Schroeder et al v. Humana Inc et al
Filing
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PROTECTIVE ORDER WITH PROVISO signed by Judge William C Griesbach on 6/29/2012. (cc: all counsel)(Griesbach, William)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
GREEN BAY DIVISION
DIANE SCHROEDER and REBECCA SCHROEDER,
individually and on behalf of all other
similarly situated individuals,
Case No. 12-C-00137
Plaintiffs,
v.
HUMANA INC. and
HUMANA INSURANCE COMPANY,
Defendants.
_____________________________________________________________________________
PROTECTIVE ORDER WITH PROVISO
_____________________________________________________________________________
COME NOW the parties to the above-referenced matter, by and through their respective
counsel, have stipulated to entry of this Protective Order pursuant to the provisions of Rule 26(e)
of the Local Rules for the United States District Court for the Eastern District of Wisconsin.
The parties so stipulate in recognition of the fact that discovery in this matter will involve
production of confidential, proprietary or trade secret information. As such, it is critical that the
disclosure of such information be governed by this Stipulated Protective Order in order to
safeguard such information from public disclosure.
(1) For good cause shown, the Court enters this Stipulated Protective Order
regarding confidentiality of all documents produced in the course of discovery, all
answers to interrogatories, all answers to requests for admission, and all deposition
testimony.
(A) Designation of confidential information must be made by placing or
affixing on the document in a manner that will not interfere with its legibility the
word “CONFIDENTIAL.” One who provides material may designate it as
“CONFIDENTIAL” only when the person in good faith believes it contains trade
secrets or nonpublic technical, commercial, financial, personal, or business
information. Except for documents produced for inspection at the party’s
facilities, the designation of confidential information must be made prior to, or
contemporaneously with, the production or disclosure of that information. In the
event that documents are produced for inspection at the party’s facilities, such
documents may be produced for inspection before being marked confidential.
Once specific documents have been designated for copying, any documents
containing confidential information will then be marked confidential after
copying but before delivery to the party who inspected and designated the
documents. There will be no waiver of confidentiality by the inspection of
confidential documents before they are copied and marked confidential pursuant
to this procedure.
(B) Portions of depositions of a party’s present and former officers,
directors, employees, agents, experts, and representatives will be deemed
confidential if they are designated as such when the deposition is taken.
Alternatively, in order to avoid disrupting a deposition with multiple confidential
designations, counsel wishing to designate portions as confidential may do so in
writing within 30 days of receipt of the deposition transcript. Until the expiration
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of such period, the entire deposition transcript shall remain confidential if
designated as such when the deposition was taken.
(C) Information or documents designated as confidential under this rule
must not be used or disclosed by the parties or counsel for the parties or any
persons identified in subparagraph (D) for any purposes whatsoever other than
preparing for and conducting the litigation in which the information or
documents were disclosed (including appeals). The parties must not disclose
information or documents designated as confidential to putative class members
not named as plaintiffs or who have not consented to join in putative class
litigation unless and until one or more classes have been certified.
(D) The parties and counsel for the parties must not disclose or permit the
disclosure of any documents or information designated as confidential under this
rule to any other person or entity, except that disclosures may be made in the
following circumstances:
(i) Disclosure may be made to employees of counsel for the parties
who have direct functional responsibility for the preparation and trial of
the lawsuit. Any such employee to whom counsel for the parties makes a
disclosure must be advised of, and become subject to, the provisions of
this rule requiring that the documents and information be held in
confidence.
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(ii) Disclosure may be made only to employees of a party required
in good faith to provide assistance in the conduct of the litigation in which
the information was disclosed, and who are made aware of the
requirements of this Stipulated Protective Order and agree to abide by the
same.
(iii) Disclosure may be made to court reporters engaged for
depositions and those persons, if any, specifically engaged for the limited
purpose of making photocopies of documents. Before disclosure to any
such court reporter or person engaged in making photocopies of
documents, such reporter or person must agree to be bound by the terms
of this Rule.
(iv) Disclosure may be made to jury or trial consultants,
investigators, or experts (collectively “outside independent persons”)
employed by the parties or counsel for the parties to assist in the
preparation and trial of the lawsuit. Before disclosure to any outside
independent person, the person(s) must be informed of and agree to be
subject to the provisions of this rule requiring that the documents and
information be held in confidence.
(E) Except as provided in subparagraph (D), counsel for the parties must
keep all documents designated as confidential that are received under this Rule
secure within their exclusive possession and must place such documents in a
secure area.
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(F) All copies, duplicates, extracts, summaries, or descriptions
(hereinafter referred to collectively as “copies”) of documents or information
designated as confidential under this rule, or any portion thereof, must be
immediately affixed with the word “CONFIDENTIAL” if that word does not
already appear.
(G) To the extent that any answers to interrogatories, transcripts of
depositions, responses to requests for admissions, or any other papers filed or to
be filed with the Court reveal or tend to reveal information claimed to be
confidential, these papers or any portion thereof must be filed under seal by the
filing party with the Clerk of Court in an envelope marked “SEALED.” A
reference to this rule may also be made on the envelope.
(H) Any party filing information claimed to be confidential under
subsection (G) must include with that filing either: (1) a motion to seal the
material pursuant to General L. R. 79(d); or (2) an objection to the designation of
the information as confidential. If such an objection is made, the person having
designated the information as confidential may file a motion to seal under
General L. R. 79(d) within 21 days of the objection.
(2) A party may challenge the designation of confidentiality by motion. The
movant must accompany such a motion with the statement required by Civil L. R. 37.
The party asserting that the material is Confidential shall have the burden of proving that
the information in question is within the scope of protection afforded by Fed. R. Civ. P.
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26(c). The party prevailing on any such motion is entitled to recover as motion costs its
actual attorney fees and costs attributable to the motion.
(3) Any party may apply to the Court for a modification of the Protective Order,
and nothing in this Protective Order shall be construed to prevent a party from seeking
such further provisions enhancing or limiting confidentiality as may be appropriate.
(4) Within 60 days of the termination of this action, including any appeal, all
material not received in evidence and treated as confidential under this Rule must be
returned to the originating party. If the parties so stipulated, the material may be
destroyed.
PROVISO
The parties seek to protect certain information from unnecessary public release. An
agreement such as the one the parties have entered into serves the important purpose of
expediting discovery without requiring the court to pass on every document arguably responsive
to a discovery request that a party desires to withhold from public scrutiny.
The parties should understand that there are no guarantees that documents they designate
"confidential" or file as “sealed”, once made a part of the record before the Court, will remain
confidential and maintained under seal. The long-standing tradition in this country is that
litigation is open to the public. Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th
Cir. 2000) ("Calling a settlement confidential does not make it a trade secret, any more than
calling an executive's salary confidential would require a judge to close proceedings if a dispute
erupted about payment (or termination). Many a litigant would prefer that the subject of the
case-how much it agreed to pay for the construction of a pipeline, how many tons of coal its
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plant uses per day, and so on-be kept from the curious (including its business rivals and
customers), but the tradition that litigation is open to the public is of very long standing."); see
also Hicklin Engineering, L.C. v. Bartell, 439 F.3d 346 (7th Cir. 2006)("What happens in the
federal courts is presumptively open to public scrutiny."). The records and decisions of the
courts should be within the public's view to allow the public access to the reasoning upon which
judicial decisions rest. See Leavell at 567. For this reason, the parties should be aware that the
Court is not bound by the designation of material as confidential by the parties under the
Protective Order and, to the extent necessary to reveal the Court's reasoning process, material
bearing such a designation that is made a part of the record may be disclosed absent a showing
of good cause.
Under certain circumstances, third parties can also challenge the parties'
designation of information made a part of the record as confidential. See Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36-37 (1984). Furthermore, in the event an appeal is taken from any
order of this Court, no part of the record will remain sealed absent a specific finding of good
cause. Subject to this proviso, the Protective Order submitted by the parties is hereby adopted
by the Court.
SO ORDERED this
29th
of June, 2012.
BY THE COURT:
s/ William C. Griesbach
William C. Griesbach
United States District Judge
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