MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 271

MOTION for Protective Order on Confidentiality and Prospective Sealing Order by DUKE UNIVERSITY. Responses due by 4/19/2012 (SUN, PAUL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN McFADYEN, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
DUKE UNIVERSITY, et al.,
)
)
Defendants.
)
______________________________ )

Civil Action Number
1:07-cv-00953

MOTION FOR ENTRY OF PROTECTIVE ORDER ON
CONFIDENTIALITY AND PROSPECTIVE SEALING ORDER BY DUKE
UNIVERSITY
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Defendant
Duke University (“Duke”), through counsel, respectfully moves this Court to enter
a Protective Order on Confidentiality and Prospective Sealing Order in the form
attached as Exhibit A to Duke’s Brief in Support of this Motion. In support of this
Motion, Duke shows the Court the following.
1.

In October 2011, Duke and Plaintiffs began negotiating a protective

order to govern the discovery and filing of confidential information in this case.
Since then, counsel have met and conferred several times regarding this matter,
including through email and/or by phone on 8, 15-16 and 30 November, 1
December, 10 and 24 February 2012, and 3 and 16 March 2012.
2.

Although the parties agree that a blanket protective order is

appropriate, they have not agreed on the contents of such an order. Duke’s
proposed order is attached as Exhibit A to the brief. Plaintiffs’ version is attached
as Exhibit B. After a final exchange of drafts, the parties continue to disagree on
several aspects of the order.
3.

The order proposed by Duke should be adopted in its entirety. The

Court entered a materially identical order in Carrington v. Duke University, Case
No. 1:08CV119, and the Court should find good cause to re-approve it here for
that reason alone, especially as depositions are being cross-noticed in the two
cases.
4.

Further, there is independent good cause to approve Duke’s version

of the order. Under it, parties are allowed to designate several categories of
information as confidential, including “personal financial information,”
“disciplinary information,” “personnel records,” “minutes of meetings of the Duke
University board of trustees,” information related to “decisions involving faculty
hiring, retention, and compensation,” “insurance policies” and “information
related to police investigations.” As demonstrated in the attached brief, all of this
information warrants confidential treatment during discovery.
5.

There is also good cause to adopt the procedural aspects of Duke’s

proposal, which are fair and efficient. Specifically:
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•

Consistent with its precedent, the Court should approve Duke’s
prospective sealing provisions and reject Plaintiffs’ proposal, which
would allow parties to file confidential information under seal absent
a specific Court order.

•

Parties should be prohibited from using confidential information in
other litigation and disclosing it to those who have not agreed to
abide by the protective order.

•

Individuals who access confidential information should be required to
execute a standard confidentiality agreement.

•

Parties should not be allowed to modify the protective order without
court approval.

•

Parties should not be forced to identify their document management
consultants.

•

Parties should be allowed to redact irrelevant confidential information
from documents they produce, including information protected by the
Federal Educational Rights and Privacy Act (“FERPA”).

•

Parties should have 30 days (rather than 10 days) following a
deposition to designate the transcript as confidential, and the parties
should not be allowed to “claw back” confidential documents
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indefinitely.
•

Parties should not be forced to scrutinize the history of a
non-confidential, publicly-available document in order to determine
whether it was disclosed “in violation of law.”

•

Parties should not be required to itemize all confidential information
that appears on the face of every designated document.

•

There should be a separate designation process for documents
produced for inspection.

6.

For the foregoing reasons, and as more fully explained in the attached

brief, Duke respectfully requests that the Court grant this Motion and enter the
protective order proposed by Duke.

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This the 26th day of March, 2012.
/s/ Paul K. Sun, Jr.
Richard W. Ellis
N.C. State Bar No. 1335
Email: [e-mail]
Paul K. Sun Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
Thomas H. Segars
N.C. State Bar No. 29433
Email: [e-mail]
James M. Weiss
N.C. State Bar No. 42386
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Dixie T. Wells
N.C. State Bar No. 26816
Email: [e-mail]
Ellis & Winters LLP
333 N. Greene St., Suite 200
Greensboro, NC 27401
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University

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CERTIFICATE OF SERVICE
I hereby certify that on 26 March 2012, I electronically filed the foregoing
Defendants’ Motion for Entry of a Protective Order with the Clerk of the Court
using the CM/ECF system, which will send notification of such filing to all
counsel of record and to Mr. Linwood Wilson, who is also registered to use the
CM/ECF system.

This the 26th day of March, 2012.

/s/ Paul K. Sun, Jr.
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Ellis & Winters LLP
1100 Crescent Green, Suite 200
Cary, North Carolina 27518
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University

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