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Bridgestone Americas Tire Operations LLC v. HUF North America Automotive Parts Manufacturing Corp.

United States District Court, E.D. Wisconsin

October 17, 2017

BRIDGESTONE AMERICAS TIRE OPERATIONS LLC, Plaintiff,
v.
HUF NORTH AMERICA AUTOMOTIVE PARTS MANUFACTURING CORP. and HUF HULSBECK & FURST GMBH & CO. KG, Defendants.

          ORDER

          J. P. STADTMUELLER, U.S. DISTRICT JUDGE.

         On October 10, 2017, the parties filed a joint motion for entry of a protective order. (Docket #33). The parties request that the Court enter a protective order so that the parties may avoid the public disclosure of confidential information and documents. Id. 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), Civil 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); Fed.R.Civ.P. 26(c); see also 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 also that the order is narrowly tailored to serving that cause. Fed.R.Civ.P. 26(c); see, e.g., Citizens First Nat'l Bank of Princeton, 178 F.3d at 945, Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854, 858 (7th Cir. 1994) (holding that, even when parties agree to the entry of a protective order, they still must show the existence of good cause). The Court can even find that broad, blanket orders-such as the one in this case-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) (citing Citizens First Nat'l Bank of Princeton, 178 F.3d at 945). The parties have requested the protective order in this case in good faith; they seek the order so that they might freely exchange sensitive information. (Docket #33 and #33-1 at 1). The Court thus finds that there is good cause to issue the requested protective order.

         However, the Court finds that two slight changes are necessary to maintain compliance with the above-cited precedent. First, the proposed order requires sealing, in whole or in part, of all confidential documents. 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, L.C., 439 F.3d at 348. While the Court understands that some documents will need to be sealed entirely, other documents may contain only small amounts of confidential information, and so redaction of those documents may be more appropriate. The Court has modified the parties' proposed language to that effect. See supra Paragraph 9. Second, consistent with the Court's and this district's standard practice, the Court will allow members of the public to challenge the confidentiality of documents filed in this case. See supra Paragraph 5 and 9.

         Finally, the Court must note that, while it finds the parties' proposed order to be permissible and will, therefore, enter it, the Court subscribes to the view that the Court's 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.

         Accordingly, IT IS ORDERED that the parties' joint motion for entry of a stipulated confidentiality order (Docket #33) be and the same is hereby GRANTED; and

         IT IS FURTHER ORDERED that, pursuant to Fed.R.Civ.P. 26(c) and Civil L. R. 26(e), the terms of the protective order governing this case are as follows:

         The Court finds that the following order is necessary to expedite the flow of discovery materials, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information that Plaintiff Bridgestone Americas Tire Operations, LLC (“Bridgestone”) and Defendant Huf North America Automotive Parts Manufacturing Corp. (“Huf”) (collectively the “Parties”) are entitled to keep confidential, to ensure that only materials that the Parties are entitled to keep confidential are subject to such treatment, and to ensure that the parties are permitted reasonably necessary uses of such materials in preparation for and in the trial, pursuant to Fed.R.Civ.P. 26(c) and Civil L.R. 26(e).

         Bridgestone and Huf assert that they possess confidential information in the form of secrets or other confidential business, personal and/or technical information related to the subject matter of this litigation. The parties recognize that it may be necessary to disclose certain of the asserted confidential information during the course of this litigation. As a result, the parties seek to limit disclosure and prevent the use of such information for purposes other than this litigation.

         1. FINDINGS

         The Court finds that the parties to this case may request or produce information involving trade secretes or other confidential research, development, or commercial information, the unprotected disclosure of which is likely to cause harm to the party producing such information.

         2. DEFINITIONS

         a. Document: The term “Document” shall mean every means of recording any form of communication or representation upon any tangible thing, including letters, numbers, words, pictures, sounds, or symbols, or combinations thereof, whether recorded by handwriting, printing, photostatic, or photographic means, magnetic impulse, tape, computer disk, CD-ROM or any other form of data storage, data compilation, or mechanical or electronic recording, including without limitation all things which come within the meaning of “writings, ” “recordings, ” or “photographs” contained in Rule 1001 of the Federal Rules of Evidence, or within the meaning of “document, ” “electronically stored information, ” or “tangible thing” contained in Rule 34 of the Federal Rules of Civil Procedure.

         b. Discovery Material: The term “Discovery Material” shall mean any Document, material, item, information, tangible thing, testimony, or thing filed with or presented to the Court or produced, served, or generated during the discovery process, including, for example, exhibits, answers to interrogatories, responses to requests for admissions, responses to requests for production, subpoenas, declarations, affidavits, and deposition testimony or transcripts, and all copies, extracts, summaries, compilations, designations, and portions thereof.

         c. Producing Party: The term “Producing Party” shall mean any party to this action or any third party, including its counsel, retained Experts or Consultants, directors, officers, employees, or agents, who produces any Discovery Material.

         d. Outside Counsel: The term “Outside Counsel” shall mean all counsel that have entered an appearance in the litigation, their staff, and supporting personnel.

         e. Receiving Party: The term “Receiving Party” shall mean any party to this action, including its counsel, retained Experts or Consultants, directors, officers, employees, or agents, who receives any Discovery Material in this action.

         f. Confidential Information: The term “CONFIDENTIAL INFORMATION” shall mean any information (regardless of how it is generated, stored, or maintained) or tangible things of the Producing Party that the Producing Party in good faith regards as confidential or proprietary information that is sensitive and is not publicly known and which the Producing Party would not normally reveal to third parties or, if disclosed, would require such third parties to maintain in confidence, including without limitation information that the Producing Party claims in good faith to constitute or relate to research and development information (including, for example, laboratory notebooks, research plans, market and demographic research, and product and advertising development), non-public patent prosecution information directed to present or pending applications that are not publicly accessible, financial information (including, for example, budgeting, accounting, sales figures, forecasts, and advertising expenditures), business relationship information (including, for example, information pertaining to potential and/or existing customers, competitors, suppliers, distributors, affiliates, subsidiaries, and parents), and personnel information (including, for example, compensation, evaluations and other employment information).

         g. Highly Confidential - Attorneys' Eyes Only Information: The term “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY INFORMATION” shall mean any information (regardless of how it is generated, stored, or maintained) or tangible thing of the Producing Party that is extremely sensitive, the disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means, including without limitation information that the Producing Party claims in good faith to constitute (i) trade secrets under applicable law, or commercially sensitive information relating to the Producing Party's technical, financial, marketing, strategic, and competitive position, the disclosure of which poses a threat of competitive harm to the Producing Party, or (ii) new research and development information (including, for example, laboratory notebooks, research plans, market and demographic research, and product and advertising development), or (iii) other commercially sensitive competitive information (including, for example, business plans, business strategies, profit margins, manufacturing processes not available to the public, business negotiations, and license agreements), or (iv) non-public patent prosecution information directed to future patent applications that are not publicly accessible, and non-public regulatory filings.

         h. Restricted - Highly Confidential Source Code Information: To the extent any CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY INFORMATION includes computer source code (“Source Code Material”), the Producing Party may designate such material as “RESTRICTED - HIGHLY CONFIDENTIAL SOURCE CODE.” i. Designated Material: The term “Designated Material” shall mean any Discovery Material designated by a Producing Party as CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY INFORMATION, or RESTRICTED - HIGHLY CONFIDENTIAL SOURCE CODE.

         j. Expert: The term “Expert” shall mean an expert retained for this Litigation. The term excludes current employees, officers, or directors of a named party, or owners of more than two-percent interest in a named party. Experts must execute the form of Acknowledgement of Protective Order, attached hereto as Exhibit A.

         k. Consultant: The term “Consultant” shall mean a consultant retained for this Litigation and who is not expected to testify at trial. Consultants that will access materials designated as Confidential or Highly Confidential must execute the form of Acknowledgement of Protective Order, attached hereto as Exhibit A.

         3. SCOPE

         The scope of this Order shall be understood to encompass not only Designated Material which is expressly designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, or RESTRICTED - HIGHLY CONFIDENTIAL SOURCE CODE INFORMATION, but also any information derived therefrom, including all copies, excerpts, and summaries thereof, whether partial or complete, as well as testimony and oral conversations which reveal all or part of that information.

         4. PROCEDURE FOR MARKING DESIGNATED MATERIAL

         Marking Designated Material as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, or RESTRICTED - HIGHLY CONFIDENTIAL SOURCE CODE INFORMATION shall be made in good faith by the Producing Party in the following manner:

         a. In the case of Documents or any other tangible things produced, designation shall be made by placing the legend “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, ” or “RESTRICTED - HIGHLY CONFIDENTIAL SOURCE CODE” on each page of the document or on the cover or in a prominent place on any other tangible thing prior to production of the document or tangible thing;

         b. In producing original files and records for inspection, no marking need be made by the Producing Party in advance of the inspection. For the purposes of the inspection, all documents produced shall be considered as marked CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, or RESTRICTED - HIGHLY CONFIDENTIAL SOURCE CODE as designated by the Producing Party. Thereafter, upon selection of specified documents for copying by the Receiving Party, the Producing Party shall mark as CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, or RESTRICTED - HIGHLY CONFIDENTIAL SOURCE CODE the copies of such documents, as appropriate, at the time the copies are produced to the Receiving Party; and

         c. In the case of deposition testimony, transcripts or portions thereof, designation shall be made by the Producing Party either (i) on the record during the deposition, in which case the portion of the transcript of the designated testimony shall be bound in a separate volume and marked “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, ” or “RESTRICTED - HIGHLY CONFIDENTIAL SOURCE CODE” as appropriate by the reporter, or (ii) by written notice to the reporter and all counsel of record, given within twenty (20) days after the reporter sends written notice to the deponent or the deponent's counsel that the transcript is available for review, in which case all counsel receiving such notice shall be responsible for marking the copies of the designated transcript or portion thereof in their possession or control as directed by the Producing Party or deponent. Pending expiration of the twenty (20) business days, all parties and, if applicable, any third party witnesses or attorneys, shall treat the deposition transcript as if it had been designated CONFIDENTIAL, HIGHLY ...


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