*1 THIS MATTER comes before the Court on the Joint Motion of Plaintiff Stuart Sawyer (“Sawyer”) and Defendant Intermex Wire Transfer, LLC (“Intermex”) for (1) entry of a confidentiality and protective order, pursuant to Fed R. Civ. P. 26(c) and (2) entry of a Fed. R. Evid. 502(d) order.

CONFIDENTIALITY AND PROTECTIVE ORDER PURSUANT TO FED. R. CIV. P. 26(C)

Sawyer and Intermex first request that the Court enter a protective order, pursuant to Fed. R. Civ. P. 26(c), which will provide for a procedure to protect potentially sensitive personal and business information that may be the subject of discovery directed between the Parties and to non-parties. As for this request for a protective order, the Court begins by noting that the “Eleventh Circuit has created a four factor test to determine whether good cause exists for the issuance of a protective order, which includes: (1) the severity and the likelihood of the perceived harm; (2) the precision with which the order is drawn; (3) the availability of a less onerous alternative; and (4) the duration of the order.” Gunson v. BMO Harris Bank, N.A., 300 F.R.D. 581, 583 (S.D. Fla. 2014) (citing In re Alexander Grant & Co. Litig., 820 F.2d 352, 356 (11th Cir. 1987)).

Consistent with these factors, courts in this District commonly enter confidentiality and protective orders when agreed to by the parties. See, e.g., Whitwam v. JetCard Plus, Inc., 2015 WL 1014292, at *1 (S.D. Fla. Jan. 21, 2015) (entering a Stipulated Confidentiality and Protective Order); Gutescu v. Carey Int’l, Inc., 2002 WL 34245136, at *1 (S.D. Fla. Aug. 8, 2002) (same); TracFone Wireless, Inc. v. Simply Wireless, Inc., 2016 WL 4581320, at *1 (S.D. Fla. Aug. 16, 2016) (same).

Accordingly, a protective order is ENTERED regarding the use and confidentiality of documents, information, and material produced in this litigation, as follows:

1. Designation of Information as “Confidential”

Any Party[1] to this lawsuit may designate as “Confidential” any information (regardless of form) produced or furnished in this case by the designating Party which the Party in good faith reasonably believes is not generally known to others, and which the designating Party (i) maintains as a trade secret, (ii) believes in good faith is protected by a right to privacy under federal or state law, or any other applicable privilege or right related to confidentiality or privacy, or (iii) maintains as confidential personally-identifiable consumer information. Any Non-Party[2] who produces information to any Party pursuant to a subpoena or other discovery request may avail themselves of the protections put in place by this Order by designating any such information as “Confidential.” The Parties to this lawsuit shall treat any such designation by a Non-Party as if it were made by a Party pursuant to this Order.

2. Definition of Confidential Information

*2 As used in this Order, the term “Confidential Information” means information designated as “Confidential,” whether the information is in writing, electronically stored or oral if recorded as part of a deposition or court proceeding.

3. Identification of Confidential Information

Each Party or Non-Party shall designate to the Parties in this case which information is considered “Confidential” or the words (“Confidential” or “Confidential Information”) shall be placed on or affixed to the first page of a document which contains “Confidential Information.” In the case of an interrogatory response, the portion of the response which contains “Confidential Information” shall be designated. When information not initially designated as “Confidential” is designated later in writing, each Party shall make a reasonable effort to retrieve documents containing the later-designated “Confidential Information” and otherwise ensure that persons to whom the “Confidential Information” has been disclosed will treat the information as contemplated by the designation.

4. Protection of Confidentiality

“Confidential Information,” and any notes, summaries, memoranda, exhibits, or other documents which include or describe “Confidential Information,” shall be retained by counsel for the Party to whom disclosure of the “Confidential Information” was made (the “Recipient Party”) and, except as provided in this Order, shall not be disclosed to any person or used by counsel for any purpose other than for purposes of this case. Persons to whom access to “Confidential Information” is given pursuant to this Order shall keep such information, and any copies, abstracts, or summaries of such information, confidential and secure in accordance with the purposes and intent of this Order.

5. Access to Information Designated “Confidential”

All transcripts of depositions, exhibits, answers to interrogatories, copies thereof, other documents, and all information otherwise obtained by counsel for any Party pursuant to discovery in this case, including, but not limited to documents or information obtained pursuant to a duly issued subpoena or other discovery request, which are designated Confidential, shall be retained by counsel and shall not be disclosed to others (except as set forth below), nor used by anyone other than for purposes of this case. Any such transcripts, exhibits, answers to interrogatories, copies thereof, other documents or information marked “Confidential” may be disclosed by counsel to (i) the lawyers charged with the responsibility for, or actively engaged in, the litigation of this case, as well as their employees and staff to whom it is reasonably necessary to disclose information for purposes of this case; (ii) any litigation assistant or paralegal employed by and assisting counsel, and stenographic, secretarial or clerical personnel employed by and assisting counsel in this case; (iii) any outside expert retained by the Recipient Party to assist that Party’s counsel in the litigation of this case or who is expected to testify in this case; (iv) any litigation assistant, paralegal, stenographic, secretarial, or other personnel employed by a party or expert to assist the expert in this case; (v) any court reporter or typist recording or transcribing testimony; (vi) any court personnel, including stenographic, secretarial and clerical personnel; (vii) the Parties to this case and the officers and employees of the Parties whose assistance is necessary in the prosecution or defense of this case; and (viii) any Parties associated with an individual or entity retained by counsel for the purposes of assisting with the prosecution or defense of this case, including but not limited to, companies specializing in ESI retention/analysis, third-party document review companies, or other businesses offering services related to the litigation of this matter.

6. Acknowledgement of Confidentiality for Materials Produced By Subpoenaed Non Parties

*3 This paragraph shall only apply to materials produced by subpoenaed Non-Parties, which are designated Confidential: Before any transcripts of depositions, exhibits, answers to interrogatories, copies thereof, and/or other documents or information, which have been designated as Confidential by a subpoenaed Non-Party, may be disclosed to any person or entity described in items 5(iii) or 5(viii) of this Order, the person or entity to whom the Confidential information is to be disclosed shall sign and return to the Party seeking to engage their services an acknowledgment that states as follows:

7. Restriction on Use of Confidential Information

Nothing in this order shall be construed to prevent a party from using Confidential Information for purposes of this case.

The Parties shall not disclose or make use of any Confidential Information, except for purposes of this case. Such restrictions, however, shall not apply to information which (i) is public knowledge at or prior to disclosure in this case, (ii) becomes public knowledge as a result of publication by someone having right to do so, (iii) was previously known to the receiving Party, or (iv) is later disclosed to the receiving Party by someone having the right to do so.

If any Party intends to file with the Court any pleading, interrogatory answer, affidavit, motion, brief, or other paper containing, appending, summarizing, excerpting or otherwise embodying Confidential Information, the Party shall make reasonable efforts to provide the producing Party with reasonably sufficient notice under the circumstances to allow the producing Party to move to have the Confidential Information filed under seal in accordance with the applicable federal and local rules.

8. Voluntary Waiver

At any time after any information, document, or deposition testimony is designated as “Confidential” under the terms of this Order, the designating Party or Non-Party may agree that the “Confidential Information” may be disclosed.[3]

9. Confidential Material Subpoenaed or Ordered Produced in Other Litigation

If any Party receives a subpoena, order, or other directive that compels a disclosure that would be otherwise prohibited by this Order, the receiving Party shall notify the designating Party, by email, promptly after receiving the subpoena, order or directive. Such notification must include a copy of the subpoena, order or directive. The purpose of imposing these duties is to afford the designating Party in this case an opportunity to try to protect any confidentiality interest it may have in the court or with the body from which the subpoena, order or directive was issued.

10. Disposition on Termination of this Case

*4 Within sixty-three calendar days after the final termination of this case and unless the Parties agree otherwise, upon written demand of the producing Party, each Party shall:

(a) assemble and make available for return to the designating Party all materials, documents, and transcripts containing “Confidential Information,” including all copies thereof; or

(b) destroy all “Confidential Information.”

Notwithstanding this provision, counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product (including exhibits, deposition exhibits, and trial exhibits), even if such material contains “Confidential Information.” Any such archival copies that contain or constitute “Confidential Information” shall remain subject to the terms of this Order.

11. Provision to Seek Court Order

This Order is without prejudice to the right of any interested Party to apply to the Court for an order permitting disclosure of any “CONFIDENTIAL” information, or to apply for an order modifying or limiting this Order in any respect.

12. Requests to Declassify Confidential Information.

At any time that a Party believes that a document or information which has been classified as Confidential should be declassified from its Confidential status, counsel for the Party desiring declassification shall notify the designating Party’s counsel in writing of its request for declassification. Such request shall particularly identify the Confidential Information that the Party requesting declassification contends is not confidential and the reasons supporting its contentions. The Parties shall attempt in good faith to resolve any such dispute informally. If the Parties cannot resolve the issue of declassification within fourteen calendar days after the Parties’ conference, then it shall be the obligation of the Party requesting declassification to file an appropriate motion requesting that the Court determine whether the disputed information should be subject to the terms of this Order. The burden to demonstrate that the information identified as “Confidential” is subject to the confidentiality protections contained herein shall be governed by federal law, and the designating party bears the burden of persuasion. If such a motion is filed, the disputed information shall still be treated as Confidential until the Court rules on the motion. If no motion is made, the information shall continue to be treated as Confidential.

ORDER PURSUANT TO FED. R. EVID. 502(D)

Sawyer and Intermex jointly request entry of an order, pursuant to Fed. R. Evid. 502(d), implementing the protection of non-waiver of privilege protected by the attorney-client privilege or as attorney work-product when information is inadvertently produced, as provided for under that rule upon entry of an appropriate order by the Court.

The Court begins by noting that Fed. R. Evid. 502(d), “entitled ‘Controlling Effect of a Court Order,’ provides that ‘[a] federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court-in which event the disclosure is also not a waiver in any other federal or state proceeding.’ ” Great-West Life & Annuity Ins. Co. v. Am. Econ. Ins. Co., 2013 WL 5332410, at *10 (D. Nev. Sept. 23, 2013) (quoting Fed. R. Evid. 502(d)).

*5 Federal courts, including those in Florida routinely enter such orders upon request of the parties. See, e.g., Rudolph v. Correct Care Sols., LLC, 2016 WL 1104612 (N.D. Fla. Mar. 19, 2016); MAO-MSO Recovery II, LLC v. Boehringer Ingelheim Pharm., Inc., 2017 WL 3671034 (S.D. Fla. Aug. 9, 2017); Diaz v. Chapters Health Sys., Inc., 2019 WL 1498873 (M.D. Fla. Apr. 1, 2019); Wireless Shop, LLC v. TracFone Wireless, Inc., 2018 WL 6817054 (S.D. Fla. Oct. 15, 2018); Ranger Constr. Indus., Inc. v. Allied World Nat’l Assurance Co., 2019 WL 436555, at *2. N.2 (S.D. Fla. Feb. 4, 2019) (expressing “frank[ ] surprise[ ] that the sophisticated attorneys in this case did not enter into a written 502 claw-back agreement early on in this litigation” and noting that the “Court encourages counsel in all cases involving e-discovery to consider the benefits of jointly entering into a 502(d) claw-back agreement... .”).

Consistent with these precedents, it is ORDERED AND ADJUDGED that an Order implementing Fed. R. Evid. 502(d) is ENTERED and provides as follows:

13. No Waiver by Disclosure

This Order is entered pursuant to Fed. R. Evid. 502(d). Subject to the provisions of this Order, if a Party (the “Disclosing Party”) discloses information in connection with the pending litigation that the Disclosing Party thereafter claims to be privileged or protected by the attorney-client privilege or work product protection (“Protected Information”), the disclosure of that Protected Information will not automatically constitute or be deemed a waiver or forfeiture—in this or any other action—of any claim of privilege or work product protection that the Disclosing Party would otherwise be entitled to assert with respect to the Protected Information and its subject matter.

14. Notification Requirements; Best Efforts of Receiving Party

A Disclosing Party must promptly notify the Party receiving the Protected Information (“the Receiving Party”), in writing, that it has disclosed that Protected Information without intending a waiver by the disclosure. Upon such notification, the Receiving Party must—unless it contests the claim of attorney-client privilege or work product protection in accordance with paragraph 15—promptly (i) notify the Disclosing Party that it will make best efforts to identify and return, sequester or destroy (or in the case of electronically stored information, delete) the Protected Information and any reasonably accessible copies it has and (ii) provide a certification that it will cease further review, dissemination, and use of the Protected Information. Within seven calendar days of receipt of the notification from the Receiving Party, the Disclosing Party must explain as specifically as possible why the Protected Information is privileged. For purposes of this Order, Protected Information that has been stored on a source of electronically stored information that is not reasonably accessible, such as backup storage media, is sequestered. If such data is retrieved, the Receiving Party must promptly take steps to delete or sequester the restored protected information.

15. Contesting Claim of Privilege or Work Product Protection

If the Receiving Party contests the claim of attorney-client privilege or work product protection, the Receiving Party must—within fourteen calendar days of receipt of the notice of disclosure—move the Court for an Order compelling disclosure of the information claimed as unprotected (a “Disclosure Motion”). The Disclosure Motion must be filed under seal and must not assert as a ground for compelling disclosure the mere fact of the disclosure. Pending resolution of the Disclosure Motion, the Receiving Party must not use the challenged information in any way or disclose it to any person other than those required by law to be served with a copy of the sealed Disclosure Motion.

16. Stipulated Time Periods

*6 The Parties may stipulate to extend the time periods set forth in paragraphs 14 and 15 of this Order.

17. Attorney’s Ethical Responsibilities

Nothing in this Order overrides any attorney’s ethical responsibilities to refrain from examining or disclosing materials that the attorney knows or reasonably should know to be privileged and to inform the Disclosing Party that such materials have been produced.

18. Burden of Proving Privilege or Work-Product Protection

The Disclosing Party retains the burden—upon challenge pursuant to paragraph 15—of establishing the privileged or protected nature of the Protected Information.

19. In camera Review

Nothing in this Order limits the right of any Party to petition the Court for an in camera review of the Protected Information.

20. Voluntary and Subject Matter Waiver

This Order does not preclude a Party from voluntarily waiving the attorney-client privilege or work product protection. The provisions of Fed. R. Evid. 502(a) apply when the Disclosing Party uses or indicates that it may use information produced under this Order to support a claim or defense.

21. Inapplicability of Fed. R. Civ. P. 502(b)(2)

The provisions Fed. R. Evid. 502(b)(2) are inapplicable to the production of Protected Information under this Order.

DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of September, 2019.