Primrose v. Castle Branch, Inc.

Filing 33

CONSENT PROTECTIVE ORDER as modified. Signed by Magistrate Judge James E. Gates on 4/5/2016. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
CIVIL ACTION NO.7:14-CV-00235-D

CLAIRE H. PRIMROSE
Plaintiff,
v.

CASTLE BRANCH, INC.,
Defendant.

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[PROPOSED] CONSENT
CONSENT
PROTECTIVE ORDER
(AS MODIFIED)

Pursuant to the Magistrate Judge's Order dated March 8, 2016 (Dkt. # 29), Pro Se
Plaintiff, Claire H. Primrose ("Plaintiff"), and Defendant Castle Branch, Inc. ("Castle Branch"),
by and through its counsel, jointly submit to the court the following in order to protect the
Plaintiff's confidentiality in relation to documents produced through the course of discovery:
Certain

confidential

documents,

material,

and

information

(hereinafter,

"Confidential Information") in the possession, custody or control of the University of North
Carolina at Wilmington ("UNCW") and/or other parties, including Plaintiff, is necessary for
Castle Branch to obtain in order to defend against Plaintiff's allegations in the above named suit
and it may be necessary that additional Confidential Information will need to be disclosed during
the course of this litigation. The Confidential Information may include but is not limited to
information relating to Plaintiff, Plaintiff's personal, financial, and/or medical information, and
Plaintiff's tenure as a former student and employee at UNCW. In light of the confidentiality of
this material, and in an effort to protect that confidentiality, the parties will not disclose or use
the Confidential Information for any purpose except in connection with this litigation.

Accordingly, upon the agreement of counsel, it is hereby ORDERED that:
1.

Scope of the Order. This Order governs the handling and disclosure of

all documents, materials and information identified, produced, given, exchanged, obtained, or
filed herein and which are designated as "confidential information."
2.

Agreement on Use of Confidential Information.

All Confidential

Information, as defined and designated in accordance with this Order, shall be used solely in the
prosecution or defense of this action including, but not limited to, mediation, other alternative
dispute resolution processes, any other settlement process, and all other pre-trial, trial and
post-trial proceedings in this action and shall not be used or disclosed by any person for any
other purpose.
3.

"Disclosure." When used in this Order, the term "Disclosure" shall mean

to provide, impart, transmit, transfer, convey, publish, or otherwise make available.
4.

"Confidential Information." For the purposes of this Order and during

the course of this litigation, the parties to this Order identify "General Confidential Information"
and define it as follows:
a.

"General Confidential Information" means:
(1)

The personal records of Plaintiff Claire H. Primrose including, but

not limited to, Plaintiff's student file, employee file, background reports, corrected background
reports; documents and/or communications concerning Plaintiff's medical, emotional, and/or
financial information; and/or documents whose confidentiality is required by federal or state law;
(2)

Other documents, materials, or information that contain potentially

embarrassing information or that invade the privacy of a person not a party to this litigation and
are therefore an appropriate subject of a Consent Protective Order.

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5.

Disclosure of Confidential Information.

General Confidential

Information shall not be disclosed to anyone except:
a.

The court and its personnel;

b.

The parties to this action as required by law and pursuant to the

c.

Ward and Smith, P.A., Counsel for Defendants to this action and

terms of this Order;

employees, agents, and/or vendors of Ward and Smith, P.A.;
d.

Experts or consultants specifically 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, but only after execution of a Confidentiality Agreement as provided in Paragraph
6;
e.

Court reporters or videographers engaged to record depositions,

hearings or the trial of this action;
f.

Witnesses at any deposition in this matter as well as witnesses or

jurors at the trial of this matter; and
g.
6.

Defendants' insurer, if any.

Confidentiality Agreements.

Before Confidential Information is

disclosed to any vendors of Ward and Smith, P.A. as well as any person described in Paragraphs
5(d) of this Order, counsel for Defendants shall inform the person to whom the disclosure is to be
made that Confidential Information shall be used only for the purpose of the prosecution or
defense of this action, and shall obtain from the person to whom the disclosure is to be made a
signed confidentiality agreement in the form attached as Exhibit A. Ward and Smith, P.A.,
Counsel for Defendants, shall maintain the original Confidentiality Agreement and need not

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produce it except by agreement of the parties, or upon order of the court.
7.

Designation of Confidential Information.

Information shall be

designated as Confidential Information in the following manner:
a.

In the case of information reduced to paper form, the designation

shall be made (1) by placing the appropriate legend, "CONFIDENTIAL - SUBJECT TO
CONSENT PROTECTIVE ORDER" for General Confidential Information on each page
containing such information.
b.

Information on a computer disk, data tape, or other medium that

has not been reduced to paper form shall be designated as General Confidential Information
(1) by informing counsel for the receiving party in writing that the computer disk, data tape, or
other medium contains such Confidential Information and, where applicable, specifying by Bates
or other page number the particular information being designated or (2) by such other means as
agreed to by the parties to this Consent Protective Order. To the extent practicable, such
physical medium shall be labeled using the appropriate legend. Any party receiving Confidential
Information designated under this Paragraph shall then be responsible for appropriately labeling
any printed version(s) of such information that it creates.
c.

Any other information that is not reduced to physical form or

cannot be conveniently labeled shall be designated as Confidential Information by serving a
written notification of such designation on Ward and Smith, P.A., Counsel for Defendants. The
notice shall, where applicable, specify by Bates or other page number the particular information
being designated.
8.

Disputes over Designations. If counsel for Defendants object to the

designation of any information as confidential, counsel for Defendants and the objector shall

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attempt to resolve the disagreement on an informal basis. If the objection is not so resolved, the
objecting counsel may move the court for appropriate relief. The information in question shall
continue to be treated as confidential in accordance with the disputed designation unless and
until the court issues a final ruling that the information does not qualify for such a designation.
The non-filing by the objecting party of a motion for relief shall not be deemed an admission that
the information qualifies for the disputed designation.
9.

Inadvertent Disclosure of Confidential Information.

Inadvertent

disclosure of Confidential Information, without identifying the same as confidential, shall not be
deemed a waiver of confidentiality with regard to the information inadvertently disclosed if
promptly called to the attention of counsel for the receiving party.
10.

Filing of Confidential Information Under Seal. Ward and Smith, P.A.,

Counsel for Defendants, shall file any and all document(s) designated "Confidential" as a
proposed sealed document along with motion to seal and supporting memorandum indicating the
basis under which the document should be filed under seal. Each time a party seeks to file under
seal confidential documents, things, and/or information, the party shall accompany the request
with a motion to seal and 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;

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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. Before ruling on any motion to
seal, the court will give public notice of the motion and a reasonable opportunity to challenge it.
While individual notice is unwarranted, the court will docket the motion reasonably in advance
of deciding the issue, or, where applicable, the court will notify persons present in courtroom
proceedings of the motion. The Court will rule favorably upon any motion to seal only after
carefully weighing the interest advanced by the and those interests favoring public access to
judicial documents and records, and only finding that the interests advanced by the movant
override any constitutional or common law right of public access which may attach to the
documents, things, and/or information issue.
11.

Authors/Recipients. Except as specifically provided herein, this Order

shall not limit use by a party of its own Confidential Information, nor shall this Order limit the
ability of a party to disclose any document to its author or to anyone identified on the face of the
document as a recipient.
12.

Return of Confidential Information. Following the conclusion of this

action, including any appeals, all parties shall request that any Confidential Information provided
to any vendors of counsel for Defendants as well as any person described in Paragraphs 5(d) and
of this Order either be returned or shredded. Ward and Smith, P.A., Counsel for Defendants,
shall destroy any Confidential Information provided in conformance with the Rules of
Professional Conduct of the North Carolina State Bar and/or any professional liability policy
requirements which provide coverage for the services of counsel for Defendants. If any vendor

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of Ward and Smith, P.A., any person identified in Paragraphs 5(d) of this Order, or Ward and
Smith, P.A. itself elects to destroy the Confidential rather than return it, Counsel for Defendants,
shall provide to all parties a signed certification that the Confidential Information has been
destroyed or will be destroyed in accordance with the file retention policy of Ward and Smith,
P.A., Counsel for Defendants, any Confidential Information, or portions or excerpts thereof,
which are not returned or destroyed pursuant to this paragraph shall remain subject to the terms
of this Order. The return of trial exhibits by the Court shall be governed by Local Civil Rule
79.1, E.D.N.C.
13.

Admissibility of Information. Neither the terms of this Order nor the

disclosure or designation as confidential of any information pursuant to it shall be deemed to
establish or vitiate the admissibility under the Federal Rules of Evidence of any information
subject to this Order.
14.

Modification. This Order is without prejudice of the right of the parties,

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.
BASED UPON the foregoing, it is therefore FURTHER ORDERED that the
parties shall observe the requirements of this Order as to any Confidential Information produced
as required by this Order.
This the ____day of March, 2015

___________________________________________
James E. Gates
United States Magistrate Judge

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WE CONSENT:

By: /s/ Claire H. Primrose (with permission)
Ms. Claire H. Primrose
1805 S. Live Oak Parkway
Wilmington, NC 28403
Pro Se Plaintiff

By: /s/ Gary J. Rickner
Gary J. Rickner
N.C. State Bar No. 25129
email: [e-mail]
Caroline B. McLean
N.C. State Bar No. 41094
email: [e-mail]
For the Firm of
Ward and Smith, P.A.
Post Office Box 33009
Raleigh, North Carolina 27636-3009
[phone]
Attorneys for Defendant

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EXHIBIT A TO CONSENT PROTECTIVE ORDER
CONFIDENTIALITY AGREEMENT
I have read and am familiar with the terms of the Consent Protective Order governing
the Confidential Information in the case of Claire H. Primrose v. Castle Branch, Inc., Civil
Action No. 7:14-CV-00235-D, in the Eastern District of North Carolina, Southern Division,
and I agree to abide by all the terms of said Order and not to reveal or otherwise communicate
any of the information disclosed to me pursuant thereto to anyone except in accordance with
the terms of said Order. I agree not to make use of any information obtained, whether in
documentary or other form, pursuant to that Order other than for purposes of this litigation. I
also agree to return to counsel of record or to destroy not later than 30 days after notification
of the termination of this litigation any and all documents in my possession containing
information which is the subject of said Order (whether such information is in the form of
notes, memoranda, reports, or other written communications or documents prepared by any
person at any time containing information covered by the terms of said Order). I further agree
to submit myself to the jurisdiction of the foregoing court, including its contempt power, for
enforcement of said Order.

Signature

Date

Printed Name

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**********************
COURT’S APPROVAL AND MODIFICATIONS
This Consent Protective Order is the subject of the parties’ request for entry thereof in the
form proposed at D.E. 31, except as provided herein. The court hereby ALLOWS the request,
and APPROVES and ADOPTS the foregoing terms of the Consent Protective Order, subject to
the following modifications:
1.
In light of the fact that plaintiff is proceeding pro se and that the Consent
Protective Order otherwise clearly indicates that plaintiff consents to the terms thereof, the court
deems the reference to “upon the agreement of counsel” in the first line on p. 2 to signify “upon
the agreement of the parties.”
2.
A party shall designate any documents, material, or other information as
“Confidential Information” or “General Confidential Information” pursuant to paragraphs 4 and
7 only if such party believes in good faith that such documents, material, or information qualifies
for protection under Federal Rule of Civil Procedure 26(c).
3.
The provisions of Local Civil Rule 79.2, E.D.N.C., along with Section T of the
ECF Administrative Policies and Procedures Manual cited therein, shall control the filing of
sealed documents, notwithstanding any contrary terms in this Consent Protective Order,
including any such terms in paragraph 10.
SO ORDERED, this 5th day of April 2016.

_________________________
James E. Gates
United States Magistrate Judge

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