Hart, et al v. City of Jacksonville, North Carolina, et al

Filing 40

STIPULATED PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 2/19/2016. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Southern Division
Civil Action No. 7:15-CV-170-FL
MERCEDES R. HART, et al.

:
:
Plaintiffs,
:
:
v.
:
STIPULATED PROTECTIVE ORDER
:
CITY OF JACKSONVILLE, NC, et al.
:
:
Defendants.
:
________________________________________________________________________
IT IS HEREBY STIPULATED by and between Plaintiffs, Mercedes R. Hart and Eric J.
Williams (collectively, “Plaintiffs”), and Defendants City of Jacksonville and Jacksonville City
Police Officers: Kevin J. Pulawski, Sergeant Christopher Cox, Mark Maddigan, and Corporal
Trudy Allen (collectively, “Defendants”), by and through their respective attorneys of record, as
follows:
IT IS ORDERED that the confidential and proprietary nature of all documents,
testimony, answers to interrogatories and all other information in whatever form produced or
given by any person pursuant to pretrial discovery in this action (“Discovery Materials”) shall be
protected and governed as follows:
1.

This Order shall govern the use, handling, and disclosure of all documents,

testimony, or information produced or given in this action. Any documents, testimony, or
information submitted, either voluntarily or pursuant to any subsequent order, which is asserted
in good faith by the producing party or by any other party to contain or constitute information
protected by Federal Rule of Civil Procedure 26(c)(1) or other provision of law, including
information subject to a contractual duty of confidentiality owed to a third party, shall be so

designated in writing, or orally at a deposition, hearing, or trial, and shall be segregated from
other information being submitted. Materials so designated shall be clearly marked on their face
with the legend: “CONFIDENTIAL.” Such documents, transcripts, or other materials are
referred to herein as “CONFIDENTIAL MATERIALS.” To the extent electronically stored
information is produced in a format that does not permit the branding of the designation on the
face of the document (e.g., native Excel files or database exports), the producing party shall add
the abbreviation “CONF” to the file name of such documents.
2.

A party wishing to designate portions of a deposition transcript CONFIDENTIAL

pursuant to this Order must, within three (3) business days from the conclusion of the deposition,
order the original or a copy of the transcript of the deposition from the court reporter for regular
turnaround. The designating party may designate those portions of the transcript
CONFIDENTIAL in accordance with paragraph 1 of this Order. The designating party shall
designate such CONFIDENTIAL MATERIAL either on the record or by serving upon all
counsel of record via facsimile or other electronic transmission a notice setting forth the pages,
line numbers, and designations. The designating party must serve such notice upon all other
parties within fourteen (14) calendar days after its counsel receives a copy of the deposition
transcript. All transcripts will be treated as confidential until the expiration of the fourteen-day
period described in this paragraph. Any portions of a transcript designated as confidential shall
thereafter be treated as confidential in accordance with the Order. The parties shall negotiate in
good faith to alter the time frames set forth in this paragraph in situations where a more
expedited filing of a designated portion of the deposition transcript is required.
3.

No person shall use any CONFIDENTIAL MATERIALS or information derived

therefrom (including but not limited to all testimony, deposition or otherwise, that refers,

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reflects, or otherwise discusses any such materials), directly or indirectly, for any business,
commercial, or competitive purposes or for any purpose whatsoever other that solely for the
discovery, the preparation, and trial of this action, and/or in accordance with this Order. The
parties agree that CONFIDENTIAL MATERIALS produced in discovery in this case shall not
be used, be required to be produced or admissible, in whole or in part, in any other legal or
administrative proceedings.
4.

Subject to paragraph 7, in the absence of prior written permission from the

designating party or an order by the Court, no person shall disclose CONFIDENTIAL
MATERIALS to any person other than: (i) the parties, their attorneys of record, and those
attorneys’ support staff employees who perform work tasks related to this case; (ii) qualified
persons taking testimony involving such material and necessary stenographic and clerical
personnel; (iii) disclosed experts or consulting experts and their staff employed for this litigation;
(iv) present or former employees of the producing party in connection with their depositions in
this action (provided that no former employees shall be shown documents prepared after the date
of his or her departure); (v) any governmental agency formally requesting such information or
documents by subpoena, written notice, or other civil investigative demand (“CID”), with notice
provided to the designating party within five (5) days of receipt of the request and no fewer that
twenty-one (21) days before disclosure or production, and this Court shall retain jurisdiction to
hear any objection that either Plaintiffs or Defendant may have to providing documents in
response to such a request; and (vi) the Court, Court personnel, and members of any jury
impaneled to hear this case.
5.

Subject to paragraph 7, no person shall disclose CONFIDENTIAL MATERIALS

to any person designated in paragraph 4(iii) unless he or she has executed a written, dated

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declaration in the form attached hereto as Exhibit A, acknowledging that he or she has first read
this Order, agreed to be bound by the terms hereof, agreed not to reveal such CONFIDENTIAL
MATERIALS to anyone, and agreed to utilize such CONFIDENTIAL MATERIALS solely for
the purposes of this litigation. The Court hereby enjoins all persons to whom CONFIDENTIAL
MATERIALS are disclosed from disclosing the same to any person or using the same, except as
provided in this Order.
6.

No person receiving or reviewing CONFIDENTIAL MATERIALS shall

disseminate or disclose them to any person other that those described above in paragraph 4 for
the purposes specified, and in no event shall such person make any other such use of
CONFIDENTIAL MATERIALS.
7.

In the event that any party disagrees with any designation made under this Order,

the parties shall first try in good faith to resolve the disagreement informally. If the parties
cannot resolve the dispute and the receiving party concludes in good faith that the materials
designating party has improperly classified the materials, the receiving party shall notify the
designating party in writing by facsimile or by electronic transmission of its objection, but shall
continue to maintain the documents or other information as Confidential for fifteen (15) days
after such notice. The designating party shall have the right to move the Court for a Protective
Order to retain designated status of such materials. If the designating party files such a motion
within the fifteen-day period, the receiving party shall continue to maintain the materials as
CONFIDENTIAL, consistent with the designating party’s designation, until the Court has ruled
on the designating party’s motion.
8.

Subject to paragraph 7, any party seeking to file CONFIDENTIAL MATERIALS

with the Court must contact the designating party seven (7) days prior to such filing to: (i)

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provide the designating party with notice that it seeks to file CONFIDENTIAL MATERIALS
with the Court; and (ii) meet and confer in good faith to determine whether a redacted version of
the CONFIDENTIAL MATERIALS can be filed with the Court. In the event no agreement is
reached for the filing of a redacted version, the party seeking to file such CONFIDENTIAL
MATERIALS shall file such materials in accordance with Local Rule 79.2 and Section T of the
CM/ECF Policy Manual for the Eastern District of North Carolina. The designating party
shall file a Motion to File Under Seal simultaneously with the other party’s filing and within seven
(7) days thereafter shall file a supporting memorandum that complies with the requirements of
Local Rule 79.2 and Section T of the CM/ECF Policy Manual for the Eastern District of
North Carolina. The parties shall work together in good faith to coordinate the filing of all
motions and material covered by this paragraph to permit compliance with this Order and the
Local Rules of this Court, including Section T(1)(a)1(I) through (v) of the CM/ECF Policy
Manual for the Eastern District of North Carolina set forth below:
(1) Filing Restricted Documents in CM/ECF
a)

Sealed Documents
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:

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(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 to access;

(iii)

the specific qualities of the material at issue which justify sealing such
material, taking into account the balance of competing interest in access;

(iv)
(v)
9.

the reasons why alternatives to sealing are inadequate; and
whether there is consent to the motion.

The inadvertent or unintentional disclosure of CONFIDENTIAL MATERIALS

by a producing party without the appropriate designation or the inadvertent or unintentional
disclosure of attorney-client privileged, work product, or other protected documents or media
without an appropriate claim of privilege shall not be deemed a waiver in whole or in part of the
party’s claim of confidentiality or privilege, the receiving party, upon request or upon its own
initiative at such time as it reasonably and in good faith believes itself to be in possession of
inadvertently produced materials, whichever occurs first, shall promptly return the inadvertently
produced materials, and all copies of those materials that may have been made.
10.

Subject to paragraph 7 and excluding pleadings and documents filed with the

Court, within sixty (60) days after the conclusion of this case, upon written request, the parties
shall assemble and return to the designating party all materials containing CONFIDENTIAL
MATERIALS (provided that counsel shall be permitted to maintain such documents for their
case files, which shall continue to be subject to the terms of this Order). The receiving party may
elect to destroy such materials rather than return them, in which case the party shall provide
written verification of the same.

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11.

This Order shall remain binding after the conclusion of this case unless otherwise

ordered by the Court, and the Court shall retain jurisdiction over all parties bound hereby for the
purposes of enforcing this Order. Each individual signing the acknowledgement attached as
Exhibit A agrees to be subject to the jurisdiction of this Court for purposes of this Order.
13.

This Order does not prevent any party from seeking to seal trial transcripts and/or

trial exhibits, including documents previously filed under seal, or from seeking any other similar
relief pursuant to Local Rule 79.2 and Section T of the CM/ECF Policy Manual for the
Eastern District of North Carolina.
14.

No party may use the entry of this Order, nor the designation of any material as

“CONFIDENTIAL,” nor the failure to make such designation, as evidence on any issue in this
case. A party’s designation of materials as “CONFIDENTIAL” does not waive that party’s
objection to any discovery on the ground that it seeks information protected by Federal Rule of
Civil Procedure 26(c) or any other provision of law.
15.

Nothing in this Protective Order shall be deemed a waiver by a party of any

objections that might be raised as to the relevance or admissibility at trail of evidentiary
materials.
16.

Nothing herein shall affect or restrict the rights of any party with respect to its

own documents or to the information obtained or developed independently of materials afforded
confidential treatment pursuant to this Order.
17.

Third parties who are the subject of discovery requests, subpoenas, or depositions

in this case may take advantage of the provisions of this Order by providing Plaintiffs and
Defendants with written notice that they intend to comply with and be bound by the terms of this
Order.

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SO ORDERED this the 19th day of February, 2016.
____

_________________________
Honorable Louise W. Flanagan
United States District Judge

We Consent:
This the 18th day of February, 2016.
J. HEGG LAW, PLLC
/s/ Janelle Mason Mikac
Jason Hegg, Esq.
[e-mail]
Janelle Mason Mikac, Esq.
[e-mail]
J. Hegg Law, PLLC
310 New Bridge Street
Jacksonville, NC 28540
Tel: [phone]
Attorneys for Plaintiffs
CROSSLEY MCINTOSH COLLIER HANLEY & EDES, PLLC
/s/ Brian E. Edes
Brian E. Edes
State Bar Number: 25415
Clay Allen Collier
State Bar Number 13266
5002 Randall Parkway
Wilmington, NC 28403
Phone: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Southern Division
Civil Action No. 7:15-CV-170-FL
MERCEDES R. HART, et al.

:
:
Plaintiffs,
:
:
EXHIBIT “A” TO
v.
: STIPULATED PROTECTIVE ORDER
:
CITY OF JACKSONVILLE, NC, et al.
:
:
Defendants.
:
________________________________________________________________________
DECLARTION OF _____________________________
UNDER STIPULATED PROTECTIVE ORDER
I, _______________, being duly sworn, declare as follows:
1.

My address is _________________________________________.

2.

My present employer is _________________________________.

3.

My present occupation or job description is _____________________

_________________________________________________________________.
4.

I hereby acknowledge that (i) I have been given a copy of the Stipulated

Protective order (“Protective Order”) in the above-referenced case; (ii) I carefully read
the Protective Order; and (iii) I understand and am familiar with the terms of the
Protective Order.
5.

I will comply with all of the provisions of the Protective Order. I will hold all

Confidential Materials disclosed to me, including the substance and any copy, summary
abstract, excerpt, index or description, in confidence, and will not disclose such material

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to anyone not qualified under the Protective Order. I will not use any Confidential
Material disclosed to me for any purposes other than this case.
6.

I will return all Confidential Material that comes into my possession and all

documents and things that I have prepared relating thereto, to counsel for the party by
whom I am retained or employed, or from whom I have received such material.
7.

I hereby submit to the jurisdiction of the United States District for the Eastern

District of North Carolina for the purpose of enforcement of the Protective Order in this
case.
I declare under penalty of perjury that the foregoing is true and correct.

__________________________

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