Ripple v. Zurich Financial Services Group

Filing 27

PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 9/15/2017 GRANTING 24 Parties' Joint Request for Entry of Protective Order and SPECIFYING the terms as modified 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
THOMAS RIPPLE,
Plaintiff,
v.
ZURICH AMERICAN INSURANCE
COMPANY,

Case No. 17-CV-469-JPS

ORDER

Defendant.
On July 18, 2017, the parties filed a joint stipulation for entry of a
protective order. (Docket #24). The parties request that the Court enter a
protective order so that they 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 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 Nat’l Bank of Princeton, 178 F.3d at 945). The parties have
requested the protective order in this case in good faith; they seek the order
so that they might freely exchange sensitive information including, for
example, proprietary business information. See (Docket #13 at 4). The Court
thus finds that there is good cause to issue the requested protective order.
However, the Court finds that one slight change is necessary to
maintain compliance with the above-cited precedent. 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.
The Court has modified the parties’ proposed language to that effect. See
supra Paragraph 8.

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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,
Based on the parties’ joint stipulation, (Docket #24), 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 ORDERED that, pursuant to Fed. R. Civ. P. 26(c) and Civil L.
R. 26(e):
1.

The term “document” shall mean all written, recorded,

electronic or graphic material, however produced or reproduced,
pertaining in any way to the subject matter of this action.
2.

The Parties may designate as “Confidential” all or part of any

document they have generated or produced, by affixing the word
“CONFIDENTIAL” on the document in a manner that will not interfere
with the legibility or readability of the document. There shall be a
subcategory of confidential materials, identified as “Attorneys’ Eyes Only,”
designated by affixing the words “ATTORNEYS’ EYES ONLY” on the
document in a manner that will not interfere with the legibility or
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readability of the document, which shall be treated in the same manner as
confidential material pursuant to the terms of this Order, except with the
further restriction that such Attorneys’ Eyes Only material shall be
disclosed by the Parties only to outside attorneys working on this litigation
for the Parties, and the law clerks, paralegals, office clerks and secretaries
working under outside attorneys’ supervision, and to outside experts who
also agree to be bound by this Order. Together, these classes of confidential
material are herein referred to as “Confidential Information.”
3.

Designation as Confidential Information shall be made,

where practical, by marking each page of a document, each separate part or
component of a thing, or each separate item of other information in a
conspicuous manner. If it is not practical to mark each page of a document,
as in the case of a bound publication, the cover of such document shall be
so marked. If not practical to so mark the material itself, a container for, or
a tag attached to, the material shall be so marked.
4.

The Parties understand any designations hereunder shall be

made in compliance with, and limited by, the standards currently in place
in the Seventh Circuit. See, e.g., Hicklin Eng’g v. Bartell, 439 F.3d 346 (7th Cir.
2006); In re Sprecht, 622 F.3d 697 (7th Cir. 2010). Subject to those standards,
materials will be designated as Confidential Information only when a Party,
in good faith, believes it contains nonpublic technical, commercial,
financial, personal or business information, and only so designated and/or
redacted to the extent necessary to protect that information. Materials will
only be designated as Attorneys’ Eyes Only when a Party, in good faith,
believes that it contains confidential strategic, trade secret, product, or other
business information, the disclosure of which to employees or agents of an
opposing Party (aside from counsel) will or could cause substantial or
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irreparable harm, and only so designated and/or redacted to the extent
necessary to protect that information.
5.

For all documents produced after entry of this Order, the

designation of Confidential Information shall occur prior to or
contemporaneously with the production or disclosure of the document. For
documents produced for inspection at the location of the Parties’ facilities
or agents, the documents may be designated and marked Confidential
Information after inspection, but before they are copied and produced. For
those documents produced prior to entry of this Order, the Parties shall
have 15 days from the date of this Order within which to designate any
documents as Confidential Information. There will be no waiver of
confidentiality by the inspection of Confidential Information documents
before they are copied and marked Confidential Information pursuant to
this procedure.
6.

If testimony respecting Confidential Information is elicited

during a hearing or at trial, counsel for the Parties may request at the
hearing or trial that a designated portion of the transcript be treated as
Confidential Information. With respect to Confidential Information elicited
or disclosed during a deposition, designations of portions of the deposition
transcript as Confidential Information shall be made when the deposition
is taken or within 30 days following the delivery of a copy of the deposition
transcript to the Parties’ respective counsel.
7.

Confidential Information shall be used solely for the purposes

of this litigation, other proceeding related to this litigation, and not for any
other litigation, business, or other purpose whatsoever. All Confidential
Information and all copies of documents referring to Confidential
Information shall be kept by counsel in an appropriately safe place. All
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copies, duplicates, extracts, summaries or descriptions (hereinafter referred
to collectively as “copies’) of documents or information designated as
Confidential Information under this rule, or any portion thereof, shall be
immediately affixed with the words “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” if those words do not already appear thereon. Confidential
Information may be disclosed only to the extent necessary for conducting
this litigation, only when such disclosure is accompanied by a copy of this
Order, and only to the following persons (with the additional limitations
on “ATTORNEYS’ EYES ONLY” materials described above):
a.

Parties to this litigation;

b.

The attorneys of record for the Parties to this litigation

and their duly-authorized legal, paralegal, or stenographic
employee(s);
c.

Bona

Fide

third-party

consulting

experts

and

testifying, expert witnesses retained by counsel with respect
to any aspect of the prosecution or defense of this action, and
not for any other purpose, and who, in advance of any such
disclosure, have consented in writing to be bound by the
provisions of this Order;
d.

Non-party deposition witnesses at the time of

deposition whose testimony is or may be taken, provided that
prior to any disclosure, such witnesses have agreed in writing
to be bound by the terms of this Order;
e.

“ATTORNEYS’ EYES ONLY” materials shall only be

shown to a deposition witness at the time of deposition if the
witness is the producing party or agent thereof, or to a nonproducing party witness if it is apparent from the face of the
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document, or from testimony given by the witness before the
document is shown, that the witness either authored or
received the document;
f.

Court reporters, to the extent deemed necessary by

counsel; and
g.
8.

the Court.

The Parties shall not be obligated to challenge the propriety

of a confidentiality designation at the time made and a failure to do so shall
not preclude a subsequent challenge. In the event that any Party disagrees
at any stage of these proceedings with the propriety of a designation of
Confidential Information by the supplying Party, the Parties shall first try
to resolve such disagreement in good faith on an informal basis. Any Party
may, at any time, object to the designation of material as Confidential
Information by giving written notice identifying the material to which the
objection is directed.
If the Parties are unable to resolve their differences after reasonable
efforts, any Party may file an appropriate motion to determine whether the
disputed material should be treated as non-Confidential Information. In
addition, interested members of the public may also challenge the
designation of confidentiality by motion. The movant, whether it be a Party
or interested member of the public, 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.

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9.

No person, including any Party to this litigation, receiving

documents or deposition transcripts generated in this litigation or
discovery-related correspondence between counsel, shall reveal or discuss
any information which is deemed or marked Confidential Information
pursuant to this Order, to or with any person who is not entitled to receive
such information, as set forth above. To the extent 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 Information, these
papers or any portion thereof 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.
The party must simultaneously file unredacted copies under seal with the
Clerk of Court via the CM-ECF system. The parties shall act in good faith
in designating records to be filed, in whole or in part, under seal.
10.

No photocopies of Confidential Information shall be made

except for use by those persons with access to such material pursuant to
this Order. The Parties shall not retain Confidential Information outside of
the office of their attorneys, except as necessary for the preparation of this
action, and all such Confidential Information shall be returned to the
Parties’ counsel when such preparation is completed. Further, the Parties
shall treat all notes and memoranda concerning the contents of Confidential
Information produced as Confidential Information.
11.

The entry of this Order shall not be construed as: (a) an

agreement that any information designated as Confidential Information is,
in fact, confidential, even in the absence of an objection; (b) an agreement
by any Party to produce or supply any particular information; (c) a waiver
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by any Party of its right to object to any discovery sought by any other
Party; (d) a waiver of any privilege; or (e) a waiver to any objection as to
admissibility at trial. Production, receipt, or designation of Confidential
Information pursuant to this Order shall not be construed as a concession
by any Party that such information is relevant or material to any issue in
this case.
12.

Nothing in this Order shall prevent the Parties from agreeing

to seek Court approval for amendment of the Order.
13.

The Parties will be served by their own counsel with a copy

of this Order. It shall be the responsibility of the attorneys for the respective
Parties to this action to take all reasonable and proper steps to ensure strict
compliance with the provisions of this Order in their dealings with
Confidential Information, and it shall further be the responsibility of such
attorneys to take all reasonable and proper steps to ensure that this Order
and all its provisions are made known to any person who shall examine
Confidential Information.
14.

Inadvertent disclosure of Confidential Information to an

opposing Party without identifying the same as Confidential Information
shall not be deemed a waiver of confidentiality with regard to the material
inadvertently disclosed, nor shall it be deemed a waiver of confidentiality
with regard to similar material. Any such material inadvertently disclosed
and designated shall, upon receipt by the receiving Party of notice of the
inadvertent disclosure, be returned to the disclosing Party promptly for
appropriate marking. The receiving Party shall keep no copies or
reproductions, shall make no use whatsoever of the material inadvertently
disclosed, and shall treat the documents as Confidential Information from
the time the materials are designated as such orally or in writing. If, prior
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to receiving such notice, the receiving Party has disseminated the
Confidential Information to individuals not authorized to receive it
hereunder, it shall make a reasonable effort to retrieve the Confidential
Information or to otherwise assure that the recipient(s) maintain the
confidentiality of the Confidential Information.
15.

Within 30 days of demand after the termination of this action

by settlement, trial, or otherwise (including all appeals), counsel for the
Parties and all other persons who have possession or control of Confidential
Information, including but not limited to any notes or other transcriptions
made from them, shall return such materials to the attorney of the Party
who designated such matter as Confidential Information, or upon
agreement of the Parties such materials may be destroyed by the Party to
whom the Confidential Information was produced. However, nothing in
this paragraph is intended to or shall require counsel to act contrary to or
inconsistent with any ethical obligations or requirements concerning the
retention of client files. Counsel are not required to destroy or return legal
memoranda, pleadings, or other work product that may contain references
to or information extracted from Confidential Information, and all such
documents may be retained in the attorney’s or Court’s files subject to the
terms of this Order.
All provisions of this Order shall be binding during the pendency of,
and after the conclusion of, this action.
Dated at Milwaukee, Wisconsin, this 15th day of September, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge
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