Terrell v. Hughes
Filing
44
CONFIDENTIALITY ORDER. Approved by Judge Stephen P. McGlynn on 1/27/2025. (trf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VERNON TERRELL,
individually and on behalf of a
class of similarly situated
individuals,
Plaintiff,
v.
Case No. 24-CV-02434-SPM
LATOYA HUGHES,
Acting Director of the Illinois
Department of Corrections.
Defendant.
CONFIDENTIALITY ORDER
McGLYNN, District Judge:
This matter is before the Court on an Unopposed Motion for Entry of
Confidentiality Order pursuant to Federal Rule of Civil Procedure 26(c) filed by
Plaintiff Vernon Terrell (Doc. 38). 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, for good cause shown, Plaintiff Terrell’s Motion is
GRANTED. It is HEREBY ORDERED that the parties, non-party signatories, and
non-party witnesses shall follow the procedures set forth below with respect to certain
documents, information, or testimony provided or exchanged in this or related actions
or proceedings:
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
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“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” or “ATTORNEY EYES ONLY.” Information may be
designated “CONFIDENTIAL--SUBJECT TO PROTECTIVE ORDER” if it falls
within one or more of the following categories: (a) information prohibited from
disclosure by statute, Federal Rule of Civil Procedure, or by Southern District of
Illinois Local Rule; (b) medical or mental health information concerning any
individual; (c) personal information of Illinois Department of Corrections (“IDOC”)
employees; (e) personal identity information; (f) income tax returns (including
attached schedules and forms), W-2 forms and 1099 forms; (g) personnel or
employment records of a person who is not a party to the case; (h) information and
documents from the master files of non-party individuals incarcerated within the
IDOC. Information or documents that are available to the public may not be
designated as Confidential Information, including but not limited to aggregate
data regarding the provision of healthcare services.
As used in this Order, “Attorney Eyes Only” means information designated as
“ATTORNEY EYES ONLY” by the producing party that falls within one or more of
the following categories: information, such as photographs, diagrams, and blueprints
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of correctional facilities, that could compromise the safety and security of IDOC
operations.
3. Designation.
a. A party may designate a document as Confidential Information for
protection
under
this
Order
“CONFIDENTIAL--SUBJECT
by
TO
placing
or
affixing
PROTECTIVE
the
words
ORDER”
or
“ATTORNEY EYES ONLY” 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”
or
“ATTORNEY EYES ONLY” shall be applied prior to or at the time of the
documents
are
produced
or
disclosed.
Applying
the
marking
“CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” or “ATTORNEY
EYES ONLY” 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”
or
“ATTORNEY EYES ONLY” 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
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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
4. Depositions. 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 (14)
days after delivery of the transcript by the court reporter to any party or the
witness. Within fourteen (14) 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.
1 An attorney who reviews the documents and designates them as “CONFIDENTIAL--SUBJECT TO
PROTECTIVE ORDER” or “ATTORNEY EYES ONLY” 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, counsel submits to the jurisdiction and sanctions of this Court on the subject matter of
the designation.
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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. In a putative class action,
Confidential Information may be disclosed only to the named plaintiff and
not any other member of the putative class unless and until a class
including the potential class members has been certified.
b. Limited
Third-Party
Disclosures
of
Information
“CONFIDENTIAL--SUBJECT TO PROTECTIVE
designated
ORDER”.
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:
i. Counsel. Counsel for the parties and employees of counsel who have
responsibility for the action;
ii. 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;
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iii. The Court and Its Personnel;
iv. Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;
v. 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;
vi. 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;
vii. 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.
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viii. Author or Recipient. The author or recipient of the document (not
including a person who received the document in the course of
litigation); and 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. Limited Disclosures of Information designated as “ATTORNEY
EYES ONLY”: Counsel for the parties shall not disclose or permit the
disclosure of any information designated as “ATTORNEY EYES ONLY” to
any third person except as set forth in subparagraphs (1)–(3). Subject to
these requirements, the following categories of persons may be allowed to
review information designated as “ATTORNEY EYES ONLY”:
i. Counsel. Counsel of record and employees of counsel engaged in this
action, who shall use such information solely for the purposes of this
litigation, provided that the employee signs a confidentiality
agreement in the form attached hereto as “Exhibit A” prior to
receiving any “ATTORNEY EYES ONLY” information, documents,
or things;
ii. The Court and its personnel;
iii. Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;
iv. Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
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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. To
the extent that persons in this category have reviewed “ATTORNEY
EYES ONLY” information prior to the entry of this Amended
Protective Order, they shall complete such certification within
fourteen (14) days of entry of this Order; and
v. Witnesses at Depositions. During their depositions, witnesses in
this action to whom disclosure is reasonably necessary. Witnesses
shall not retain a copy of documents marked “ATTORNEY EYES
ONLY” except witnesses may receive a copy of all exhibits marked at
their depositions in connection with review of the transcripts. In
addition, the parties agree that should any party intend to show a
document marked “ATTORNEY EYES ONLY” to a current or former
IDOC prisoner during a deposition, that party shall inform all other
parties at least three (3) days before the deposition. If the opposing
party objects to the use of the “ATTORNEY EYES ONLY”
information, counsel shall inform opposing counsel at least one (1)
day before the deposition. If the parties cannot come to an agreement
regarding the use of the Attorneys’ Eyes Only Information, then the
deposition shall proceed, except that the objecting side shall agree to
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produce the deponent for a subsequent deposition in the event that
the Court rules the Information may be used with the deponent.
vi. Named Plaintiff(s) and Potential Class Members.
1. Named Plaintiff and potential class members are persons
currently or formerly incarcerated in the Illinois Department
of Corrections. If Plaintiff’s counsel believes that reviewing
photographs designated Attorneys’ Eyes Only is necessary for
the preparation of Plaintiff’s or a potential class member’s
testimony, counsel may show that witness a copy of the
photograph, but shall ensure that the witness does not retain
the document.
2. To the extent counsel wishes to have an individual currently
in the custody of the Illinois Department of Corrections review
photographs in connection with counsel’s legal telephone call
with the individual, Plaintiff’s counsel shall provide defense
counsel with a Bates-stamped collection of photographs it may
wish to show potential class members in custody seven (7)
days in advance of any such call, so that each facility may
maintain a single file of the photographs. Plaintiff’s counsel
shall inform defense counsel which photographs it would like
IDOC to show to an individual at least three (3) days before
any call with that individual. IDOC will make best efforts to
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provide such photographs to the individual for review during
the call and shall collect the photographs at the conclusion of
the call. Should IDOC be unable to provide photographs to an
individual for review during a legal call, it shall provide the
photographs to the individual for review no more than 48
hours in advance of such call.
3. Counsel shall under no circumstances show prison blueprints,
schematics, or diagrams to a person currently or formerly in
the custody of the Illinois Department of Corrections without
advance approval of defense counsel. Plaintiff’s counsel shall
request defense counsel’s approval at least three (3) days prior
to any meeting in which Plaintiff’s counsel wishes to show a
document designated “ATTORNEY EYES ONLY” to Plaintiff
or a potential class member. If defense counsel approves,
Plaintiff’s counsel may show the document to the witness but
shall ensure that the witness does not retain the document. In
the case of documents Plaintiff’s counsel wishes to show a
potential class member on a telephone call, the procedure in
Section 5(c)(vi)(2) for showing a photograph to a potential class
member shall be followed.
d. Except as provided above, absent an alternative agreement of counsel that
shall be made in writing, under no circumstances shall the attorney of
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record receiving information designated as “ATTORNEY EYES ONLY”
disclose such information to his or her client(s) or allow his or her client(s)
to access such information.
e. Notwithstanding the other provisions of this order, the Parties may redact
any portions of documents and other information that contains personal
information including home addresses, telephone numbers, social security
numbers, IDOC numbers, dates of birth and medical and mental health
information of any person, including but not limited to present inmates,
former inmates, alleged offenders named in police reports, IDOC
employees, family members of employees or inmates, volunteers and
victims, unless the information is relevant to the litigation.
f. 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; 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
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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 the Local Rules.
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 information
pursuant to this Order 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
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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 (3) 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
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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 (63) days
after dismissal or entry of final judgment not subject to further appeal, all
Confidential Information and documents marked “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” or “ATTORNEY EYES ONLY”
under this Order, including copies as defined in paragraph 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
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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. The destruction of any
documents under this Order shall be done to the extent practicable and, for
the parties represented by the State of Illinois, Office of the Attorney
General, consistent with the State Records Act, 5 ILL. COMP. STAT. 160/1, et
seq.
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 (CM/ECF) System. Filings under seal shall be deleted from the
CM/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: January 27, 2025
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VERNON TERRELL,
individually and on behalf of a
class of similarly situated
individuals,
Plaintiff,
v.
Case No. 24-CV-02434-SPM
LATOYA HUGHES,
Acting Director of the Illinois
Department of Corrections.
Defendant.
ACKNOWLEDGMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order
dated January 27, 2025 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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