State of Wisconsin Local Government Property Insurance Fund v. Lexington Insurance Company et al

Filing 91

PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 5/17/2017 GRANTING 81 Parties' Joint Request for Entry of a Protective Order and SPECIFYING the terms for confidential information produced or disclosed during this matter. See Order for further details. (Attachments: # 1 Exhibit A to Protective Order) (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STATE OF WISCONSIN LOCAL
GOVERNMENT PROPERTY INSURANCE
FUND,

Case No. 15-CV-142-JPS

Plaintiff,
v.

ORDER

LEXINGTON INSURANCE COMPANY,
THE CINCINNATI INSURANCE
COMPANY, and MILWAUKEE COUNTY,
Defendants.
On May 9, 2017, the parties filed a letter indicating that they have
stipulated to the entry of a protective order submitted to the Court’s
proposed order e-mail address. (Docket #81). The parties request that the
Court enter a protective order so that they may avoid the public disclosure
of confidential information and documents. Rule 26(c) allows for an order
“requiring that a trade secret or other confidential research, development,
or commercial information not be revealed or be revealed only in a specified
way.” Fed. R. Civ. P. 26(c)(1)(G), Civil L. R. 26(e).
The Court sympathizes with the parties’ request and will grant it,
but, before doing so, must note the limits that apply to protective orders.
Protective orders are, in fact, an exception to the general rule that pretrial
discovery must occur in the public eye. Am. Tel. & Tel. Co. v. Grady, 594 F.2d
594, 596 (7th Cir. 1979); Fed. R. Civ. P. 26(c); see also Citizens First Nat’l Bank
of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945–46 (7th Cir. 1999).
Litigation must be “conducted in public to the maximum extent consistent
with respecting trade secrets…and other facts that should be held in

confidence.” Hicklin Eng’r, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
Nonetheless, the Court can enter a protective order if the parties
have shown good cause, and also that the order is narrowly tailored to
serving that cause. Fed. R. Civ. P. 26(c); see, e.g., Citizens First Nat’l Bank of
Princeton, 178 F.3d at 945, Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854,
858 (7th Cir. 1994) (holding that, even when parties agree to the entry of a
protective order, they still must show the existence of good cause). The
Court can even find that broad, blanket orders—such as the one in this
case—are narrowly tailored and permissible, when it finds that two factors
are satisfied:
(1)

that the parties will act in good faith in designating the
portions of the record that should be subject to the protective
order; and

(2)

that the order explicitly allows the parties to the case and
other interested members of the public to challenge the
sealing of documents.

County Materials Corp. v. Allan Block Corp., 502 F.3d 730, 740 (7th Cir. 2006)
(citing Citizens First Nat’l Bank of Princeton, 178 F.3d at 945).
The parties have requested the protective order in this case in good
faith. This action involves a dispute over insurance coverage for a fire at the
Milwaukee County Courthouse. (Docket #1-2). The discovery process will
involve the exchange of sensitive business and insurance-related materials.
The Court thus finds that there is good cause to issue the requested
protective order.
However, the Court finds that a slight change is necessary to
maintain compliance with the above-cited precedent. The proposed order
requires sealing, in whole or in part, of all confidential documents. This
departs from the Court’s desire to ensure that every phase of the trial occurs
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in the public eye to the maximum extent possible. See Hicklin Eng’r, L.C., 439
F.3d at 348. While the Court understands that some documents will need to
be sealed entirely, other documents may contain only small amounts of
confidential information, and so redaction of those documents may be more
appropriate. The Court has modified the parties’ proposed language to that
effect. See supra Paragraph 7.
Finally, the Court must note that, while it finds the parties’ proposed
order to be permissible and will, therefore, enter it, the Court subscribes to
the view that the Court’s decision-making process must be transparent and
as publicly accessible as possible. Thus, the Court preemptively warns the
parties that it will not enter any decision under seal.
Accordingly,
IT IS ORDERED that based on the parties’ stipulation, (Docket #81),
the Court finds that exchange of sensitive information between or among
the parties and/or third parties other than in accordance with this Order
may cause unnecessary damage and injury to the parties or to others. The
Court further finds that the terms of this Order are fair and just and that
good cause has been shown for entry of a protective order governing the
confidentiality of documents produced in discovery, answers to
interrogatories, answers to requests for admission, deposition testimony,
and the inadvertent production of privileged material.
IT IS THEREFORE ORDERED that, pursuant to Fed. R. Civ. P. 26(c),
Civil L. R. 26(e), and Federal Rule of Evidence 502:
1.

Nondisclosure of “Confidential” Documents.

Any party or third-party may designate information disclosed as
“CONFIDENTIAL”. A “Confidential” document means any document

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produced in this litigation which bears the legend (or which shall otherwise
have had the legend recorded upon it in a way that brings it to the attention
of a reasonable examiner) “CONFIDENTIAL” to signify that it contains
information believed to be subject to protection. “Confidential” material
shall include non-public commercial or financial information, proprietary
information, confidential data and other commercially sensitive business
information. For purposes of this order, the term “document” means, all
written, recorded, or graphic material, including electronically stored
information, whether produced or created by a party or another person,
whether produced pursuant to subpoena, by agreement, or otherwise, and
shall include interrogatory answers, responses to requests for admission,
and other discovery responses that quote, summarize, or contain material
entitled to protection.
Except with the prior written consent of the party or other person
originally designating a document produced in this litigation to be stamped
as a “Confidential” document, or as hereinafter provided under this Order,
no document produced and designated as “Confidential” in this litigation
may be disclosed to any person or entity.
2.

Permissible Disclosures of “Confidential” Documents.

(a)

Notwithstanding Paragraph 1, “Confidential” documents

may be disclosed to the parties to this action; counsel for the parties in this
action who are actively engaged in the conduct of this litigation; to the
partners, associates, secretaries, paralegals, assistants, and employees of
such counsel to the extent reasonably necessary to render professional
services in the litigation; to persons or entities that are clearly identified in
the document as an author, addressee, or carbon-copy recipient; to court

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officials involved in this litigation (including court reporters, persons
operating video recording equipment at depositions, and any special
master appointed by the court). “Confidential” documents shall be used
solely for the prosecution and defense of the claims in this action. Subject
to the provisions of Paragraph 2(b), such documents may also be disclosed:
(1)

to any person designated by the Court in the interest

of justice, upon such terms as the Court may deem proper;
(2)

to persons noticed or subpoenaed for deposition or

designated as trial witnesses to the extent reasonably necessary to
prepare to testify or to render testimony, provided, however, that if
the witness refuses to sign the Agreement attached as Exhibit A, the
witness will not be allowed to retain a copy of such document and
the document will not be attached as an exhibit to the deposition;
(3)

to outside consultants or experts retained for the

purpose of assisting counsel in the litigation; and
(4)

to entities and employees of entities involved solely in

one or more aspects of copying, organizing, filing, coding,
converting, storing, or retrieving data or designing programs for
handling data connected with these actions, including the
performance of such duties in relation to a computerized litigation
support system;
(b)

In all such cases where disclosure is to be made to any person

or entity listed in Paragraph 2(a)(1)-(3), such individual and/or entity must
sign the Confidentiality Agreement annexed hereto as Exhibit A. Any
individual or entity listed in Paragraph 2(a)(1)-(3) that refuses to sign
Exhibit A shall not be permitted to have access to or view the “Confidential”

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document, except as provided in Paragraph 2(a)(2) above. The attorney
making or seeking to make the disclosure shall maintain each executed
Confidentiality Agreement in his/her files.
3.

“Attorneys’ Eyes Only” Documents

Any party of third-party may also designate extremely sensitive
“CONFIDENTIAL” Information or Items, the disclosure of which to
another Party or Non-Party would create a substantial risk of serious harm
that could not be avoided by less restrictive means as “Attorneys’ Eyes
Only”.

An “Attorneys’ Eyes Only” document means any document

produced in this litigation which bears the legend (or which shall otherwise
have had the legend recorded upon it in a way that brings it to the attention
of a reasonable examiner) “Attorneys’ Eyes Only” to signify that it contains
information believed to be subject to protection. Except with the prior
written consent of the party or other person originally designating a
document produced in this litigation to be stamped as a “Attorneys’ Eyes
Only” document, or as hereinafter provided under this Order, no document
produced and designated as “Attorneys’ Eyes Only” in this litigation may
be disclosed to anyone other than outside counsel for the parties in this
litigation or any in-house attorneys employed by a party.
The Parties pledge to use good faith in the use of the “Attorneys’
Eyes Only” designation but recognize that certain third-parties are
unwilling to produce certain information, including but not limited to
proprietary pricing information they use to charge their customers.
4.

Declassification.

A party (or aggrieved person permitted by the Court to intervene for
such purpose) may object to the designation of a document or category of

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documents as “Confidential” or “Attorneys’ Eyes Only” by first stating
such objection in writing to the designating party. The objecting party or
aggrieved person must specify to the designating party in writing the
information in issue and the grounds for questioning the confidentiality
designation. The designating party shall respond in writing within five (5)
days by either agreeing to change the designation or explaining the grounds
for the designation. If the parties cannot agree on a proper designation for
the document(s), the objecting party or aggrieved person may apply to the
Court for ruling that a document or category of documents designated as
“Confidential” or “Attorneys’ Eyes Only” is not entitled to such status and
protection. The document, however, shall maintain its original designation
as “Confidential” or “Attorneys’ Eyes Only” until the Court resolves the
dispute over the applicable designation. Nothing in this Order shall be
deemed to allocate or reallocate any substantive burdens with respect to
confidentiality, which shall be determined in accordance with governing
law.
5.

Use of “Confidential” and “Attorneys’ Eyes Only”

Documents in a Deposition.
(a)

A deponent may during the deposition be shown and

examined about a “Confidential” and “Attorneys’ Eyes Only” document.
Deponents shall not retain or copy any “Confidential” and/or “Attorneys’
Eyes Only” document that is provided to them during the course of their
deposition.
(b)

In the event that any question is asked at a deposition that

requires the disclosure of “Confidential” and/or “Attorneys’ Eyes Only”
information, such question shall nonetheless be answered by the witness

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fully and completely. At the request of the party designating discovery
material as “Confidential” and/or “Attorneys’ Eyes Only,” all persons other
than the witness, counsel, and the court reporter shall leave the room
during the time this information is disclosed or discussed. The attorney
designating the information as “Confidential” and/or “Attorneys’ Eyes
Only” may also contemporaneously notify all other counsel on the record
that the information disclosed will be designated as “Confidential” and/or
“Attorneys’ Eyes Only” in accordance with Paragraph (7)(c).
(c)

Parties (and deponents) may, within twenty-one (21) days

after receiving the official deposition transcript, designate all, or specific
portions, of the transcript and exhibits thereto as “Confidential” and/or
“Attorneys’ Eyes Only.” “Confidential” and/or “Attorneys’ Eyes Only”
information within the deposition transcript may be designated by
underlining the portions of the pages that contain “Confidential” and/or
“Attorneys’ Eyes Only” information and marking such pages with one of
the following legends: “CONFIDENTIAL” and/or “CONFIDENTIAL ATTORNEYS’ EYES ONLY.” Until expiration of the 21-day period, the
entire deposition will be treated as subject to the protection afforded to
“Confidential” and/or “Attorneys’ Eyes Only” documents. If a timely
designation is made, the “Confidential” and/or “Attorneys’ Eyes Only”
portions and exhibits shall be subject to the terms of this Protective Order
and may only be accessed and reviewed in accordance with the terms
contained in this Protective Order.
6.

Use of “Confidential” and “Attorneys’ Eyes Only”

Documents at a Hearing or Trial.
This Order shall not apply to the treatment to be given at the trial of

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this action to any information designated as “Confidential” or as
“Attorneys’ Eyes Only.” Such treatment shall be subject to subsequent
order of this Court.
7.

Use of “Confidential” and “Attorneys’ Eyes Only”

Documents and Information in Legal Documents.
Any information or documents designated as “Confidential” or
“Attorneys’ Eyes Only” filed with the Court must be redacted only to the
extent necessary. If the parties seek to seal a document, either in part or in
full, they must file a motion to seal that document, together with a redacted
copy on the record. They must also simultaneously file unredacted copies
under seal with the Clerk of Court via the CM-ECF system. The parties shall
act in good faith in designating records to be filed, in whole or in part, under
seal. Nothing contained herein limits a producing party’s use or disclosure
of its own discovery material.
8.

Subpoena by Other Courts or Agencies and Third-Party

FOIA/Public Records Requests.
If another court or an administrative agency subpoenas or orders
production, or an FOIA/public record request may include or specifically
request production of, “Confidential” and/or “Attorneys’ Eyes Only”
documents that a party has obtained under the terms of this order, such
party shall notify by telephone and in writing within five (5) business days
of receipt of such subpoena, order, or FOIA/public record request, counsel
for the party or other person who designated the document as
“Confidential” and/or “Attorneys’ Eyes Only” and must identify in writing
the information sought and enclose a copy of the subpoena, order, or
FOIA/public record request. In the event of a FOIA/public record request

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the burden for objecting, quashing, or otherwise initiating an appropriate
action to prevent disclosure of the “Confidential” and/or “Attorneys’ Eyes
Only” documents shall lie with the party who has made the designation,
but in no event shall a party produce “Confidential” and/or “Attorneys’
Eyes Only” documents in response to a subpoena, order, or FOIA/public
record request without notice and allowing the other parties reasonable
time and opportunity to take appropriate action to prevent disclosure.
9.

Use.

Persons obtaining access to “Confidential” and/or “Attorneys’ Eyes
Only” documents under this Order shall use the information only for the
preparation and trial(s) of this litigation (including any and all subsequent
proceedings in this litigation such as appeal), and shall not use such
information for any other purpose, including business, governmental,
commercial, administrative, or other judicial proceedings.
10.

Non-Termination.

The provisions of this order shall not terminate at the conclusion of
this action. Within 120 days after final conclusion of all aspects of this
litigation, “Confidential” and/or “Attorneys’ Eyes Only” documents and all
copies (including summaries and excerpts) shall be returned to the party or
person that produced such documents or, at the option of the recipient, be
destroyed, unless the producer requests the return of such documents and
agrees to pay for their return. All counsel of record shall make certification
of compliance herewith and shall deliver the same to counsel for the party
who produced the documents not more than 150 days after final
termination of this litigation.

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11.

Modification Permitted.

Nothing in this Order shall prevent any party or other person from
seeking modification of this Order or from objecting to discovery that it
believes to be otherwise improper.
12.

Responsibility of Attorneys.

The attorneys of record are responsible for employing reasonable
measures, consistent with this Order, to control duplication of, access to,
and distribution of copies of “Confidential” and “Attorneys’ Eyes Only”
documents.
13.

No Waiver.

(a)

Review of the “Confidential” and/or “Attorneys’ Eyes Only”

documents and information by counsel, experts or consultants for the
litigants in the litigation shall not waive the confidentiality of the
documents or objections to production.
(b)

The inadvertent, unintentional, or in camera disclosure of

“Confidential” and/or “Attorneys’ Eyes Only” documents shall not, under
any circumstances, be deemed a waiver, in whole or in part, of any party’s
claims of confidentiality to any other documents not disclosed. Nothing
contained in this paragraph shall prevent a party from moving the Court
for an order declaring that a disclosure was inadvertent or unintentional.
(c)

Nothing contained in this Protective Order and no action

taken pursuant to it shall prejudice the right of any party to contest the
alleged relevancy, admissibility, or discoverability of the “Confidential”
and/or “Attorneys’ Eyes Only” documents sought.
14.

Except for an inadvertent disclosure, any disclosure or any

use of the information protected from unauthorized disclosure under this

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Order shall constitute contempt of court and any party violating this order
shall be liable to the designating party for such violation. The designating
party shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such violation and any relief obtained
by the designating party shall be in addition to all other remedies otherwise
available to the designating party.
15.

Nothing in this Order, or any designation or declaration

pursuant to this Order, shall constitute, or be used by any party as an
“admission by party opponent.”
Dated at Milwaukee, Wisconsin, this 17th day of May, 2017.
BY THE COURT:

_____________________________
J.P. Stadtmueller
U.S. District Judge

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