Equal Employment Opportunity Commission v. Abbott Laboratories

Filing 22

ORDER signed by Judge Rudolph T Randa on 08/04/2011 granting 21 Motion for Protective Order. (cc: all counsel) (Koll, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN

EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
v.
ABBOTT LABORATORIES,
Defendant.

)
)
)
)
)
) Civil Action No. 2:10-cv-0833 RTR
)
)
)
)

AGREED PROTECTIVE ORDER

Plaintiff, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
and Defendant, ABBOTT LABORATORIES, having agreed that the following
restrictions shall apply to documents and information produced for inspection and
copying pursuant to Rules 26, 33, and 34 of the Federal Rules of Civil Procedure, it is
hereby ordered that:
1.

The purpose of this Protective Order is to protect against the unnecessary

disclosure of Confidential Information. Confidential Information protected by this Order
shall include: (1) documents relating to current and former employees of Defendant not a
party to this action; (2) Abbott’s confidential and proprietary information including, but
not limited to, trade secrets or other confidential, competitive, proprietary information
including, financial information, sales records, customer account information, business
plans and strategy, confidential employee compensation and benefits records and
policies, personnel records, and proprietary research, development or commercial
information within the meaning of Fed. R. Civ. P. 26(c)(1)(G), which the disclosing party

takes appropriate efforts to keep confidential or the party is otherwise required to keep
confidential by agreement or law; and (3) Plaintiff’s financial records and family medical
records. Confidential Information shall be marked with the word “CONFIDENTIAL;”
except that material covered by (3) above shall not require such marking to be protected.
2.

As used herein, "disclosure" or "to disclose" shall mean to divulge, reveal,

describe, summarize, paraphrase, quote, transmit, or otherwise communicate Confidential
Information, and the restrictions contained herein regarding disclosure of Confidential
Information shall also apply with equal force to any copies, excerpts, analyses, or
summaries of such materials or the information contained therein, as well as to any
pleadings, briefs, exhibits, transcripts or other documents which may be prepared in
connection with this litigation which contain the contents of the Confidential Information.
3.

Except for the documents identified in paragraph 1 of this Protective

Order, the parties will designate no other document produced in discovery as
Confidential Information, or file any document under seal, without previously obtained
Court approval.
4.

If any party or member of the public challenges the confidentiality of any

Confidential Information, the party asserting that the document should be designated as
confidential shall bear the burden of demonstrating the propriety of the confidentiality.
5.

During the pendency of this litigation, Confidential Information shall be

retained solely in the custody of the parties and their attorneys and shall not be placed in
the possession of or disclosed to any other person, except as set forth in paragraph 6
below, as otherwise agreed upon by the parties, or upon leave of Court. Any person

2

shown Confidential Information must be told of its confidential nature and must agree to
keep it confidential.
6.

The parties (deemed to include claimant John Ziegler for purposes of this

Agreed Protective Order) and counsel for the parties must not disclose or permit the
disclosure of any Confidential Information protected by this Order to any other person or
entity, except that disclosures may be made in the following circumstances:
a.

Disclosure may be made to the parties and counsel for the parties
and employees or independent contractors of counsel for the
parties (e.g., attorneys, clerks, paralegals, secretaries, copy
services, or litigation support services) who are directly involved in
prosecuting, defending, or providing legal advice to the parties
regarding this litigation. Any such employee to whom counsel for
the parties makes a disclosure must be advised of, and become
subject to, the provisions of this Order.

b.

Disclosure may be made only to employees of a party required in
good faith to provide assistance in prosecuting or defending this
litigation.

c.

Witnesses or potential witnesses may review Confidential
Information as deemed necessary by counsel for witness
preparation, but will not be given copies thereof. Any such person
to whom counsel for the parties makes a disclosure must be
advised of, and become subject to, the provisions of this Order.

d.

The parties agree to redact the confidential information contained
in any Confidential Information filed in Court and will separately
provide the assigned Judge with unredacted copies.

e.

In the event that any question is asked at a deposition with respect
to which a party’s or the witness’s attorney asserts, on the record,
that the answer requires the disclosure of Confidential Information,
the question shall nonetheless be answered by the witness fully and
completely. Before the witness answers, however, all persons
present who are not otherwise bound by this Order shall be advised
of and asked to evidence their agreement to the terms and
conditions of this Order on the record. If any such person, other
than the witness, declines to evidence agreement to this Order, that
person shall leave the room during the time in which Confidential
Information is disclosed or discussed. Counsel for the designating

3

party may also, within ten (10) calendar days after receipt of the
deposition transcript, notify all other counsel of the portions of the
deposition transcript (and videotape, as applicable) to be
designated Confidential Information.
f.

g.

7.

Confidential Information may be reviewed by an expert witness or
consultant expressly employed or retained by counsel or a party to
this litigation to whom it is necessary to disclose Confidential
Information for the purpose of prosecuting or defending this
litigation; and
Confidential Information may be used as evidence at trial and shall
not be sealed except as the Court shall direct at that time.

Nothing in this order shall bar or otherwise restrict any attorney for any

party from rendering advice to his or her client with respect to this case or from doing
anything necessary to prosecute or defend this case and furthering the interests of his or
her client, except the disclosure of the Confidential Information as proscribed in this
Order.
8.

Any person or entity to whom Confidential Information are disclosed in

accordance with this Protective Order may use the Confidential Information solely in
connection with the prosecution or defense of this litigation, and shall not disclose such
Confidential Information to any other person or entity (except as permitted above) or use
such information for any other purpose in violation of the terms of this Protective Order.
9.

This Order does not limit the right of any party to object to the scope of

discovery in the above-captioned action.
10.

This Order does not constitute a determination of the admissibility or

evidentiary foundation for the documents or a waiver of any party’s objections thereto.
11.

Nothing shall prevent disclosure beyond the terms of this Order if all

parties consent to such disclosure, or if the Court, after notice to all affected parties,

4

permits such disclosure. Specifically, if and to the extent any party wishes to disclose
any Confidential Information beyond the terms of this Order, that party shall provide all
other parties with reasonable notice in writing of its request to so disclose the materials.
If the parties cannot resolve their disagreement with respect to the disclosure of any
Confidential Information, then a party may petition the Court for a determination of these
issues.
12.

In the event that any producing party claims that it has inadvertently

produced Confidential Information but not designated as such, the parties agree that such
production shall not operate as a waiver of any claim of confidentiality. Any party who
is notified that Confidential Information has been inadvertently produced shall treat the
Confidential Information as subject to the designation of confidentiality unless and until
the Court determines that such designation does not apply, and shall make reasonable
efforts to notify all persons who have received the Confidential Information to inform
them of the designation of confidentiality and the requirements that accompany such a
designation.
13.

Upon completion of the litigation, each party shall return to the other or

destroy all copies of Confidential Information after the party who produced the
Confidential Information requests in writing that the Confidential Information be returned
or destroyed. If the material is destroyed, counsel for the destroying party shall certify in
writing that the destruction has taken place. Notwithstanding anything to the contrary,
counsel for the parties shall be permitted to maintain the complete integrity of their
respective case files after the conclusion of this litigation including, but not limited to, all

5

pleadings, briefs, and discovery materials that include Confidential Information or
documents, but these materials shall remain subject to the terms of this Protective Order.

IT IS SO ORDERED.

ENTERED BY:

s/ Rudolph T. Randa
Hon. Rudolph T. Randa
United States District Judge

DATE: August 4, 2011
AGREED TO BY:
s/ Brian C. Tyndall
Brian C. Tyndall
Attorney for Plaintiff

s/ Joseph J. Torres
Joseph J. Torres
Attorney for Defendant

6