MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 279

REPLY, filed by Defendant DUKE UNIVERSITY, to Response to #271 MOTION for Protective Order on Confidentiality and Prospective Sealing Order filed by DUKE UNIVERSITY. (Attachments: #1 Exhibit A- Email from Wells to Ekstrand, #2 Exhibit B- Email from Ekstrand to Ellis, #3 Exhibit C- Email from Wells to Ekstrand, #4 Exhibit D- Email from Sun to Ekstrand, #5 Exhibit E- Email from Sun to Ekstrand, #6 Exhibit F- Letter from Smith to Segars dated May 3, 2012)(SUN, PAUL)

Exhibit C

From:
Sent:
To:
Cc:
Subject:
Attachments:

Dixie Wells
Thursday, December 01, 2011 10:57 AM
'Bob Ekstrand ([e-mail])'; 'Stefanie Sparks'
Dick Ellis; Paul Sun; Jeremy Falcone
Re: Discovery
Workshare__RAL-#907239-v1mcfadyen_proposed_stipulated_protective_order_draft_send_by_Ekstrand_on_Nov_30_
2011-RAL-#907239-v2-mcfadyen_proposed_stipulated_protective_order_draft_s.pdf

Dear Bob:
You make a number of assertions in your email to which we take issue. I will not address each of them here, but instead
will focus on those most relevant to the issue of the stipulated protective order.
On October 3, 2011, Duke served upon the McFadyen plaintiffs its initial disclosures. Those disclosures complied with
Rule 26(a)(1)(A)(ii). After you asked us to produce the insurance polices, we provided you with a proposed stipulated
protective order on October 7, 2011, as provided under Rule 26(c) because discovery was being sought.
Your email below is the first time that you have responded regarding the substance of that proposed order. As the email
communications that you reference below indicate, your proposal that we enter into some sort of bridge agreement was
not acceptable to us. First, for the protection of all of our respective clients, we need a protective order in place that will
protect confidential information. A bridge agreement, like the one you proposed, does not offer the protections that a
stipulated protective order offers. Rule 26(c) provides the mechanism for seeking a protective order, and that rule does
not provide for a bridge agreement. Second, if we were to enter into such a bridge agreement and the terms of the final
protective order differed from that bridge agreement, multiple problems would arise. Third, a protective order can be
enforced by the court. Whether the court would enforce any sort of bridge agreement is uncertain. For these reasons and
others, we were simply not able to agree to your proposal to enter into a bridge agreement.
Your email seems to imply that Duke is at fault for unreasonably delaying in seeking entry of a protective order. Yet in
discovery responses provided by your client, those response include language that says “disclosure[] of confidential
information . . . will be disclosed only pursuant to a protective order governing its use and dissemination.” As you know,
the requirements of discovery are mutual, and to suggest that Duke is at fault for delay, when you are withholding
documents pending entry of a protective order, is unfair, at best. In fact, within a day of being asked for documents, Duke
sent you a proposed protective order.
With respect to the changes that you have proposed, we have the following comments. Please see the attached
document for our proposed revisions that reflect the comments below. (We accepted all of your edits and then added
back language in accord with the comments below.)
1) In paragraph 3, you have struck "business." As your email below recognizes, that is currently an issue that we
are discussing with the Carrington plaintiffs. Duke’s mission is education. However, it is a large educational
institution and business concerns are involved in many aspects of its operation. Accordingly, Duke seeks to
maintain the confidentiality of business records that it ordinarily keeps confidential. While we aren’t necessarily
stuck on the work “business,” we do need some way of including that type of information within the definition of
confidential information. We have proposed a definition on the attached document that we hope will be
acceptable to you.
2) In paragraph 5, you have struck the reference to McFadyen, which is appropriate, of course. That said, we do
need to insert a reference to Carrington to make clear that this litigation refers to the McFadyen litigation and
not to the lacrosse-related litigation.
3) Your edits to paragraphs 6 and (the former) 19 seem to suggest that third parties should not be allowed to make
confidentiality designations. Why are you taking that position? Our proposed approach seems like a useful
way to smooth cooperation in getting responses to subpoenas. It also saves third parties from the burden of a
seeking a protective order if they have confidential information.

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4) In striking paragraph 8, you apparently take issue with our proposal that the parties be able to redact anything
deemed "non-relevant," which, as you point out in your email, is not the Rule 26 standard. What if we change
"non-relevant" to "non-responsive"? The classic example of why this is needed is where a document reflects
confidential information about non-lacrosse player students that is not relevant to any of the claims or defenses
in this litigation. Unless fairly called for by a discovery request, that kind of information should not be produced,
regardless of whether there is a protective order in place.
5) In the paragraph 10, we don’t understand the second change. What happens if someone refuses to sign the
agreement? Is that the end of the deposition? Does that mean no questions about confidential information can
be asked? We believe that this language (or similar language) is necessary.
6) In paragraph 13(c), you propose to add language regarding contractors of Ekstrand & Ekstrand. We would
propose making that language more general to include contractors of any law firm that is a party to the
agreement.
7) You have struck paragraph 17. What solution do you propose for dealing with objections to a confidentiality
designation? We are not necessarily committed to this particular procedure, but we do believe that there needs
to be a procedure for handling these types of disagreements.
8) We are confused by your edits to paragraph 21. Nothing can be filed under seal with a dispositive motion
without a court order. If you want to submit a confidential document that was produced by Duke as an
attachment to a dispositive motion that you are filing, are you going to file a motion to seal that document on
Duke's behalf? It seems better to us to have the party who produced the document bear the burden of seeking
to keep it under seal. Simply striking this language does not seem to us to be a workable solution. Again, we
are not necessarily committed to the particular procedure that we proposed, but we do believe that a procedure
for handling confidential documents that a party wishes to file with the court is needed. Similarly, under MDNC
practice, we are not required to seek an order to file confidential material with discovery motions. Simply
striking subsection (b) of that paragraph, which ostensibly then would require us to seek an order, places an
unnecessary burden on everyone to file a motion to file under seal where no such motion would otherwise be
required.
9) With respect to your proposed edit to Paragraph 26, we cannot agree that the order can be modified or
terminated by written agreement by the parties. It is unlikely that the court would be willing to enforce an order
that was changed by mutual agreement of the parties but not otherwise approved by the court itself. Because
we seek the protections of a court order as provided under Rule 26(c), we simply cannot agree to modifications
or terminations without court approval.
We look forward to your response so that we can either work together to reach an agreement on a proposed order or can
file an appropriate motion with the court seeking such an order.

From: Robert Ekstrand [mailto:[e-mail]]
Sent: Wednesday, November 30, 2011 4:24 AM
To: Dick Ellis
Cc: SAS; Jeremy Falcone
Subject: Discovery

Dick:
Attached, you will find the McFadyen Plaintiffs' response to Duke's proposed protective
order. Related to that, I also need to reply to your correspondence of November 16. To refresh your
recollection, it is reproduced here:
On Wed, Nov 16, 2011 at 4:34 PM, Dick Ellis <[e-mail]> wrote:
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I'm responding to your earlier email in which you wrote: "Ok. I'm out of ideas. Jeremy's
response is not acceptable. We need the documents to we requested (i.e., identified in
your initial disclosures) and will proceed accordingly."
-Bob
My response:
Bob, you already have the documents we identified in our initial production. We mailed
you a disc on November 9. If, by chance, you didn't get it, please let me know ASAP.
As for the confidentiality agreement, we sent you a draft proposal weeks ago, but have
received nothing from you. I assume you will want some of your clients' materials
protected, so the agreement should be of interest to both of us. Stefanie did call a few days
ago and asked if we had sent something similar to the Carrington people (I told her we
had). I told her that we were negotiating and approaching an understanding with them,
and once we accomplished that, I would send her whatever was arranged with them. That
is still our plan, as Jeremy noted.
I know, of course, that you will proceed as you see fit. But frankly, I'm not sure there is
anything to proceed about. Shouldn't we see if we can reach agreement first? Right now,
all I see is your "not acceptable" and that you will "proceed accordingly"- which sounds
like "my way or else." Is that how we are to handle things?
Best regards - Dick

I have read this and other discovery-related correspondence carefully. I have conferred with Stefanie
to confirm my recollection of her exchanges with Dixie prior to Dixie's unexpected need to take leave
and, since then, with Jeremy. Here is the gist of what I believe are the salient points relating to
discovery in this matter:
Duke did not produce any documents at all when it was required to make its initial disclosures, not
even insurance agreements that may cover the claims plaintiffs have asserted as specifically required by
Rule 26. Instead, Duke disclosed only a list of categories of documents that it contends support its
defenses in this action and suggested that there are insurance agreements that are subject to the
mandatory initial disclosures, and, for the first time in this nearly four-year litigation, a proposed
protective order.
We then propounded a document request requiring production of the documents identified in Duke's
initial disclosures. Because the documents sought in our initial request for production (by definition)
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support your client's defenses, I was and remain flummoxed as to why Duke requires a protective
order before producing all but twenty-one (21) documents (twenty-seven including duplicates).
Because discovery in this case must move forward and because I accepted your representation that
there is a sound reason for Duke's insistence upon a protective order, we offered to stipulate to the
protective order you proposed as a bridge agreement to govern the use of documents until a final
agreement is reached or an order is entered. Inexplicably, Jeremy promptly refused. I did not think it
was possible to have our acceptance of your proposed order on an interim basis, but there it was.
Your client had nearly four years to propose and negotiate a protective order, but your client did
nothing. Your client did not propose a protective order until after the time for making its initial
disclosures had passed without producing even a page from the insurance agreements the Rule
compels. While Dixie's correspondence asserts that Duke believes that these, too, are -- in toto -privileged or confidential, it is not at all clear why.
While Duke's protective order is epic in length, and would entitle Duke to redact material that it deems
"not relevant." I trust we will disagree with Duke on that issue once or twice before this is over, and, it
is for that reason that the Rules did not adopt that as a standard for disclosure in
discovery. Notwithstanding our opposition to much of the protective order, we offered to stipulate to
its terms for 90 days while a workable agreement is negotiated or an order is entered. I thought that
was generous concession. Given that it was your client's proposed order, I had absolutely no doubt
that your client would readily agree. So I was surprised to read Jeremy's note rejecting our offer,
which, as you say, "sounds like 'my way or else.'" Here is Jeremy's response:
As soon as that agreement is entered, we will produce documents that have been withheld
on confidentiality grounds. If we're unable to come to an agreement, we can discuss a
bridge agreement at that time.
Because this made no sense to me, particularly in light of our discussions in which we shared a
common interest in avoiding unnecessary disputes relating to discovery, I assumed you had not been
involved in the decisions reflected in Jeremy's response. So I wrote you to ask that you review it and
reconsider our proposal to accept your clients' terms as a bridge agreement. Here's what I wrote to
you:
I was certain this proposed bridge agreement would address your concerns and resolve the
short term problems this is creating for us as we design our discovery plan and prepare to
take depositions. Would you take a look at what we've proposed, and let me know what
else can we do to get the discovery we have requested?
You responded promptly to my request, and indicated that you were aware of the decision to reject our
proposal. As I have mentioned already, I was (and remain) flummoxed by the response.
In light of our willingness to stipulate to your clients' terms on an interim basis, our position cannot be
fairly characterized as "my way or else." My reply to you was a statement of the obvious: if we cannot
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resolve this by agreeing to your clients' terms on an interim basis, I don't know what else to offer. As
I said, short of asking the court for help, I am truly out of ideas.
To be clear, our immediate concerns relate to time limitations. If you have any ideas to resolve that
problem, please let me know. I sincerely have no viable ideas beyond what we offered. For example, I
would have suggested that we extend our discovery period to compensate for the delay, but the parties
cannot unilaterally agree to that under the Rules, we are already on the exceptional case management
track, and a second phase of discovery will begin upon completion of this one (if not sooner).
That said, we have carefully reviewed Duke's proposed protective order. Specifically, we reviewed the
draft of what Duke has negotiated thus far with the Carrington Plaintiffs. My understanding is that
Duke has reached an impasse over the word "business." You will see in our response to Duke's
proposed protective order that the McFadyen Plaintiffs have a number of additional
disagreements (our response is attached as a redlined version of the current Carrington draft).
To the extent that we seek the aid of the court, we will do so in order to avoid further loss of time in
the discovery period. However, we will continue to welcome any alternatives you might propose. So
the answer to your question, is, yes, this is how we will handle things: Specifically, we will continue
produce discovery upon request without unnecessary delay and we will continue to expect the same in
return. In that vein, the only complaints we have received from your office relate to difficulties in
handling the volume of material we have produced pursuant to your discovery requests.
I hope your client finds the attached protective order sufficient to protect its legitimate interests, and
look forward speaking with you soon.
-Bob
____________________________
EKSTRAND & EKSTRAND LLP
811 Ninth Street, Durham, North Carolina 27705
[phone] (Office) | [phone] (Fax) | [phone] (Direct)
CONFIDENTIALITY NOTICE: This electronic mail transmission has been sent by a law firm. It
may contain information that is confidential, privileged, proprietary, or otherwise legally exempt from
disclosure. If you are not the intended recipient, you are hereby notified that you are not authorized to
read, print, retain, copy or disseminate this message, any part of it, or any attachments. If you have
received this message in error, please delete this message and any attachments from your system
without reading the content and notify the sender immediately of the inadvertent transmission. There
is no intent on the part of the sender to waive any privilege, including the attorney-client privilege, that
may attach to this communication. Thank you for your cooperation.

On Wed, Nov 16, 2011 at 4:34 PM, Dick Ellis <[e-mail]> wrote:
5

Bob, there is a typo in the number I sent to you. It should be 919-267-9890. But I'll call you on your
cell.
Also, I'm responding to your earlier email in which you wrote: "Ok. I'm out of ideas. Jeremy's response
is not acceptable. We need the documents to we requested (i.e., identified in your initial
disclosures) and will proceed accordingly."
-Bob
My response:
Bob, you already have the documents we identified in our initial production. We mailed you a disc on
November 9. If, by chance, you didn't get it, please let me know ASAP.

As for the confidentiality agreement, we sent you a draft proposal weeks ago, but have received nothing from
you. I assume you will want some of your clients' materials protected, so the agreement should be of interest to
both of us. Stefanie did call a few days ago and asked if we had sent something similar to the Carrington people
(I told her we had). I told her that we were negotiating and approaching an understanding with them, and once
we accomplished that, I would send her whatever was arranged with them. That is still our plan, as Jeremy
noted.

I know, of course, that you will proceed as you see fit. But frankly, I'm not sure there is anything to proceed
about. Shouldn't we see if we can reach agreement first? Right now, all I see is your "not acceptable" and that
you will "proceed accordingly"- which sounds like "my way or else." Is that how we are to handle things?

Best regards - Dick

From: Robert Ekstrand [mailto:[e-mail]]
Sent: Wednesday, November 16, 2011 3:58 PM
To: Dick Ellis
Subject: Re: Depositions, Dates, & Other Discovery Issues
I will. First chance.
-Bob
6

On Nov 16, 2011, at 3:28 PM, Dick Ellis <[e-mail]> wrote:
OK. Please call me at 267-9090 when you free up.
From: Robert Ekstrand [mailto:[e-mail]]
Sent: Wednesday, November 16, 2011 2:39 PM
To: Dick Ellis
Cc: SAS
Subject: Re: Depositions, Dates, & Other Discovery Issues
Ok. I'm out of ideas. Jeremy's response is not acceptable. We need the documents to we requested
(i.e., identified in your initial disclosures) and will proceed accordingly.
-Bob
On Nov 16, 2011, at 7:06 AM, Dick Ellis <[e-mail]> wrote:
Bob, I have considered it and I appreciate yr and Stefanie's thoughts. I asked Jeremy to respond (with
our thoughts). I believe he did.
I owe you a call; I have not forgotten. Dick
From: Robert Ekstrand [mailto:[e-mail]]
Sent: Tuesday, November 15, 2011 10:17 PM
To: Dick Ellis
Subject: Fwd: Depositions, Dates, & Other Discovery Issues
Dick:
Can you weigh in on this? We have proposed to agree to your protective order (with the exception
ourself action of information you believe is 'not relevant') for up to 90 days while an agreement / court
order is put in place.
I was certain this proposed bridge agreement would address your concerns and resolve the short term
problems this is creating for us as we design our discovery plan and prepare to take depositions.
Would you take a look at what we've proposed, and let me know what else can we do to get the
discovery we have requested?
-Bob
Begin forwarded message:

7

From: "Jeremy Falcone" <[e-mail]>
Date: November 15, 2011 9:27:31 PM EST
To: "Stefanie Sparks" <[e-mail]>, "Dick Ellis" <[e-mail]>
Cc: "Robert Ekstrand" <[e-mail]>, "Dixie Wells" <[e-mail]>
Subject: RE: Depositions, Dates, & Other Discovery Issues
Stefanie,

Thank you for reaching out to us regarding dates for Alleva and Kennedy. We will determine when
they can be available around your dates, our schedules and the existing depositions in the Carrington
case.

We'd like to reach an agreement on the protective order. We are nearing an agreement with the
Carrington plaintiffs. I'm confident we can do the same. As soon as that agreement is entered, we will
produce documents that have been withheld on confidentiality grounds. If we're unable to come to an
agreement, we can discuss a bridge agreement at that time.
Jeremy

From: Stefanie Sparks [mailto:[e-mail]]
Sent: Tuesday, November 15, 2011 3:34 PM
To: Dick Ellis; Jeremy Falcone
Cc: Robert Ekstrand
Subject: Depositions, Dates, & Other Discovery Issues
Dick and Jeremy,

As I relayed to Dixie early last week and just now to Jeremy over the phone, the first two people we
would like to depose in the beginning/middle of December are Joe Alleva and Chris Kennedy. We
wanted to follow-up this week and confer further with you about dates for these two individuals. The
two depositions that we would like to do in January are Gary Smith and Greg Stotsenberg. Dates that
we are available are the following:

12/1 - 12/3
8

12/12 - 12/16

12/29 - 12/30

1/9 - 1/13

1/23 - 1/26

Protective Order

Additionally, because documents are being withheld pending the implementation of a protective order
and in light of the number of documents we have already produced and will be producing over the
next week, we think the following bridge agreement is sufficient to protect identified documents
during the time period between now and the implementation of a protective order.

Bridge Agreement

Produce all of the documents that are being withheld pending the implementation of a
protective order. We will consider, and as such, treat all of the documents produced under this bridge
agreement as protected documents for 45 days. If there end up being any disagreements as to the
scope and procedural elements of the protective order that are unable to be resolved between Plaintiffs
and Duke Defendants in McFadyen, those disagreements will go before the Court. If the Court is
unable to hear the issues relating to any existing disagreements as to the protective order within the
initial 45 days from the date of production, we will extend the initial protection period for an additional
45 days. We think 90 days is sufficient to implement a protective order. We would propose the same
with documents that we identify to you in our production as documents we believe should be
protected. For example, some of the documents we have identified as protected include medical and
educational records. Additionally, at some point during the time period of the bridge agreement, each
side will also produce their respective privilege logs.

9

FERPA Release

I will also forward the email I sent to Dixie last week regarding Plaintiffs' FERPA Releases. As you are
aware, parts of Plaintiffs' academic file were requested in Defendant's First request for Production of
Documents.

I look forward to hearing from you at your earliest convenience regarding these issues.

Best,

Stefanie

-Stefanie A. Sparks
Associate
EKSTRAND & EKSTRAND LLP
811 Ninth Street, Suite 260
Durham, NC 27705
Phone: [phone]
Fax: [phone]

*************************************************
CONFIDENTIALITY NOTICE: This electronic mail transmission has been sent by a lawyer. It may
contain information that is confidential, privileged, proprietary, or otherwise legally exempt from
disclosure. If you are not the intended recipient, you are hereby notified that you are not authorized to
read, print, retain, copy or disseminate this message, any part of it, or any attachments. If you have
10

received this message in error, please delete this message and any attachments from your system
without reading the content and notify the sender immediately of the inadvertent transmission. There
is no intent on the part of the sender to waive any privilege, including the attorney-client privilege, that
may attach to this communication. Thank you for your cooperation.

11

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
No. 1:07-CV-953
RYAN MCFADYEN, et al.,
Plaintiffs,
v.

CONSENT PROTECTIVE ORDER ON
CONFIDENTIALITY AND
PROSPECTIVE SEALING ORDER
Fed. R. Civ. P. 26(c)

DUKE UNIVERSITY, et al.,
Defendants.
IT IS HEREBY STIPULATED BY THE PARTIES AND ORDERED BY THE
COURT as follows:
The Court finds that certain information sought to be produced during discovery in
this action likely will represent or contain confidential medical, educational, or personnel
records, and/or technical or commercial information within the meaning of Rule 26(c) of
the Federal Rules of Civil Procedure. Accordingly, the Court finds good cause for entry
of this Protective Order (“Protective Order”).
IT IS THEREFORE ORDERED as follows:
1.

Parties To The Protective Order. The parties to this Protective Order are

Plaintiffs and the Duke University Defendants (collectively, the “Parties”). The Parties
consent to this Protective Order through their counsel of record: Plaintiffs,
throughRobert C. Ekstrand and Stefanie A. Sparks of Ekstrand & Ekstrand, LLP;and the
Duke University Defendants, through Richard W. Ellis, Dixie T. Wells, Jeremy Falcone,
and Paul K. Sun, Jr. of Ellis & Winters LLP. To the extent that any other person seeks

access to information designated as confidential pursuant to this Protective Order, such
person or its counsel must first execute the Agreement Concerning Protected Information
attached as Exhibit A hereto (“Confidentiality Agreement”). Specifically, and without
limiting the foregoing, if any party to the above-captioned litigation (“Litigation”) who is
not a Party to this Protective Order (e.g., a party that is involved in a claim for which
discovery has been stayed) seeks access to information designated as confidential, seeks
to attend a portion of any deposition at which confidential information is discussed or
seeks to review any deposition exhibit containing confidential information, such party or
its counsel must first execute the Confidentiality Agreement. As used herein, the term
“Signatory” shall refer to any person who has executed the Confidentiality Agreement.
2.

Material Governed. This Protective Order shall govern all discovery

material produced or disclosed in this Litigation, including the following: documents
(which shall have the broadest possible meaning and include information memorialized
in any way, including in paper or electronic format), data and information, answers to
interrogatories, deposition transcripts, answers to deposition questions, responses to
requests for admission, affidavits, and such other materials and information as may be
provided by the Parties or other persons during the course of discovery in this Litigation,
including pages of documents or divisible parts of other materials.
3.

“Confidential Information.” For purposes of this Protective Order,

“Confidential Information” means information in any form, including those described in
paragraph 2, that is disclosed and designated in accordance with the procedures set forth

in this Protective Order and that reflects or contains: personal financial information, e.g.
salary information, account statements and tax returns and related schedules and
supporting documents; personal health information, e.g. medical records; education
records as that term is defined in the Family Educational Rights and Privacy Act
(“FERPA”); disciplinary information, e.g. information related to discipline by a school,;
personnel records, e.g. performance reviews and evaluations; and financial or economic
dataminutes of meetings of the Duke University board of trustees; decisions involving
faculty hiring, retention, and compensation issues; information regarding insurance
policies; research by faculty that would otherwise remain in confidence; information
related to police investigations that is ordinarily maintained in confidence; and strategic,
financial or economic information that would ordinarily be maintained in confidence,
where the disclosing person has taken appropriate efforts to maintain the confidentiality
of such information or the party is otherwise required to keep such information
confidential by agreement or law. The designation of material as Confidential
Information shall be deemed effective, subject to the provisions of paragraph 17.
4.

Public Information. No document or other material that is or becomes

available to the public, other than through a violation of this Protective Order, shall be
considered Confidential Information.
5.

Uses. Confidential Information appearing in any form, including those

described in paragraph 2, may not be disclosed to any person except as permitted in
paragraph 13 or as otherwise ordered by the Court. Confidential Information produced in

this Litigation is to be used solely for purposes of this Litigation (i.e., preparing for trial,
for use at trial, and preparing for any appeal of this Litigation). and shall not be used in
any other litigation, including but not limited to the litigation captioned Carrington v.
Duke University, Case No. 1:08-cv-119, or for any business or other purpose whatsoever.
By their signatures below, undersigned counsel specifically agree and represent that they
and their clients will not provide such information or documents to anyone who is not a
Party or a Signatory, including but not limited to posting (either directly or indirectly)
any Confidential Information on any website that is accessible to anyone who is not a
Party or a Signatory.
6.

Designation of Information as “CONFIDENTIAL.” A Party or other

person may, in the exercise of good faith, designate any material as Confidential
Information pursuant to this Protective Order. Documents, responses to interrogatories,
responses to requests for admission, exhibits and other material may be designated as
containing Confidential Information by stamping the word “CONFIDENTIAL” on each
page or medium containing the material or data sought to be protected, such that the
material or data appearing on the page is not obscured. Upon request of counsel for any
Party to this Litigation, the designating person shall promptly and precisely identify the
Confidential Information on a page stamped “CONFIDENTIAL.” Material produced or
used in a non-hard copy format (i.e., a native format, such as an Excel spreadsheet file or
Word document file) may be designated as containing Confidential Information by
stamping the word “CONFIDENTIAL” on any compact disc containing such material

and/or by otherwise conspicuously indicating, as appropriate for the type of electronic
material at issue, that such material is “CONFIDENTIAL” (e.g., by including the word
“CONFIDENTIAL” in the name of the electronic file).
7.

Documents Produced for Inspections. For purposes of disclosing

documents for inspection, the disclosing person may refrain from designating specific
documents as Confidential Information until after the inspecting person has selected
specific documents and/or materials for copying. In this event, the disclosing person
shall announce in writing prior to producing the documents or material for inspection that
all such documents and material should be considered Confidential Information for the
purposes of the inspection. After the inspecting person selects specified documents and
material for copying the disclosing person shall designate any Confidential Information
contained in such material.
8.

Non-Relevant Confidential Information. Before producing discovery

material, a disclosing person may redact Confidential Information that is not relevant to
the subject matter of this Litigation. Any discovery material that is redacted shall have
“REDACTED” stamped on each page from which Confidential Information has been
redacted. The disclosing person shall produce a log describing the nature of the redacted
Confidential Information.
9.

8. Deposition Designations In General. All oral deposition testimony,

regardless of whether the testimony was designated as Confidential Information on the
record, shall be treated as Confidential Information and subject to this Protective Order

for thirty (30) days after counsel for each of the Parties has received the transcript of the
deposition.
10.

9. Designations During The Deposition. Any person may, on the record at

the deposition, designate portions of oral testimony, or the testimony in its entirety, as
Confidential Information. In the event that any question is asked at a deposition with
respect to which it is asserted, on the record, that the answer requires the disclosure of
Confidential Information, the question shall nonetheless be answered by the witness fully
and completely. Before the deposition begins, however, all persons present who are not
otherwise bound by this Protective Order shall be required to sign or otherwise indicate
on the record their agreement to the Confidentiality Agreement. If any such person, other
than the witness, declines to do so, that person shall leave the room during the time in
which Confidential Information is disclosed or discussed. When any document or other
material designated as Confidential Information is introduced as an exhibit, counsel
introducing such exhibit shall advise the court reporter that the exhibit is Confidential
Information pursuant to this Protective Order. All persons present at the deposition
during the discussion of such exhibit shall either be a Party or a Signatory or shall
otherwise evidence their agreement to the Confidentiality Agreement. No deposition
exhibit marked as Confidential Information shall be provided to any person who is not a
Party or Signatory or who did not otherwise evidence his or her agreement to the
Confidentiality Agreement. The fact that a Party has not objected to designation of all or
any portion of the deposition transcript as Confidential Information during the deposition

itself does not waive such Party’s right to seek release of that transcript from the terms
and provisions of this Protective Order pursuant to paragraph 17.
11.

10. Designations After The Deposition. Alternatively, counsel for the

designating party may designate an entire transcript or designate specific pages and lines
of the transcript or video recording of the deposition as Confidential Information by
notifying counsel for the Parties and other attendees of the deposition in writing within
thirty (30) calendar days of receipt of the transcript or video recording of such deposition.
If within thirty (30) calendar days of receipt of the transcript or video recording of such
deposition no person timely designates the transcript or recording, or any portion thereof,
as Confidential Information, then the transcript and any recording shall not thereafter be
subject to this Protective Order. Deposition exhibits that are marked as
“CONFIDENTIAL” will continue to be protected without further designation, and the
continued protection of such exhibits will not be dependent upon the transcript, or any
portion thereof, being designated as Confidential Information.
A separately-bound transcript of those portions of the deposition testimony and
exhibits that are designated as Confidential Information shall be made and the cover shall
be marked with the “CONFIDENTIAL” designation. If any portion of any transcript so
marked is required to be filed with the Court, it shall be filed using the procedures set
forth in paragraph 21.
12.

11. Restrictions on Disclosure. No Confidential Information shall be
disclosed

to any persons other than those Authorized Persons identified in paragraph 13, who may
use such information only for the purposes described in paragraph 5. Nothing in this
Protective Order, however, shall prevent disclosure beyond the terms of this Protective
Order if the person designating the information consents in writing prior to such
disclosure, or if the Court orders such disclosure. Nothing in this Protective Order shall
be construed as a restriction on the use or disclosure of information by the person who
supplied the information, or otherwise limit the ability of a person to publicly disclose its
own Confidential Information.
13.

12. Authorized Persons. Except as agreed to in writing by the designating

person (or its counsel) or as otherwise provided by this Protective Order, and only after
compliance with the procedures set forth herein, access to Confidential Information shall
be restricted to the following persons:
a.

The Court and Court personnel;

b.

The Parties to this Litigation, provided that Duke University personnel with
access to material designated as Confidential Information by the Plaintiffs
shall be limited to officers, administrators, employees, and contractors of
Duke University who require such access in order to assist in or evaluate
this Litigation, provided that such persons orally agree to abide by the
terms and provisions of this Protective Order;

c.

Counsel of record described in paragraph 1 of this Protective Order, along
with associated attorneys in their law firms and law clerks, paralegals,
clerical staff, and other staff employed by such law firms, and contractors
of Ekstrand & Ekstrand, LLPsuch law firms who require such access in
order to assist in or evaluate this Litigation, provided that such persons
orally agree to abide by the terms and provisions of this Protective Order;

d.

Independent consulting or testifying expert witnesses or trial consultants,
including their staff, retained by the parties in connection with this case,
provided that such persons sign the Confidentiality Agreement;

e.

Outside contractors hired to copy, index, sort, or otherwise manage the
storage and retrieval of discovery material, provided that such persons sign
the Confidentiality Agreement;

f.

The officer or court reporter taking, reporting, recording, transcribing, or
videotaping deposition or other testimony in this action, and employees of
such officers or court reporters to the extent necessary to prepare the
transcript of the deposition; and

g.

Any other person who is subsequently designated either by written
agreement by the Parties or by Order of the Court and who has signed the
Confidentiality Agreement.

Each person described above to whom Confidential Information is delivered shall
maintain the confidentiality of the document and/or information. In the event that any
person subject to this Protective Order shall cease to be involved in this Litigation, such
person’s access to the Confidential Information shall be terminated and such person shall
either promptly return such Confidential Information to the person who designated it or
destroy such information, providing a written confirmation of such destruction to the
person who designated it. Any person who has agreed to be bound by this Protective
Order will continue to be bound even if no longer involved in this Litigation.
14.

13. Safe-Keeping of Confidential Information. The recipient of any

Confidential Information disclosed pursuant to this Protective Order shall maintain it in a
secure area and shall exercise due and proper care to protect its confidentiality.
15.

14. Inadvertent Disclosure of Confidential Information By Designating
Person.

Failure to designate or stamp information as “CONFIDENTIAL” at the time of its
production shall not constitute a waiver of protection of such Confidential Information,
provided that the disclosing person or its counsel promptly notifies all receiving persons
upon realizing the failure, but in no event more than thirty (30) calendar days from the
date of production. Any person who is notified that Confidential Information has been
inadvertently produced shall treat the information as subject to this Protective Order
unless and until the Court determines that such designation does not apply. Such
receiving person shall make reasonable efforts to notify all other persons to whom it has
provided the Confidential Information that such material shall be treated and handled in
accordance with this Protective Order. However, the receiving person shall not be in
violation of this Protective Order for any disclosure of information made prior to
receiving such notice.
16.

15. Disclosure of “CONFIDENTIAL” Information By Receiving Party. If
a

Party or other person receiving “CONFIDENTIAL” Information learns that, by
inadvertence or otherwise, it has disclosed such information under circumstances not
authorized under this Protective Order, such receiving Party or person shall immediately
(i) notify in writing the person who designated the information as “CONFIDENTIAL” of
the unauthorized disclosures; (ii) use its best efforts to retrieve all copies of the
“CONFIDENTIAL” information; and (iii) inform the person or persons to whom
unauthorized disclosure was made of all the terms of this Protective Order.

17.

Objections to Designations. Counsel for any Party may at any time object

to the designation of any material as Confidential Information and seek the release of
such material from the terms and provisions of this Protective Order by making such
request in writing to the person who designated such material as Confidential
Information. Upon making such a request, the Party requesting the release shall initiate a
“meet and confer” among all Parties to this Protective Order and the person who
designated the material as Confidential Information. If the Parties and the designating
person are unable to agree as to whether the material at issue is properly designated
Confidential Information, counsel for the designating person may, within 30 days of the
“meet and confer” session, file a motion defending such designation with the Court. If
counsel for the designating person does not file such a motion within 30 days, the
challenged information originally designated as Confidential Information shall be
released from the terms and provisions of this Protective Order. If counsel for the
designating person does file such a motion within 30 days, pending a ruling from the
Court, information originally designated as Confidential Information shall be subject to
this Protective Order until the Court rules otherwise.
18.

16. Notification of Subpoenas. In the event that any person who receives or
is

in possession of Confidential Information subsequently receives from anyone who is not
bound by this Protective Order any subpoena or other compulsory request seeking the
production or other disclosure of such Confidential Information, that person shall

immediately notify in writing the person who designated the material as Confidential
Information, specifying the material sought and enclosing a copy of the subpoena or other
form of compulsory process in order to permit the designating person the opportunity to
intervene and seek to prohibit the disclosure of the material. Where possible, at least ten
(10) calendar days’ notice shall be given prior to the production or disclosure sought to
be compelled. Unless otherwise ordered by a court or other tribunal with appropriate
jurisdiction, in no event shall any person produce or disclose Confidential Information
before notice is given to the person who designated such material as Confidential
Information.
19.

Third Parties. Any person, even if not a Party to this Litigation, who

produces information pursuant to subpoena, other legal process or otherwise may
designate such material as Confidential Information pursuant to this Protective Order.
20.

17. Newly-Added Parties. In the event that additional parties are named in
this

Litigation, neither they nor their counsel shall have access to Confidential Information
until this Protective Order has been amended, with the Court’s approval, to govern such
additional parties and counsel, and until such additional parties and their counsel have
signed the Confidentiality Agreement.
21.

18. Filing with the Court. No Party or other person shall file any materials
that

contain Confidential Information with the Court unless filing those materials is relevant
to an issue before the Court. If a party desires to file materials containing Confidential
Information with the Court or to reference or quote Confidential Information in any
filing, its counsel shall comply with the following provisions:
a.

For Dispositive and Other Substantive Filings. Counsel will perform a

document-specific, good faith examination of the Confidential Information to be filed
under seal to ensure that it meets the legal and factual criteria for such treatment. If the
Confidential Information meets the legal and factual criteria for filing under seal, counsel
for the Party or person seeking to file, reference or quote Confidential Information shall
file a motion with this Court showing the particularized need for filing, referencing or
quoting such material. No Confidential Information shall be filed under seal, or be
referenced or quoted in a filing made under seal, without the filing person having first
obtained an order granting leave to file under seal. Upon appropriate order of the Court,
Confidential Information may be filed under seal, or referenced or quoted in a filing
made under seal, according to the local rules and other authority governing the filing of
material under seal in this District. For any filing or portion thereof submitted under seal
pursuant to this Protective Order, the filing person shall file a redacted version that does
not reflect Confidential Information such that the redacted filing is publicly-available on
the Court’s CM/ECF docket.
In the event that the person seeking to file, reference or quote Confidential
Information is not the person who designated the material as Confidential Information,

the person seeking to file, reference or quote such material shall give the designating
person ten (10) days advance notice that it intends to do so. The designating person then
may file a motion with the Court seeking an order that such material must be filed under
seal as provided in this sub-paragraph. In that event, no Confidential Information shall be
filed, referenced or quoted in a publicly-available filing until the Court rules on such
motion. In the event that the designating person files such motion and the Court does not
rule on such motion by the time the Confidential Information is filed, the Confidential
Information shall be filed provisionally under seal pending that ruling. If, upon the ten
(10) days advance notice described above, the designating person has not filed such a
motion within those ten days, then the material at issue may be deemed non-confidential
and not protected by the terms of this Protective Order.
b.

For Discovery-Related Motions. Any Confidential Information filed in

connection with a discovery-related motion and any portion of any discovery-related
motion that references or quotes Confidential Information must be filed under seal, and
this Protective Order shall be cited as authority for such filing under seal. The filing of
Confidential Information under seal shall be done according to the local rules and other
authority governing the filing of material under seal in this District. For any filing or
portion thereof submitted under seal pursuant to this Protective Order, the filing person
shall file a redacted version that does not reflect Confidential Information such that the
redacted filing is publicly-available on the Court’s CM/ECF docket.

22.

19. No Waiver. By consenting to this Protective Order, no Party waives
any

right it may have to dispute any person’s designation of Confidential Information.
Further, by declining to challenge the designation of any material as Confidential
Information, no Party waives any right it may have to challenge the use, admissibility or
authenticity of such material for any other reason.
23.

20. Use at Trial. Either Party may move this Court for an order that the

evidence at trial be received in such a way as to prevent unnecessary disclosure consistent
with applicable law. Absent such additional order of this Court, all parties are entitled to
use Confidential Information as evidence during trial without restriction. The Parties
shall have the right to request that any hearing or portions of any hearing involving the
use or presentation of Confidential Information be conducted in camera.
24.

21. Conclusion of Litigation. At the conclusion of this Litigation, all copies
of

any document, file or other material that contains or reflects Confidential Information
shall be destroyed within sixty (60) calendar days of the disposition or final termination
of this case (or if a post-hearing motion or appeal is filed, sixty (60) calendar days after
the disposition of those matters). Counsel for each person who has received Confidential
Information shall certify in writing to the disclosing person that all such information has
been destroyed. Notwithstanding the foregoing, counsel may retain two archival copies
of court filings (one in electronic form; one in hard copy form) and two copies of

deposition and trial transcripts (including two copies of exhibits thereto) (one in
electronic form; one in hard copy form), as well as any materials constituting attorney
work product, containing Confidential Information, which materials will remain subject
to this Protective Order.
25.

22. Survival. The terms and conditions of this Protective Order shall
remain in

full force and effect, shall survive the final resolution of this Litigation and shall be
binding on all Parties and Signatories unless the Protective Order is terminated or
modified in writing by the Court. Each person subject to this Protective Order shall
continue to be subject to the jurisdiction of this Court, for the purposes of this Protective
Order, in perpetuity, and the Court will retain jurisdiction to enforce the terms of this
Protective Order following termination of this Litigation, the filing of a notice of appeal
or any other pleading which would have the effect of divesting this Court of jurisdiction
of this matter generally.
26.

23. Modification or Termination. The entry of this Protective Order shall
be

without prejudice to the rights of any person to apply for additional or different protection
where it is deemed appropriate. This order is subject to modification or termination by
written agreement by the Parties or the Court upon showing of good cause.
27.

24. Notices. All notices required or permitted to be provided by this
Protective

Order shall be made by email. In the event that notification by email is impracticable, a
notice shall be made by either (i) hand-delivery of the notice to counsel of record in
person; or (ii) sending the notice by a courier for overnight delivery to counsel of record.

SO ORDERED, this the ______ day of ___________, 2011.
________________________________
United States Magistrate Judge

/s/ Robert C. Ekstrand
N.C. State Bar No. 26673
Email: [e-mail]
811 Ninth Street, Suite 260
Durham, NC 27705
Telephone: [phone]
Facsimile: [phone]
/s/ Stefanie A. Sparks
N.C. State Bar No. 42345
Email: [e-mail]
811 Ninth Street, Suite 260
Durham, NC 27705
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiffs

/s/ Richard W. Ellis
Richard W. Ellis
N.C. State Bar No. 1335
Email: [e-mail]
ELLIS & WINTERS LLP
1100 Crescent Green, Suite 200
Cary, NC 27518
Telephone: [phone]
Facsimile: [phone]
/s/ Jeremy M. Falcone
N.C. State Bar No. 36182
Email: [e-mail]
ELLIS & WINTERS LLP
1100 Crescent Green, Suite 200
Cary, NC 27518
Telephone: [phone]
Facsimile: [phone]
/s/ 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]
/s/ Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: [e-mail]
Ellis & Winters, LLP
Post Office Box 33550
Raleigh, North Carolina 27636
Telephone: [phone]
Facsimile: [phone]
Counsel for Duke University Defendants

EXHIBIT A: Agreement Concerning Protected Information
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
No. 1:07-CV-953
RYAN MCFADYEN, et al.,
Plaintiffs,
v.

CONSENT PROTECTIVE ORDER ON
CONFIDENTIALITY AND
PROSPECTIVE SEALING ORDER
Fed. R. Civ. P. 26(c)

DUKE UNIVERSITY, et al.,
Defendants.
The undersigned acknowledges that s/he has been given access to certain
documents or testimony covered by the Consent Protective Order on Confidentiality and
Prospective Sealing Order (“Protective Order”) in this case, that s/he has read,
understands, and agrees to be bound by the terms and conditions of the Protective Order,
that s/he consents to the jurisdiction of the United States District Court for the Middle
District of North Carolina for purposes of enforcing this Protective Order, and that s/he
has been designated as an Authorized Person under the terms of this Protective Order.
The undersigned further understands that the Protective Order prohibits him/her from
disclosing or discussing the contents of any document or other material designated in
accordance with the Protective Order to or with any person other than those individuals
identified in the Protective Order. The undersigned further understands that his/her use
of such documents or material is limited to those uses authorized by the Protective Order.
_____________________
SIGNATURE
_____________________
PRINTED NAME
_____________________
DATE

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