Opinion
Case No. 3:10-cv-1195-J-12MCR.
October 24, 2011
Robert Spohrer, Esq./Matthew Spohrer, Esq., Spohrer Dodd, P.A., Attorneys for Merrett, Bamping and Franklin.
Mark S. Shapiro, Esq./Gary J. Guzzi, Esq., Akerman Senterfitt, Attorneys for Liberty Mutual.
Janet T. Munn, Esq., Rasco Klock, et al., Attorneys for Crawford Company.
ORDER
THIS CAUSE is before the Court on the parties' Joint Motion for Entry of an Order Governing the Production and Use of Confidential Documents (Doc. 60) filed October 20, 2011. Pursuant to Rule 26(c), Federal Rules of Civil Procedure, the Court finds good cause for the entry of a protective order in this case. Furthermore, the Court believes entry of a protective order is appropriate to expedite the flow of discovery material, promote the prompt resolution of disputes over confidentiality, and facilitate the preservation of material arguably worthy of protection. See McCarthy v. Barnett Bank of Polk County , 876 F.2d 89, 91 (11th Cir. 1989); In re Alexander Grant Co. Litigation, 820 F.2d 352, 356 (11th Cir. 1987).
The parties have attached a proposed Confidentiality Agreement to the motion. In reviewing the proposed Confidentiality Agreement, the Court notes it provides for the filing of sealed documents without first obtaining leave to file documents under seal. The parties should be aware that both public interest and Court policy discourage the filing of large volumes of information under seal. Pursuant to Local Rule 1.09(a), leave of Court must be obtained before confidential material may be filed under seal. Accordingly, the Court has revised paragraph 9 of the proposed Confidentiality Agreement to provide that materials will be filed under seal only after Court approval is obtained. In the absence of a showing of clear necessity and a lack of viable alternatives, the parties should not expect Court approval of the routine submission of materials for in camera filings.
Accordingly, after due consideration, it is hereby
ORDERED:
The parties' Joint Motion for Entry of an Order Governing the Production and Use of Confidential Documents (Doc. 60) is GRANTED. The Court adopts the terms of the proposed Confidentiality Agreement drafted by the parties and attached to this Order, with the noted revision to paragraph 9. The parties are hereby bound by those terms.
DONE AND ORDERED in Chambers in Jacksonville, Florida.
CONFIDENTIALITY AGREEMENT
1. As used in this Agreement, information designated as "CONFIDENTIAL" as set forth below may include any document produced, interrogatory answer, response to request to admit, or deposition taken in this action, including all information contained in or derived from such information, and all copies, excerpts or summaries of such information.
2. If any party in good faith believes a document or other discovery response constitutes, contains or reflects trade secrets, proprietary or other confidential matter, including proprietary, confidential or financial business information, that party may designate such document or discovery response as "CONFIDENTIAL" in accordance with the procedures set forth below. Any document or discovery response so designated, and all information contained in and derived from such information, and all copies, excerpts and summaries of such information shall be considered "CONFIDENTIAL" for purposes of this Agreement.
3. To designate any document, tangible thing, or deposition testimony as protected information under this Agreement, the party choosing, in good faith, to make such designation shall:
a. In the case of documents and other tangible things, mark such matters "CONFIDENTIAL" at or prior to the time of production.
b. In the case of depositions, state on the record that the deposition or a specific portion thereof involves confidential information, or so advise all counsel within fourteen (14) days of receipt of the transcript. During this 14-day period, all depositions and information contained therein shall be deemed designated as "CONFIDENTIAL".
4. In the event a party inadvertently neglects to identify a document or documents as "CONFIDENTIAL" that the party so wishes to designate, the party may designate the document(s) "CONFIDENTIAL" by written communication, and the designated documents shall be treated as confidential from the date of receipt of said communication.
5. All confidential information which has been obtained or learned from the adverse party, including its agents, employees, representatives and retained experts and consultants, whether currently or formerly employed by the party, shall be held in confidence by the party obtaining such information, including counsel of record, and shall be used only for the prosecution or defense of this case. The fact that a party producing "CONFIDENTIAL" information produces or has produced such information in another action or proceeding shall not constitute a waiver of protection of this Agreement with respect to the information so designated in this action.
6. All information designated as "CONFIDENTIAL" shall be used solely for the prosecution or defense of this action and shall not be disclosed in any manner to anyone other than the following:
a. counsel (including in-house counsel) who are actively engaged in the prosecution or defense of this action and employees of such counsel or their law firm assisting in the conduct of this action;
b. experts or consultants assisting counsel in this action and employees of such experts or consultants;
c. parties and any officers, directors, agents and employees of any party where deemed necessary by counsel to assist in the prosecution or defense of this action;
d. witnesses and their counsel during the course of, or in preparation for, hearings or depositions in this action, where deemed necessary by counsel to assist in the prosecution or defense of this action;
e. the U.S. District Court for the Middle District of Florida, and its personnel, including stenographic reporters regularly employed by the Court;
f. stenographic reporters not regularly employed by the Court, who are engaged in such proceedings as are necessarily incident to the conduct of this action; and
g. other persons, only in accordance with paragraph 11 of this Agreement.
7. Except as otherwise provided in this Agreement, any person or party who is to receive "CONFIDENTIAL" information must execute a declaration substantially in the following form before receiving any "CONFIDENTIAL" information:
I, (name), understand that documents and information which are to be disclosed to me by counsel of record for (name of party) are to be used by me solely to assist such counsel in prosecution or defense of claims involved in or related to the action Merrett v. Liberty Mutual Insurance Company, pending in the United States District Court for the Middle District of Florida, Jacksonville Division, Case No. 10-cv-01195-HWM-MCR. I further understand that the Agreement between the parties, a copy of which has been shown to me, read to me, and understood by me, prohibits me from either using such document and information for any other purpose or disclosing such documents and information to any person other than counsel of record for (name of party) or persons assisting them. In accepting disclosure, I agree to be bound by that protective order and submit to the jurisdiction of the Court for the purposes of its enforcement.
Copies of these declarations shall, upon request, be exchanged by counsel during or after the final resolution of this litigation. Although the confidentiality requirements of this Agreement shall in all respects apply to the following persons, such declarations shall not be required of:
a. Counsel of record and legal, paralegal, clerical, secretarial, and other persons employed by counsel of record or their law firm for any party on a regular basis and not solely for the purposes of the instant litigation;
b. Court reporters; and
c. Court personnel.
8. Nothing in this Agreement shall be construed to prejudice a party's right to use "CONFIDENTIAL" information in the taking of testimony at any deposition, hearing, or trial in this action, or in defending against testimony offered by another party, or in oral or written argument. "CONFIDENTIAL" information may be shown to any witness in preparation for such deposition, hearing, or trial provided that the witness shall be provided with a copy of this Order and be bound by its terms as to disclosure of "CONFIDENTIAL" information.
9. After first Obtaining leave of Court, "CONFIDENTIAL" information to be filed with the Court by any party to this action, and all items which reveal the contents of such "CONFIDENTIAL" information, shall be filed in sealed envelopes or other appropriately sealed containers on which shall bear a legend substantially of the form:
"PROTECTED DOCUMENT — The enclosed materials are subject to a confidentiality agreement. This envelope may not be opened without court order by any person other than this court, court personnel, or counsel of record."
10. If any "CONFIDENTIAL" information is not believed to be confidential by the party receiving it, the receiving party may at any time notify the disclosing party of the party's objection to such designation and request a release of confidentiality. If the producing party objects to releasing the "CONFIDENTIAL" designation to such document(s), the producing party shall have 30 days to file a motion for protective order to maintain the confidentiality of the document(s) in question. Until the court enters an order on such motion, the information shall be given the confidential treatment provided for in this Agreement. Nothing contained herein shall alter the burden that would otherwise apply to any party's obligation in such motion or opposition to establish the propriety of allowing or preventing disclosure.
11. In the event that counsel for any party determines that the prosecution or defense of this action requires that any "CONFIDENTIAL" information be disclosed to persons not otherwise authorized by this Agreement, such counsel shall provide counsel for the party that produced such material written notice of the intended disclosure (which notice shall specify with particularity the information to be disclosed and the identity, including name, title and employer, of the otherwise unauthorized person) not less than seven (7) business days prior to disclosure, or such shorter period as is agreeable to the party that produced such material. If, within five (5) business days of receipt of such notice, counsel for the party which produced the material objects in writing to such disclosure to the counsel giving notice, the information shall not be disclosed unless the Court so orders. With respect to the provisions of this paragraph, and those of paragraphs 6 and 7, the parties specifically agree that no party shall be required to disclose to any other party the name or other identifying information of any expert witness retained by that party prior to the deadline(s) for providing such information pursuant to court order and/or the Federal Rules of Civil Procedure.
12. In the event that the party receiving the CONFIDENTIAL information is subpoenaed in another action, served with a demand in another action to which it is a party, or served with any other legal process by any person or private or public entity, or otherwise compelled by any law, regulation or administrative ruling, and the information designated as CONFIDENTIAL by a party in this action, other than the receiving party, is sought, the receiving party shall give written notice to the producing party within five (5) business days of the receipt of such subpoena, demand or legal process. The receiving party shall (1) set forth the existence of this Agreement to the person or entity seeking the CONFIDENTIAL information, and (2) withhold the production or disclosure of the sought CONFIDENTIAL information for at least five (5) days from the date of delivery of the written notice to the producing party, in order to allow the producing party to seek appropriate recourse with respect to disclosure of the information it has designated CONFIDENTIAL.
13. Each person to whom any information subject to this Agreement is disclosed is prohibited from divulging or exploiting such information in any way for his or her own benefit, and from using such information for any purpose or in any manner not connected with the prosecution or defense of this action.
14. Entering into, agreeing to and/or complying with the terms of this Agreement shall not:
a. operate as an admission that any particular designated material constitutes, contains or reflects trade secrets, proprietary or commercial information or other confidential matter;
b. prejudice in any way the right of any party to object to the production of documents or information it considers not subject to discovery or to seek a Court determination regarding whether particular designated material should be produced;
c. prejudice in any way the right of any party to apply to the Court to rescind or modify the terms of this Agreement or to move the Court for a protective order;
d. prejudice in any way the right of any party to use, or object to the use of, any designated material at any hearing or at trial; or
e. affect the obligations of any party or person to comply with the terms of any compulsory process.
15. This Agreement shall have no effect upon, and its scope shall not extend to, any party's use of its own documents, testimony and information.
16. This Agreement shall be effective from the date on which it is entered into and shall apply from the date forward to all discovery in this matter, whether produced before or after that date.
17. Within sixty (60) days after final disposition of this action (including all appellate proceedings), all "CONFIDENTIAL" designated material and all copies, excerpts and extracts (excluding excerpts or extracts incorporated into any privileged memoranda), except for such material which has become part of the record in this action, shall be returned to, and with costs of shipping borne by, the person producing the material. The producing party may elect, however, to request that the confidential material be destroyed rather than returned at the conclusion of the litigation, and, if this election is made, the receiving party shall certify, in writing, that the confidential material has been destroyed.
18. Nothing in this Agreement shall restrict disclosure of any "CONFIDENTIAL" information to any government agency as required by law or regulation.
19. This Agreement shall not abrogate or diminish any pre-existing contractual, statutory or other legal obligations or rights of any party with respect to any information.
20. Nothing in this Agreement shall preclude a party from seeking and obtaining from the Court such additional protection with respect to the confidentiality of the information as the party shall deem appropriate.