Knight v. City of Fayetteville, et al

Filing 24

CONSENT PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 10/7/2015. (Baker, C.)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 5:15-cv-208-FL
TRACIE KNIGHT, ADMINISTRATRIX
FOR THE ESTATE OF LAWRENCE
GRAHAM,
Plaintiff,
v.
CITY OF FAYETTEVILLE, DENTON
LITTLE, both individually and in his official
capacity as law enforcement officer with the
Fayetteville Police Department, and
HAROLD MEDLOCK, individually and in
his official capacity as a law enforcement
officer with the Fayetteville Police
Department,
Defendants.

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CONSENT PROTECTIVE ORDER

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure the parties in this case, by
and through their undersigned counsel, stipulate to the entry of this Consent Protective Order
allowing the release of certain confidential personnel records pursuant to N.C. Gen. Stat.§ 160A168, as well as information which constitutes criminal investigation materials made confidential
by N.C. Gen. Stat. § 132-1.4.
This case arises out of Officer Denton Little’s use of force against Lawrence Graham
(“Graham”) on May 13, 2013, in the course of an encounter with Graham by Officer Little.
Plaintiff filed the Complaint lawsuit on May 1, 2015 in state court, and it was removed by
defendants on May 14, 2015.

Plaintiff asserts various claims including excessive force,

negligence and gross negligence. It is anticipated that the discovery exchanged in this matter

-2may involve personnel records of Officer Little made confidential pursuant to N.C. Gen. Stat.§
160A-168, as well as information which constitutes criminal investigation materials made
confidential by N.C. Gen. Stat. § 132-1.4(a), including the State Bureau of Investigation’s file,
the Fayetteville Police Department’s Internal Investigative Report, as well as video recordings
and audio recordings.
This Order governs the handling and disclosure of all materials produced, given or filed
herein by the parties and designated as “CONFIDENTIAL.”

For purposes of this Order,

CONFIDENTIAL INFORMATION includes, but is not limited to, confidential personnel
information pursuant to N.C. Gen. Stat. § 160A-168 and confidential information regarding
criminal investigations pursuant to N.C. Gen. Stat. § 132-1.4.
WHEREFORE, IT IS HEREBY ORDERED that:
1.

“CONFIDENTIAL INFORMATION” as used herein includes, but is not limited
to:
a.
b.

Any documents or information which are contained in a personnel file
maintained by any party; and

c.

All information and documents that are not public record and are made
confidential by N.C. Gen. Stat. § 132-1.4.

d.

2.

All information and documents that are not public record and are made
confidential by N.C. Gen. Stat. § 160A-168;

Internal affairs or other investigation conducted by the City of
Fayetteville, Fayetteville Police Department or other investigatory agency,
emergency communications records, 911 communications, officer radio
traffic communications, photographs, audio recordings and the 5/13/13
Dash Cam Video/Audio from Officer Burlingame’s patrol car.

The documents and information produced by the parties that contain confidential

information shall be marked "CONFIDENTIAL" by the parties. The confidential documents,

-3including copies of summaries thereof, shall be disclosed only for official use in this action, and
for no other purpose whatsoever.
3.

The CONFIDENTIAL INFORMATION shall not be otherwise reviewed,

disclosed or released to anyone other than:
(A)
(B)

Counsel for the parties to this action, their legal assistants and other staff
members and employees;

(C)

Experts or consultants retained by the parties or their attorneys to assist
them in the preparation of this case or to serve as expert witnesses at the
trial of this action;

(D)

Court reporters or videographers engaged to record depositions, hearings
or trials in this action; and

(E)
4.

The Court;

Outside companies engaged by counsel for the parties to photocopy such
documents.

Disclosure of CONFIDENTIAL INFORMATION pursuant to this Order shall be

handled as follows:
a.

Any person described in subparagraphs 3(A), (B), (D) and (E) of this
Order is bound by the provisions of this Order without the necessity of
executing a separate confidentiality agreement;

b.

With respect to disclosures to any person set forth in subparagraph 3(C) of
this Order, the party disclosing the CONFIDENTIAL INFORMATION
shall inform any persons to whom disclosure is made that
CONFIDENTIAL INFORMATION shall be used for the purposes of the
prosecution or defense of this action only, and that said person shall be
bound by the terms of this Order and shall execute an Agreement to be
bound by this Order. The parties shall obtain from such persons a written
statement in the form of Exhibit A, attached hereto. A record of all
persons to whom disclosures are made shall be kept and all the written
statements signed by those persons shall be retained in the possession,
custody, and control of counsel by whom the person is retained. All
CONFIDENTIAL INFORMATION, and any documents containing
information derived therefrom, including copies of such documents, shall
be returned to counsel by persons given access to them as soon as
practicable.

-4-

5.

The production or disclosure of CONFIDENTIAL INFORMATION pursuant to

the terms of this Order by the producing party shall not be construed as prohibiting or restricting
the use of CONFIDENTIAL INFORMATION during depositions, any hearing, the trial of this
matter, or any appellate proceeding. Similarly, no party shall be deemed to have waived any
objections as to the relevancy, admissibility, discoverability or any other objection under the
Federal Rules of Civil Procedure or the Federal Rules of Evidence in connection with any
proceeding in this action.
6.

No CONFIDENTIAL INFORMATION produced pursuant to this Order shall be

used for any purpose other than for relevant and proper conduct of this litigation.
7.

If any such CONFIDENTIAL INFORMATION is used in connection with a

deposition or other discovery or documents filed with the court, or are quoted or referenced in
any memorandum, pleading or other paper filed with the court, the deposition transcript, filing or
paper shall be submitted to the court with a request that the document be placed under seal and
appropriately marked to indicate that the transcript, filing or paper is subject to the terms of this
Order, or redacted so as to eliminate sensitive personal information.
8.

The designation of information as CONFIDENTIAL I N F O R M A T I O N by

t h e designating party shall not be deemed an admission by the receiving party that such
information is entitled to t h a t designation. Any challenge to designating party's confidentiality
designation shall be made as promptly as the circumstances permit, but no later than thirty (30)
days after the receipt of the designated CONFIDENTIAL INFORMATION by the receiving party.
(a)

A party wishing to challenge a confidentiality designation shall begin the process

by conferring directly with counsel for the designating party. The challenging party must
explain why it believes the confidentiality designation is improper. The designating party shall

-5have five (5) business days in which to review the designated material and either re-designate
the material or explain the basis for the chosen designation. A challenging party may
not proceed to the next stage of the challenge process unless it has met and conferred,
or attempted to meet and confer, with the designating party.
(b)

If the parties are unable to informally resolve a challenge to a particular

designation, the challenging party may file and serve an appropriate Motion to the Court
that identifies the challenged CONFIDENTIAL INFORMATION and sets forth in detail
the basis for the challenge.

Each such motion must be accompanied by a competent

declaration that affirms that the movant has complied with the meet and confer
requirements imposed in the preceding paragraph and that sets forth with specificity the
justification for the confidentiality designation that was given by the designating party in the
meet and confer dialogue. The designating party shall have the right to file and serve an
appropriate response to the Court. Until the Court rules on the challenge, the material in
question shall continue to be treated as confidential under the terms of this Order.
9.

The

designation

of

documents

or

information

as

“CONFIDENTIAL

INFORMATION” shall not be conclusive for purposes of the substantive issues in this case.
10.

The inadvertent, unintentional or in camera disclosure of CONFIDENTIAL

INFORMATION shall not, under any circumstances, be deemed a waiver, in whole or in part, of
any party’s claims of confidentiality.
11. Within thirty (30) days after the entry of final judgment or dismissal in this litigation
(including appeals or petitions for review), the parties' counsel, their staff, and all experts and/or
consultants for the parties shall return all CONFIDENTIAL INFORMATION produced pursuant
to this Order (including all copies of the same) to the party producing said information or shall

-6destroy the same with a written certification by the party's counsel of record that all such
information and copies of the same have, in fact, been returned or destroyed; provided, counsel
shall be permitted to maintain such information for their case files, which shall continue to be
subject to the terms of this Order.
12.

Each person who receives CONFIDENTIAL INFORMATION submits himself or

herself to the personal jurisdiction of this Court, wherever he or she shall be, for the enforcement
of the provisions contained in this Order.
13.

Any objections made to discovery requests shall be accompanied by a draft

proposed Protective Order if such Order is, or will be, requested.

When counsel submits

proposed Protective Orders, they shall include a provision leaving the ultimate disposition of
protected materials subject to a final Order of the Court on the completion of litigation.
14.

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.

-715.

This Order is without prejudice to the right of any party or witness to seek

modification or amendment of the Order by motion to the court, or to seek and obtain additional
protection with respect to CONFIDENTIAL INFORMATION as such party may consider
appropriate.

WE CONSENT:
Date: October 6, 2015.
/s/ Coy E. Brewer
COY E. BREWER
Post Office Box 2249
Fayetteville, North Carolina 28302
Telephone: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff
/s/ Allen W. Rogers
ALLEN W. ROGERS
The Rogers Law Firm, P.A.
111 Person Street
Fayetteville, NC 28390
Telephone: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff

-8/s/ James C. Thornton
JAMES C. THORNTON
Cranfill, Sumner & Hartzog LLP
Post Office Box 27808
Raleigh, North Carolina 27611-7808
Telephone: [phone]
E-mail: [e-mail]
Attorneys for Defendants
/s/ Karen M. McDonald
KAREN M. McDONALD
City of Fayetteville
433 Hay Street
Fayetteville, North Carolina 28301
Telephone: [phone]
E-mail: [e-mail]
Attorney for Defendants

Approved by:
____________________________
U.S. DISTRICT COURT JUDGE
Eastern District North Carolina

October 7, 2015
__________________________
Date

-9-

EXHIBIT A
The Undersigned acknowledges that she/he has read the Protective Order entered by the
Court dated __________________, 2015, understands the terms thereof, and agrees to be bound
by such terms. The undersigned hereby acknowledges that she/he is subject to the jurisdiction of
the United States District Court, Eastern District of North Carolina, with regard to this Protective
Order and understands (1) the violation of the Order shall subject the offender to such penalties,
damages and other relief as may be permitted by law, and (2) that the jurisdiction of the Court
regarding this Order survives any settlement, discontinuance, dismissal, judgment, or other
disposition of this action.
________________________
(Date)
_________________________________________
(Signature)
Subscribed and sworn before me,
this ____ day of _____________, 2015.

___________________________________
NOTARY PUBLIC
My commission expires: _______________