Howard v. College of the Albemarle et al

Filing 12

PROTECTIVE ORDER signed by Magistrate Judge Robert T. Numbers, II on 12/8/2015. (Jenkins, C.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:15-CV-00039-D
Robert Howard,
Plaintiff,
v.

Protective Order

College of the Albemarle & Kandi
Deitmeyer,
Defendants.

The parties have filed a joint motion requesting that the Court enter a protective order to
govern the discovery and use of confidential information in this proceeding. The Court now
enters this Protective Order to ensure, among other things, that designated confidential
information will not be used for any purpose other than this action, and will not be made public
or otherwise disseminated unless authorized by this Protective Order.
Documents and information are likely to be sought in discovery in this proceeding, which
documents and information relate to employee personnel matters that are confidential and may
be disclosed only under court order, pursuant to Article 2A, Chapter 115D of the North Carolina
General Statute. The statute provides, in pertinent part, that “all information contained in a
personnel file . . . is confidential.” Pursuant to N.C. Gen. Stat. §115D-29(4), a litigant may
inspect such confidential information upon proper court order. In addition, documents sought in
discovery in this proceeding relate to income tax returns which may be subject to the
nondisclosure requirements of 26 U.S.C. §6103.
The Court finds that any such confidential information produced should be subject to this
Protective Order, and that good cause exists for the entry of this Protective Order.

The Court, therefore, enters this Order pursuant to Rules 26(c) & (f) of the Federal Rules
of Civil Procedure and for good cause shown to govern the discovery of confidential personnel
information in this action.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

“Confidential Information” includes information which is referenced in N.C. Gen.

Stat. § 115D-29, as well as information covered by 26 U.S.C. § 6103. Information is not
confidential if it (a) was, is, or becomes public knowledge, not in violation of this Protective
Order; (b) is acquired by a third-party having the right to disclose such information or material;
or, (c) was independently developed by the non–designating party without resort to information
or material produced by the producing party.
2.

Any such Confidential Information submitted either in response to discovery

requests or pursuant to order in this matter, which is asserted by any party to this litigation to
contain or constitute Confidential Information, shall be so designated by such party in writing, or
orally at a deposition, and shall be segregated from other information being submitted. Such
documents shall be clearly and prominently marked on their face with the legend:
“CONFIDENTIAL, PROTECTIVE ORDER, 2:15-CV-00039-D” or a comparable notice. Such
information shall be disclosed at any hearing only to court personnel, to the parties and to
counsel for the parties and their employees.
3.

In the absence of written permission from the designating party or an order by the

court, any Confidential Information submitted in accordance with the provisions of paragraph 2
above shall not be disclosed to any person other than: (i) the Court and the employees thereof;
(ii) Court reporters and stenographers engaged for the taking of deposition testimony or other
discovery in this litigation; (iii) counsel for parties to this lawsuit, including necessary

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secretarial, paralegal and clerical personnel assisting such counsel; (iv) expert witnesses and their
staff who are employed for the purposes of this litigation but who are not otherwise employed
by, consultants to, or otherwise affiliated with a party; (v) deponents or other witnesses who are
called to give testimony in this action; and (vi) such other persons as the party producing the
Confidential Information may consent to in writing. Any Confidential Information shall be used
solely for the purposes of this litigation. Parties may use the information to prepare for trial.
Nothing in this Order is intended to interfere with the rights of an employee of COA with respect
to his or her personnel file or the rights of the person or agencies authorized pursuant to N.C.
Gen. Stat. §115D-29(a)(5) from examining Confidential Information to the extent permitted by
law.
4.

Confidential Information submitted in accordance with the provisions of

paragraph 2 above shall not be made available to any person designated in paragraph 3(iv), (v),
or (vi) unless he or she shall have first read this Order and shall have agreed (i) to be bound by
the terms thereof; (ii) not to reveal such Confidential Information to anyone other than another
person designated in paragraph 3; and (iii) to utilize such Confidential Information solely for
purposes of this litigation.
5.

If the Court orders, or if all parties to the litigation agree, that access to, or

dissemination of, information submitted as Confidential Information shall be made to persons
not included in paragraph 3 above, such matters shall only be accessible to, or disseminated to,
such persons based upon the conditions pertaining to, and obligations arising from this Order,
and such persons shall be considered subject to it.
6.

Before filing any information that has been designated as Confidential

Information with the Court, or any pleadings, motions, or other papers that disclose any such

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information, the parties shall confer with the other, through counsel, if applicable, for the party
that produced the information designated “CONFIDENTIAL” about how it should be filed. If the
party that produced the information designated as Confidential Information desires that the
materials be filed under seal, then the filing party, whether pro se or represented, shall file the
materials in accordance with Local Civil Rule 79.2, E.D.N.C. A copy of the Local Civil Rules
may be found at http://www.nced.uscourts.gov/rules/Default.aspx.
7.

If a party to this Order who is to be a recipient of any information designated as

confidential and submitted in accordance with paragraph 2 disagrees with respect to such a
designation, in full or in part, it shall notify the designating party in writing, and they will
thereupon confer as to the status of the subject information proffered within the context of this
Order. If prior to, or at the time of such a conference, the designating party withdraws its
designation of such information as being subject to this Order, but nonetheless submits such
information for purposes of this litigation, such party shall express the withdrawal, in writing,
and serve such withdrawal upon all parties and the Court. If the recipient and designator are
unable to concur upon the status of the subject information submitted as confidential personnel
information with ten days from the date of notification of such disagreement, any party to this
Order may raise the issue of the designation of such status to the Court, which shall consider the
issue.
8.

If Confidential Information submitted in accordance with paragraph 2 is disclosed

to any person other than in the manner authorized by this Protective Order, the party responsible
for the disclosure must immediately bring all pertinent facts relating to this disclosure to the
attention of the opposing party and their counsel, if any, and, without prejudice to other rights

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and remedies of the other party, make every reasonable effort to prevent further disclosure by it
or by the person who was the recipient of such information.
9.

This Order is concerned only with procedures for the disclosure and use of

Confidential Information during the pretrial stages of this action. A separate order may be
entered at the appropriate time regarding the use of Confidential Information during the trial or
trials of any matter or issue herein.
10.

Upon final adjudication of this matter, each party and its, his or her counsel that

are subject to this order shall dispose of all items containing Confidential Information submitted
in accordance with paragraph 2 above.
Dated:
Dated: December 8, 2015
ROBERT T. NUMBERS, II
______________________________________
UNITED S Numbers, II
Robert T. TATES MAGISTRATE JUDGE
United States Magistrate Judge

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