Klein v. American Science and Engineering,Inc. et al

Filing 6

Judge Richard G. Stearns: ORDER entered granting 5 Motion for Protective Order pursuant to the parties' stipulation. (RGS, int2)

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 1 of 13

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SHARON KLEIN, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
Case No. 16-11542
AMERICAN SCIENCE AND
ENGINEERING, INC., CHARLES P.
DOUGHERTY, HAMILTON W.
HELMER, DON R. KANIA, JOHN
SANDERS, ROBERT N. SHADDOCK,
MARK S. THOMPSON, and JENNIFER
VOGEL,

CLASS ACTION COMPLAINT

Defendants.

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER
REGARDING THE SEALING OF COURT RECORDS
Through their counsel of record, defendants American Science and Engineering, Inc.,
Charles P. Dougherty, Hamilton W. Helmer, Don R. Kania, John Sanders, Robert N. Shaddock,
Mark S. Thompson, and Jennifer Vogel (collectively, “Defendants”), on the one hand, and
plaintiff Sharon Klein (“Plaintiff”), on the other hand (collectively, the “Parties”), hereby
stipulate, pursuant to Fed. R. Civ. P. 26(c), as follows:
1.

This Stipulated Confidentiality Agreement and Protective Order (“Order”) shall

govern all documents or things produced in discovery, deposition testimony, exhibits and
transcripts, written discovery requests and responses, and any other information or material
produced, given or exchanged in the action captioned above (“Discovery Materials”), including
any other information contained therein or derived therefrom, and the designation and handling

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 2 of 13

of Discovery Materials containing confidential, proprietary and/or private information produced
in this action by any Party or non-Party.
2.

Any Party or non-Party person or entity producing Discovery Materials (the

“Producing Party”) may designate as “Confidential” those portions of Discovery Materials that
contain or disclose confidential or proprietary information, information protected by the right to
privacy, trade secrets, nonpublic inside information, private individual financial information,
commercially sensitive information, personnel files or any other sensitive or proprietary
information that has not been made public or otherwise disclosed to third parties (“Confidential
Information”).

Any Producing Party may designate any Discovery Material as “Highly

Confidential” under the terms of this Order if such party in good faith reasonably believes that
disclosure of the Discovery Material other than as permitted pursuant to Paragraph 8 of this
Order is substantially likely to cause injury to the Producing Party (“Highly Confidential
Information”).

By designating Discovery Materials as containing Confidential or Highly

Confidential Information, the Producing Party is certifying to the Court that there is a good faith
basis in law and in fact for the designation within the meaning of Fed. R. Civ. P. 26(g).
3.

A Producing Party shall designate documents containing Confidential or Highly

Confidential Information by marking a designated document, and all relevant pages of a
designated document, with the word(s) “confidential” or “highly confidential” in a location that
makes the designation readily apparent.
4.

A Party shall designate deposition testimony containing Confidential or Highly

Confidential Information by, within thirty (30) days after receipt of the written deposition
transcript, identifying the portions of the deposition testimony and exhibits to the deposition
transcript which are confidential. Until that time, all deposition testimony, as well as the exhibits

2

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 3 of 13

to the deposition transcript, shall be treated as confidential.

A Party may also designate

deposition testimony and exhibits as confidential at the time of deposition, and may instruct the
deposition officer to mark deposition transcripts and exhibits as “confidential” either at the time
of the deposition or at any time prior to receiving the written deposition transcript.
5.

A Producing Party shall designate electronic media containing Confidential or

Highly Confidential Information, including but not limited to DVDs, CDs, flash drives, disks,
hard-drives, video-recordings, etc., by, where practical, marking the media as “confidential” or
“highly confidential.”
6.

A Producing Party shall designate materials or things that have not been reduced

to documentary or electronic form as containing Confidential or Highly Confidential Information
by informing counsel for the Parties in writing that the material or thing contains Confidential or
Highly Confidential Information.
7.

Any party seeking to file or disclose materials designated as Confidential or

Highly Confidential Information with the Court in this action must file such Confidential or
Highly Confidential Information under seal in accordance with the Federal Rules of Civil
Procedure and the Local Rules of the United States District Court for the District of
Massachusetts.
(a)

A Party wishing to file a document or deposition transcript containing

Confidential or Highly Confidential Information with the Court must file a motion with the Court
containing a statement of the earliest date on which the sealing order may be lifted, or a
statement, supported by good cause, that the material should be impounded until further order of
the Court.

If the filing Party is not the party that produced the Confidential or Highly

Confidential Information to be filed, then the filing party need only include in such motion a

3

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 4 of 13

statement of the earliest date on which the sealing order may be lifted, with such date to be at
least ten days from the date of the motion. If the Court grants all of the relief requested in the
motion to seal, then the filing Party shall file the document or deposition transcript under seal.
8.

Confidential or Highly Confidential Information shall not be used by a non-

Producing Party for any purpose other than the defense or prosecution of this action and shall not
be used, directly or indirectly, by any non-Producing Party for any business, commercial or
competitive purpose whatsoever. Confidential or Highly Confidential Information shall not be
discussed with, or disclosed to, any person except as specifically authorized by this Order.
Neither Plaintiff, nor Plaintiff’s counsel, shall use any Confidential or Highly Confidential
Information in connection with any future litigation against Defendants or any parties related to
Defendants.
9.

Confidential Information shall be disclosed only to:
(a)

the named Parties to this action and their officers, directors, and

authorized agents deemed necessary by counsel for the prosecution or defense of this action;
(b)

the attorneys for the Parties, including both outside and in-house counsel,

(c)

the Court and its staff in this action and in any appeal;

(d)

the jury, if any;

(e)

any mediators, arbitrators, or judicial referees and their staff used in

and their staff;

connection with this action;
(f)

court reporters used in connection with this action and their employees;

(g)

consultants, technical advisors, and expert witnesses (whether designated

as trial witnesses or not) employed or retained by the Parties or their counsel; provided, however,

4

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 5 of 13

that any such consultant, technical advisor, or expert witness is not currently an employee of, or
advising or discussing employment with, or a consultant to, any Party to this litigation or any
competitor or potential competitor of any Party;
(h)

any anticipated witness in this action, except that such witness shall be

shown Confidential Information only in preparation for or during his or her testimony and may
not copy or retain such Confidential Information;
(i)

any person indicated on the face of a document to be the author,

addressee, or a recipient of the document;
(j)
(k)
10.

any other person or entity as to whom the Parties agree in writing; and
any other person as to whom the Court orders.

Highly Confidential Information shall be disclosed only to:
(a)

the attorneys for the Parties, including both outside and in-house counsel,

(b)

the Court and its staff in this action and in any appeal;

(c)

the jury, if any;

(d)

any mediators, arbitrators, or judicial referees and their staff used in

and their staff;

connection with this action;
(e)

court reporters used in connection with this action and their employees;

(f)

consultants, technical advisors, and expert witnesses (whether designated

as trial witnesses or not) employed or retained by the Parties or their counsel; provided, however,
that any such consultant, technical advisor, or expert witness is not currently an employee of, or
advising or discussing employment with, or a consultant to, any Party to this litigation or any
competitor or potential competitor of any Party;

5

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 6 of 13

(g)

any anticipated witness in this action, except that such witness shall be

shown Highly Confidential Information only in preparation for or during his or her testimony
and may not copy or retain such Highly Confidential Information;
(h)

any person indicated on the face of a document to be the author,

addressee, or a recipient of the document;
(i)
(j)
11.

any other person or entity as to whom the Parties agree in writing; and
any other person as to whom the Court orders.

Prior to the disclosure of Confidential or Highly Confidential Information by a

non-Producing Party to any of the persons identified in Section 9 subsections (g) and (h) of this
Order or Section 10 subsections (f) and (g), the Party making the disclosure shall first secure
from those persons a signed statement in the form attached as Exhibit A to this Order by which
the signatory expressly states that he or she has read and understands this Order and agrees to be
bound by its terms and counsel shall be responsible for retaining the original, executed copy
thereof.
12.

To the extent that testimony is sought concerning Confidential or Highly

Confidential Information during any deposition or in any other pre-trial venue, any Party may
exclude any person from the deposition or other venue during such testimony if the Confidential
or Highly Confidential Information may not be disclosed to such person under the terms of this
Order.
13.

This Order shall be without prejudice to the right of the Parties or other persons to

(i) bring before the Court at any time the question of whether any particular item of Discovery
Material is properly designated as Confidential or Highly Confidential Information or (ii) present
a motion to the Court for a separate protective order as to any particular item of Discovery

6

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 7 of 13

Material, including restrictions differing from those specified in this Order. This Order shall not
be deemed to prejudice the Parties in any way in any future application for modification of this
Order.
14.

A Party or other person objecting to the designation of Confidential or Highly

Confidential Information shall provide written notice of the objection to the designating Party,
specifying the materials that are the subject of the objection. The Parties and any other objecting
person(s) shall confer in good faith in an effort to resolve the objection. If such conference does
not resolve the objection, within ten (10) days of such conference, the person objecting to the
designation may apply to the Court, by motion, for a ruling that material designated by a Party as
Confidential or Highly Confidential Information shall not be treated as Confidential. The Party
that designated the material as Confidential or Highly Confidential Information shall be given
notice of the motion and an opportunity to respond in accordance with the time frame set forth in
the applicable rules of civil procedure. Pending determination by the Court, Discovery Material
designated by a Party as Confidential or Highly Confidential Information shall be treated as
confidential or highly confidential as provided in this Order. The Party who designated the
Discovery Material as Confidential or Highly Confidential Information shall have the burden of
showing that the Discovery Material was properly designated.
15.

In the event of a disclosure of Confidential or Highly Confidential Information to

a person not authorized to have had such disclosure made to him or her under the provisions of
this Order, the Party responsible for having made such disclosure shall immediately procure the
return of the Confidential or Highly Confidential Information, and inform counsel for the
designating Party whose Confidential or Highly Confidential Information has thus been
disclosed of all relevant information concerning the nature and circumstances of such disclosure.

7

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 8 of 13

The responsible Party shall also take all reasonable measures promptly to ensure that no further
or greater unauthorized disclosure of the Confidential or Highly Confidential Information occurs.
16.

The inadvertent production of any Confidential or Highly Confidential

Information, without the “Confidential Information” or “Highly Confidential Information”
designation, shall be without prejudice to any claims that the information is confidential or
highly confidential, and shall not constitute a waiver of its confidential or highly confidential
nature.

Upon demand of the Producing Party, all copies of any inadvertently produced

undesignated information shall be designated as “confidential” or “highly confidential” and shall
be subject to the terms of this Order. Upon receiving such demand, the Parties shall thereafter
mark and treat the Discovery Material so designated as Confidential or Highly Confidential
Information, and such Discovery Material shall be fully subject to this Order from the date of
such supplemental notice forward. The Party receiving such notice shall make a reasonable,
good faith effort to ensure that any analyses, memoranda, notes, or other such materials
generated based upon such newly designated information are immediately treated as containing
Confidential or Highly Confidential Information. In addition, upon receiving such supplemental
written notice, any receiving Party that disclosed the Discovery Material prior to its designation
as Confidential or Highly Confidential shall exercise its best efforts (i) to ensure the return or
destruction of such Discovery Material by any person not authorized to receive the Discovery
material under the terms of this Order, (ii) to ensure that any documents or other materials
derived from such Discovery Material are treated as if the Discovery Material had been
designated as Confidential or Highly Confidential when originally produced, (iii) to ensure that
such Discovery Material is not further disclosed by the recipient except in accordance with the

8

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 9 of 13

terms of this Order, and (iv) to ensure that any such Discovery Material, and any information
derived therefrom, is used solely for the purposes described in Paragraph 8 of this Order.
17.

Disclosure (including production) of information that a Party or non-Party later

claims should not have been disclosed because of a privilege, including (without limitation) the
attorney-client privilege or attorney work product doctrine (collectively, “Privileged
Information”), shall not constitute a waiver of, or estoppel as to, any claim of privilege as to
which the Producing or receiving Party would be entitled in the action. The receiving Party
agrees to return, sequester or destroy any Privileged Information disclosed or produced by a
Producing Party upon request. If the receiving Party wishes to challenge the privileged nature of
purportedly Privileged Information, the receiving Party must make its application to the Court
pursuant to the procedures set forth in Section 14 above within ten (10) days of the request by the
Producing Party to return, sequester or destroy the purportedly Privileged Information. If the
receiving Party reasonably believes that Privileged Information has been inadvertently disclosed
or produced to it, it shall promptly notify the Producing Party and sequester such information
until instructions as to the disposition of such information are received. The failure of any Party
or non-Party to provide notice or instructions under this Section shall not constitute a waiver of,
or estoppel as to, any claim of privilege as to which the Producing Party would be entitled in this
action.
18.

Nothing herein shall be deemed to waive any applicable common law or statutory

privilege or work product protection or any other objections any party may have regarding the
production of information in this action.
19.

If any person in possession of Confidential or Highly Confidential Information

(the "Receiver") receives a subpoena or other compulsory process seeking the production or

9

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 10 of 13

other disclosure of Confidential or Highly Confidential Information produced or designated as
"Confidential" or "Highly Confidential" by a Producing Party other than the Receiver
(collectively, a "Demand"), the Receiver shall give written notice (by hand, email, or facsimile
transmission) to counsel for the Producing Party (or Producing Parties) within five business days
of receipt of such Demand (or if a response to the Demand is due in less than five business days,
at least 48 hours prior to the deadline for a response to the Demand), identifying the Confidential
or Highly Confidential Information sought and enclosing a copy of the Demand, and must object
to the production of the Confidential or Highly Confidential Information on the grounds of the
existence of this Order. The burden of opposing the enforcement of the Demand will fall on the
Producing Party. Nothing herein shall be construed as requiring the Receiver or anyone else
covered by this Order to challenge or appeal any order requiring production of Confidential or
Highly Confidential Information covered by this Order, or to subject itself to any penalties for
noncompliance with any legal process or order, or to seek any relief from this Court or any other
court. Compliance by the Receiver with any order directing production pursuant to a Demand of
any Confidential or Highly Confidential Information will not constitute a violation of this Order.
20.

A waiver by any Party of any provision of this Order for any purpose shall be

strictly construed and shall not constitute, or be deemed to constitute, a waiver (a) of any other
provision of this Order; (b) for any other purpose or (c) of any other right of such Party.
21.

Upon written request of the Producing Party and within thirty (30) days following

the final disposition of all claims and defenses, by settlement or final judgment, including
expiration of time to appeal, all Confidential or Highly Confidential Information must be
destroyed or returned to the Producing Party, at the discretion of the Producing Party, except that
attorneys for named parties may retain attorney work product, including briefs, communications

10

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 11 of 13

and transcripts. The provisions of this Order shall continue to be binding after the conclusion of
this action.
22.

Nothing in this Order shall prevent any Party from objecting to discovery that it

believes is improper. The production of any Discovery Material under this Order shall not
preclude any Party from objecting to the relevance, authenticity, use, or admissibility in evidence
of any a document, testimony, or other evidence subject to this Order or preclude any Party from
objecting to discovery that it believes to be otherwise improper.
23.

This Order has no effect upon, and shall not apply to, a Producing Party's use or

disclosure of its own Discovery Material for any purpose.
24.

In the event additional Parties join or are joined to this litigation, they shall not

have access to Confidential or Highly Confidential Information until the newly joined Party by
its counsel has executed and filed with the Court its agreement to be bound by this Order.
25.

The Parties shall confer prior to trial to discuss the procedures for the use of

Confidential or Highly Confidential Information at trial.
26.

Any litigation regarding this Order shall be conducted in the above-entitled Court.

27.

This stipulation may be executed in any number of counterparts, each of which

shall be deemed to be an original and all of which together shall be deemed to be one and the
same document.
28.

The terms of this Order shall be binding on the Parties and their counsel. If the

Court does not enter the Order approving this Stipulation, then the Stipulation shall remain in
effect and be enforceable among the Parties and their counsel as a contract.
SO STIPULATED.

11

Case 1:16-cv-11542-RGS Document 5 Filed 08/10/16 Page 12 of 13

DATED: August 10, 2016

/s/ Mitchell J. Matorin
Mitchell J. Matorin
MATORIN LAW OFFICE, LLC
18 Grove Street, Suite 5
Wellesley, MA 02482
Telephone: [phone]
Joseph Levi
Michael H. Rosner
William J. Fields
LEVI & KORSINSKY LLP
30 Broad Street, 24th Floor
New York, NY 10004
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff Sharon Klein

/s/ Eric D. Wolkoff
Eric D. Wolkoff
WILMER CUTLER PICKERING HALE AND
DORR LLP
60 State Street
Boston, MA 02109
Telephone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendants

12

Case 1:16-cv-11542-RGS Document 5-1 Filed 08/10/16 Page 1 of 3

EXHIBIT A

Case 1:16-cv-11542-RGS Document 5-1 Filed 08/10/16 Page 2 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

SHARON KLEIN, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
Case No. 16-11542
AMERICAN SCIENCE AND
ENGINEERING, INC., CHARLES P.
DOUGHERTY, HAMILTON W.
HELMER, DON R. KANIA, JOHN
SANDERS, ROBERT N. SHADDOCK,
MARK S. THOMPSON, and JENNIFER
VOGEL,

CLASS ACTION COMPLAINT

Defendants.

AGREEMENT TO MAINTAIN CONFIDENTIALITY
I,

, being duly sworn, state that:

1.

My present residential address is

2.

My present employer is

, and

the address of my present employer is
3.

My present occupation or job description is

4.

I have received and read the Stipulated Protective Order (“Order”) in the action

captioned above and I agree to abide by its terms. I understand that the Confidential or Highly
Confidential Information or Discovery Materials disclosed to me are subject to various
restrictions on use and disclosure, including the restriction that they are to be used solely for the

Case 1:16-cv-11542-RGS Document 5-1 Filed 08/10/16 Page 3 of 3

defense or prosecution of this action, and not for any business, commercial, competitive, or other
purpose whatsoever.
5.

I hereby submit to the jurisdiction of the United State District Court for the

District of Massachusetts for the purpose of enforcing the terms of this agreement and the Order.
6.

I will return all Confidential or Highly Confidential Discovery Materials that

come into my possession, and all documents and things relating thereto, to the person from
whom I obtained such materials, when requested to do so.
7.

I understand that the promises, agreements, representations, and covenants made

in this Agreement are for the benefit of any party or third party whose Confidential or Highly
Confidential Information or Discovery Materials are furnished to me in reliance thereupon, and
that any such party may have the right to seek legal or equitable remedies against me for breach
of any of these promises, agreements, representations, or covenants.

Signed under penalty of perjury by:

Name
Date