DEES et al v. CAROTHERS CONSTRUCTION INC

Filing 41

ORDER granting 40 Motion for Protective Order. Ordered by US DISTRICT JUDGE CLAY D LAND on 8/31/2021 (Attachments: # 1 Declaration Form) (tlp)

Case 4:19-cv-00006-CDL Document 41 Filed 08/31/21 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION

UNITED STATES OF AMERICA
ex rel. JAMES DEES,
Plaintiff,
v.
CAROTHERS CONSTRUCTION,
INC.,

Case No. 4:19-CV-00006 (CDL)

Defendant.
STIPULATED PROTECTIVE ORDER AND NON-WAIVER ORDER
THIS MATTER is before the Court on the Parties’ Joint Motion for a
Protective Order filed on August 30, 2021 pursuant to Fed. R. Civ. P. 26(c) and
Local Rule 5.4. The parties represent to the Court that discovery in this case will
involve the production and review of confidential information of both parties and
potentially non-parties to this action, as well as sensitive business information of
Defendant. The parties move the Court for entry of this Stipulated Protective Order
and Non-Waiver Order to protect the legitimate privacy interests of the parties and
non-parties. The parties believe that there is good cause for entry of the Protective
Order.
Appearing appropriate for good cause shown, the Court hereby ORDERS:

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WHEREAS, documents, testimony, and information have been and may be
sought, produced, or exhibited by and among the parties relating to confidential
commercial information, confidential information of or about third parties, or other
proprietary information belonging to Defendant, and/or other confidential
information of Plaintiff or third parties.
WHEREAS, Plaintiff and Defendant acknowledge that there exists a
possibility that a party may produce documents which would otherwise be subject
to a claim of privilege. The parties acknowledge and agree that the protections of
Federal Rule of Evidence 502(b) shall govern the production of such documents and
prevent the waiver of any privileges or protections.
1. This Order shall govern the use, handling, and disclosure of all documents,
testimony, or information produced or given in this action and designated in
accordance with this Order.
2. Any documents, testimony, or information submitted, either voluntarily or
pursuant to any subsequent order, which is asserted in good faith by the producing
party or by any other party to contain or constitute information protected by statute
or that should be protected from disclosure such as confidential personal
information, medical or psychiatric information, trade secrets, personnel records, or
such other sensitive commercial information that is not publicly available, including

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information subject to a contractual duty of confidentiality owed to a third party,
shall be so designated in writing, or orally at a deposition, hearing, or trial, and shall
be segregated from other information being submitted. Materials so designated shall
be clearly marked on their face with the legend: “CONFIDENTIAL” or
“CONFIDENTIAL-ATTORNEY’S EYES ONLY.” Such documents, transcripts, or
other materials are referred to herein as “CONFIDENTIAL MATERIALS” and
“CONFIDENTIAL-AEO MATERIALS,” respectively. To the extent electronically
stored information is produced in a format that does not permit the branding of the
designation on the face of the document (e.g., native Excel files or database exports),
the producing party shall add the abbreviation “CONF” or “CONF-AEO,”
respectively, to the file name of such documents.
3. A party wishing to designate portions of a deposition transcript
CONFIDENTIAL or CONFIDENTIAL-ATTORNEY’S EYES ONLY pursuant to
this Order must, within five (5) business days from the conclusion of the deposition,
order the original or a copy of the transcript of the deposition from the court reporter
for regular turnaround. The designating party may designate those portions of the
transcript CONFIDENTIAL or CONFIDENTIAL-ATTORNEY’S EYES ONLY, in
accordance with paragraph 2 of this Order. The designating party shall designate
such CONFIDENTIAL MATERIAL or CONFIDENTIAL-AEO MATERIAL
either on the record during such deposition or by serving upon all counsel of record
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via email or other electronic transmission a Notice setting forth the pages, line
numbers, and designations. The designating party must serve such Notice within
fourteen (14) calendar days after its counsel receives a copy of the deposition
transcript. All transcripts will be treated as CONFIDENTIAL until the expiration of
the fourteen-day period from the date of receipt of the transcript described in this
paragraph. Any portions of a transcript designated as CONFIDENTIAL or
CONFIDENTIAL-ATTORNEY’S EYES ONLY shall thereafter be treated as
CONFIDENTIAL

or

CONFIDENTIAL-ATTORNEY’S

EYES

ONLY

in

accordance with this Order. The parties shall negotiate in good faith to alter the time
frames set forth in this paragraph in situations where a more expedited filing of a
designated portion of the deposition transcript is required.
4. No person shall use any CONFIDENTIAL MATERIALS and
CONFIDENTIAL-AEO MATERIALS, or any information derived therefrom
(including but not limited to all testimony, deposition or otherwise, that refers,
reflects, or otherwise discusses any such information), directly or indirectly, for any
business, commercial, or competitive purposes or for any purpose whatsoever other
than solely for the discovery, the preparation, and trial of this action, and/or in
accordance with this Order. The parties agree that CONFIDENTIAL MATERIALS
and CONFIDENTIAL-AEO MATERIALS produced in discovery in this case shall

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not be used, in whole or in part, by the receiving party in any other legal or
administrative proceeding, other than as stated herein.
5. Subject to paragraph 9, in the absence of prior written permission from the
designating party or an order by the Court, no person shall disclose
CONFIDENTIAL MATERIALS to any person other than: (i) the parties, their
attorneys of record, and those attorneys’ support staff employees who perform work
tasks related to this case; (ii) qualified persons taking testimony involving such
material and necessary stenographic, videographic, and clerical personnel; (iii)
disclosed experts or consulting experts and their staff employed for this litigation;
(iv) present or former employees of the producing party in connection with their
depositions in this action; (v) any governmental agency, including the Department
of Justice and the United States Attorneys’ Office; (vi) outside photocopying and
electronic discovery vendors; and (vii) the Court, Court personnel, and members of
any jury impaneled to hear this case.
6. Subject to paragraph 9, in the absence of prior written permission from the
designating party or an order by the Court, CONFIDENTIAL-AEO MATERIALS
shall not be disclosed to any person other than counsel of record in this case and
those attorneys’ support staff who perform work tasks related to this case or as
provided in paragraph 5(ii) through 5(iii) and paragraph 5(v) through 5(vii) of this
Order. All persons to whom CONFIDENTIAL-AEO MATERIALS are disclosed
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are hereby enjoined from disclosing the same to any other person except as provided
in this Order and are also enjoined from using the same except in the preparation for
and trial of this case between the named parties thereto. No person receiving or
reviewing CONFIDENTIAL-AEO MATERIALS shall disseminate or disclose them
to any person other than those permitted to receive it per this paragraph for the
purposes so specified. In no event shall such person make any other use of such
CONFIDENTIAL-AEO MATERIALS.
7. Subject to paragraph 9, no person shall disclose CONFIDENTIAL
MATERIALS or CONFIDENTIAL-AEO MATERIALS to any person designated
in paragraph 5(iii) unless he or she has executed a written, dated declaration in the
form attached hereto as Exhibit A, acknowledging that he or she has first read this
Order, agreed to be bound by the terms hereof, agreed not to reveal such
CONFIDENTIAL MATERIALS or CONFIDENTIAL-AEO MATERIALS to
anyone, and agreed to utilize such CONFIDENTIAL MATERIALS or
CONFIDENTIAL-AEO MATERIALS solely for the purposes of this litigation. The
Court hereby enjoins all persons to whom CONFIDENTIAL MATERIALS or
CONFIDENTIAL-AEO MATERIALS are disclosed from disclosing the same to
any person or using the same, except as provided in this Order.
8. No person receiving or reviewing CONFIDENTIAL MATERIALS or
CONFIDENTIAL-AEO MATERIALS shall disseminate or disclose them to any
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person other than those described above in paragraphs 5, 6, and 7 for the purposes
specified, and in no event shall such person make any other use of CONFIDENTIAL
MATERIALS or CONFIDENTIAL-AEO MATERIALS.
9. In the event that any party disagrees with any designation made under this
Order, the parties shall first try in good faith to resolve the disagreement informally.
If the parties cannot resolve the dispute and the receiving party concludes in good
faith that the designating party has improperly classified the materials, the receiving
party shall notify the designating party in writing by email or other electronic
transmission of its objection but shall continue to maintain the documents or other
information as CONFIDENTIAL or CONFIDENTIAL-AEO for fifteen (15) days
after such notice. The designating party shall have the right to move the Court for a
Protective Order to retain the designated status of such materials. If the designating
party files such a motion within the fifteen-day period, the receiving party shall
continue to maintain the materials as CONFIDENTIAL or CONFIDENTIAL-AEO,
consistent with the designating party’s designation, until the Court has ruled on the
designating party’s motion.
10. Subject to paragraph 9, and notwithstanding anything to the contrary in
this Order, the Order shall not apply to exclude evidence from public disclosure
when that evidence is relied upon in support of or opposition to any motion or
relevant in any hearing or trial. If a party seeks to rely upon any evidence covered
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by this Order in support of or in opposition to any motion or during any hearing or
trial, that party shall notify the opposing party at least 14 days prior to filing the
motion and/or 14 days prior to the hearing or trial. In instances where this is not
practical (for example, compliance with a filing deadline), the parties agree to work
together to provide reasonable notice of the intent to use confidential materials. The
parties shall have an obligation to meet and confer in good faith to determine whether
a redacted version of the CONFIDENTIAL MATERIALS or CONFIDENTIALAEO MATERIALS can be filed with the Court. Absent an agreement between the
parties, the opposing party shall have 7 days to respond objecting to the public
disclosure of the information, and the opposing party shall also file a motion to allow
the materials to be filed under seal, which shall state a compelling reason in support
of that motion. In instances where this is not practical (for example, compliance
with a filing deadline), the parties agree to work together to provide objections
within a reasonable amount of time (for example, prior to any filing deadline).
11. The inadvertent or unintentional disclosure of CONFIDENTIAL
MATERIALS or CONFIDENTIAL-AEO MATERIALS by a producing party
without the appropriate designation shall not be deemed a waiver in whole or in part
of that party’s claim of confidentiality, either as to the specific information disclosed
or as to any other information relating thereto or on the same subject matter provided
that the disclosure is inadvertent, the producing party took reasonable steps to
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prevent disclosure, and the producing party promptly took reasonable steps to rectify
the error. Upon such notice, the receiving party, upon the producing party’s request
or upon its own initiative at such time as it reasonably and in good faith believes
itself to be in possession of inadvertently produced materials, whichever occurs first,
shall promptly return the inadvertently produced materials, and all copies of those
materials that may have been made and any notes regarding those materials shall be
destroyed.
12. Subject to paragraph 9 and excluding pleadings and documents filed with
the Court, within sixty (60) days after the conclusion of this case, upon written
request, the parties shall assemble and return to the designating party all materials
containing

CONFIDENTIAL

MATERIALS

and

CONFIDENTIAL-AEO

MATERIALS (with the exception of drafts of pleadings filed with the Court, which
the receiving party may retain but shall continue to treat as CONFIDENTIAL
MATERIAL and CONFIDENTIAL-AEO MATERIAL as provided in this Order).
The receiving party may elect to destroy such materials rather than return them, in
which case the receiving party shall provide written verification that the receiving
party has destroyed the materials, including any summaries, extracts, compilations,
notes, or other attorney work product containing CONFIDENTIAL MATERIALS
and CONFIDENTIAL-AEO MATERIALS (with the exception of drafts of
pleadings filed with the Court). However, counsel are permitted to maintain a
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complete copy of the electronic case file in “closed case filing/storage” consistent
with the requirements of errors and omissions insurance and attorney malpractice
requirements.
13. This Order shall remain binding after the conclusion of this case unless
otherwise ordered by the Court, and the Court shall retain jurisdiction over all parties
bound hereby for the purposes of enforcing this Order. Each individual signing the
acknowledgement attached as Exhibit A agrees to be subject to the jurisdiction of
this Court for purposes of this Order.
14. This Order does not prevent any party from seeking to seal trial transcripts
and/or trial exhibits or from seeking any other similar relief pursuant to Local Rule
5.4.
15. No party may use the entry of this Order, nor the designation of any
material as “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEY’S EYES
ONLY,” nor the failure to make such designation, as evidence on any issue in this
case.

A

party’s

designation

of

materials

as

“CONFIDENTIAL”

or

“CONFIDENTIAL-ATTORNEY’S EYES ONLY” does not waive that party’s
objection to any discovery on any ground, including but not limited to, relevancy or
that it seeks information protected by Federal Rule of Civil Procedure 26(c) or any
other provision of law.

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16. Nothing in this Protective Order shall be deemed a waiver by any party of
any objections that party may have at time of trial to any evidence, including but not
limited

to

CONFIDENTIAL

MATERIALS

or

CONFIDENTIAL-AEO

MATERIALS, on any grounds including but not limited to relevance, admissibility,
authenticity, or hearsay.
17. Nothing herein shall affect or restrict the rights of any party to use its own
documents or information or to use information or documents obtained or developed
independently of materials afforded CONFIDENTIAL treatment pursuant to this
Order.
18. Third parties who are the subject of discovery requests, subpoenas, or
depositions in this case may take advantage of the provisions of this Order by
providing Plaintiff and Defendant with written notice that they intend to comply with
and be bound by the terms of this Order.
Entered this 31st day of August, 2021.
__S/Clay D. Land
The Honorable Clay D. Land
United States District Judge

WE ASK FOR THIS:
Respectfully submitted this 30th day of August, 2021.

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/s/ Jason Pedigo_______________________
Jason S. Pedigo
Georgia Bar No. 140989
Attorneys for Relator
ELLIS PAINTER RATTERREE &
ADAMS
P.O. Box 9946
Savannah, GA 31412
T: [phone]
[e-mail]

/s/ Bradley W. Pratt____________________
Bradley W. Pratt
Georgia Bar No. 586672
Charles L. Clay, Jr.
Georgia Bar No. 129505
Attorneys for Relator
PRATT CLAY, LLC
4401 Northside Parkway
Suite 520
Atlanta, GA 30327
T: [phone]
[e-mail]
[e-mail]

/s/ Daniel K. Johnson
William E. Dorris
Georgia Bar No. 225987
Daniel K. Johnson
Georgia Bar No. 280571
Attorneys for Carothers Construction, Inc..
KILPATRICK TOWNSEND &
STOCKTON LLP
1100 Peachtree Street
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Suite 2800
Atlanta, Georgia 30309
Telephone:[phone]
Facsimile: [phone]
[e-mail]

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