United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
October 25, 2017, the parties filed a joint motion for entry
of a protective order. (Docket #26). 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).
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).
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 #26 at 1-2). This
includes financial data for Defendant and the identifying
information of putative members of Plaintiff's proposed
class. Id. at 2. The Court thus finds that there is
good cause to issue the requested protective order.
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.
IT IS ORDERED that based on the parties'
joint motion, (Docket #26), and the representations set forth
therein, the Court finds that 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; and
IS THEREFORE ORDERED that, pursuant to Fed.R.Civ.P.
26(c) and Civil L. R. 26(e):
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'
(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
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 ...