Conney v. Quarles & Brady LLP et al
ORDER REGARDING CONFIDENTIALITY signed by Judge Lynn Adelman on 04/12/2018. (cc: all counsel)(lls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 10-CV-1150
QUARLES & BRADY LLP et al.,
ORDER REGARDING CONFIDENTIALITY
The parties to this action have filed a stipulation in which they agree to keep
certain discovery materials confidential. They attached to their stipulation a proposed
protective order, which I will sign. However, I am issuing this separate order to remind
the parties of certain aspects of this court’s local rules that apply when a party files
confidential materials with the court.
The relevant local rules are General Local Rule 79(d) and Civil Local Rule 26(e)–
(f). General Local Rule 79(d) governs confidential matters and sealed records. The rule
states that, subject to certain limited exceptions, the court will consider all filed materials
public unless they are accompanied by a separate motion to seal. Gen. L. R. 79(d)(1),
(d)(5). The separate motion must be publicly filed and must describe the general nature
of the information withheld from the public record. Rule 79(d)(2). “To the extent
possible, the movant should include with the public filing a version of the document or
material that redacts only those portions of the document that are subject to the sealing
request.” Id. Importantly, the rule contains a meet-and-confer requirement: “Any party
seeking to file confidential documents or materials under seal, whether pursuant to a
Court-approved protective order or otherwise, must include in the motion a certification
that the parties have conferred in a good faith attempt to avoid the motion or to limit the
scope of the documents or materials subject to sealing under the motion.” Rule 79(d)(4).
The rule also provides that “[a]ny motion to seal must be supported by sufficient
facts demonstrating good cause for withholding the document or material from the
public record.” Rule 79(d)(3). The rule then outlines a procedure that allows the party
who originally designated the material as confidential to show good cause, even if that
party is not the one that filed the motion to seal. Id. In civil litigation, good cause for
removing a document from the public record will exist only if the document reveals a
trade secret, is covered by a recognized privilege (such as the attorney-client privilege),
or contains information required by statute to be maintained in confidence. Baxter Int’l
Inc. v. Abbott Labs., 297 F.3d 544, 546 (7th Cir. 2002).
Civil Local Rule 26(e)–(f) applies to confidentiality requests involving discovery
materials in a civil case. Rule 26(f) states that a party seeking to file confidential
discovery materials with the court must follow General Rule 79(d), even if the material
was designated as confidential pursuant to a protective order. The comments to Civil
Rule 26 state that “[t]he designation of a paper as confidential under the terms of a
protective order is not sufficient to establish the basis for filing that document under
seal.” Rather, the party seeking to withhold the document from the public record must
still demonstrate good cause under General Rule 79(d), i.e., that the material reveals a
trade secret or other information that may be withheld from the public record.
The parties are advised to make careful note of the above rules and be sure to
follow them when filing confidential materials with the court. In particular, the parties
should be sure that any motion to seal: (1) is accompanied by a certification that the
parties have conferred as required by General Rule 79(d)(4); and (2) is accompanied by
a redacted copy of the confidential material that is available to the public. Further, the
parties should be sure that the appropriate party demonstrates good cause for removing
the material from the public record. If the movant is the party who designated the
material as confidential, the movant must ensure that the motion to seal demonstrates
good cause. If the party who designated the material as confidential is the non-movant,
then that party must file a response to the motion in which good cause is shown. A party
does not show good cause simply by noting that the material was designated
confidential pursuant to a protective order. Rather, to show good cause, the party must
show that the material reveals a trade secret or other information that may be withheld
from the public record.
Having explained the legal requirements . . . the court will . . . deny
outright any motion [to seal] . . . that does not analyze in detail, document
by document, the propriety of secrecy, providing reasons and legal
citations. Motions that represent serious efforts to apply the governing
rules will be entertained favorably, and counsel will be offered the
opportunity to repair shortcomings. Motions that simply assert a
conclusion without the required reasoning, however, have no prospect of
Baxter, 297 F.3d at 548.
The parties are hereby advised that if they do not comply with the above rules
when filing confidential materials, the court will deny the motion to seal and require the
Clerk of Court to make the materials available to the public.
SO ORDERED at Milwaukee, Wisconsin, this 12th day of April, 2018.
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