Collins et al v. City of Milwaukee et al
Filing
22
PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 6/14/2017 GRANTING 21 Parties' Joint Motion for Protective Order and SPECIFYING the terms as modified for confidential information produced or disclosed during this matter. See Order for further details. (Attachments: # 1 Exhibit A to Protective Order) (cc: all counsel) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES COLLINS, TRACY
ADAMS, on behalf of her minor child,
D.A., CALEB ROBERTS, STEPHEN
JANSEN, GREGORY CHAMBERS,
ALICIA SILVESTRE, JERIMIAH
OLIVAR, DAVID CROWLEY, and
JEREMY BROWN,
v.
Case No. 17-CV-234-JPS
Plaintiffs,
CITY OF MILWAUKEE,
MILWAUKEE FIRE AND POLICE
COMMISSION, and CHIEF EDWARD
FLYNN, in his official capacity as the
Chief of the Milwaukee Police
Department,
ORDER
Defendants.
On June 7, 2016, the parties jointly requested entry of a stipulated
protective order and submitted a proposed draft of the order. (Docket #21).
The parties request that the Court enter such an order so that they may
avoid the public disclosure of confidential information and documents. Id.
at 1–2. Federal Rule of Civil Procedure 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); see also 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); Citizens First, 178 F.3d at 945; Jepson,
Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (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.
County Materials Corp. v. Allan Block Corp., 502 F.3d 730, 740 (7th Cir. 2006)
(citing Citizens First, 178 F.3d at 945).
The parties have requested the protective order in this case in good
faith. This case involves alleged constitutional violations arising from the
City of Milwaukee police force’s stop-and-frisk policies. Information
implicated in this case includes personally identifying information and
criminal histories for numerous individuals, including minors, confidential
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informants, crime victims, City employees, and others. The case also
concerns the City’s financial information. These are sufficient bases for the
requested protective order.
The
parties’
proposed
protective
order,
however,
appears
overbroad. It provides that, if the parties need to file any such
documentation with the Court, they may do so by filing the documents with
the Court under seal. In other words, it appears that the parties wish to be
able to seal—in their entirety—any documents that contain sensitive
information. 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, 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, thus, has crafted its own protective order to enter in this
case. The Court’s protective order still allows the parties to file documents
under seal, but does not presume that every confidential document should
be filed under seal in its entirety. Rather, it contemplates that the parties
will use their judgment to determine the best way to protect confidential
information in submitted documents. The order also includes 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 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
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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’ joint motion and proposed
order to the Court.
Accordingly,
Pursuant to the joint motion of the parties (Docket #21), 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.
This Protective Order shall apply to all information and documents
disclosed by the parties, either voluntarily or pursuant to a request for the
production of documents or a subpoena duces tecum, in the course of this
litigation, whether written, electronic, oral, visual, or contained in
documents, transcripts, or in any other form.
IT IS THEREFORE ORDERED that, pursuant to Civil Local Rule
26(e) and Federal Rule of Civil Procedure 26(c)(1)(D),
(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.”
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(1) One who produces information, documents, or other material
may designate them as “CONFIDENTIAL” when the person in good faith
believes they contain the following types of information:
(a) personally-identifying 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; and
credit histories;
(e) health-care-related information, including information
related to physical, psychological or general medical care or
treatment (including psychotherapy or other counseling, and
substance abuse or substance abuse 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 any City of Milwaukee
employee or named Plaintiff;
(h) information related to divorce or child custody disputes;
(i) information which can in any way identify the victim of a
sexual assault, attempted sexual assault, rape, attempted rape, or
domestic violence;
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(j) information which is required to be treated as confidential
pursuant to statute or common law, including but not limited to
applicable domestic and foreign data privacy laws;
(k) personnel or employment records of a person who is not a
party to the case;
(l) identities of individuals, excluding the named Plaintiffs,
who were stopped by police;
(m) data that contains identifying information such as tattoos
with full names or statements in any “narrative” fields that could
identify the individual stopped; and
(n) information concerning any internal investigation,
discipline, or training of any individual, including but not limited to,
individual background investigation reports, drug screening, or
records of performance or training after hire.
(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 particularly sensitive nonpublic
confidential law enforcement information (i.e., information that is integral
to the safety of police officers and their families, including but not limited
to information regarding the locations of police officer deployment posts
and police officer deployment maps) 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 production or
disclosure. In the event that information, documents, ESI or other materials
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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.
(B)
DISCLOSURE
AND
USE
OF
CONFIDENTIAL
INFORMATION. Information, documents, or other materials 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 materials were
disclosed (including appeals). The parties must not disclose information,
documents, or other material designated as confidential to putative class
members not named as plaintiffs in putative class litigation unless and until
one or more classes have been certified. 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.
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Once designated as “CONFIDENTIAL” or “ATTORNEYS EYES ONLY,”
such designated testimony, information, or documents, including any
portion thereof and any summaries, abstracts, or other information derived
therefrom, shall be used solely for the purposes directly related to the
prosecution or defense of the above-captioned lawsuit, and not for any
governmental purpose or function whatsoever, and not in connection with
any other action or proceeding.
(1) CONFIDENTIAL INFORMATION. The Parties and counsel for
the Parties must not disclose or permit the disclosure of any information,
documents or other materials 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 the Parties and the Parties’
counsel.
(b) Disclosure may be made to employees of counsel for the
Parties or, when the Party is a government entity, employees of the
government, 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 materials be held in confidence,
and must complete the Confidentiality Agreement, attached hereto
as Exhibit A.
(c) 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.
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(d) 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.
(e) 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 and
must complete the Confidentiality Agreement, attached hereto as
Exhibit A. 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.
(g) Disclosure may be made to any other individual, provided
that the Party who designated the material as CONFIDENTIAL
consents to the disclosure.
(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 materials 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:
(a) Disclosure may be made to the parties’ counsel.
(b) Disclosure may be made to employees of counsel for the
Parties who have direct functional responsibility for the preparation
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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 and must
complete the Confidentiality Agreement, attached hereto as Exhibit
A.
(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.
(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 and
must complete the Confidentiality Agreement, attached hereto as
Exhibit A.
(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
ATTORNEYS
EYES
ONLY
information.
(g) Disclosure may be made to any other individual, provided
that the Party who designated the material as “ATTORNEYS EYES
ONLY” consents to the disclosure.
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(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 answers to interrogatories, transcripts of
depositions, responses to requests for admissions, or any other papers filed
or to be filed with the Court reveal or tend to reveal information claimed to
be confidential, these papers or any portion thereof must be filed under seal
by the filing party with the Clerk of Court utilizing the procedures set forth
in General Local Rule 79(d). If a court filing contains information,
documents, or other materials that were designated “CONFIDENTIAL” or
“ATTORNEYS EYES ONLY” by a third party, the Party making the filing
shall provide notice of the filing to the third party.
To the extent that any of such records 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 rule
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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 may challenge the designation of material as “CONFIDENTIAL” or
“ATTORNEYS EYES ONLY” by sending written notice to the designating
Party specifying the information as to which such removal is sought and
the legal and/or factual basis for the request. Within ten (10) days of such
notice, the Parties shall meet and confer. If the Parties cannot reach
agreement concerning the matter within ten (10) days after notice, then the
designating Party may file a motion. The movant must accompany such a
motion with the statement required by Civil Local Rule 37. The designating
Party bears the burden of proving that the information, documents, or other
material at issue are properly designated as confidential. Any such motion
must be filed and served within ten (10) days after the expiration of the 10day period for reaching agreement referred to previously or as otherwise
agreed to by the Parties in writing.
Additionally, an interested member of the public may challenge a
designation of confidentiality by motion. The movant must accompany
such a motion with the statement required by Civil Local Rule 37. The party
prevailing on any such motion is entitled to recover as costs its actual
attorney fees and costs attributable to the motion.
(E) INADVERTENT DISCLOSURE OF CONFIDENTIAL OR
ATTORNEYS EYES ONLY OR PRIVILEGED INFORMATION. A Party
who has inadvertently failed to designate certain documents or information
as “CONFIDENTIAL” or “ATTORNEYS EYES ONLY” may do so after the
discovery of the inadvertent failure to designate, without waiving the
CONFIDENTIAL or ATTORNEYS EYES ONLY status of those documents
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or information. Thereafter, the receiving Party must return the original
information and all copies of the same to the producing Party, sequester the
original information and all copies of the same, or add the appropriate
designation to the original information and all copies of the same. A Party
who has inadvertently produced privileged information does not waive
any privilege or protection from discovery in this case or in any other
federal or state proceeding. For example, the mere production of privilegeor work-product-protected documents in this case as part of a large
production is not itself a waiver in this case or any other federal or state
proceeding. A producing party may assert privilege or protection over
produced documents within thirty (30) days of production by notifying the
receiving party in writing of the assertion of privilege or protection. In
addition, information that contains privileged matter or attorney work
product shall be immediately sequestered if such information appears on
its face to have been inadvertently produced. When any Party identifies
such privileged or protected information, the Party that received the
privileged document or information: (1) shall not use, and shall
immediately cease any prior use of, such information; (2) shall take
reasonable steps to retrieve the information from others to which the
receiving Party disclosed the information; (3) shall within five (5) business
days of the producing Party’s request sequester the information and all
copies thereof; and (4) shall confirm to the producing Party the sequester of
all copies of the information. Only after complying with steps 1 through 4
above, may the receiving party challenge any claim of privilege or
protection by the producing party.
(F) Nothing herein shall be construed to affect in any way the
admissibility of any testimony, document, or other evidence.
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(G) Nothing herein shall be construed to limit in any way any Party’s
use of its own CONFIDENTIAL information.
(H) 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.
(I) This Protective Order shall continue in effect after termination of
this action and continue to be binding on all persons to whom
CONFIDENTIAL information was disclosed.
(J) If CONFIDENTIAL information is disclosed to or comes into the
possession of any person other than in the manner authorized in this
Protective Order, the Party responsible for the disclosure must immediately
inform the other persons in possession of such CONFIDENTIAL
information pursuant to the terms of this Protective Order of all pertinent
facts relating to such disclosure and shall make reasonable efforts to
prevent further disclosure by each unauthorized person who received
CONFIDENTIAL information.
(K) Any person in possession of CONFIDENTIAL information who
receives a public records request or subpoena (or other process) from any
person (including natural persons, corporations, partnerships, firms,
governmental agencies, departments, bodies, boards, or associations) who
is not a party to this Protective Order, seeking production or other
disclosure of another party’s CONFIDENTIAL information, shall promptly
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give telephonic notice and written notice to counsel for the designating
party, person or entity, enclosing a copy of the subpoena or other process.
In no event shall production or other disclosures be made before the later
of (a) thirty (30) days following the date on which notice is given, or (b) the
return date of the subpoena, unless otherwise required by applicable law
or by court order.
Dated at Milwaukee, Wisconsin, this 14th day of June, 2017.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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