MONTGOMERY v. RISEN et al
Filing
89
PROTECTIVE ORDER CONCERNING CONFIDENTIAL INFORMATION. Signed by Magistrate Judge Jonathan Goodman on 7/13/2015. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15‐20782‐CIV‐MARTINEZ/GOODMAN
DENNIS L. MONTGOMERY,
Plaintiff,
v.
JAMES RISEN, et al. ,
Defendants.
______________________________/
PROTECTIVE ORDER CONCERNING CONFIDENTIAL INFORMATION1
This Protective Order (“Protective Order”) governs this action (the “Action”).
Introduction and Background
Defendants in this defamation lawsuit want a protective order concerning
confidential information, while Plaintiff does not. Plaintiff prefers to address
confidentiality issues on a document‐by‐document, page‐by‐page (for deposition
transcripts) basis. The Undersigned held a hearing on July 10, 2015, and now grants, in
part, Defendants’ request for a protective order. However, as explained at the hearing,
the Undersigned is not entering the protective order proposed by Defendants. Instead,
Because the Undersigned revised several aspects of the Defendants’ proposed
protective order, including dates and deadlines, the Parties are urged to carefully
review this Order (and not simply assume ‐‐ incorrectly ‐‐ that all provisions have been
incorporated, because they have not all been adopted).
1
the Undersigned is modifying the proposed order so that Plaintiffs’ concerns are more
appropriately addressed.
To the extent that any party wishes to file objections to this Protective Order, the
party must order and obtain a copy of the hearing transcript, as it reflects in further
detail the basis for the Court’s ruling.
For purposes of providing a succinct outline of the Undersigned’s reasoning,
there is no public right of access to private material collected during discovery but not
filed with the Court. Similarly, private litigants have protectable privacy interests in
confidential information disclosed through discovery (but not filed with the Court). On
the other hand, documents filed with the Court are subject to a different analysis;
material filed with discovery materials is not subject to a public right of access, while
discovery material filed in connection with pretrial motions requiring judicial resolution
on the merits is subject to a common law right of access. Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001); In re Alexander Grant & Co.
Litigation, 820 F.2d 352 (11th Cir. 1987).
From a practical perspective, when document‐by‐document review of discovery
materials becomes impractical or not feasible, an umbrella‐type protective order is often
used to protect documents designated in good faith by the producing party as
confidential. In re Alexander Grant, 820 F.2d at 356 (citing The Manual for Complex
Litigation, Second, § 21.431 (1985)).
2
In his pre‐hearing memorandum [ECF No. 82], Plaintiff noted that “it is
important that this case be tried in the public forum in order to afford Plaintiff the
opportunity to clear his name.” At the hearing, defense counsel agreed in principle with
this relatively sweeping statement, but added the point that certain protections need to
be in place.
Framed by the overarching principles outlined above, the Undersigned hereby
enters a Protective Order (albeit in a form different than the one submitted by
Defendants):
This Protective Order is intended to protect from disclosure documents and
information that may contain proprietary or otherwise unduly sensitive information
subject to protection under Federal Rule of Civil Procedure 26(c). The Undersigned
finds that Defendants have provided good cause for entry of the instant Protective
Order, which provides avenues for challenge and which emphasizes that a
confidentiality designation is not to be lightly or cavalierly applied.
Documents and information so designated may be disclosed or used only as
provided herein. Nothing herein is intended to affect the relevance, discoverability, or
admissibility into evidence of any documents or information produced during
discovery in the Action. The Court being fully advised, it is hereby
ORDERED AND ADJUDGED as follows:
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1.
Any party in this Action or any third party to whom a subpoena is
issued in this Action (a “Producing Party”) may designate any material that it
produces (including, but not limited to, exhibits, documents, and things; answers to
interrogatories; responses to requests for admissions; responses to requests for
production; and declarations, affidavits, and deposition testimony or transcripts,
including the information contained therein whether in note or summary form) as
“confidential” only if the material contains information that is proprietary or unduly
sensitive to the Producing Party and is not otherwise in the public domain. By way
of example, this may (but not necessarily) include (depending on the circumstances)
publishing agreements, financial documents and information such as forecasts,
records of sales and profits, records of costs of production, and records of costs of
labor, and it may (but, again, not necessarily) also include information protected by
any applicable shield statute or reporter’s privilege, including confidential and
sensitive non‐confidential source and news‐gathering information. As used herein,
documents and other information so designated will be referred to as “Confidential
Information.” This Protective Order covers any use of any such Confidential
Information.2
Defendants mentioned Defendant Risen’s income tax returns as the type of
document entitled to a “confidential” designation, and the Undersigned agrees that
such a designation would appear to be appropriate. On the other hand, the entire
contract between Risen and the two publisher Defendants might not need to be
designated as “confidential,” and that contract might be susceptible to redaction, rather
2
4
2.
The Protective Order is not intended to give any party the right to
indiscriminately designate material as “Confidential.” The mere fact that a party
might prefer that a document or deposition page be deemed “confidential” is not in
and of itself sufficient to justify a confidential designation. Likewise, a party may not
designate material as “confidential” under the terms of this Protective Order merely
because disclosure might cause discomfort or garden variety embarrassment. Instead,
this Protective Order is designed to provide relief for trade secrets, proprietary
information, highly or unduly sensitive information or unduly embarrassing
information.
3.
A Producing Party may designate documents containing information
deemed confidential by that party as Confidential Information by stamping or
otherwise clearly marking the same “CONFIDENTIAL,” or by otherwise notifying
the parties to the Action that materials must be treated as Confidential Information
(e.g., if a Producing Party produces document(s) in native form such that they cannot
be clearly marked “CONFIDENTIAL” or if a Producing Party inadvertently produces
document(s) without a “CONFIDENTIAL” stamp, the Producing Party may
thereafter notify receiving persons that any such documents are produced as
Confidential Information under this Protective Order).
than being completely filed under seal, if a Party decided to file the contract with the
Court.
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4.
Any party, or any third party to whom a subpoena for testimony is
issued in this Action, may designate portions of a deposition as containing
Confidential Information by so indicating on the record during such deposition or by
providing written notice within thirty (30) calendar days after receiving the
deposition transcript from the court reporter. During any deposition that includes
testimony designated as Confidential Information, any and all individuals who are
not entitled access to said information under the terms of the Protective Order may be
excluded from that portion of the deposition. In any event, all deposition transcripts
must be treated as Confidential Information for ten (10) days3 after receipt of the
transcript, within which time counsel for any party, or counsel for any third party to
whom the subpoena for testimony was issued, may designate a portion or all of the
transcript as Confidential Information in writing to all counsel. Any party or third
party designating portion(s) of a deposition or deposition transcript as Confidential
Information under this paragraph will be treated as a Producing Party for purposes of
this Protective Order with respect to the portion(s) of a deposition or deposition
transcript so designated. If a portion of a deposition transcript is designated as
confidential, the Producing Party must specify the exact pages and line numbers
designated.
3
Defendants’ proposed order used thirty (30) days.
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5.
Any person receiving Confidential Information (“Receiving Party”) may
only use such Confidential Information in connection with this Action. Further, a
Receiving Party may not use Confidential Information in any other litigation or for
any business or other purpose whatsoever. Notwithstanding this provision, a
Producing Party may use its own Confidential Information in any way it deems fit.
6.
Confidential Information may not be disclosed to any person except:
(i) the parties and their current and former officers, directors, in‐house
counsel and employees deemed necessary to aid counsel in the Action;
(ii) outside counsel of record for the parties to this Action, and employees of
their respective firms;
(iii)
the Court and its personnel, and any mediator;
(iv)
witnesses and persons either noticed to testify via deposition or
subpoenaed to testify at trial;
(v) persons identified on the face of any Confidential Information as
authors or prior recipients of the Confidential Information;
(vi)
copying, document storage or imaging services, outside
vendors, and court reporters associated with or retained by a party in connection
with this Action;
7
(vii)
any experts or investigators and their staff with whom counsel
may consider it necessary to consult in connection with this Action (“Outside
Expert(s) or Investigator(s)”); and
(viii)
7.
any other person agreed to by the parties in writing.
Before an Outside Expert or Investigator may receive any Confidential
Information, he or she must have read a copy of this Protective Order and have
signed an undertaking in the form attached as Exhibit A hereto. Counsel of record for
the party that has retained an Outside Expert or Investigator must retain a copy of the
Outside Expert’s or Investigator’s signed undertaking until the conclusion of this
Action.
8.
If any Confidential Information is included with, or the contents thereof
are disclosed, in any pleading, motion, or other paper filed with the Clerk of this
Court, the filing party must move to have such pleading, motion, or other paper
sealed by the Clerk in accordance with Federal Rule of Civil Procedure 26 and with
Local Rule 5.4, provided that if a party files under seal any document disclosing
Confidential Information under this Protective Order, the party seeking to preserve
the secrecy of any such document must make the showing required by law in order
to maintain the Protective Order as to such document. Before seeking to maintain
protection of documents filed with the Court, a party must assess whether redaction
is a viable alternative to complete nondisclosure. If the party filing a pleading,
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motion, or other paper under seal is not also the same party seeking to preserve the
secrecy of the document, the pleading, motion, or other paper must initially be filed
under seal, and the party seeking to preserve the secrecy of the document will have
three (3) calendar days4 from the date the pleading, motion, or other paper is filed in
which to make the showing required by law in order to maintain the Protective Order
as to such document. In any event, any party filing a motion or any other paper with
the Court under seal must also publicly file a redacted copy of the same, via the
Court’s Electronic Case Filing system, that redacts only the Confidential Information
itself, and not text that in no material way reveals the Confidential Information.
9.
Any party wishing to file a “Confidential” document under seal (or
keep the confidential status of a document it designated but which an opposing party
seeks to file under seal) must establish good cause for a non‐public type of filing. The
mere fact that a party stamped “Confidential” on a document, even if done in good
faith, will not be sufficient to justify an under‐seal filing. Moreover, if a party wants
the Court to substantively review a document under seal for a ruling on the merits,
then the Court will consider the document presumptively public, subject to a showing
that under‐seal status is appropriate.
4
Defendants’ proposed order used ten (10) days.
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10.
A Receiving Party may not reveal or discuss Confidential Information to
or with any person not entitled to receive such information under paragraph 6 of this
Protective Order.
11.
A Receiving Party must maintain all Confidential Information in a
secure and safe area and must exercise due and proper care with the storage, custody,
and use of all Confidential Information.
12.
If a Receiving Party is served with a subpoena, court order, or any
request from a third party that would compel disclosure of any Confidential
Information, the Receiving Party must notify the Producing Party in writing within
three (3) calendar days5 of receipt of such subpoena, court order, or request. Such
notification must include a copy of the subpoena, court order, or other form of
request. The party receiving the subpoena, court order, or request must also
immediately inform the third party who served the subpoena, court order, or request
that the information sought is subject to this Protective Order, and must cooperate
with the Producing Party in order to give the Producing Party the opportunity to
intervene and seek judicial protection from the enforcement of the subpoena or the
entry of an appropriate protective order in the action in which the subpoena was
issued.
5
Defendants used five (5) days in their proposal.
10
13.
If Confidential Information is inadvertently disclosed to a third party
other than those identified in paragraph 6 of this Protective Order, such disclosure
must be reported in writing to the Producing Party within three (3) calendar days6 of
the discovery of such disclosure. Counsel for the party who made the inadvertent
disclosure must make all reasonable efforts to retrieve the Confidential Information or
to confirm that all copies of the Confidential Information in the third party’s
possession have been destroyed.
14.
Within 60 calendar days after the conclusion of this Action (including
any appeal thereof), any Confidential Information must be returned to the Producing
Party or destroyed. If such documents and information are destroyed rather than
returned, counsel for any Receiving Party must confirm destruction of the documents
and information in writing to the Producing Party.
This paragraph does not apply to pleadings, draft pleadings, or exhibits thereto
created by attorneys in connection with this litigation that quote from or refer to
Confidential Information. This paragraph also does not apply to Confidential
Information that may be contained in attorney work product on backup servers, if
return or destruction of such material would be unduly burdensome. As far as this or
any other Protective Order entered in this Action restricts the use of Confidential
6
Defendants’ proposal used five (5) days.
11
Information, such Protective Order(s) will continue to be binding after the conclusion
of this Action.
15.
If a Producing Party inadvertently fails to designate Confidential
Information as “CONFIDENTIAL” in accordance with this Protective Order before or
at the time of disclosure, it may notify all Receiving Parties that it intends to designate
such material as confidential before trial. If the Producing Party designates
Confidential Information as “CONFIDENTIAL” after disclosure but before trial, all
Receiving Parties must use reasonable efforts to ensure that all inadvertently
disclosed information is subsequently treated as confidential in accordance with this
Protective Order without prejudice to any party challenging the designation of certain
documents and information as Confidential Information in accordance with
Paragraph 17.
16.
This Protective Order is without prejudice to the right of any party to
oppose production of any information for any reason other than confidentiality, or to
seek further limits on disclosure or protection of Confidential Information beyond
those provided by the terms of this Protective Order.
17.
This Protective Order is without prejudice to any party challenging the
designation of certain documents and information as Confidential Information. If
such a dispute arises, the party challenging the designation must serve written notice
of the challenge on the Producing Party, specifying the Confidential Information
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being challenged and the reasons supporting the challenge. The Producing Party has
three (3) calendar days7 to respond in writing. The parties must attempt to further
resolve any such dispute in accordance with Local Rule 7.1 before filing any motion
with the Court. Pending resolution by the parties or by the Court regarding a dispute
over a confidentiality designation, the Confidential Information will continue to be
treated as such.
18.
If a Producing Party inadvertently produces or provides discovery that
it believes is subject to a claim of privilege or of protection as trial‐preparation
material, the Producing Party making the claim may notify the Receiving Party or
Parties in writing of the claim and the basis for it (and should identify the document
by Bates number). Within three (3) calendar days8 of receiving such notice, the
Receiving Party or Parties must return or destroy the specified information and any
copies it has; must not use or disclose the information until the claim is resolved; and
must take reasonable steps to retrieve the information if the party disclosed it before
being notified. Within three (3) calendar days9 after giving such notice of inadvertent
production, the Producing Party must produce a privilege log specific to such
documents to the Receiving Party. The Receiving Party may move the Court for an
7
Defendants’ proposal used seven (7) days.
Defendants used seven (7) days in their proposal.
Defendants’ proposal was for five (5) days.
8
9
13
order that the material in question is not protected from discovery by the asserted
privilege or immunity, and if the Receiving Party so moves the Court, the Producing
Party must provide the Court with one copy of the allegedly privileged material for in
camera review in connection with such a motion.
19.
One final point: The parties are encouraged to be conservative in their
use of the “confidential” designation. If a party challenges a “confidentiality”
designation, then, as noted at the hearing, the Court will rule and will look to Federal
Rule of Civil Procedure 37 to determine whether an attorney’s fees award in favor of
the prevailing party is justified. That rule generates a “loser pays” presumption,
absent the existence of one or more limited exceptions. The rule also provides that a
fees award may be entered against a party, that party’s attorney or both. Therefore, if
a party does not prevail in a confidentiality challenge (either because the Undersigned
sustains the “confidentiality” status in the face of a challenge or rejects the status and
rules in favor of the challenger), there is a significant chance that the fees award will
be entered, at least in part, against the attorney (or attorneys) who pursued the losing
position.
DONE AND ORDERED in Chambers, at Miami, Florida, July 13, 2015.
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Copies furnished to:
The Hon. Jose E. Martinez
All counsel of record
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EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-20782-MARTINEZ/GOODMAN
DENNIS MONTGOMERY,
Plaintiff,
v.
JAMES RISEN et al.,
Defendants.
________________________/
DECLARATION AND CONSENT TO BE BOUND BY PROTECTIVE ORDER
I, the undersigned, hereby declare under penalty of perjury and state as follows:
My address
. My current occupation is
. My current employer is
.
I have received a copy of the Protective Order (the “Protective Order”) in the abovecaptioned action, and I have carefully read and understand the provisions of the Protective
Order. I will comply with all the provisions of the Protective Order. I will hold any
information designated “ CONFIDENTIAL” in confidence, I will not disclose such
information to anyone not qualified under the Protective Order, and I will use such
information for the purposes of this action only.
Promptly upon termination of this action, I will return all “CONFIDENTIAL”
documents and information to counsel for the party by whom I am employed or retained, or
certify that I have destroyed such documents and information.
I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the
Protective Order in this action.
Dated:
Signature
Printed Name
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