GILMAN et al v. WALTERS et al

Filing 103

ORDER - The Magistrate Judge declines to enter the Plaintiff's Proposed Protective Order, but GRANTS the 84 Motion for Protective Order subject to the terms and conditions set forth in this order. Signed by Magistrate Judge William G. Hussmann, Jr., on 10/3/2013. (NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
LARRY GILMAN, et al.,
Plaintiffs,
v.
MANNON L. WALTERS, et al.,
Defendants.

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3:12-cv-114-SEB-WGH

ORDER ON PLAINTIFFS’ AND NOMINAL
DEFENDANTS’ MOTION PROTECTIVE ORDER
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, upon the Plaintiffs’ and Nominal Defendants’ Motion
for Protective Order. (Docket No. 84). The Magistrate Judge, being duly
advised, declines to enter the Plaintiff’s Proposed Protective Order but GRANTS
the motion subject to the following Order.
Protective Order
Pursuant to Rule 26 of the Federal Rules of Civil Procedure, and the
mandates set forth in Citizens First National Bank of Princeton v. Cincinnati
Insurance Co., 178 F.3d 943, 945 (7th Cir. 1999), the following terms and
conditions regarding discovery in this case shall apply. This Protective Order is
limited to pretrial discovery only. If a party desires documents or information
to be sealed from public record, the party must comply with Southern District

of Indiana Local Rule 5.3 and demonstrate good cause for such action in
accordance with Federal Rule of Civil Procedure 26(c). All items sealed prior to
trial shall automatically be unsealed at the commencement of any trial,
whether by court or jury.
1. Definition of Confidential Information
As used herein, the term “Confidential Information” means financial
information or documents pertaining to Mannon L. Walters 2005 A1, L.P., a
Delaware Limited Partnership; Mannon L. Walters 2005 A2, L.P., a Delaware
Limited Partnership; Mannon L. Walters 2006 A, L.P., a Texas Limited
Partnership; Mannon L. Walters 2006 B1, L.P., an Indiana Limited Partnership;
and Mannon L. Walters 2007 A, L.P., an Indiana Limited Partnership.
2. Protection of Confidentiality
Confidential Information and any notes, summaries, memoranda,
exhibits, or other documents which include or describe Confidential
Information shall be retained by counsel for the Party to whom disclosure of
the Confidential Information was made (the “Recipient Party”) and, except as
provided in Paragraphs 3 and 4, shall not be disclosed to any person or used
by counsel for any Party other than for purposes of this action. Persons to
whom access to Confidential Information or depositions is given pursuant to
this Order shall keep such information and any copies, abstracts, or
summaries thereof secure in accordance with the purposes and intent of this
Order and shall adopt and employ all suitable precautions to ensure continued

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confidentiality, non-use, and non-disclosure including, without limitation, such
precautions as protection against unauthorized copying and provision for
safekeeping.
3. Access to Confidential Information
Except as provided in Paragraph 5 below, or as limited by designation for
“Attorneys’ Eyes Only,” or as set forth by Court order, the only persons entitled
to have access to Confidential Information produced by another Party shall be
Parties, counsel charged with responsibility for or actively engaged in the trial
(or preparing for the trial) of this action, employees of such counsel, and the
officers of each Party.
4. Prospective Law and Expert Witnesses
In the event that counsel for a Recipient Party believes that it is
necessary to disclose any Confidential Information to any prospective lay or
expert witness who is consulted in the course of preparing for trial, at least ten
(10) days prior to making a disclosure to such person or persons,
counsel for the Party desiring to do so shall give written notice thereof to
opposing counsel. Such notice shall identify the person or persons to whom
disclosure is to be made and describe the Confidential Information intended to
be disclosed to such person or persons. If the Designating Party objects to
disclosure of the specified Confidential Information to such person or persons,
it shall notify the Party desiring to make said disclosure of its objection in
writing within the ten (10) day period, and the Recipient Party shall move the

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Court within seven (7) days after the Designating Party objects for a ruling on
whether said Confidential Information may be so disclosed. In the event of
such a motion, disclosure of the Confidential Information to such person or
persons shall not be made pending the ruling of the Court.
5. Conditions to Access to Confidential Information
Before Confidential Information is disclosed to any person specified in
Paragraphs 3 and 4 (other than the Parties, counsel for each Party, and
employees of such counsel as discussed in Paragraph 3), that person shall first
read a copy of this Order, agree to be bound by it, and sign a written agreement
(the “Confidentiality Agreement”), a copy of which is appended to this Order.
Each Party’s counsel shall maintain a list of all persons to whom they disclose
Confidential Information and shall retain a copy of all Confidentiality
Agreements and Affidavits of Outside Experts signed by such persons.
6. Limitations on Copying
No copies, summaries or abstracts of Confidential Information shall be
made by a Party, or its trial attorneys, for distribution or use by persons other
than those described in Paragraphs 3 and 4.
7. Depositions
Any deposition or portion thereof during which Confidential Information
is being disclosed shall be taken as if in camera without any persons in
attendance other than those described in Paragraphs 4 and 5 of this Order, the
deposition witness, and court reporters.

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8. Confidential Information to Be Filed with Court Under Seal
Confidential Information, as defined in this Order and as approved by the
Court, shall not be filed in the public record of this litigation. After application
to the Court and showing of good cause and compliance with Southern District
of Indiana Local Rule 5.3, the following shall be filed in sealed envelopes or
other appropriate sealed containers: (a) portion of the transcript of every
deposition and all exhibits, answers to interrogatories, and responses to
requests for production that are filed with the Court and designated
Confidential Information; and (b) all portions of all pleadings, motions, briefs,
memoranda, or other documents that are filed with the Court and purport to
reproduce or paraphrase Confidential Information. Such sealed envelopes or
other appropriate sealed containers shall bear the title of this action, an
indication of the nature of the contents of the envelope or container, the words
“CONFIDENTIAL–PROTECTIVE ORDER,” and a statement substantially in the
following form:
CONFIDENTIAL
This envelope contains a deposition transcript, document, or
information which has been designated as confidential and is not
to be opened. Its contents are not to be disclosed to any person
other than the Court or its Clerks except by order of the Court or
upon stipulation of the Parties.
The fact that the entire transcript, answers, or response are filed under
seal shall not thereby restrict any use which may be made of any part of such
transcript, answers, or response not designated as confidential.

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If the Recipient Party desires to make Confidential Information a matter
of public record by filing such Confidential Information with the Court, the
Recipient Party must notify the Designating Party at least ten (10) days prior to
filing any such Confidential Information to allow the Designating Party to move
the Court to seal the Confidential Information for good cause.
9. Time for Designation of Confidential Information
Each Party shall, at the time of the deposition, if possible, but not later
than fifteen (15) days following the date of mailing of the deposition transcript,
designate those portions of the deposition testimony which it deems to contain
Confidential Information.
10. Dispute as to Confidentiality
Any Party or any interested member of the public may contest the
confidential status of any information designated as “Confidential Information”
or as “Confidential Information for Attorneys’ Eyes Only.” If a Party disagrees
with any designation of any information, it shall notify counsel for the other
Parties, and they shall attempt to resolve the dispute by agreement. If the
dispute is not so resolved, the information shall continue to be kept
confidential unless and until the Court rules otherwise in accordance with the
Federal Rules of Civil Procedure. At any hearing to determine the confidential
status of any information, the Party designating the information as confidential
shall have the burden of showing why such information should be confidential.

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11. Other Persons
Each Party retains the right to oppose on any grounds disclosure of any
Confidential Information to persons not designated in Paragraphs 2, 3, and 4.
12. Voluntary Waiver
At any time after any information, document, or deposition testimony is
designated as confidential under this Order, the Designating Party may agree
in writing that the Confidential Information may be disclosed to designated
persons employed by the Recipient Party, and the Designating Party may waive
the ten (10) day period set forth in Paragraph 4 of this Order. Any such
agreement or waiver must also be in writing or by statement made on the
record at a deposition.
13. Non-waiver of Privilege
The production by a Party or Non-Party of any privileged or arguably
privileged materials or information shall not be deemed to be: (a) a general
waiver of the attorney-client privilege, the work product doctrine, or any other
applicable privilege or protection; (b) a specific waiver of any such privilege with
respect to the material being produced or any subject matter thereof; or (c) a
waiver of any other rights the producing Party or Non-Party may have under
any applicable law. Upon the producing Party’s or Non-Party’s request, the
parties agree to return to the producing Party or Non-Party inadvertently
produced privileged materials.

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14. No Restriction on Use of Party’s or Non-Party’s Own Information
Nothing in this Order shall prevent a Party or Non-Party from any use of
its own Confidential Information.
15. Retained Jurisdiction
The Court retains jurisdiction to make such amendments, modifications,
and additions to this Order as the Court may from time to time deem
appropriate. The Court shall further retain jurisdiction to resolve any disputes
concerning the disposition of materials containing Confidential Information at
the termination of this action for the period of one year.
16. Amendment
This Order may be amended by the written agreement of counsel for the
Parties in the form of a stipulation that shall be approved by the Court and
filed herein.
17.

Disposition on Termination of Action

After the final termination of this action, and unless the Parties agree
otherwise, each Party shall:
(a)

assemble and make available for return to the Designating
Party all materials, documents, summaries, computer
records, and abstracts containing Confidential Information;

(b)

make available for return or destroy every portion of other
materials, memoranda, or documents purporting to
reproduce or paraphrase Confidential Information;

(c)

certify in writing that the procedures set forth above have
been completed; and

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(d)

agree not to disclose the substance of any Confidential
Information revealed to it by the Designating Party.

18. Damages Are Presumed in the Event of a Breach of this
Agreement
Should any Party be found by this Court to have breached this Order,
the breaching Party will pay all damages caused by the breach. Should the
damages not be capable of precise ascertainment, then the offending Party
shall pay liquidated damages of $500. Attorneys’ fees will be awarded to the
prevailing Party with respect to the determination of the breach.
19. Challenges to the Protective Order by Third Parties
Any third party, including any interested member of the public, may
challenge the provisions of this Protective Order by filing an appropriate motion
with this Court.
20. Compliance with Seventh Circuit Case Law
This Protective Order is intended to comply with the mandates set forth
by the Seventh Circuit in Citizens First National Bank of Princeton v. Cincinnati
Insurance Co., 178 F.3d 943, 945 (7th Cir. 1999), Baxter International, Inc. v.
Abbott Laboratories, 297 F.3d 544 (7th Cir. 2002), and Union Oil Co. of
California v. Leavell, 220 F.3d 562 (7th Cir. 2000).
SO ORDERED.
Dated: October 3, 2013

__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Served electronically on all ECF-registered counsel of record.

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