UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

TRENDWAY CORPORATION AND 

TRENDWAY CORPORATION 

EMPLOYEE BENEFIT PLAN, 

 Plaintiffs, 

v. 

BLUE CROSS BLUE SHIELD OF 

MICHIGAN, 

 Defendant. 

Case No. 15-cv-11552 

Honorable Denise Page Hood 

STIPULATED PROTECTIVE ORDER

WHEREAS, the parties consider certain information and documents in their 

possession to be confidential and proprietary, including, inter alia, sensitive 

financial, commercial, business, and medical information and, therefore, mutually 

desire that a protective order limiting the use, access to and disclosure of such 

information and documents be entered, and the Court being otherwise fully 

informed; 

IT IS HEREBY ORDERED that, pursuant to Rule 26(c) of the Federal 

Rules of Civil Procedure, the production and use of documents and information 

produced or made available in this matter shall proceed in accordance with the 

following terms: 

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I. SCOPE OF THE ORDER

1. Scope of Order: This Order applies to all documents (and the 

contents thereof) served, transmitted, or incorporated in this lawsuit pursuant to 

Rules 26 through 36 and/or Rule 45 of the Federal Rules of Civil Procedure. 

II. DESIGNATION OF MATERIALS AS “CONFIDENTIAL” OR 

“ATTORNEYS EYES ONLY”

2. Confidential Designation: The supplying party (including thirdparties) may designate material (including paper or electronic documents, written 

discovery responses, and/or deposition testimony or exhibits) as “Confidential” if 

such party believes in good faith, and after reasonable inquiry, that such material is 

entitled to protection under Rule 26, or any other applicable law. Medical 

information protected by the Health Insurance Portability and Accountability Act 

Privacy Regulations, 45 CFR § 164.512(e), is entitled to protection and is treated 

as though designated as Confidential regardless of whether it is designated 

Confidential by the supplying party. Nothing in this Order is intended to 

expand the scope of materials entitled to protection beyond what is covered by 

Rule 26 or other applicable law. 

It is anticipated that BCBSM will produce in this case hundreds of thousands 

of pages of electronically-stored information as previously produced in Hi-Lex. 

Thousands of pages of that material bear “Confidential” and “Attorney Eyes Only” 

designations. Notwithstanding the foregoing paragraph, BCBSM may keep those 

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designations in this case, but the designations are withdrawn as to (a) designated 

documents in the Hi-Lex materials that were later de-designated in Hi-Lex, or (b) 

documents that are dated 2009 or earlier. As to the remaining designations, 

Plaintiffs may identify specific documents, or reasonably ascertainable categories 

of documents, that it wants de-designated and BCBSM shall promptly review those 

documents to determine, and report to Plaintiffs, whether it will continue the 

designations in accordance with the terms of this order. 

3. Persons Eligible to View Confidential Information: Only Qualified 

Persons are authorized to view confidential information in this case, who are: 

a. Attorneys of record in this litigation and secretaries, paralegals, 

law clerks and support staff employees to whom, in the 

opinion of the attorney of record for the receiving party, it is 

necessary that the information be disclosed for purposes of this 

litigation; 

b. Any person who is not an employee or business consultant of 

a party and who is retained by a party or its attorneys of record 

in this litigation solely as an independent expert for the 

purposes of this litigation and who agrees in writing to be 

bound by the terms of this Protective Order. The independent 

expert must complete and sign a Confidentiality Statement in 

the form of Exhibit A, attached hereto. A copy of that 

Statement must be given to the other party before access is 

allowed to the Confidential information. 

c. Officers, directors, and/or employees expressly designated by 

each party, who, by accepting said designation agree to be 

bound by the terms of this Protective Order. 

d. Any person that an attorney of record in this litigation 

reasonably believes needs to review the confidential 

information to enable the good faith prosecution or defense of 

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this litigation, such as a potential witness. Any such person 

shall complete and sign a Confidentiality Statement in the 

form of Exhibit A, attached hereto. A copy of that 

Statement must be given to the other party before access is 

allowed to the Confidential information. 

e. Any other person who is designated as a Qualified Person by 

Order of this Court, after notice to all parties, or who, by 

written agreement of the parties, is designated as a Qualified 

Person. Any person designated under this subparagraph must 

complete and sign a Confidentiality Statement in the form of 

Exhibit A, attached hereto. A copy of that Statement must be 

given to the other party before access is allowed to the 

Confidential information. 

f. Court reporters, stenographers, clerks, law clerks, and other 

court personnel employed by the Court, and court reporters 

and/or stenographers at depositions. 

4. Persons Eligible to View Attorneys Eyes Only Information: By 

placing the phrase “Attorneys Eyes Only” on a document, a producing party 

designates that document as one to be viewed only by the Court, by attorneys of 

record, and/or by expert consultants retained in this proceeding, who may not 

disclose the content of the document to their client except with the written consent 

of the producing party or by order of the Court. The “Attorney Eyes Only” 

designation is only permissible if the document contains pricing information 

related to BCBSM customers that are not parties to this action, and if the material 

so designated is of a particularly sensitive nature that the opposing party’s 

knowledge of it has a reasonable potential to cause significant commercial harm to 

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the designating party. A requesting party may challenge the designation of a 

document as “Attorney Eyes Only” pursuant to paragraph 17 below. 

5. Method of Designation: All Information produced in this matter shall 

be accorded the protections of this Protective Order if affirmatively designated as 

“Confidential” or “Attorneys Eyes Only.” Documents and things produced which 

contain Confidential information (with the exception of medical records, which 

require no designation) shall be designated as such by marking each page of the 

document or thing at or before the time of production substantially as follows: 

“CONFIDENTIAL”

or 

“CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER”

or 

“ATTORNEYS EYES ONLY” 

or 

“ATTORNEYS EYES ONLY – PURSUANT TO PROTECTIVE ORDER”

In lieu of marking the original of documents, the party may mark the copies that 

are produced or exchanged, before or after an inspection of the originals by the 

other party. The designation of material as Confidential or Attorneys Eyes Only 

constitutes a representation by the designating party and its counsel that they, in 

good faith, believe that the material so designated contains or constitutes 

information which is properly the subject of this Protective Order. A requesting 

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party may challenge the designation of a document as Confidential or Attorneys 

Eyes Only pursuant to paragraph 17 below. 

6. Designation of Deposition Records: Information disclosed at the 

deposition of a party or one of its present or former officers, directors, 

employees, agents, or independent experts retained by a party for purposes of this 

litigation as well as third parties may be designated as Confidential or Attorneys 

Eyes Only information by indicating on the record at the deposition that the 

particular testimony is Confidential or Attorneys Eyes Only information and 

subject to the provisions of this Protective Order. 

7. Effect of Designation and/or Failure to Designate: Designation of 

materials as Confidential is a representation by the designating person that there is 

a valid basis for such designation. Notwithstanding the foregoing, the failure to 

designate materials as Confidential shall not be used against any person as an 

admission or concession that the materials are not eligible for designation, nor shall 

it constitute, be construed as, or have the effect of, a waiver of any kind. In the 

event that a person inadvertently fails to designate materials as Confidential, any 

person to whom the materials were produced, shall, upon written notice, designate, 

and thereafter treat, such materials as though designated as Confidential. 

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III. TREATMENT OF MATERIALS SUBJECT TO PROTECTIVE 

ORDER

8. Prohibited Use of Materials: Materials subject to this Order shall not 

be used for any purpose other than in connection with this litigation. 

Furthermore, materials designated as Confidential and/or Attorneys Eyes Only 

shall not be: (1) made available, directly or indirectly or through paraphrasing, by 

the party receiving it to any persons or entities other than Qualified Persons; or (2) 

used by any person for any purpose other than in connection with this litigation. 

Nothing herein is, however, intended to restrict counsel's use of the general 

knowledge it gains from reviewing materials subject to this Order, as long as such 

use does not include counsel communicating the specific contents of such 

materials. 

9. Permitted Use of Materials: Nothing shall prevent disclosure 

beyond the terms of this Order if the party and/or third-party designating the 

information as Confidential or Attorneys Eyes Only Information consents, in 

writing, to such disclosure, withdraws the Confidential or Attorneys Eyes Only 

designation, or if the Court, after notice to all parties, orders such disclosure. A 

party may, in a deposition, show any witness Confidential information. This 

Protective Order does not prohibit the use or disclosure by a person of 

materials lawfully obtained or developed by such person independently of 

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discovery in this matter, even if such materials are also obtained through discovery 

in this matter. 

10. Inapplicability of Protective Order: This Protective Order shall not 

apply to information that: (i) was, is, or becomes public knowledge (not by any 

way of a violation of this Protective Order); (ii) was or is acquired from a third 

party possessing such information and having no obligation of confidentiality to 

the designating party; or (iii) the receiving party establishes was already in its 

rightful and lawful possession at the time of the disclosure. 

11. Filing and Use of Confidential Material in Court: All 

discovery and other material filed with the Court including, inter alia, transcripts 

of depositions, exhibits, briefs and memoranda, which comprise or contain 

Confidential or Attorneys Eyes Only information shall be filed and kept by the 

Court in sealed envelopes or other appropriately sealed containers on which shall 

be endorsed the title of this action, an indication of the contents of such sealed 

envelope or other container, the identity of the party filing the materials, the words 

“CONFIDENTIAL” and/or “ATTORNEYS EYES ONLY” and a statement 

substantially in the following form: 

THIS ENVELOPE (CONTAINER) CONTAINS DOCUMENTS 

(OBJECTS) SUBJECT TO THE PROTECTIVE ORDER 

ENTERED IN THIS ACTION. IT IS NOT TO BE OPENED NOR 

THE CONTENTS THEREOF DISPLAYED, REVEALED, OR 

MADE PUBLIC, EXCEPT BY ORDER OF THE COURT. 

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Pursuant to LR 5.3 and LR 26.4, the parties agree that any Confidential of 

Attorneys Eyes Only information may be filed under seal without filing of a 

motion to seal each time any Confidential or Attorneys Eyes Only information 

must be filed with the Court. 

12. Return of Materials Subject to the Protective Order: As to all 

Confidential or Attorneys Eyes Only Information excluding medical records: 

Within sixty (60) days after the conclusion of this litigation, including all 

appellate proceedings, originals or reproductions of any documents or things 

produced by a party containing Confidential or Attorneys Eyes Only information 

shall be returned to the producing party or destroyed, except as required by law. 

Moreover, the office of each principal counsel may retain for its archive a 

single copy of any such materials. Principal counsel may also retain all exhibits, 

deposition transcripts, correspondence and papers filed with the Court. There 

shall be no restrictions on the disclosure or use of any trial exhibits, unless the 

exhibits were filed under seal and the Court has not lifted any such restriction on 

the same. As to medical records, within sixty (60) days after the conclusion of this 

litigation, all parties will return all copies of the medical records to the producing 

party or provide the producing party with satisfactory assurances that all copies 

have been destroyed. 

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IV. MISCELLANEOUS

13. Inadvertent or Unintentional Disclosure of Privileged 

Information: If a person inadvertently or unintentionally produces or discloses 

materials that are confidential because of the attorney-client privilege, work 

product doctrine, or other immunity, such person shall promptly give written 

notice to any receiving persons. On receiving such notice, a receiving person shall 

sequester the materials. The producing or disclosing person and the receiving 

person(s) shall thereafter negotiate the disposition of the materials in good faith. 

If, after 7 days, the persons are unable to reach an agreement as to the disposition 

of the materials, either of them may move the Court to resolve the matter. In the 

event of such a motion, no person shall use the fact of production or disclosure to 

argue that any applicable privilege is or was waived. Nothing herein shall preclude 

a receiving person from otherwise challenging or disputing the privilege or 

immunity claimed by the producing person, including by using the materials at 

issue in a manner consistent with this Protective Order. 

14. Non-Waiver of Rights: This Order shall not constitute a waiver of 

any right(s) to: (1) object to any discovery request and withhold information 

and/or materials on the ground of attorney/client privilege, work product or 

otherwise; (2) object to the introduction of any materials as evidence at any 

hearing or trial in this matter; (3) seek other and further protections as to any 

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materials that may be offered or admitted as evidence at any hearing or trial in this 

matter; or (4) file any other motions that may be permitted by any applicable law 

or court rule. Nothing in this Protective Order shall constitute an admission or 

waiver of any objection, claim or defense by any person or party. 

15. Modifications to Order: Any person with proper standing may, 

on motion or other request to the Court and for good cause shown, seek a 

modification of this Order. No modification of this Order that adversely affects 

the protection of any materials produced by a person shall be entered without 

first giving the person appropriate notice and an opportunity to be heard. 

16. Binding Order: This Order shall bind all parties to this litigation and 

any and all other persons to the fullest extent lawfully permissible. 

17. Dispute Resolution: A person need not challenge the propriety of the 

designation of materials as Confidential or Attorneys Eyes Only at the time of 

designation. In the event of a dispute concerning this Protective Order, including, 

but not limited to, a dispute over the designation of materials as Confidential or 

Attorneys Eyes Only, the attorneys for the parties shall first attempt in good faith 

to negotiate a resolution. If the parties are unable to resolve the dispute, the 

producing party shall have 14 days from the date the party opposing the 

designation confirms in writing an impasse to file a motion pursuant to Fed. R. 

Civ. P. 26 to continue the designation. Until the motion is resolved by the 

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Court, the designated materials at issue shall continue to have the protections 

afforded by this Order. If the producing party fails to file a motion within 14 days, 

then the material that was the subject of the dispute shall no longer be entitled to 

protection under this Order. In the event of such a dispute, the party designating 

materials as Confidential or Attorneys Eyes Only bears the burden of justifying 

that designation. 

18. Survival of Litigation: This Order shall survive the termination of 

this litigation, and shall remain in effect until modified, superseded, or terminated 

by order of the Court or by agreement of the parties. 

19. Violations: Any person who violates this Order may be subject to 

sanctions, including injunctive relief, contempt orders, monetary damages, or other 

penalties to be determined by the Court. 

IT IS SO ORDERED. 

Dated: August 19, 2015 s/Denise Page Hood 

 United States District Court Judge 

Stipulated as to form: 

Date: August 11, 2015 

VARNUM LLP

Attorneys for Plaintiffs 

By: /s/ Kyle P. Konwinski 

Kyle P. Konwinski (P76257) 

kpwonwinski@varnumlaw.com 

Date: August 11, 2015 

DICKINSON WRIGHT PLLC 

Attorneys for Defendant 

By: /s/ Randall L. Tatem 

Randall L. Tatem (P78885) 

rtatem@dickinsonwright.com 

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EXHIBIT A

I, , state that: 

1. My address is . 

2. My present employer is . 

3. My present occupation or job description is . 

4. I have received a copy of the Protective Order Governing The 

Exchange Of Information Deemed Confidential By The Parties (“Protective 

Order”) in the matter entitled Trendway Corporation, et al. v. Blue Cross Blue 

Shield of Michigan. 

5. I have carefully read and understand the provisions of the Protective 

Order. I will comply with all of the provisions, including holding in confidence 

and not disclosing to anyone not qualified under the Protective Order, any 

Confidential Document, or information contained in a Confidential Document. 

6. I hereby consent to be subject to personal jurisdiction of the United 

States District Court for the Eastern District of Michigan in respect to any 

proceeding relative to the enforcement of the Protective Order. 

____________________________________ 

Signature 

____________________________________ 

Date 

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