Estate of Derek Williams Jr. et al v. City of Milwaukee et al

Filing 16

PROTECTIVE ORDER signed by Judge J P Stadtmueller on 12/1/2016. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ESTATE OF DEREK WILLIAMS, JR.,
TANIJAH WILLIAMS, DEREK
WILLIAMS III, and TALIYAH S.
WILLIAMS,

Case No. 16-CV-869-JPS

Plaintiffs,
v.
CITY OF MILWAUKEE, JEFFREY
CLINE, RICHARD TICCIONI,
PATRICK COE, JASON BLEICHWEHL,
ROBERT THIEL, TODD KAUL,
ZACHARY THOMS, GREGORY
KUSPA, CRAIG THIMM, CHAD
BOYACK, and DAVID LETTEER,

PROTECTIVE ORDER

Defendants.
During the November 10, 2016 scheduling conference for this matter,
the Court and parties discussed entry of a protective order. (Docket #13).
Later that same day, the plaintiffs submitted a proposed order to the Court’s
e-mail submission box; no motion for a protective order was filed on the
docket itself. The defendants then filed a response to the plaintiff’s proposed
order. (Docket #14).
The plaintiffs’ proposed protective order matches another such order
entered recently in a similar case, also alleging police misconduct involving
the City of Milwaukee. See J.M. et al. v. City of Milwaukee et al., 16-CV-507-JPS,
(Docket #24). As indicated in the scheduling conference, the Court is inclined
to enter that order here as well. The defendants request that one sentence be
added, namely that the word “CONFIDENTIAL” should be affixed to any

document containing confidential information.1 The plaintiffs do not oppose
the addition. (Docket #15).
The Court will grant the request in a manner consistent with the
remainder of the protective order. As addressed later in this Order, only
specific instances of sensitive information, and not entire documents, should
be designated as confidential. Thus, if a “CONFIDENTIAL” stamp appears
on any document, it will only serve as notice that particular instances of
sensitive information appear within the document. It will not have the effect
of rendering the entire document confidential, as was discussed and rejected
by the Court in the context of the J.M. protective order.
With those points in mind, the Court addresses the propriety of the
protective order itself. Federal Rule of Civil Procedure 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). 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

1

Defendants state that this is required by Civil Local Rule 26(e), but the text
they quote is not found in that Rule. Instead, the relevant text is as follows:
All motions and stipulations requesting a protective order
must contain sufficient facts demonstrating good cause. Upon a
showing of good cause, the Court may enter a protective order
regarding confidentiality of all documents produced in the course
of discovery, all answers to interrogatories, all answers to requests
for admission, and all deposition testimony. A protective order
template is attached as an Appendix to these Local Rules.
Civil L.R. 26(e)(1). The rule on affixing “CONFIDENTIAL” to documents is found
in the template order. That template is meant to be used as guidance and is not
actually part of Rule 26(e).

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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 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)).
Though no motion for entry of a protective order was actually filed,
the Court finds that the parties’ request for such an order is made in good
faith. This case involves the death of Derek Williams, Jr. in the course of
interactions with various Milwaukee Police Department officers. The
discovery process will result in the exchange of a substantial amount of City
of Milwaukee records. Such documents often include very sensitive material,
including: information that may personally identify individuals including
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juveniles, confidential informants, family members of City of Milwaukee
employees, family members of the plaintiffs, and victims of violence and
sexual crimes; financial information; healthcare information; emergency
contact information; statements made by witnesses, complainants, and
arrestees; and other personal information. In sum, many records involved in
this case are hypersensitive, and the parties clearly seek the requested
protective order in good faith.
The Court further finds that the parties’ proposed terms satisfy the
above-stated maxims. As noted above, rather than designating entire
documents as confidential, the parties will be limited to designating
information within documents as confidential. This will ensure maximum
transparency in this litigation while preventing disclosure of sensitive
information.
Finally, the Court must note that it 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,
The Court finds that the exchange of sensitive information between
the parties and/or third parties other than in accordance with this Order may
cause unnecessary damage and injury to the parties and 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 this Order.
IT IS ORDERED that, pursuant to Civil Local Rule 26(e) and Federal
Rule of Civil Procedure 26(c)(1)(D),
1.

The following categories of information are to be handled as

confidential and subject to this Protective Order:
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a.

personally-identifiable information, including dates
of birth, social security numbers, home addresses, and
phone numbers;

b.

information which can in any way identify a juvenile;

c.

information which can in any way identify a
confidential informant;

d.

financial information, including banking-related
account numbers, the identification of any financial
institution along with any individual who maintains an
account with that institution; income tax information
and mortgage-related information;

e.

healthcare-related information, including information
which is related to physical, psychological or general
medical care or treatment;

f.

emergency-contact information provided by employees,
persons arrested or in custody, complainants, or
witnesses;

g.

information which can in any way identify the spouse,
child(ren), or other family members of a City of
Milwaukee employee, plaintiffs, and the family
members of Derek Williams, Jr.;

h.

information related to divorce or child custody
disputes; and

i.

information which can in any way identify the victim of
a sexual assault, attempted sexual assault, rape,
attempted rape or domestic violence.

Designation of confidential information must be made by placing or
affixing on the document in a manner that will not interfere with its legibility
the word “CONFIDENTIAL”.

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2.

Information designated as confidential in paragraph (1) must

not be used or disclosed by the parties or counsel for the parties or any
persons identified in paragraph (3) for any purposes whatsoever other than
preparing for and conducting the litigation in which the information is
disclosed (including appeals).
3.

The parties and counsel for the parties must not disclose or

permit the disclosure of any information designated as confidential in
paragraph (1) to any 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 instant case. 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 information
designated as confidential in paragraph (1) 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.

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. Before disclosure to any such court
reporter or person engaged in making photocopies of
documents, such reporter or person must agree to be
bound by the terms of this Protective Order.

d.

Disclosure may be made to consultants, investigators, or
experts (collectively “experts”) employed by the parties
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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 Protective Order requiring that
information designated as confidential in paragraph (1)
be held in confidence.
4.

To the extent that any records which contain any information

referenced in the categories identified in paragraph 1 are filed with the Court,
or are 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
Protective Order 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.
5.

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 party prevailing
on any such motion is entitled to recover as costs its actual attorney fees and
costs attributable to the motion.
6.

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

evidence and treated as confidential under this Protective Order must be
returned to the originating party or, if the parties so stipulated, the material
may be destroyed.
7.

After termination of this litigation, this Protective Order shall

continue to be binding upon the parties hereto, and upon all parties to whom
confidential discovery material has been disclosed or communicated, and this

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Court shall retain jurisdiction over the parties and such persons for the
enforcement of the provisions hereof.
Dated at Milwaukee, Wisconsin, this 1st day of December, 2016.
BY THE COURT:

s/ J. P. Stadtmueller
J.P. Stadtmueller
U.S. District Judge

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