Opinion
Case No. 2:12-cv-14344-GCS-MAR
01-04-2013
LEHMAN BROTHERS HOLDINGS, INC., a Delaware corporation, Plaintiff, v. STEPHEN O'LEARY, an individual, and ACME APPRAISAL COMPANY, a Michigan corporation, Defendants.
JAMES R. BRUINSMA (P48531) MYERS NELSON DILLON & SHIERK, PLLC Attorneys for Plaintiff DORA A. WILKERSON (P49088) MADELEINE R. SZYMANSKI (P55567) RUTLEDGE, MANION, RABAUT, TERRY & THOMAS, P.C. Attorneys for Defendants
Hon. George Caram Steeh
JAMES R. BRUINSMA (P48531)
MYERS NELSON DILLON &
SHIERK, PLLC
Attorneys for Plaintiff
DORA A. WILKERSON (P49088)
MADELEINE R. SZYMANSKI (P55567)
RUTLEDGE, MANION, RABAUT,
TERRY & THOMAS, P.C.
Attorneys for Defendants
STIPULATED PROTECTIVE ORDER
To promote the efficient administration of this case and to adequately protect information and material entitled to be kept confidential, and to ensure that protection is afforded only to material so entitled, and upon stipulation of the parties, the Court, pursuant to its authority under Rule 26(c) of the Federal Rules of Civil Procedure, hereby orders as follows: 1. Nondisclosure of Confidential Documents and Confidential Information. Except as provided herein, Confidential Documents or Confidential Information, as defined herein, shall not be disclosed to any person.
2. Definitions and Designation of Confidential Materials. The term "document" as used herein shall include all documents and things as described in Fed. R. Civ. P. 34(a). A "Confidential Document" means any document which bears the legend (or which shall otherwise have had the legend recorded upon it in a way that brings it to the attention of a reasonable examiner): "Confidential." Except as limited by paragraph 14 herein, Confidential Documents shall be designated as such concurrently with the disclosure of the documents. "Confidential Information" means any oral or non-documentary information designated confidential at any deposition or hearing, or in writing within seven days of such deposition or hearing by the declarant or his or her counsel, provided that any designation of oral or non-documentary information as confidential shall be specific as to the portion to be protected. "Confidential Materials" means Confidential Documents and/or Confidential Information.
3. Limitation on Matters Subject to Confidentiality. Any party may designate documents or information as Confidential, but only after an attorney for the party, or the party itself if appearing pro se, has determined in good faith that the documents or information contain consumer nonpublic personal information (as defined by 15 U.S.C. § 6809), trade secrets or other confidential or proprietary research; matters related to company security; current and projected sales data; information related to sales and marketing strategies; information related to pricing and pricing strategies; production data and information; information relating to mergers and acquisitions; personnel records and information; financial information not publicly filed with any federal or state regulatory authority; and information related to any complaint and/or investigation not publicly filed with any federal or state regulatory authority. If any party believes material not described above should nevertheless be considered confidential, it may seek a stipulation among the parties to treat such document or information as Confidential or it may make an appropriate application to the Court. Material shall not be treated as Confidential, whether or not it has been designated as such, if it is available in a public record, generally known or available to the public or in the industry of the producing party, or was available to the recipient on a non-confidential basis from a person other than the discloser or employee of the discloser who is not otherwise bound by this Confidentiality Stipulation and Agreement or is not otherwise prohibited from transmitting the information to the recipient, or was disclosed with the consent of the discloser.
4. Permissible Disclosure. Confidential Materials shall only be shown to or shared with (1) counsel for the parties and their agents and/or employees; (2) the parties; (3) the parties' experts and their agents and/or employees; (4) actual or proposed witnesses; (5) court personnel; (6) any party's internal public auditor, regulator, or other governmental entity with jurisdictional authority over the recipient; (7) any insurance company potentially responsible for indemnifying a party for defense costs or a judgment in this proceeding; (8) any arbitrator or mediator if this case is submitted to arbitration or mediation; or (9) other persons whom the attorneys deem reasonably necessary to review the documents for the prosecution or defense of this lawsuit. Nothing in this Confidentiality Stipulation and Agreement shall restrict the use of Confidential Materials during trial, subject to an objection of a party opposing the introduction of Confidential Materials as evidence during trial. Each person who is permitted to see or is informed of Confidential Materials shall be shown a copy of this Confidentiality Stipulation and Agreement and shall be advised, by counsel showing the person Confidential Materials, of this Confidentiality Stipulation and Agreement and each person's obligation to maintain the Confidential designation. For each such person, counsel shall document in written form that he or she has advised that person in accordance with this paragraph.
5. Declassification. If a party believes that material designated or sought to be designated Confidential by the producing party does not warrant such designation, the party shall first make a good-faith effort to resolve such a dispute with opposing counsel. In the event that such a dispute cannot be resolved by the parties, either party may apply to the Court for a determination as to whether the designation is appropriate. The burden rests on the party seeking Confidentiality to demonstrate that such designation is proper.
6. Withdrawal of Confidentiality. A party may withdraw its own "Confidential" designation of any Confidential Materials, except to the extent that it contains consumer nonpublic personal information (as defined by 15 U.S.C. § 6809). Such withdrawal may be made by filing (not under seal) its own Confidential Materials or made in a writing served upon the parties to this action that specifically identifies the Confidential Materials that shall no longer be treated as "Confidential" pursuant to this Confidentiality Stipulation and Agreement. Any withdrawal under this paragraph is limited to the material filed or specified.
7. Subpoena by Other Courts or Agencies. This Confidentiality Stipulation and Agreement shall not prevent the production of Confidential Materials if another court or administrative agency subpoenas or orders production of Confidential Materials that a party has obtained under the terms of this Confidentiality Stipulation and Agreement. If a party is ordered to produce Confidential Materials by another court or an administrative agency, that party shall promptly notify the party or other person who designated the material as confidential of the receipt of such subpoena or order.
8. Filing. Confidential Materials may be filed with the Court if the materials have been designated Confidential solely because they contain consumer nonpublic personal information (as defined by 15 U.S.C. § 6809) and all consumer nonpublic personal information has been redacted prior to filing. If a party wishes to file other materials that have been designated Confidential by another party, the party may apply to the Court for a determination as to whether the materials may be filed under seal or submit a proposed stipulated order to authorize sealing. Confidential Materials may be sealed only if authorized by statute, rule, or order of the Court. A motion or stipulated order to authorize sealing must: (i) state the authority for sealing; (ii) state an identification and description of each item proposed for sealing; (iii) state the reason that sealing each item is necessary; (iv) state the reason that a means other than sealing is not available or unsatisfactory to preserve the interest advanced by the movant in support of the seal; and (v) have a supporting brief. See Local Rule 5.3. The movant shall not file or otherwise tender to the Clerk any item proposed for sealing unless the Court has granted the motion required by this section. Whenever a motion to seal is filed, the movant shall submit a proposed order which states the particular reason the seal is required. The proposed order shall be submitted to the judge to whom the case is assigned or to the magistrate judge to whom the matter is referred. If a motion to seal is granted, the documents to be filed under seal shall be filed electronically by the movant. Any filing of Confidential Materials shall be done in accordance with L.R. 5.3, 26.2, and 26.4.
Prior to filing a motion seeking to file materials under seal, the party seeking to file under seal shall first make a good-faith effort to resolve such a dispute with opposing counsel.
9. Use. Persons obtaining access to Confidential Materials under this Confidentiality Stipulation and Agreement shall use the documents and information only for the purposes of this litigation, including the prosecution, defense, settlement, and appeal thereof, or for any other litigation or dispute involving the producing party (or any of its affiliates) and the recipient (or any of its affiliates) of Confidential Materials. Nothing in this Confidentiality Stipulation and Agreement shall prevent any party from disclosing Confidential Materials that were produced by that party (including but not limited to the testimony of any officer, director, or employee of such party) in any manner it deems appropriate. Except as set forth in paragraph six of this Confidentiality Stipulation and Agreement, any such disclosure shall not be deemed a waiver of any other party's obligations under this Confidentiality Stipulation and Agreement.
10. Non-Termination. The provisions of this Confidentiality Stipulation and Agreement shall not terminate upon dismissal of this litigation. Within 30 days after the final conclusion of all aspects of this litigation, Confidential Materials and all paper and/or electronic copies of the same (other than exhibits of record) shall be, at the discretion and request of the producing party, (1) returned to the party or person that produced such documents, or (2) destroyed and certified under oath as destroyed to the producing party or the producing party's attorney of record, provided that such documents are not being used in or relate to any other litigation or dispute between the producing party (or any of its affiliates) and the recipient (or any of its affiliates).
11. Modification Permitted. Nothing in this Confidentiality Stipulation and Agreement shall prevent any party or other person from seeking modification of such Confidentiality Stipulation and Agreement or from objecting to discovery that it believes to be otherwise improper. The parties shall not be free, however, to modify paragraph eight in contravention of L.R. 5.3, 26.2, or 26.4 without Court approval.
12. Additional Parties. In the event that any additional persons or entities become parties to this litigation or make an appearance, no such additional party shall have access to Confidential Materials until the party has executed and filed with the Court a copy of this Confidentiality Stipulation and Agreement, or other agreement to be bound thereby.
13. Responsibility of Attorneys. The attorneys of record are responsible for employing reasonable measures, consistent with this Confidentiality Stipulation and Agreement, to control duplication of, access to, and distribution of copies of Confidential Materials. Parties shall not duplicate any Confidential Materials except for using as working copies and for filing in a manner consistent with the terms of this Confidentiality Stipulation and Agreement and with the applicable Federal Rules of Civil Procedure.
14. No Waiver.
(a) Review of Confidential Materials by counsel, experts, or consultants for the litigants in this litigation shall not waive the confidentiality of the materials or any objection to production permitted by the Federal Rules of Civil Procedure.
(b) The inadvertent, unintentional, or in camera disclosure of Confidential Materials shall not, under any circumstances, be deemed a waiver, in whole or in part, of any party's claim of confidentiality.
(c) Pursuant to Fed. R. E. 502(d), any privilege or protection afforded to Confidential Documents is not waived by disclosure.
15. Reservation of Rights. Nothing contained in this Confidentiality Stipulation and Agreement, and no action taken pursuant to it, shall prejudice the right of any party to contest the alleged relevancy, admissibility, or discoverability of the documents and information sought. IT IS SO ORDERED.
George Caram Steeh
United States District Judge
STIPULATED AND AGREED:
By: Michael P. Farrell
JAMES R. BRUINSMA (P48531)
MICHAEL P. FARRELL (P57321)
MYERS NELSON DILLON &
SHIERK, PLLC
Attorneys for Plaintiff
123 Ottawa Avenue, NW, Suite 270
Grand Rapids, MI 49506
(616) 233-9640
By: Madeleine R. Szymanski
DORA A. WILKERSON (P49088)
MADELEINE R. SZYMANSKI (P55567)
RUTLEDGE, MANION, RABAUT, TERRY
& THOMAS, P.C.
Attorneys for Defendants
333 W. Fort Street, Suite 1600
Detroit, Michigan 48226
(313) 965-6100