U.S. Equal Employment Opportunity Commission v. Triangle Catering, LLC

Filing 18

CONSENT PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 07/13/2015. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Case No. 5:15-cv-00016-FL

Plaintiff,
CONSENT PROTECTIVE ORDER
vs.
TRIANGLE CATERING, LLC,
Defendant.
This Consent Protective Order (“Protective Order”) is entered pursuant to Rules 26(c)
and (f) of the Federal Rules of Civil Procedure, as it appears to the Court that discovery and
other exchanges and offers of information in the above-captioned action (the “Litigation”) is
likely to involve the disclosure of confidential information. For good cause appearing, it is
hereby ORDERED that:
1.

This Protective Order shall govern the designation, disclosure, and use and

treatment of confidential information, documents, testimony or other tangible things produced in
this action by Plaintiff, Defendant, future parties, and nonparties in the Litigation.

This

Protective Order shall govern until modified or superseded by a further Order of the Court.
2.

The Scope of this Protective Order shall be as follows:
(a)

As used in this Protective Order, the term “Discovery Material”

encompasses, but is not limited to: any type of document or testimony; any taped, recorded,
filmed, electronic, written, or typed material, including the originals and all marked copies,
whether different from the originals by reason of any notation made on such copies or otherwise;
all deposition testimony; all interrogatories, document requests, requests for admission, and

subpoenas duces tecum, including all responses thereto; and any physical objects, things, or other
information gained by inspection of any tangible thing.
(b)

This Protective Order shall govern any and all (i) Discovery Material and

all other materials produced or given in any proceedings in the Litigation by any party (including
without limitation any future parties) to the Litigation, whether produced or given before or after
entry of this Protective Order, including, but not limited to, Discovery Material produced in
response to any discovery conducted by the parties; (ii) any documents, testimony, and other
materials produced or given by a nonparty in the Litigation pursuant to subpoena or otherwise;
and (iii) all copies, excerpts, and summaries thereof (collectively the “Material”).
(c)

A nonparty may invoke the protection of this Protective Order for any

Material provided by it in connection with the Litigation, including, but not limited to,
documents, deposition testimony and exhibits, and documents provided in response to subpoenas
served on a nonparty. All confidential information of a nonparty as contained in such documents
and depositions shall be protected hereunder in the same manner as the confidential information
of the parties to this Protective Order as long as the nonparty agrees to be bound by this
Protective Order and those subsequent amendments to this Protective Order concerning which
the nonparty has received written notice and an opportunity to read and understand the terms of
this Protective Order.
(d)

As used in this Protective Order, the term “Confidential Material,”

encompasses, but is not limited to: any material, in whatever form produced or exchanged in
connection with formal or informal discovery in this litigation that a party or party’s attorney
believes in good faith contains, reflects or concerns its trade secrets, confidential business or
commercial information, personal and private information of individuals, private customer

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information, or other sensitive or proprietary information which, if disclosed to third parties,
such party reasonably believes would likely cause the party injury, prejudice, harm, damage or
disadvantage.
(e)

Any information or documents designated as Confidential Material under

this Protective Order, including without limitation all information derived from Confidential
Material and excerpts, copies, and summaries of Confidential Material, may not be used or
disseminated except as provided in this Protective Order.
3.

Confidential Material shall be designated by placing or affixing on such material

“Confidential” or by otherwise notifying the other party of the designation in writing. A party
may designate any information, document, testimony or other tangible thing that it furnishes in
connection with this litigation as Confidential Material, and therefore subject to the provisions of
this Protective Order. Without limiting the foregoing, deposition testimony and/or exhibits may
be designated Confidential Material either by: (a) stating on the record of the deposition that
such deposition, or portion thereof; or exhibit is confidential; or (b) stating in writing served
upon counsel of record that such deposition, or portion thereof, or exhibit is confidential.
4.

Materials designated as Confidential Material by another party may only be

copied, disclosed, discussed, or inspected, in whole or in part, only for the purposes of
prosecuting or defending against claims in this litigation (and for no other purpose, including
without limitation any business or competitive purpose) and, except upon further order of the
Court, only by the following persons:
(a)

Each party;

(b)

Attorneys of record of the parties to this action and such attorneys’

regularly employed office staff and temporary employees assigned to work on this action;

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(c)

Officers and employees of the Plaintiff or Defendant who provide material

assistance in the legal representation of the Plaintiff or Defendant in this action;
(d)

Independent experts consulted by or assisting a party in this action;

(e)

A deponent in this action (during a deposition or preparation therefor),

when the Confidential Information is related to the questions asked to, or the testimony of such
deponent or witness, and the deponent agrees to the terms of this Protective Order;
(f)

The reporter transcribing a deposition where designated Confidential

Information is involved;
(g)

The Court and the regularly employed staff of the Court; and

(h)

Any mediator or arbitrator selected with the consent of all parties or by the

Court.
5.

If a party believes in good faith that Material being produced contains highly

sensitive Confidential Material that must be protected from disclosure to another party in this
Litigation, such party may make an additional designation of Confidential Material as
“Confidential – Attorneys’ Eyes Only” (“Attorneys’ Eyes Only Material”). Attorneys’ Eyes
Only Material shall be designated by placing or affixing on such material “Confidential –
Attorneys’ Eyes Only” or by otherwise notifying the other party of the designation in writing.
Attorneys’ Eyes Only Material shall be subject to the same protections and restrictions set forth
in this Protective Order for Confidential Material, with the additional protection and restriction
that such Attorneys’ Eyes Only Material shall not be disclosed to a non-designating party or any
officers, directors, or employees of the non-designating party. Only the persons identified in,
and who comply with the requirements of, subparagraphs (b), (d), (e), (f), and (g) of Paragraph 4
of this Protective Order may have access to Attorneys’ Eyes Only Material.

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6.

Counsel for a non-designating party may show specified Attorneys’ Eyes Only

material to a witness in preparation for a properly noticed and scheduled deposition only if the
witness complies with Paragraph 7 of this Protective Order and either: (1) counsel for the
designating party has consented in writing, or (2) upon a properly filed motion under Paragraph
13 below, the Court has ordered that inspection/review of the specified Attorneys' Eyes Only
material is proper.
7.

Before Confidential Material is disclosed to any person referenced in paragraphs

4(a), 4(c), 4(d), or 4(e) of this Protective Order, that person shall be required to read this Order in
its entirety and sign a statement in the form of Exhibit A attached hereto signifying that person’s
agreement to abide by its terms. Copies of all such statements shall be maintained by counsel for
the requesting party, and shall be delivered to counsel for the opposing party upon request at the
conclusion of the litigation, provided that the identities of experts or consultants, including trial
or jury consultants, who have not been identified as testifying experts need not be disclosed. If
any person referenced in paragraphs 4(a), 4(c), 4(d), or 4(e) of this Protective Order to whom
disclosure of Confidential Information is desired will not agree to read this Order in its entirety
and execute Exhibit A prior to such disclosure, then the party seeking such disclosure must apply
to the Court for a protective order before any such disclosure is made.
8.

The production or disclosure of Confidential Material pursuant to the terms of this

Protective Order by the producing party shall not waive or prejudice the right of the producing
party to object to the production or admissibility of documents or information on grounds other
than confidentiality in this action or on any grounds in any other action.
9.

A party that intends to file with the Court pleadings or other papers containing or

referring to Confidential Material, or to use or refer to the same in briefs, affidavits, or any other

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documents or submissions, shall take all reasonable steps to have such matter filed under seal.
The parties shall provide the Court with a Motion to Seal submitted to the Court in accordance
with Section T of the Administrative Procedures Governing Filing and Service by Electronic
Means for the U.S. District Court for the Eastern District of North Carolina and any relevant
rules contained within the Local Rules Governing Civil Cases in such Court.
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.

Subject to the rules of evidence and the terms of this Order, Confidential Material

may be offered in evidence at trial, in support of any motion, or at any court hearing. The Court
may, on its own motion or application of a party, establish restrictions upon the use of
Confidential Material at the trial of this matter.
11.

The terms of this Protective Order are subject to modification, extension or

limitation as may be hereinafter agreed to by the parties in writing or as ordered by the Court,
and this Protective Order is without prejudice to the right of a party to request modification or

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amendment of this Protective Order or additional restrictions in discovery in this action by
further order of the Court. Any modifications, extensions or limitations agreed to in writing by
the parties shall be deemed effective pending approval by the Court. Nothing herein shall be
deemed to waive any privilege or exemption from production that a party may assert independent
of this Protective Order.
12.

Access to documents or information produced by a third-party pursuant to a

subpoena served during the discovery period shall be considered Confidential Material from the
day of their production to the day following twenty-one (21) days after their receipt by counsel
for both parties, or such shorter period as the parties may agree upon. Thereafter, access to any
such document or information shall remain restricted only if counsel of record for any party has
notified counsel of record for the other parties that such documents or information have been
designated as “Confidential” or “Confidential – Attorneys’ Eyes Only” in accordance with the
designation standards set forth previously in this Protective Order.

Documents designated

“Confidential” or “Confidential – Attorneys’ Eyes Only” under this Paragraph may be disclosed
only to those persons and under those conditions set forth in this Protective Order.
13.

With respect to any Confidential Material covered by this Protective Order, a

party may at any time serve upon counsel for the producing party a written notice of objection to
the materials designated as “Confidential” or “Confidential – Attorneys’ Eyes Only”. The
producer or originator of the materials shall, within twenty-one (21) days of receipt of such
notice, review the designated material sought to be reclassified, and promptly notify the other
party in writing whether or not it will agree to the reclassification requested and, if not, whether
it will agree to reclassify a redacted copy. For the purposes of this Protective Order, a facsimile
transmission shall be deemed to have been received by the producer or originator of the materials

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upon completion of the transmission of the same to that party’s counsel of record. If no
agreement can be reached, the requesting party may apply to the Court for an order that the
information or documents so designated are not entitled to such status and protection. The
designating party shall be given notice of the application and an opportunity to respond. In the
event of such application, to maintain the status of the information or documents as Confidential
Material under this Protective Order, the proponent of confidentiality must show there is good
cause for the information or documents to have such designated protection. Failure to object to a
designation under this Protective Order, or the absence of an objection to any such designation,
shall not constitute an admission that any documents or materials so designated are, constitute, or
contain Confidential Material.
14.

Nothing contained in this Protective Order shall limit, expand, or otherwise affect

the rights, obligations, or liabilities of any party concerning any information or document that
such party has obtained, relinquished, or lost through means other than the discovery in this case
referenced herein. For the purposes of the substantive claims in this litigation, nothing in this
Protective Order shall be used to define or determine whether any document or information
constitutes a trade secret or confidential information, or is otherwise a protected asset.
15.

In the event that Confidential Material is produced without designating such

documents or information “Confidential” or “Confidential – Attorneys’ Eyes Only” prior to or
contemporaneous with the production or disclosure of such documents or information, the party
seeking such designation shall properly designate such documents or information as
“Confidential” or “Confidential – Attorneys’ Eyes Only” and the other parties shall be thereafter
bound by such designations pursuant to the terms of this Protective Order. However, no party
shall be deemed to be in breach of this Protective Order by reason of any use or disclosure of

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such Confidential Material that occurred prior to notification of the correct designation.
Production of such documents or information in this case without designation as “Confidential”
or “Confidential – Attorneys’ Eyes Only” shall not be deemed a waiver, in whole or in part, of
any party’s claim to confidentiality of such documents or information, either as to the specific
information disclosed or as to any other information relating to the subject matter of the
information disclosed.
16.

Upon termination of this action, including without limitation any appeals or

retrials, unless otherwise ordered by the Court, all parties shall retain or destroy all materials
marked “Confidential” or “Confidential Attorneys’ Eyes Only” (and any copies thereof) in
accordance with each party’s regular record keeping policies.
17.

If requested, counsel for each party shall furnish a certificate of compliance that

all Confidential Material produced to the party, as well as all summaries, excerpts, or copies of
such materials, have been retained or destroyed in accordance with each party’s regular record
keeping policies. Notwithstanding anything to the contrary stated above, no party shall be
obligated to return or destroy Confidential Material that was attached to or incorporated into a
filing, made an exhibit, or incorporated into a written discovery response.
18.

If a party receives a subpoena from a nonparty to this Protective Order seeking

production or other disclosure of Confidential Material, that party shall promptly notify the party
that designated such information Confidential Material, if possible within a period of time
sufficient for such designating party to object to such production. Unless sooner required by the
terms of the subpoena, a party shall not produce any information designated as “Confidential” or
“Confidential – Attorneys’ Eyes Only” under this Protective Order until such time as the
designating party has had an opportunity to object or otherwise respond to the subpoena.

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19.

The parties stipulate that this Court shall retain jurisdiction over them and any

person to whom Confidential Material is disclosed to the extent necessary to enforce the terms of
this Protective Order.
20.

Subject to Paragraph 18 of this Protective Order, if a party desires to disclose

Confidential Material to any persons not listed in Paragraph 4 of this Order, counsel for the party
shall give written notice by United States mail and electronic mail communication to counsel for
the opposing party of the intention to make such disclosure and describing with reasonable
particularity the Confidential Material that is to be included in such disclosure. The opposing
party shall have twenty-one (21) days following service of such notice to file any objections
and/or a motion for a protective order prohibiting such disclosure. No disclosure shall be made
until (i) after the expiration of the twenty-one (21) day period for objections as set forth above
where the opposing party has failed to file objections and move for a protective order, or (ii) the
issue has been resolved by the Court, or by agreement of the parties, where the opposing party
has timely filed objections and moved for a protective order as set forth above.
21.

Each person who receives Confidential Material designated in this action submits

himself or herself to the personal jurisdiction of the Court, wherever he or she shall be found,
solely for the purposes of the enforcement of this Protective Order.
22.

This Protective Order is concerned only with procedures for the disclosure and

use of Confidential Information during the pretrial stages of this action.
23.

This Protective Order shall not preclude any party from applying to the Court for

relief from any provision hereof, or from asserting that certain Confidential Material should
receive different, greater or lesser confidentiality protection than that provided herein. The
parties may modify this Protective Order at any time by an agreement in writing, signed by

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counsel for the parties. Any such modification shall be put in the form of an order modifying
this Protective Order and shall become effective upon the date on which it is entered by the
Court. In addition, either party may move for an order modifying this Protective Order upon
good cause shown. Prior to any such application, the party seeking to modify this Protective
Order will meet with any other party to attempt to reach an agreement with respect to such
modification.
24.

The restrictions on disclosure or use of materials designated "Confidential” or

“Confidential – Attorney Eyes Only” set forth in this Protective Order shall not apply to any such
information to the extent that it:
(a)

Was known to the requesting party, or in the case of documents, was

properly in the possession of the requesting party, at the time of its disclosure by the producing
party, and can be demonstrated as such, provided that the status of such material or documents
under any other agreement shall not be affected; or
(b)

Is now, or later becomes available to the public or the party through means

other than disclosure which violates this Protective Order.
25.

No reference may be made at trial to this Protective Order, except by order of the

Court, and no inference or argument may be drawn from its entry or terms with regard to the trial
(or hearing or other proceeding) on the merits of any issue in this action.
26.

During the pendency of this Protective Order, the parties agree to fully abide by

the terms of this Protective Order as if it had been executed by the Court, and submit themselves
to the jurisdiction of the Court for purposes of enforcement of the Protective Order. Any
Confidential Material produced by any party during the pendency of this Order shall receive full

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protection under this Protective Order at all times, as if it had been produced following the
execution of this Protective Order by the Court.
27.

The ultimate disposition of materials protected under this Protective Order

subject to a final order of the Court on the completion of litigation .

13th
July
This _ _ _ day of _ _ _ _ _ _ _ _, 2015.

Judge Louise W. Flanagan
United States District Court Judge

WE CONSENT:

. /1,

. !frt(~~/

therine AbigaIl Zimmerman
qual Employment Opportunity Commission
434 Fayetteville St., Suite 700
Raleigh, NC 27601-1701
Telephone: [phone]
Fax: [phone]
E-mail : katherine.zimmerman@ eeoc.gov

J9M D. Cole
.fonathan Schulz
Attorneys for Defendant
Nexsen Pruet, PLLC
227 West Trade Street, Suite 1550
Charlotte, NC 28202
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
E-mail: jschulz@ nexsenpruet.com

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IS

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Case No. 5:15-cv-00016-FL

Plaintiff,
CONSENT PROTECTIVE ORDER
vs.
TRIANGLE CATERING, LLC,
Defendant.
I have read the Consent Protective Order (the “Protective Order”) concerning the
confidentiality of information in the above-captioned litigation. I understand that the Protective
Order is a Court order designed to preserve the confidentiality of certain designated documents
and information contained therein. I also understand that the Protective Order restricts the use,
disclosure, and retention of such designated documents and information contained therein, and it
also requires the safeguarding and destruction of the designated documents and other materials
containing confidential information.
I agree to comply with all provisions of the Protective Order. I also hereby submit
myself to the jurisdiction of the Court solely for the purpose of enforcement of any provision of
the Protective Order.
This the ____ day of ___________, 201_.
Signature:
Name:
Address:

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