UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
ANNA GILL,
Plaintiff, v. Case No. 21-CV-631-JPS
ALIGN TECHNOLOGY, INC., PROTECTIVE Defendant. ORDER
On June 3, 2022, the parties filed a joint motion for the entry of a protective order, with a stipulated proposed order attached. ECF Nos. 30 and 31. The parties request that the Court enter such an order because discovery may reveal information that is “non-public and confidential,” including information about Defendant’s business practices, marketing, and trade secrets or “about the parties and third parties’ businesses generally.” ECF No. 30 at 1–2. Federal Rule of Civil Procedure Rule 26(c) allows for an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” including “requiring that a trade secret or other confidential research, development, or commercial information . . . be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G); see also Civ. L.R. 26(e). Protective orders are 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. Cnty. Materials Corp. v. Allan Block Corp., 502 F.3d 730, 740 (7th Cir. 2006). The Court finds that the parties have jointly requested the protective order in this action in good faith. The parties report that this case will entail the exchange of sensitive information about the parties or third parties. ECF No. 30. Thus, the Court is satisfied that there exists a sufficient basis for the requested protective order. Because the parties’ proposed protective order adequately complies with the standards set forth above, the Court will enter an order based on the parties’ submission. The Court makes two main modifications to the parties’ protective order: (1) to clarify the difference between a “restricted” document and a “sealed” document, and (2) to allow both parties and interested members of the public to challenge the designation of confidentiality by motion. Accordingly, IT IS ORDERED that the parties’ stipulated motion for a protective order, ECF No. 30, be and the same is hereby GRANTED; IT IS FURTHER ORDERED 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 trade secrets or 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 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). 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.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
ANNA GILL,
Plaintiff, v. Case No. 21-CV-631-JPS
ALIGN TECHNOLOGY, INC., PROTECTIVE Defendant. ORDER
On June 3, 2022, the parties filed a joint motion for the entry of a protective order, with a stipulated proposed order attached. ECF Nos. 30 and 31. The parties request that the Court enter such an order because discovery may reveal information that is “non-public and confidential,” including information about Defendant’s business practices, marketing, and trade secrets or “about the parties and third parties’ businesses generally.” ECF No. 30 at 1–2. Federal Rule of Civil Procedure Rule 26(c) allows for an order “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” including “requiring that a trade secret or other confidential research, development, or commercial information . . . be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1)(G); see also Civ. L.R. 26(e). Protective orders are 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. Cnty. Materials Corp. v. Allan Block Corp., 502 F.3d 730, 740 (7th Cir. 2006). The Court finds that the parties have jointly requested the protective order in this action in good faith. The parties report that this case will entail the exchange of sensitive information about the parties or third parties. ECF No. 30. Thus, the Court is satisfied that there exists a sufficient basis for the requested protective order. Because the parties’ proposed protective order adequately complies with the standards set forth above, the Court will enter an order based on the parties’ submission. The Court makes two main modifications to the parties’ protective order: (1) to clarify the difference between a “restricted” document and a “sealed” document, and (2) to allow both parties and interested members of the public to challenge the designation of confidentiality by motion. Accordingly, IT IS ORDERED that the parties’ stipulated motion for a protective order, ECF No. 30, be and the same is hereby GRANTED; IT IS FURTHER ORDERED 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 trade secrets or 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 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). 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. (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 any of the parties’ insurers, auditors, rating agencies, reinsurers, retrocessionaires, or state and/or federal regulator of any of their respective insurance companies, provided that those entities agree to the terms of this Order. (e) 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. (f) 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. (g) 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 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) Filing Protected Material. Parties may seek to have a document either “restricted” or “sealed.” Gen. L.R. 79(d)(1). Restricted documents can be accessed only by the Court and counsel for both parties, whereas only the Court can access sealed documents. Id. 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 or restrict a document, either in part or in full, they must file a motion to seal or restrict that document, together with a redacted copy on the record. They must also simultaneously file unredacted copies under seal or as a restricted document 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 or as a restricted document. 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. (1) Meet and Confer. A party that elects to initiate a challenge to a designating party’s confidentiality designation must do so in good faith and must confer directly (in voice to voice dialogue or via email or letter) with counsel for the designating party. In conferring, the challenging party must explain the basis for its belief that the confidentiality designation was not proper and must give the designating party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A challenging party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first. (2) Judicial Intervention. A challenging party that elects to press a challenge to a confidentiality designation after considering the justification offered by the designating party may, within fourteen (14) days after the meet and confer process ends, move the Court for an Order determining whether the item has been properly designated as confidential, identifying the challenged material and setting forth in detail the basis for the challenge. Each such motion must be accompanied by an attestation that affirms that (1) the movant has complied with the meet and confer requirements imposed in the preceding paragraph; (2) the material has been maintained as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” while the dispute is being resolved; and (3) sets forth with specificity the justification for the confidentiality designation that was given by the designating party during the meet and confer process. (3) Public’s Right to Challenge. An 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 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. (E) CLAWBACK AGREEMENT. Pursuant to Federal Rule of Evidence FRE 502(d) and (e), the parties agree to and the Court orders protection of privileged and otherwise protected documents against claims of waiver (including as against third parties and in other federal and state proceedings) as follows: (1) The disclosure or production of any document in this action shall not result in the waiver of any privilege, evidentiary protection or other protection associated with such document as to the receiving party or any third parties, and shall not result in any waiver, including subject matter waiver, of any kind. (2) If, during the course of this litigation, a party determines it has produced a protected document: (a) The producing party may notify the receiving party of such production in writing, and demand the return of such documents. The producing party’s written notice will identify the protected document produced by bates number range, the privilege or protection claimed, and the basis for the assertion of the privilege or other protection. In the event that any portion of the protected document does not contain privileged or protected information, the producing party shall also provide to the receiving party a redacted copy of the document that omits the information that the producing party believes is subject to a claim of privilege or other protection. (b) The receiving party must, within ten (10) days of receiving the producing party’s written notification described above, return, sequester, or destroy the protected document and any copies, along with any notes, abstracts or compilations of the content thereof. To the extent that a protected document has been loaded into a litigation review database under the control of the receiving party, the receiving party shall have all electronic copies of the protected document extracted from the database. (3) The receiving party’s return, sequestering or destruction of protected documents as provided herein will not act as a waiver of the receiving party’s right to move for the production of the returned, sequestered or destroyed documents on the grounds that the documents are not, in fact, subject to a viable claim of privilege or protection. Any such challenge shall proceed under the same procedure as set forth above in Section (D) that applies to challenges to confidentiality designations of documents. (4) By operation of the parties’ agreement and this Order, the parties are specifically afforded the protections of Federal Rule of Evidence 502 (d) and (e). Dated at Milwaukee, Wisconsin, this 5th day of July, 2022. BY THE GOURT: AAV ye AR J. Stad eller
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U.S. District Judge