Amos v. Welles et al

Filing 33

CONSENT PROTECTIVE ORDER - Signed by US Magistrate Judge Robert B. Jones, Jr on 12/18/2018. Sent to Michael Don Amos at P.O. Box 331 Morehead City, NC 28557 via US Mail, along with 18-SO-5 Notice. (Sellers, N.)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO.: 4:18-cv-28-D MICHAEL DON AMOS,

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Plaintiff,

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v.

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BILL WELLES and DOUG HENRY
BUICK GMC, INC.,

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Defendants.

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CONSENT PROTECTIVE ORDER
This case is before this Court for entry of a protective order pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure and Local Civil Rule 79.2. This action arises out of Plaintiffs
employment by Defendant. Plaintiff asserts a claim under the Americans with Disabilities Act.
Defendant Doug Henry Buick GMC, Inc. denies all liability and denies that Plaintiff is entitled to
any relief. Because of the nature of the factual issues involved in this case, the parties anticipate
that discovery in this case will include production and disclosure by the parties and by third parties
of information that may be confidential or proprietary, including, without limitation, medical
records, employment records, and financial records. Accordingly, the Court believes that entry of
this Consent Protective Order is in the interest of all parties and in the interest of the fair and
efficient administration of justice. Therefore, until further order of this Court, it hereby is ordered
that the parties shall follow the procedures set forth below with respect to information, documents,
testimony, or tangible things produced or otherwise disclosed in this litigation:
1.

As used in this Consent Protective Order, "CONFIDENTIAL Information" shall

mean any information, documents, testimony, or tangible things ("Information") furnished in the

course of this litigation regarded by a party as confidential

and/~r private information, including

proprietary data, trade secrets, other valuable or commercially sensitive information, confidential
and private information concerning parties, witnesses, and persons not party to this action, and/or
commercially sensitive or otherwise confidential information designated as "CONFIDENTIAL"
pursuant to the procedures set forth below. The term may include Information obtained by any
party from a third party via subpoena, deposition, or other discovery. The term "documents" shall
be broadly construed to include information that is recorded in any form, including but not limited
to hard copy, electronically stored information, and audio and video recordings.
2.

"CONFIDENTIAL" designations shall be made as follows:
a.

Information shall be designated CONFIDENTIAL within the meaning of

this Protective Order in the following ways:
1.

In the case of documents or tangible things, including the

information contained therein, that are produced by any party, designation shall be made by
placing on each page of the document or each tangible thing the legend or stamp
CONFIDENTIAL.
11.

In the case of documents or tangible things, including the

information contained therein, that are obtained by subpoena or other discovery from third parties,
the documents or tangible things automatically shall be deemed CONFIDENTIAL Information
upon receipt, and the receiving party shall furnish copies thereof to all parties within fifteen
business days. All parties then shall have ten calendar days after receipt within which to formally
designate any documents or tangible things as CONFIDENTIAL Information.

If no party

designates any such document or tangible thing as CONFIDENTIAL within said ten-day period,
then the CONFIDENTIAL designation will terminate.

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iii.

In the case of responses to interrogatories and requests for

admission, including the information contained therein, designation shall be made by placing on
the pages containing the CONFIDENTIAL Information the legend "CONFIDENTIAL".
iv.

In the case of deposition testimony, counsel or the prose Plaintiff

may designate, on the record, those portions of a deposition that counsel or prose Plaintiff believes
contain CONFIDENTIAL Information. If designation of CONFIDENTIAL Information is made,
those portions of said depositions involving such CONFIDENTIAL Information will be taken with
no one present except those persons who are authorized to have access to such CONFIDENTIAL
Information in accordance with this Protective Order. A witness, whose deposition is being taken,
may see any document identified as CONFIDENTIAL if the witness is within the category of
persons entitled to see this type of information, pursuant to the provisions described below in
subsection 3(a). Any party shall have thirty days after the receipt of the deposition transcript to
inform the other parties to the action of the portions of the transcript (by specific page and line
reference) to be designated as CONFIDENTIAL. Unless otherwise agreed by the parties, the right
to make such designation shall be waived unless made within the thirty-day period. Prior to such
designation or the expiration of the thirty-day period, the entire deposition transcript shall be
deemed CONFIDENTIAL Information.
v.

In the case of electronically stored information that is produced as a

computer file or otherwise in a native format, designation shall be made by including the word
"CONFIDENTIAL" in the filename of each file so designated, by segregating the information so
designated into folders or other distinct storage containers that are clearly named and/or labelled
"CONFIDENTIAL" or by any other method the parties agree to in writing for designating such
Information as CONFIDENTIAL.

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v1.

In the event that the above methods of designating Information as

CONFIDENTIAL prove infeasible with respect to a specific category or type of Information, the
parties may agree in writing to an alternate method for designating such Information as
CONFIDENTIAL.
b.

The parties agree to designate Information as CONFIDENTIAL on a good

faith basis and not for purposes of harassing the other parties or for purposes of unnecessarily
restricting the other parties' access to information concerning the lawsuit.
c.

Except as permitted by further order of the Court, or by subsequent written

agreement of the parties, such designated Information shall be received by counsel of record and
the prose Plaintiff upon the terms and conditions of this Protective Order.
3.

The following restrictions apply to Information designated as CONFIDENTIAL:
a.

CONFIDENTIAL Information:

Disclosure of Information designated

CONFIDENTIAL, including summaries thereof, shall be limited to the Court; court reporters and
videographers of sworn proceedings; the parties' counsel of record and the employees of such
counsel who are assisting with this matter; Defendant and its officers, directors, and managers;
Plaintiff; and to the following persons, who shall be required first to execute a written declaration,
in the form attached hereto as Exhibit A: (i) consultants or experts retained by the parties to consult
or testify in the case, but only to the extent the information is necessary for the consultation work
or to prepare to testify; (ii) services retained by counsel or the pro se Plaintiff to photocopy or
image documents or to prepare charts, summaries, timelines, illustrations, or other demonstrative
materials to be used in the litigation; and (iii) witnesses and prospective witnesses to the extent
deemed necessary by counsel or the pro se Plaintiff to prepare for or give testimony regarding
facts at issue in this litigatLon, or to assist counsel or the pro se Plaintiff in performing work in this

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Case 4:18-cv-00028-D · Document 30-1 Filed 12/07/18 Page 4of12

litigation, but as to this category (iii), counsel or the pro se Plaintiff must retain physical custody
of the CONFIDENTIAL Information unless consent to release it is given by the party that
designated it CONFIDENTIAL. The originals of all signed declarations shall be maintained by
the party who procures the signature throughout the duration of this litigation, including all
appeals.
b.

All Information that is designated CONFIDENTIAL under this Protective

Order shall be kept confidential and shall not be given, shown, made available, discussed or
otherwise communicated in any manner ("disclosed"), either directly or indirectly, to any person
not authorized to receive the Information under the terms of this Protective Order.
CONFIDENTIAL Information received by any authorized person shall be used only for purposes
of this litigation and for no other purpose.
c.

In no case shall Information designated CONFIDENTIAL be disclosed to

any person or entity who competes directly or indirectly with Defendant.
4.

If, through inadvertence, a party produces any Confidential Information without

designating it as CONFIDENTIAL, the party may, as soon as reasonably practical, inform the
other parties of the intended CONFIDENTIAL designation, and all parties shall treat such
Information as CONFIDENTIAL Information under this Protective Order. To the extent that any
party already has disclosed this Information, that party promptly shall notify the designating party
as to the specific recipients of such Information and shall take all reasonable steps to remove such
Information from said recipients unless they otherwise are entitled to disclosure under.this Order.
5.

Inadvertent disclosure of Information protected by the attorney-client privilege or

the work-product protection (whether designated CONFIDENTIAL or not so designated) in
connection with this litigation shall not waive the privilege or protection.

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6.

If any Information designated CONFIDENTIAL is disclosed to any person other

than in the manner authorized by this Order, the person responsible for the disclosure must
immediately bring all pertinent facts relating to such disclosure to the attention of counsel for the
designating party or to the Plaintiff, if he is the designating party, and, without prejudice to any
other rights and remedies of the parties, make every effort to prevent further disclosure by it or by
the person who was the recipient of such information.
7.

No person or party shall directly or indirectly utilize or disclose any

CONFIDENTIAL Information for any purpose other than the prosecution or defense of this action,
including any appeals and retrials thereof, and such utilization or disclosure must be in compliance
with this Order.
8.

Before filing any information that has been designated CONFIDENTIAL with the

Court, or any pleadings, motions or other papers that disclose any such information, counsel or the

pro se Plaintiff shall confer with the party that produced the information so designated about how
it should be filed. If the party that produced the information so designated desires that the materials
be filed under seal, then the filing party shall file the materials in accordance with Local Civil Rule
Section V.G.l
79.2 and Seetiem T of the Court's Electronic Case Filing Administrative Policies and Procedures
Manual, with notice served upon the producing party. The filing of the materials under seal shall
not be binding on the Court, however. Within fodJl;s-of service of such notice, the party desiring
that the materials be maintained under seal shall file with the Court a Motion to Seal and supporting
memorandum of law specifying the interests which would be served by restricting public access
to the Information. The party that initially filed the materials need not file any such Motion to
Seal or otherwise defend another party's desire that the materials remain sealed. The Court will
grant the Motion to Seal only after providing adequate notice to the public and opportunity for

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interested parties to object, after carefully weighing the interests advanced by the movant and those
interests favoring public access to judicial documents and records, and upon finding that the
interests advanced by the movant override any common law or constitutional right of public access
which may attach to the Information. Documents submitted under seal in accordance with this
paragraph will remain under seal pending the Court's ruling. If the party desiring that the
information be maintained under seal does not timely file a Motion to Seal, then the materials will
be deemed unsealed, without need for order of the Court.
9.

Each time a party seeks to file under seal confidential documents, things, and/or

information, said party shall accompany the request with a motion to seal and a supporting
memorandum of law specifying: (a) the exact documents, things, and/or information, or portions
thereof, for which filing under seal is requested; (b) where it is necessary for the Court to determine
the source of the public's right to access before a request to seal may be evaluated, whether any
such request to seal seeks to overcome the common law or the First Amendment presumption to
access; (c) the specific qualities of the material at issue which justify sealing such material, taking
into account the balance of competing interests in access; (d) the reasons why alternatives to
sealing are inadequate; and (e) whether there is consent to the motion. Finally, in addition to the
motion and supporting memorandum, said party must set out such findings in a proposed order to
seal for the Court.
10.

The parties and their attorneys shall inform all witnesses, consultants, employees,

agents, court reporters, and anyone else who has or had access to any material designated
CONFIDENTIAL Information of the substance of this Order.
11.

Acceptance or receipt by any party of any Information designated as

CONFIDENTIAL, or with no designation, shall not constitute a concession that the Information

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is properly so designated or not designated. If any party disagrees with the designation of any such
Information as CONFIDENTIAL, then the party first shall try to resolve such dispute on an
informal basis through consultation with the other party. If agreement cannot be reached, then the
party opposing the designation may present such dispute to the Court by motion, but all such
designations shall be respected pursuant to the terms of this Order until the Court rules on the
motion. In the resolution of such matter, the burden of establishing confidentiality shall be on the
party who made the claim of confidentiality. Notwithstanding the designation or non-designation
of any Information as CONFIDENTIAL, the parties reserve their right to seek relief regarding
material that they believe was illegally obtained, including, but not limited to, the return of the
material and/or damages for misappropriation or unauthorized use.
12.

This Order shall be without prejudice to the right of any party to oppose production

of any Information on grounds other than confidentiality.
13.

This Order shall not prevent any party from applying to the Court for relief

herefrom, from applying to the Court for further or additional protective orders, or from agreeing
with the other parties to modify or vacate this Order, subject to the approval of the Court.
14.

Within thirty days of the conclusion of this action, including any appeals, all

Information designated as CONFIDENTIAL by a party pursuant to this Order, and all copies
thereof, shall be destroyed by all other parties, except that the pro se Plaintiff and/or counsel for
each party is entitled to keep copies of pleadings and correspondence and any attachments or
exhibits thereto, including CONFIDENTIAL Information, used in this litigation in a secure storage
area subject to the terms of this Consent Order. Within twenty-four hours of destruction, a party
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shall confirm such destruction in writing to the designating party. The provisions of this Order

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insofar as they restrict the disclosure, communication of, and use ·of CONFIDENTIAL Information
produced hereunder shall continue to be binding after the conclusion of this action.
15.

Nothing in this Order shall prevent or limit a party who has designated any

Information as CONFIDENTIAL from, in writing and without Court Order, releasing such
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Information.
16.

Any party to this action may file a motion requesting that the Court sanction or hold

in contempt of Court anyone who violates the terms of this Order.
Dated this

J!L day of 2kce.. !,._,.. , 2018.

United States Magistrate Judge

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WE CONSENT:

SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, L.L.P.
_,

By:

Isl J. Travis Hockaday
J. Travis Hockaday
North Carolina State Bar No. 31588
Email: [e-mail]
Post Office Box 2611
Raleigh, North Carolina 27602-2611
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant

By:

Isl Michael Don Amos (wlp)
Michael Don Amos
P. 0. Box 331
Morehead City, NC 28557
[phone]
Pro Se Plaintiff

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I

EXHIBIT A

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
,
EASTERN DIVISION
NO.: 4:18-cv-00028-D
MICHAEL DON AMOS,
Plaintiff,

v.

)

BILL WELLES an~ DOUG HENRY
BUICK GMC, INC.,
Def~ndants.

DECLARATION OF

1.

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My name is _ _ _ _ _ _ _ _ _ _ _ _ _. I have personal knowledge of

the facts set forth in this Declaration, and if called and sworn as a witness, I would testify
competently to those facts.
2.

I live a t : - - - - - - - - - - - - - - - - - - - - - - -

3.

I am employed as (state p o s i t i o n ) : - - - - - - - - - - - - - -

4.

The full name and address of my employer i s : - - - - - - - - - - - -

5.

I am aware that a Consent Protective Order ("Protective Order") has been entered

in the above-referenced case in the United States District Court, Eastern District of North Carolina
(the "Court"). A copy of that Protective Order has been given to me. I have carefully reviewed
its terms and conditions.
6.

I agree that documents, information, testimony, and tangible things ("Information")

designated as CONFIDENTIAL shall be subject to the terms of the Protective Order and agree to
comply with and be bound by the terms of the Protective Order.
7.

Without limiting the foregoing, I agree that I will not disclose or discuss any

Information designated CONFIDENTIAL except as allowed by the Protective Order.

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8.

I agree to use any Information designated CONFIDENTIAL solely in connection

with participation in this action and for no other purpose.
9.

I am aware that contempt sanctions may be entered against me for violation of the

Protective Order.
10.

I agree to waive any objections to the exercise of personal jurisdiction over me by

the Court.
I declare under penalty of perjury under the laws of the United States of America that the
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foregoing declaration is true and correct.
Executed this __ day of _ _ _ _ _ _ _ _ _ __

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