Castle Senior Living Inc. v. City of Delafield

Filing 23

PROTECTIVE ORDER signed by Magistrate Judge William E Duffin on 11/17/2022 GRANTING 22 Stipulated Motion for Protective Order. (cc: all counsel)(lz)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
CASTLE SENIOR LIVING, INC.,
v.

Plaintiff,

Case No. 21-cv-1040

CITY OF DELAFIELD,
Defendant.
PROTECTIVE ORDER

Based on the Stipulation of the parties and the factual representations set forth
therein, the Court finds that the 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;
provided, however that this Order applies to discovery, and not to information filed with
the Court, unless a party moves for a protective order and establishes a good-faith basis
to seal specific information from the public record under the standards set forth in this

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Circuit for sealing such information. See, e.g., Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346,
348-49 (7th Cir. 2006).
IT IS THEREFORE ORDERED THAT, pursuant to Federal Rule of Civil
Procedure 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 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
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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, 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
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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).
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 counsel for the parties, employees

and independent contractors of counsel, or, when the party is a government
entity, employees and independent contractors of the government entity,
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who have direct functional responsibility for the preparation and trial of the
lawsuit. Any such employee or independent contractor 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.
(c)

Disclosure may be made to court reporters engaged for

depositions and those persons, if any, specifically engaged for the limited
purpose of making and handling 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.
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(e)

Disclosure may be made to deposition and trial witnesses in

connection with their testimony in the lawsuit and may be made 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)

The list of persons to whom CONFIDENTIAL information

may be disclosed identified in this Paragraph (B)(1) may be expanded or
modified by mutual agreement in writing by counsel for the parties to this
action without the necessity of modifying this Stipulation and Protective
Order.
(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 and

independent contractors of counsel, for the parties who have direct
functional responsibility for the preparation and trial of the lawsuit. Any
such employee or independent contractor to whom outside counsel for the
parties makes a disclosure must be advised of, and become subject to, the
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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 and handling 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 independent consultants or

experts and their staff who are not employed by or affiliated with a party
and who are retained either as consultants or expert witnesses for the
purpose of this litigation. Before disclosure to any independent consultant
or expert, the consultant or expert must be informed of and agree in writing
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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(g)

The list of persons to whom ATTORNEYS’ EYES ONLY

information may be disclosed identified in this Paragraph (B)(2) may be
expanded or modified by mutual agreement in writing by counsel for the
parties to this action without the necessity of modifying this Stipulation and
Protective Order.
(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 L. R. 79(d) with an accompanying motion setting forth a basis for filing under the

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current legal standards for such a filing (as set forth in Hicklin Eng’g, L.C. v. Bartell, 439 F.3d

346, 348-49 (7th Cir. 2006).)
(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. 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.
(D)

CHALLENGES TO CONFIDENTIALITY DESIGNATION. A party 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 party prevailing on any
such motion actual attorney fees and costs attributable to the motion.
(E)

NO WAIVER OF PRIVILEGES. This Stipulation and Protective Order is

also entered pursuant to Rule 502(d) of the Federal Rules of Evidence. Subject to the
provisions of this Stipulation and Protective Order, if a party (the “Disclosing Party”)
discloses information in connection with the pending litigation that the Disclosing Party
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thereafter claims to be privileged or protected by the attorney-client privilege or work
product protection (“Protected Information”), the disclosure of that Protected
Information will not constitute or be deemed a waiver or forfeiture—in this or any other
action—of any claim of privilege or work product protection that the Disclosing Party
would otherwise be entitled to assert with respect to the Protected Information and its
subject matter.
(F)

CONCLUSION OF LITIGATION.

Within thirty (30) days of 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 destroyed, unless otherwise provided by law. Notwithstanding
the requirements of this paragraph, outside counsel for each party may retain a complete
set of all documents, subject to all other restrictions of this Order.
Dated at Milwaukee, Wisconsin this 17th day of November, 2022.

_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge

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