IDC Financial Publishing Inc v. RBC Capital Markets LLC

Filing 36

ORDER signed by Judge Lynn Adelman on 03/13/2018 granting 34 Motion for Protective Order. (cc: all counsel) (lls)

UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF WISCONSIN
IDC FINANCIAL PUBLISHING, INC.,
Case No. 2:16-cv-00596
Plaintiff,
v.
RBC CAPITAL MARKETS, LLC,
Defendant.
PROTECTIVE ORDER
Based on the stipulated motion of the parties 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):
(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 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 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

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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.
(6)

In accordance with Federal Rule of Evidence 502(d), any inadvertent or

erroneous production or disclosure of privileged material shall not be deemed a waiver—
in this litigation or in any other proceeding, including in federal or state proceedings—of
any applicable privilege or immunity (including, without limitation, the attorney-client
privilege, the work product doctrine, and the joint defense or common interest privilege)
that would otherwise attach to the document or information or to other documents or
information. The inadvertent or erroneous disclosure of privileged material during this
proceeding will not be construed as a waiver, in whole or in part, of (i) the producing
party’s claims of privilege either as to the specific information disclosed or more
generally as to the subject matter of the information disclosed, or (ii) the producing
party’s right to designate the material as privileged material in this litigation or in any
other proceeding, including federal and state proceedings. The producing party that made
the inadvertent or erroneous disclosure shall promptly notify the receiving party within
10 days of the discovery of the inadvertent production. Upon notification, the receiving
party shall take all steps reasonably required to ensure the information’s confidentiality
and not make use of such document or information for any purpose. Nothing in this
Protective Order shall extend attorney-client privilege or attorney work-product

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protection to any material where such a privilege or protection has been waived in any
manner other than by the inadvertent or erroneous disclosure to any receiving party in
this matter.
(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).
(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

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.

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(c)

Disclosure may be made to court reporters and/or videographers

engaged for depositions and those persons, if any, used by counsel of record or
the parties as third-party service vendors.
(d)

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.
(e)

Disclosure may be made to deposition, hearing, and trial witnesses

in connection with their testimony in the lawsuit and to the Court, the Court’s
staff, and jurors.
(f)

Disclosure may be made to persons already in lawful and

legitimate possession of such CONFIDENTIAL information.
(g)

Disclosure may be made to any person indicated on the face of a

document marked CONFIDENTIAL as its originator, author, or recipient.
(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 counsel for the parties makes a

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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 to court reporters and/or videographers

engaged for depositions and those persons, if any, used by counsel of record or
the parties as third-party service vendors.
(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.
(d)

Disclosure may be made to deposition, hearing, and trial witnesses

in connection with their testimony in the lawsuit and to the Court, the Court’s
staff, and jurors.
(e)

Disclosure may be made to persons already in lawful and

legitimate possession of such ATTORNEYS’ EYES ONLY information.
(f)

Disclosure may be made to any person indicated on the fact of a

document marked ATTORNEYS’EYES ONLY as its originator, author, or
recipient.
(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.

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(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 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 utilizing the procedures set forth in General L. R. 79(d).
(3)

Whenever CONFIDENTIAL or ATTORNEYS’ EYES ONLY

information is introduced or used at a deposition, hearing, trial, or other proceeding, the
portions of the proceeding that concern such CONFIDENTIAL or ATTORNEYS’ EYES
ONLY information shall be conducted under circumstances to ensure that only those
persons duly authorized by this Order to have access to such CONFIDENTIAL or
ATTORNEYS’ EYES ONLY information shall be present. Upon motion of any party,
the portions of the transcript of any such proceeding, along with associated exhibits, that
concern CONFIDENTIAL or ATTORNEYS’ EYES ONLY information shall be sealed
and kept confidential.
(D)

CHALLENGES TO CONFIDENTIALITY DESIGNATION. A party may

challenge the designation of confidentiality or invocation of privilege under this Order 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

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material at issue are properly designated as confidential. Likewise, the party claiming privilege
or protection bears the burden of proving that the information, documents, or other material at
issue is properly privileged or protected. The Court may award the party 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 complete set of all documents filed with the Court, subject to all other restrictions of
this Order.
Dated this 13th day of March, 2018, at Milwaukee, Wisconsin.
BY THE COURT:

s/Lynn Adelman
Hon. Lynn Adelman
District Judge
18568027.1

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