Drayton et al v. McIntosh County, Georgia et al

Filing 124

PROTECTIVE ORDER. Signed by Magistrate Judge R. Stan Baker on 2/10/2017. (ca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
SARAH FRANCES DRAYTON, et al.,
Plaintiffs,
v.

Civ. No. 2:16-CV-00053-LGW-RSB

MCINTOSH COUNTY, et al.,
Defendants.

PROTECTIVE ORDER
This Protective Order is issued to facilitate document disclosure and production under the
Local Rules and General Orders of this Court and the Federal Rules of Civil Procedure,
including Fed. R. Civ. P. 5.2. Unless modified under the terms contained in this Order, this Order
shall remain in effect through the conclusion of this litigation. In support of this Order, the Court
finds that:
Discovery in this action may involve the exchange of sensitive materials, including
documents that may include information such as individuals’ social security numbers, residential
addresses, financial records, and other information of a private nature. The Parties intend that
private information be kept confidential pursuant to the terms of this Confidentiality Stipulation
and Protective Order (“Protective Order”). Information subject to this Protective Order shall not
be distributed or otherwise disclosed except as provided herein. To protect the respective
interests of the Parties and to facilitate the progress of disclosure and discovery in this case, the
following Order should issue:

IT IS THEREFORE ORDERED THAT:

I.

Scope of this Protective Order

1. For purposes of this Protective Order, the term:
“Confidential Material” is defined as information that the producing Party designates in
good faith should be protected from disclosure and use outside the litigation because the
disclosure and use of such information is restricted by statute or could potentially cause harm to
the interests of the parties and/or nonparties. Confidential Material refers to any record,
document, tangible thing, testimony, information, or other material disclosed, or to be disclosed,
through formal or informal discovery or otherwise in the course of this litigation, that contains:
personal data identifiers as listed in this Court’s local rules, general orders, or the Federal Rules
of Civil Procedure; birth dates; social security numbers; tax payer identification numbers;
income tax returns; medical information; psychological information; criminal records; residential
addresses; identities of minor children; and the current home or cellular telephone number(s) of
any Party, witness, or potential witness in this action. The Parties may move the Court for the
inclusion of additional categories of confidential material. This Protective Order does not
constitute a ruling on the question of whether any particular document or category of information
is properly discoverable, relevant, or admissible, or on any potential objection to the
discoverability, relevance, or admissibility of any record.
2.

The confidentiality of medical and psychological information and other private

health information is governed by Addendum 1 to this Order.

II.

Designation of Confidential Material

3. The Parties shall mark Confidential Material that identifies specific individuals as
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER.” For any Confidential Material,

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such as computer data, the medium of which makes such stamping impracticable, the Parties
shall mark the diskette case and/or accompanying cover letter as “CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER.” Initial Disclosures, answers to interrogatories and other responses
to discovery requests, if any, that contain protected information shall be marked
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER,” and shall be subject to the
limitations on the use of Confidential Material as set forth herein.
4. Inadvertent failure to designate any document or material as containing Confidential
Material will not constitute a waiver of an otherwise valid claim of confidentiality pursuant to this
Protective Order, so long as a claim of confidentiality is asserted within a reasonable time after
discovery of the inadvertent failure.
5. Any Confidential Material produced by the Parties that is designated as Confidential
Material shall be used only for purposes of litigating this action, including any subsequent
appeals. The defendants, private plaintiffs, and their representatives shall not disclose
Confidential Material or any portion thereof to any person or entity not identified in paragraph 6,
below.
6.

Except as provided in this Protective Order or otherwise ordered by this Court, any

Confidential Material that are marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER” may be disclosed only to the following persons:
(a) Counsel in this action;
(b) Parties in this action, to the extent disclosure is necessary for this litigation;
(c) Partners, associates, and legal staff of Counsel in this action, to the extent
reasonably necessary to render professional services in this action;
(d) persons retained by the Parties or their counsel to assist in discovery,

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preparation for any hearing, or to serve as expert witnesses, provided that such disclosure is
reasonably calculated to aid in litigating this action;
(e) persons with factual knowledge relating to this action who may testify as
witnesses at any hearing, including complainants, provided that such disclosure is reasonably and
in good faith calculated to aid in litigating this action;
(f) any deponent in this action during his or her deposition and preparation
therefor;
(g) court reporters and videographers privately-retained to take depositions,
under the terms and limitations specified in this Protective Order; and
(h) Employees of the Georgia Department of Administrative Services
(“GDOAS”) to the extent necessary for the GDOAS to administer any General Liability
Agreements for Defendants State of Georgia and Georgia Department of Natural Resources.
7. The Parties must make reasonable efforts to prevent unauthorized or inadvertent
disclosure of documents designated as containing Confidential Material pursuant to the terms of
this Protective Order. All individuals to whom Confidential Material is disclosed shall be
informed of and shall agree to the terms of this Protective Order prior to receiving access to any
confidential material and shall not disclose information subject to this Protective Order to the
public or to any person or entity except as provided in this Order. Prior to the disclosure of any
Confidential Material to any individual(s) identified in Paragraph 6(e) and/or Paragraph 6(f), said
individual(s) shall acknowledge their agreement to comply with the provisions of this Protective
Order by signing a copy of the Acknowledgment of Stipulation and Protective Order
(“Acknowledgment”) included herein as Attachment A. Counsel will retain copies of the
executed Acknowledgement forms and shall retain the original acknowledgment forms until such

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time as this litigation, including all appeals, is concluded.
8. If any Party or its attorney wishes to disclose Confidential Material subject to this
Protective Order to any person other than those indicated in paragraph 6, above, the attorneys
must obtain the producing Party’s written consent in advance of such disclosure. Any other
persons whom counsel agree may view Confidential Material must also sign Attachment A. If
the producing Party does not consent to the proposed disclosure, then the attorneys may, on
motion after conferring with opposing counsel, seek modification of this Protective Order from
the Court.
9. Any summary or copy of Confidential Material shall be subject to the terms of this
Protective Order to the same extent as the information from which summary or copy is made.
10. Deposition testimony will be deemed confidential only if designated as such when
the deposition is taken or within 30 days after receipt of the deposition transcript. Such
designation must be specific as to the portions of the transcript and/or any exhibits to be
protected.
11. In the event a Party seeks to file any document containing Confidential Material
subject to protection under this Protective Order with the court, that party must take appropriate
action to insure that the document receives proper protection from public disclosure including:
(a) filing a redacted document with the consent of the Party who designated the document as
confidential; (b) where appropriate (e.g., in relation to discovery and evidentiary motions),
submitting the document solely for in camera review; or (c) when the preceding measures are
inadequate, seeking permission to file the document under seal by filing a motion for leave to file
under seal in accordance with S.D. Ga. Rule 79.7.
12. In no circumstance will this Protective Order restrict the Court from using

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Confidential Material.
13. Nothing in this Protective Order will be construed to affect the use of any document,
material, or information at any trial or hearing. A Party that intends to present, or anticipates that
another Party may present, Confidential Material at a hearing or trial must bring that issue to the
attention of the Court and the other Parties without disclosing the Confidential Material except as
allowed under this Order. The Court may thereafter make such orders as are necessary to govern
the use of such information at the hearing or trial.
14. Each Party reserves the right to move to modify the terms of this Protective Order
and to oppose any motion to modify the terms of this Protective Order, including to modify the
definition of Confidential Material, provided that counsel must confer in advance of filing such
motion.
15. Nothing in this Protective Order will be construed or presented as a judicial
determination that any document or material designated as Confidential Information by counsel
or the parties is entitled to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as
the Court may rule on a specific document or issue.

III.

Destruction of Confidential Material at the Conclusion of Litigation

16. The defendants, private plaintiffs, and other receiving individuals shall redact,
destroy, or obliterate all Confidential Material, including all copies thereof, produced or created
in connection with this action upon its conclusion, including any subsequent appeals. Within 30
days of the conclusion of this action and any subsequent appeals, counsel or other persons
receiving Confidential Material protected under this Protective Order must certify in writing to
the Parties’ counsel that all protected materials, and all copies thereof, have been redacted,
destroyed, or obliterated. Within 30 days of the conclusion of this action, and any subsequent

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appeals, counsel or other persons receiving Confidential Material must also certify in writing that
any documents they have created that contain Confidential Material have been redacted,
destroyed, or obliterated provided, however, that no Party is required to redact, destroy, or
obliterate any deposition or hearing transcript or any document or copy thereof that has been
filed with this Court or with a court of appeals of competent jurisdiction in connection with this
action, except to the same degree as the Court required before filing.
17. Nothing herein shall affect the ability of counsel for any Party to use
Confidential Material to locate, contact, depose, or interview potential witnesses in this matter.
Nothing in this Protective Order limits the ability of any Party to appropriately object to attempts
to locate, contact, depose, or interview potential witnesses in this matter.
18. Inadvertent or unintentional production of documents or information containing
Confidential Material that is not designated “confidential” shall not be deemed a waiver in whole
or in part of a claim for confidential treatment.
19. After termination of this litigation, the provisions of this Protective Order shall
continue to be binding, except with respect to those documents and information that become a
matter of public record. This Court retains and shall have continuing jurisdiction over the Parties
and recipients of the Confidential Material for enforcement of the provisions of this Order
following termination of this litigation.
20. This Protective Order shall be binding upon the Parties and their attorneys,
successors, executors, personal representatives, administrators, heirs, legal representatives,
assigns, subsidiaries, divisions, employees, agents, independent contractors, or other persons or
organizations over which they have control.
21. The Court anticipates and encourages the Parties to file a motion to modify the terms

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ATTACHMENT A
ACKNOWLEDGMENT OF STIPULATION AND PROTECTIVE ORDER
I have read and understand the Joint Proposed Confidentiality Stipulation and Protective
Order Regarding Disclosure of Confidential Material (“the Order”) entered in this action, and
hereby agree to be bound by the terms thereof. I confirm that my duties under this
Acknowledgment shall survive the termination of this action and are binding upon me for all
time. I consent to the personal jurisdiction of the United States District Court for the Southern
District of Georgia in the above-captioned action for the purpose of enforcing the
aforementioned Order.

[signature]

[print name]

[print address]

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We so move and agree to abide by the terms of the Order:
Dated: February 3, 2017
Respectfully submitted,
/s/ Jamie L. Crook
Reed N. Colfax (admitted pro hac vice)
Ryan C. Downer (admitted pro hac vice)
Jia M. Cobb (admitted pro hac vice)
Jamie L. Crook (admitted pro hac vice)
RELMAN, DANE & COLFAX PLLC
1225 19th St., NW, Suite 600
Washington, D.C. 20036
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
/s/ Robert Jackson
Robert Jackson (GA Bar #387750)
ROBERT B. JACKSON, IV, LLC
260 Peachtree Street, Suite 2200
Atlanta, Georgia 30303
Tel: [phone]
[e-mail]
Attorneys for Plaintifs

/s/ John E. Bumgartner
John E. Bumgartner
Richard K. Strickland
Bradley J. Watkins
BROWN, READDICK, BUMGARTNER,
CARTER, STRICKLAND & WATKINS, LLP
5 Glynn Avenue, Post Office Box 220
Brunswick, GA 31521-0220
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants McIntosh County,
Sheriff Stephen Jessup, and McIntosh County
Board of Tax Assessors
/s/ Julie Adams Jacobs
Julie Adams Jacobs, Senior Assistant Attorney
General
Michelle J. Hirsch, Assistant Attorney General
Britany H. Bolton, Assistant Attorney General
Alkesh B. Patel, Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
40 Capitol Square, SW
Atlanta, Georgia 30334-1300
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants State of Georgia,
Governor Nathan Deal, Georgia Department of
Natural Resources, and Georgia Department of
Natural Resources Commissioner Mark Williams

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ADDENDUM 1:
CONFIDENTIAL HEALTH INFORMATION
1.

This addendum shall govern the use and disclosure of all material and information

designated as “CONFIDENTIAL – MEDICAL” pursuant to Paragraph 3 of this Addendum. The
terms of the Confidentiality Stipulation and Protective Order shall apply to material and
information so designated, except as altered by this Addendum.
2.

“Confidential Health Information” means any document or information supplied

in any form, or any portion thereof, that identifies an individual in any manner and relates to the
past, present, or future care or health services regarding the individual, relates to the physical or
mental health condition of such individual in any way, or relates to the provision of health care to
such individual. “Confidential Health Information” includes, but is not limited to, medical bills,
claims forms, charge sheets, medical records, medical charts, test results, notes, dictation,
summary forms, intake forms, and related records. “Confidential Health Information” also
includes all notes, summaries, compilations, extracts, abstracts, or oral communications that
contain, are based on, or are derived from “Confidential Health Information.”
3.

Either party may designate any documents or other materials as

“CONFIDENTIAL – MEDICAL” if counsel believes, in good faith, that the documents contain
or reflect Confidential Health Information.
4.

Any Confidential Health Information filed with the Court shall be filed under seal

according to the procedures set forth in the Confidentiality Stipulation and Protective Order.
5.

Materials designated as “CONFIDENTIAL – MEDICAL” shall be used or

disclosed by the receiving party solely for purposes of prosecuting or defending this action, and
shall not be revealed, discussed, or disclosed to any person or entity other than:
(a)

The attorneys that have entered appearances in this litigation and necessary staff
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employed by such attorneys;
(b)

The Court in this action, or any other court having jurisdiction over discovery

procedures in the action, and any court reporter or typist recording or transcribing testimony in
this action, and any outside, independent reproduction firm;
(c)

Employees of the Georgia Department of Administrative Services (“GDOAS”) to

the extent necessary for the GDOAS to administer any General Liability Agreements for
Defendants State of Georgia and Georgia Department of Natural Resources;
(d)

Medical or psychiatric experts retained by the Parties in connection with this

matter, whether testifying or non-testifying;
(e)

Witnesses during their depositions whose testimony concerns either the subject

matter of the documents containing Confidential Health Information or Plaintiffs’ allegations of
emotional distress;
(f)

Individuals who authored or previously received the document in question; or

(g)

Other persons who may be designated by consent of all attorneys of record or

pursuant to Court order.
6.

Prior to disclosure to any person pursuant to Paragraph 5(d), (e), or (g), such

person shall be furnished with a copy of the Confidentiality Stipulation and Protective Order and
this Addendum and shall be required to certify in writing that he or she has read this Order and
Addendum, understands it, and agrees to be bound by its terms. Such certification shall be in the
form of the Acknowledgment of Stipulation and Protective Order included as Attachment A.
7.

The recipient of any Confidential Health Information that is provided pursuant to

this Order shall maintain such Confidential Health Information in a secure and safe area; shall
exercise due and proper care with respect to the storage, custody, and use of all Confidential

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Health Information; and shall not reveal, discuss, or disclose such Confidential Health
Information in any manner or in any form, to any person or any entity other than as provided in
this Order.
8.

Materials designated “CONFIDENTIAL – MEDICAL” shall be destroyed by the

receiving party (and certified in a letter as having been destroyed), or returned to the producing
party as indicated in Part III, Paragraph 16 of the Confidentiality Stipulation and Protective
Order.

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