Philadelphia Indemnity Insurance Company v. Behavioral Health Alternatives, Inc. et al
PROTECTIVE ORDER. Good cause pursuant to Rule 26(c) having been shown, the attached protective order is entered. Parties will note changes to paragraphs 7, 9, 10 (which was removed), and 14. Signed by Magistrate Judge Donald G. Wilkerson on 3/6/2018. (sgp)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CIVIL NO. 17-cv-684-JPG-DGW
CONFIDENTIALITY ORDER CONCERNING DISCOVERY
The Parties to this action jointly moved the Court to enter a confidentiality order. The
Court has determined that the terms set forth herein are appropriate to protect the respective
interests of the parties, the public, and the Court. Accordingly, it is ORDERED:
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.
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,
Page 1 of 12
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
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.
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.
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.
Page 2 of 12
This Order also applies to the 3,981 pages of documents produced on or
about November 30, 2017 by O’Connor Insurance Agency pursuant to a subpoena from Plaintiff
herein and marked “Confidential.”
Deposition testimony is protected by this Order only if designated as “CONFIDENTIAL
– SUBJECT TO PROTECTIVE ORDER” on the record at the time the testimony is taken. Such
designation shall be specific as to the portions that contain Confidential Information. Deposition
testimony so designated shall be treated as Confidential Information protected by this Order until
fourteen days after delivery of the transcript by the court reporter to any party or the witness.
Within fourteen days after delivery of the transcript, a designating party may serve a Notice of
Designation to all parties of record identifying the specific portions of the transcript that are
designated Confidential Information, and thereafter those portions identified in the Notice of
Designation shall be protected under the terms of this Order. The failure to serve a timely Notice
of Designation waives any designation of deposition testimony as Confidential Information that
was made on the record of the deposition, unless otherwise ordered by the Court.
Protection of Confidential Material.
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.
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:
Page 3 of 12
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;
The Court and its personnel;
Court Reporters and Recorders.
engaged for depositions;
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;
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;
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.
Author or recipient. The author or recipient of the document (not
including a person who received the document in the course of
Counsel. Counsel for the parties and employees of counsel who
have responsibility for the action;
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.
Court reporters and recorders
Control of Documents. Counsel for the parties shall make reasonable
efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel
Page 4 of 12
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.
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; 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 a 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.
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 the following:
Definitions. As used in this Paragraph 7., the term: "Sealed document"
means a document that the court has directed be maintained under seal electronically or, where
the court allows a sealed document to be filed non-electronically, within a sealed enclosure such
that access to the document requires breaking the seal of the enclosure; and “Sealing order"
means any order restricting access to one or more documents filed or to be filed with the court.
Page 5 of 12
Sealing Order. The court may enter an order directing that one or more
documents be filed under seal. No attorney or party may file a document under seal without
order of court specifying the particular document or portion of a document that may be filed
Sealing Motion for Documents filed Electronically. Any party wishing to
file a document or portion of a document electronically under seal in connection with a motion,
brief or other submission must: (1) file a motion to file the document under seal; (2) submit the
relevant document for in camera review; and (3) file a redacted version of the document. Any
document filed under seal without permission shall be stricken by the court without notice.
Sealing Motion for Documents not filed Electronically. In the unlikely
event that a document is not filed electronically, the parties shall follow the above procedures
contained in paragraph 7(c). A copy of the sealing order must be included with any document
presented for filing under seal. The attorney or party submitting a restricted document must file it
in a sealed enclosure that conspicuously states on the face of the enclosure the attorney's or
party's name and address, including e-mail address if the attorney is registered as a Filing User of
electronic case filing, the caption of the case, and the title of the document.
Copies Served on Counsel and Judge’s Paper Courtesy Copy. Any sealed
document served on any other party and any judge’s paper courtesy copy must be a complete
version, without any redactions made to create the public-record version unless otherwise
ordered for good cause shown.
Docket Entries shall be made at the discretion of the Court.
Page 6 of 12
Disposition of Sealed Non-electronic Documents. When a case is closed in
which an order was entered pursuant to section (b) above, the Clerk of Court shall maintain the
documents pursuant to normal policies and procedures.
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.
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.
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 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.
Judicial Intervention. A party that elects to challenge a confidentiality
designation shall follow the procedures outlined in the Order Regarding Discovery. Until the
Court rules on the challenge, all parties shall continue to treat the materials as Confidential
Information under the terms of this Order.
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
Page 7 of 12
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.
Confidential Information Subpoenaed or Ordered Produced in Other Litigation.
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.
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.
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,
Page 8 of 12
custody or control Confidential Information by the other party to this case.
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.
Obligations on Conclusion of Litigation.
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.
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 file 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.
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
Page 9 of 12
litigation, provided that its use does not disclose or use Confidential Information.
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.
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.
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.
DATED: March 6, 2017
DONALD G. WILKERSON
United States Magistrate Judge
Page 10 of 12
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CIVIL NO. 17-cv-684-JPG-DGW
CONFIDENTIAL UNDERTAKING CONCERNING PROTECTIVE ORDER
The undersigned hereby acknowledges that he/she has read the Confidentiality Order
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.
Page 11 of 12
Date: _____________ Signature: _______________________
Page 12 of 12
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?