Lewis v. Sam's West, Inc.
Filing
16
MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 5/29/2013:Mailed notice(air, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RHEBA D. LEWIS,
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
SAM’S WEST, INC.,
Defendant.
Case No. 1:12-cv-8657
Honorable Judge John J. Tharp, Jr.
Magistrate Judge Jeffrey Cole
AGREED CONFIDENTIALITY ORDER
The parties to this Agreed Confidentiality Order have agreed to the terms of this Order;
accordingly, it is ORDERED:
1.
Scope. All materials produced or adduced in the course of discovery, including
initial disclosures, responses to discovery requests, deposition testimony and exhibits, and
information derived directly therefrom (hereinafter collectively “documents”), shall be subject to
this Order concerning Confidential Information as defined below. This Order is subject to the
Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and
calculation of time periods.
2.
Confidential Information. As used in this Order, “Confidential Information”
means information designated as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” by
the producing party that falls within one or more of the following categories: (a) information
prohibited from disclosure by statute; (b) information that reveals trade secrets; (c) research,
technical, commercial or financial information that the party has maintained as confidential; (d)
medical information concerning any individual; (e) personal identity information; (f) income tax
1
returns (including attached schedules and forms), W-2 forms and 1099 forms; or (g) personnel or
employment records of a person who is not a party to the case. (h) compensation of Defendant’s
current or former non-party personnel; (i) policies, procedures, and/or training materials of
Defendant; and (j) Defendant’s organizational structure.
Information or documents that are
available to the public may not be designated as Confidential Information.
3.
Designation.
(a)
A party may designate a document as Confidential Information for
protection under this Order by placing or affixing the words “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries or descriptions that contain the Confidential Information. The
marking “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” shall be applied prior to
or at the time of the documents are produced or disclosed.
Applying the marking
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” to a document does not mean that
the document has any status or protection by statute or otherwise except to the extent and for the
purposes of this Order. Any copies that are made of any documents marked “CONFIDENTIAL
– SUBJECT TO PROTECTIVE ORDER” shall also be so marked, except that indices, electronic
databases or lists of documents that do not contain substantial portions or images of the text of
marked documents and do not otherwise disclose the substance of the Confidential Information
are not required to be marked.
2
(b)
The designation of a document as Confidential Information is a
certification by an attorney or a party appearing pro se that the document contains Confidential
Information as defined in this order.1
4.
Depositions. Unless all parties agree on the record at the time the deposition
testimony is taken, all deposition testimony taken in this case shall be treated as Confidential
Information until the expiration of the following: No later than the fourteenth day after the
transcript is delivered to any party or the witness, and in no event later than 60 days after the
testimony was given, within this time period, a party may serve a Notice of Designation to all
parties of record as to specific portions of the testimony that are designated Confidential
Information, and thereafter only those portions identified in the Notice of Designation shall be
protected by the terms of this Order. The failure to serve a timely Notice of Designation shall
waive any designation of testimony taken in that deposition as Confidential Information, unless
otherwise ordered by the Court.
5.
Protection of Confidential Material.
(a)
General Protections.
Confidential Information shall not be used or
disclosed by the parties, counsel for the parties or any other persons identified in subparagraph
(b) for any purpose whatsoever other than in this litigation, including any appeal thereof.
(b)
Limited Third-Party Disclosures. The parties and counsel for the parties
shall not disclose or permit the disclosure of any Confidential Information to any third person or
entity except as set forth in subparagraphs (1)-(9). Subject to these requirements, the following
categories of persons may be allowed to review Confidential Information:
1
An attorney who reviews the documents and designates them as CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER must be admitted to the Bar of at least one state but need not be admitted to practice in the
Northern District of Illinois unless the lawyer is appearing generally in the case on behalf of a party. By designating
documents confidential pursuant to this Order, counsel submits to the jurisdiction and sanctions of this Court on the
subject matter of the designation.
3
(1)
Counsel. Counsel for the parties and employees of counsel who
have responsibility for the action;
(2)
Parties. Individual parties and employees of a party but only to the
extent counsel determines in good faith that the employee’s
assistance is reasonably necessary to the conduct of the litigation in
which the information is disclosed;
(3)
The Court and its personnel;
(4)
Court Reporters and Recorders.
Court reporters and recorders
engaged for depositions;
(5)
Contractors. Those persons specifically engaged for the limited
purpose of making copies of documents or organizing or
processing documents, including outside vendors hired to process
electronically stored documents;
(6)
Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed
the
certification
contained
in
Attachment
A,
Acknowledgment of Understanding and Agreement to Be Bound;
(7)
Witnesses at depositions. During their depositions, witnesses in
this action to whom disclosure is reasonably necessary. Witnesses
shall not retain a copy of documents containing Confidential
Information, except witnesses may receive a copy of all exhibits
marked at their depositions in connection with review of the
4
transcripts. Pages of transcribed deposition testimony or exhibits
to depositions that are designated as Confidential Information
pursuant to the process set out in this Order must be separately
bound by the court reporter and may not be disclosed to anyone
except as permitted under this Order.
(8)
Author or recipient. The author or recipient of the document (not
including a person who received the document in the course of
litigation); and
(9)
Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions
as may be agreed or ordered.
(c)
Control of Documents. Counsel for the parties shall make reasonable
efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel
shall maintain the originals of the forms signed by persons acknowledging their obligations
under this Order for a period of three years after the termination of the case.
6.
Inadvertent Failure to Designate. An inadvertent failure to designate a
document as Confidential Information does not, standing alone, waive the right to so designate
the documents; provided, however, that a failure to serve a timely Notice of Designation of
deposition testimony as required by this Order, even if inadvertent, waives any protection for
deposition testimony. If a party designates a document as Confidential Information after it was
initially produced, the receiving party, on notification of the designation, must make a reasonable
effort to assure that the document is treated in accordance with the provisions of this Order. No
party shall be found to have violated this Order for failing to maintain the confidentiality of
5
material during a time when that material has not been designated Confidential Information, even
where the failure to so designate was inadvertent and where the material is subsequently
designated Confidential Information.
7.
Filing of Confidential Information. This Order does not, by itself, authorize the
filing of any document under seal.
Any party wishing to file a document designated as
Confidential Information in connection with a motion, brief or other submission to the Court
must comply with LR 26.2.
8.
No Greater Protection of Specific Documents. Except on privilege grounds not
addressed by this Order, no party may withhold information from discovery on the ground that it
requires protection greater than that afforded by this Order unless the party moves for an order
providing such special protection.
9.
Challenges by a Party to Designation as Confidential Information.
The
designation of any material or document as Confidential Information is subject to challenge by
any party. The following procedure shall apply to any such challenge.
(a)
Meet and Confer.
A party challenging the designation of Confidential
Information must do so in good faith and must begin the process by conferring directly with
counsel for the designation party. In conferring, the challenging party must explain the basis for
its belief that the confidentiality designation was not proper and must give the designating party
an opportunity to review the designated material, to reconsider the designation, and, if no change
in designation is offered, to explain the basis for the designation. The designating party must
respond to the challenge within five (5) business days.
(b)
Judicial Intervention. A party that elects to challenge a confidentiality
designation may file and serve a motion that identifies the challenged material and sets forth in
6
detail the basis for the challenge. Each such motion must be accompanied by a competent
declaration that affirms that the movant has complied with the meet and confer requirements of
this procedure. The burden of persuasion in any such challenge proceeding shall be on the
designating party. Until the Court rules on the challenge, all parties shall continue to treat the
materials as Confidential Information under the terms of this Order.
10.
Action by the Court. Applications to the Court for an order relating to materials
or documents designated Confidential Information shall be by motion. Nothing in this Order or
any action or agreement of a party under this Order limits the Court’s power to make orders
concerning the disclosure of documents produced in discovery or at trial.
11.
Use of Confidential Documents or Information at Trial. Nothing in this Order
shall be construed to affect the use of any document, material, or information at any trial or
hearing. A party that intends to present or that anticipates that another party may present
Confidential Information at a hearing or trial shall bring that issue to the Court’s and parties’
attention by motion or in a pretrial memorandum without disclosing the Confidential Information.
The Court may thereafter make such orders as are necessary to govern the use of such documents
or information at trial.
12.
Confidential Information Subpoenaed or Ordered Produced in Other
Litigation.
(a)
If a receiving party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any material or document designated in this action as
Confidential Information, the receiving party must so notify the designating party, in writing,
immediately and in no event more than three court days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
7
(b)
The receiving party also must immediately inform in writing the party
who caused the subpoena or order to issue in the other litigation that some or all of the material
covered by the subpoena or order is the subject of this Order. In addition, the receiving party
must deliver a copy of this Order promptly to the party in the other action that caused the
subpoena to issue.
(c)
The purpose of imposing these duties is to alert the interested persons to
the existence of this Order and to afford the designating party in this case an opportunity to try to
protect its Confidential Information in the court from which the subpoena or order issued. The
designating party shall bear the burden and the expense of seeking protection in that court of its
Confidential Information, and nothing in these provisions should be construed as authorizing or
encouraging a receiving party in this action to disobey a lawful directive from another court.
The obligations set forth in this paragraph remain in effect while the party has in its possession,
custody or control Confidential Information by the other party to this case.
13.
Challenges by Members of the Public to Sealing Orders. A party or interested
member of the public has a right to challenge the sealing of particular documents that have been
filed under seal, and the party asserting confidentiality will have the burden of demonstrating the
propriety of filing under seal.
14.
Obligations on Conclusion of Litigation.
(a)
Order Continues in Force.
Unless otherwise agreed or ordered, this
Order shall remain in force after dismissal or entry of final judgment not subject to further appeal.
(b)
Obligations at Conclusion of Litigation.
Within sixty-three days after
dismissal or entry of final judgment not subject to further appeal, all Confidential Information
and documents marked “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” under this
8
Order, including copies as defined in ¶3(a), shall be returned to the producing party unless: (1)
the documents has been offered into evidence or filed without restriction as to disclosure; (2) the
parties agree to destruction to the extent practicable in lieu of return;2 or (3) as to documents
bearing the notations, summations, or other mental impressions of the receiving party, that party
elects to destroy the documents and certifies to the producing party that it has done so.
(c)
Retention of Work Product and on set of Filed Documents.
Notwithstanding the above requirements to return or destroy documents, counsel may retain (1)
attorney work product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial portions of
Confidential Information, and (2) one complete set of all documents filed with the Court
including those filed under seal. Any retained Confidential Information shall continue to be
protected under this Order. An attorney may use his or her work product in subsequent litigation,
provided that its use does not disclose or use Confidential Information.
(d)
Deletion of Documents filed under Seal from Electronic Case Filing
(ECF) System. Filings under seal shall be deleted from the ECF system only upon order of the
Court.
15.
Order Subject to Modification. This Order shall be subject to modification by
the Court on its own initiative or on motion of a party or any other person with standing
concerning the subject matter.
16.
No Prior Judicial Determination.
This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery.
2
The parties may choose to agree that the receiving party shall destroy documents containing Confidential
Information and certify the fact of destruction, and that the receiving party shall not be required to locate, isolate and
return e-mails (including attachments to e-mails) that may include Confidential Information, or Confidential
Information contained in deposition transcripts or drafts or final expert reports.
9
Nothing herein shall be construed or presented as a judicial determination that any document or
material designated Confidential Information by counsel or the parties is entitled to protection
under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as the
Court may rule on a specific document or issue.
17.
Persons Bound. This Order shall take effect when entered and shall be binding
upon all counsel of record and their law firms, the parties, and persons made subject to this Order
by its terms.
So Ordered.
Dated: 5/29/2013
____________________________________
John J. Tharp, Jr., U.S. District Judge
WE SO MOVE
and agree to abide by the
terms of this Order
WE SO MOVE
and agree to abide by the
terms of this Order
______s/Jennifer M. Cerven__________
Signature
________s/ Steven A. Wade___________
Signature
Jennifer M. Cerven
Printed Name
Steven A. Wade
Printed Name
Counsel for: Sam’s West, Inc.
Norma W. Zeitler
Jennifer M. Cerven
BARNES & THORNBURG, LLP
One North Wacker Drive
Suite 4400
Chicago, IL 60606
321-357-1313
312-759-5646 (FAX)
Counsel for: Rheba D. Lewis
Steven A. Wade
Anesi, Ozmon, Rodin, Novak & Kohen, Ltd.
161 N. Clark St, # 2100
Chicago, IL 60601
312-372-3822
312-375-3833 (FAX)
Dated: May 23, 2013
Dated: May 23, 2013
10
ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RHEBA D. LEWIS,
Plaintiff,
v.
SAM’S WEST, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
Case No. 1:12-cv-8657
Honorable Judge John J. Tharp, Jr.
Magistrate Judge Jeffrey Cole
ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order
dated ________________________________ in the above-captioned action and attached hereto,
understands the terms thereof, and agrees to be bound by its terms. The undersigned submits to
the jurisdiction of the United States District Court for the Northern District of Illinois in matters
relating to the Confidentiality Order and understands that the terms of the Confidentiality Order
obligate him/her to use materials designated as Confidential Information in accordance with the
Order solely for the purposes of the above-captioned action, and not to disclose any such
Confidential Information to any other person, firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.
Name: ______________________________________
Job Title: ____________________________________
Employer: ___________________________________
Business Address: _____________________________
_____________________________
_____________________________
Date: _________________________
CHDS01 816379v2
___________________________________
Signature
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?