West v. J.O. Stevenson, Inc., et al
Filing
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PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 8/16/2016. (Baker, C.)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
CIVIL ACTION NO. 7:15-CV-87-FL
CHARLES E. WEST,
Plaintiff,
v.
J.O. STEVENSON, INC., STEVENSON
AUTOMOTIVE, INC., SAG PAYROLL, LLC,
and STEVENSON AUTOMOTIVE HOLDING
COMPANY, LLC, d/b/a STEVENSON
AUTOMOTIVE GROUP,
Defendant.
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PROTECTIVE ORDER
The parties, Plaintiff Charles E. West, and Defendants J.O. Stevenson, Inc., Stevenson
Automotive, Inc., SAG Payroll LLC, and Stevenson Automotive Holding Company, LLC by and through
their attorneys, agree as follows:
This instant matter is a civil action for legal and equitable relief arising from the Plaintiff Charles
E. West's termination from his employment at Stevenson Kia in Jacksonville, North Carolina. The
Plaintiff has interposed claims under Federal law against the Defendants pursuant to the Family Medical
Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq., and the Americans with Disabilities Act of 1990
("ADA"), as amended by the ADA Amendments Act of 2008 ("ADAAA"), 42 U.S.C. § 12101, et seq.
Further, the Plaintiff seeks to recover from the Defendants pursuant to state law, specifically by way of
claims for wrongful discharge in violation of public policy. In the course of discovery in this action, the
parties will have reason to request and exchange confidential or proprietary information and documents
including, but not limited to, financial records, employee personnel records, and medical records.
Counsel for the parties have deemed it to be in the best interests of all parties to facilitate the discovery
process by agreeing to maintain such information as confidential and to restrict the dissemination of such
information. Accordingly, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Case
Management Order entered by the Court on March 17, 2016, and agreement of counsel, good cause
having been shown and the Court deeming it just and proposed to do so, it is hereby ORDERED that:
1. This Joint Protective Order regarding confidentiality (“Protective Order”) shall govern the use
and treatment of information, documents, testimony or other tangible things produced in this
action by the Plaintiff and Defendants, through the completion of this action and any and all
appeals.
2. “Confidential Information” as used herein, means any information, in whatever form, produced in
connection with formal discovery in this litigation, or is currently in the possession of a party of
being produced in this action, that the party asserting confidentiality in good faith believes
contains, reflects, or concerns its trade secrets, confidential business or commercial information,
or other sensitive or proprietary information which, if disclosed to third parties, would likely
cause the party injury, prejudice, harm, damage, or disadvantage.
Confidential Information
includes, but is not limited to, proprietary business information, business plans, pricing,
information relating to personnel matters, and financial and other sensitive information.
3. Confidential Information may not be used or disseminated except as provided in this Protective
Order.
4. Confidential Information includes all documents or information derived from Confidential
Information, including excerpts, copies, or summaries of Confidential Information.
THE DEFENDANTS’ DOCUMENTS AND INFORMATION
5. At this time, the following categories of documents contain the Defendants’ Confidential
Information and are subject to this Protective Order:
a. Policies and procedures, marketing materials, financial records, employee pay plans,
business operations, corporate strategy, and company sales information.
This list is not exhaustive and, should other documents become at issue that the
Defendants contend should be included within this Protective Order, the Defendants may
at that time request, upon good cause and showing, that the Court should amend this
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Protective Order to include the new category(ies) of documents to be subject to this
Protective Order.
CONFIDENTIALITY PROVISIONS
6. Any information, documents, or tangible thing to be designated by a party as containing
Confidential Information but not being produced, shall be identified in a detailed privilege log
that meets the requirements of the Federal Rules of Civil Procedure.
7. Information, documents, or tangible things that are produced may be designated Confidential
Information by affixing the legend “Confidential” to each item or document page so as not to
obscure the text of the document in any way. In addition, deposition testimony and/or exhibits
may be designated Confidential Information either by: (a) stating on the record of the deposition
that such portion of the deposition wherein the “confidential” disclosed document is substantively
discussed is protected by this Protective Order and providing the basis and privilege for the
designation; or (b) stating in writing served upon counsel of record up to thirty (30) days after
receipt of the deposition transcript (or if transcript has already been received thirty (30) days after
this Order has been entered) that such deposition, or portion thereof, or exhibit is confidential.
8. Materials designed as “Confidential” may only be copied, disclosed, discussed, or inspected, in
whole or in part, only for the purposes of this litigation and only by the following persons:
a. The parties in this lawsuit, or their employees involved in the management of this
litigation;
b. Counsel of record who represent the parties in this litigation and personnel who are
directly employed or contracted by those attorneys’ firms and who are assisting the
attorneys working on this action;
c. Any person who is expected to testify as a witness either at a deposition or court
proceeding in this action for the purpose of assisting in his/her preparation;
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d. Independent expert witnesses or consultants, including trial or jury consultants, or other
legal counsel retained by the parties in this lawsuit (i.e., not employed by or similarly
affiliated with a party or an affiliated company of a party);
e. The Court and its officers, including stenographic reporters engaged in such proceedings
as are necessarily incidental to the preparation or trial of this lawsuit;
f.
Any mediator or arbitrator selected with the consent of all parties or by order of the
Court; and
g. Any other person with the consent of the parties or by order of the Court.
9. Confidential Information shall not be disclosed to any of the persons referred to in paragraphs
8(c) and 8(d) until such persons have been provided with a copy of this Protective Order and have
agreed to be bound thereto by signing a copy of Exhibit A attached hereto. All parties shall retain
any such signed copies of the Protective Order and make them available to counsel for other
parties to this action upon request, except that the identities of consultants, including trial or jury
consultants, who have not been identified as testifying experts need not be disclosed.
10. A party that intends to file with the Court pleadings or other papers containing or referring to
Confidential Information shall comply with the procedures outlined in the United States District
Court for the Eastern District of North Carolina’s Electronic Case Filing Administrative Policies
and Procedures Section T(1)(a)(6). The filing party shall provisionally file the Confidential
Information under seal but shall not be required to file a motion to seal or otherwise defend
another party’s request that the materials remain sealed. (Section T(1)(a)(6)(i)). The party or
parties desiring that the Confidential Information be maintained under seal shall file any motion
to seal and supporting memorandum required by Sections T(1)(a)(1) and Section T(1)(a)(6)(ii).
11. The terms of this Protective Order are subject to modification, extension, or limitation as may be
hereinafter agreed to by the parties in writing or as ordered by the Court. Any modifications,
extensions, or limitations agreed to in writing by the parties shall be deemed effective
immediately pending approval by the Court.
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12. The parties agree that the Plaintiffs do not waive their right to later seek the Court’s ruling as to
whether the asserted confidentiality of the claimed documents is legally sufficient.
13. The Parties do not object to the confidentiality of any of the materials specifically described
above, but the Plaintiff does not waive his right to later seek the Court’s ruling as to the asserted
confidentiality of the claimed documents is legally sufficient. In regard to any other alleged
Confidential Information covered by the Protective Order, counsel for one party may at any time
serve upon counsel for the other party a written notice of objection to any alleged materials
designated as “Confidential” and challenge such assertion with the Court. The party asserting
confidentiality shall, within fifteen (15) business days of receipt of such notice, review the
designated material sought to be reclassified, and notify the other party in writing whether or not
it will agree to the reclassification requested and, if not, whether it will agree to reclassify a
redacted copy. If no agreement can be reached within fifteen (15) business days of receipt of
such notice, the requesting party may apply, via a motion, to the Court for an order that the
information or documents so designated are not entitled to such status and protection.
BURDEN ON THE PROPONENT OF CONFIDENTIALITY
14.
In the event of an application, via a motion, described in paragraph 13, above, in order to
maintain the status of the information or documents as Confidential Information under this
Protective Order, the proponent of confidentiality must make a showing demonstrating that the
information or documents meet the requirements of law to support the claimed confidentiality and
any and all privileges asserted.
15.
Confidential Information shall be used solely and exclusively for the purpose of this specific
litigation and for no other purpose, including, without limitation, any business, competitive, or
educational purpose; such information shall not be disclosed or disseminated to any person,
organization, business, governmental body or administrative agency unless ordered by the Court.
16.
Upon termination of this action, unless otherwise ordered by the Court, each party shall within
thirty (30) days return to the other party all materials marked “Confidential” (and any copies
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thereof) at the expense of the requesting party. Counsel for each party is obligated to collect all
documents designated as “Confidential” from any experts, clients, or qualified third-parties to
whom the counsel has provided a copy of a document designated as “Confidential.” If requested,
counsel for a party shall also furnish a certificate of compliance that all confidential materials
produced to that party, as well as all summaries, excerpts, or copies of such materials have been
collected and returned to the other party at the requesting party’s expense.
17.
If a party receives a subpoena from a nonparty to this Protective Order seeking production or
other disclosure of Confidential Information, that party shall refuse to produce any Confidential
Information under the authority of this Protective Order and shall immediately give written notice
to counsel for the other party, identifying the Confidential Information sought and enclosing a
copy of the subpoena.
18.
This Court shall retain jurisdiction over the parties and any person to whom Confidential
Information is disclosed to the extent necessary to enforce the terms of this Protective Order.
19.
No modifications of this Protective Order or waiver of its provisions will be binding upon the
parties, unless made in writing by the parties or directed by the Court.
20.
The inadvertent or unintentional disclosure by any party of Confidential Information shall not be
deemed a waiver in whole or in part of that party’s claim of confidentiality under this Protective
Order, either as to the specific information disclosed or as to any other information relating to or
on the same or a related subject.
21.
Pursuant to the Electronic Case Filing Administrative Policies and Procedures Manual § (T)(2),
the parties must comply with the policies and procedures laid out in § (T)(1)(a)(1)(l) through (v)
with respect to the filing of sealed material, which provides:
T.
Restricted Access Documents
(1)
Filing Restricted Documents in CM/ECF
(a)
Sealed Documents
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1.
Except for motions filed under seal in accordance with Section
(T)(1)(a)7 of this Policy Manual, 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:
(i)
the exact document or item, or portions thereof, for
which filing under seal is requested;
(ii)
how such request to seal overcomes the common law or
the First Amendment presumption of access;
(iii)
the specific qualifies of the material at issue which
justify sealing such material, taking into account the balance of
competing interest in access;
(iv)
the reasons why alternatives to sealing are inadequate;
and
(v)
whether there is consent to the motion.
SO ORDERED, this ___ day of August 2016.
16th
___________________________________________
THE HONORABLE LOUISE W. FLANAGAN
UNITED STATES DISTRICT JUDGE
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AGREED TO:
/s/ Raymond E. Dunn, Jr.
RAYMOND E. DUNN, JR.
N.C. Bar # 8739
CHARLES J. CUSHMAN
N.C. Bar # 36170
DUNN, PITTMAN, SKINNER & CUSHMAN, PLLC
3230 Country Club Road
Post Office Drawer 1389
New Bern, North Carolina 28563
rdunn@dunnpittman.com
ccushman@dunnpittman.com
Counsel for the Plaintiff
/s/ Matthew R. Gambale
GREGORY W. BROWN
NC Bar # 26238/ VA Bar # 36369
MATTHEW R. GAMBALE
NC Bar # 43359
ALLISON A. COHAN
NC Bar # 45940
BROWN LAW LLP
4130 Parklake Avenue, Suite 130
Raleigh, North Carolina 27612
T: 919.719.0854
F: 919.719.0858
gregory@brownlawllp.com
gambale@brownlawllp.com
allison@brownlawllp.com
Counsel for the Defendants
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EXHIBIT A
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
CIVIL ACTION NO. 7:15-CV-87-FL
CHARLES E. WEST,
Plaintiff,
v.
J.O. STEVENSON, INC., STEVENSON
AUTOMOTIVE, INC., SAG PAYROLL, LLC,
and STEVENSON AUTOMOTIVE HOLDING
COMPANY, LLC, d/b/a STEVENSON
AUTOMOTIVE GROUP,
Defendant.
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I have read the Protective Order concerning the confidentiality of information in the abovecaptioned litigation. I understand that the Protective Order is a Court Order designed to preserve the
confidentiality of certain designated documents and information contained therein. I also understand that
the Protective Order restricts the use, disclosure and retention of such designated documents and
information contained therein, and it also requires the safeguarding and destruction of the designated
documents and other materials containing confidential information.
I agree to comply with all provisions of the Protective Order. I also hereby submit myself to the
jurisdiction of the Court for the purpose of enforcement of any provision of the Protective Order.
Dated:
________________________________________
[Signature]
[Printed Name]
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