Capitol Commission, Inc. v. Capitol Ministries

Filing 46

Stipulated Protective Order. Signed by District Judge Terrence W. Boyle on 4/28/2012. Parties should read the order in its entirety for critical deadlines and information. (Ruffin, L.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Case No. 5:11-CV-00214-BO

CAPITOL COMMISSION, INC.,
Plaintiff,

v.
CAPITOL MINISTRIES,
Defendant.

STIPULATED PROTECTIVE ORDER

CAPITOL MINISTRIES,
Third-Party Plaintiff,

v.
JOHN E. ANDERSON, JR., GEORGE H.
JACKSON, JAMES YOUNG, and
DANIEL FILE,
Third-Part Defendants.
Plaintiff Capitol Commission, Inc., Defendant and Third-Party Plaintiff Capitol
Ministries, and Third-Party Defendants John E. Anderson, Jr., George H. Jackson, James E.
Young, and Daniel File, by affixing their signatures to this document, have agreed to a Protective
Order entered by the Court on the terms set forth below.
It appearing to the Court that the parties have agreed to the terms of an appropriate

Protective Order to govern discovery proceedings in this action, it is hereby ORDERED as
follows:
1.

Any party hereto producing, or providing documents, testimony, or information,

whether in hard copy or electronic form, in response to discovery or any other formal or informal
request for information or documents, may mark or designate in good faith as "Confidential" or

"Confidential - Attorneys' Eyes Only" all or any part thereof containing sensitive financial
information, trade secret information, or financial or other private information of a third party the
producing party wished to protect under this Consent Protective Order.
a.

The "Confidential - Attorneys' Eyes Only" designation shall only be used

as follows:
1.

Documents containing or providing information regarding current

or future ministry strategic planning; or
II.

Documents containing names or identities of actual or potential

ministry donors or future endorsers or strategic partners.
b.

For all documents designated "Confidential- Attorneys' Eyes Only" that

include some materials that are not highly confidential, the producing party shall also
produce a "Confidential" version with the highly confidential material redacted.
Redactions shall be strictly limited to specific discussions of ministry strategic plans and
donor names and contact information.
c.

Ifa receiving attorney can represent that a producing party's donor(s) was

also a preexisting donor for the receiving party, then the "Confidential - Attorneys' Eyes
Only" designation shall be lowered to "Confidential."
2.

This Order shall apply to all information supplied during discovery in this action

that shall be designated by the party or person producing it as "Confidential" or "Confidential ­
Attorneys' Eyes Only." This Order shall not apply to information that, prior to disclosure, either
is properly in the possession or knowledge of the party to whom such disclosure is made or is
public knowledge, and the restrictions contained in this Order shall not apply to information that
is, or after disclosure becomes, public knowledge other than by an act or omission of the party to

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whom such disclosure is made, or that is legitimately acquired from a source not subject to this
Order.
3.

If an exhibit, pleading, interrogatory answer, admission, production document, or

thing, or any other document or thing, contains information considered confidential by a party, or
a deposition transcript or other transcript of testimony contains information considered
confidential by a party, such pleading, discovery response, exhibit, document, thing, or transcript
shall be designated "Confidential" or "Confidential - Attorneys' Eyes Only" by the producing
party contending that there is confidential information therein. As to any pleading, exhibit,
submission, such designation shall be done page by page.
4.

In connection with exhibits, pleadings, interrogatory answers, admission,

production documents and things, or other documents or things, the designation "Confidential"
or "Confidential- Attorneys' Eyes Only" shall be affixed prior to the production or service of the
pleading, document, or thing upon the other party hereto.
5.

All documents, or any portion thereof, produced for inspection only (Le., copies

have not yet been provided to the receiving party) shall be deemed "Confidential." Counsel for a
party producing documents may mask material deemed privileged or irrelevant to the subject
matter of this action, and may thus produce documents for inspection either in a masked or
unmasked form; however, any document from which material is masked must indicate on its face
the portion masked and the reason for such masking. Further, trial counsel for the party
receiving production of any document from which material has been masked for reasons other
than privilege shall have the right on request to inspect the original document for redacted
material in the most convenient manner available to the parties. When production for inspection
is made with unmasked documents, inspection and access to such documents and information

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contained therein shall be limited to outside litigation counsel identified in paragraph 8. If a
copy of any such unmasked document is requested after inspection, the copy may be masked
prior to providing it to the requesting counsel on the terms set forth above. In that event,
unmasked material and information contained therein shall be deemed "Confidential" only if
labeled or marked in conformity with paragraph 2, with access and dissemination limited as set
forth in paragraph 8. In the event of any dispute as to the propriety of the redaction, the party
objecting to the redaction may submit the issue to the Court for review.
6.

Information disclosed at a deposition or other testimony may be designated as

"Confidential" or "Confidential - Attorneys' Eyes Only" at the time of such deposition or within
twenty (20) days following receipt of the deposition transcript and shall be subject to the
provisions of this Order. Additional information disclosed at such depositions or other testimony
may be designated as "Confidential" or "Confidential - Attorneys' Eyes Only" by notifying the
other party, in writing, within twenty (20) days after receipt of the transcript, of the specific
pages of the transcript that should also be designated and treated. All deposition transcripts shall
be treated as "Confidential- Attorneys' Eyes Only" for a period of twenty (20) days after receipt
of the transcript, and the transcript shall not be disclosed by a non-designating party to persons
other than the deponent and those persons named or approved according to paragraph 8 herein to
review documents or materials designated "Confidential - Attorneys' Eyes Only" on behalf of
that non-designating party.
7.

Before filing any information that has been designated "Confidential" or

"Confidential- Attorneys' Eyes Only" with the Court, or any pleadings, motions or other papers
that disclose any such information, counsel shall confer with counsel for the party that produced
the information so designated about how it should be filed. Jfthe party that produced the

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infonnation so designated desires that the materials be filed under seal, then the filing party shall
file the materials under seal in accordance with Local Rule 79.2(e), with notice served upon the
producing party. The filing ofthe materials under seal shall not be binding on the Court,
however. Within ten (10) days 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
infonnation, pursuant to Local Civil Rule 79.2. 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 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 infonnation. Documents submitted
under seal in accordance with this paragraph will remain under seal pending the Court's ruling.
If the party desiring that the infonnation 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.
8.

The parties shall disclose their respective trial exhibit lists at the times specified in

the Court's Scheduling Order. A party may designate as a trial exhibit any document or thing
that has been marked as "Confidential" or "Confidential - Attorneys' Eyes Only." If any party
objects to another using any as a trial exhibit any document or thing which has been marked as
"Confidential" or "Confidential - Attorneys' Eyes Only," the objecting party shall have ten (10)
days from the date of disclosure to file an appropriate motion with the Court. If no such motion
is filed, the party originally designating the document or thing as "Confidential" or "Confidential

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- Attorneys' Eyes Only" will be deemed to have waived the confidentiality designation only for
the purpose of the document or thing being used as an exhibit at trial. Failure to object to an
item on another party's exhibit list on the grounds that the exhibit has been designated as
"Confidential" or "Confidential - Attorneys' Eyes Only" shall not be construed as a concession
that the exhibit is otherwise authentic or admissible.
9.

All Confidential Information that has been obtained from a party during the

course of this proceeding shall be used only for the purpose of this litigation and not for any
other business, proceedings, litigation, or other purposes whatsoever. It is, however, understood
that counsel for a party may give advice and opinion to his client for the purpose of this litigation
based on his evaluation of information designated as "Confidential" or "Confidential ­
Attorneys' Eyes Only" produced to him by the opposing party provided that such rendering of
advice and opinions shall not reveal the content of such information except by prior agreement
with opposing counsel.
10.

Confidential Information that has been obtained from a party during the course of

this proceeding shall not be given, shown, made available, or communicated in any way, except
upon the written consent of the party or person supplying the information, to anyone other than
as follows:
(a)

For materials designated as "Confidential":
(1)

the parties hereto, including officers or employees of the parties,
provided that such officers or employees shall receive such
"Confidential" information solely on a "need to know" basis for
purposes of prosecuting or defending this litigation and for no
other purposes;

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(2)

counsel for either party, and their paralegals and support staff;

(3)

outside consultants or experts retained for the purposes of assisting
counsel in this litigation, which may not include any officers,
employees, or agents of a party to this action; and

(4)
(b)

the Court, in accordance with the provisions of paragraph 6 above

For materials designated as "Confidential - Attorneys' Eyes Only":
(l)

counsel for either party, and their paralegals and support staff;

(2)

outside consultants or experts retained for the purposes of assisting
counsel in this litigation, which may not include any officers,
employees, or agents of a party to this action; and

(3)
11.

the Court, in accordance with the provisions of paragraph 6 above.

The individuals identified under paragraph lO(a)(3) and lO(b)(2) having access to

information, documents, and things designated as "Confidential" shall be given a copy of this
Order prior to being shown such documents and things and/or information, and its provisions
shall be explained to them by an attorney. Each such person, prior to having access to such
confidential documents and things and/or information, shall agree not to disclose to anyone not
exempted by this Order any Confidential Information derived therefrom and not to make use of
any such Confidential Information other than solely for the purpose of this litigation, and shall
acknowledge in writing, by signing a document in the form of Attachment A attached hereto,
that he or she is fully conversant with the terms of this Order and agrees to comply with it and be
bound by it. Counsel for such disclosing party shall maintain a complete and current file of such
written consents, which file shall be available to the Court in the event of a dispute as to whether
any provision of this Order has been violated.

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12.

Any document designated as "Confidential" or "Confidential - Attorneys' Eyes

Only" may be used in the course of any deposition taken ofthe party producing such document
or its employees without consent, or otherwise used in any deposition with the consent of the
party producing such document, subject to the condition that when such designated document is
so used, the party who made the designation may notify the reporter that the portion of the
deposition in any way pertaining to such designated document or any portion of the deposition
relevant thereto is being taken pursuant to this Order.
13.

In the event that counsel for a non-producing party finds it necessary by reason of

subpoena, court order or otherwise to disclose a producing party's Confidential Information to
persons other than those persons approved to receive such Confidential Information according to
paragraph 8, no less than ten (10) days in advance of such disclosure, that non-producing party's
counsel shall notify the producing party's counsel in writing of: (a) the Confidential Information
to be disclosed; and (b) the person(s) to whom such disclosure is to be made. The producing
party's counsel shall have ten (10) days after receipt of such written notice within which to
object in writing to such disclosure and, in the event that objection is made, no disclosure shall

be made without Order of Court or as upon such terms as the parties hereto agree.
a.

Any challenge shall be ruled on by the Court prior to disclosure of any

"Confidential" or "Confidential - Attorneys' Eyes Only" information.
b.

Nothing in this Paragraph shall be deemed to enlarge or restrict the right

of any party to conduct discovery of any expert.
c.

Nothing in this Order shall be construed as requiring: i) that routine

outside suppliers of litigation support services such as photocopying, scanning, or
coding execute the attached Certificate of Consent; or ii) that the opposing party

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utilizing such services must disclose the identity of such service suppliers to the
opposing party or counsel.
d.

Nothing in this Order shall be construed as requiring that the identity of

graphics preparation and presentation consultants, witness preparation
consultants, jury consultants, or trial presentation consultants be disclosed to the
opposing party or counsel. However, any party utilizing such services is required
to have such proposed service provider conduct a conflict check and execute the
attached Certificate of Consent.
14.

A party shaH not be obligated to challenge the propriety of a designation as

"Confidential" or "Confidential- Attorneys' Eyes Only" at the time made, and a failure to do so
shall not preclude a subsequent challenge thereto. In the event that any party to this litigation
disagrees at any stage of these proceedings with the designations by the designating party or non­
party of any information as "Confidential" or "Confidential- Attorneys' Eyes Only," the parties
and any producing non-party shall first try to resolve such disagreement in good faith on an
informal basis, such as by production of redacted copies. If the disagreement cannot be resolved
on an informal basis, the objecting party may move the Court for an Order modifying the
designated status of such information.
15.

If a party through inadvertence produces or provides discovery of any

Confidential Information without labeling or marking it with the legend "Confidential" or
"Confidential - Attorneys' Eyes Only" as provided in this Protective Order, the producing party
may give written notice to the receiving party or parties that the document, thing, or other
discovery information, response, or testimony contains Confidential Information and should be
treated as such in accordance with the provisions of this Protective Order. Upon receipt of such

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notice, and upon receipt of properly marked documents, the receiving party or parties shall return
said unmarked documents and things and not retain copies thereof, must treat such documents,
things, information, responses and testimony as Confidential Information and shall cooperate in
restoring the confidentiality of such Confidential Information. The inadvertent or unintentional
disclosure by a party of Confidential Information, regardless of whether the information was so
designated 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, provided that the non­
producing party is notified and properly marked documents are supplied as provided herein. The
receiving party shall not be responsible for the disclosure or other distribution of belatedly­
designated Confidential Information as to such disclosure or distribution that may occur prior to
the receipt of such notification of a claim of confidentiality and such disclosure or distribution
shall not be deemed to be a violation of this Protective Order.
16.

It is not the intention of this Protective Order to fully address discovery objections

to produce, answer, or respond on the grounds of attorney-client privilege or work product, nor
to preclude either party from seeking further relief or protective orders from the Court as may be
appropriate under the Federal Rules of Civil Procedure.
17.

Inadvertent production of documents subject to work product immunity or the

attorney-client privilege shall not constitute a waiver of this immunity or privilege, provided that
the producing party shall notify the receiving party in writing of such inadvertent production no
later than the first time that the producing party knows or should have known of its use by the
receiving party. Such inadvertently produced documents shall be returned to the producing party
upon request, provided that the producing party establishes the circumstances surrounding the

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documents' inadvertent production. No use shall be made of such documents during deposition
or at trial, nor shall they be shown to anyone who has not already been given access to them
subsequent to the request to return them. In the event that the receiving party disputes the
alleged inadvertent nature of the original production of the privileged materials as asserted by the
producing party, the receiving party shall furnish prompt notice to the producing party and the
parties shall thereafter attempt to reach agreement concerning this issue within seven (7) days
after such notice. In the event that the parties are unable to reach an agreement resolving the
disputed issue within the seven (7) day term, then the producing party may petition the Court
regarding the matter within ten (10) days thereafter. In the meantime, the non.producing party
shall not disclose the document, for which the belated claim of immunity or privilege is being
made, to any persons, other than those persons who have had it in their possession prior to
receipt of notification from the producing party, until the expiration of the ten (10) day period
identified in this paragraph or, if a petition to the Court is submitted, until disposition of that
petition. Following expiration of the ten (10) day term, nothing in this Protective Order excludes
either party from petitioning the Court for return of later discovered, inadvertently produced
work product immunity or attorney/client privileged documents.
18.

The terms of the Protective Order are applicable to Confidential Information

submitted by a non-party, and Confidential Information produced by a non-party in connection
with this litigation is protected by the remedies and relief provided by the Protective Order. To
protect its own Confidential Information, a party may ask the non-party to execute a document in
the form of Attachment A.
19.

Nothing in this Order shall prevent or restrict any person from using or disclosing

in any manner its own "Confidential" or "Confidential - Attorneys' Eyes Only" information that

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it has produced or disclosed in this litigation. With respect to documents designated
"Confidential" or "Confidential - Attorneys' Eyes Only," any person indicated on the face of the
document to be its originator, author, or a recipient thereof, may be shown the same.
20.

Any person or entity that produces "Confidential" or "Confidential - Attorneys'

Eyes Only" information in response to a discovery request or subpoena in this action is intended
to be a beneficiary of this Order and may pursue all remedies available for violation thereof. No
provision of this Order shall be deemed to require any person or entity not a party to this action
to respond to any discovery request or subpoena, except as may otherwise be required by law.
Nothing in this Order shall prevent or prohibit any party or non-party from seeking such
additional or further protection as it deems necessary to protect documents or information subject
to discovery in this action.
21.

Within sixty (60) days following the conclusion of this litigation, all information

designated as Confidential Information shall, upon request, be returned to the producing party, or
disposed of pursuant to the instructions of the producing party. Nothing in this Agreement shall
prevent Counsel for either party retaining for archival purposes depositions, trial transcripts, or
exhibits which do not contain Confidential Information. Counsel may retain one complete set of
legal papers containing material designated as "Confidential" or "Confidential - Attorneys' Eyes
Only" provided that said legal papers are kept in a separate file clearly marked with the notation:
"CONTAINS CONFIDENTIAL INFORMA nON SUBJECT TO PROTECTIVE ORDER."
22.

The restrictions provided for above shall not terminate upon the conclusion of this

lawsuit, but shall continue until further Order ofthis Court; provided, however, that this
Protective Order shall not be construed:

12

(a)

to prevent any party hereto or its respective counsel from making use of
information that was lawfully in its possession prior to the approval by the Court
of this Protective Order;

(b)

to apply to information that the other party or its counsel lawfully obtains from a
third party having the right to disclose such information;

(c)

to apply to information developed independently by a party as reflected by written
documents; or

(d)

to apply to information that is in the public domain before the date of entry of this
Order or subsequently becomes part of the public domain through no act of a nondesignating party.

23.

This Stipulated Protective Order is without prejudice to the right of a party hereto

to seek relief from the Court, upon good cause shown, from any of the provisions or restrictions
provided herein.

So ORDERED the ttrJaY of

~ 2012.
Th Honorable Terrence W. BO)j
United States District Judge for e
Eastern District of North Carolina

l3

CONSENTED TO:

COATS & BENNETT, PLLC

By:

sfAnthony J. Biller
Anthony J. Biller
N.C. State Bar No. 24117

Emily M. Haas

N.C. State Bar No. 39,716

1400 Crescent Green, Suite 300

Cary, NC 27518

Telephone: [phone]

Facsimile: [phone]

Email: [e-mail]

[e-mail]

POYNER SPRUILL LLP

By: sf Eric P. Stevens
Eric P. Stevens
N.C. State Bar No. 17609

P.O. Box 1801

Raleigh, NC 27602-1801

Telephone: [phone]

Facsimile: 919.783.1075

Email: [e-mail]

sf Andrew H. Erteschik
Andrew H. Erteschik
N.C. State Bar No. 35269

P.O. Box 1801

Raleigh, NC 27602-1801

Telephone: [phone]

Facsimile: 919.783.1075

Email: [e-mail]

COUNSEL FOR PLAINTIFF
CAPITOL COMMISSION, INC. and
THIRD-PARTY DEFENDANTS
JOHN E. ANDERSON, JR.,
GEORGE H. JACKSON, JAMES E.
YOUNG, and DANIEL FILE

COUNSEL FOR DEFENDANT
CAPITOL MINISTRIES
SWEENEY & GREENE LLP

By: sf Stephen J. Greene. Jr.
Stephen J. Greene, Jr.
C.A. State Bar No. 178098

9381 East Stockton Blvd., Suite 218

Elk Grove, CA 95624

Telephone: [phone]

Facsimile: [phone]

Email: [e-mail]

COUNSEL FOR DEFENDANT
CAPITOL MINISTRIES

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ATTACHMENT A

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

Case No. 5:11-CV-00214-BO

CAPITOL COMMISSION, INC.,
Plaintiff,

v.
CAPITOL MINISTRIES,
Defendant.
CERTIFICATE OF CONSENT TO BE
BOUND BY PROTECTIVE ORDER

CAPITOL MINISTRIES,
Third-Party Plaintiff,

v.
JOHN E. ANDERSON, JR., GEORGE H.
JACKSON, JAMES E. YOUNG, and
DANIEL FILE,
Third-Pa

Defendants.

The undersigned hereby acknowledges that he or she has read the Protective Order
entered in this action by the United States District Court for the Eastern District of North
Carolina, and that he or she understands the tenns thereof and agrees as follows:
1.

All infonnation and documents disclosed to the undersigned pursuant to the

Protective Order shall be used only in connection with the above-captioned action (the
"Litigation") and shall not be used for any business or other purpose.
2.

Such infonnation and documents shall be disclosed to and discussed only with the

parties' outside counsel and other persons so authorized pursuant to the terms of the Protective
Order, who have in accordance with the provisions of the Protective Order executed a similar
Certificate of Consent. Neither such documents or infonnation nor infonnation acquired or

extracted from such documents or information will be divulged or made accessible to any other
person, company, firm, news organization, or any other person or entity whatsoever, except in
compliance with the Protective Order and this Certificate of Consent. This Certificate of
Consent does not limit the right of the signatory to testify at trial in this action or to prepare
documents or other materials for submission at trial in this action.
3.

The undersigned agrees to take all appropriate and necessary precautions to avoid

loss or inadvertent disclosure of documents or information covered by the Protective Order.
4.

The undersigned further agrees to return all information and documents in his or

her possession or control (including all abstracts, summaries, descriptions, lists, synopses,
pleadings, or other writings reflecting or revealing such information) and covered by the
Protective Order, to the attorney from whom he or she received such documents and information
within thirty (30) days after the termination ofthis Litigation, including all appeals, or within
thirty (30) days after the undersigned is no longer associated with this Litigation, whichever
comes first.

S.

The undersigned acknowledges that a violation of the terms of the Protective

Order may subject the undersigned and/or hislher employer to sanctions, including, but not
limited to, punishment for civil contempt.
Dated: _ _ _ _ _ _ _ _ __
Signature

Printed Name

Address

Employer(s)
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