Defalico v. Aldridge Pite Haan LLP
Filing
19
PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 6/19/2017 GRANTING 17 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. (cc: all counsel)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEE DEFALICO,
Plaintiff,
Case No. 17-CV-568-JPS
v.
ALDRIDGE PITE HAAN, LLP,
ORDER
Defendant.
On June 14, 2017, the parties filed a joint motion for entry of a
protective order. (Docket #17). 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, balance sheets, bank records, and other financial information, as
well as information related to the identities of putative class members.
(Docket #17 at 1-2). 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,
Page 2 of 10
L.C., 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 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,
Based on the parties’ joint motion, (Docket #17), 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):
(A)
DESIGNATION OF CONFIDENTIAL OR ATTORNEYS’
EYES ONLY INFORMATION. Designation of information under this Order
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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.”
(1)
One who produces information, documents, or other
material may designate them as “CONFIDENTIAL” when the
person in good faith believes they contain trade secrets or nonpublic
confidential technical, commercial, financial, personal, or business
information.
(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 trade secrets or other 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 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
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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
INFORMATION. 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
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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.
(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 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 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 advance of the disclosure of the
confidential information, documents or other material.
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(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.
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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, those 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 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.
(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
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party 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 must
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 19th day of June, 2017.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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