Dial v. Town of Pembroke

Filing 25

CONSENT PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 04/23/2015. (Baker, C.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
CASE NO.: 7:14-cv-00297-FL
JENNIFER DIAL,
Plaintiff,

v.

TOWN OF PEMBROKE,
Defendant.

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CONSENT PROTECTIVE ORDER

This matter is before the Court on the Parties Joint Motion for Consent Protective Order.
The Court finds that good exists for issuance of this Order. Specifically, the parties have
informed the Court that they intend to exchange sensitive and confidential information, including
information and records of the Town of Pembroke employees, which is subject to the restrictions
of N.C. Gen. Stat. § 160A-168 governing disclosure of the Town of Pembroke employee
personnel files.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and upon agreement of
counsel, and deeming it just and proper to do so, the Court enters the following Order: This
Order governs the handling and disclosure of all materials produced, given or filed herein by the
parties and designated as “CONFIDENTIAL.” For purposes of this Order, CONFIDENTIAL
INFORMATION includes, but is not limited to, confidential personnel information pursuant to
N.C. Gen. Stat. § 160A-168.
WHEREFORE, IT IS HEREBY ORDERED that:
1.

“CONFIDENTIAL INFORMATION” as used herein means:

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a. All information and documents made confidential by N.C. Gen. Stat. §
160A-168;
b. Any documents or information which are contained in a personnel file
maintained by any party;
c. Any documents or information of medical, financial or personal nature
which are not generally accessible to the public; and
d. Any documents or information that any party has designated as
confidential in the normal course of business.
2.

Any party producing documents may designate the documents as Confidential

Information by marking each page of the document “CONFIDENTIAL.” Alternatively, when
producing a multi-page document, all of which it contends is Confidential Information, a party
may designate the entire document as Confidential Information by marking the cover page
“CONFIDENTIAL.” The confidential documents shall be disclosed only for official use in this
action, and for no other purpose.
3.

Certain information disclosed at the deposition of any witness, including any

party, may be designated as Confidential Information by indicating on the record at the
deposition that the specific testimony is Confidential Information subject to the provisions of this
Order. Alternatively, a party or witness may designate information disclosed at such deposition
as Confidential Information by notifying all parties in writing, within thirty (30) days of receipt
of the transcript or other date as agreed upon by the parties, of the specific pages and lines of the
transcript which are deemed Confidential Information. Each party shall attach a copy of such
written statement to the face of the transcript and each copy thereof in its possession, custody or
control. All depositions shall be treated as Confidential Information for a period of thirty (30)

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days after a full and complete transcript of the deposition is available or other date as agreed
upon by the parties.
4.

The CONFIDENTIAL INFORMATION shall not be otherwise reviewed,

disclosed or released to anyone other than:
a. Any party to this action;
b. Counsel for any party, the legal associates, clerical or other support staff
of such counsel assisting in preparation of this action;
c. Agents, representatives and employees of either party, as is necessary to
prepare this case for litigation;
d. Subject to the provision of ¶ 5 below, independent experts employed by
counsel for the purpose of assisting in this action;
e. The court, appellate court, court reporter and courtroom personnel at any
deposition, pretrial hearing, or other proceedings held in connection with
this action;
f. Subject to ¶ 5 below, any potential witness as necessary to prepare this
case for litigation; provided, that no such person shall be permitted to
maintain a copy of any document designated as Confidential Information;
and that no Confidential Information may be disclosed to any person
under the paragraph until such person has read and signed a copy of this
Order, thereby indicating his/her willingness to be bound by its provisions,
which shall be maintained in confidence by the disclosing party subject to
any order of disclosure by the court;
g. Any other person or entity to whom the Court orders or allows disclosure
after notice and opportunity for hearing.
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5.

Disclosure of CONFIDENTIAL INFORMATION pursuant to this Order shall be

handled as follows:
a. Any person described in subparagraphs 3(a), (b), (c), (e), and (g) of this
Order is bound by the provisions of this Order without the necessity of
executing a separate confidentiality agreement;
b. Prior to making disclosures to any person set forth in subparagraph 4(d)
and (f) of this Order, the party disclosing the CONFIDENTIAL
INFORMATION shall inform any persons to whom disclosure is made
that CONFIDENTIAL INFORMATION shall be used for the purposes of
the prosecution or defense of this action only, and that said person shall be
bound by the terms of this Order and shall execute an Agreement to be
bound by the this Order. The parties shall obtain from such persons a
written statement in the form of Exhibit A, attached hereto. A record of
all persons to whom disclosures are made shall be kept and all the written
statements signed by those persons shall be retained in the possession,
custody, and control of counsel by whom the person is retained; provided,
however, the disclosing party shall have no obligation to disclose such
records to the opposing party or any other person unless ordered to do so
by the Court.

All CONFIDENTIAL INFORMATION, and any

documents containing information derived therefrom, including copies of
such documents, shall be returned to counsel by persons given access to
them as soon as practicable, but excluding any materials which in good
faith judgment of counsel are work product materials. Counsel shall be

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permitted to maintain a file copy of all the documents subject to the terms
of this Order.
6.

The production or disclosure of CONFIDENTIAL MATERIALS pursuant to the

terms of this Order by the producing party shall not be construed as prohibiting or restricting the
use of CONFIDENTIAL INFORMATION during depositions, any hearing, the trial of this
matter, or any appellate proceeding. Similarly, no party shall be deemed to have waived any
objections as to the relevancy, admissibility, discoverability or any other objection under the
Federal Rules of Civil Procedure or the Federal Rules of Evidence in connection with any
proceeding in this action.
7.

No CONFIDENTIAL DOCUMENTS produced pursuant to this Order shall be

used for any purpose other than for relevant and proper conduct of this litigation.
8.

If any such confidential documents or information are used in connection with a

deposition or other discovery or documents filed with the court, or are quoted or referenced in
any memorandum, pleading or other paper filed with the court, the deposition transcript, filing or
paper shall be submitted to the court with a request that the document be placed under seal and
appropriately marked to indicate that the transcript, filing or paper is subject to the terms of this
Order, or redacted so as to eliminate sensitive personal information.
9.

The

designation

of

documents

or

information

as

“CONFIDENTIAL

INFORMATION” shall not be conclusive for purposes of the substantive issues in this case. In
addition, any party is entitled to challenge, through an appropriate Motion to the Court, any
designation herein by any other party at any time during this litigation.
10.

The inadvertent, unintentional or in camera disclosure of confidential documents

and information shall not, under any circumstances, be deemed a waiver, in whole or in part, of
any party’s claims of confidentiality.
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11.

Within fifteen (15) days after the entry of final judgment or dismissal in this

litigation (including appeals or petitions for review), the parties’ counsel, their staff, and all
experts and/or consultants for the parties shall return all confidential documents produced
pursuant to this Order (including all xeroxed copies of the same) to the party producing said
documents or shall destroy the same with a written certification by the party's counsel of record
that all such documents and copies of the same have, in fact, been returned or destroyed;
provided, counsel shall be permitted to maintain such documents for their case files, which shall
continue to be subject to the terms of this Order.
12.

Each person who receives CONFIDENTIAL INFORMATION submits himself or

herself to the personal jurisdiction of this Court, wherever he or she shall be, for the enforcement
of the provisions contained in this Order.
13.

Disclosure and inspection of personnel files of Defendant’s employees which are

produced in the course of discovery in this matter, when designated as CONFIDENTIAL
pursuant to this Order, shall be deemed to be in accordance with an order of a court pursuant to
with N.C. Gen. Stat. § 160A-168.
14.

Each

time

a

party

seeks

to

file

under seal

documents

containing

CONFIDENTIAL 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 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
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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.
IT IS SO ORDERED.

23rd
April
So ordered this the ____ day of _________________, 2015.

__________________________________________
LOUISE W. FLANAGAN
UNITED STATES DISTRICT COURT JUDGE
WE CONSENT:

/s/ BENTON L. TOUPS
Benton L. Toups
Cranfill Sumner & Hartzog LLP
319 N. 3rd Street, Ste 300
Wilmington, NC 28401
Attorney for Defendant

/s/ MARIO M. WHITE
Mario M. White
Attorney At Law
209 Morrisey Blvd
P.O. Box 957
Clinton, NC 28329
Attorney for Plaintiff

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EXHIBIT A
Agreement concerning materials covered by a Protective Order entered in the United
States District Court for the Eastern District of North Carolina.
The Undersigned acknowledges that she/he has read the Protective Order entered by the
Court dated _____________________, 2015, in the Civil Action No. 7:14-cv-00297 entitled
Jennifer Dial v. Town of Pembroke. The Town of Pembroke understands the terms thereof, and
agree to be bound by such terms. The undersigned hereby acknowledges that he is subject to the
jurisdiction of the United States District Court for the Eastern District of North Carolina with
regard to this Protective Order and understand (1) the violation of the Order shall subject the
offender to such penalties, damages and other relief as may be permitted by law, and (2) that the
jurisdiction of the Court regarding this Order survives any settlement, discontinuance, dismissal,
judgment, or other disposition of this action.
____________________________
(Date)
_________________________________________________
(Signature)
Subscribed and sworn before me,
This ____________ day of _________________________, 2015.
_________________________________________________
NOTARY PUBLIC
My commission expires:_____________________________

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