Colorado Bankers Life Insurance Company v. Academy Financial Assets, LLC

Filing 33

CONSENT PROTECTIVE ORDER - Signed by US Magistrate Judge Robert T. Numbers, II on 11/19/2020. (Sellers, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CIVIL ACTION NO.: 5:20-CV-00185-D
COLORADO BANKERS LIFE
INSURANCE COMPANY,
Plaintiff,
v.
ACADEMY FINANCIAL ASSETS, LLC,
Defendant.

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EXHIBIT A
CONSENT
PROTECTIVE ORDER

THIS CAUSE came to be heard before the undersigned on joint motion of the Plaintiff and
Defendant (together, the “Parties”) seeking entry of a protective order under Rule 26(c) of the
Federal Rules of Civil Procedure. As it appears that the Parties agree to the entry of such an order,
the Motion is hereby GRANTED.
NOW, WHEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:
1.

This Consent Protective Order shall govern the use and dissemination of all

information, documents, or materials that are produced in this action (the “Litigation”) and
designated as “Confidential.”
2.

The term “Confidential,” as used in this Consent Protective Order, shall mean

(a) information not in the public domain that is so proprietary or sensitive that its public disclosure
may cause competitive injury; (b) information that contains trade secrets pursuant to applicable
law; (c) personal identifying information of third parties, including account numbers, telephone
numbers, personal financial information, and other sensitive information that is not already in the
public domain; (d) information protected from disclosure by contractual obligations with third

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parties; and (e) information protected from disclosure by law, including, but not limited to,
information described under Chapter 58 of the North Carolina General Statutes.
3.

Any party to this action or other person or entity, including any third party (“Third

Party”), who produces or supplies information, documents, or other materials in the course of
responding to interrogatories, responding to requests for production of documents, responding to
requests for admission, responding to a third-party subpoena, or otherwise responding to discovery
requests of any kind (the “Designating Party”) may designate as “Confidential” any such
information, document, or material that it reasonably and in good faith believes constitutes or
contains information protected under the terms of this Consent Protective Order. The designation
shall be made at or prior to the time of production of information, documents, or material or as
soon thereafter as may be practicable by affixing on the document or material containing such
information a legend that states: “CONFIDENTIAL.” To the extent the parties or any Third Party
produces electronic files in native format, the legend “CONFIDENTIAL” may be affixed to the
storage device in which the electronic files are produced. For avoidance of doubt, any party to this
action may designate a Third Party’s production “Confidential.”
4.

Depositions may be designated “Confidential” either by: (a) stating that fact on the

record at the deposition, or (b) stating that fact in writing served upon counsel of record within 20
days after receipt of the deposition transcript. If a Designating Party has advised the Court reporter
that Confidential information has been disclosed during a deposition, the Court reporter shall
include on the cover page the following indication: “DEPOSITION CONTAINS
CONFIDENTIAL INFORMATION — SUBJECT TO A PROTECTIVE ORDER.” Within
20 business days of receipt of the initial deposition transcript, the Designating Party shall advise
opposing counsel of the specific pages and lines in which Confidential information appears. If
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counsel for the opposing party has been informed that portions of a deposition transcript have been
designated “Confidential,” counsel may have immediate access to the deposition transcript but,
prior to the page and line designations, shall treat the entire transcript as Confidential.
5.

This Order does not apply to information that is publicly available or information

that a Party or Third Party can or does discover outside of formal litigation discovery.
6.

Information, documents, or material may be designated as Confidential by marking

each page of the document or material in which the information appears as “Confidential.” If the
original is not produced, a party may mark the copies that are produced or exchanged in lieu of
marking the original documents. If any copies are made of documents which are marked and/or
subject to this Order do not display the confidentiality stamp, this does not change the status of the
document. Any summaries of Confidential information shall be marked with the appropriate
designation and shall be treated as Confidential information.
7.

Except as otherwise provided herein, all Confidential information shall be subject

to the provisions of this Order until further order of the Court or the Parties’ written agreement
modifying this Order.
8.

Except as otherwise allowed herein, all Confidential information will solely be used

in connection with this Litigation. This Order does not restrict or prevent a Party or Third Party
from using its own Confidential information in any manner that it sees fit.
9.

Except with the prior written consent of the Designating Party, or upon prior order

of this Court obtained upon written notice to the Designating Party’s counsel, Confidential
information shall not be disclosed to any person other than:
a. the respective Parties to this Litigation;
b. counsel for the respective Parties to this Litigation;
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c. employees of such counsel and persons assigned to assist such counsel in the
preparation of this Litigation;
d. expert witnesses and consultants, to the extent deemed necessary by counsel, for
the prosecution or defense of this Litigation;
e. court reporters, to the extent deemed necessary by counsel, for the prosecution or
defense of this Litigation;
f. A deponent, prior to or in the course of a deposition, provided that such persons
may be shown copies of designated material only during the course of preparation
for his or her deposition or in the actual course of a deposition, may not retain any
designated material, and must be informed of the confidential nature of the
materials;
g. the Court and its personnel; and
h. any mediator or arbitrator named in an order of the Court or agreed to by the Parties.
10.

If a Party wishes to disclose Confidential information to any person not described

in Paragraph No. 9 above, permission to so disclose must be requested from the Designating Party
in writing. The Designating Party shall respond to the request within 10 business days. A failure
to object shall be deemed a waiver by the Designating Party, and the party wishing to make the
proposed disclosure may do so without violating this Order. If the Designating Party objects to
the proposed disclosure, such disclosure shall not be made unless, upon motion by the Party
requesting such permission, the Court orders otherwise.
11.

Prior to obtaining access to Confidential information, any person to whom

Confidential information may be disclosed pursuant to Paragraph No. 9 above, except the Court
and its personnel, counsel for the Parties in this Litigation, any court reporter, and any mediator or
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arbitrator selected with the consent of all parties or by the Court, shall be shown and shall read a
copy of this Order and shall agree in writing to be bound by its terms by signing a copy of the
Confidentiality

Acknowledgment

annexed

hereto

as

Exhibit

1

(“Confidentiality

Acknowledgment”). Counsel for the Party obtaining a person’s signature on the Confidentiality
Acknowledgment shall retain the original signed Confidentiality Acknowledgment and, upon
request, shall make it available to counsel of record for the other Parties, provided that the identities
of consultants, including trial or jury consultants, who have not been identified as testifying experts
need not be disclosed.
12.

Any person receiving Confidential information shall not reveal to, or discuss such

information with, any person who is not entitled to receive such information as set forth in
paragraph 9 above. In the event that additional parties are added to the Litigation, they must
execute a copy of the Confidentiality Acknowledgement and serve on the Parties before they may
access any Confidential information.
13.

Before filing any information that has been designated “CONFIDENTIAL” 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 Seal 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
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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.
14.

Upon written request by counsel of the Designating Party after the termination of

this Litigation and within 20 days of receipt of same, through settlement or the entry of a final,
non-appealable order, all Confidential information and all copies thereof, including, but not limited
to, any notes or other transcriptions made therefrom that is not attorney work-product, shall be
returned (upon the request of the Designating Party) or destroyed by the Parties to whom such
Confidential information was provided. Each Party shall provide a written certification of the
return or destruction of all Confidential information and all copies thereof, including, but not
limited to, any notes or other written transcriptions made therefrom that is not attorney workproduct.
15.

This Order is intended to facilitate discovery while preserving claims of

confidentiality and not to waive any claims, defenses or rights regarding confidentiality.
Accordingly, no Party or Third Party shall be deemed to have waived any claims of confidentiality
or defenses to an allegation of confidentiality merely because they have stipulated to this Order or
provided information under the terms of this Order. No Party shall be deemed to have admitted
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that any material designated by another Party or Third Party as Confidential information actually
constitutes Confidential information.
16.

Entry of this Order shall be without prejudice to any application for relief from any

restriction hereof or for any other or further restriction on the production, exchange, or use of any
document, testimony, interrogatory response, or other information produced, given or exchanged
in the course of pretrial discovery in these actions. However, any Party or Third Party applying for
relief shall give a minimum of three business days’ notice, weekends and holidays excluded, of
any request for relief.
17.

The production, disclosure, or use of Confidential information in accordance with

the terms of this Order shall not constitute a waiver by a Party or Third Party of any common
interest privilege or exemption from discovery to which such information is subject, and shall not
constitute a waiver by a Party or Third Party of any attorney-client, work-product, or other
privilege or exemption from discovery with respect to such information in this Litigation or any
other Litigation, past, present or future, and shall not constitute a waiver by any Party or Third
Party of any protection from disclosure and/or discovery afforded under Chapter 58 of the North
Carolina General Statutes.
18.

Nothing herein shall be deemed to waive any applicable privilege.

19.

Nothing herein shall be deemed a ruling or opinion on the discoverability or

admissibility of evidence.
20.

The Court retains jurisdiction subsequent to settlement or entry of judgment to

enforce the terms of this Consent Protective Order.

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21.

By attaching their signatures hereto, counsel and the parties they represent agree to

treat information disclosed hereafter as if the Order had been entered, until such time as this
Consent Protective Order is presented to a Judge for signature and entry.

Dated: November 19, 2020
This, the _____ day of November, 2020.
______________________________________
________________________________
Robert T. Numbers, II
United States Magistrate Judge

[Signatures on the following page]

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This the 3rd day of November, 2020.
CONSENTED TO BY:
WILLIAMS MULLEN

CONDON TOBIN SLADEK THORNTON
PLLC

/s/ Camden R. Webb
Camden R. Webb
NC State Bar No. 22374
John W. Holton
NC State Bar No. 44468
Lauren E. Fussell
NC State Bar No. 49215
301 Fayetteville Street, Suite 1700 (27601)
PO Box 1000
Raleigh, NC 27602
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

/s/ Aaron Z. Tobin
Aaron Z. Tobin
N.C. Bar No. 50019
[e-mail]
8080 Park Lane, Ste. 700
Dallas, Texas 75231
Telephone: [phone]
Facsimile: 214.691.6311
FOX ROTHSCHILD LLP
Matthew Nis Leerberg
N.C. Bar No. 35406
[e-mail]
434 Fayetteville St., Ste. 2800
Raleigh, North Carolina 27601
Telephone: [phone]
Facsimile: 919.755.8800

Attorneys for Plaintiff

Matthew W. Krueger-Andes
N.C. Bar No. 42984
[e-mail]
101 North Tryon Street, Suite 1300
Charlotte, North Carolina 28246
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CIVIL ACTION NO.: 5:20-CV-00185-D
COLORADO BANKERS LIFE
INSURANCE COMPANY,
Plaintiff,
v.
ACADEMY FINANCIAL ASSETS, LLC,
Defendant.

EXHIBIT
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CONFIDENTIALITY ACKNOWLEDGMENT

I, __________________________________, being duly sworn on oath, state the
following:
1.

I have read and understand the Consent Protective Order to which this Exhibit A is

annexed, and I attest to my understanding that access to information designated Confidential may
be provided to me and that such access is pursuant to the terms and conditions and restrictions of
the Consent Protective Order. I agree to be bound by the terms of the Consent Protective Order.
I hereby submit to the jurisdiction of this Court for the purpose of enforcement of this
Confidentiality Acknowledgment and the Consent Protective Order.
2.

I shall not use or disclose to others, except in accordance with the Order, any

Confidential information. I also shall return all Confidential information provided to me in this
litigation to counsel for the party I represent within thirty (30) days after the conclusion of this
action, including the exhaustion of all appeals. If I fail to abide by the terms of this Confidentiality
Acknowledgment or the Consent Protective Order, I understand that I may be subject to sanctions

Case 5:20-cv-00185-D Document 33 Filed 11/19/20 Page 10 of 11

under the contempt power of the Court, which includes the power to impose compensatory
damages.
Dated: _______________________
_____________________________________
Signature
____________________________________
Printed Name
____________________________________
____________________________________
Address
____________________________________
Individual or Entity Represented

_______________ County
Sworn to and subscribed before me by ____________________.
Dated: _______________
_________________________________
Notary Public
________________________________
Notary’s Printed Name
My Commission Expires:___________

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