Davis v. Wayne, County of

Filing 13

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARSHA DAVIS,
Case No. 2:17-cv-12113
Plaintiff,
Hon. Robert H. Cleland
Magistrate Judge R. Steven Whalen

v.

WAYNE COUNTY, BENNY N. NAPOLEON and
WAYNE COUNTY SHERIFF’S DEPARTMENT,
Defendants.
__________________________________________________________________/
JEFFREY S. BURG (P38381)
WAYNE COUNTY CORPORATION
Law Offices Jeffrey S. Burg, Esq.
COUNSEL
30700 Telegraph Road, Ste. 1675
Cheryl Yapo (P55682)
Bingham Farms, MI 48025
Principal Attorney
[phone]
Carrie S. Bryant (P60100)
[phone] (Fax)
Assistant Corporation Counsel
Attorneys for Defendants
[e-mail]
th
500 Griswold, 30 Floor
Detroit, Michigan 48226
[phone]
[e-mail]
__________________________________________________________________/
THE PARTIES’ STIPULATED PROTECTIVE ORDER
At a session of said Court,
held in Port Huron, Michigan
On: December 1, 2017
PRESENT: Honorable Robert H. Cleland
UNITED STATES DISTRICT JUDGE

HAVING BEEN DULY ADVISED by the parties in the above-captioned
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litigation that they have stipulated to entry of this Stipulated Protective Order, and
otherwise being fully advised in the premises and, therefore,
IT IS HEREBY ORDERED:
1.

Any category of documents, information and/or things identified as

being produced subject to this Order, the documents, information and/or things, and
their content shall not be disclosed beyond the confines of this lawsuit.
2.

All such documents, information and/or things identified in Paragraph

1 above, deemed “Confidential,” as defined below, shall be marked “Confidential –
Produced Pursuant to Protective Order,” and shall be used by counsel only in
connection with this action and shall not be provided, disclosed or made known to
any person by counsel except Plaintiff, Defendants, paralegal and secretarial
employees of Plaintiff’s counsel or Defendants’ counsel, deposition and trial
witnesses, experts, persons directly involved in the preparation of trial witnesses and
experts, and other persons directly involved in the preparation or trial of this action,
including a mediator, facilitator or court reporter.

Prior to disclosing such

documents during deposition, at any pretrial proceedings, at trial or to expert
witnesses, non-expert witnesses or to other persons directly involved in the
preparation or trial of this action, counsel shall have such person review this Order
and such person shall be advised of the obligation to honor the confidentiality
designation and must agree to do so.
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3.

As used herein, “Confidential” means information, documents or things

that, after a good faith determination, the designating party deems to constitute
confidential personal information, personnel record, medical record, financial
record, discipline record, investigation record, business record, and other
confidential information (“other confidential information” means that the
information would be exempt from production by law, such as a FOIA exemption,
etc.). “Confidential” shall also mean information, documents, or things disclosed,
produced, or submitted by Defendants relating to employees or former employees
of Wayne County, other than Plaintiff. “Confidential” shall also mean information,
documents, or things disclosed, produced, or submitted by Defendants relating to
inmates or former inmates of a Wayne County Jail or relating to the operation,
policies or procedures of any Wayne County Jail. All documents and any other
information subject to this Order shall not be used by Plaintiff, Plaintiff’s counsel,
the Defendants or Defendants’ counsel for any business, competitive, personal,
private or public purpose, and shall not be disclosed to the media.
4.

In the event that a document is produced without the designation

“Confidential – Produced Pursuant to Protective Order” and it is later determined, in
good faith, that such a designation should have appeared on the document, the
producing party may restrict future disclosure of the document, consistent with this
Protective Order, by notifying the receiving party in writing of the addition of a
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restrictive designation. The notice shall include a description of the document and
the designation under which future disclosure of the document is to be governed.
5.

Nothing in this Order shall preclude, or be construed to preclude, the

parties from using and quoting Confidential information or documents in
depositions, pleadings, or at pretrial or at trial proceedings of this cause, provided,
however, that any pleading or other document disclosing the contents of documents
subject to this Order, other than the title or fact of existence of such documents,
which may be submitted to the Court whether in the form of interrogatory answers,
document production, requests for admissions, depositions, deposition notices or
transcripts, motions, affidavits, briefs or other documents or pretrial proceedings,
shall be presented or submitted to the Court in accordance with Paragraph 6.
6.

Filing Protected Documents. Subject to the Federal Rules of Evidence,

materials protected by this Order may be offered in evidence at trial, any court
hearing, or any pretrial proceedings subject to such protective measures as may be
directed by this Court, including strict compliance with E.D. Mich. L.R. 5.3. At a
minimum, identifying information of a highly personal nature such as social security
numbers, personal addresses, and personal telephone numbers unrelated to this
action, shall be redacted or removed and not disclosed prior to filing materials
protected by this Order (including as an attachment or exhibit), or offering such
materials in evidence.
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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 documents under seal when not authorized by statute or rule
must either file and serve a motion or submit a proposed stipulated order to authorize
sealing 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 movant in support of the seal;
and (v) a memorandum of legal authority supporting the seal. The movant shall not
file or otherwise tender to the Clerk any item proposed for sealing unless the Court
has granted the motion required by this section.
Whenever a motion to seal is filed, the movant shall submit a proposed order
which states the particular reason the seal is required. The proposed order shall be
submitted to the judge to whom the case is assigned. If a motion to seal is granted,
the documents to be filed under seal shall be filed electronically by the movant.
7.

Parties agree that they will not seek to use the documents marked

“Confidential – Produced Pursuant to Protective Order” at trial, but will permit the
producing party to substitute clean copies for the marked copies.
8.

Nothing contained herein shall be construed to prevent, limit or restrict

the use of Confidential Documents protected by this Order in the ordinary course of
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business by persons who maintain, use, rely upon, and/or who otherwise have an
interest in reviewing or accessing such documents and information, notwithstanding
the designation by any party or counsel in this lawsuit of such documents and
information as “Confidential.”
9.

Nothing contained herein shall be construed to preclude the right of the

parties to oppose the admissibility of any of the documents produced on the grounds
of lack of relevance, privilege, or any other reason.
10.

If at any time a party and/or its/his counsel receives a subpoena from

any court, administrative or legislative body requesting, or is requested by any other
person or entity purporting to have authority to require the production of, any
document or information protected by this Stipulated Protective Order, counsel for
the party to whom such a request is made shall immediately give written notice
thereof to opposing counsel, so as to advise him/her of the need to promptly obtain
a protective order or a notice to quash the subpoena should the party wish to avoid
production. Counsel for the party to whom such a request is directed shall advise the
person serving the request of the existence and contents of the Stipulated Protective
Order prior to producing Confidential documents.
11.

The inadvertent production of any attorney-client privileged and/or

joint defense privileged and/or work product protected document shall not constitute
waiver of the privilege or protection, and shall not constitute a general waiver of
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such privilege or protection.

If the party who inadvertently produced such

documents demands return of the document on the grounds that it is attorney-client
privileged and/or joint defense privileged and/or work product protected and has
been produced inadvertently, and the party to whom the document has been
produced refuses to return it, the party who produced the document will promptly
file a motion to compel the return of the document; and the party to whom the
document was produced may retain the document pending resolution of the motion
to compel but, unless and until that motion is denied by the Court, may not use or
disclose that document in any way, except as it relates to the motion to compel.
12.

Any party may challenge the designation of any information or

documents as being “Confidential” by notifying the opposing party in writing of the
challenge and the factual and legal basis of the challenge. After written notification is
provided to the opposing party, the parties shall attempt to resolve the dispute. In the
event the parties are unable to resolve the dispute regarding the challenge within ten
(10) days after written notification, the information shall be subject to this Order only
for an additional period of ten (10) days during which time the party who designated
the information “Confidential” may file a motion seeking a resolution of the challenge.
Upon filing of 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
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why, both factually and legally, the “Confidential” designation should be upheld in the
event of a challenge. In the event that no motion is filed, as provided for above, the
information will no longer be subject to this Order.
13.

The terms of this Order shall survive and remain in effect after the

termination of this action. This Order is subject to modification at any time upon
further stipulation of the parties or pursuant to an order of this Court.
14.

Procedure Upon Termination of This Action: Upon termination, either

by final judgment after appeal, if any, or by settlement of this litigation, counsel shall
return to the producing party (upon request), within thirty (30) business days of
receipt of a written request, all materials and information protected by this Order,
and shall certify in writing that such materials, including all copies, have been
returned. If the producing party does not request the return of Confidential
documents, Counsel shall destroy such Confidential documents and any and all
extracts, summaries, and analyses of the information or materials protected by this
Order and shall certify in writing to the producing party’s counsel that such
materials, including all copies, have been destroyed or will be destroyed pursuant to
the law firm/business entity’s document retention policy/procedures. This paragraph
shall not require Defendants to destroy any documents maintained in the ordinary

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15.

course of business or is required to maintain pursuant to law.

SO ORDERED.

S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

Dated: December 1, 2017

I hereby certify that a copy of the foregoing document was mailed to counsel of record
and/or pro se parties on this date, December 1, 2017, by electronic and/or ordinary mail.

S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

WE STIPULATE TO THE ENTRY
OF THE ABOVE ORDER:
/s/Jeffrey S. Burg
Jeffrey S. Burg (P38381)
Attorney for Plaintiff

/s/Carrie S. Bryant
Carrie S. Bryant (P60100)
Attorney for Defendants

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