Hernandez et al v. Crown Equipment Corporation

Filing 14

ORDER granting 12 Motion for Stipulation. Ordered by U.S. District Judge Hugh Lawson on 11/4/2013. (nbp)

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
JOSE HERNANDEZ and PRISCILLA )
HERNANDEZ,
)
)
Plaintiffs,
)
)
v.
)
)
CROWN EQUIPMENT
)
CORPORATION,
)
)
Defendant.
)
)

CIVIL ACTION
FILE NO. 7:13-CV-91(HL)

STIPULATION AND AGREED CONFIDENTIALITY ORDER
IT IS HEREBY STIPULATED AND AGREED, by and among the parties
hereto, through their undersigned counsel, that the following provisions of this
Stipulation and Agreed Confidentiality Order (the “Stipulation and Order”) shall
govern disclosure and use by the parties of all documents, testimony, exhibits,
interrogatory answers, responses to requests to admit and any other materials and
information (“Discovery Materials”) in the above-referenced action.
1.

When used in this Stipulation and Order, the word “document” shall

have the meaning under Rule 34 of the Federal Rules of Civil Procedure, and shall
include, without limitation, all original written, recorded, electronic or graphic
materials, and all copies, duplicates, or abstracts thereof, including, but not limited
to, notes on documents. A party, person, or entity that produces or discloses

Discovery Materials in connection with this action shall be referred to herein as the
“Disclosing Party.”
2.

All Discovery Materials produced or disclosed in this action shall be

used solely for the prosecution or the defense (including any appeal therefrom) of
such action and shall not be used for any other purpose. Any person or entity in
possession of Confidential Discovery Materials (as defined below) shall maintain
those materials in a reasonably secure manner so that they are not further disclosed
or used in any manner inconsistent with this Stipulation and Order.
3.

Any Discovery Materials produced or disclosed in connection with

this action by a Disclosing Party that the Disclosing Party in good faith believes to
constitute, include, contain, refer or relate to either: (1) trade secret or other
confidential research, development, financial, proprietary or commercial
information that may be subject to a protective order under F.R.C.P. 26(c)(1)(G); or
(2) confidential, non-public personal information concerning individuals such as,
without limitation, social security numbers, home telephone numbers and
addresses, tax returns, personnel evaluations, and medical, credit, and banking
information, may be designated “Confidential” by the Disclosing Party. Except as
provided for in paragraph 4 below, the designation by any Disclosing Party of
Discovery Material as “Confidential” shall constitute a representation that such
Discovery Material has actually been reviewed by an attorney for the Disclosing
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Party and that there is a good faith basis for such designation. Discovery Materials
designated “Confidential” shall be referred to herein as “Confidential Discovery
Materials.”
4.

The Parties agree that the designation of any Discovery Material as

Confidential is not intended to be, and shall not be construed as, an admission that
the Discovery Material is relevant, not subject to an applicable privilege or
protection, admissible in this action, or reasonably calculated to lead to the
discovery of admissible evidence.
5.

Any party receiving Confidential Discovery Materials may disclose or

make available such information only to the following persons:
(a)

the Court, any court to which a party petitions for discovery of a non-

party, any appellate court, necessary court personnel, and jurors;
(b)

the named parties in this action (including in-house counsel, officers,

directors and employees of the named parties who are involved in the management
of this action and solely for the purpose of the prosecution, defense or resolution of
such action);
(c)

outside counsel for the named parties for the purpose of the

prosecution, defense or resolution of this action;
(d)

professional court reporters, stenographers or video operators

transcribing depositions or testimony in this action;
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(e)

persons who are indicated on the face of the document to have been

authors or recipients of the Confidential Discovery Materials;
(f)

any outside expert, advisor or consultant retained by any named party

in connection with this action;
(g)

any person who is a fact witness or potential fact witness (and counsel

for such witness) to the extent reasonably necessary in connection with their
testimony in this action or the preparation thereof; provided, however, that a
person identified solely in this subparagraph shall not be permitted to retain copies
of such Confidential Discovery Materials;
(h)

outside photocopying, data processing, graphic production services,

litigation support services, or investigators employed by the parties or their counsel
to assist in this action and computer personnel performing duties in relation to a
computerized litigation system;
(i)

any mediator or arbitrator engaged by the named parties in connection

with this action; and
(j)

other persons only after notice to all parties and upon order of the

Court, or upon written consent of the Disclosing Party.
The terms “counsel,” “expert,” “advisor,” and “investigator” include their
staff who are assigned to and necessary to assist such counsel, expert, advisor or
investigator in connection with this action.
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6.

The Confidential designation set forth in paragraph 3 of this

Stipulation and Order may be made at or prior to the time of production of
documents by stamping or otherwise marking the Discovery Materials as
“Confidential” on each page of the Confidential Discovery Materials to be deemed
Confidential, or, in the case of depositions, as provided in paragraph 10 below.
When Confidential Discovery Materials are disclosed in a form not appropriate for
such placing or affixing, they shall be designated in writing as Confidential at the
time they are delivered to the receiving party.
7.

Inadvertent failure to designate materials as Confidential at the time of

production may be remedied by supplemental written notice by the Disclosing
Party. If such notice is given, all documents, materials or testimony so designated
shall be subject to this Stipulation and Order as if they had been initially designated
as Confidential to the extent that such documents, materials or testimony fall
within the definition of Confidential Discovery Materials, provided, however, that
the foregoing provision shall not apply to any documents that had already
otherwise become publicly available.
8.

Any inadvertent or mistaken production of material that a Disclosing

Party claims is subject to the attorney-client privilege, the work-product doctrine,
the joint defense privilege, the common interest doctrine, or any other privilege or
protection from disclosure shall not operate to waive such privilege or protection
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from disclosure. Within five (5) business days of learning that a document subject
to the attorney-client privilege, the work product doctrine, the joint defense
privilege, the common interest doctrine, or any other privilege or protection from
disclosure has been inadvertently or mistakenly produced, the Disclosing Party
shall notify the party or parties to whom the document was produced in writing of
the fact of the inadvertent disclosure, the date the inadvertent disclosure was first
discovered, and the circumstances surrounding that discovery. Within five (5)
business days of receiving such written notice, the party or parties to whom the
document was produced shall either: i) notify the undersigned counsel for the
Disclosing Party in writing of an objection to the designation of such material as
privileged, or ii) return all copies of such discovery material to the undersigned
counsel for the Disclosing Party.

A party’s election to return the Discovery

Material in accordance with this paragraph shall be without prejudice to that
party’s right to challenge, at a later date, the claim of privilege with respect to such
Discovery Material. If, at any time, a party notifies counsel for a Disclosing Party
in writing of an objection to a claim of privilege with respect to a document that
was inadvertently produced, then within five (5) business days of the receipt of
such notification, counsel for the Disclosing Party and the objecting party or
parties shall meet-and-confer in an effort to resolve any disagreement regarding the
Disclosing Party’s claim of privilege. If, for whatever reason, the parties do not
6

resolve their disagreement within that time period, the dispute shall be submitted to
the Court for resolution in accordance with the procedure set forth in paragraph 15
below.
9.

Upon receiving written notice of inadvertent disclosure from a

Disclosing Party, the party or parties to whom the document was produced shall
not thereafter use that Discovery Material or the information contained therein for
any purpose, unless and until (a) the designation of privilege is deemed lifted
pursuant to paragraph 15 below, or (b) the Court determines either that the
document is not protected from disclosure or that any such protection was waived.
10.

A Disclosing Party may designate as Confidential any portion of a

deposition transcript deemed to contain such material. The Disclosing Party shall
advise the court reporter and counsel of record of the beginning and end of the
testimony containing Confidential Discovery Material either orally at the
deposition or in writing no later than thirty (30) calendar days after receipt of a
deposition transcript. During such thirty-day period, the parties shall treat the
entire transcript as Confidential. The reporter shall mark “CONFIDENTIAL” on
the face of the transcript at the beginning and end of any portions thereof
designated as such. At the request of any party, the court reporter shall prepare a
separate, original transcript that does not contain the Confidential Discovery

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Material.

Copies of the transcript for counsel’s use may contain both the

Confidential testimony and other testimony in a single volume.
11.

All non-parties, and their employees, to whom Confidential Discovery

Materials are disclosed pursuant to subparagraphs 5(f) or 5(g) as applicable above
shall, prior to disclosure, be advised of the contents of this Stipulation and Order
and that the Confidential Discovery Materials are being disclosed pursuant to the
terms of this Stipulation and Order and may not be disclosed other than pursuant to
the terms hereof. All such persons shall be required to execute a certification
evidencing agreement with the terms of the Stipulation and Order in the form
attached as Exhibit A, which shall be retained by counsel for the party who
provided the Discovery Materials to such persons.
12.

In the event that counsel for any party or non-party determines to file

in or submit to this Court any Confidential Discovery Materials, information
derived therefrom, or any papers containing or making reference to such
information, the pages containing such Confidential Discovery Materials shall be
filed only in sealed envelopes or other appropriately sealed containers on which
shall be endorsed the caption of the relevant action and which shall clearly bear the
stamp “CONFIDENTIAL.” All materials filed under seal shall be available to the
Court and to counsel for the parties to this action for viewing and/or copying.
Filing under seal shall be without prejudice to any party’s right to argue to the
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Court that such document is not Confidential and need not be preserved under seal.
Redacted pages shall be filed in the public record.
13.

If, at any time, any Discovery Materials governed by this Stipulation

and Order are subpoenaed by any court, administrative or legislative body, or by
any other person or entity purporting to have authority to require the production
thereof, the person to whom the subpoena is directed, to the extent permitted by
law, shall promptly give written notice to the Disclosing Party and include with
such notice a copy of the subpoena or request. The person to whom the subpoena
is directed also shall make all reasonable good faith efforts to provide the
Disclosing Party a reasonable period of time (not less than ten (10) business days
unless the subpoena is received less than ten (10) days before compliance is
sought) in which to seek to quash the subpoena, or to move for any protection for
the Discovery Materials, before the person to whom the subpoena is directed takes
any action to comply with the subpoena.
14.

No party shall be obligated to challenge the propriety of a designation

of Discovery Materials as Confidential when initially received, and a failure to do
so shall not preclude a subsequent challenge thereto. If, at any time, a party
objects to a designation of Discovery Materials as Confidential under this
Stipulation and Order, the objecting party shall notify the Disclosing Party in
writing. Within five (5) business days of the receipt of such notification, counsel
9

for the Disclosing Party and the objecting party shall meet-and-confer in an effort
to resolve any disagreement regarding the Disclosing Party’s designation of the
Discovery Materials as Confidential. If, for whatever reason, the parties do not
resolve their disagreement within that time period, the parties shall submit their
dispute to the Court for resolution in accordance with the procedures set forth in
paragraph 15 below. While any such application is pending, the documents or
materials subject to that application will be treated as Confidential until the Court
rules. Nothing in this Stipulation and Order shall be construed as preventing any
party from objecting to the designation of any documents as Confidential or
preventing any party from seeking further protection for any material it produces in
discovery.
15.

In the event of a dispute regarding the propriety of a Disclosing

Party’s (a) designation of particular Discovery Materials as “Confidential,” or (b)
assertion of a privilege with respect to inadvertently produced documents, which
dispute is not resolved through the meet-and-confer described in paragraphs 8 or
14, the dispute shall be submitted to the Court for resolution as follows: Within
fifteen (15) calendar days after the meet-and-confer, or by such other deadline as
may be agreed to in writing by the participants to the meet-and-confer, the party
objecting to the claim of privilege or confidentiality shall notify the Court as
provided in the Court's Letter to Counsel dated August 22, 2013. [Doc. 10]
10

Nothing herein shall be deemed to change the burdens of proof established by
applicable law.
16.

In the event that a Disclosing Party produces two or more identical

copies of a document of which at least one copy is designated as Confidential and
at least one copy is not so designated, once such a discrepancy is actually
discovered by the receiving party, all copies of the document shall be treated as
“Confidential.”
17.

The terms of this Stipulation and Order shall remain in full force and

effect until the final resolution of this action, that is until all appeals involving this
action have been exhausted, the time to appeal in this action has expired, or the
parties in this action have reached a final settlement of all pending claims between
them (“Final Resolution”). Upon Final Resolution, all recipients of Confidential
Discovery Materials shall either (a) use commercially reasonable efforts to destroy
such materials and provide a certification to the Disclosing Party stating that the
Disclosing Party’s documents have been destroyed; or (b) return such materials to
the Disclosing Party at the Disclosing Party’s request. This obligation shall not
apply to pleadings, motions, briefs, supporting affidavits and other court filings, or
attorney work product, correspondence, transcripts or Court opinions and orders
(although the restrictions imposed herein continue to apply to such retained
documents).

Notwithstanding the foregoing provisions of this Paragraph 17,
11

counsel for Plaintiff, at counsel's sole discretion, may retain Confidential
Discovery Materials for a period of four years (being the period for the running of
the statute of limitations for any claim of legal malpractice that might be asserted
against them), for the limited purpose of using, as necessary, the Confidential
Discovery Materials in the defense of any legal malpractice claim arising from this
action that is made against counsel, and the Confidential Discovery Materials may
not be disclosed to third parties outside of any such action. At the conclusion of
any such malpractice action, or four years, whichever first occurs, the Confidential
Discovery Materials shall be destroyed or returned as provided for in this
Paragraph 17.
18.

This Stipulation and Order shall not be construed to affect in any way

the admissibility of any document, testimony or other evidence at any trial or
hearing of this action.
19.

Each party shall have the responsibility, through counsel, to promptly

advise the Disclosing Party of any losses or compromises of the confidentiality of
information or documents governed by this Stipulation and Order. It shall be the
responsibility of the party that lost or compromised the Confidential Discovery
Materials to take reasonable measures to limit the loss or unauthorized disclosure.
20.

Nothing in this Stipulation and Order shall be construed to limit any

Disclosing Party’s use or disclosure of its own documents, materials or information
12

that have been designated as Confidential pursuant to this Stipulation and Order.
In addition, nothing in this Stipulation and Order shall prevent or in any way limit
disclosure, use or dissemination of any documents, information or material that:
(a)

was, is or becomes public knowledge, not in breach of this Stipulation

and Order; or
(b)

was acquired by a party from a non-party having the right to disclose

such information or material or was learned by a party as a result of that party’s
own independent efforts, investigation or inquiry.
21.

This Stipulation and Order shall not prejudice in any way the rights of

any party to introduce into evidence at any trial of this action any document,
testimony or other evidence subject to this Stipulation and Order that is otherwise
admissible, or prejudice in any way the rights of any party to object to the
authenticity or admissibility into evidence of any document, testimony or other
evidence subject to this Stipulation and Order.
22.

Any non-party producing Discovery Materials in this action may be

included in this Stipulation and Order by endorsing a copy of this Stipulation and
Order and delivering it to the requesting party who, in turn, will file it with the
Court and serve it upon counsel for the other parties. The parties to this action may
designate Discovery Materials produced by other parties or nonparties as

13

Confidential in accordance and consistent with the terms and provisions of this
Stipulation and Order.
23.

In the event that additional persons become parties to this action, or in

the event related cases are commenced, such parties shall not have access to
Confidential Discovery Materials produced by or obtained from any Disclosing
Party until the new parties or their counsel confirm in writing to all other parties
that they have read this Stipulation and Order and agree to be bound by its terms.
24.

This Stipulation and Order shall not prevent any party from applying

to the Court for further or additional protective orders, for the modification of this
Stipulation and Order, or from agreeing with the other parties to modify this Order,
subject to approval of the Court.

November
4th
DONE AND ORDERED this ___ day of _______________, 2013.
s/Hugh Lawson
___________________________________
Hugh Lawson, Judge
United States District Court

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Consented and agreed to by:
s/ Richard K. Hines, V
NELSON MULLINS RILEY &
SCARBOROUGH LLP
Richard K. Hines, V
Georgia Bar No. 356300
[e-mail]
Sanjay Ghosh
Georgia Bar. No. 141611
[e-mail]
Atlantic Station, 201 17th Street, NW
Suite 1700
Atlanta, GA 30363
Phone: [phone]

s/ Michael J. Warshauer
WARSHAUER LAW GROUP, P.C.
Michael J. Warshauer
Georgia Bar No. 018720
[e-mail]
Darl H. Champion, Jr.
Georgia Bar No. 910007
[e-mail]
3350 Riverwood Parkway
Suite 2000
Atlanta, Georgia 30339
Phone: [phone]
Attorneys for Plaintiffs

COLEMAN TALLEY LLP
Edward F. Preston
Georgia Bar No. 587416
[e-mail]
910 N Patterson Street
Valdosta, GA 31601
Phone: [phone]
GOODELL, DEVRIES, LEECH &
DANN, LLP
Thomas J. Cullen Jr.
[e-mail]
Kali A. Enyeart (pro hac to be filed)
[e-mail]
One South Street
20th Floor
Baltimore, MD 21202
Phone: [phone]
Attorneys for Crown Equipment
Corporation
15

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
JOSE HERNANDEZ and PRISCILLA )
HERNANDEZ,
)
)
Plaintiffs,
)
)
v.
)
)
CROWN EQUIPMENT
)
CORPORATION,
)
)
Defendant.
)
)

CIVIL ACTION
FILE NO. 7:13-CV-91(HL)

CERTIFICATION CONCERNING CONFIDENTIAL MATERIAL
COVERED BY STIPULATION AND ORDER
I, ________________________________, declare that:
1.

I have received a copy of the Stipulation and Order in this action, and

I have carefully read and understand its provisions. I acknowledge that I am one of
the persons contemplated in the Stipulation and Order as permitted access to
information designated “Confidential” by a Disclosing Party.
2.

I will comply with all of the provisions of the Stipulation Order. I

will hold in confidence, will not disclose to anyone other than those persons
specifically authorized by the Stipulation and Order, and will not copy or use for
purposes other than for this action any information designated “Confidential” that I

receive in this action, except to the extent that such information designated
“Confidential” is or becomes public domain information or otherwise is not
deemed “Confidential” in accordance with the Stipulation and Order.
3.

I agree to subject myself personally to the jurisdiction of the Court for

the purpose of proceedings relating to my performance under, compliance with, or
violation of this Stipulation and Order.
4.

I understand that disclosure of information designated “Confidential”

in violation of this Stipulation and Order may constitute contempt of court.
5.

I declare under penalty of perjury that the foregoing is true and

correct.
Executed on ________________________.

____________________________________
Signature

2