Comsys Inc et al v. City of Kenosha Wisconsin et al

Filing 47

PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 1/11/2017 APPROVING with modifications 46 Parties' Stipulation for Entry of Protective Order. See Order for details. (cc: all counsel) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
COMSYS, INC. and
KATHRYNE L. MCAULIFFE,
Case No. 16-CV-655-JPS
Plaintiffs,
v.
THE CITY OF KENOSHA WISCONSIN,
THE CITY OF KENOSHA WATER UTILITY,
FRANK PACETTI, EDWARD ST. PETER,
MERRIL A. KERKMAN, JR.,
KEITH G. BOSMAN, ERIC J. HAUGAARD,
RHONDA JENKINS, JAN MICHALSKI,
ROCCO L. LaMACCHIA, SR., DAVE PAFF,
KURT WICKLUND, KEITH W. ROSENBERG,
ANTHONY KENNEDY, SCOTT N. GORDON,
CURT WILSON, DANIEL L. PROZANSKI,
JR., JACK ROSE and ROBERT C. JOHNSON,

ORDER

Defendants.
On January 10, 2017, the parties filed a stipulation for entry of a
protective order. (Docket #46). The parties request that the Court enter a
protective order so that the parties 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 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. 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. 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.

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. The parties state that their discovery exchanges will include confidential
records for the plaintiff’s business, the plaintiff’s medical records, and
municipal records containing confidential personal information. (Docket #46
at 1-2). 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
Page 2 of 7

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 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 10. 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 11.
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.
Because the parties’ 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 parties’ stipulation and proposed
order to the Court.
Accordingly,
Based on the stipulation of the parties (Docket #46) 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,
Page 3 of 7

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):
1.

Designation of confidential information must be made by

placing or affixing on the document in a manner which will not interfere with
its legibility the word “CONFIDENTIAL.” One who provides materials may
designate them as “CONFIDENTIAL” only when such person/entity in good
faith believes it contains nonpublic financial, personal, or business
information.
2.

The following types of information may be designated

confidential: documents containing information about plaintiffs’ finances and
medical records and the finances and medical records of Plaintiffs’ principals
and Plaintiffs’ and municipal employment records containing personal
employment information, provided that any document which the producing
party has made available on a non-confidential basis to any other person or
entity, or which has otherwise been procured by such person or entity on a
non-confidential basis, shall not be considered or designated confidential.
3.

Any person or entity that produces documents in this lawsuit

shall have the right to designate such documents confidential. Any
documents designated confidential, and any use of such documents, shall be
subject to the terms and conditions of this Order.
4.

Except for documents produced for inspection at the party’s

facilities or documents to be produced by third parties, the designation of
confidential information must be made prior to, or contemporaneously with,
the production or disclosure of that information. In the event that documents
are produced at a party’s facilities or by third parties for inspection as
Page 4 of 7

previously described in this paragraph, such documents may be produced for
inspection before being marked confidential. Once specific documents have
been designated for copying, any documents containing confidential
information will then be marked confidential after copying but before
delivery to the party who inspected and designated the documents. There
will be no waiver of confidentiality based on the inspection of confidential
documents before they are copied and marked confidential pursuant to this
procedure.
5.

Portions of depositions of a party’s present and former officers,

directors, employees, agents, experts, and representatives must be deemed
confidential only if they are designated as such when the deposition is taken.
6.

Information or documents designated as confidential under this

rule must not be used or disclosed by the parties or counsel for the parties or
any persons identified in paragraph 7 below for any purposes whatsoever
other than preparing for and conducting the litigation in which the
information or documents were disclosed.
7.

The parties and counsel for the parties must not disclose or

permit the disclosure of any documents or information designated as
confidential under this rule to any other person or entity, 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 or, and become subject to, the provisions of this rule
requiring that the documents and information be held in
confidence.
Page 5 of 7

b.

Disclosure may be made 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.

c.

Disclosure may be made to court reporters engaged for
depositions and those persons, if any, specifically engaged for
the limited purpose of making photocopies of documents. Prior
to disclosure to any such court reporter or person engaged in
making photocopies of documents, such person must agree to
be bound by the terms of this rule.

d.

Disclosure may be made to consultants, investigators, or
experts (hereinafter referred to collectively as “experts”)
employed by the parties or counsel for the parties to assist in
the preparation and trial of the lawsuit. Prior to disclosure to
any expert, the expert must be informed of and agree to be
subject to the provisions of this Order requiring that the
documents and information be held in confidence.

8.

Except as provided in paragraph 7, counsel for the parties must

keep all documents designated as confidential which are received under this
rule secured within their exclusive possession.
9.

All copies, duplicate, extracts, summaries or descriptions of

documents or information designated as confidential under this rule, or any
portion

thereof,

must

be

immediately

affixed

with

the

word

“CONFIDENTIAL” if that work does not already appear.
10.

To the extent that any answers to interrogatories, transcripts or

depositions, responses to requests for admissions, or any other papers filed
Page 6 of 7

or to be filed with the Court reveal or tend to reveal information claimed to
be confidential, 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.
11.

A party or 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 prevailing on any such motion actual attorney’s fees and
costs attributable to the motion.
12.

At the conclusion of the litigation, all material not received in

evidence and treated as confidential under this rule must be returned to the
originating party. If the parties so stipulate, the material may be destroyed.
Dated at Milwaukee, Wisconsin, this 11th day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 7 of 7