Woodward v. Audit Systems Inc
Filing
13
ORDER signed by Judge J.P. Stadtmueller on 7/17/2017 GRANTING 12 Parties' Joint Motion for 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
MARANDA WOODWARD,
v.
Plaintiff,
Case No. 17-CV-736-JPS-JPS
AUDIT SYSTEMS INC.,
Defendant.
ORDER
On July 14, 2017, the parties filed a joint motion for entry of a
protective order. (Docket #12). 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.
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. (Docket #12 at 1).
This includes financial data for Defendant and the identifying information
of putative members of Plaintiff’s proposed class. Id. at 2. The Court thus
finds that there is good cause to issue the requested protective order.
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,
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IT IS ORDERED that based on the parties’ joint motion, (Docket
#12), and the 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; and
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 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
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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 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,
representatives
will
employees,
be
deemed
agents,
experts,
confidential
and
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
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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
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
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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.
(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.
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(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:
(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
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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 in subparagraph (B), counsel for the parties must keep all
information, documents, or other material designated as confidential that
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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 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 17th day of July, 2017.
BY THE COURT:
____________________________________
J. P. Stadtmueller
U.S. District Judge
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