ABC Worker's Compensation Insurer v. First Choice Logistics Inc et al

Filing 24

PROTECTIVE ORDER signed by Judge J. P. Stadtmueller on 12/9/2016 APPROVING 23 Stipulation for Protective Order pursuant to FRCP 26(c) and Civil L.R. 26(e). (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STACI L. RUDERSDORF and ABC
WORKER’S COMPENSATION INSURER,
Case No. 16-CV-336-JPS
Plaintiffs,
v.
FIRST CHOICE LOGISTICS INC., ACE
AMERICAN INSURANCE COMPANY,
and KURT W. SERAMA,

ORDER

Defendants.
On December 5, 2016, the parties filed a stipulation for entry of a
protective order. (Docket #23). The parties request that the Court enter a
protective order so that they may avoid the public disclosure of confidential
information and documents. Id. 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 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. American Telephone & Telegraph 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. F.R.C.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.

Cty. 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 943, 945 (7th Cir. 1999)).
The parties have requested the protective order in this case in good
faith. This case involves the potential disclosure of defendants’ proprietary
and confidential business information, and other competitively sensitive
data. (Docket #23 at 1). The Court thus finds that there is good cause to issue
the requested protective order.
However, the Court finds that two slight changes are necessary to
maintain compliance with the above-cited precedent. First, 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 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
Page 2 of 10

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 (C)(2). Second, consistent with the Court’s
and this district’s standard practice, the Court will allow members of the
public to challenge the confidentiality of documents filed in this case. See
supra Paragraph (D).
Finally, the Court must note that, while it finds the 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.
Because the proposed protective order adequately complies with the
standards set forth above (after the Court’s minor changes), the Court will
enter an order based on the plaintiff’s motion and proposed order to the
Court.
Accordingly,
Based on the parties’ stipulation (Docket #23) and the factual
representations set forth therein, 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, and deposition
testimony.
IT IS THEREFORE ORDERED that, pursuant to Fed. R. Civ. P. 26(c)
and Civil L. R. 26(e):
Page 3 of 10

(A) DESIGNATION OF CONFIDENTIAL OR ATTORNEYS’ EYES ONLY
INFORMATION.
Designation of information under this Order must be made by placing
or affixing on the document or material, in a manner that will not interfere
with its legibility, the words “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY.”
(1) One who produces information, documents, or other material may
designate them as “CONFIDENTIAL” when the person in good faith
believes they contain trade secrets or nonpublic confidential technical,
commercial, financial, personal, or business information.
(2) One who produces information, documents, or other material may
designate them as “ATTORNEYS’ EYES ONLY” when the person in good
faith believes that they contain particularly sensitive trade secrets or other
nonpublic confidential technical, commercial, financial, personal, or business
information that requires protection beyond that afforded by a
CONFIDENTIAL designation.
(3) Except for information, documents, or other materials produced for
inspection at the party’s facilities, the designation of confidential information
as CONFIDENTIAL or ATTORNEYS’ EYES ONLY must be made prior to,
or contemporaneously with, their production or disclosure. In the event that
information, documents or other materials are produced for inspection at the
party’s facilities, such information, documents, or other materials may be
produced for inspection before being marked confidential. Once specific
information, documents, or other materials have been designated for
copying, any information, documents, or other materials containing
confidential information will then be marked confidential after copying but
before delivery to the party who inspected and designated them. There will
Page 4 of 10

be no waiver of confidentiality by the inspection of confidential information,
documents, or other materials before they are copied and marked
confidential pursuant to this procedure.
(4) Portions of depositions of a party’s present and former officers,
directors, employees, agents, experts, and representatives will be deemed
confidential only if designated as such when the deposition is taken or within
30 days of receipt of the deposition transcript.
(5) If a party inadvertently produces information, documents, or other
material containing CONFIDENTIAL or ATTORNEYS’ EYES ONLY
information without marking or labeling it as such, the information,
documents, or other material shall not lose its protected status through such
production and the parties shall take all steps reasonably required to assure
its continued confidentiality if the producing party provides written notice
to the receiving party within 10 days of the discovery of the inadvertent
production, identifying the information, document or other material in
question and of the corrected confidential designation.
(B) DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION.
Information,

documents,

or

other

material

designated

as

CONFIDENTIAL OR ATTORNEYS’ EYES ONLY under this Order must not
be used or disclosed by the parties or counsel for the parties or any persons
identified in subparagraphs (B)(1) and (2) below for any purposes
whatsoever other than preparing for and conducting the litigation in which
the information, documents, or other material were disclosed (including
appeals). The parties must not disclose information, documents, or other
material designated as confidential to putative class members not named as
plaintiffs in putative class litigation unless and until one or more classes have
been certified. Nothing in this Order prohibits a receiving party that is a
Page 5 of 10

government agency from following its routine uses and sharing such
information, documents or other material with other government agencies
or self-regulatory organizations as allowed by law.
(1) CONFIDENTIAL INFORMATION. The parties and counsel for the
parties must not disclose or permit the disclosure of any information,
documents or other material designated as “CONFIDENTIAL” by any other
party or third party under this Order, except that disclosures may be made
in the following circumstances:
(a) Disclosure may be made to employees of counsel for the parties or,
when the party is a government entity, employees of the government,
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 Order requiring that the information, documents, or
other material be held in confidence.
(b) 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 who are identified as such in
writing to counsel for the other parties in advance of the disclosure of
the confidential information, documents or other material.
(c) Disclosure may be made to court reporters engaged for depositions
and those persons, if any, specifically engaged for the limited purpose
of making copies of documents or other material. Before disclosure to
any such court reporter or person engaged in making copies, such
reporter or person must agree to be bound by the terms of this Order.
(d) Disclosure may be made to consultants, investigators, or experts

Page 6 of 10

(collectively “experts”) employed by the parties or counsel for the
parties to assist in the preparation and trial of the lawsuit. Before
disclosure to any expert, the expert must be informed of and agree to
be subject to the provisions of this Order requiring that the
information, documents, or other material be held in confidence by
completing Exhibit A hereto.
(e) Disclosure may be made to deposition and trial witnesses in
connection with their testimony in the lawsuit and to the Court and
the Court’s staff.
(f) Disclosure may be made to persons already in lawful and
legitimate possession of such CONFIDENTIAL information.
(2) ATTORNEYS’ EYES ONLY INFORMATION. The parties and
counsel for the parties must not disclose or permit the disclosure of any
information, documents, or other material designated as “ATTORNEYS’
EYES ONLY” by any other party or third party under this Order to any other
person or entity, except that disclosures may be made in the following
circumstances:
(a) Disclosure may be made to counsel and employees of counsel for
the parties who have direct functional responsibility for the
preparation and trial of the lawsuit. Any such employee to whom
for the parties makes a disclosure must be advised of, and
to, the provisions of this Order requiring that the

counsel

become subject

information,

documents, or other material be held in confidence.
(b) Disclosure may be made to court reporters engaged for depositions
and those persons, if any, specifically engaged for the limited purpose
of making copies of documents or other material. Before disclosure to

Page 7 of 10

any such court reporter or person engaged in making copies, such
reporter or person must agree to be bound by the terms of this Order.
(c) Disclosure may be made to consultants, investigators, or experts
(collectively “experts”) employed by the parties or counsel for the
parties to assist in the preparation and trial of the lawsuit. Before
disclosure to any expert, the expert must be informed of and agree to
be subject to the provisions of this Order requiring that the
information, documents, or other material be held in confidence by
completing Exhibit A hereto.
(d) Disclosure may be made to deposition and trial witnesses in
connection with their testimony in the lawsuit and to the Court and
the Court’s staff.
(e) Disclosure may be made to persons already in lawful and
legitimate possession of such ATTORNEYS’ EYES ONLY information.
(C) MAINTENANCE OF CONFIDENTIALITY.
Except as provided in subparagraph (B), counsel for the parties must
keep all information, documents, or other material designated as confidential
that are received under this Order secure within their exclusive possession
and must place such information, documents, or other material in a secure
area.
(1) All copies, duplicates, extracts, summaries, or descriptions
(hereinafter referred to collectively as “copies”) of information, documents,
or other material designated as confidential under this Order, or any portion
thereof, must be immediately affixed with the words “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” if not already containing that designation.
(2) To the extent that any “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” information is filed with the Court, or is substantively incorporated
Page 8 of 10

in any papers to be filed with the court, the records and papers 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 in an envelope
marked “SEALED.” A reference to this rule may also be made on the
envelope. The parties shall act in good faith in designating records to be filed,
in whole or in part, under seal. If a Court filing contains information,
documents, or other materials that were designated “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” by a third party, the party making the filing
shall provide notice of the filing to the third party.
(D) CHALLENGES TO CONFIDENTIALITY DESIGNATION.
A party or an interested member of the public 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 designating party
bears the burden of proving that the information, documents, or other
material at issue are properly designated as confidential. The Court may
award the party or person prevailing on any such motion actual attorney fees
and costs attributable to the motion.
(E) CONCLUSION OF LITIGATION.
At the conclusion of the litigation, a party may request that all
information, documents, or other material not filed with the Court or
received into evidence and designated as CONFIDENTIAL or ATTORNEYS’
EYES ONLY under this Order must be returned to the originating party or,
if the parties so stipulate, destroyed, unless otherwise provided by law.
Notwithstanding the requirements of this paragraph, a party may retain a

Page 9 of 10

complete set of all documents filed with the Court, subject to all other
restrictions of this Order.
Dated at Milwaukee, Wisconsin, this 9th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 10 of 10