George et al v. CNH Health & Welfare Benefit Plan et al

Filing 18

PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 2/15/2017 GRANTING 17 Parties' Joint Request for Entry of a Protective Order and specifying the terms for confidential information produced or disclosed during this matter. See Order for further details. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRENTEN GEORGE and DENISE
VALENTE-MCGEE,
Case No. 16-CV-1678-JPS
Plaintiffs,
v.
CNH HEALTH & WELFARE BENEFIT
PLAN, CNH EMPLOYEE GROUP
INSURANCE PLAN, CASE NEW
HOLLAND INC., and BLUE CROSS
BLUE SHIELD OF WISCONSIN,

ORDER

Defendants.
On February 14, 2017, in connection with the submission of their Rule
26(f) report, the parties jointly requested entry of a protective order. (Docket
#17 at 5). 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. Am. Tel. & Tel. 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. This case involves payment of benefits under ERISA-governed
employee benefit plans. (Docket #17 at 1-2). This will entail disclosure of
sensitive employee and business information. Id. at 3. 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
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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 (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.
Accordingly,
IT IS ORDERED that based on the joint request of the parties (Docket
#17 at 5) 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
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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
confidential information as CONFIDENTIAL or ATTORNEYS’ EYES
ONLY must be made prior to, or contemporaneously with, their
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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,
identifying the information, document or other material in question
and of the corrected confidential designation.
(B)

DISCLOSURE AND USE OF CONFIDENTIAL INFORPage 5 of 10

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
the litigation in which the information was disclosed who are
identified as such in writing to counsel for the other parties in

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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
third party under this Order to any other person or entity, except that
disclosures may be made in the following circumstances:
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(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.
(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
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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
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
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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 15th day of February, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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