Owens, et al v. Dixie Motor Company, et al
Filing
46
STIPULATED PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 12/13/2012. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
C.A. No. 5:12-cv-389-FL
)
ASHLEY OWENS and NINA OWENS,
Plaintiffs, )
)
)
vs.
)
)
DIXIE MOTOR COMPANY, JANET
)
PIERCE, ANTWAND CHERRY,
)
WESTERN SURETY CO., and EQUIFAX
)
INFORMATION SERVICES, LLC,
Defendants. )
______________________________________ )
STIPULATED
PROTECTIVE ORDER
The Parties having agreed to the following, and for good cause shown, IT IS HEREBY
ORDERED as follows:
1.
PURPOSES AND LIMITATIONS
This case includes allegations that the Plaintiffs’ personal and financial information was
improperly obtained, utilized and disseminated by the Defendants. As such, disclosure and
discovery activity in this action may involve production of confidential, proprietary, or private
personal identifying information such as Social Security or taxpayer-identification numbers,
dates of birth, names of minor children, financial account numbers, home addresses, sensitive
information involving personal financial, medical, matrimonial, or family matters, and
employment records of individuals for which special protection from public disclosure and from
use for any purpose other than prosecuting this litigation may be warranted. The parties
acknowledge that this Order does not confer blanket protections on all disclosures or responses
to discovery and that the protection it affords extends only to the limited information or items
that are entitled, under the applicable legal principles, to treatment as confidential. Nothing in
TRI1\828446v2
this Order shall preclude any person or entity from disclosing or using, in any manner or for any
purpose, any information or document if that information or document is lawfully obtained from
a third party without confidentiality restrictions.
2.
CONFIDENTIAL INFORMATION
“Confidential Information” shall mean Social Security or taxpayer-identification
numbers; dates of birth; names of minor children; financial account numbers; where appropriate,
home addresses; sensitive information involving personal financial, medical, matrimonial, or
family matters; employment records of individuals whether parties or non-parties; or trade
secrets and other confidential research, development, or commercial information (regardless of
how generated, stored or maintained). Parties and non-parties may designate any Confidential
Information supplied in any form, or any portion thereof, as Protected Material (defined below)
for purposes of these proceedings. Such designation shall constitute a representation to the Court
that counsel believes in good faith that the information (1) constitutes Confidential Information
and (2) that there is good cause for the Confidential Information to be protected from public
disclosure. The parties and non-parties shall make a good faith effort to designate information so
as to provide the greatest level of disclosure possible, but still preserve confidentiality as
appropriate.
3.
DEFINITIONS
3.1.
Party: any party to this action, including all of its officers, directors, consultants,
retained experts, and outside counsel (and their support staff).
3.2.
Non-party: any individual, corporation, association, or other natural person or
entity other than a party.
2
TRI1\828446v2
3.3.
Disclosure or Discovery Material: all items or information, regardless of the
medium or manner generated, stored, or maintained (including, among other things, testimony,
transcripts, or tangible things) that are produced or generated in disclosures or responses to
discovery in this matter.
3.4.
Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
3.5.
Producing Party: a Party or Non-party that produces Disclosure or Discovery
Material in this action.
3.6.
Designating Party: a Party or Non-party that designates information or items that
it produces in disclosures or in responses to discovery as Protected Material. The Party or Nonparty designating information or items as Protected Material bears the burden of establishing
good cause for the confidentiality of all such information or items.
3.7.
Protected Material: any Disclosure or Discovery Material that is designated by a
Party or Non-party as “CONFIDENTIAL” according to paragraphs 1 and 6, unless the Receiving
Party challenges the confidentiality designation and (a) the Court decides such material is not
entitled to protection as confidential; (b) the Designating Party fails to apply to the Court for an
order designating the material “CONFIDENTIAL” within the time period specified below; or (c)
the Designating Party withdraws its confidentiality designation in writing.
3.8.
Outside Counsel: attorneys who are not employees of a Party but who are retained
to represent or advise a Party in this action.
3.9.
House Counsel: attorneys who are employees of a Party.
3
TRI1\828446v2
3.10.
Counsel (without qualifier): Outside Counsel and House Counsel (as well as their
support staffs).
3.11.
Expert: a person with specialized knowledge or experience in a matter pertinent to
the litigation who has been retained by a Party or its/her/his counsel to serve as an expert witness
or as a consultant in this action and who is not: (a) a past or a current employee of a Party; (b) a
past or a current employee of a competitor of a Party; or (c) at the time of retention, anticipated
to become an employee of a Party or a competitor of a Party. This definition includes a
professional jury or trial consultant retained in connection with this litigation.
3.12.
Professional Vendors: persons or entities that provide litigation support services
(e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing,
storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.
4.
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material
(as defined above), but also testimony, conversations, or presentations by parties or counsel to or
in court or in other settings that reveal Protected Material.
5.
DURATION
Even after the termination of this litigation, the confidentiality obligations imposed by
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
order otherwise directs.
6.
DESIGNATING PROTECTED MATERIAL
6.1.
Exercise of Restraint and Care in Designating Material for Protection. Each Party
or Non-party that designates information or items for protection under this Order must use good
4
TRI1\828446v2
faith efforts to limit any such designation to specific material that qualifies under the appropriate
standards. A Designating Party must use good faith efforts to designate for protection only those
parts of material, documents, items, or oral or written communications that qualify – so that other
portions of the material, documents, items, or communications for which protection is not
warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routine designations are strictly prohibited. Designations that
are shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to
unnecessarily encumber or retard the case development process, or to impose unnecessary
expenses and burdens on other parties), may subject the Designating Party to sanctions upon
appropriate motion to the Court.
If it comes to a Party’s or a Non-party’s attention that information or items that it
designated for protection do not qualify for protection, that Party or Non-party must promptly
notify all other parties that it is withdrawing the mistaken designation.
6.2.
Manner and Timing of Designations. Except as otherwise provided in this Order
(see, e.g., second paragraph of section 6.2(a), below), or as otherwise stipulated or ordered,
material that qualifies for protection under this Order must be clearly so designated before the
material is disclosed or produced.
Designation in conformity with this Order requires:
a. For information in documentary form (apart from transcripts of depositions or
other pretrial or trial proceedings), the Producing Party must affix the legend
“CONFIDENTIAL” at the bottom of each page that contains protected material. If only a
portion or portions of the material on a page qualifies for protection, the Producing Party also
5
TRI1\828446v2
must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins, but not over text).
A Party or Non-party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which
material it would like copied and produced. During the inspection and before the designation, all
of the material made available for inspection shall be deemed Protected Material. After the
inspecting Party has identified the documents it wants copied and produced, the Producing Party
must determine which documents, or portions thereof, qualify for protection under this Order,
then, before producing the specified documents, the Producing Party must affix the legend
“CONFIDENTIAL” at the bottom of each page that contains Protected Material. If only a
portion of the material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the margins, but not
over text).
b. For testimony given in deposition or in other pretrial or trial proceedings, the
Party or Non-party offering or sponsoring the testimony must identify on the record, before the
close of the deposition, hearing, or other proceeding, all protected testimony. When it is
impractical to identify separately each portion of testimony that is entitled to protection, and
when it appears that substantial portions of the testimony may qualify for protection, the Party or
Non-party that sponsors, offers, or gives the testimony may invoke on the record (before the
deposition or proceeding is concluded) a right to have up to 20 days following preparation and
delivery of the preliminary transcript to identify the specific portions of the testimony as to
which protection is sought. Only those portions of the testimony that are appropriately
6
TRI1\828446v2
designated for protection within the 20 days following preparation and delivery of the
preliminary transcript shall be covered by the provisions of this Stipulated Protective Order.
Transcript pages containing Protected Material must be separately bound by the court
reporter, who must affix to the bottom of each such page the legend “CONFIDENTIAL,” as
instructed by the Party or Non-Party offering or sponsoring the witness or presenting the
testimony. If only a portion of the material on a page qualifies for protection, the Producing
Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in
the margins, but not over text).
c. For information produced in some form other than documentary, and for any
other tangible items, the Producing Party must affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend
“CONFIDENTIAL.” If only portions of the information or item warrant protection, the
Producing Party, to the extent practicable, shall also identify the protected portions in such a way
that does not interfere with the viewing of the evidence.
6.3.
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items as “CONFIDENTIAL” does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such material. If material
is appropriately designated as “CONFIDENTIAL” after the material was initially produced, the
Receiving Party, on timely notification of the designation, must make reasonable efforts to
assure that the material is treated in accordance with the provisions of this Order.
6.4.
Inadvertent Production of Privileged Information. If a party, through
inadvertence, produces or provides material that it believes is subject to a claim or attorney-client
7
TRI1\828446v2
privilege, work product immunity, or any other privilege or immunity, the Producing Party may
give written notice to the Receiving Party that the material is subject to a specific privilege or
immunity and request that the material be returned to the Producing Party. The Receiving Party
shall return the material. Return of the material shall not constitute an admission or concession,
or permit any inference that the returned material is, in fact, properly subject to a claim of any
privilege or immunity, nor shall it foreclose any party from moving the Court for an order that
such document or thing has been improperly designated or should be producible for any reason,
including a waiver caused by the inadvertent production.
7.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1.
Timing of Challenges. Unless a prompt challenge to a Designating Party’s
confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary
economic burdens, or a later significant disruption or delay of the litigation, a Party does not
waive its right to challenge a confidentiality designation by electing not to mount a challenge
promptly after the original designation is disclosed.
7.2.
Meet and Confer. A Party that elects to initiate a challenge to a Designating
Party’s confidentiality designation must do so in good faith and must begin the process by
conferring directly with counsel for the Designating Party. In conferring, the Challenging Party
must explain the basis for its belief that the confidentiality designation was not proper and must
give the Designating Party ten (10) days to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the basis for the chosen
designation. A Challenging Party may proceed to the next stage of the challenge process only if
it has engaged in this meet and confer process first.
8
TRI1\828446v2
7.3.
Formal Challenge to Designation. If, after engaging in the meet and confer
process, a Challenging Party still contends that a confidentiality designation was not proper, the
Challenging Party may at any time give written notice by way of a letter to the Designating Party
stating its objection to the confidentiality designation. The Designating Party has twenty-five
(25) days from receipt of such written notice to apply to the Court for an order specifically
designating the Disclosure or Discovery Material at issue as “Protected Material”. The Party
seeking such an order has the burden of establishing good cause for the Disclosure or Discovery
Material to be treated as “Protected Material”.
7.4.
Treatment of Information While Challenge is Pending. Notwithstanding any
challenge to the designation of Disclosure or Discovery Material as Protected Material, all
materials designated as such must be treated as such and subject to this order until one of the
following occurs:
a. the Designating Party withdraws its confidentiality designation in writing;
b. the Designating Party fails to apply to the Court for an order designating the
material Protected Material within the time period specified above after
receipt of a written challenge to such designation; or
c. the Court decides the material at issue is not subject to protection as Protected
Material.
8.
ACCESS TO AND USE OF PROTECTED MATERIAL
8.1.
Basic Principles. A Receiving Party may use Protected Material that is disclosed
or produced by another Party or by a Non-party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
9
TRI1\828446v2
disclosed only to the categories of persons and under the conditions as are described herein.
When the litigation has been terminated, a Receiving Party must comply with the provisions of
section 12, below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner that ensures that access is limited to the persons authorized under this Order.
8.2.
Disclosure of Protected Material. Unless otherwise ordered by the Court or
permitted in writing by the Designating Party, a Receiving Party may disclose any information or
item designated CONFIDENTIAL only to:
a. Outside Counsel of record of any Party in this action, including associated
personnel necessary to assist Outside Counsel in these proceedings, such as litigation assistants,
paralegals, and secretarial and other clerical personnel;
b. Parties to this litigation and their officers, directors, and employees (including
House Counsel) to whom disclosure is reasonably necessary for this litigation;
c. Experts (as defined in this Order) of the Receiving Party, including associated
personnel necessary to assist Experts in these proceedings, such as litigation assistants,
paralegals, and secretarial and other clerical personnel, so long as such Expert has signed the
“Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” (Exhibit A);
d. the Court, including associated personnel necessary to assist the Court in its
functions, and the jury;
e. litigation support services, including outside copying services, court reporters,
stenographers, videographers, or companies engaged in the business of supporting computerized
or electronic litigation discovery or trial preparation, retained by a Party or its counsel for the
10
TRI1\828446v2
purpose of assisting that Party in these proceedings, for whom a company representative has
signed the “Acknowledgment and Agreement to Be Bound by Protective Order” (Exhibit A);
f. other professional vendors to whom disclosure is reasonably necessary for this
litigation and for whom a company representative has signed the “Acknowledgment and
Agreement to Be Bound by Stipulated Protective Order” (Exhibit A);
g. any actual or potential witness in the action who has signed the
“Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” (Exhibit A),
provided that counsel believes, in good faith, that such disclosure is reasonably necessary for the
prosecution or defense of these proceedings. Pages of transcribed deposition testimony or
exhibits to depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted herein;
h. the author of the document or the original source of the information;
i. counsel for issuers of insurance policies under which any issuer may be liable to
satisfy part or all of a judgment that may be entered in these proceedings or to indemnify or
reimburse payments or costs associated with these proceedings and who has signed the
“Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” (Exhibit A);
j. any mediator or arbitrator appointed by the Court or selected by mutual agreement
of the parties and the mediator or arbitrator's secretarial and clerical personnel, provided that a
company representative for the mediator or arbitrator has signed the “Acknowledgment and
Agreement to Be Bound by Stipulated Protective Order” (Exhibit A);and
k. any other person as to whom the Producing Party has consented to disclosure
in advance and in writing, on notice to each Party hereto.
11
TRI1\828446v2
9.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Receiving Party is served with a subpoena or an order issued in other litigation that
would compel disclosure of any information or items designated in this action as
“CONFIDENTIAL,” the Receiving Party must so notify the Designating Party, in writing (by email or fax, if possible) within three (3) court days after receiving the subpoena or order. Such
notification must include a copy of the subpoena or court order.
The Receiving Party also must immediately inform in writing the Non-Party who caused
the subpoena or order to issue in the other litigation that some or all the material covered by the
subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must
deliver a copy of this Stipulated Protective Order promptly to the Non-Party in the other action
that caused the subpoena or order to issue.
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material,
(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of
this Order, and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound by Stipulated Protective Order” that is attached hereto as Exhibit A.
11.
FILING PROTECTED MATERIAL
12
TRI1\828446v2
a. Without written permission from the Designating Party or a court order secured
after appropriate notice to all interested persons, a Party may not file in the public record in this
action any Protected Material. A Party that seeks to file under seal any Protected Material must
comply with applicable law as described in Subparagraph (b) below. The fact that Discovery
Material has been designated as “CONFIDENTIAL” shall not be admissible as evidence that the
Material in fact contains Confidential Information entitled to protection from disclosure under
the law.
b. The procedure for filing documents designated as “CONFIDENTIAL” shall be in
accord with the requirements described in Stone v. University of Maryland Medical System
Corp, 855 F.2d 178, 180-181 (4th Cir. 1988). Specifically, each time a Party seeks to file under
seal documents, things and or information designated as “CONFIDENTIAL”, said Party shall
accompany the request with a motion to seal and a supporting memorandum of law specifying:
(a) the exacts 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
qualilties 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.
13
TRI1\828446v2
c. Materials for which the court grants a Party the right to file under seal shall be
filed and served in accordance with the Section T of the court’s Electronic Case Filing
Administrative Polices and Procedures Manual.
12.
FINAL DISPOSITION
The terms of this Protective Order shall survive and remain in full force and effect after
the termination of this litigation. Upon demand within sixty (60) days after final conclusion of all
aspects of this litigation, including any appeal by any party, all Protected Material and all copies
of the same (other than those filed with the Court) shall be returned to the Designating Party or,
at the option of the Designating Party, destroyed; provided, however, that counsel for the parties
shall be entitled to retain documents to the extent reasonably necessary to preserve a file on this
litigation. Any such archival copies that contain or constitute Protected Material remain subject
to this Protective Order as set forth in Section 5 (DURATION), above.
13.
MISCELLANEOUS
13.1.
Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by the Court in the future.
13.2.
Right to Assert Other Objections. By stipulating to the entry of this Protective
Order no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly,
no Party waives any right to object on any ground to use in evidence of any of the material
covered by this Protective Order.
13th
December
SO ORDERED, this the _______ day of _____________________, 2012.
14
TRI1\828446v2
___________________________________________
The Honorable Louise W. Flanagan
CONSENTED TO:
/s/ Suzanne Begnoche
Suzanne Begnoche, Attorney at Law
Attorney for Plaintiff
NCSB # 35158
312 West Franklin Street
Chapel Hill, NC 27516
Telephone: (919) 960-6108
Facsimile: (919) 500-5289
begnoche@mindspring.com
/s/ Kendall Carter
Kendall Carter
NCSB #
King & Spalding LLP
Attorneys for Equifax
1180 Peachtree Street, NE
Atlanta, GA 30309-3521
kcarter@kslaw.com
/s/ Kevin M. Capalbo
Kevin M. Capalbo
NCSB #
Moore & Van Allen PLLC
Attorneys for Western Surety Co.
P.O. Box 13706
430 Davis Drive, Suite 500
Research Triangle Park, NC 27709
kevincapalbo@mvalaw.com
/s/ David G. Guidry
David G. Guidry
NCSB #
King & Spalding LLP
Attorneys for Equifax
100 North Tryon Street, Suite 3900
Charlotte, North Carolina 28202
dguidry@kslaw.com
/s/ Mary M. Webb
Mary M. Webb
NCSB #
Angus Goudelock & Courie, PLLC
Attorneys for Dixie Motor Company and Janet
Pierce
5400 Glenwood, Suite 100
P.O. Box 30516
Raleigh, NC 27622
Mary.webb@mgclaw.com
15
TRI1\828446v2
EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
C.A. No. 5:12-cv-389-FL
)
ASHLEY OWENS and NINA OWENS,
Plaintiffs, )
)
)
vs.
)
)
DIXIE MOTOR COMPANY, JANET
)
PIERCE, ANTWAND CHERRY,
)
WESTERN SURETY CO., and EQUIFAX
)
INFORMATION SERVICES, LLC,
Defendants. )
______________________________________ )
ACKNOWLEDGEMENT AND
AGREEMENT TO BE BOUND BY
STIPULATED PROTECTIVE ORDER
I acknowledge that I have read and understand the Stipulated Protective Order entered in
this action on ________________________________, 2012, and agree to abide by its terms and
conditions. Because it is necessary for me in the performance of my duties to have access to
Confidential Matter and information contained therein that are the subject of said Stipulated
Protective Order, I understand and agree that I am personally bound by and subject to all of the
terms and provisions of said Order. I subject myself to the jurisdiction and venue of the United
States District Court for the Eastern District of North Carolina, Western Division for purposes of
enforcement of this Agreement and Order.
Witness my signature this ______ day of _______________________, 2012.
_______________________________________________________
Signature
Address:________________________________________________
16
TRI1\828446v2
Telephone:______________________________________________
17
TRI1\828446v2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?