Kelly v. Experian Information Solutions, Inc. et al

Filing 21

AGREED MUTUAL PROTECTIVE ORDER Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL PATRICK KELLY,
Case No. 2:11-cv-13672
Honorable Robert H. Cleland
Magistrate Paul J. Komives

Plaintiff,
v.
GILA LLC, a Texas limited liability company,
d/b/a MUNICIPAL SERVICES BUREAU and
EXPERIAN INFORMATION SOLUTIONS, INC.,
a foreign corporation,
jointly and severally,
Defendants.

AGREED MUTUAL PROTECTIVE ORDER
______________________________________________________________________________
It is hereby stipulated and agreed, by and between Plaintiff Michael Patrick Kelly and
Defendants Gila LLC and Experian Information Solutions, Inc., as follows:
BACKGROUND
A.

Documents and information have been and may be sought, produced or exhibited

by and among the parties to this action relating to trade secrets, confidential research,
development, technology and other proprietary information belonging to the Defendants and/or
personal income, credit and other confidential information of Plaintiff.
B.

The parties desire to enter into a mutual agreement regarding the confidentiality

of this information and governing the production and use of this information.
NOW THEREFORE, this matter having come before the Court and the Court, being first
duly advised, now finds and orders as follows:

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1.

Right to Designate Information as "Confidential". Counsel for any party (or

for a nonparty witness or deponent which shall be included in the term “Designating Party”) may
designate as “Confidential” any document, testimony or other discovery material that contains
confidential commercial or financial information or trade secret information to which they in
good faith believe access should be limited to litigation counsel presently of record for the
parties, or subsequently substituted.
2.

Definition of “Confidential” Information.

The term “Confidential” means

information so designated by a Designating Party in writing (or orally if recorded as part of a
deposition or court record), whether revealed during a deposition, in a document, in an
interrogatory answer, by production of tangible evidence or otherwise.
3.

Definition of Designated Information. Any information that is designated as

“Confidential” is Designated Information.
4.

Identification of Designated Information. Counsel for the Designating Party

shall inform the other counsel which materials are considered “Confidential” Information
designated as “Confidential” shall be identified “Confidential,” or the like, by a code upon which
all parties agree. Such words or code shall be placed on or affixed to each document and page
thereof which contains Designated Information, and in the case of an interrogatory answer, the
specific portion of such answer which contains Designated Information. When information not
initially designated as “Confidential” is so designated later in writing, each party shall make a
reasonable effort to retrieve documents containing the later-Designated Information and
otherwise ensure that persons to whom the Designated Information has been disclosed will treat
it as “Confidential.” However, no sanctions shall be imposed upon a party for any disclosure of

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the later - Designated Information made prior to the party’s receiving written notification of the
later designation of the information as confidential.
5.

Protection of Designated Information. Designated Information and any notes,

summaries, memoranda, exhibits or other documents which include or describe Designated
Information shall be retained by counsel for the Recipient Party, and, except as required by law,
governmental agency or court order and except as provided herein, shall not be disclosed to any
person (except those persons described in paragraphs 6 through 7 of this Order) or used by
counsel for any party or by any party other than in connection with this action (the “Litigation”).
Persons to whom access to Designated Information 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 cure
continued confidentiality, non-use and nondisclosure including, without limitation, such
precautions as precautions against copying and provision for safekeeping.
6.

Counsel's and Others' Access to Designated Information. Except as provided

in paragraph 7 below, the persons or entities entitled to have access to Designated Information
produced by another person shall be restricted to (a) the Court and its employees and any
reporter transcribing testimony at any hearing, trial, deposition or other formal proceeding in the
Litigation including but not limited to any appeal therefrom; and (b) the counsel and client for
any party who are charged with the responsibility for, or are actively engaged in, preparation for
trial or the trial of the Litigation and employees of such counsel who are assisting counsel in
connection with the Litigation.
7.

Disclosure of Designated Information to Outside Experts.

Counsel for a

Recipient Party may disclose any “Confidential” Information to an outside expert who is to assist
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that counsel in preparation for the trial in the litigation, or who is expected to testify at the trial in
the litigation. The outside expert shall read a copy of this Order and sign the attached Agreement
before receiving Designated Information.
8.

Limitation on Copying.

No copies, summaries, or abstracts of Designated

Information shall be made by a party or its counsel for distribution or use by persons other than
those described in paragraphs 6 through 7.
9.

Depositions. Any deposition or portion thereof during which “Confidential”

Information is being disclosed shall be taken in camera without any persons in attendance other
than the witnesses and those persons described in paragraphs 6 through 7.
10.

Designation Information to be Filed with Court Under Seal. The portions of

any deposition, exhibit, answer to interrogatories, and response to requests for admissions filed
with the Court which contain Designated Information, and the portions of all pleadings, motions,
briefs, memoranda or other documents filed with the Court purporting to reproduce or paraphrase
Designated Information, shall be filed in sealed envelopes or other appropriate sealed containers
on which shall be endorsed the title of this action, an indication of the nature of the contents of
such sealed envelope or other container, the words “CONFIDENTIAL - PROTECTIVE
ORDER” and a statement substantially in the following form:
CONFIDENTIAL
This envelope contains deposition transcript, documents, or information which
has been designated as confidential and is not to be opened and 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 the stipulation of the parties.

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The fact that the entire transcript, answers, or response is 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.
11.

Time for Designation of Deposition Designated Information. At the time of

the deposition if possible, but not later than 30 days after receipt of the deposition transcript,
counsel shall designate those portions of the deposition testimony which they deem
“Confidential” Information. Counsel shall designate these portions of answers to interrogatories
and responses to requests for admission that they deem confidential when the answers and
responses are served.
12.

Dispute as to Confidentiality. Any party may contest the designation of any

information as “Confidential.” A failure to challenge a claim of Designated Information shall
not constitute agreement that such claim is valid and shall not prejudice any party or person. If
any party disagrees with any designation of any information as “Confidential” they shall notify
counsel for the Designating Party, and they shall attempt to resolve the dispute. If the dispute is
not so resolved, the party contesting the designation shall place the dispute before the Court,
demonstrating the designation incorrect, and the information shall continue to be kept
Confidential unless and until the Court rules otherwise.
13.

Subjects Not Covered.

a.

Each party reserves the right to oppose on any grounds disclosure of any

Designated Information to persons not designated in paragraphs 6 through 7. Nothing herein
shall affect in any way the admissibility or inadmissibility of any document, testimony or other
evidence at trial. Nothing herein shall constitute a waiver of any applicable privilege or limit in
any way a party's use of its own Designated Information.
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b.

Subject to the exceptions stated in paragraph 6 and the preceding section of this

paragraph, this Order shall preclude a party from opposing production of any information or
documents on the ground that it is or contains Designated Information, but this order shall not
limit a party's right to oppose discovery on any other ground.
14.

Voluntary Waiver.

At any time after any information is designated

“Confidential,” the Designating Party may agree that the Designated Information may be
disclosed to specified persons, and the Designating Party may waive to any extent the protections
of this Order. Any such agreement or waiver must be in writing or by statement made on the
record at a deposition.
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 Designated Information at the termination of this action.
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.
17.

Disposition of Designated Information. Within 60 days after termination of the

Litigation, counsel shall destroy or return all Designated Information and copies (including
excerpts and summaries of any materials provided to experts pursuant to paragraph 8) to counsel
for the producing party or entity.
18.

Notice. If any party is served with a subpoena or other notice compelling the

disclosure of Designated Information, that party shall give written notice to the Designating
Party, as far in advance of the requested production date as is reasonably possible, so that the
Designating Party shall have an opportunity to object to the disclosure.
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19.

Non-Parties. The terms of this Order shall apply to information produced by

nonparties for use in the Litigation.
20.

Survival. The terms of this Order shall survive the termination of the Litigation.

21.

Inadvertent Production.

The inadvertent production of any document or

information during discovery in the Litigation shall be without prejudice to any claim that such
material is privileged under the attorney-client or other privilege, or protected from discovery as
work product. No party or entity shall be held to have waived any rights by such inadvertent
production so long as the Recipient Party is notified within 30 days of the discovery of such
inadvertent production. Upon written request by the inadvertently producing party, the Recipient
Party shall (even if the Recipient Party disagrees that the document is privileged) return all
copies of the document and not use the information in the document for any purpose until further
order of the Court.

Date: 11/21/2011

s/Robert H. Cleland
United States District Judge

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AGREED TO:

/s/ Gary D. Nitzkin (by consent)
Gary D. Nitzkin (P41155)
Attorney for Plaintiff
22142 West Nine Mile Rd.
Southfield, MI 48034
[phone]
[e-mail]

/s/ Tamara E. Fraser
Tamara E. Fraser (P51997)
Attorney for Defendant Experian
Information Solutions, Inc.
5435 Corporate Drive, Suite 225
Troy, MI 48098
[phone]
[e-mail]

/s/ Charity A. Olson (by consent)
Charity A. Olson (P68295)
Attorney for Defendant GILA LLC
106 E. Liberty Street, Suite 206
Ann Arbor, MI 48104
[phone]
[e-mail]

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AGREEMENT CONCERNING MATERIAL COVERED BY
A PROTECTIVE ORDER ENTERED
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
MICHIGAN
I, the undersigned, hereby acknowledge that I have read the attached Protective Order
entered in the United States District Court for the Eastern District of Michigan Court in Case No.
2:11-cv-13672 pending therein, and understand the terms thereof and agree to be bound by all
such terms. Without limiting the generality of the foregoing, I agree not to disclose to any
person or entity not authorized to receive “Confidential” Designated Information under the terms
of said Protective Order, any document or information designated as or constituting
“Confidential” or any other copies or extracts of information derived therefrom, which have been
disclosed to me. I further agree to use any “Confidential” information disclosed to me solely for
the purpose of the action and for no other purpose.
I hereby submit myself to the jurisdiction of the aforementioned Court for the purpose of
enforcing said Protective Order.

Date:

Signature:

Type or Print Name

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