Motion for Protective Order in Ohio

What Is a Motion for Protective Order?

Background

“A court may regulate the discovery of trade secrets by ordering ‘that [the] use of the discovered information be limited to the lawsuit’ and by ‘limit[ing] the persons who have access to the information’” (Armstrong v. Marusic, 2004 Ohio 2594 [Ohio Ct. App. 2004] quoting Alpha Benefits Agency, Inc. v. King Ins. Agency, Inc. (1999) 134 Ohio App.3d 673, 683.)

Indeed, “under Ohio's Uniform Trade Secrets Act, [...] the court may preserve the secrecy of an ‘alleged trade secret by reasonable means that may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.’” (Armstrong v. Marusic, 2004 Ohio 2594 [Ohio Ct. App. 2004] quoting R.C. 1333.65.)

General Information for Complaints and Motions

Civ.R. 26(C) governs protective orders in Ohio. The rule provides:

“Upon motion by any party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

that the discovery not be had;
that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
that certain matters not be inquired into or that the scope of the discovery be limited to certain matters;
that discovery be conducted with no one present except persons designated by the court;
that a deposition after being sealed be opened only by order of the court;
that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.”

(Civ.R. 26(C).)

“In determining whether to grant a protective order, a trial court must balance the competing interests to be served by allowing the discovery to proceed against any harm which may result.” (Montrose Ford, Inc. v. Starn (2002) 147 Ohio App.3d 256, 259, citing Arnold, 93 Ohio App.3d at 576.)

Standard of Review and Burdens of Proof

“‘The burden of establishing good cause for a [P]rotective [O]rder rests with the movant.’” (Stout v. Remetronix, Inc. (2014) 298 F.R.D. 531, 534, quoting Nix v. Sword (2001) 11 Fed.Appx. 498, 500 [6th Cir.].)

“To demonstrate good cause, the movant ‘must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought and cannot rely on mere conclusory statements.’” (Id.)

“The mere presence of ‘trade secrets’ does not automatically entitle the producing party to an AEO [P]rotective [O]rder. The burden remains on the producing party to show that the AEO protection is warranted.’” (Id. at 534–535, quoting Penn, LLC v. Prosper Business Development Corp., S.D.Ohio No. 2:10–cv–0993, 2012 WL 5948363, *4 [Nov. 28, 2012].)

Further, the producing party must state the harm it will suffer with “sufficient particularity,” which requires “‘specific demonstrations of fact, supported where possible by affidavits and concrete examples.’” (Id. at 535, quoting Penn at *4; Lima Mem'l Hosp. v. Almudallal (2016) 69 N.E.3d 204, 213-14 [Ohio Ct. App.].)

The Court’s Decision

“[C]onfidential trade secret information is not absolutely privileged.” (Svoboda v. Clear Channel Communications, Inc., 6th Dist. No. L-02-1149, 2003-Ohio-6201, at ¶ 19.) “The disclosure of such information in discovery is contemplated both by Civ.R. 26(C) and by R.C. 1333.65, provided its secrecy is preserved.” (Armstrong v. Marusic, 2004 Ohio 2594 [Ohio Ct. App. 2004].)

“It is axiomatic that documents containing privileged information or those constituting trade secrets are exempt from disclosure. (Gibson-Myers v. Pearce, C.A. No. 19358, at *1 [Ohio Ct. App. Oct. 27, 1999] citing State ex rel. The Plain Dealer v. Ohio Dept. of Ins. (1997) 80 Ohio St.3d 513, 517; State ex rel. Toledo Blade Co. v. Univ. of Toledo Found. (1992) 65 Ohio St.3d 258, 264; Calihan v. Fullen (1992) 78 Ohio App.3d 266.)

“Just as the phrase ‘provisional remedy’ encompasses the discovery of privileged material, it should also be read to include the discovery of confidential information, i.e. trade secrets. On its face, R.C. 2505.02(A)(3) is flexible and able to address situations where a party has a protectable interest at stake and yet has no meaningful ability to appeal the decision which discloses that interest to others.” (Gibson-Myers, id.)

“If a trial court orders the discovery of trade secrets and such are disclosed, the party resisting discovery will have no adequate remedy on appeal. The proverbial bell cannot be unrung and an appeal after final judgment on the merits will not rectify the damage. In a competitive commercial market where customers are a business' most valuable asset and technology changes daily, disclosure of a trade secret will surely cause irreparable harm.” Gibson-Myers v. Pearce, C.A. No. 19358, at *1 (Ohio Ct. App. Oct. 27, 1999) [holding that “any order compelling the production of documents which constitute trade secrets is a final appealable order under R.C. 2505.02(B)(4).”])

Documents for Motion for Protective Order in Ohio

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12-CA-0004

4 pages

TIMNEAL, CLERK. WAYNE COUNTY COMMON PLEAS COURT 107 W. LIBERTY ST., PO BOX 507, WOOSTER, OHIO 44691 PHONE: (330) 287-5591 FAX: (330) 287-5416 NINTH DISTRICT COURT OF APPEALS MAY 14, 2012 CASE NO.: CAPTION: FILING: 12-CA-0004 EARLY WEYGANDT ET AL BRIEF OF APPELLANTS VS. VIRGIL WARD ET AL COPY TO ALL COUNSEL MAILED —\ e & Regular By. Dep. Clerk, AppealsCASE NO. 12-CA-0004 IN THE WAYNE COUNTY COURT OF APPEALS NINTH APPELLATE DISTRICT EARLY WEYGANDT, et al. Plaintiffs - Appellees vs.…

Case Name 12-CA-0004 - Plaintiff Not Entered vs. Defendant Not Entered