Creech v. Progress Energy Service Company, LLC

Filing 38

CONSENT PROTECTIVE ORDER. Signed by Senior Judge Malcolm J. Howard on 1/2/2013. (Lee, L.)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO.5:II-CV-368-H

BOBBY G. CREECH,
Plaintiff,
v.

PROGRESS ENERGY SERVICE
COMPANY, LLC,
Defendant.

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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 the
termination of Plaintiff s employment by Defendant. Plaintiff asserts claims of discrimination,
retaliation, interference, wrongful discharge, intentional infliction of emotional distress, and
negligent infliction of emotional distress and seeks compensatory damages, liquidated damages,
punitive damages, and other relief. Defendant 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 the discovery in this case may include production and disclosures by the parties
and by third parties of information that may be confidential or proprietary, including, without
limitation, financial information, medical records, personnel information, and employment
records. Accordingly, this 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.

The following definitions shall apply in this Consent Protective Order:
a.

"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/or 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.
b.

"ATTORNEYS'

EYES

ONLY

Information"

shall

mean

CONFIDENTIAL Information that a party, in good faith, believes is so sensitive that it should
not be made available to other parties or their employees and is designated "ATTORNEYS'
EYES ONLY" pursuant to the procedures set forth below. CONFIDENTIAL Information that is
designated ATTORNEYS' EYES ONLY Information shall also be deemed designated
CONFIDENTIAL.
2.

"CONFIDENTIAL" and/or "ATTORNEYS' EYES ONLY" designations shall be

made as follows:
a.

Information shall be designated CONFIDENTIAL and/or ATTORNEYS'

EYES ONLY 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

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placing on each page of the document or each tangible thing the legend or stamp
CONFIDENTIAL and/or ATTORNEYS' EYES ONLY.
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 and ATTORNEYS' EYES ONLY 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 and/or ATTORNEYS' EYES ONLY Information. Ifno
party designates any such document or tangible thing as CONFIDENTIAL and/or
ATTORNEYS' EYES ONLY within said ten-day period, then the CONFIDENTIAL and
ATTORNEYS' EYES ONLY designation will terminate.
111.

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 and/or
ATTORNEYS' EYES ONLY.
IV.

In the case of deposition testimony, counsel may designate, on the

record, those portions of a deposition that counsel believes contain CONFIDENTIAL
Information or ATTORNEYS' EYES ONLY 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. If
designation of ATTORNEYS' EYES ONLY Information is made, those portions of said

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depositions involving such ATTORNEYS' EYES ONLY Information will be taken with no one
present except those persons who are authorized to have access to such ATTORNEYS' EYES
ONLY Information.

A witness, whose deposition is being taken, may see any document

identified as CONFIDENTIAL or ATTORNEYS' EYES ONLY if the witness is within the
category of persons entitled to see this type of information, pursuant to the provisions described
below in subsections 3(a) and (b). 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 or ATTORNEYS' EYES
ONLY. Unless otherwise agreed by counsel, 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.
b.

The parties agree to designate Information as CONFIDENTIAL or

ATTORNEYS' EYES ONLY 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
upon the terms and conditions ofthis Protective Order.
3.

The following restrictions apply to Information designated as CONFIDENTIAL

or ATTORNEYS' EYES ONLY:
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

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such counsel who are assisting with this matter; Defendant's in-house counsel, officers,
directors, and managers; Plaintiff, provided that Plaintiff s counsel must retain physical custody
of the CONFIDENTIAL Information disclosed to Plaintiff, including any copies thereof; 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 to photocopy or image documents or to
prepare charts, summaries, timelines, illustration, or other demonstrative materials to be used in
the litigation; and (iii) witnesses and prospective witnesses to the extent deemed necessary by
counsel to prepare for or give testimony regarding facts at issue in this litigation, or to assist
counsel in performing work in this litigation, but as to this category (iii), counsel 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.

ATTORNEYS' EYES ONLY Information:
1.

Disclosure of Information designated as ATTORNEYS' EYES

ONLY, 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's in-house counsel, officers, directors, and
managers; consultants or experts retained by the parties to consult or testify in the case, but only
to the extent Information is necessary for the consultation work or to prepare to testify and only
after the requirements of subsection 3(b)(ii) below are satisfied; and to the following persons,

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who shall be required first to execute a written declaration, in the form attached hereto as Exhibit
A: services retained by counsel to photocopy or image documents or to prepare charts,
summaries, timelines, illustrations or other demonstrative materials to be used in the litigation.
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.
11.

Before disclosing Information designated as ATTORNEYS' EYES

ONLY to any expert or consultant pursuant to subsection 3(b)(i) above, the following procedures
shall be employed:
(1)

Counsel shall: (i) notify, in writing by either e-mail and

overnight delivery or fax, counsel for the party designating the Information ATTORNEYS'
EYES ONLY of their desire to disclose such ATTORNEYS' EYES ONLY Information; (ii)
obtain a written declaration, in the form attached hereto as Exhibit B, from each such expert or
consultant; and (iii) provide to counsel for the designating party a copy of that declaration.
(2)

If no objection to such disclosure is made by the

designating party within five business days of receipt of such notification and declaration,
counsel shall be free to make such disclosure to the designated expert or consultant, who shall be
bound by the signed declaration.
(3)

If the designating party objects to such disclosure, counsel

may bring before the Court the question of whether the particular ATTORNEYS' EYES ONLY
Information can be disclosed to the required expert or consultant; however, until and unless the
Court orders that the ATIORNEYS' EYES ONLY Information may be disclosed to the
requested expert or consultant, the Information shall not be so disclosed.

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c.

All Information that is designated CONFIDENTIAL or ATTORNEYS'

EYES ONLY 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 and ATTORNEYS' EYES ONLY
Information received by any authorized person shall be used only for purposes of this litigation
and for no other purpose, including but not limited to labor organizing.
d.

In

no

case

shall

Information

designated

CONFIDENTIAL

or

ATTORNEYS' EYES ONLY be disclosed to any person or entity who competes directly or
indirectly with Defendant or any labor organization, including its representatives and agents, that
represents or is engaged in organizing Defendant's employees.
4.

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

designating it as CONFIDENTIAL or ATTORNEYS' EYES ONLY, the party may, as soon as
reasonably practical, inform the other parties of the intended CONFIDENTIAL or
ATTORNEYS' EYES ONLY designation, and all parties shall treat such Information as
CONFIDENTIAL Information or ATTORNEYS' EYES ONLY 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.

If any Information designated CONFIDENTIAL or ATTORNEYS' EYES ONLY

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

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disclosure to the attention of counsel for 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.
6.

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

CONFIDENTIAL Information or ATTORNEYS' EYES ONLY 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.
7.

Before filing with the Court any document (including, but not limited to,

pleadings, briefs, memoranda, depositions, and exhibits) containing or consisting of Information
that has been designated CONFIDENTIAL or ATTORNEYS' EYES ONLY, counsel shall
confer with counsel for the party that so designated the Information about how it should be filed.
If the party that so designated the Information desires that the materials be filed under seal, then
the filing party shall file the materials in accordance with Local Civil Rule 79.2 and Section T of
the Court's Electronic Case Filing Administrative Policies and Procedures Manual, with notice
served upon the designating party. Only those portions of the document containing or consisting
of Information that has been designated CONFIDENTIAL or ATTORNEYS' EYES ONLY need
be filed under seal, and the filing of the materials under seal shall not be binding on the Court.
Within seven 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 that 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 interested parties to object,

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after carefully weighing the interests advance by the movant and those interests favoring public
access to judicial documents and records, and upon finding that the interests advance by the
movant override any common law or constitutional right of public access which may attach to
the documents or Information. Documents and Information 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.
8.

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 or ATTORNEYS' EYES ONLY Information of the substance of
this Order.
9.

Acceptance or receipt by any party of any Information designated as

CONFIDENTIAL or ATTORNEYS' EYES ONLY, or with no designation, shall not constitute a
concession that the Information is properly so designated or not designated.

If any party

disagrees with the designation of any such Information as CONFIDENTIAL or ATTORNEYS'
EYES ONLY, then the party first shall try to resolve such dispute on an informal basis through
consultation with counsel. If agreement cannot be reached by counsel, 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 or ATTORNEYS' EYES ONLY, the parties reserve their right

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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.
10.

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

production of any Information on grounds other than confidentiality.
11.

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 ofthe Court.
12.

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

Information designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY by a party
pursuant to this Order, and all copies thereof, shall be destroyed by all other parties, except that
counsel for each party is entitled to keep copies of pleadings and correspondence and any
attachments or exhibits thereto, including CONFIDENTIAL Information and/or ATTORNEYS'
EYES ONLY 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 shall confirm such

destruction in writing to the designating party. The provisions of this Order insofar as they
restrict the disclosure, communication of, and use of CONFIDENTIAL Information and
ATTORNEYS' EYES ONLY Information produced hereunder shall continue to be binding after
the conclusion of this action.
13.

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

Information as CONFIDENTIAL or ATTORNEYS EYES ONLY from, in writing and without
Court Order, releasing such Information.

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14.

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 ofthis Order.

Dated this']."; day of January 2013.

Malcolm J. Howard
Senior United States District Judge

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WE CONSENT:

DOGGETT LAW OFFICES

SMITH, ANDERSON, BLOUNT, DORSETT,
MITCHELL & JERNIGAN, LLP

By: lsi Eric L. Doggett

Eric L. Doggett

North Carolina State Bar No. 39639

3737 Glenwood Avenue, Suite 100

Raleigh, North Carolina 27612

Telephone: [phone]

Facsimile: [phone]

Email: [e-mail]

By: lsi Zebulon D. Anderson

Zebulon D. Anderson

North Carolina State Bar No. 20831

Isaac A. Linnartz

North Carolina State Bar No. 39858

Post Office Box 2611

Raleigh, North Carolina 27602-2611

Telephone: [phone]

Facsimile: [phone]

Email: [e-mail]

Email: [e-mail]

Attorney for Plaintiff

LAW OFFICES OF GREGORY M. KASH

Attorneys for Defendant

By: lsi Gregory M. Kash

Gregory M. Kash

North Carolina State Bar No. 14203

434 Fayetteville Street, Suite 2350

Raleigh, North Carolina 27601

Telephone: [phone]

Facsimile: [phone]

E-Mail: [e-mail]

Attorney for Plaintiff

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