Osborn v. Franklin Well Services, Inc.
Filing
31
PROTECTIVE ORDER. Signed by Magistrate Judge Donald G. Wilkerson on 8/28/2017. (sgp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES OSBORN,
Plaintiff,
vs.
FRANKLIN WELL SERVICES, INC.,
Defendant.
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Case No. 3:17-cv-00194-MJR-DGW
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
returns (including attached schedules and forms), W-2 forms and 1099 forms; or (g) personnel or
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employment records of a person who is not a party to the case. 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.
(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
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 Southern 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,
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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) 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;
counsel submits to the jurisdiction and sanctions of this Court on the subject matter of the
designation
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(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
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 document;
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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 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
designating party. In conferring, the challenging party must explain the basis for its belief that the
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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 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.
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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.
(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.
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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 Order, including
copies as defined in ¶ 3(a), shall be returned to the producing party unless: (1) the document 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; 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 one 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.
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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. 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.
IT IS SO ORDERED
DATED: August 28, 2017
DONALD G. WILKERSON
United States Magistrate Judge
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WE SO MOVE
and agree to abide by the
terms of this Order
/s/ Daniel R. Bryer
WE SO MOVE
and agree to abide by the
terms of this Order
/s/ Daniel C. Jones
Signature
Signature
Daniel R. Bryer
Daniel C. Jones
Printed Name
Printed Name
Counsel for: Defendant
Counsel for: Plaintiff
Dated: 7/11/17
Dated: 7/11/17
Printed Name
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES OSBORN,
)
)
)
)
)
)
)
)
Plaintiff,
vs.
FRANKLIN WELL SERVICES, INC.,
Defendants.
Case No. 3:17-cv-00194-MJR-DGW
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 Southern 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.
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Name:
___________________________________
Job Title:
___________________________________
Employer
___________________________________
Business Address
___________________________________
___________________________________
___________________________________
Date:
___________________________________
Signature:
___________________________________
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