Jones v. Jefferson Capital Systems LLC et al
Filing
20
PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 1/4/2017 APPROVING with modifications 19 Unopposed MOTION for Protective Order and specifying the terms that shall control confidential information produced or disclosed during discovery and/or trial of this matter. See Order. (cc: all counsel)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES E. JONES,
Plaintiff,
Case No. 16-CV-755-JPS
v.
JEFFERSON CAPITAL SYSTEMS LLC
and RAUSCH STURM ISRAEL
ENERSON AND HORNIK LLC,
ORDER
Defendants.
On December 29, 2016, the parties filed a stipulation for entry of a
protective order (styled an “unopposed motion,” but signed by counsel for
both parties). (Docket #19). 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. 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. The parties state that their discovery exchanges will involve the
defendants’ proprietary internal procedures and the plaintiff’s confidential
medical records. (Docket #19 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
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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 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 #19) 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):
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(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 private, sensitive, proprietary,
and/or confidential documents and information, including deposition
testimony, recordings, and transcripts, in possession of the parties,
including, but not limited to, customer names, customer account
information, financial information, trade secrets or nonpublic
confidential technical, commercial, financial, personal, or business
information that the parties would like to keep from being made
public and/or accessible to third parties.
(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 private, sensitive,
proprietary, and/or confidential documents and information,
including deposition testimony, recordings, and transcripts, in
possession of the parties, including, but not limited to, customer
names, customer account information, financial information, trade
secrets or 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
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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 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,
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identifying the information, document or other material in question
and of the corrected confidential designation.
(B)
DISCLOSURE AND USE OF CONFIDENTIAL INFOR-
MATION. 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). Nothing in this Order prohibits a receiving party that is a
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 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
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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 (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 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
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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 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
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.
(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 and trial
witnesses in connection with their testimony in the lawsuit and to the
Court and the Court’s staff.
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(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 information designated as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” is filed with
the Court, or is substantively incorporated 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.
(D)
CHALLENGES TO CONFIDENTIALITY DESIGNATION. A
party or interested member of the public may challenge the designation of
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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.
(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 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 at Milwaukee, Wisconsin, this 4th day of January, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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