Faircloth v. Pietras et al

Filing 43

CONSENT PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 03/23/2012. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:11-CV-00314-FL
DAVID TIMOTHY FAIRCLOTH,
Plaintiff,
vs.
D.M. PIETRAS, WENDY LANCASTER,
ROBERT DELEO, each in their individual and
official capacities, and THE CITY OF
RALEIGH,
Defendants

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CONSENT
PROTECTIVE ORDER

THE PLAINTIFF DESIRES to inspect and copy documents contained within the Raleigh
Police Department training files of Defendants Pietras, DeLeo, and Lancaster, who are current
City of Raleigh employees. Said documents are maintained by the City of Raleigh as personnel
records and, pursuant to N.C. Gen. Stat. § 160A-168, may be disclosed only under court order.
The City of Raleigh and Plaintiff, David Timothy Faircloth, now seek an order of protection in
compliance with N.C. Gen. Stat. § 160A-168.
Upon joint motion of the Plaintiff and the City of Raleigh [D.E. 40], IT IS HEREBY
ORDERED THAT:
1.

Personnel information is information which concerns or relates to an individual's

application, selection or non-selection, promotions, demotions, transfers, leave, salary,
suspension, performance evaluations and forms (including observations), disciplinary actions
and termination of employment wherever located and in whatever form. This information may
be located in, but not limited to, the following documents or materials: (a) personnel files, (b)

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evaluations, (c) audio or video recordings, (d) internal or external investigation materials and
reports, and (e) any other similar documents.
2.

Any personnel information or personnel file document obtained in this action which is

asserted by the City of Raleigh to contain or constitute confidential personnel information, shall
be clearly and prominently marked on its face with the legend: "CONFIDENTIAL BY
PROTECTIVE ORDER" or a comparable notice. (Such information shall be disclosed at any
hearing only to Court personnel and to counsel for the parties and their employees.) The City of
Raleigh may, prior to disclosure of any personnel file documents, redact personal identifying
information including but not limited to home addresses, telephone numbers, dates of birth,
social security numbers, and the identity of family members. If at any time a party objects to the
designation of a document or information as being confidential, the objecting party shall notify
the designating party in writing. The objecting party shall identify the information or document
in question, and shall specify in reasonable detail the reason or reasons for the objection. Within
five calendar days of the receipt of such notice, the designating party and objecting party shall
meet and confer in an effort to resolve their differences. If the designating party and the
objecting party cannot resolve their differences, either party may apply to the Court for a ruling.
The confidentiality of the information shall be maintained until the Court rules otherwise.
3.

In the absence of written permission from the City of Raleigh or its designee, or by an

order by the Court, any confidential personnel information or personnel documents obtained 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 testimony;

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(iii)

The parties to this action and their counsel, including necessary secretarial,
paralegal and clerical personnel assisting such counsel;

(iv)

Experts 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)

During the course of a deposition or trial testimony, any witness, potential
witness, deponent or potential deponent in this action. Any party may request that
the witness or deponent agree on the record to be bound by this order, and if the
witness or deponent refuses, the requesting party may request a delay pending a
motion to the Court; provided, however, that witnesses may see their own
personnel records. Nothing in this Order is intended to interfere with an individual
employee’s right to examine his personnel file to the extent permitted by law;

(vi)

Outside contractors hired to copy, index, sort, or otherwise manage the storage
and retrieval of such information, provided that the contractor is advised that the
documents are subject to a protective order; and

(vii)
4.

Any jurors or alternate jurors that may be empanelled for purposes of trial.

Personnel documents or information obtained in accordance with the provisions of

paragraph 2 above shall not be made available to any person designated in paragraph 3(iv)
through 3(vii) unless he or she shall have first read this Order and shall have agreed, by signing
an undertaking in the form of Exhibit A hereto. No person designated in paragraph 3(iv) through
3(vii) receiving personnel documents pursuant to this Order shall be permitted to retain
personnel documents or copies thereof in their possession.

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5.

If the Court orders, or if the City of Raleigh or its designee agrees, that access to, or

dissemination of, documents or information obtained as confidential personnel 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.

Any confidential personnel documents or information submitted to the Court in

connection with a motion or other proceeding within the purview of this action shall be
submitted under seal pursuant to paragraph 2 above. Any portion of a transcript in connection
with this action containing any confidential, personnel information submitted pursuant to
paragraph 2 shall be bound separately and filed under seal. A party may designate such portions
of the transcript by a statement to that effect on the record by counsel for either side during or
before the close of the deposition or hearing, or in writing within thirty (30) days of the
designating party’s receipt of any transcript thereof. When any confidential personnel
information is included in an authorized transcript of a proceeding or exhibits thereto,
arrangements shall be made with the court reporter recording the proceeding to bind such
confidential portions and separately label them: "PERSONNEL INFORMATION, SUBJECT
TO PROTECTIVE ORDER."
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

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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.
7.

If confidential personnel documents information obtained 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 opposing counsel and the Court, and, without prejudice to other rights and remedies
of the other party, make every reasonable effort to retrieve any documents or information
disseminated and to prevent further disclosure by it or by the person who was the recipient of
such information.
8.

Upon final adjudication of this action, all confidential personnel documents or

information subject to the provisions of this order (including any copies made and/or computer
materials made or stored) shall be (a) returned to counsel for the defendant City of Raleigh or (b)
the same (including copies made and/or computer materials made or stored) shall be destroyed.
Each party, however, shall be permitted to retain copies of Court filings containing such
documents, deposition transcripts and all of their respective work product, which shall continue
to be subject to the provisions of this Order.
23rd
March
SO ORDERED, this the _____ day of _____________, 2012.

/s/ Louise W. Flanagan
_______________________________________
LOUISE W. FLANAGAN
UNITED STATES DISTRICT JUDGE

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EXHIBIT A

UNDERTAKING TO BE BOUND
I, __________________________, declare as follows:
I acknowledge receipt of a copy of the Consent Protective Order for Defendants’ Personnel
Records (the “Protective Order”) dated _________________, 2012 in Faircloth v. Pietras, et al.
filed in the United States District Court for the Eastern District of North Carolina Western
Division, Case no. 5:11-CV-00314-FL, and agree that I:
(1) will comply with and be bound by its provisions with respect to any information
provided to me under the terms of this Protective Order;
(2) will not reveal any information provided to me under the terms of this Protective
Order to anyone other such persons designated in paragraph 3 of this Order; and
(3) will utilize such confidential information solely for purposes of this litigation.
I further understand that if I fail to comply with the terms of the Protective Order, I may
be subject to sanctions by the Court, and I consent to the jurisdiction of the above-referenced
Court for such purpose.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct this the _______ day of ______________________, 20______.

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Signature

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Printed Name

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Address

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_________________________________________________
Position

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