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

Filing 19

PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 12/27/2016 ADOPTING 18 Stipulation for Protective Order. See Order for details. (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.
On December 20, 2016, the parties filed a stipulated request for a
confidentiality order. (Docket #18). They request the order so that they may
avoid the public disclosure of confidential information and documents that
the Federal Bureau of Investigation (“FBI”) will produce in response to the
plaintiffs’ subpoena. Id. at 1. 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. 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 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 note that the FBI has asked them to seek the instant
protective order so as to avoid incurring civil and criminal liability when it
produces the subject records. (Docket #18 at 1). Further, this case involves the
death of Derek Williams, Jr. in the course of interactions with various
Milwaukee Police Department officers. As with the City of Milwaukee
records previously produced in this matter, the FBI’s document production
will likely contain hypersensitive information.
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The proposed protective order is largely acceptable. The Court’s only
revision is to include a provision consistent with the Court’s and this
district’s standard practice of allowing any party and any interested
members of the public to challenge the sealing of documents. 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 and the DOJ 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 stipulation and proposed order to the Court.
Accordingly,
Pursuant to the stipulation of the parties (Docket #18), 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, THEREFORE, ORDERED that, pursuant to Civil Local Rule
26(e) and Federal Rule of Civil Procedure 26(c)(1)(D),
1.

PURPOSES AND LIMITATIONS

The purpose of this Order is to enable the Federal Bureau of
Investigation, its officers, agents, employees and representatives to provide
information to Plaintiffs in this case which they might otherwise be
prohibited from disclosing under the Privacy Act, 5 U.S.C. § 552a, and as to

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which they might otherwise incur criminal and civil liability for having
disclosed.
2.

“PROTECTED” MATERIAL

“Protected” material shall include the following documents and
tangible things produced or otherwise exchanged:
(a) FBI records that include Privacy Act protected information.
Other than protection of Privacy Act protected information, nothing in this
order limits in any way any other restrictions on the release of information,
including restrictions on release of classified or privileged information,
required or permitted by law.
3.

SCOPE

The protections conferred by this agreement cover not only protected
material (as defined above), but also (1) any information copied or extracted
from protected material; (2) all copies, excerpts, summaries, or compilations
of protected material; and (3) any testimony, conversations, or presentations
by parties or their counsel that might reveal protected material. However,
the protections conferred by this agreement do not cover (a) any information
that is in the public domain or becomes part of the public domain through
trial or otherwise; or (b) any information known to the receiving party prior
to the disclosure or obtained by the receiving party after the disclosure from
a source who obtained the information lawfully and under no obligation of
confidentiality to the designating party. Any use of protected material at trial
shall be governed by a separate agreement or order.
4.

ACCESS TO AND USE OF PROTECTED MATERIAL

4.1

Basic Principles. A receiving party may use protected material

that is disclosed or produced by another party or by a non-party in
connection with this case only for prosecuting, defending, or attempting to
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settle this litigation.

Protected material may be disclosed only to the

categories of persons and under the conditions described in this agreement.
Protected material must be stored and maintained by a receiving party at a
location and in a secure manner that ensures that access is limited to the
persons authorized under this agreement.
4.2

Disclosure of “Protected” Information or Items.

Unless

otherwise ordered by the court or permitted in writing by the designating
party, a receiving party may disclose any protected material only to:
(a)

the receiving party’s counsel of record in this action, as well as

employees of counsel to whom it is reasonably necessary to disclose the
information for this litigation;
(b)

the officers, directors, and employees (including in-house

counsel) of the receiving party to whom disclosure is reasonably necessary
for this litigation;
©

experts and consultants to whom disclosure is reasonably

necessary for this litigation and who have signed the “Acknowledgment And
Agreement To Be Bound” (Exhibit A);
(d)

the court, court personnel, and court reporters and their staff;

(e)

copy or imaging services retained by counsel to assist in the

duplication of protected material, provided that counsel for the party
retaining the copy or imaging service instructs the service not to disclose any
protected material to third parties and to immediately return all originals and
copies of any protected material;
(f)
disclosure

during their depositions, witnesses in the action to whom
is

reasonably

necessary

and

who

have

signed the

“Acknowledgment And Agreement To Be Bound” (Exhibit A), unless
otherwise agreed by the designating party or ordered by the court. Pages of
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transcribed deposition testimony or exhibits to depositions that reveal
protected information must be separately bound by the court reporter and
may not be disclosed to anyone except as permitted under this agreement;
and
(g)

the author or recipient of a document containing the

information or a custodian or other person who otherwise possessed or knew
the information.
4.3

Acknowledgement and Agreement to be Bound. All persons

receiving copies of Protected material (other than the court, court personnel,
and court reporters and staff and the author or recipient of a document
containing the information ) shall sign a copy of the “Acknowledgement and
Agreement to be Bound” (Exhibit A) prior to receiving any such material.
Counsel for each party shall maintain a list of all persons who have been
provided access to Protected material and a file containing the signed
Acknowledgement and Agreement to be Bound. Copies of said lists and files
shall be made available to all other counsel in this litigation upon request.
4.4

Filing Protected Material. Before filing protected material or

discussing or referencing such material in court filings, the filing party shall
confer with the FBI to determine whether the FBI will remove the protected
designation, whether the document can be redacted, or whether a motion to
seal or stipulation and proposed order is warranted.
4.5

Sanctions. The parties agree that the appropriate sanction for

knowing or intentional disclosure of any protected material to any person
other than as authorized under paragraph 4.2, is a substantial monetary
penalty, payable into a Court administered fund. In the event that any
protected material is disclosed to an unauthorized person either directly or
indirectly (for example, by posting the material on the internet) any party to
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this litigation may file a motion for sanctions in this Court and the Court will
issue an order to show cause as to why the party and/or his or her attorney
should not be sanctioned for violating this protective order.
5.

DESIGNATING PROTECTED MATERIAL

5.1

Manner and timing of designations.

Except as otherwise

provided in this agreement or as otherwise stipulated or ordered, disclosure
or discovery material that qualifies for protection under this agreement must
be clearly so designated before or when the material is disclosed or
produced.
(a)

Information in documentary form (e.g., paper or electronic

documents and deposition exhibits, but excluding transcripts of depositions
or other pretrial or trial proceedings) will be marked with a banner affixed
to each page noting that the document contains protected material. The
parties acknowledge that all such documents designated as Protected must
be filed under seal if used in Court.
5.2

Inadvertent Failures to Designate.

If timely corrected, an

inadvertent failure to designate qualified information or items as Protected
does not, standing alone, waive the FBI’s right to secure protection under this
agreement for such material. Upon timely correction of a designation, the
receiving party must make reasonable efforts to ensure that the material is
treated in accordance with the provisions of this agreement.
6.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

If a party is served with a subpoena or a court order issued in other
litigation that compels disclosure of any information or items designated in
this action as “Protected,” that party must:
(a)

promptly notify the FBI in writing and include a copy of the
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subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena

or order to issue in the other litigation that some or all of the material
covered by the subpoena or order is subject to this agreement.

Such

notification shall include a copy of this agreement; and
(c)

cooperate with respect to all reasonable procedures sought to

be pursued by the FBI whose protected material may be affected.
7.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT IN
THIS LITIGATION

(a) The terms of this Order are applicable to information produced by
a non-party in this action and designated as “Protected.” Such information
produced by the non-party in connection with this litigation is protected by
the remedies and relief provided by this Order. Nothing in these provisions
should be construed as prohibiting a non-party from seeking additional
protections.
(b) In the event that a party is required, by a valid discovery request,
to produce a non-party’s protected information held in its possession, and
the receiving party is subject to an order not to produce the protected
information, then the receiving party shall:
i. promptly and in writing notify the requesting party and the
non-party (FBI) that some or all of the information requested is subject to a
protected agreement; and
ii. promptly provide the requesting party and the non-party
with a copy of this Order, the relevant discovery request(s), and a reasonably
specific description of the information requested.
(c) The parties acknowledge that many of the non-party documents
sought in this litigation must be obtained from the FBI through Touhy
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requests, and that these documents may contain information protected by the
Privacy Act. 5 U.S.C. § 552a(b)(11) states “[n]o agency shall disclose any
record which is contained in a system of records by any means of
communication to any person, or to another agency, except pursuant to a
written request by, or with the prior written consent of, the individual to
whom the record pertains, unless disclosure of the record would be . . .(11)
pursuant to the order of a court of competent jurisdiction.” This stipulated
order is such an order permitting the FBI to release Privacy Act protected
material. Any documents belonging to or produced by the FBI pursuant to
Touhy and containing Privacy Act protected material will be marked “FBI
Documents Subject to Privacy Act Protective Order” and may also be marked
“Protected,” in which case the documents will be subject to the additional
provisions of this protective order. All such documents must be filed under
seal if used in Court. In addition, all covered documents will be destroyed
upon termination of proceedings, to the extent permitted by law. In the
event protected material cannot be destroyed at the conclusion of these
proceedings, such material shall be returned to the FBI, or maintained by the
receiving party in such a way as to ensure its continued protection.
Additionally, in the event the receiving party receives a request, pursuant to
the Wisconsin Public Records Law, for any documents protected by this
Order, the receiving party shall give notice to the FBI in sufficient time for the
FBI to commence an action in the appropriate court to enjoin disclosure.
8.

UNAUTHORIZED DISCLOSURE OF PROTECTED
MATERIAL

If a receiving party learns that, by inadvertence or otherwise, it has
disclosed protected material to any person or in any circumstance not
authorized under this agreement, the receiving party must immediately (a)
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notify in writing the designating party of the unauthorized disclosures, (b)
use its best efforts to retrieve all unauthorized copies of the protected
material, (c) inform the person or persons to whom unauthorized disclosures
were made of all the terms of this agreement, and (d) request that such
person or persons execute the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A.
9.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE PROTECTED MATERIAL
When a producing party gives notice to receiving parties that certain
inadvertently produced material is subject to a claim of privilege or other
protection, the obligations of the receiving parties are those set forth in
Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended
to modify whatever procedure may be established in an e-discovery order or
agreement that provides for production without prior privilege review. The
parties stipulate to the entry of an order regarding the applicability of Fed.
R. Evid. 502(d) to this case, in the language set forth in the Order below.
10.

TERMINATION AND DESTRUCTION OF PROTECTED
DOCUMENTS

Except as otherwise prohibited by state or federal law, within 60 days
after the termination of this action, including all appeals, each receiving party
must certify destruction of all protected material to the producing party,
including all copies, extracts and summaries thereof. Notwithstanding this
provision, counsel are entitled to retain one archival copy of all documents
filed with

the court,

trial, deposition, and hearing transcripts,

correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials
contain protected material. The protection obligations imposed by this
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agreement shall remain in effect until a designating party agrees otherwise
in writing or a court orders otherwise. In the event protected material cannot
be destroyed at the conclusion of these proceedings, such material shall be
returned to the FBI, or maintained by the receiving party in such a way as to
ensure its continued protection. Additionally, in the event the receiving party
receives a request, pursuant to the Wisconsin Public Records Law, for any
documents protected by this Order, the receiving party shall give notice to
the FBI in sufficient time for the FBI to commence an action in the
appropriate court to enjoin disclosure.
11.

MISCELLANEOUS

11.1

Enforceability Upon Signing.

By signing this Stipulated

Protective Order, the parties agree to be bound by its terms unless and until
those terms are modified by order of the Court.
11.2

Prospective Applicability.

This order shall apply only

prospectively. All items or information identified or exchanged by and
among the parties prior to the enforceability of the Stipulated Protective
Order shall not be retrospectively classified as “Protected.”
11.3

Right to Further Relief. Nothing in this Order abridges the right

of any person to seek its modification by the court in the future.
11.4

Right to Assert Other Objections. By stipulating to the entry of

this Order no party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not
addressed in this Order. Similarly, no party waives any right to object on any
ground to use in evidence of any of the material covered by this Order.
11.5

Public Challenge to Confidentiality. An interested member of

the public may challenge by motion the sealing or redaction of any protected
information or material filed with the Court. The movant must accompany
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such a motion with the statement required by Civil L. R. 37. The FBI will be
provided notice of such a motion and the opportunity to respond before any
ruling is made.
IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the
production of any documents in this proceeding shall not, for the purposes
of this proceeding or any other proceeding in any other court, constitute a
waiver by the producing party of any privilege applicable to those
documents, including the attorney-client privilege, attorney work-product
protection, or any other privilege or protection recognized by law.
Dated at Milwaukee, Wisconsin, this 27th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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