BOWMAN et al v. INTERNATIONAL BUSINESS MACHINES CORPORATION et al

Filing 130

ENTRY Regarding Protective Order Dispute: The parties have worked cooperatively to put a protective order in place to permit purportedly "confidential" documents to be so designated and possibly filed under seal. However, the parties dispu te what deadline should be set for when an objection must be raised to a confidentiality designation. Defendants assert that Plaintiffs should raise any such objection within 90 days of production. Plaintiffs contend that the duty to object should no t be triggered until the document is actually filed with the Court. On December 7, 2011, the Court held a telephonic status conference at which counsel was heard on this dispute. The Court now addresses this issue, and a few additional related items (see Entry for details). Signed by Magistrate Judge Tim A. Baker on 12/8/2011. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

)
)
)
Plaintiffs,
)
)
) CASE NO. 1:11-cv-00593-RLY-TAB
v.
)
INTERNATIONAL BUSINESS MACHINES )
CORPORATION, ACS HUMAN SERVICES, )
)
LLC, PHOENIX DATA CORPORATION,
)
and ARBOR E&T, LLC,
)
)
Defendants.
JAMES BOWMAN
and MELISSA GIBSON,

ENTRY REGARDING PROTECTIVE ORDER DISPUTE
The parties have worked cooperatively to put a protective order in place to permit
purportedly “confidential” documents to be so designated and possibly filed under seal.
However, the parties dispute what deadline should be set for when an objection must be raised to
a confidentiality designation. Defendants assert that Plaintiffs should raise any such objection
within 90 days of production. Plaintiffs contend that the duty to object should not be triggered
until the document is actually filed with the Court. On December 7, 2011, the Court held a
telephonic status conference at which counsel was heard on this dispute. The Court now
addresses this issue, and a few additional related items, as set forth below.
Defendants understandably desire a firm and foreseeable deadline so that they can timely
anticipate and address potential challenges to confidentiality designations. However, the Court
adopts Plaintiffs’ position for several reasons. Perhaps most significant, in Containment Tech.

Group v. Am. Soc’y of Health Sys. Pharm., No. 1:07-cv-997-DFH-TAB, 2008 WL 4545310, at
*4 (S.D. Ind. Oct. 10, 2008), this Court determined that the “better approach” is to require
heightened attention to the confidentiality designation at the time the document is filed with the
Court rather than at the time of production.
This conclusion rested upon the fact that counsel has a duty to exercise good faith in
making such designations; that requiring counsel to scour massive electronic discovery
production to examine confidentiality designations would add burdens and expense to the
litigation; that counsel can confer and avoid many if not most problems with overbroad
confidentiality designations; and that most documents designated as confidential when produced
in discovery will never actually be filed with the Court. Id. Thus, Plaintiffs’ position is
supported by precedent from this Court.
In addition, as Plaintiffs pointed out, the Defendants bear the burden of establishing that
their confidentiality determinations are justified. Were the Court to accept Defendants’ proposal
to require Plaintiffs to object to confidentiality designations within 90 days of production, the
burden of ensuring confidentiality determinations are justified would essentially shift to the
Plaintiffs (since in practice many defendants routinely over-designate documents as
“confidential”). Counsel stated that discovery is anticipated to be extensive. Defendants’
proposal would require Plaintiffs’ counsel to review thousands of confidentiality designations,
confer with opposing counsel, and raise objections within 90 days of production. No sound
reason exists for placing this burden on the Plaintiffs. Moreover, Defendants’ proposal provides
that failure to timely object to a confidentiality provision operates as a waiver to thereafter object
to this designation. So Defendants’ proposal not only provides a short window for Plaintiffs to

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raise objections, but also provides a potentially serious adverse consequence if Plaintiffs fail to
meet this obligation.
For these reasons, the Court rejects Defendants’ proposal, as outlined in paragraph 14 of
the proposed protective order informally submitted to the Magistrate Judge prior to the
December 7 conference, which would have required the Plaintiffs to object to confidentiality
designations within 90 days after production. Instead, the Court adopts Plaintiffs’ proposal, so
the proposed protective order to be formally submitted for approval should provide that Plaintiffs
need not address confidentiality designations until the document is filed with the Court.
This raises the question of exactly how Plaintiffs should challenge any such designation.
This necessarily requires a review of the protective order. As proposed, the protective order
would permit any party to file a document marked “confidential” under seal. To facilitate
approval of the formal protective order that will soon be filed with the Court, the order should be
revised to provide that no document may be filed under seal without a separate motion
requesting leave to do so. If the Plaintiffs are filing a document marked “confidential,” the
motion will serve as Plaintiffs’ opportunity to either agree that the document should be filed
under seal or to state any objections Plaintiffs have to the confidentiality designation. If
Defendants are filing a document marked “confidential,” any objection Plaintiffs may want to
raise should be included in response to the motion to seal. Failure to respond to the motion will
indicate Plaintiffs do not contest the confidentiality designation.
Finally, the Court notes that the proposed protective order does not include language
required by Seventh Circuit precedent that any person or other interested member of the public
may challenge whether any document is entitled to be filed under seal. This language should be

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included in the protective order submitted to the Court for approval.
Dated: 12/08/2011
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Copies to:
Kevin W. Betz
BETZ & BLEVINS
[e-mail]

Jason L. Fulk
HOOVER HULL LLP
[e-mail]

Sandra L. Blevins
BETZ & ASSOCIATES
[e-mail]

Andrew T. Glier
OFFICE OF THE ATTORNEY GENERAL
[e-mail]

Craig L. Briskin
MEHRI & SKALET, PLLC
[e-mail]

Melanie E. Harris
ICE MILLER LLP
[e-mail]

Jenny R. Buchheit
ICE MILLER LLP
[e-mail]

Thomas J. Henderson
HENDERSON LAW FIRM PLLC
[e-mail]

Daniel K. Burke
HOOVER HULL LLP
[e-mail]

Zachary D. Holmstead
KIRKLAND & ELLIS
[e-mail]

Aaron D. Charfoos
KIRKLAND & ELLIS LLP
[e-mail]

Anna May Howard
SEVERNS & STINSON LAW FIRM
[e-mail]

Adam Clay
INDIANA ATTORNEY GENERAL
[e-mail]

Andrew W. Hull
HOOVER HULL LLP
[e-mail]

John B. Drummy
KIGHTLINGER & GRAY
[e-mail]

John F. Ittenbach
ITTENBACH JOHNSON TRETTIN &
KOELLER
[e-mail]

Benjamin Conard Ellis
BETZ & BLEVINS
[e-mail]

Robert M. Kelso
KIGHTLINGER & GRAY
[e-mail]

Wendy Netter Epstein
KIRKLAND & ELLIS LLP
[e-mail]

Robert M. Koeller
ITTENBACH JOHNSON TRETTIN &
KOELLER
[e-mail]

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Laurie E. Martin
HOOVER HULL LLP
[e-mail]
Steven D. McCormick
KIRLAND & ELLIS LLP
[e-mail]
Martin L. Roth
KIRKLAND & ELLIS LLP
[e-mail]
Scott Richard Severns
SEVERNS & ASSOCIATES
[e-mail]
Anne M. Sidrys
KIRKLAND & ELLIS LLP
[e-mail]
Steven A. Skalet
MEHRI & SKALET, PLLC
[e-mail]
Diana M. Watral
KIRKLAND & ELLIS LLP
[e-mail]
L. Alan Whaley
ICE MILLER LLP
[e-mail]
Michael Wroblewski
KIGHTLINGER & GRAY
[e-mail]
Michael A. Wukmer
ICE MILLER LLP
[e-mail]

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