Davies v. Goebel et al

Filing 40

STIPULATED PROTECTIVE ORDER. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD ANDREW DAVIES,
Plaintiff,

Case No. 15-cv-13799
Hon. Matthew F. Leitman

vs
DET. MATT GOEBEL, et al.,

Defendants.
_________________________________________________________________/
STIPULATED PROTECTIVE ORDER
This matter having come before this Honorable Court upon stipulation of the
parties, through their respective counsel, and the Court being otherwise fully
advised in the premises:
NOW, THEREFORE, IT IS HEREBY ORDERED that:
1.

Each of the parties to this action upon whom or which a discovery

request, including a subpoena duces tecum, has been or shall be served by any
party to this action may designate as “confidential” any documents produced, when
such materials refer or relate to, or would otherwise disclose, information of a
personal, proprietary or confidential business nature as defined below.
(a) “Confidential” is defined as any type or classification of
information, whether originals, copies, or in redacted form, or whether
in oral deposition testimony (transcript or videotape), interrogatory

responses or responses to request for admission, consisting of
business or financial records, Plaintiff’s medical or psychiatric
records, confidential department files (including portions thereof) and
any other personal documents or information of the parties or their
employees, and any other writing as defined by the Federal Rules of
Evidence, reflecting confidential, commercial or personal information
that counsel for any of the parties has in good faith designated as
confidential.

This paragraph does not prohibit the parties from

claiming a privilege and does not waive any party’s right to assert a
privilege and to not produce such document.
2.

Material designated “confidential” shall be used by the party receiving

the material solely in the prosecution or defense of this action.
3.

Material designated as “confidential” shall be held in confidence by

the party requesting the documents and his/her/its representatives; counsel for that
party and professional, clerical, secretarial or other support personnel of such
counsel; a person not an attorney retained by that party or counsel to assist in
litigation such as accountants and experts, court reporters retained in connection
with depositions in this litigation; and witnesses at deposition (collectively, the
“receiving party”); none of whom shall permit disclosure of the documents, except
purposes necessary to this litigation. The receiving party shall neither grant nor

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permit any other person to have access to any material designated as
“confidential,” or inform any other person of the existence of such material or of
any of the contents thereof without submitting this order to the receiving person .
4.

The inadvertent disclosure or production by any party of any

document protected by the attorney client or other privilege or by the attorney
work product doctrine shall not constitute, be construed as, or have the effect of a
waiver of such privilege or protection.
5.

“Confidential” material marked as an exhibit in a deposition or other

discovery document remains confidential, and may not be disclosed by the
receiving party except in accordance with this order.
6.

The parties agree that any documents that have been designated as

confidential that are used during a deposition will be treated in accordance with the
stipulated protective order. By entering into this protective order, Defendants do
not waive the right to file a motion for a protective order to have any portions of a
deposition transcript marked as “confidential” but must do so within 21 days of the
date the deposition was taken.
7.

The provisions set forth in paragraph three (3) above apply for a

party’s designation or assertion of the deliberative process privilege. To the extent
such a designation and/or privilege is asserted, the party asserting the
designation/privilege shall provide the basis for its assertion. To the extent the

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party asserts that the privilege precludes the production of documents and/or
material, the asserting party shall produce a privilege log to all parties. Any
disciplinary records contained in these files will be redacted to remove privileged
information, such as conclusions of investigators or disciplinary actions, pursuant
to the executive / deliberative process privilege. Defendants will produce a
privilege log for redacted information. Nothing in this Order prevents Plaintiff
from challenging an assertion of executive/deliberative privilege, if necessary.
8.

Correction of Designation and Clawback
a.

A producing party that fails to designate documents as

“Confidential Material” at the time of its production shall be entitled to make
a correction to its designation. Such correction and notice thereof shall be
made in writing, accompanied by substitute copies of each item of material,
appropriately designated. Upon receipt of a notice of correction, the
receiving party shall place the appropriate marking on the document to
reflect its altered confidentiality status and certify that the original and all
copies of the document have been appropriately marked. The obligation to
treat such material pursuant to the corrected designation shall be prospective
only, and those individuals who reviewed the mis-designated discovery
material prior to notice of the mid-designation by the producing party shall
abide by the provisions of this Order with respect to all future use and

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disclosure of any information contained in the mis-designated materials.
b.

A producing party that inadvertently produces any document or

other information during discovery in this litigation that the producing party
has a good faith reason to believe is privileged under the attorney-client or
other privilege, or protected from discovery as work product, may, upon
discovery of such inadvertent production, request the return of such
document or information. Upon receipt of a written request for return by the
inadvertently producing party, the receiving party (a) shall return the original
and all copies of the documents within thirty (30) days of the request, and
shall not use the information for any purpose except upon further order of
the Court, or (b) object to the request as described below. In the event the
receiving party objects to the return of the document, the receiving party
shall move the Court for an order as to whether the production was
inadvertent or whether the document or information is otherwise privileged
or protected from discovery. All materials related to the inadvertently
produced document or information, and motion, shall be treated as
“Confidential Material” pursuant to this Order, unless otherwise ordered
by the Court. If such a motion is made within thirty (30) days of receiving
the notice from the producing party of its claim of inadvertent production,
the receiving party may retain the produced document or information until

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the Court resolves the motion. However, the receiving party shall not use
the document or information for any purpose other than the motion except
upon further order of the Court. If no such motion is made within thirty (30)
days, the document or information and all copies shall be returned to the
producing party and the receiving party will not be entitled to retain the
document or information in any way. Failure to move within thirty (30) days
and/or return the produced document or information shall not be deemed a
waiver of such objection nor preclude subsequent motion by the receiving
party. If the receiving party disclosed the document or information before
being notified, it must notify the producing party as to the manner in which
the material was disclosed and to whom, and certify in writing that it has
requested the return of the document or information.
c.

If “Confidential Material” is disclosed by a receiving party to

anyone other than in a manner authorized by this Order, the receiving party
responsible for that disclosure must immediately bring all pertinent facts
related to that disclosure to the attention of the producing party of the
“Confidential Material” and make every reasonable effort to retrieve it and
to prevent further disclosure.

9.

Materials designated as “confidential” may be used in any

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proceeding in this action, including but not limited to:
(a)

Discovery depositions;

(b)

Motions, briefs and pleadings;

(c)

Argument before the court

(d)

Trial or appeal.

This order does not authorize the filing of any documents under seal.
Documents may be sealed only if authorized by statute, rule, or order of the Court.
A party seeking to file under seal any paper or other matter in any civil case
pursuant to this section shall file and serve a motion or stipulation that sets forth (i)
the authority for sealing; (ii) an identification and description of each item
proposed for sealing; (iii) the reason that sealing each item is necessary; (iv) the
reason that a means other than sealing is not available or unsatisfactory to preserve
the interest advanced by the movant in support of the seal; and, if a party files a
motion only, (v) a memorandum of legal authority supporting the seal.
10.

If a party believes that information designated by another party as

“confidential” should not be treated as confidential pursuant to this Protective
Order, that party may contest the designation for such document(s) by providing
opposing counsel with written notice as to the specific information being
challenged, together with identification of the document by bate stamp. In the
event that parties cannot resolve the disagreement, the party who designated the

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document as “confidential” may file a motion seeking a resolution of the challenge
within 14 days of notice or waive same designation. Unless the designating party
has waived the designation by failing to timely file a motion, the parties shall treat
the information as subject to this Order until the matter is resolved by the Court or
otherwise. It shall be the burden of the party designating the information,
testimony or documents as confidential to demonstrate why the confidential
designation should be upheld in the event of a challenge.
11.

At the conclusion of this action, including the exhaustion of all

appeals, a party receiving materials designated as “confidential” shall destroy or
return information and/or documents, except for information that can be obtained
through the Freedom of Information Act., including but not limited to information
containing compensation, benefits, and disciplinary action, citizen complaints,
internal investigations, policies and procedures, pursuant to the producing party’s
instruction and at the producing party’s expense. If the receiving party chooses to
destroy the materials, rather than returning it, the receiving party shall confirm in
writing to the producing party that the documents were destroyed.

12.

This Order may be modified upon written stipulation of the parties, or

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by the Court, upon motion of any party, for good cause shown.
IT IS HEREBY ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 13, 2017

Approved as to form and content:
FIEGER, FIEGER, KENNY &
HARRINGTON, P.C.

POTTER, DeAGOSTINO, O’DEA
& PATTERSON

By: /s/ Gina U. Puzzuoli
GINA U. PUZZUOLI (P37992)
Attorneys for Plaintiff
19390 West Ten Mile Road
Southfield, MI 48075
[phone]
[e-mail]

By: /s/Robert C. Clark
ROBERT C. CLARK (P76359)
Attorney for Oakland County
Defendants
2701 Cambridge Court, Suite 223
Auburn Hills, MI 48326
[phone]
[e-mail]

CITY OF DETROIT LAW
DEPARTMENT
By: /s/ Christina V. Kennedy
CHRISTINA V. KENNEDY
(P68992)
Attorney for Defendant Mendoza;
Non-Party City of Detroit
2 Woodward Avenue, Suite 500
Detroit, MI 48226
[phone]/Fax: [phone]

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