State Farm Mutual Automobile Insurance Company et al v. Howard et al

Filing 63

ORDER granting 62 Motion for Entry of Consent Confidentiality Order by State Farm Fire and Casualty Company, State Farm Mutual Automobile Insurance Company. Signed by Magistrate Judge G. R. Smith on 3/3/2014. (loh)

U.S.

c.i.'i.i.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

-3 P 12: 22

C E
..

STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY and STATE FARM FIRE
AND CASUALTY COMPANY,

9
~

F

Plaintiffs,
Civil Action No. CV4I 2 215
-

V.

THURMAN LEE HOWARD; and
FRANK POWERS and HEATHER
POWERS, Individually, as Husband
and Wife, and as Parents and Next
Friends of their minor children B.P.,
C.P. and E.P.,

Defendants.

CONSENT CONFIDENTIALITY ORDER
The parties to this Consent Confidentiality Order have agreed to the terms of this
Order; accordingly, it is ORDERED:
1.

Scope. All documents produced in the course of discovery after the date of
execution of this Order, including all responses to discovery requests, all
deposition testimony and exhibits, other materials which may be subject to
restrictions on disclosure for good cause and information derived directly
therefrom (hereinafter collectively "documents"), shall be subject to this Order
concerning confidential information as set forth below.

2.

Form and Timing of Designation. A party may designate documents as
confidential and restricted in disclosure under this Order by placing or affixing

the words "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" on the
document in a manner that will not interfere with the legibility of the document
and that will permit complete removal of the CONFIDENTIAL - SUBJECT
TO PROTECTIVE ORDER designation. Documents shall be designated
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER prior to or at the
time of the production or disclosure of the documents. The designation
"CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" does not mean
that the document has any status or protection by statute or otherwise except
to the extent and for the purposes of this Order.
3.

Documents Which May be Designated CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER.

Any party may designate documents as

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER but only after review
of the documents by an attorney or a party appearing pro se who has in good
faith determined that the documents contain information protected from
disclosure by statute or that should be protected from disclosure as
confidential personal information, trade secrets, personnel records, or
commercial information.
4.

Depositions. Deposition testimony shall be deemed CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER only if designated as such. Such
designation shall be specific as to the portions to be designated
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER. Depositions, in
whole or in part, shall be designated on the record as CONFIDENTIAL

-2-

- SUBJECT TO PROTECTIVE ORDER at the time of the deposition.
Deposition testimony so designated shall remain CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER until seven days after delivery of the
transcript by the court reporter. Within seven days after delivery of the
transcript, a designating party may serve a Notice of Designation to all
parties of record as to specific portions of the transcript to be designated
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER. Thereafter, those
portions so designated shall be protected as CONFIDENTIAL- SUBJECT TO
PROTECTIVE ORDER pending objection under terms of this Order. The
failure to serve a Notice of Designation shall waive the CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER designation made on the record of the
deposition.
5.

Protection of Confidential Material.

(a)

General Protections. Documents designated CONFIDENTIAL -

SUBJECT TO PROTECTIVE ORDER under this Order shall not be used or
disclosed by the parties, counsel for the parties or any other persons identified in

116 (b) for any purpose whatsoever other than to prepare for and to conduct discovery
and trial in this action, including any appeal thereof.
(b)

Limited Third-Party Disclosures. The parties and counsel for the parties

shall not disclose or permit the disclosure of any CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER documents to any third person or entity except as set forth
in subparagraphs (l)-(6). Subject to these requirements, the following categories of

-3-

persons may be allowed to review documents that have been designated
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER:
(1) Counsel. Counsel for the parties and employees of counsel who have

responsibility for the preparation and trial of the action;
(2) Parties. Parties and employees of a party to this Order, but only to the

extent counsel determines that the specifically named individual party or
employee's assistance is reasonably necessary to the conduct of the
litigation in which the information is disclosed;
(3) Court Reporters and Recorders. Court reporters and recorders

engaged for depositions;
(4) Contractors. Those persons specifically engaged for the limited purpose

of making copies of documents or organizing or processing documents but
only after each such person has completed the certification contained in
Attachment A, Acknowledgement of Understanding and Agreement to Be
Bound;
(5) Consultants and Experts. Consultants, investigators, or experts

(hereinafter referred to collectively as "experts") employed by the parties or
counsel for the parties to assist in the preparation and trial of this action but
only after such persons have completed the certification contained in
Attachment A, Acknowledgment of Understanding and Agreement to Be
Bound; and

-4-

U

(6) Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions as may be
agreed or ordered. All such persons shall execute the certification contained
in Attachment A, Acknowledgment of Understanding and Agreement to Be
Bound.
(c)

Control of Documents.

Counsel for the parties shall make reasonable

efforts to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER pursuant to the
terms of this Order. Counsel shall maintain the originals of the forms signed
by persons acknowledging their obligations under this Order for a period of
six years from the date of signing.
(d)

Copies. Prior to production to another party, all copies, electronic images,
duplicates, extracts, summaries or descriptions (hereinafter referred to
collectively as "copies) of documents designated as CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER under this Order, or any individual
portion of such a document, shall be affixed with the designation
"CONFIDENTIAL- SUBJECT TO PROTECTIVE ORDER" if the word does
not already appear on the copy. All such copies shall thereafter be entitled
to the protection of this Order. The term "copies" shall not include indices,
electronic databases or lists of documents provided these indices, electronic
databases or lists do not contain substantial portions or images of the text of
confidential documents or otherwise disclose the substance of the
confidential information contained in those documents.
-5-

6.

Filing of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER
Documents Under Seal. Before any document marked as CONFIDENTIAL

SUBJECT TO PROTECTIVE ORDER is filed with the Clerk, the party filing
the document shall make reasonable efforts to ensure that the document is
protected from public disclosure. The filing party shall first consult with the
party which originally designated the document as CONFIDENTIAL SUBJECTTO PROTECTIVE ORDER to determine whether, with the consent
of that party, a redacted document may be filed with the Court not under seal.
However, it is ordered that the party which originally designated a document
as CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER bears the burden
of proof upon any motion of establishing that said document is confidential.
7.

Challenges by a Party to Designation as Confidential. Any

CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER designation is
subject to challenge by any party or non-party (hereafter "party"). The
following procedure shall apply to any such challenge.
(a)

Objection to Confidentiality. Within 30 days of the receipt of any

document designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER or
of the refusal to produce a document on the ground of such designation, a party
may serve upon the designating party an objection to the designation. The objection
shall specify the documents to which the objection is directed and shall set forth the
reasons for the objection as to each document or category of documents.
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents to which
objection has been made shall remain CONFIDENTIAL - SUBJECT TO
I

PROTECTIVE ORDER until designated otherwise by waiver, agreement or order of
the Court.
(b)

Obligation to Meet and Confer. The objecting party and the party which

designated the documents to which objection has been made shall have fifteen (15)
days from service of the objection to meet and confer in good faith, either in person
or telephonically, in an effort to resolve the objection by agreement. If agreement is
reached confirming or waiving the CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER designation as to any documents subject to the objection, the designating
party shall serve on all parties a notice specifying the documents and the nature of
the agreement.
(c)

Obligation to File Motion. In the absence of agreement as to any

documents designated CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER, the
designating party shall file within 30 days of the service of the objection a motion to
retain the CONFIDENTIAL - SUBJECTTO PROTECTIVE ORDER designation. The
moving party has the burden to show good cause for the CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER designation of documents to which objection
was made.
8.

Action by the Court. Applications to the Court for an order relating to

documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER shall be by motion. Nothing in this Order or any action or agreement
of a party under this Order limits the Court's power to make Orders
concerning the disclosure of documents produced in discovery or at trial.
9.

Use of Confidential Documents or Information at Trial. A party which

-7-

intends to present or which anticipates that another party may present at trial
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents or
information derived therefrom shall identify the document, not the
information, in the Pretrial Order. The Court may thereafter make such
Orders as are necessary to govern the use of such documents or information
at trial.
10.

Obligations on Conclusion of Litigation.

(a)

Order Remains in Effect. Unless otherwise agreed or ordered, this Order

shall remain in force after dismissal or entry of final judgment not subject to further
appeal.
(b)

Return of CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER

Documents. Within thirty days after dismissal or entry of final judgment not subject

to further appeal, all documents treated as CONFIDENTIAL SUBJECT TO
PROTECTIVE ORDER under this Order, including copies as defined in

I 6(d), shall

be returned to the producing party unless: (1) the document has been offered into
evidence or filed without restriction as to disclosure; (2) the parties agree to
destruction in lieu of return; (3) as to documents bearing the notations, summations,
or other mental impressions of the receiving party, that party elects to destroy the
documents and certifies to the producing party that it has done so; or (4) consists
of deposition testimony which have been marked CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER. Notwithstanding the above requirements to return or
destroy documents, counsel may retain attorney work product, including an index
which refers or relates to information designated CONFIDENTIAL - SUBJECT TO

PROTECTIVE ORDER. This work product shall continue to be CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER under this Order. An attorney may use his or
her work product in subsequent litigation provided that its use does not disclose or
use CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER documents.
11.

Other Subject to Modification. This Order shall be subject to
modification by the Court on its own motion or on motion of a party or any
other person with standing concerning the subject matter. Motions to modify
this Order shall be served and filed under the Local Rules.

12.

No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of
facilitating discovery. Nothing herein shall be construed or presented as a
judicial determination that any documents or information designated
CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER by counsel or the
parties is subject to protection until such time as the Court may rule on a
specific document or issue.

13.

Persons Bound. This Order shall take effect when entered and shall be
binding upon all counsel and their law firms, the parties, and persons made
subject to this Order by its terms.

WE

So Ordered this

of

f)4Judge,
ed States District Court for the
'
Southern District of Georgia
We agree to abide by the terms of this Order, this 28' day of February, 2014.

Is! G. Mason White
G. Mason White
State Bar No.: 754581
Attorney for Plaintiffs
BRENNAN, HARRIS & ROMINGER LLP
Post Office Box 2784
Savannah, GA 31402
[phone]
Email: qmw@bhrle-gal.c o

Travis D. Windsor
Travis D. Windsor
State Bar No.: 770441
Attorney for Defendant Thurman Lee Howard
BRENNAN & WASDEN, LLP
Post Office Box 8047
Savannah, Georgia 31412
[phone]
Email: twindsor(brennanandwasden.com

Is! Kristy B. Sweat
Stephen G. Lowry
State Bar No.: 460289
Kristy B. Sweat
State Bar No.: 731312
Attorneys for Defendants Powers
HARRIS PENN LOWRY DELCAMPO, LLP
405 East Perry Street
Savannah, Georgia 31401
[phone]
Email: steveflpL[aI.com
Email: ksweat(ãhplleqa1.com
F:\SF\Howard , Jane\Consent Confidentially Agreement.wpd

Is

ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY and STATE FARM FIRE
AND CASUALTY COMPANY,

Plaintiffs,
Civil Action No. CV4I 2-215
V.

THURMAN LEE HOWARD; and
FRANK POWERS and HEATHER
POWERS, Individually, as Husband
and Wife, and as Parents and Next
Friends of their minor children B.P.,
C.P. and E.P.,

Defendants.

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Confidentiality
Order dated

in the above-captioned action and attached

hereto, understands the terms thereof, and agrees to be bound by its terms. The
undersigned submits to the jurisdiction of the United States District Court for the
Southern District of Georgia in matters relating to the Confidentiality Order and
understands that the terms of the Confidentiality Order obligate him/her to use
documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER in
accordance with the Order solely for the purposes of the above-captioned action, and
not to disclose any such documents or information derived directly therefrom to any
other person, firm or concern.

-11-

The undersigned acknowledges that violation of the Confidentiality Order may
result in penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:

Date:
Signature
Consent confidentiality agreement

-12-