Belcher v. Springfield College

Filing 24

PROTECTIVE ORDER signed by Judge J.P. Stadtmueller on 11/21/2017 GRANTING 23 Parties' Joint Request for Entry of a 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
ALICE BELCHER,

v.

Plaintiff,

Case No. 17-CV-1086-JPS

SPRINGFIELD COLLEGE,
Defendant.

PROTECTIVE ORDER

On November 16, 2017, the parties jointly requested entry of a
stipulated protective order and submitted a proposed draft of the order.
(Docket #23). 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. 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 Civ. 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); 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 that the order is narrowly tailored to serve 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 demonstrate the existence of
good cause). The Court can find that even 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).
The parties have requested the protective order in this case in good
faith. The parties report that this case will entail the disclosure of
confidential and sensitive information. See (Docket #23). Although the
nature of the sensitive information could be better explained, the Court is
satisfied that there exists a sufficient basis for the requested protective
order.
The

parties’

proposed

protective

order,

however,

appears

overbroad. It provides that, if the parties need to file documents containing
confidential information with the Court, they may do so by filing the
documents under seal. In other words, 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
Page 2 of 9

at 348. While the Court understands that some documents will need to be
sealed entirely, others may contain only small amounts of confidential
information, and so redaction of that information 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 it subscribes to the view that its
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.
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’ proposed order.
Accordingly,
Pursuant to the joint request of the parties (Docket #23), 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 a protective order governing the
confidentiality of documents produced in discovery, answers to
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interrogatories, answers to requests for admission, and deposition
testimony.
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.”
(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
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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

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).
Page 5 of 9

(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 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.
(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.
Page 6 of 9

(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 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

Page 7 of 9

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 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, 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. The parties shall act in good faith in designating records to
be filed, in whole or in part, under seal. If a Court filing contains
information, documents, or other materials that were designated
Page 8 of 9

“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” by a third party, the
party making the filing shall provide notice of the filing to the third party.
(D) CHALLENGES TO CONFIDENTIALITY DESIGNATION. A
party or any 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
movant 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 21st day of November, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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