Equal Employment Opportunity Commission v. Community Innovations, Inc.

Filing 24

JOINT CONSENT PROTECTIVE ORDER (As Modified) - Signed by US Magistrate Judge James E. Gates on 11/6/2018. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CIVIL ACTION NO. 5:17-CV-00599
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,

)
)
)
)
)

)

~

)
)

COMMUNITY INNOVATIONS, INC.,
DefundanL

JOINT CONSENT
PROTECTIVE ORDER
(AS MODIFIED) t

)
)
)

)
~~~~~~~~~~~~~~~~)

The parties move the Court for entry of this Consent Protective Order to expedite the
flow of discovery materials, facilitate the prompt resolution of discovery disputes and disputes
concerning confidentiality, protect certain materials designated as confidential ("confidential
materials"), and ensure that protection is afforded only to material so designated.
IT IS HEREBY ORDERED THAT:
1.

General Scope of the Agreement. This Consent Protective Order shall govern

certain documents and other material produced in response to any discovery request or other
request for information by Plaintiff and Defendant in this action, all information contained
therein, and all copies, excerpts or summaries thereof, specifically including, but not limited to,
answers to requests for admissions, answers to interrogatories, responses to requests for
production of documents and documents produced in accordance therewith, documents
subpoenaed in connection with depositions and any deposition transcript or portion thereof as to
which protection is sought in accordance with this Agreement. The following documents and/or

information may be designated as "Confidential" pursuant to this Order: (a) medical records or
other health-related information; (b) personal information about Defendant's employees,
including but not limited to: social security numbers, tax information, personnel records, and
health insurance information; and (c) confidential or proprietary business and personal
information, including but not limited to, income tax returns, balance sheets, profit and loss
statements.
2.

Designation as Confidential. Any party producing or furnishing information of

any nature to another party, to the Court, or at a deposition in connection with this litigation, may
designate as "Confidential," in accordance with the procedures set forth herein, any such
information, document or part thereof, interrogatory answer, response to request for admissions,
deposition testimony, excerpts and summaries of such information, or other materials as set forth
in Paragraph 1 of this Agreement. Such designation shall be made at the time the information in
produced or furnished, or at a later time as provided herein.
3.

Procedure for Designating Information as Confidential. Parties may designate

confidential materials in the following manner:
(a)

In the case of documents or other written materials, by affixing to each

page of every such document, at the time of production, the word "Confidential" by
stamp or other method which will make the word conspicuous;
(b)

In the case of answers to interrogatories, designation shall be made by

placing the word "Confidential" adjacent to or at the end of any answer deemed to
contain confidential information. Alternately, answers deemed to contain confidential
information may be bound separately and marked with the word "Confidential";

2

(c)

In the case of depositions or other pretrial testimony in this action by the

parties or any of their officers or employees, by a statement to that effect on the record by
counsel for the party who claims that confidential material is about to be or has been
disclosed. Unless the parties intend to designate all of the information contained within a
particular document or deposition testimony as confidential material, counsel for that
party should indicate in a clear fashion the portion of the document or testimony which is
intended to be designated as confidential.
4.

Restricted Use of Information.
(a)

Documents/information designated as "Confidential" pursuant to

paragraphs 1 through 3 of this Order shall be used solely for the purposes of this action
and shall not be disclosed to any person except the following individuals:
(i)

the Court (including the Clerk's office, stenographic reporters and

videographers, engaged in such proceedings as are necessary to the preparation
for trial and trial of this action);
(ii)

counsel for the parties, their staff members, their professional and

para-professional employees;
(iii)

any experts or service contractors (i .e., court reporters or outside

photocopying or imaging services) associated by the parties regarding this action ;
(iv)

the parties, including officers or managers of a party who have a

need to know the information for purposes of this litigation;
(v)

the Charging Party, or

(vi)

by mutual consent.

3

(b)

Documents produced pursuant to this Order shall not be used for any

purpose other than evidence in this litigation and may not be disclosed under any
circumstances to anyone not connected with this action as a party, witness, counsel,
consultant, staff person or court personnel. Specifically, use of confidential material
during the trial of this action or in any hearing in connection with the disposition of this
matter by any party shall in no way permit the use of such material for or in connection
with any other lawsuit, action, hearing or proceeding, without further order of the Court,
express agreement by both parties, or pursuant to a subpoena.
5.

Acknowledgment of A!!reement. All persons to whom confidential material is

disclosed pursuant to paragraph 4 of this Order shall be bound by this Order. It shall be the
responsibility of counsel for each party to this action to ensure that persons authorized to receive
confidential material pursuant to paragraph 4 of this Order have knowledge of the terms of this
Order and agree to be bound by them . Any persons breaching the provisions of this Order are
subject to the contempt powers of this Court.
6.

Inadvertent Disclosure. In the event a party inadvertently produces materials

which should have been, but were not, marked "Confidential," the party may designate such
materials as "Confidential" by notifying counsel of the error and producing the documents again,
with the "Confidential" designation, prior to the expiration of the discovery deadline set by the
Court. The parties will then treat these documents as if they had been marked "Confidential"
when they were first produced.
7.

Use of Confidential Materials in this Case. Nothing in this Agreement shall

prevent or impair the use by a party of confidential materials as set forth in paragraphs 1 through
3 of this Agreement in proceedings in this litigation, including motion papers, affidavits, briefs,

4

other papers and depositions filed with the Court or at any deposition, or hearing, conference, or
trial before the Court so long as confidentiality of such information is protected as provided
herein. Before filing any information that has been designated "CONFIDENTIAL
INFORMATION" with the Court, or any pleadings, motions or other papers that disclose any
such information, counsel shall confer with counsel for the party that produced the information
so designated about how it should be filed. If the party that produced the information so
designated desires that the materials be filed under seal, then the filing party shall file the
materials in accordance with Local Civil Rule 79.2, EDNC, with notice served upon the
producing party. The filing of the materials under seal shall not be binding on the Court,
however. Within 10 days of service of such notice, the party desiring that the materials be
maintained under seal shall file with the Court a Motion to Sea) and supporting memorandum of
law specifying the interests which 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, after carefully weighing the interests advanced by the movant and those
interests favoring public access to judicial documents and records, and upon finding that the
interests advanced by the movant override any common law or constitutional right of public
access which may attach to the information . Documents 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.

5

8.

Challenging Confidentiality. Acceptance by a party of any information,

document or thing identified as "Confidential" pursuant to this Order shall not constitute a
concession that the information, document or thing is confidential material. Counsel for the
parties shall serve written notice of any objections to specific designations upon the other party
within twenty (20) days of receipt of such information, documents or things. Counsel shall first
attempt to resolve any disputes of confidentiality between themselves. If Counsel are unable to
agree on any such issue, counsel seeking protection of a document must bring the issue before
the Court within twenty (20) days of receipt of any written notice of any objections. No
disclosure of such information shall occur pending resolution of any dispute under this
paragraph.
9.

Right to Object. Notwithstanding the foregoing provisions, this Order shall not

prejudice the right of any party to object to discovery on other grounds. Any party may, upon
reasonable notice to the opposing party' s counsel, move for an order relieving it of the provisions
of this Order for good cause shown. All parties retain the right to apply to the Court for an order
affording additional protection to confidential material as the circumstances may warrant.
Nothing contained herein shall prevent a party from seeking modification to this Order.
10.

Disclosure.
(a)

Nothing contained herein shall prevent a party from disclosing, revealing

or using any documents, material or other information which is already lawfully in the
possession of that party or which that party lawfully obtains from any source other than
the opposing party, and this Order shall not otherwise apply to such documents, material
or other information.

6

(b)

Nothing in this document shall prevent any party from producing any

document or information in his, her, or its possession in response to a lawful subpoena or
other compu.lsory process, provided that notice shall be given to the other party prior to
the date that the party subpoenaed is required to respond to the subpoena or other
compulsory process in which materials designated confidential are sought.
11.

Return of Confidential Information. All confidential material shall be returned to

the producing party within ninety (90) days of the conclusion of this civil lawsuit, including
conclusion of any appeal. However, the EEOC, at its election, may destroy the confidential
material in the normal course of its business and in accordance with its document retention
procedures.
12.

Modification of the Agreement. In the event of further proceedings in this action,

if any of the parties hereto believe that this Agreement unreasonably impedes discovery to a
party or the use of information discovered from a part)' for purposes of this litigation, or provides
insufficient protection regarding discovery materials produced by a party, such party may serve
notice upon the parties and request the Court modify this Agreement.
13.

Protection of Copies. All copies, extracts or summaries prepared from

confidential materials produced hereunder shall be subject to the same terms of this Agreement
as the confidential material from which such copies, extracts or summaries were prepared, if
properly designated.
14.

Notices. Notice required under this Agreement shall be in writing and provided to

the attorneys for the parties listed below. Notice to the parties shall be adequate if given solely
to the parties' counsel ofrecord.

7

15.

Effective Date. This Agreement shall be effective immediately and shall survive

the conclusion of this lawsuit.

AGREED TO:
EQUAL EMPLOYMENT
OPPORTUNITY COMMISION
LYNETTE A. BARNES
Regional Attorney
Charlotte District Office
YLDA M. KOPKA
Supervisory Trial Attorney
Charlotte District Office

Isl Zoe G. Mahood
ZOE G. Mahood (NC Bar No. 21722)
Senior Trial Attorney
Raleigh Area Office
434 Fayetteville Street, Suite 700
Raleigh, NC 27601
Telephone: [phone]
Fax: [phone]
[e-mail]

Isl Robert W. Shaw
ROBERT W. SHAW (NC Bar No. 32923)
ZEBULON D. ANDERSON (NC Bar No. 20831)
TAYLOR M. DEWBERRY (NC Bar No. 52108)
Smith, Anderson, Blount, Dorsett, Mitchell &
Jernigan, LLP
150 Fayetteville Street, Suite 2300
Raleigh, NC 27601
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

Attorneys for Defendant

Attorneys for Plaintiff

8

**********************
COURT'S APPROVAL AND MODIFICATIONS
This Joint Consent Protective Order is the subject of the parties' motion (D.E. 22) for entry
thereof in the form proposed at D.E. 22-1. The court hereby ALLOWS the motion, and
APPROVES and ADOPTS the foregoing terms of the Joint Consent Protective Order, subject to
the following modifications:
1.
A party may designate any discovery material as "Confidential" pursuant to
paragraph 2 of the Joint Consent Protective Order only if such party believes in good faith that
such discovery material qualifies for protection under Federal Rule of Civil Procedure 26( c).
2.

Court personnel shall be excluded from the provisions of paragraph 5.

3.
The return of confidential information by the court shall be governed by Local Civil
Rule 79.1 , E.D.N.C., notwithstanding any contrary terms in this Joint Consent Protective Order,
including any such terms in the paragraph 11.
4.
Notwithstanding any contrary provisions in paragraph 15, the extent to which this
Joint Consent Protective Order survives the conclusion of this lawsuit shall be determined in
accordance with law.
SO ORDERED, this 6th day of November 2018 .

J~

United States Magistrate Judge

9