Carpenters Pension Trust Fund - Detroit and Vicinity et al v. Brunt Associates, Inc. et al

Filing 30

STIPULATED PROTECTIVE ORDER--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARPENTERS PENSION TRUST FUNDDETROIT & VICINITY, MICHAEL J.
JACKSON, SR. and THOMAS WOODBECK,
Trustees,
Plaintiffs/Counter-Defendants,

Case No: 2:16-cv-13928-MFL-APP

v.

Hon. Matthew F. Leitman

BRUNT ASSOCIATES, INC., a Michigan
corporation, and BRIAN BRUNT,
an individual, jointly and severally,

Magistrate Anthony P. Patti

Defendants/Counter-Plaintiffs.
_______________________________________/
NOVARA TESIJA, P.L.L.C.
BUTZEL LONG, a professional corporation
John I. Tesija (P36709)
Diane M. Soubly (P32005)
David Malinowski (P72076)
Mark T. Nelson (P27305)
Paul Newcomer (P44501)
ATTORNEYS FOR DEFENDANTS/
ATTORNEYS FOR PLAINTIFFS/
COUNTER-PLAINTIFFS
COUNTER-DEFENDANTS
301 E. Liberty St., Suite 500
2000 Town Center, Suite 2370
Ann Arbor, MI 48104
Southfield, MI 48075-1314
T: [phone]
T: [phone]
F: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
_______________________________________/
CONFIDENTIALITY AGREEMENT AND
STIPULATED PROTECTIVE ORDER

The parties hereto, by and through their undersigned counsel, and each of their
undersigned counsel, hereby stipulate and agree to abide by the terms of this
Confidentiality Agreement and Stipulated Protective Order (“Protective Order”), and
request that the Court enter the Protective Order as a Stipulated Order.
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WHEREAS, Plaintiffs/Counter-Defendants (“Plaintiffs”) have brought an action
against the Defendants/Counter-Plaintiffs (“Defendants”) in the U.S. District Court for
the Eastern District of Michigan, captioned “Carpenters Pension Trust Fund – Detroit &
Vicinity, Michael J. Jackson, Sr. and Thomas Woodbeck, Trustees, Plaintiffs v. Brunt
Associates, Inc., a Michigan corporation, and Brian Brunt, an individual, jointly and
severally, Defendants,” Case No. 2:16-cv-13928-MFL-APP (the “Action”);
WHEREAS, Defendants have filed counterclaims against Plaintiffs in the Action;
WHEREAS, subsequent to a hearing held on July 20, 2017, the Court referred the
matter to Magistrate Patti for settlement discussions, which may require the parties to
produce certain “Confidential Information” as defined herein;
WHEREAS, if the matter does not settle but proceeds to discovery, briefs and
other documents filed with the Court in the above-captioned Action will require the
parties to produce certain “Confidential Information” as defined herein;
WHEREAS, this Protective Order provides reasonable restrictions on the
disclosure of confidential information and will promote a free exchange of documents
and information, diminish involvement of the Court in discovery proceedings, and move
the case along more rapidly and at a reduced cost;
NOW THEREFORE, pursuant to Fed. Rule Civ. P. 26(a) and 29, the parties agree
and request that the Court order as follows:

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TERMS AND CONDITIONS OF PROTECTIVE ORDER
I. Definitions
As used herein, the following words shall have the following meanings:
1.1.

“Confidential Information” includes Facilitation Material and Discovery

Material that a Party or Non-Party a) believes in good faith to contain confidential,
personal, financial and medical information relating to a Party or a Non-Party and/or
information subject to confidentiality or non-disclosure agreements; and (b) which a
Party or Non-Party therefore designates as “Confidential” in accordance with the terms of
this Protective Order.
1.2.

“Designating Party” means the Party or Non-Party that has designated

Discovery Material as “Confidential.”
1.3.

“Discovery Material” means the original or copy of any document, answer

to interrogatory, answer to request for admission, answer to deposition on written
questions, testimony or other information otherwise furnished by any Party or Non-Party
in connection with discovery, motions, pleadings, or pretrial proceedings in the Action.
1.4.

“Expert” or “Consultant “means testifying or consulting experts, and their

assistants, who are retained to assist counsel in preparation for the Action.
1.5.

“Facilitation Material” means the original or copy of any document or

information otherwise furnished by any Party or Non-Party in connection with the
conferences with the Magistrate to whom this Court referenced settlement discussions.
1.6.

“Furnish” is used in its broadest sense and includes, inter alia, show,

divulge, reveal, produce, describe or transmit, in whole or in part.
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1.7.

“Furnishing Party” means the Party or Non-Party producing or disclosing

the Facilitation Material and/or Discovery Material or on whose behalf such Facilitation
Material and/or Discovery Material has been produced or disclosed.
1.8.

“Non-Furnishing Party” means the Party or Parties to whom Facilitation

Material and Discovery Material has been produced or disclosed.
1.9.

“Non-party” or “Non-parties” means any natural person, partnership,

corporation, labor organization, employee benefit fund, association, or other legal entity
who is not a Party to this Action.
1.10. “Party” or “Parties” means Plaintiffs and Defendants.

II.
2.1.

Facilitation Material and Discovery Material

Facilitation Material or Discovery Material designated “Confidential” shall

be used by the Parties for the sole purpose of: (a) preparing for and conducting pretrial,
trial and appellate proceedings in this Action; (b) preparing for and participating in
settlement discussions with the Magistrate as requested by the Court; or c) negotiating
any type of settlement agreement between and among the Parties, and for purposes of that
negotiation, documenting the merits of the Parties’ claims, claimed damages, defenses
and counterclaims. Facilitation Material or Discovery Material designated “Confidential”
shall not be used for any purpose other than those set forth in this paragraph, including
without limitation any business or commercial purpose.
2.2.

Facilitation Material and Discovery Material will not be entitled to

“Confidential”' designation if such material is in the public domain.
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2.3.

No material may be filed under seal without leave of court through

stipulated order or other order.
2.4.

Any Party wishing to include, disclose, or attach any “Confidential”

Facilitation Material or Discovery Material as part of or with any pleading, motion, brief
or other paper filed with the Clerk of this Court shall seek leave to have the material filed
under seal in accordance with the Court's applicable rules and/or file under seal by
stipulated order. Copies of the papers filed under seal shall be timely served on counsel
for the parties.
2.5.

Facilitation Material and Discovery Material shall be designated as

“Confidential” by stamping, imprinting or otherwise labeling the Facilitation Material or
Discovery Material “Confidential” or by letter identifying the document(s) to be
considered “Confidential.” In the case of multi-page documents, the designation shall be
stamped on each page which is deemed to contain Confidential Information.
2.6.

In the case of Facilitation Material or Discovery Material produced by a

Non-Party, such Non-Party may designate portions as “Confidential” in writing within a
reasonable time, not to exceed thirty (30) days, after receiving the Facilitation Material or
Discovery Material. Prior to the lapse of this thirty-day (30) period, such Facilitation
Material and Discovery Material shall be treated as Confidential Information, provided
that such Non-Party becomes a signatory to this Agreement.
2.7.

Discovery Material disclosed in the form of deposition testimony may be

designated as “Confidential” either in the deposition transcript at the time of such
testimony or in writing within a reasonable time, not to exceed thirty (30) days, after the
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transcript of the testimony has been received. Prior to the lapse of this thirty-day (30)
period, such transcript shall be treated as Confidential Information. On receipt of the
deposition transcript, the Designating Party shall limit its designations to those portions
of the transcript containing Confidential Information and shall provide written notice of
such designated pages to all other Parties within thirty (30) days of receiving the
deposition transcript. Upon being informed that certain portions of the deposition
transcript are to be so designated, counsel for each Party shall cause the designated pages
of each transcript in its custody to be marked as “Confidential.” Additionally, the cover
page of any deposition transcript containing testimony designated as confidential shall be
marked “This Transcript Contains Confidential Information - Subject to Protective
Order.”
2.8.

Discovery Material disclosed in the form of answers to interrogatories,

written responses to document requests, etc. may be designated as “Confidential” at the
time the answers or responses are produced and shall either be produced and stamped
“Confidential” separately or otherwise filed and maintained in such a way as to preserve
the confidentiality thereof.
2.9.

If a Party or Non-Party through inadvertence furnishes Facilitation Material

or Discovery Material containing Confidential Information without designating it as such
in accordance with the paragraphs above, the Party or Non-Party may give written notice
within a reasonable time, not to exceed ninety (90) days after furnishing such Facilitation
Material or Discovery Material, that the Facilitation Material or Discovery Material is
“Confidential” and should be treated as Confidential information in accordance with this
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Protective Order, in which case such Facilitation Material and Discovery Material shall
be treated accordingly from the date such notice is received. The inadvertent disclosure of
any Confidential Information shall not be deemed a waiver of confidentiality as to that
Facilitation Material or Discovery Material or any other Facilitation Material or any other
Discovery Material in which such information may also be contained.
2.10. If any Party seeks to challenge another Party or Non-Party's designation of
material as Confidential” the challenging Party shall notify the Designating Party and all
Parties to this Action of the challenge to such designation. Such notice shall identify with
specificity (i.e., by Bates stamp numbers, deposition transcript page and line reference, or
other means sufficient to locate easily such materials) the designation being challenged.
The Designating Party may preserve its designation within five (5) business days of
receiving notice of the confidentiality challenge by providing the challenging Party and
all Parties to this Action with a written statement of the reasons for the designation. The
Designating Party, preserving its rights, and the challenging Party shall meet and confer
in good faith in an attempt to negotiate changes to any challenged designation.
(a)

If the Parties are unable to resolve their differences, then the Designating

Party must file a motion requesting the Court to enter an order designating the
material as “Confidential” within ten (10) business days after the initial
confidentiality challenge (or a longer time period agreed upon by the parties).
Neither party shall be obligated to challenge the propriety of a “Confidential
designation, and failure to do so shall not constitute an admission that any material
is in fact “Confidential.” Any such material so challenged shall continue to be
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treated as “Confidential” under the terms of this Order for a period ending upon
the earlier of (a) such date as the Designating Party provides written notice to the
challenging Party that such material need not be treated as “Confidential” or (b)
such date as the Court issues a ruling on the Designating Party’s motion requesting
material be designated “Confidential”;
(b)

Regardless of confidential designation, copies of published magazine or

newspaper articles, excerpts from published books, and any other publicly
available information may be used by any Party without reference to the
procedures of this subparagraph.
2.11. For purposes of this Action, except with the prior written consent of the
Designating Party, or pursuant to Court order, Facilitation Material and Discovery
Material labeled “Confidential” shall not be made a matter of public record and shall not
be used for any purposes other than those set forth in paragraph II.2.1 above. Moreover,
for purposes of this Action, Confidential Information labeled “Confidential” shall only be
disclosed to the following persons:
(a)

the Court and all persons assisting the Court in this Action, including court

reporters taking testimony involving such information, and necessary stenographic
and clerical personnel thereof;
(b)

the Magistrate and all persons assisting the Magistrate in attempting to

resolve this Action, including necessary stenographic and clerical personnel
thereof;

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(c)

the Parties and attorneys, including in-house counsel, working in

connection with this Action, including their secretaries, paralegals, copying
services, and/or any other administrative personnel with document-handling
responsibilities who are assisting in this Action;
(d)

witnesses, consultants, experts, accountants, actuaries, and other third

parties retained to assist in this Action and the employees of the firms with which
such consultants or experts are associated where such disclosure is needed in
connection with the Action;
(e)

any actual or potential fact witness, including former employees of the

Parties, and the witness’ counsel while preparing for or appearing at a deposition
or other proceeding in this Action; and
(f)

persons not identified in subparagraphs (a) - e above who provide

deposition or trial testimony in this Action, provided that such persons shall not
retain the Confidential Information, or any portions of the transcripts of their
testimony that contain the Confidential Information;
(g)

a Party's insurers or reinsurers and their relevant employees, which may

provide coverage for any expenses or liabilities a Party might incur in this Action;
(h)

a Party's auditors or regulators entitled to review Confidential Information

or materials as a result of contractual rights or obligations, or federal, state or local
law;

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(i)

local, state or federal taxing authorities state or federal securities, regulatory

authorities, or any other federal, state or local governmental authority that requires
disclosure by any party; and
(j)

any other person on such terms and conditions as the parties may mutually

agree in writing, or as the Court may hereafter direct by further order.
2.12. Persons identified in Paragraph 2.11 above shall, before being provided
Confidential Information, be informed of the existence of this Order and shall agree to
keep the information confidential in accordance with this Protective Order. Persons
identified in Paragraph 2.11(d) through (h) and (j), shall provide their name, address and
telephone number and sign the attached Exhibit “A” evidencing their agreement to the
terms of this Protective Order prior to receiving the Confidential Information. The Party
securing an executed Exhibit A from a person identified in Paragraph 2.11(d) through (h)
and (j) shall provide an electronic copy of each such executed Exhibit A to counsel for
the Designating Party within five (5) days of that Exhibit A’s execution.
2.13. For purposes of this Action, witnesses and attorneys for the Parties may
testify on, submit, attach as an exhibit, refer to, quote from, paraphrase, or otherwise
utilize Confidential Information in any testimony, transcript, brief or other document
submitted or filed with this Court or any appellate court, provided that any such
information is filed under seal with the approval of this Court and is otherwise treated in
accordance with the provisions of this Protective Order. In the event that any Confidential
Information is used in any court proceeding herein, it shall not lose its privileged and/or
confidential status through such use, provided that the Court shall have allowed such
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Confidential Information to be filed under seal, and the Parties shall take all steps
reasonably required to protect its confidentiality.
2.14. If, at any time, any information protected by this Protective Order is
subpoenaed by any court, governmental, administrative or legislative body, or is
requested by any other person or entity purporting to have authority to require the
production of such information, the Party to whom the subpoena or other request is
directed shall immediately give written notice to undersigned counsel for the Designating
Party. After receipt of the notice specified under this paragraph the Designating Party
shall have the sole responsibility for obtaining any order or other relief it believes
appropriate. The Party to whom such subpoena or request is directed shall have no
obligation to delay complying with such subpoena or request or to withhold any
information from its production until and unless ordered to do so by a court of competent
jurisdiction, but it shall not make its production until the return date on the subpoena or
request or, if there is no return date, for a period of ten (10) calendar days.
2.15. A person and any Party and any counsel for a Party to whom Confidential
Information is disclosed:
(a)

shall protect its confidential nature both during the pendency of this

Action and after its conclusion by a final judgment or settlement;
(b)

shall never disclose any part of it to any person other than the

persons to whom disclosure is permitted by this Order;
(c)

shall never use any part of it for the benefit of himself or herself, the

discovering party or anyone else, except for the purpose of this Action
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(including, but not limited to, the administration of Carpenters Pension
Trust Fund – Detroit & Vicinity Pension Plan in relation to Defendants) ;
and
(d)

shall maintain Confidential Information in a secure place where

unauthorized disclosure cannot reasonably be expected to occur.
2.16. If a disclosing party through inadvertence produces or provides Facilitation
Material or Discovery Material that it believes is subject to a claim of attorney-client
privilege, work product immunity, or any other privilege, the disclosing party may give
written notice to the receiving party that the Facilitation Material or Discovery Material is
deemed privileged and that return of the Facilitation Material or Discovery Material is
requested. Upon such written notice, the receiving party shall immediately gather the
original and all copies of the Facilitation Material or Discovery Material of which the
receiving party is aware and shall immediately return the original and all such copies to
the disclosing party. Return of Discovery Material by the receiving party shall not
preclude the receiving party from later moving the Court to compel production of the
returned Discovery Material.

III.
4.1

General Provisions

Within 30 days after the conclusion of the settlement conference ordered by

the Court, any person to whom disclosure of Confidential Information has been made
pursuant to the provisions of this Protective Order and for purposes of the settlement
conference shall assemble and return such Confidential Information to counsel for the
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Party that has secured such executed Exhibit A, to be retained by that counsel as
confidential and subject to the provisions of this Protective Order.
4.2

Within 60 days after the final resolution of this Action, including any

appeal or retrial, any other person (other than persons described in Paragraph 4.1) to
whom disclosure of Confidential Information has been made pursuant to the provisions of
this Protective Order shall assemble and return such Confidential Information to the
counsel for the Party that has secured such executed Exhibit A. Counsel to whom
Confidential Information has been returned pursuant to Paragraph 4.1 and this paragraph
shall retain all such Confidential Information and any other remaining Confidential
Information in that counsel’s possession as confidential, as under the care and custody
and control of that counsel, and subject to the provisions of this Protective Order. The
requirements of this paragraph do not apply to any materials containing such Confidential
Information that the Parties are required to maintain to evidence the settlement or
resolution of this Action and/or the bases thereof. A Party may retain that remaining
Confidential Information the Party believes it needs to retain and for as long as necessary
to retain, including but not limited to the purpose of recovering any insurance or
reinsurance that may be applicable to a Party's costs or liabilities in this Action. Nothing
contained in this Protective Order shall be construed to require the law firms representing
the Parties to return or destroy pleadings filed and/or exchanged between the Parties in
this Action, or other papers which consist of or contain attorney work product.
4.3

No failure or delay by a Party, Non-Party or their respective agents in

exercising any right, power or privilege under this Protective Order shall operate as either
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a waiver or an estoppel thereof nor shall single or partial exercise by the Party thereof
preclude any other or further exercise by the Party of any right, power or privilege
hereunder, all of which are reserved by the Party.
4.4.

This Protective Order shall not be construed as a waiver of any Party's

rights to:
(a)

object to any discovery request on the basis of confidentiality,

privilege or any other grounds;
(b)

object to the introduction of any Confidential Information as

evidence at any hearing, trial or any other proceeding in this Action; and/or
(c) seek other and further protections as to any Confidential Information.
4.5

Nothing in this Protective Order shall prevent a Party from disclosing or

using in any way any of its own Confidential Information, i.e., that Confidential
Information produced and designated Confidential by that Party.
4.6

This Protective Order can only be modified or waived in writing, signed by

all Parties hereto, or upon motion and order of the Court in this Action. This Agreement
shall remain in full force and effect until or unless it is modified or superseded by written
agreement of all Parties or Court order and shall survive any final judgment or settlement
of this Action.
4.7

This Protective Order and all controversies arising from or relating to

performance under this Protective Order shall be governed by and construed in
accordance with federal law, where applicable, and with the laws of the State of
Michigan.
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4.8

This Protective Order shall go into effect and the Parties and their Counsel

shall abide by its terms as of the date it is executed by Counsel for each Party below.
4.9

The provisions of this Protective Order, insofar as they restrict the

communication and use of Confidential Information shall, without written permission of
the Furnishing Party or further order of the Court, continue to be binding after the
conclusion of this Action.

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ENTERED: August 7, 2017

s/Anthony P. Patti
United States Magistrate Judge

The Undersigned hereby enter into this Agreement on behalf of his or her client(s) listed
below, and represent that such client(s) understand the terms thereof and agree to be
bound thereby, agree to submit to the jurisdiction of this Court, and understand that the
Court may impose sanctions for any violation of the Confidentiality Agreement.
August 2, 2017
Date

Signature:

DMS by consent 8.2.17
/s/David Malinowski

NOVARA TESIJA, P.L.L.C.
John I. Tesija (P36709)
David Malinowski (P72076)
Paul Newcomer (P44501)
ATTORNEYS FOR PLAINTIFFS/
COUNTER-DEFENDANTS
2000 Town Center, Suite 2370
Southfield, MI 48075-1314
T: [phone]
F: [phone]
[e-mail]
[e-mail]
[e-mail]

Signature:

/s/ Diane M. Soubly

BUTZEL LONG, a professional corporation
Diane M. Soubly (P32005)
Mark T. Nelson (P27305)
ATTORNEYS FOR DEFENDANTS/
COUNTER-PLAINTIFFS
301 E. Liberty St., Suite 500
Ann Arbor, MI 48104
T: [phone]
F: [phone]
[e-mail]
[e-mail]

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EXHIBIT “A”
The undersigned has read the Confidentiality Agreement and Stipulated Protective Order
in this case, understands the terms, and agrees to maintain and handle all Discovery
Materials pursuant to the terms of the Confidentiality Agreement and Stipulated
Protective Order and be bound by the Confidentiality Agreement and Stipulated
Protective Order in this regard.

Signature

Name (Print)

Address

City, State, Zip

Telephone

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