Toland, Jr. v. SunTrust Bank

Filing 18

CONSENT PROTECTIVE ORDER - Signed by United States District Judge Terrence W. Boyle on 10/13/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
5:17-CV-00312-BO
RONALD TOLAND, JR.,
Plaintiff,

v.
SUNTRUST BANK,
Defendant.

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CONSENT PROTECTIVE
ORDER

THIS CAUSE came on to be heard upon the joint motion of Plaintiff
Ronald Toland, Jr. ("Plaintiff') and Defendant SunTrust Bank ("Defendant")
and it appearing to the Court that discovery and the trial in this action may
involve the production and disclosure of confidential, proprietary, personal
and/or sensitive information requiring protection against unrestricted
disclosure or use;
THEREFORE, IT IS HEREBY STIPULATED, AGREED, AND
ORDERED that, pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure, the following confidentiality provisions shall govern all
information and documents disclosed in discovery in this action:
1.

Certain information and documents to be produced by Plaintiff

and Defendant during discovery in this litigation may contain personal,
medical, or financial information, trade secrets or other proprietary,

confidential research, development, or commercial information that should be
considered confidential and protected from unreasonable disclosure pursuant
to Fed. R. Civ. P. 26(c).
2.

The information and documents to be considered as confidential

and disclosed only in accordance with the terms of this Consent Protective
Order ("this Order") shall include, without limitation, all documents or
information, to include deposition testimony, whether in hard copy or
electronic form designated in accordance with the terms of this Order and
supplied in response to the demands or requests of either party, formal or
informal, regardless of whether said information is produced or disclosed by a
party or by any affiliated person or entity, or formerly affiliated person or
entity.
3.

All information designated "CONFIDENTIAL" or "HIGHLY

CONFIDENTIAL -ATTORNEYS' EYES ONLY'' in accordance with the terms
of this Order and disclosed in discovery in this action shall be used or
disclosed solely for purposes of prosecuting or defending this litigation and
shall not be used or disclosed for any other reason or purpose whatsoever,
and such use or disclosure may be made only as provided herein.
4.

"Discovery Material" shall mean and include any document, or

portions thereof, (whether in hard copy or computer readable form), thing,

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deposition testimony, interrogatory answers, responses to requests for
admissions and/or production, or other information provided in discovery in
this action. For purposes of this proceeding, parties and non parties may
designate material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL
ATTORNEYS EYES ONLY." Such Designation shall constitute a
representation to the Court that counsel believes in good faith that the
information (1) constitutes information subject to protection under Rule 26(c)
and (2) that there is good cause for the same to be protected from public
disclosure. Discovery Material designated "CONFIDENTIAL" shall mean and
include all information subject to protection under Fed. R. Civ. P. 26, whether
personal or business-related. Certain limited types of "CONFIDENTIAL".
information may be alternatively designated, as defined and detailed below,
as "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY." The "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY" designation shall be
reserved for confidential information that constitutes, reflects, or concerns
trade secrets, know-how or proprietary data, and business, financial, or
commercial information, the disclosure of which is likely to cause harm to the
competitive position of the party making the confidential designations of
Discovery Material. "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" information, as used in this Order, shall refer to
any information so designated.

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5.

.,
All information designated "CONFIDENTIAL" shall be

maintained in confidence by the parties to whom such information is
produced or given, shall be used solely for the purposes of this litigation, and
shall not be disclosed to any person except:
a.

The Court and other people whose involvement is required

by the litigation process (including court reporters, stenographic reporters
and videographers, and court personnel);
b.

The attorneys of record, their partners, employees, and

associates of outside counsel (collectively hereafter referred to as "Outside
Counsel");
c.

Plaintiff, officers or employees of Defendant, and necessary

non-party witnesses provided, that such parties shall receive such
"CONFIDENTIAL" information solely on a "need to know" basis for purposes
of prosecuting or defending this litigation and for no other purposes;
d.

Subject to the terms of Paragraph 13 below, experts and

their staff, contractors, and litigation support personnel and their staff
retained by Outside Counsel in this litigation;
e.

Individuals, including but not limited to the former

employees, agents, consultants, or independent contractors of the parties,

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who authored or prior to the commencement of this litigation received the
designated Discovery Material; and
f.

Any other person as to whom the producing party agrees in

writing prior to such disclosure.
6.

All information designated as "HIGHLY CONFIDENTIAL -

ATTORNEYS' EYES ONLY' shall be maintained in confidence for use by the
attorneys of the parties, shall be used solely for the purposes of this litigation,
and shall not be disclosed to any person except

those listed in

subparagraphs 5(a), (b), (d), and (f) above.
7.

Nothing in the Order shall be taken as assent by a non-producing

party that designated information is in fact "CONFIDENTIAL," "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY," or is entitled to protection
under Rule 26(c) of the Federal Rules of Civil Procedure. If counsel for the
non-producing party believes that a confidentiality designation is not
appropriate or justified, counsel for the non-producing party will notify
counsel for the producing party of its belief that the information should not be
so designated or should be disclosable to persons other than those allowed by
this order. A party shall not be obligated to challenge the propriety of a
designation at the time made, and the failure to do so shall not preclude a
subsequent challenge thereto. Such a challenge shall be written, shall be

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served on counsel for the producing party, and shall particularly identify the
documents or information that the receiving party contends should be
differently designated. The parties shall use their best efforts to resolve
promptly and informally such disputes. If the parties do not reach agreement
on the correct designation of the information within ten (10) business days of
service of a challenge, the non-producing party may file a motion with the
Court setting forth the non-producing party's reasons as to why the
designation should be changed. At all times it shall be the burden of the
designating party to show why the designation is proper. Unless and until
the Court issues a ruling that the information may be disclosed to persons
other than those authorized by this Order, the contested designation shall
remain in place and treated consistently with the terms of this Order.
8.

Nothing in this Order shall preclude any party from applying to

this Court for relief from any provision hereof, or from asserting that certain
discovery materials should receive greater confidentiality protection than
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that provided herein, in accordance with Rule 26(c) of the Federal Rules of
Civil Procedure.
9.

No designation of documents as "CONFIDENTIAL" or "HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY'' shall be effective unless
there is placed or affixed on such document a "CONFIDENTIAL" or

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"HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY'' notice or the
equivalent. Where practicable, such notice shall be placed near the Bates
number. In the case of computer, audiovisual, or other electronic or magnetic
medium, such notice shall be placed on the medium and its protective cover,
if any. Testimony given at a deposition or hearing may be designated
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES
ONLY'' in accordance with the provisions of Paragraph 16 of this Order. Any
designation that is inadvertently omitted from a document or testimony may
be corrected by written notification to opposing counsel, but any disclosure
prior to such notification shall not be a violation of this Order.
10.

All "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -

ATTORNEYS' EYES ONLY'' information shall be maintained under the
control of Outside Counsel, who shall be responsible for preventing any
disclosure thereof except in accordance with the terms of this Order.
11.

Before filing any information that has been designated

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES
ONLY'' with the Court, the party desiring to file the materials shall file with
the Court a Motion to Seal, specifying the interests which would be served by
restricting public access to the information. Documents submitted under seal
in accordance with this paragraph will remain under seal pending the Court's
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ruling. Before filing any Confidential Information with the Court, or any
pleadings, motions or other papers that disclose any such information,
counsel shall confer with producing party's counsel about how the
Confidential Information should be filed. If the producing party desires that
the materials be filed under seal, then the filing party shall file the materials
in accordance with Local Rule 79.2(e), with notice served upon the producing
party. The filing of the materials under Local Rule 79.2(e) is not binding upon
the Court. Within ten (10) days of service, the producing party shall file with
the Court a Motion to Seal and supporting memorandum of law specifying
the interests which would be served by restricting public access to the
information. The party who initially filed the materials with the Court need
not file a Motion to Seal or otherwise defend another party's desire that the
materials remain sealed. Documents submitted under seal in accordance with
this paragraph will remain under seal pending the Court's ruling. If the
producing party does not timely file a Motion to Seal, then the materials will
be deemed unsealed, without need for order of the 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

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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.
In addition, when a party seeks to file confidential documents, things,
and/or information, including confidential portions of any transcript, a party
shall submit such materials to the Court in a sealed envelope or other
appropriately sealed container, which covering shall be endorsed with the
title of this action and a statement substantially in the following form: "Filed
Under Seal Pursuant to Protective Order."
12.

Information produced by non-parties during the course of this

action may be designated under this Order by such non-party or by a party as
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES
ONLY'' by following the procedures set forth herein or may be deemed so
confidential as not to be disclosed under any circumstances. Information so
designated and produced by third parties shall thereafter be treated by the
parties in the same manner as if produced with such designation by a party.

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A producing non-party shall have all the rights of a producing party with
respect to protection of information under the terms of this Order. The
provisions of this Order for challenging the designation by a party are
applicable to challenges to designations by non-parties.
13.

Prior to disclosure of "CONFIDENTIAL" or "HIGHLY

CONFIDENTIAL - ATTORNEYS' EYES ONLY'' information to any third
parties, to include persons employed to act as outside consultants or experts,
translators, or interpreters in this action, counsel for the party seeking
disclosure shall require such persons to read this Order and execute a
Nondisclosure Agreement in the form attached hereto as Exhibit A, the
original of which shall be maintained by counsel for the party seeking
disclosure. In addition, counsel for the party seeking disclosure shall comply
with the following:
a.

Nothing in this Order shall be construed as requiring: i)

that routine outside suppliers of litigation support services such as
photocopying, scanning, or coding execute the attached Nondisclosure
Agreement; or ii) that the opposing party utilizing such services must disclose
the identity of such service suppliers to the opposing party or counsel.
b.

Nothing in this Order shall be construed as requiring that

the identity of graphics preparation and presentation consultants, witness

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preparation consultants, jury consultants, or trial presentation consultants
be disclosed to the opposing party or counsel.
14.

Nothing in this Order shall prevent or restrict any person from

using or disclosing in any manner its own "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL -ATTORNEYS' EYES ONLY'' information that it has
produced in this litigation.
15.

Nothing in this Order shall prevent disclosure beyond the terms

of this Order of any "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY'' information if the parties to this action and, if
applicable, the non-party from which the material originated, consent, or if
the Court, on motion filed by the party seeking to make disclosure, orders
that disclosure be made. Any party may at any time request the Court, after
notice to the opposing party and to the non-party from which the material
originated, if applicable, to modify or grant relief from any provision of this
Order or to place additional restrictions on the use of any "CONFIDENTIAL"
or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY'' information.
16.

Information disclosed at a deposition may be designated as

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES
ONLY'' by indicating on the record at the deposition that the information is
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES

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ONLY'' and is subject to the provisions of this Order. All such portions of the
transcript shall be appropriately marked by the court reporter and shall be
treated by the parties as set forth herein. Testimony in a deposition may also
be designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY'' by notifying the deposing party in writing
within twenty-one (21) days of the receipt of the transcript of those pages and
lines or those exhibits that are "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL-ATTORNEYS' EYES ONLY," as the case may be. No
deposition may be read by anyone other than the deponent, the attorneys for
the parties, and those qualified to see "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY'' material under Paragraph 6 during the twentyone (21) day period following a deposition unless otherwise agreed upon
among the attorneys. Upon being informed that certain portions of a
deposition disclose either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL
-ATTORNEYS' EYES ONLY'' information, each party must cause each copy
of the transcript in its custody or control to be marked immediately.
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17.

Violation by any person of any term of this Order or of the

Nondisclosure Agreement may be punishable as contempt of court. Any
person or entity that produces "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL -ATTORNEYS EYES' ONLY'' information in response to a
discovery request or subpoena in this action is intended to be a beneficiary of

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this Order and of the Nondisclosure Agreement, and may pursue all remedies
available for violation thereof. No provision of this Order shall be deemed to
require any person or entity not a party to this action to respond to any
discovery request or

subpoen~,

except as may otherwise be required by law.

Nothing in this Order shall prevent or prohibit any party or non-party from
seeking such additional or further protection as it deems necessary to protect
documents or information subject to discovery in this action.
'

18.

Nothing herein and no action taken under this Order shall

constitute a waiver br admission that any specific document, material,
testimony, or thing: (1) is relevant and subject to discovery; (2) is or is not a
trade secret or confidential proprietary information; (3) constitutes or does
not constitute confidential records; or (4) is or is not admissible in evidence at
trial or at any hearing. The production of any documents or information that
the producing party claims to be privileged shall be governed by the facts and
applicable law.
19.

Upon the final termination of this litigation, including any

appeals, the parties have sixty (60) days within which they may petition the
Clerk of Court to return to the party that filed them all "CONFIDENTIAL" or
"HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY'' information, and
documents and things containing "CONFIDENTIAL" or "HIGHLY

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CONFIDENTIAL -ATTORNEYS' EYES ONLY'' information that have been
filed under seal with the Court. Any and all originals and copies of Discovery
Materials designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY'' shall, at the request of the producing party, be
returned to the party within sixty (60) days after a final judgment herein or
settlement of this action, or, at the option of the producing party, destroyed in
that time frame, except that Outside Counsel for each party may maintain in
its files one copy of each pleading filed with the Court, each deposition
transcript together with the exhibits marked at the deposition, and
documents constituting work product which were internally generated based
upon or which include "CONFIDENTIAL" information or "HIGHLY
CONFIDENTIAL -ATTORNEYS' EYES ONLY'' information. Further,
Outside Counsel for each party may maintain in its files one copy of each
item of Discovery Material and documents constituting work product which
were internally generated based upon or which include "CONFIDENTIAL" or
"HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY'' information to the
extent reasonably necessary to preserve a file on this litigation for purposes
of compliance with applicable state bar rules of professional conduct and
counsel's malpractice carrier requirements. Any such archival copies that
contain or constitute material designated "CONFIDENTIAL" OR "HIGHLY
CONFIDENTIAL-ATTORNEY'S EYES ONLY'' remain subject to this Order.

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Upon receipt of any subpoena for such information, the party receiving the
subpoena shall immediately notify Outside Counsel for the producing party of
the subpoena so that the latter may protect its interests. In the event that
documents are returned to or destroyed at the request of the producing party,
the other party or its Outside Counsel shall certify in writing that all such
documents have been returned or destroyed, as the case may be. The parties
should agree to reasonable extensions of time to complete the return of the
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES
ONLY'' information, if necessary.
20.

The restrictions set forth in any of the preceding paragraphs of

this Order shall not apply to information that:
a.

was, is, or becomes public knowledge not in violation of this

b.

was lawfully possessed by the non-designating party prior

Order; or

to the date pf this Order.
21.

This Order shall continue in full force and effect after the

termination of this litigation, including all appeals, and the Court shall
retain jurisdiction as necessary to enforce the terms of this Order. This Order
shall be subject to revocation or modification by order of the Court, upon
written stipulation of the parties, or upon motion and reasonable notice,

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including opportunity for a hearing and presentation of evidence should the
Court so decide.
22.

The parties agree to submit this Order for entry by the Court and

to be bound by the terms prior to entry by the Court.

So ORDERED this thel.Lday of October, 2017.

~~r~.Boyle
United States District Judge

CONSENTED TO:

Is I Elizabeth C. Stone
Elizabeth C. Stone
NC State Bar Number 36690
Williams Mullen
301 Fayetteville St., Suite 1700
Raleigh, NC 27601
T: 919-981-4000 .
F: 919-981-4300
[e-mail]
Attorney for Defendant
SunTrust Bank

Is I Suzanne Begnoche
Suzanne Begnoche
NC State Bar Number 35158
Suzanne Begnoche, Attorney at Law
PO Box 2035
Raleigh, NC 27515
T: 919-960-6108
F: 919-500-5289
suzanne. begnoche@begnochela w .com
Attorney for Plaintiff
Ronald Toland, Jr.

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EXHIBIT A
The undersigned, having read the Consent Protective Order (the
"Protective Order") entered in this action, understands the terms thereof, and
intending to be legally bound thereby, agrees as follows:
1.

All information and documents disclosed to the undersigned

pursuant to the Protective Order shall be used only in connection with the
above-captioned action (the "Litigation") and shall not be used for any
business or other purpose.
2.

Such informatior:i and documents shall be disclosed to and

discussed only with the parties' outside counsel and other persons so
authorized pursuant to the terms of the Protective Order, who have in
accordance with the provisions of the Protective Order executed a similar
Nondisclosure Agreement. Neither such documents or information nor
information acquired or extracted from such documents or information will be
divulged or made accessible to any other person, company, firm, news
organization, or any other person or entity whatsoever, except in compliance
with the Protective Order and this Nondisclosure Agreement. This
Nondisclosure Agreement does not limit the right of the signatory to testify at
trial in this action or to prepare documents or other materials for submission
at trial in this action.

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3.

The undersigned agrees to take all appropriate and necessary

precautions to avoid loss or inadvertent disclosure of documents or
information covered by the Protective Order.
4.

The undersigned further agrees to return all information and

documents in his or her possession or control (including all abstracts,
summaries, descriptions, lists, synopses, pleadings, or other writings
reflecting or revealing such information) and covered by the Protective Order,
to the attorney from whom he or she received such documents and
information within thirty (30) days after the termination of this Litigation,
including all appeals, or within thirty (30) days after the undersigned is no
longer associated with this Litigation, whichever comes first.
5.

The undersigned acknowledges that a violation of the terms of

the Protective Order may subject the undersigned and/or his/her employer to
sanctions, including, but not limited to, punishment for civil contempt.
Dated:

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Signature

Printed Name

Title

Employer(s)

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