York v. Lutz et al

Filing 42

CONSENT PROTECTIVE ORDER. Signed by District Judge Terrence W. Boyle on 8/26/2024. (Stouch, L.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
No. 2:22-cv-00038-BO
LARISSA YORK,
Plaintiff,

CONSENT PROTECTIVE
ORDER

vs.

MATTHEW LUTZ, SUSAN MIZELLE,
and CURRITUCK COUNTY SCHOOLS,
Defendants.

This Protective Order shall govern the use and disclosure of information,
documents , testimony, or other tangible things produced in this action by the
Plaintiff and Defendants (collectively, the "Parties").
The Plaintiff has served discovery requests and subpoenas seeking
confidential information protected by state and federal law, such as personnel files
and medical information within personnel files. Good cause exists for the issuance
of this Protective Order to permit disclosure of specific confidential information while
strictly limiting the use such information. Nothing in this Order should be construed
as a waiver of objections other than confidentiality to any discovery, including
the foregoing, and any Party may present such objections to another Party or to the
Court pursuant to applicable rules.
IT IS THEREFORE ORDERED:
1.

This Order shall be deemed to constitute a "proper court order" within

the meaning of the provisions of N.C. Gen. Stat. § 115C-321, so as to allow the
disclosure of personnel file information by a local board of education in response to a

subpoena issued in this action.
2.

This Order shall govern the use and disposition of all information,

documents, electronic files, and other materials disclosed in this case which is
designated as confidential ("Confidential Information") in accordance with this
Order, whether produced by one of the Parties to this case or by a non-party to the
case (a "Non-Party").
3.

As used herein, "Confidential Information" means:
a.

All

information

and

documents

made

confidential

by

Article 21A of Chapter 115C of the N.C. General Statutes;
b.

Any documents or information which are contained m a

personnel file maintained by any Party, Non-Party, or other public entity;
c.

Any documents or information of an educational, medical,

financial, or personal nature which are not generally accessible to the public; or
d.

Any documents or information designated as "confidential" by

the Parties or a Non-Party as provided below.
4.

The Party or Non-Party producing the Confidential Information

described in Paragraph 3 above (a "Disclosing Party") may designate any
information, document, or electronic file that is produced in this case for protection
under this Order by marking it at or before the time of production or exchange with
the legend "CONFIDENTIAL" pursuant to this Order. All CONFIDENTIAL
designations must be based on the good faith belief that the information labeled is
not public and constitutes information subject to a legally protected right of privacy

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or confidentiality. All discovery materials and pleadings (with the exception of
deposition transcripts, which are governed by Paragraph 7 of this Order) must be
designated as CONFIDENTIAL prior to service thereof by stamping the word
"CONFIDENTIAL" on each page containing Confidential Information.

All

documents shall be maintained in confidence by the Party or Parties receiving
Confidential Information (each a "Receiving Party") until expiration of the abovedescribed time limits for designation.
5.

Any information, document,

or electronic file

designated as

CONFIDENTIAL may be delivered, exhibited, or disclosed only to the following
persons: (a) the Receiving Party, including their counsel; (b) any person testifying at
a deposition or court proceeding in this case or who, in counsel's good faith belief,
may be called as a witness in this case; (c) court officials involved in this action and
court reporters transcribing proceedings in this action; (d) experts retained in this
action; (e) potential witnesses in this action who have executed and delivered to
counsel, prior to receipt or review of any Confidential Information, the Protective
Order Confidentiality Agreement in the form attached as Exhibit A. Counsel for the
Parties shall be responsible for obtaining such executed written agreements from all
persons to whom they disclose such infor mation.
6.

Any information, document, or electronic file produced by a Party with

a designation of CONFIDENTIAL pursuant to the terms of this Protective Order shall
not be used by the Receiving Party for any purpose other than the investigation,
discovery, judicial proceedings, trial, and appeal of this case.

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7.

To the extent that any information, document, or electronic file

designated as CONFIDENTIAL is used in the taking of a deposition, such
information shall remain subject to this Order, along with pages of the deposition
testimony referencing the material. Information (including testimony) disclosed at
a deposition may be designated by counsel as CONFIDENTIAL by either:
a.

Indicating on the record at the deposition that the information

1s CONFIDENTIAL and is subject to the provisions of this Protective Order
applicable to CONFIDENTIAL material, respectively; or
b.

Notifying other counsel in writing within thirty (30) days of the

receipt of the transcript of those pages and lines or those exhibits that are
CONFIDENTIAL. Upon being informed that certain portions of a deposition
disclose Confidential Information, counsel for each Party must cause each copy of
the transcript in its custody or control to be so marked as soon as reasonably
possible. All CONFIDENTIAL designations must be based on the good faith belief
of the designating counsel that the material constitutes Confidential Information as
defined herein.
8.

A Party may oppose the designation of any information, document, or

electronic file as CONFIDENTIAL at any time before trial by notifying the
Disclosing Party and giving that Disclosing Party ten (10) days to consider the
request to de-designate the material. If the Parties are unable to agree on the
protected status of a document, the Party opposing the designation may request an
appropriate order from the Court.

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9.

The designation or receipt of any information, document, or electronic

file as Confidential Information pursuant to this Order, shall not be construed as an
admission by a Disclosing Party that such material is relevant or material to any
issue in the case or is otherwise discoverable, or as an admission by a Receiving Party
that such material is, in fact, Confidential Information.
10.

Notwithstanding any other provision of this Order, the designation of

any information, document, or electronic file as CONFIDENTIAL pursuant to this
Order, shall not require a Receiving Party to keep that information confidential
under the terms of this Order if the Receiving Party already has lawfully received
the material from a source other than the Disclosing Party, without an obligation to
keep it confidential. Provided however, that any such Receiving Party shall first
provide notice in writing to the Disclosing Party of the circumstances under which
such Receiving Party has received the same material from a source other than the
Disclosing Party, without an obligation to keep it confidential.
11.

Prior to filing any brief, memorandum, transcript of testimony, or

other document with the Court that incorporates or refers to any information,
documents, or electronic files designated Confidential Information, the filing Party
shall take sufficient measures to ensure that the Confidential Information is not
contained in the public Court file , including, where appropriate, seeking leave
pursuant to EDNC Local Rule 79.2 to file Confidential Information, documents , or
electronic files under seal.
12.

The inadvertent or unintentional disclosure hereafter by the

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Disclosing Party of Confidential Information either by way of document production
or deposition testimony, regardless of whether the information was designated
CONFIDENTIAL at the time of disclosure, shall not be deemed a waiver in whole
or in part of a Party's claim of confidentiality, either as to the specific information
disclosed or as to any other information relating thereto or on the same or related
subject matter. Any inadvertently or unintentionally disclosed Confidential
Information not designated as such pursuant to this Order at the time of its
disclosure shall be designated CONFIDENTIAL, as applicable, as soon as
reasonably possible after the Disclosing Party becomes aware of the erroneous
disclosure and shall thereafter be treated as Confidential Information. No Party
shall be responsible to any other Party or Non-Party for any use made of information
produced and not designated as Confidential Information until such designation is
made in writing.
13.

Subject to the Federal Rules of Civil Procedure, Confidential

Information may be offered in evidence at trial or any hearing in open court subject
to any procedures required by the Court. The Disclosing Party may move the Court
for an order that the evidence be received under conditions to prevent its disclosure
to persons not entitled under this Order to review it. The Court shall then determine
whether the proffered evidence should continue to be treated as Confidential and, if
so, what protection, if any, should be afforded to such evidence at the trial or hearing.
Nothing in this Order shall operate as an admission by any Party that any
information is or is not admissible into evidence in this case.

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14.

With respect to subpoenas or other discovery requests seeking

Confidential Information, any Party may invoke the terms of this Order in writing
with respect to any Confidential Information to be provided to the requesting Party,
provided that the Party invoking the terms of this Order has a confidentiality interest
in the Confidential Information so requested, or has knowledge that a Non-Party
has a confidentiality interest that should be protected, or which it is otherwise
obligated to keep confidential. In the event that a Party seeks discovery from a NonParty to this case, the Non-Party may designate material as confidential or invoke
the terms of this Order in writing to all Parties to the case with respect to any
Confidential Information to be provided to the requesting Party by the Non-Party.
15.

The

Parties,

and

any

representatives,

agents,

independent

contractors, or experts retained by the Parties, who learn of a violation of the terms
of this Order have an obligation to report the violation to the Disclosing Party's
counsel of record or, in the event that the Disclosing Party is not represented by
counsel, directly to the Disclosing Party immediately upon learning of the violation
of this Order. At the same time, any Party learning of a violation of this Order is
obligated to take all reasonable steps to retrieve the Confidential Information
inadvertently disclosed and otherwise to limit any damage caused by a disclosure of
Confidential Information in violation of this Order.
16.

Following entry of a final decision or judgment and the expiration of

the time for appeal in the above-captioned case, and within twenty (20) days after
receipt of a general demand from a Disclosing Party, each Receiving Party shall collect

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all material that has been marked by a Disclosing Party as CONFIDENTIAL,
including any copies or replicas that have been furnished to any other person, and
return it to the Disclosing Party or certify its destruction, together with appropriate
certification of compliance with the terms of this paragraph. Provided however, that
the obligation to return any such material shall not apply to material furnished to
the Court, or material which the Court has determined to be not properly deemed
CONFIDENTIAL. Provided further, the Parties' attorneys shall be permitted to
maintain a file copy in their case files which shall continue to be protected by this
Order.
17.

Any Party may apply to the Court for a modification of this Order for

good cause shown, and nothing herein shall be deemed to prejudice or waive any
Party's right to seek such a modification.
18.

Each Party shall bear its own costs and expenses in complying with

this Order. This provision does not prevent a Party from asserting a claim against any
other Party for any costs or expenses associated with enforcing alleged breach or
failure to abide by this Protective Order.
SO ORDERED, this the "li!day of August, 2024.

11

r

T ~
United States District Judge

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The Parties hereby consent to the foregoing Order.

POYNER SPRUILL LLP

By:

Isl Thomas B. York
Thomas B. York
N.C. State Bar No. 18640
1205 Argus Road
Kill Devil Hills, NC 27948
Tel: [phone]

By:

Isl Stephanie L. Gumm
Stephanie L. Gumm
N.C. State Bar No. 53485
[e-mail]

Laura E. Crumpler
N.C. State Bar No. 8712
[e-mail]

tyor k@yor kla w. us

P.O. Box 1801
Raleigh, NC 27602-1801
Tel: [phone]
Fax: [phone]

Attorney for Plaintiff

Attorneys for Defendants

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EXHIBIT A- PROTECTIVE ORDER CONFIDENTIALITY AGREEMENT

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
No. 2:22-cv-00038-BO
LARISSA YORK,
Plaintiff,
vs.

PROTECTIVE ORDER
CONFIDENTIALITY
AGREEMENT

MATTHEW LUTZ, SUSAN MIZELLE,
and CURRITUCK COUNTY SCHOOLS,
Defendants.

This is to certify that I have read and am fully familiar with the provisions of
the Consent Protective Order entered on August _ _ , 2024, in the above-captioned
matter.
As a condition precedent to my review or handling of any of the documents or
other materials containing confidential information produced pursuant to the
Protective Order or my obtaining confidential information contained in said
documents or other materials, I hereby agree that the Consent Protective Order
shall be deemed to be directed to and shall include me, and I shall observe and
comply with all of the provisions of the Consent Protective Order and I submit to the
jurisdiction of the United States District Court for the Eastern District of North
Carolina for purposes of enforcement of the Consent Protective Order and this
Confidentiality Agreement against me.

Signature

Printed Name

Date