Equal Employment Opportunity Commission v. Bashas' Inc.

Filing 110

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

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 -