon as reasonably
practicable to determine whether agreement may be reached on an informal basis. After consulting
with the Non-Designating Party, the Designating Party shall as soon as reasonably practicable file
a motion with the Court demonstrating good cause for the sealing with a request that the
Confidential Material be filed under seal pursuant to Court rules and remain under seal until such
time as the Court orders otherwise. The Court will then determine whether the document should
be filed under seal and enter an appropriate order. In the event a Non-Designating Party wants to
include in a court filing Confidential Material, which will not be the subject of a motion by the
Non-Designating Party seeking the Court’s permission to file the document under seal, the Non-
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Designating Party must give the Designating Party at least 5 days advance notice to allow the
Designating Party to file its own motion seeking a Court determination of whether the document
should be filed under seal. The Non-Designating Party must not file the Confidential Material
with the Court until the Court has ruled upon the Designating Party’s motion to file under seal.
Any dispositive motion deadline pertaining to the Non-Designating Party’s motion shall be
automatically extended by the number of calendar days equal to the number of calendar days
measured from the date that the Non-Designating Party provided advance notice of its desire to
include Confidential Material in the dispositive motion at issue to the Designating Party through
and including the date upon which the Court issues its ruling upon the Designating Party’s motion
to file the same under seal. In the event the Designating Party fails to file a motion to seal within
5 days after notification by the Non-Designating Party of its intent to file Confidential Material,
the Non-Designating Party shall not then be required to file the Confidential Material under seal
and may proceed to file the same with the Court. Any Confidential Material filed under seal shall
remain under seal until such time as the Court orders otherwise. Notwithstanding anything stated
herein to the contrary, the Court, and not the parties, shall determine which documents may be
filed under seal; this Protective Order does not authorize the filing of Confidential Material under
seal; and no document may be filed with the Court under seal without the prior permission of the
Court as to each such filing.
14. Nothing in this Protective Order confers upon the Parties any further right or access
to documents or information not provided by the other Parties, including but not limited to any
documents a Party or third party withholds on the basis of any applicable privilege or immunity,
regardless of whether such withheld document(s) may otherwise qualify as Confidential Material
if produced rather than withheld. With respect to Confidential Material produced, each Party
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reserves its rights under this Protective Order, and otherwise under law. Any documents withheld
on this basis or any other basis must be identified on a privilege log to be provided by the Party or
third party asserting the privilege or other protection within two weeks of the date the document(s)
would have been produced had it not been privileged or otherwise protected from disclosure.
15. Within sixty (60) days after final adjudication of this Action, including any
resolution through settlement, unless otherwise agreed to in writing by Counsel for all Parties, the
Parties shall either (a) assemble and return all Confidential Materials, including all copies thereof,
to the producing Party or third party, or (b) certify in writing that all such information has been
destroyed. The persons and entities identified in subparagraphs 6(a)-(i) may retain copies of any
Confidential Material produced to them as reasonably necessary to comply with future requests for
review by reinsurers, auditors, regulators, or as necessary to exercise or enforce any subrogation
rights, or as necessary to meet other business requirements. When such retention is no longer
needed, such persons and entities shall return to the producing Party the retained documents or
destroy those documents in accordance with their standard document or data destruction
procedures, subject to any applicable litigation hold or any other document or information hold
imposed by any governmental body or court order. Any person or entity retaining such Confidential
Material shall maintain its confidentiality in accordance with this Protective Order until such
documents are returned or destroyed. The Parties’ counsel are also permitted to retain copies of
Confidential Material provided to them in the course of their representation of the Parties. This
paragraph does not apply to any documents or information ordered produced by a court without
the limitations set forth in this Protective Order, or to work product generated by counsel. The
Parties further agree that all documents generated by them that summarize or otherwise include
Confidential Material are governed by all other sections and subsections of this Order. To the
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extent any Party retains any Confidential Material pursuant to a separate written agreement, the
terms of this Protective Order will continue to govern.
16. To enforce rights under this Protective Order or in the event of an alleged violation
of this Protective Order, the Parties and/or any producing third party shall first seek to resolve the
alleged violation through prompt and reasonable discussion. In the event such efforts fail to
promptly resolve the alleged violation, the Parties and/or any producing third party reserve the
right to seek relief from the Court in the Action for, inter alia, money damages, injunctive relief,
or any other relief as appropriate.
17. Pursuant to Federal Rule of Evidence 502(d), the production of information that is
subject to the attorney-client privilege, work product doctrine, or other claimed privileges,
doctrines, exemptions, or restrictions that the producing Party might cite in good faith as a basis
for withholding such information from production to any other Party shall not be deemed, and
shall not constitute, in this or any other federal or state proceeding, a waiver of any otherwise
applicable privilege or protection. The Parties shall not have to meet the requirements of Fed. R.
Evid. 502(b)(1)-(3). The Parties’ production of Confidential Material is not intended to, and shall
not, waive or diminish in any way the confidentiality of such material or its continued protection
under the attorney-client privilege, work product doctrine, or any applicable privilege as to any
other third party. Furthermore, in the event that a Party or third party produces attorney-client
privileged or otherwise privileged documents or information, or other documents protected by law
from disclosure even under a Protective Order, and if the Party or third party subsequently notifies
the receiving Party that the privileged documents or information should not have been produced,
the receiving Party shall immediately return the originals and all copies of the inadvertently
produced privileged documents and information.
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18. The Protective Order shall be binding upon and inure to the benefit of the Parties
hereto, their affiliates, their representatives, and the Parties’ respective successors or assigns. No
Party may assign any right or delegate any duty under this Protective Order other than to an affiliate
without the other Party’s prior written consent.
19. All notices required to be given under the Protective Order shall be in writing and
delivered to the addressees set forth below. Written notice shall be sent via e-mail or by overnight
delivery.
If to Plaintiff EIC: William N. Minor
KEATING MUETHING & KLEKAMP PLL
One East Fourth Street, Suite 1400
Cincinnati, OH 45202
Phone: (513) 579-6400
Fax: (513) 579-6457
wminor@kmklaw.com
Counsel for Plaintiff
If to Defendant the County: David T. Stevenson
Assistant Prosecuting Attorneys
230 E. 9th Street, Suite 4000
Cincinnati, OH 45202
Dave.Stevenson@hcpros.org
If to Defendant Asplundh: Patrick Kasson (0055570)
REMINGER CO., L.P.A.
200 Civic Center Drive, Suite 800
Columbus, Ohio 43215
(614) 228-1311; FAX: (614) 232-2410
Email: pkasson@reminger.com
Counsel for Defendant Asplundh Tree Expert Co.,
LLC
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If to Defendant Davey: Michelle L. Casper, Ohio Bar No. 0091321
SMITHAMUNDSEN LLC
150 North Michigan Avenue, Suite 3300
Chicago, Illinois 60601-7524
Telephone: 312.894.3200
Facsimile: 312.894.3210
MCasper@salawus.com
Attorney for Defendant, The Davey Tree
Expert Company
20. Nothing contained in this Confidentiality Stipulation and Agreement, and no action
taken pursuant to it, will prejudice the right of any Party to contest the alleged relevancy,
admissibility, or discoverability of the documents and information sought.
SO ORDERED this 2nd_ day of __ December __, 2020.
riohyy 2.
Timoth lack, U.S. District Court Judge
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STIPULATED AND AGREED:
/s/ William N. Minor _ /s/ David T. Stevenson per email
William N. Minor (0084153) authorization dated 06/25/2020
Taylor V. Trout (0093886) David T. Stevenson, Esq.
Collin L. Ryan (0095810) Eric Munas, Esq.
KEATING MUETHING & KLEKAMP PLL Assistant Prosecuting Attorneys
One East Fourth Street, Suite 1400 Hamilton County Prosecutor’s Office
Cincinnati, OH 45202 230 E. 9th Street, Suite 4000
Phone: (513) 579-6400 Cincinnati, Ohio 45202
Fax: (513) 579-6457 dave.stevenson@hcpros.org
wminor@kmklaw.com eric.munas@hcpros.org
ttrout@kmklaw.com
cryan@kmklaw.com Attorneys for Defendants
Hamilton County, Ohio and the
Attorneys for Plaintiff, Electric Insurance Board of County Commissioners
Company of Hamilton County, Ohio
/s/ Alex F. Freitag per email authorization dated /s/ D. Patrick Kasson per email
06/22/2020 authorization dated 06/24/2020
Michelle L. Casper, Esq. D. Patrick Kasson, Esq.
Alex F. Freitag, Esq. Reminger Co., LPA
SmithAmundsen LLC 200 South Civic Center Drive, Suite
150 N. Michigan Avenue, Suite 3300 800
Chicago, Illinois 60601-7524 Columbus, Ohio 43215
mcasper@salawus.com pkasson@reminger.com
afreitag@salawus.com
Attorney for Defendant
Attorneys for Defendant, The Davey Tree Asplundh Tree Expert Co., LLC
Expert Company
10035855.1
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EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ELECTRIC INSUR ANCE COMPANY, Case No. 1: 19-cv-1082
)
)
Plaintiff,
(Hon. Timothy S. Black)
)
-v- )
)
HAMILTON COUNTY, OHIO, et al., )
)
Defendants.
)
CONFIDENTIALITY AGREEMENT
I hereby acknowledge that I have been provided and have read a copy of the Stipulated
Protective Order, (the “Protective Order”), a copy of which is annexed hereto, in the above
reference matter, which is now pending in the Southern District of Ohio, Western Division (the
“Court”). I understand that any Confidential Material within the meaning of the Protective Order
shown to me is confidential, shall be used by me only as provided in the Protective Order, and
shall not be disclosed by me unless expressly permitted under the Protective Order. I agree to be
bound by the terms and conditions of the Protective Order. I will return any such Confidential
Material provided to me and will not retain any copies of Confidential Material, including any
notes or other documents generated that include any content from the Confidential Material,
pursuant to the terms of the Protective Order.
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I hereby consent to the jurisdiction of the Court with regard to any proceedings to enforce
the terms and conditions of this Protective Order.
Name: Date:
(signature)
Name: Telephone:
(printed) (Business)
Company: ______________________________
(Home)
_____________________________
(Cell)
Address:
City:
State/Zip Code:
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