UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

INSTANT TECHNOLOGY, LLC, an 

Illinois Limited Liability Company,

Plaintiff,

 v.

ELIZABETH DEFAZIO, et al.

Defendants.

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 Case No. 12 C 491

Judge James F. Holderman

Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Geraldine Soat Brown, United States Magistrate Judge

For the following reasons, Defendants’ Emergency Motion for Protective Order and

Sanctions (Defs.’ Mot.) [dkt 179] is granted as further set out herein.

Background

A. The Confidentiality Order

Plaintiff Instant Technology, LLC (“Instant”) is an information technology staffing firm. 

(Am. Compl. ¶ 2.) [Dkt 40.] Instant’s complaint in this case alleges that in late 2011, Instant’s

former executive vice president Elizabeth DeFazio induced Instant employees Laura Rehn, Megan

Marker, BethanyMeek, and Erin Bauer to leave Instant, steal Instant’s confidential information, and

start a new information technology staffing company called Connect Search, LLC, along with

staffing industry veterans Joel and Andrea Katz. (Id. at 51-81.) Supervision of discovery was

referred to this court. [Dkt 51.]

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This has been a highly contentious litigation between competitors, as illustrated by the fact

that Instant has filed four motions for a temporary restraining order or preliminary injunction,

claiming, inter alia, that defendants are using Instant’s confidential information to compete unfairly. 

[Dkt 4, 27, 83,173.] In the course of discovery, pursuant to Fed. R. Civ. P. 26(c), an Agreed

Confidentiality Order was entered permitting a party to designate certain classes of sensitive

documents as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” or “CONFIDENTIALOUTSIDE COUNSEL ONLY.” (Agreed Confidentiality Order ¶¶ 2-3.) [Dkt 102.] The latter

designation is only for those documents that contain “highly sensitive information” that “would tend

to cause substantial harm to the designating party’s legitimate business, competitive position or

privacy interests.” (Id. ¶ 3.) Documents designated as “subject to protective order” may only be

shared with certain persons such as the parties, the court, and experts, but – importantly for this

motion – documents carrying the “Outside Counsel Only” designation may not be shared with the

parties. (Id. ¶ 6.) 

The Confidentiality Order provides a method for challenging a designation: counsel for the

parties must meet and confer to discuss the challenged designation, and if no agreement can be

reached, the designation is to be challenged by motion. (Id. ¶ 11.) Until the court rules on the

propriety of the designation “all parties shall continue to treat the materials” as confidential. (Id.) 

The agreement further mandates that “[a]ny party wishing to file a document designated as

Confidential Information in connection with a motion . . . must comply with Local Rule 26.2.” (Id.

¶ 9.) That rule provides that a party must provisionally file the document under seal and “move the

court for leave to file the document under seal.” L.R. 26.2(c).

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B. Instant’s Motion, Memorandum and Confidential Exhibits

On Thursday, May 23, 2013, the parties appeared before the District Judge on Instant’s

motion for leave to file a memorandum in excess of 15 pages in support of Instant’s most recent

motion for preliminary injunction. [Dkt 169.] Instant attached its proposed memorandum to that

motion, but without exhibits. (Id., Ex. A.) The District Judge granted Instant leave to file its motion

and memorandum that day, and Instant filed the motion for preliminary injunction with the

accompanying memorandum and exhibits. [Dkt 172, 173, 176.] 

On Wednesday, May 29, at 3:47 P.M., defendants’ counsel notified Instant’s counsel via

email that documents designated “Confidential – Outside Counsel Only” containing Connect

Search’s highly sensitive financial information had been filed in the public record as exhibits to

Instant’s memorandum. (Defs.’ Mot., Ex. A.) That email was sent to two attorneys with

appearances on record for Instant: David Ritter and Austin Burke. (Id.) Defendants’ counsel

requested that Instant’s counsel “[p]lease take whatever steps are necessary to remove these

documents from the court’s file.” (Id.) A day later, May 30, at 1:37 P.M., Instant’s counsel Burke

responded with a one-sentence email stating, “Please let us know which financial information,

specifically, you believe should be removed from the court’s file so we might redact the documents

in question appropriately.” (Id., Ex. B.) About two hours later, defendants’ counsel responded with

a list of documents that should be removed and added, “These documents need to be removed from

the court record immediately.” (Id., Ex. C.) Instant’s counsel Burke replied with another onesentence email asking, “What information in these documents do you believe to be confidential?” 

(Id., Ex. D.) 

On Friday afternoon, May 31, at 3:51 P.M., defendants’ counsel notified Instant’s counsel 

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Burke (with a copy to attorney Ritter) that, in defendants’ view, Instant had violated the

Confidentiality Order. (Id., Ex. E.) Defendants’ counsel once again asked that the documents be

removed, and requested that other documents marked as “Confidential – Subject to the Protective

Order” that had been filed as exhibits to Instant’s motion also be removed. (Id.) He added, “If you

do not address this immediately, we will raise the issue with the court.” (Id.) 

Instant’s counsel Ritter has submitted a declaration stating that a paralegal in his office first

attempted to contact the office of the Clerk of the Court on Monday, June 3, but it was not until

Tuesday, June 4, that the paralegal spoke with the clerk’s office. (Pl.’s Resp., Ex. 1, Decl. David

Ritter ¶ 11.) [Dkt 186.] He does not explain why the paralegal was not able to reach the clerk’s

office on Monday. When Instant’s paralegal explained the situation, “the clerk promptly corrected

the docket and sealed all exhibits containing ‘Confidential’ designations.” (Id. at ¶ 12.)

At about noon on June 4, Instant’s counsel Burke informed defendants’ counsel about the

removal of the documents from the public docket. (Defs.’ Mot., Ex. F.) Later that day, defendants’

counsel emailed Instant’s counsel Burke (with a copy to Instant’s attorney Ritter) asking him to

“confirm whether or not the attachments that were designated ‘Confidential – Outside Counsel Only’

by Defendants were provided to your client.” (Id., Ex. G.) Receiving no response, on June 5,

defendants filed the present emergency motion requesting that Instant’s counsel be compelled to

disclose whether anyone at Instant had been given the confidential documents and asking for an

award of defendants’ attorneys’ fees incurred in bringing the motion. (Defs.’ Mot. at 5.) 

On June 6, Instant’s counsel Ritter sent an email stating that he confirmed that the documents

had not been sent to his client and that “the only people who have seen or have had access to them

have been attorneys and staff in my office.” (Pl.’s Resp., Ex. 2.) AttorneyRitter’s declaration states

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that he was traveling on business on June 4 and did not have an opportunity to check his records and

respond immediately to the June 4 message. (Ritter Decl. ¶ 13.) He also states that he did not

receive a phone message from defendants’ counsel prior to the filing of the motion. 

Instant admits that the documents were filed in violation of the Confidentiality Order, but

contends that “it accidentally filed” the confidential documents in “an innocent clerical error.” 

(Ritter Decl. ¶ 2; Pl.’s Resp. at 1.) Instant argues that sanctions are not warranted for that “innocent

oversight.” (Pl.’s Resp. at 2-3.) 

In their reply brief, defendants request affidavits from Instant and its counsel detailing the

filing of the documents, Instant’s counsel’s response, and whether anyone at Instant has seen the

documents. (Defs.’ Reply at 6-7.) [Dkt 191.] Defendants also request attorneys’ fees estimated at

$5,487. (Id.) 

Legal Standard

Defendants’ motion does not identify the authority under which it seeks relief. In violating

the Confidentiality Order, Instant’s conduct could be framed as contempt of court, but defendants’

motion is not denominated as such, so the motion will be treated as a request for relief under Fed.

R. Civ. P. 37(b), which provides remedies for failing to comply with “an order to provide or permit

discovery.” Fed. R. Civ. P. 37(b)(2)(A).

It should be noted that there is some disagreement about whether language of Rule 37(b)(2)

encompasses violations of a protective order governing the production of confidential documents. 

Compare Lipscher v. LRP Publications, Inc., 266 F.3d 1305, 1322-23 (11th Cir. 2001) (holding that

Rule 37(b) does not encompass protective orders issued pursuant to Rule 26(c)), with Smith &

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Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486, 488-89 (5th Cir. 2012) (finding that

protective order governing production of confidential material fell under Rule 37(b)(2)’s definition

of “order to provide or permit discovery” and upholding sanctions award); Falstaff Brewing Corp.

v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir. 1983) (upholding award of attorneys’ fees for

violation of a protective order under Rule 37(b)). The Seventh Circuit has not spoken to the issue,

but courts in this district have disagreed with Lipscher and issued sanctions under Rule 37(b) for

violations of a confidentiality order. See, e.g., Whitehead v. Gateway Chevrolet, Oldsmobile, No.

03 C 5684, 2004 WL 1459478 at *3 (N.D. Ill. June 29, 2004). The advisory committee notes to Rule

37(b) state that “Rule 37(b)(2) should provide comprehensively for enforcement” of orders issued

under Rule 26(c). Fed. R. Civ. P. 37 advisory comm. nn. (1970). Thus, in agreement with the Fifth

Circuit and other courts in the district, this court concludes that Rule 37(b) may be applied to

violations of confidentiality orders.

Rule 37(b) permits the court to enter “further just orders” (Fed. R. Civ. P. 37(b)(2)(A)), and

directs that “the court must order the disobedient party, the attorney advising that party, or both to

pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was

substantially justified or other circumstances make an award of expenses unjust” (Fed. R. Civ. P.

37(b)(2)(C)).

Discussion

There is no doubt that Instant violated the Confidentiality Order; the only issue is whether

sanctions and further relief are justified. Instant claims that the inclusion of the exhibits on the

public record was “accidental” and “an innocent clerical error,” but the response of Instant’s counsel

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is not consistent with that claim. Upon being notified that Instant had put Connect Search’s highly

sensitive financial documents that had been marked “Confidential–Outside Counsel Only” on the

public record, the response of Instant’s counsel was not at all the response of someone who has been

notified of a “clerical error.” The response of someone who has made an innocent mistake –

especially a mistake that violates a court order – is to apologize and take immediate action to correct

the mistake. Notably, not once in any of the email preceding the filing of defendants’ motion is there

any apology on the part of Instant’s counsel. The first apology from Instant’s counsel is attorney

Ritter’s email the day after defendants filed their motion.

Instead, Instant’s counsel’s response was, in effect, to challenge the designation, demanding

that defendants identify what was confidential about the documents before Instant would take any

action to rectify its error. That is not the procedure required by the Confidentiality Order, which as

described above, requires that the documents be maintained in their confidential status until disputes

about designation are resolved. AttorneyRitter admits that instead of acting immediately to seal the

documents, he and his co-counsel spent days with the documents on the public record, while, they

claim, they were trying to negotiate redactions. He admits that it was only on Friday afternoon –

after defendants threatened to bring the matter to the court – that he decided to take action to remove

the documents from the public record. (Ritter Decl. ¶ 10.) It took another two days for Instant to

get the documents sealed. By then Connect Search’s confidential documents had been on the public

record for almost two weeks, during which time any member of the public, including Instant’s 

officers and employees, could have seen them.

This case is an exceedingly acrimonious lawsuit between two competing businesses. Instant

has complained strenuously about defendants’ alleged unfair competition. One can imagine that if

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the situation were reversed and defendants had put Instant’s confidential information in the public

record for nearly two weeks, Instant would not be satisfied to brush it off as an “innocent clerical

mistake.” 

Defendants are understandably concerned that Instant’s officers or employees have seen

Connect Search’s confidential information in violation of the “Outside Counsel Only” designation.

Hence, defendants want the court to order Instant to provide further affidavits disclosing whether

anyone at Instant has viewed or had access to any “Outside Counsel Only” documents. Instant’s

response does not directly answer that question. Instant’s counsel Ritter’s email of June 6, 2013

stated that “the documents that are the subject of [defendants’] motion have not been sent to

[Instant].” (Pl.’s Resp., Ex. 2.) The Illinois Rules of Professional Conduct governing attorney-client

relationships, however, require that an attorney “keep a client reasonably informed about the status

of a matter.” Ill. R. Prof. Conduct 1.4(a)(3). It is hard to believe that Instant’s counsel would not

have sent to their client a copy of such an important filing as a motion for preliminary injunction

and supporting memorandum, including the exhibits, especially given the time that elapsed before

Instant took any action to remove the documents. Even assuming, arguendo, that Instant’s counsel

did not send their client a copy of the memorandum and exhibits, that does not answer the question

of whetherInstant’s employees or officers saw the documents during the almost two weeks theywere

open to the public. 

Accordingly, defendants’ requests for further proof on that question is granted. The court

is quite certain that, were the situation reversed, Instant would demand no less. Instant is ordered

to file a further declaration or affidavit (or more than one if necessary) setting out the facts regarding

whether the “Outside Counsel Only” documents included as exhibits to the memorandum were 

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provided to or seen by any officer or employee of Instant at any time, including the time when the

documents were on the public record, and whether the contents of those documents were conveyed

to anyone but the persons permitted pursuant to the Confidentiality Order. 

As to the issue of attorneys’ fees, although Instant caused the confidential documents to be

sealed before the present motion was filed, the email from Instant’s counsel Ritter stating that the

documents were not sent to anyone at Instant only came after defendants filed their motion, and two

days after defendants originally requested confirmation. Instant’s counsel Ritter avers that this delay

was due to his traveling, and puts the blame on defendants’ counsel for not calling him rather than

emailing him. (Ritter Decl. ¶¶ 13-15.) That is not responsive, however, because defendants’

counsel’s email was addressed to attorneyBurke; attorney Ritter was only copied on it. There is no

explanation why attorneyBurke, the addressee, did not respond at all to defendants during those two

days. Given the unnecessary delay in getting the documents removed from the docket caused by

Instant’s counsel in the first place, and the lack of response, defendants reacted reasonably in filing

the day after receiving no response to their confirmation request. 

Whether or not the original filing of protected confidential documents was, as Instant

characterizes it, a “regrettable, but innocent oversight” (Pl.’s Resp. at 2), Instant’s response when

the filing was brought to its counsel’s attention cannot be justified. Instant should have taken

immediate action to correct the matter. That it did not do so takes its conduct out of the category of 

“innocent mistake” and transforms it into a conscious decision to act contrary to the Confidentiality

Order. 

Accordingly, defendants should be awarded their expenses including attorneys’ fees in

bringing their motion. This court, however, cannot enter a final order on the award, but can only

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recommend a disposition to the district judge. See Cleversafe, Inc. v. Amplidata, Inc., 287 F.R.D.

424, 430 (N.D. Ill. 2012). Before a report and recommendation is issued on this matter, the amount

of fees should be determined. Defendants have estimated their expenses at $5,487, but further

documentation will be needed to substantiate that amount. Prior to any further filing, however, the

parties shall meet and confer to determine whetherthey can agree to an amount. If no agreement can

be reached, defendants’ submission in support of its request for fees is due by November 22, 2013. 

Instant may file a response contesting the amount requested by December 6, 2013. The court will

then issue a report and recommendation to the district judge.

Conclusion

For the aforementioned reasons, Defendants’ Emergency Motion for Protective Order and

Sanctions [dkt 179] is granted. Plaintiff shall file the affidavit or declaration required by this order

no later than November 22, 2013. The parties shall meet and confer to determine whether they can

agree to an amount for defendants’ fees. If no agreement can be reached, defendants’ submission

in support of its request for fees is due by November 22, 2013. Plaintiff may file a response

contesting the amount requested by December 6, 2013.

________________________________

Geraldine Soat Brown

United States Magistrate Judge

DATE: November 8, 2013

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