Davis v. American Coradius International, LLC et al
Filing
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AGREED CONFIDENTIALITY ORDER granting 21 Defendant's Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)
UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA
KRYSTAL DAVIS, on behalf of herself
and others similarly situated,
Plaintiff(s),
v.
AMERICAN CORADIUS
INTERNATIONAL LLC, et al.,
Defendants.
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Case No. 4:15-cv-03143-JMG-CRZ
AGREED CONFIDENTIALITY ORDER
The parties to this Agreed Confidentiality Order have agreed to the terms of this Order
and the court grants Defendants’ unopposed motion for a protective order, (Filing No. 21);
accordingly, it is ORDERED:
1. Scope. All materials produced or adduced in the course of discovery, including initial
disclosures, responses to discovery requests, deposition testimony and exhibits, and
information derived directly therefrom (hereinafter collectively “documents”), shall be
subject to this Order concerning Confidential Information as defined below. This Order is
subject to the Local Rules of this District and the Federal Rules of Civil Procedure on
matters of procedure and calculation of time periods.
2. Confidential Information. As used in this Order, “Confidential Information” means
information designated as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” by
the producing party that falls within one or more of the following categories: (a)
information prohibited from disclosure by statute; (b) information that reveals trade secrets;
(c) research, technical, commercial or financial information that the party has maintained as
confidential; (d) medical information concerning any individual; (e) personal identity
information; (f) income tax returns (including attached schedules and forms), W-2 forms
and 1099 forms; or (g) personnel or employment records of a person who is not a party to
the case.1 Information or documents that are available to the public may not be designated
as Confidential Information.
3. Designation.
a. A party may designate a document as Confidential Information for protection under
this Order by placing or affixing the words “CONFIDENTIAL - SUBJECT TO
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If protection is sought for any other category of information, the additional category shall be described in
paragraph 2 with the additional language redlined to show the change in the proposed Order.
PROTECTIVE ORDER” on the document and on all copies in a manner that will
not interfere with the legibility of the document. As used in this Order, “copies”
includes electronic images, duplicates, extracts, summaries or descriptions that
contain the Confidential Information. The marking “CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER” shall be applied prior to or at the time of the
documents are produced or disclosed. Applying the marking “CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER” to a document does not mean that the
document has any status or protection by statute or otherwise except to the extent
and for the purposes of this Order. Any copies that are made of any documents
marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall also be
so marked, except that indices, electronic databases or lists of documents that do not
contain substantial portions or images of the text of marked documents and do not
otherwise disclose the substance of the Confidential Information are not required to
be marked.
b. The designation of a document as Confidential Information is a certification by an
attorney or a party appearing pro se that the document contains Confidential
Information as defined in this order.2
4. Depositions
a. Deposition testimony is protected by this Order only if designated as
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” on the record at the
time the testimony is taken. Such designation shall be specific as to the portions that
contain Confidential Information. Deposition testimony so designated shall be
treated as Confidential Information protected by this Order until fourteen days after
delivery of the transcript by the court reporter to any party or the witness. Within
fourteen days after delivery of the transcript, a designating party may serve a Notice
of Designation to all parties of record identifying the specific portions of the
transcript that are designated Confidential Information, and thereafter those portions
identified in the Notice of Designation shall be protected under the terms of this
Order. The failure to serve a timely Notice of Designation waives any designation of
deposition testimony as Confidential Information that was made on the record of the
deposition, unless otherwise ordered by the Court.
5. Protection of Confidential Material.
a. General Protections. Confidential Information shall not be used or disclosed by the
parties, counsel for the parties or any other persons identified in subparagraph (b) for
any purpose whatsoever other than in this litigation, including any appeal thereof. In
a putative class action, Confidential Information may be disclosed only to the named
plaintiff(s) and not to any other member of the putative class unless and until a class
including the putative member has been certified.
b. Limited Third-Party Disclosures. The parties and counsel for the parties shall not
disclose or permit the disclosure of any Confidential Information to any third person
or entity except as set forth in subparagraphs (1)-(9). Subject to these requirements,
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An attorney who reviews the documents and designates them as CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER must be admitted to the Bar of at least one state but need not be admitted to practice in the Northern
District of Illinois unless the lawyer is appearing generally in the case on behalf of a party. By designating
documents confidential pursuant to this Order, counsel submits to the jurisdiction and sanctions of this Court on the
subject matter of the designation.
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the following categories of persons may be allowed to review Confidential
Information:
i. Counsel. Counsel for the parties and employees of counsel who have
responsibility for the action;
ii. Parties. Individual parties and employees of a party but only to the extent
counsel determines in good faith that the employee’s assistance is reasonably
necessary to the conduct of the litigation in which the information is
disclosed;
iii. The Court and its personnel;
iv. Court Reporters and Recorders. Court reporters and recorders engaged for
depositions;
v. Contractors. Those persons specifically engaged for the limited purpose of
making copies of documents or organizing or processing documents,
including outside vendors hired to process electronically stored documents;
vi. Consultants and Experts. Consultants, investigators, or experts employed by
the parties or counsel for the parties to assist in the preparation and trial of
this action but only after such persons have completed the certification
contained in Attachment A, Acknowledgment of Understanding and
Agreement to Be Bound;
vii. Witnesses at depositions. During their depositions, witnesses in this action to
whom disclosure is reasonably necessary. Witnesses shall not retain a copy
of documents containing Confidential Information, except witnesses may
receive a copy of all exhibits marked at their depositions in connection with
review of the transcripts. Pages of transcribed deposition testimony or
exhibits to depositions that are designated as Confidential Information
pursuant to the process set out in this Order must be separately bound by the
court reporter and may not be disclosed to anyone except as permitted under
this Order.
viii. Author or recipient. The author or recipient of the document (not including a
person who received the document in the course of litigation); and
ix. Others by Consent. Other persons only by written consent of the producing
party or upon order of the Court and on such conditions as may be agreed or
ordered.
c. Control of Documents. Counsel for the parties shall make reasonable efforts to
prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel
shall maintain the originals of the forms signed by persons acknowledging their
obligations under this Order for a period of three years after the termination of the
case.
6. Inadvertent Failure to Designate. An inadvertent failure to designate a document as
Confidential Information does not, standing alone, waive the right to so designate the
document; provided, however, that a failure to serve a timely Notice of Designation of
deposition testimony as required by this Order, even if inadvertent, waives any protection
for deposition testimony. If a party designates a document as Confidential Information after
it was initially produced, the receiving party, on notification of the designation, must make
a reasonable effort to assure that the document is treated in accordance with the provisions
of this Order. No party shall be found to have violated this Order for failing to maintain the
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confidentiality of material during a time when that material has not been designated
Confidential Information, even where the failure to so designate was inadvertent and where
the material is subsequently designated Confidential Information.
7. Filing of Confidential Information. This Order does not, by itself, authorize the filing of any
document under seal. Any party wishing to file a document designated as Confidential
Information in connection with a motion, brief or other submission to the Court must
comply with LR 26.2.
8. No Greater Protection of Specific Documents. Except on privilege grounds not addressed
by this Order, no party may withhold information from discovery on the ground that it
requires protection greater than that afforded by this Order unless the party moves for an
order providing such special protection.
9. Challenges by a Party to Designation as Confidential Information. The designation of any
material or document as Confidential Information is subject to challenge by any party. The
following procedure shall apply to any such challenge.
a. Meet and Confer. A party challenging the designation of Confidential Information
must do so in good faith and must begin the process by conferring directly with
counsel for the designating party. In conferring, the challenging party must explain
the basis for its belief that the confidentiality designation was not proper and must
give the designating party an opportunity to review the designated material, to
reconsider the designation, and, if no change in designation is offered, to explain the
basis for the designation. The designating party must respond to the challenge within
five (5) business days.
b. Judicial Intervention. A party that elects to challenge a confidentiality designation
may file and serve a motion that identifies the challenged material and sets forth in
detail the basis for the challenge. Each such motion must be accompanied by a
competent declaration that affirms that the movant has complied with the meet and
confer requirements of this procedure. The burden of persuasion in any such
challenge proceeding shall be on the designating party. Until the Court rules on the
challenge, all parties shall continue to treat the materials as Confidential Information
under the terms of this Order.
10. Action by the Court. Applications to the Court for an order relating to materials or
documents designated Confidential Information shall be by motion. Nothing in this Order or
any action or agreement of a party under this Order limits the Court’s power to make orders
concerning the disclosure of documents produced in discovery or at trial.
11. Use of Confidential Documents or Information at Trial. Nothing in this Order shall be
construed to affect the use of any document, material, or information at any trial or hearing.
A party that intends to present or that anticipates that another party may present
Confidential information at a hearing or trial shall bring that issue to the Court’s and
parties’ attention by motion or in a pretrial memorandum without disclosing the
Confidential Information. The Court may thereafter make such orders as are necessary to
govern the use of such documents or information at trial.
12. Confidential Information Subpoenaed or Ordered Produced in Other Litigation.
a. If a receiving party is served with a subpoena or an order issued in other litigation
that would compel disclosure of any material or document designated in this action
as Confidential Information, the receiving party must so notify the designating party,
in writing, immediately and in no event more than three court days after receiving
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the subpoena or order. Such notification must include a copy of the subpoena or
court order.
b. The receiving party also must immediately inform in writing the party who caused
the subpoena or order to issue in the other litigation that some or all of the material
covered by the subpoena or order is the subject of this Order. In addition, the
receiving party must deliver a copy of this Order promptly to the party in the other
action that caused the subpoena to issue.
c. The purpose of imposing these duties is to alert the interested persons to the
existence of this Order and to afford the designating party in this case an opportunity
to try to protect its Confidential Information in the court from which the subpoena or
order issued. The designating party shall bear the burden and the expense of seeking
protection in that court of its Confidential Information, and nothing in these
provisions should be construed as authorizing or encouraging a receiving party in
this action to disobey a lawful directive from another court. The obligations set forth
in this paragraph remain in effect while the party has in its possession, custody or
control Confidential Information by the other party to this case.
13. Challenges by Members of the Public to Sealing Orders. A party or interested member of
the public has a right to challenge the sealing of particular documents that have been filed
under seal, and the party asserting confidentiality will have the burden of demonstrating the
propriety of filing under seal.
14. Obligations on Conclusion of Litigation.
a. Order Continues in Force. Unless otherwise agreed or ordered, this Order shall
remain in force after dismissal or entry of final judgment not subject to further
appeal.
b. Obligations at Conclusion of Litigation. Within sixty-three days after dismissal or
entry of final judgment not subject to further appeal, all Confidential Information
and documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER” under this Order, including copies as defined in ¶ 3(a), shall be returned to
the producing party unless: (1) the document has been offered into evidence or filed
without restriction as to disclosure; (2) the parties agree to destruction to the extent
practicable in lieu of return;3 or (3) as to documents bearing the notations,
summations, or other mental impressions of the receiving party, that party elects to
destroy the documents and certifies to the producing party that it has done so.
c. Retention of Work Product and one set of Filed Documents. Notwithstanding the
above requirements to return or destroy documents, counsel may retain (1) attorney
work product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial
portions of Confidential Information, and (2) one complete set of all documents filed
with the Court including those filed under seal. Any retained Confidential
Information shall continue to be protected under this Order. An attorney may use his
or her work product in subsequent litigation, provided that its use does not disclose
or use Confidential Information.
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The parties may choose to agree that the receiving party shall destroy documents containing Confidential
Information and certify the fact of destruction, and that the receiving party shall not be required to locate, isolate and
return e-mails (including attachments to e-mails) that may include Confidential Information, or Confidential
Information contained in deposition transcripts or drafts or final expert reports.
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d. Deletion of Documents filed under Seal from Electronic Case Filing (ECF) System.
Filings under seal shall be deleted from the ECF system only upon order of the
Court.
15. Order Subject to Modification. This Order shall be subject to modification by the Court on
its own initiative or on motion of a party or any other person with standing concerning the
subject matter.
16. No Prior Judicial Determination. This Order is entered based on the representations and
agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall
be construed or presented as a judicial determination that any document or material
designated Confidential Information by counsel or the parties is entitled to protection under
Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as the Court
may rule on a specific document or issue.
17. Persons Bound. This Order shall take effect when entered and shall be binding upon all
counsel of record and their law firms, the parties, and persons made subject to this Order by
its terms.
So Ordered.
Dated: February 18, 2016
s/Cheryl R. Zwart
United States Magistrate Judge
WE SO MOVE
and agree to abide by the
terms of this Order
WE SO MOVE
and agree to abide by the
terms of this Order
/s/(per email consent 2/17/16)
Alexander H. Burke
Burke Law Offices, LLC
155 N. Michigan Ave., Suite 9020
Chicago, IL 60601
Telephone: (312) 729-5288
Facsimile: (312) 729-5289
aburke@burkelawllc.com
/s/ Michael D. Slodov
Michael D. Slodov, Ohio SCR#0051678
Sessions, Fishman, Nathan & Israel, L.L.C.
15 E. Summit St.
Chagrin Falls, Ohio 44022-2709
(440) 318-1073
(216) 359-0049 (FAX)
mslodov@sessions.legal
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ATTACHMENT A
UNITED STATES DISTRICT COURT
DISTRICT OF NEBRASKA
KRYSTAL DAVIS, on behalf of herself
and others similarly situated,
Plaintiff(s),
v.
AMERICAN CORADIUS
INTERNATIONAL LLC, et al.,
Defendants.
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Case No. 4:15-cv-03143-JMG-CRZ
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality Order
dated ____ in the above-captioned action and attached hereto, understands the terms thereof, and
agrees to be bound by its terms. The undersigned submits to the jurisdiction of the United States
District Court for the District of Nebraska in matters relating to the Confidentiality Order and
understands that the terms of the Confidentiality Order obligate him/her to use materials
designated as Confidential Information in accordance with the Order solely for the purposes of
the above-captioned action, and not to disclose any such Confidential Information to any other
person, firm or concern.
The undersigned acknowledges that violation of the Confidentiality Order may result in
penalties for contempt of court.
NAME: ________________________________
JOB TITLE: _____________________________
EMPLOYER: ____________________________
BUSINESS ADDRESS: ____________________
________________________________________
Date: ___________________
_________________________________
Signature
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