Rude Music Inc v. Newt 2012, Inc. et al

Filing 40

PROTECTIVE ORDER signed by the Honorable Matthew F. Kennelly on 3/28/12. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

RUDE MUSIC, INC.,

)
)
)

Plaintiffs,
v.
NEWT 2012, INC.,NEWT
GINGRICH, and AMERICAN
CONSERVATIVE UNION,
Defendants.

) Case No. 12 cv 640
)
) Judge Kennelly
) Magistrate Judge Finnegan
)
)
)
)
)

PROTECTIVE ORDER
The Court enters the following protective order pursuant to Federal Rule of
Civil Procedure 26(c)(1).
1.

Findings: The Court finds that the parties to this case may request

or produce information involving trade secrets or confidential research and
development or commercial information, the disclosure of which is likely to cause
harm to the party producing such information.
2.

Definitions:

a.

“Party” means a named party in this case. “Person” means an

individual or an entity. “Producer” means a person who produces information via
the discovery process in this case. “Recipient” means a person who receives
information via the discovery process in this case.
b.

“Confidential” information is information concerning a person’s

personal identity information, confidential financial records, business operations,

1

processes, and technical and development information within the scope of Rule
26(c)(1)(G), the disclosure of which is likely to harm that person’s competitive
position, or the disclosure of which would contravene an obligation of
confidentiality to a third person or to a Court.
c.

“Highly Confidential” information is information within the scope of

Rule 26(c)(1)(G) that is current or future business or technical trade secrets and
plans more sensitive or strategic than Confidential information, the disclosure of
which is likely to significantly harm that person’s competitive position, or the
disclosure of which would contravene an obligation of confidentiality to a third
person or to a Court.
d.

Information is not Confidential or Highly Confidential if it is

disclosed in a printed publication, is known to the public, was known to the
recipient without obligation of confidentiality before the producer disclosed it, or is
or becomes known to the recipient by means not constituting a breach of this
Order. Information is likewise not Confidential or Highly Confidential if a person
lawfully obtained it independently of this litigation.
3.

Designation of information as Confidential or Highly Confidential:

a.

A person’s designation of information as Confidential or Highly

Confidential means that the person and his counsel believe in good faith, upon
reasonable inquiry, that the information qualifies as such.
b.

A person designates information in a document or thing as

Confidential or Highly Confidential by clearly and prominently marking it on its
face as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” A producer may make

2

documents or things containing Confidential or Highly Confidential information
available for inspection and copying without marking them as confidential without
forfeiting a claim of confidentiality, so long as the producer causes copies of the
documents or things to be marked as Confidential or Highly Confidential before
providing them to the recipient.
c.

A person designates information in deposition testimony as

Confidential or Highly Confidential by stating on the record at the deposition that
the information is Confidential or Highly Confidential or by advising the opposing
party and the stenographer and videographer in writing, within fourteen days
after receipt of the deposition transcript, that the information is Confidential or
Highly Confidential.
d.

A person’s failure to designate a document, thing, or testimony as

Confidential or Highly Confidential does not constitute forfeiture of a claim of
confidentiality as to any other document, thing, or testimony.
e.

A person who has designated information as Confidential or Highly

Confidential may withdraw the designation by written notification to all parties in
the case.
f.

If a party disputes a producer’s designation of information as

Confidential or Highly Confidential, the party shall notify the producer in writing of
the basis for the dispute, identifying the specific document[s] or thing[s] as to
which the designation is disputed and proposing a new designation for such
materials. The party and the producer shall then meet and confer to attempt to
resolve the dispute without involvement of the Court. If they cannot resolve the

3

dispute, the proposed new designation shall be applied fourteen (14) days after
notice of the dispute unless within that fourteen day period the producer files a
motion with the Court to maintain the producer’s designation. The producer bears
the burden of proving that the information is properly designated as Confidential
or Highly Confidential. The information shall remain subject to the producer’s
Confidential or Highly Confidential designation until the Court rules on the
dispute. A party’s failure to contest a designation of information as Confidential or
Highly Confidential is not an admission that the information was properly
designated as such.
4.

Use and disclosure of Confidential [or Highly Confidential]

information:
a.

Confidential and Highly Confidential information may be used

exclusively for purposes of this litigation, subject to the restrictions of this order.
b.

Absent written permission from the producer or further order by the

Court, the recipient may not disclose Confidential information to any person other
than the following: (i) a party’s outside counsel of record, including necessary
paralegal, secretarial and clerical personnel assisting such counsel; (ii) a party’s

in‐house counsel; (iii) a party’s officers and employees directly involved in this

case whose access to the information is reasonably required to supervise,
manage, or participate in this case; (iv) a stenographer and videographer
4

recording testimony concerning the information; (v) subject to the provisions of
paragraph 4(d) of this order, experts and consultants and their staff whom a party
employs for purposes of this litigation only; and (vi) the Court and personnel
assisting the Court.
c.

Absent written permission from the producer or further order by the

Court, the recipient may not disclose Highly Confidential information to any
person other than those identified in paragraph 4(b)( i), (iv), (v), and (vi).
d.

A party may not disclose Confidential or Highly Confidential

information to an expert or consultant pursuant to paragraph 4(b) or 4(c) of this
order until after the expert or consultant has signed an undertaking in the form of
Appendix 1 to this Order. The party obtaining the undertaking must serve it on all
other parties within ten days after its execution. At least ten days before the first
disclosure of Confidential or Highly Confidential information to an expert or
consultant (or member of their staff), the party proposing to make the disclosure
must serve the producer with a written identification of the expert or consultant
and a copy of his or her curriculum vitae. If the producer has good cause to
object to the disclosure (which does not include challenging the qualifications of
the expert or consultant), it must serve the party proposing to make the
disclosure with a written objection within ten days after service of the
identification. Unless the parties resolve the dispute within ten days after service
of the objection, the producer must move the Court promptly for a ruling, and the
Confidential or Highly Confidential information may not be disclosed to the expert
or consultant without the Court’s approval.

5

e.

Notwithstanding paragraph 4(a) and (b), a party may disclose

Confidential or Highly Confidential information to: (i) any employee or author of
the producer; (ii) any person, no longer affiliated with the producer, who authored
the information in whole or in part; and (iii) any person who received the
information before this case was filed.
f.

A party who wishes to disclose Confidential or Highly Confidential

information to a person not authorized under paragraph 4(b) or 4(c) must first
make a reasonable attempt to obtain the producer’s permission. If the party is
unable to obtain permission, it may move the Court to obtain permission.
g.

A member of the general public (the “applicant”) who opposes a

party’s designation of a document as Confidential or Highly Confidential may
challenge such a designation by written motion to the Court explaining: (1) a
statute of the United States confers a conditional or unconditional right to
intervene; or (2) the applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant is so situated that
the disposition of the action may as a practical matter impair or impede the
applicant’s ability to protect that interest, unless the applicant’s interest is
adequately represented by the existing parties; or (3) the applicant raises a claim
or defense that shares with the underlying action a common question of law or
fact.

6

5.

Inadvertent

Disclosure:

Inadvertent

disclosures

of

material

protected by the attorney‐client privilege or the work product doctrine shall be

handled in accordance with Federal Rule of Evidence 502.
6.

Filing with the Court:

a.

This protective order does not, by itself, authorize the filing of any

document under seal. No document may be filed under seal without prior leave of
court. A party wishing to file under seal a document containing Confidential or
Highly Confidential information must move the Court, consistent with Local Rule
26.2(b) and prior to the due date for the document, for permission to file the
document under seal. If a party obtains permission to file a document under seal,

it must also (unless excused by the Court) file a public‐record version that

excludes any Confidential or Highly Confidential information.
b.

If a party wishes to file in the public record a document that another

producer has designated as Confidential or Highly Confidential, the party must
advise the producer of the document no later than five business days before the

7

document is due to be filed, so that the producer may move the Court to require
the document to be filed under seal.
c.

Pursuant to Local Rule 5.8, any document filed under seal must be

accompanied by a cover sheet disclosing (i) the caption of the case, including the
case number; (ii) the title “Restricted Document Pursuant to Local Rule 26.2;” (iii)
a statement that the document is filed as restricted in accordance with a court
order and the date of the order; and (iv) the signature of the attorney of record
filing the document.
7.

Document Disposal: Upon the conclusion of this case, each party

must return to the producer all documents and copies of documents containing
the producer’s Confidential [or Highly Confidential] information, and must destroy
all notes, memoranda, or other materials derived from or in any way revealing
confidential or highly confidential information. Alternatively, if the producer
agrees, the party may destroy all documents and copies of documents containing
the producer’s Confidential or Highly Confidential information. The party returning
and/or destroying the producer’s Confidential and Highly Confidential information
must promptly certify in writing its compliance with the requirements of this
paragraph. Notwithstanding the requirements of this paragraph, a party and its
counsel may retain one complete set of all documents filed with the Court,
remaining subject to all requirements of this order.
8.

Originals: A legible photocopy of a document may be used as the

“original” for all purposes in this action. The actual “original,” in whatever form the

8

producing party has it, must be made available to any other party within ten days
after a written request.
9.

Survival

of

obligations:

This

order’s

obligations

regarding

Confidential and Highly Confidential information survive the conclusion of this
case.
ORDER:

s/ Matthew F. Kennelly
Matthew F. Kennelly
United States District Judge
Date: March 28, 2012

9

APPENDIX 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
)
)
)

RUDE MUSIC, INC.,
Plaintiffs,

) Case No. 12 cv 640
)
) Judge Kennelly
) Magistrate Judge Finnegan
)
)
)
)
)

v.
NEWT 2012, INC.,NEWT
GINGRICH, and AMERICAN
CONSERVATIVE UNION,
Defendants.

UNDERTAKING OF [insert name]
I, [insert person’s name], state the following under penalties of perjury as
provided by law:
I have been retained by [insert party’s name] as an expert or consultant in
connection with this case.

I will be receiving Confidential [and Highly

Confidential] information that is covered by the Court’s protective order dated [fill
in date].

I have read the Court’s protective order and understand that the

Confidential [and Highly Confidential] information is provided pursuant to the
terms and conditions in that order.
I agree to be bound by the Court’s protective order. I agree to use the
Confidential [and Highly Confidential] information solely for purposes of this case.
I understand that neither the Confidential [and Highly Confidential] information
nor any notes concerning that information may be disclosed to anyone that is not

10

bound by the Court’s protective order. I agree to return the Confidential [and
Highly Confidential] information and any notes concerning that information to the
attorney for [insert name of retaining party] or to destroy the information and any
notes at that attorney’s request.
I submit to the jurisdiction of the Court that issued the protective order for
purposes of enforcing that order. I give up any objections I might have to that
Court’s jurisdiction over me or to the propriety of venue in that Court.
Executed on [date], at [location].

________________________________
[signature]

11