Equal Employment Opportunity Commission v. Bashas' Inc.

Filing 110

CONFIDENTIALITY ORDER. Signed by Judge Robert C Broomfield on 12/8/11. (DMT)

Download PDF
1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 13 14 15 16 Equal Employment Opportunity, ) Commission ) Petitioner, ) ) vs. ) ) Bashas’, Inc., ) ) Respondent. ) ) No. CIV 09-0209-PHX-RCB O R D E R 17 18 Simultaneously herewith the court ordered the entry of a 19 Confidentiality Order in this subpoena enforcement action. 20 Order (Doc. 109). 21 Exhibit A attached hereto, a form “Agreement to be Bound by 22 Confidentiality Order” (the “Agreement”). 23 See Set forth below are the terms of that Order, and CONFIDENTIALITY ORDER 24 1. When used in this Order, 25 (a) “Document” means all written, recorded, electronic, or 26 graphic matters and materials. Document shall also refer to 27 testimony from a witness in a investigation interview conducted by 28 the Equal Employment Opportunity Commission (“EEOC”), deposition or 1 2 court proceedings. (b) “Provide” means to furnish or deliver a document 3 (including by giving testimony resulting in a transcript) or 4 produce it for inspection or review to any other person or persons, 5 whether voluntarily or involuntarily, whether pursuant to request, 6 interrogatory or process, and whether in accordance with the 7 Federal Rules of Civil Procedure or otherwise. 8 9 10 (c) “Confidential Information” means any document designated in good faith by counsel as confidential in accordance with the terms of this Order. 11 12 (d) “Charge” means the EEOC Commissioner’s Charge filed against Bashas’ on May 9, 2007. 13 14 15 (e) “Party” means Bashas’, Inc. and the Equal Employment Opportunity Commission. 2. No party shall provide or disclose the content of any 16 document designated “Confidential” as defined in this Order except 17 as provided herein. 18 3. Whenever a producing party provides any document to any 19 party to this action which is entitled to confidential treatment 20 pursuant to this Order, the producing party may designate the 21 document as Confidential Information. 22 stamp “Confidential” on each document that it believes contains 23 Confidential Information. 24 4. The producing party shall Confidential Information shall be used solely for the 25 purpose of the above referenced Charge and any resulting litigation 26 and not in connection with any other action including any action 27 arising out of the same underlying circumstances, and shall not be 28 given, shown, made available, discussed, or otherwise communicated -2- 1 in any way to anyone other than: 2 (a) Attorneys of record in this action and their support 3 staff, so long as they have reviewed this Order and signed Exhibit 4 A, the Agreement, 5 (b) Any other person whose testimony regarding the 6 Confidential Information is noticed to be taken in this action, 7 except that such a person may only be shown Confidential 8 Information during his or her testimony and only after being 9 advised by counsel of this Order, its meaning and purpose, and only 10 after signing Exhibit A, the Agreement, 11 (c) Court reporters and their staff, 12 (d) The Court and its staff, 13 (e) The Parties to this action, 14 (f) Persons retained by any Party to this Order to 15 furnish expert services of advice or to give expert testimony in 16 this action (and their employees). 17 (g) Individuals who qualify as Aggrieved Persons covered 18 under the Commissioners’ Charge, provided that (i) EEOC has 19 identified that individual as a member of the class covered by the 20 Commissioner’s Charge and Bashas’ has been notified of this 21 identification; (ii) the individual has received a Notice of Right 22 to Sue at the conclusion of the EEOC’s investigation in the 23 Commissioner’s Charge matter and that Notice of Right to Sue has 24 not expired and Bashas’ has also received the Notice of Right to 25 Sue; and (iii) the individual has made a written request to obtain 26 a copy of his or her file, pursuant to EEOC Compliance Manual 27 § 83.2, which has been provided to Bashas’. 28 (h) Individuals who have made a valid request for -3- 1 documents under the Freedom of Information Act, pursuant to 29 2 C.F.R. part 1610, provided that: 3 (i) the request is made after completion of the EEOC’s 4 investigation and prior to the completion of any subsequent 5 litigation; (ii) does not seek documents that are exempt from 6 disclosure under 5 U.S.C. §552(b); and (iii) the EEOC provides 7 Bashas’ with notice and opportunity to object to such disclosure 8 and seek a protective order in this federal District Court, as 9 provided in Paragraph 9 below. 10 5. Before discovering counsel may provide Confidential 11 Information to any person described in subparagraph 4(a), (b), and 12 (f) the person who is to receive the material shall read a copy of 13 this Order, and shall evidence agreement to be bound by the terms, 14 conditions, and restrictions of this Order by signing Exhibit A, 15 the Agreement attached to this Order. 16 6. If a witness from whom a party intends to take testimony in 17 this action refuses to sign an Agreement as required by paragraph 18 5, discovering counsel may not show Confidential Information to the 19 witness, or interview or examine the witness concerning the same. 20 An agent of a party may not refuse to testify regarding that 21 party’s own Confidential Information by refusing to sign the 22 Agreement. 23 7. The EEOC shall not disclose any Confidential documents to 24 any other person, except as provided by Paragraphs 4 and 5 above. 25 If counsel for a Party herein shall hereafter desire to make 26 Confidential Information available to any person other than those 27 referred to in Paragraph 4 above, such counsel shall designate the 28 material involved, identify the person to whom he/she wishes to -4- 1 make disclosure and inform counsel for the Party that designated 2 the document Confidential of their desire to make the disclosure. 3 If counsel are subsequently unable to agree on the terms and 4 conditions of disclosure to persons not enumerated in Paragraph 4 5 above, then disclosure may be made only on such terms as the Court 6 may order. 7 8. The EEOC agrees to hold such Confidential documents in a 8 secure manner in that access to the Confidential Information is 9 limited to EEOC employees actually working on this matter. The 10 electronic Confidential Information shall be maintained in such a 11 manner to reasonably protect it from dissemination, copying, or 12 access by anyone not directly working on this matter. 13 Confidential Information should be sent or removed from the EEOC’s 14 Phoenix District Office, unless the EEOC has made the determination 15 that it is necessary for the case that such action be taken. 16 9. No If upon completion of the EEOC’s investigation and prior 17 to the completion of any subsequent litigation, the EEOC receives a 18 request for documents identified by Bashas’ as Confidential 19 pursuant to the Freedom of Information Act (“FOIA”), the EEOC shall 20 provide Bashas’ with notice of such request so that Bashas’ has an 21 opportunity to object to its disclosure under one of the exemptions 22 to the Act. 23 (through its counsel), including the wording of the request and the 24 identity of the person making the request, within five (5) business 25 days of a FOIA request. 26 notify the requester that notice and opportunity to comment are 27 being provided to Bashas’. 28 notice within five (5) business days, providing the EEOC with a The EEOC shall provide Bashas’ with such notice Simultaneously therewith the EEOC shall Bashas’ shall respond to the EEOC’s -5- 1 detailed statement of its objections to disclosure. 2 consider carefully any such objections submitted by Bashas’. 3 the EEOC determines that FOIA requires it to disclose the 4 Confidential Information despite Bashas’ objection(s), it shall 5 promptly notify Bashas’ and the requester of such decision. 6 EEOC shall not respond to any such FOIA request until Bashas’ has 7 the opportunity to assert its objection(s)and seek a protective 8 order from this federal District Court. 9 objection(s), if any, and seek a protective order, if any, within 10 fourteen (14) days after such notification is actually received by 11 Bashas’. 12 10. The EEOC shall If The Bashas’ shall assert such It shall be counsels’ responsibility to preserve and keep 13 in a separate file all executed Agreements for one year following 14 the conclusion of this action and any related litigation. Such 15 Agreements shall be available for inspection and copying upon order 16 of the Court. 17 11. In the event that any Confidential Information is included 18 with or in any way disclosed by any pleading, motion, or paper 19 filed with the Court, such pleading, motion or paper shall be filed 20 under seal, and it is the responsibility of the party filing such 21 document to ensure that it is filed under seal. 22 12. Prior to the use of any Confidential Information at any 23 pretrial hearing in this action or arising from this Charge, 24 discovering counsel shall move the Court for leave 25 of the Court to file under seal and shall not disclose Confidential 26 Information in open court unless the parties specifically agree in 27 writing to such disclosure. 28 13. Any party at any time may object in writing to the -6- 1 designation of any material as Confidential Information. Within ten 2 (10) days from such written objection the party to whom it is 3 addressed must reply in writing. 4 agreement, they shall meet and confer in good faith in an attempt 5 to resolve the matter. 6 shall file simultaneous briefs, not to exceed two pages, with their 7 respective positions regarding the designation. 8 order regarding the classification of the disputed documents, the 9 proscription of this Order shall remain in effect. If the parties fail to reach an If they are unable to do so, each party Pending Court The provisions 10 contained herein shall not apply to any document designated as 11 Confidential at the time it is made available and to which it is 12 subsequently (i) agreed in writing by the producing party not to be 13 deemed confidential; or (ii) ruled by the Court not to be 14 confidential. 15 14. No person generally identified in paragraph 4 who 16 received Confidential Information as a result of the investigation 17 of this action shall copy or otherwise use the 18 Confidential document or Information for any purpose whatsoever, 19 except in connection with the investigation of this Charge or any 20 litigation initiated by the EEOC arising from this investigation. 21 15. The inadvertent or unintentional disclosure by the 22 producing party of Confidential Information shall not be deemed a 23 waiver in whole or in part of the confidential nature of the 24 Confidential Information disclosed or as to any other Confidential 25 Information relating thereto or on the same or related subject 26 matter. 27 28 16. This Order shall in no way affect or impair the right of any party or person to compel discovery or to seek additional, or -7- 1 different protection for certain material, or to raise or assert 2 any defense or objection, including but to limited to defenses or 3 objections to the discovery or production of documents or 4 Confidential Information and to the use, relevance or admissibility 5 at trial of any evidence, whether or not comprised of documents or 6 Information governed by this Order. 7 17. This Order shall govern the investigation and all 8 proceedings relating to or arising from this Charge. Upon 9 initiation of any subsequent litigation, arising from this 10 Charge, any party may request that the Court enter a further order 11 governing the treatment of Confidential Information. 12 18. Upon entry by the Court this Order shall be effective 13 immediately and will survive and remain in full force and effect 14 after the termination of this action. 15 19. Nothing in this Order shall prevent the Parties from 16 providing or disclosing their own documents or information, 17 regardless of whether they are designated Confidential Information. 18 If a document becomes publicly available by such disclosure or is 19 otherwise ordered to be a public record, then it no longer shall be 20 considered Confidential Information subject to this Order. 21 . . . 22 23 24 25 26 27 28 -8- 1 EXHIBIT “A” 2 AGREEMENT TO BE BOUND BY CONFIDENTIALITY ORDER 3 I, __________________________ (name), hereby acknowledge that 4 I have read the Confidentiality Order entered in Equal Employment 5 Opportunity Commission v. Bashas’, Inc., No. CV 09-0209-PHX-RCB, 6 that I understand the terms of that Confidentiality Order, and that 7 in particular I have read paragraph 14 of that Confidentiality 8 Order. 9 provisions of that Confidentiality Order unless and until modified I hereby agree to comply with and be bound by the 10 by further order of this court. 11 jurisdiction of this court for purposes of enforcing the 12 Confidentiality Order. 13 . . . I hereby consent to the 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- 1 2 IT IS SO ORDERED. DATED this 8th day of December, 2011. 3 4 5 6 7 8 Copies to counsel of record 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?