Harleysville Mutual Insurance Company v. Hartford Casualty Insurance Company, et al
STIPULATED ORDER REGARDING CONFIDENTIALITY OF DISCOVERY MATERIAL AND INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL - Signed by District Judge Louise Wood Flanagan on 03/27/2014. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
HARLEYSVILLE MUTUAL INSURANCE
HARTFORD CASUALTY INSURANCE
COMPANY et al.,
OF DISCOVERY MATERIAL AND
INADVERTENT DISCLOSURE OF
WHEREAS, this action involves coverage for various underlying actions against
Defendant G.R. Hammonds, Inc. a/k/a G.R. Hammonds Roofing, Inc. a/k/a Hammonds Roofing
WHEREAS, the other Defendants and Plaintiff issued liability insurance policies to
WHEREAS, in discovery in this action the Parties have requested production of
documents prepared in connection with the defense of the underlying actions, and
communications between Hammonds, its defense counsel, and its liability insurers in the defense
of the underlying actions; and
WHEREAS, such documents are subject to the attorney-client privilege and the workproduct protection shared among Hammonds, its defense counsel, and its liability insurers; and
WHEREAS, the Parties have requested entry of this confidentiality order to clarify that,
notwithstanding the adversarial posture of the present litigation, they may produce such materials
in discovery in this case without breaching those privileges and protections;
Accordingly, it is this ____ day of ________________, 2014, by the United States
District Court for the Eastern District of North Carolina, ORDERED:
Designation of Discovery Materials as Confidential. All documents produced
in the course of discovery, all Answers to Interrogatories, all Answers to Requests for
Admission, all Responses to Requests for Production of Documents, and all deposition testimony
and deposition exhibits shall be subject to this Order concerning confidential information, as set
For purposes of this Order, “CONFIDENTIAL MATERIAL” means
discovery materials that have been designated confidential pursuant to this
Order. A party may designate as CONFIDENTIAL MATERIAL any
discovery material it reasonably and in good faith believes to contain
proprietary, confidential, or personal information, including, but not
limited to, claim-file materials, or any testimony or discovery responses
containing information exchanged within the attorney-client privilege or
the work product protection. The following matters, shall not, however,
be deemed CONFIDENTIAL: (1) matters of public record, including but
not limited to public filings in the underlying actions; (2) the insurance
policies; and (3) communications between Hammonds and other parties in
the underlying litigation.
Copies of documents or portions thereof may be designated as
“CONFIDENTIAL” in any of the following ways.
If the document is first produced after entry of this order, the
producing party shall specifically mark the document or portion of
document as “CONFIDENTIAL” at the time of production.
If a party has produced a document before entry of this order, the
producing party shall, within 30 days after entry of this order: (a)
re-produce the document, specifically marked as
“CONFIDENTIAL”; and (b) serve upon all parties a letter or other
notice specifically identifying (including, if available, Bates
numbers) the affected documents or portions of documents.
Following production of a document that a receiving party believes
to be the subject of a shared privilege or protection, the receiving
party shall serve upon all parties a letter or other notice specifically
identifying (including, if available, Bates numbers) the documents
or portions of documents that the receiving party wishes to mark as
“CONFIDENTIAL.” Such designation shall occur within the later
of: (a) 30 days after production of the document; or (b) 30 days
after entry of this order. The producing party shall then re-produce
the document, marked as “CONFIDENTIAL”; such re-production
shall not waive any objection that the producing party may have
regarding whether such a document is appropriately marked as
CONFIDENTIAL information and documents shall not be used or
disclosed by the parties or counsel for the parties or any persons identified
in subparagraph (c) below for any purposes whatsoever other than
preparing for and conducting the litigation in which the information or
documents were disclosed (including appeals).
The parties to this lawsuit and counsel for the parties shall not disclose or
permit the disclosure of any CONFIDENTIAL documents or information
to any other person or entity, except that disclosures may be made in
connection with this lawsuit (including appeals) in the following
Disclosure may be made to counsel and employees of counsel for
the parties who have responsibility for the preparation and trial of
the lawsuit. Any such employee to whom counsel for the parties
makes a disclosure shall be provided with a copy of, and become
subject to, the provisions of this Order requiring that the
documents and information be held in confidence.
Disclosure may be made to court reporters engaged for depositions
and those persons, if any, specifically engaged for the limited
purpose of making photocopies of documents. Prior to disclosure
to any such court reporter or person engaged in making
photocopies of documents, such person must agree to be bound by
the terms of this Order.
Disclosure may be made to consultants, investigators, or experts
(hereinafter referred to collectively as “experts”) employed by the
parties or counsel for the parties to assist in the preparation and
trial of the lawsuit. Prior to disclosure to any expert, the expert
must be informed of and agree in writing to be subject to the
provisions of this Order requiring that the documents and
information be held in confidence.
Disclosure may be made to any reinsurer, regulator or auditor for
any insurer that is a party to this Action, and for any other entity or
individual that a party has a legal or contractual obligation to
provide with such information;
Disclosure may be made to deponents or witnesses in preparation
for and during their examinations, if counsel for the preparing or
examining party believes in good faith that they have a need to
review such material;
Disclosure may be made to persons interviewed by any party to the
above-captioned action in connection with this action, if counsel
for the interviewing party believes in good faith that they have a
need to review such material. Prior to disclosure to any such
person, the person must be informed of and. agree in writing to be
subject to the provisions of this Order requiring that the documents
and information be held in confidence;
Disclosure may be made to any mediator, arbitrator, special
discovery master, or provider of alternative dispute resolution
services retained by two or more parties in connection with this
Confidential Information Filed with Court. To the extent that any
CONFIDENTIAL documents or information (or any pleading, motion or memorandum
disclosing them) are proposed to be filed or are filed with the Court, those materials and papers,
or any portion thereof which discloses confidential information, shall be filed under seal (by the
filing party) with the Clerk of the Court by appropriate electronic filing procedures in accordance
with Local Rule 79.2 for the Eastern District of North Carolina and Section T of the CM/ECF
Policy Manual to preserve confidentiality.
Except as described in Paragraph 2(b), each time a party seeks to file
under seal, said party shall accompany the request with a motion to seal.
The motion to seal may be filed without a supporting memorandum only if
the filing party can cite a statute or rule (federal, local or standing order)
that requires the filing to be sealed. Absent such authority, the filing party
must submit a supporting memorandum that specifies:
the exact document or item, or portions thereof, for which filing
under seal is requested;
how such request to seal overcomes the common law or the First
Amendment presumption to access;
the specific qualities of the material at issue which justify sealing
such material, taking into account the balance of competing
interest in access;
the reasons why alternatives to sealing are inadequate; and
whether there is consent to the motion.
In addition to the motion and supporting memorandum, the filing party must set out such
findings in a proposed order to seal, which should be submitted in accordance with Section M of
the Court’s CM/ECF Policy Manual.
In the event that a filing party seeks to file materials that have been
designated CONFIDENTIAL by another party or individual, the filing
party shall provisionally file the materials under seal in accordance with
Local Civil Rule 79.2, with notice served on the party or individual who
desires to maintain the materials under seal.
The filing party is required to file a notice of filing pursuant to this
subsection, in lieu of filing a motion to seal, which must be
docketed after the filing of the sealed material and link back to the
entry or entries being filed under seal. The filing party need not file
a motion to seal or otherwise defend another party or individual’s
request that the material remain sealed and the filing of the
materials under seal shall not be binding on the court.
Within seven (7) days after service of such notice, the party or
individual desiring that the material be maintained under seal shall
file a motion to seal and supporting memorandum in accordance
with Paragraph 2(a).
Documents submitted under seal in accordance with this
subsection will remain under seal pending the court’s ruling on the
motion to seal. 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 further order of the
Conclusion of Litigation. At the conclusion of the litigation, all material treated
as confidential under this Order and not received in evidence shall be returned to the originating
party or destroyed. The Clerk of the Court may return to counsel for the parties, or destroy, any
sealed material at the end of the litigation, including any appeals. Notwithstanding any of the
foregoing, the Parties’ counsel may retain any privileged attorney work product they have
created which incorporates CONFIDENTIAL MATERIAL on the condition that they will
maintain the confidentiality of such material and will not use such material in contravention of
the provisions of this Order.
Non-Waiver of Privilege for Inadvertently Disclosed Materials. Pursuant to
Fed. R. Evid. 502(d), the inadvertent disclosure of any document that is subject to a legitimate
claim that the document is subject to the attorney-client privilege or the work-product protection
shall not waive the protection or the privilege for either that document or for the subject matter
of that document.
Return of Inadvertently Disclosed Materials. Except in the event that the
requesting party disputes the claim, any documents the producing party deems to have been
inadvertently disclosed and to be subject to the attorney-client privilege or the work-product
protection shall be, upon written request, promptly returned to the producing party, or destroyed,
at that party’s option. If the claim is disputed, a single copy of the materials may be retained by
the requesting party for the exclusive purpose of seeking judicial determination of the matter
pursuant to Fed. R. Civ. P. 26(b)(5)(B) and Fed. R. Evid. 502.
Modification. The provisions of this Order may be modified by written
agreement of the parties with the approval of the Court.
This 27th day of ________________, 2014.
LOUISE W. FLANAGAN
UNITED STATES DISTRICT JUDGE
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