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)
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EDWARD CARRINGTON, et al.,
)
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)
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Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
1:08CV119
CONSENT PROTECTIVE ORDER ON CONFIDENTIALITY
AND PROSPECTIVE SEALING ORDER Fed. R. Civ. P. 26(c)
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 sensitive, confidential or proprietary business
information, or other confidential personal, financial, 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
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consent to this Protective Order through their counsel of record: Plaintiffs, through David H.
Thompson of Cooper & Kirk, PLLC; and the Duke University Defendants, through
Richard W. Ellis and Dixie T. Wells 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
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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, college, athletic team, or
public authority; personnel records, e.g., performance reviews and evaluations; minutes of
meetings of the Duke University board of trustees; decisions involving faculty hiring,
retention, and compensation issues; insurance policies; research by faculty that would
otherwise remain in confidence; information related to police investigations that is ordinarily
maintained in confidence; and business, 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.
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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 McFadyen v. Duke University,
Case No. 1:07CV953, 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
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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 but before
the production of such copies, 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
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matter of this Litigation. Any discovery material that is redacted shall have “REDACTED”
stamped on each page from which Confidential Information has been redacted. Upon the
request of counsel for any Party to this Litigation, the disclosing person shall produce a log
describing the nature of the redacted Confidential Information.
9.
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.
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 witness answers, 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
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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.
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.
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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.
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.
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;
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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;
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,
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
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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.
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.
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.
Disclosure of “CONFIDENTIAL” Information By Receiving Party. If a Party
or other person receiving “CONFIDENTIAL” Information learns that, by inadvertence or
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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
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a ruling from the Court, information originally designated as Confidential Information shall
be subject to this Protective Order until the Court rules otherwise.
18.
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.
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
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parties and counsel, and until such additional parties and their counsel have signed the
Confidentiality Agreement.
21.
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
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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
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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.
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.
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.
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
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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.
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.
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 the
Court upon showing of good cause.
27.
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
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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.
/s/ P. Trevor Sharp
United States Magistrate Judge
Date: January 19, 2012
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/s/ Charles J. Cooper
Charles J. Cooper
Email: ccooper@cooperkirk.com
David H. Thompson
Email: dthompson@cooperkirk.com
Nicole J. Moss
N.C. State Bar. No. 31958
Email: nmoss@cooperkirk.com
Peter A. Patterson
Email: ppatterson@cooperkirk.com
COOPER & KIRK, PLLC
1523 New Hampshire Ave., NW
Washington, D.C. 20036
Telephone: (202) 220-9600
Facsimile: (202) 220-9601
/s/ Richard W. Ellis
Richard W. Ellis
N.C. State bar No. 1335
Email: dick.ellis@elliswinters.com
Paul K. Sun, Jr.
N.C. State Bar No. 16847
Email: paul.sun@elliswinters.com
Jeremy M. Falcone
N.C. State Bar No. 36182
Email: jeremy.falcone@elliswinters.com
ELLIS & WINTERS LLP
1100 Crescent Green Drive, Suite 200
Telephone: (919) 865-7000
Facsimile: (919) 865-7010
/s/ William J. Thomas II
Dixie T. Wells
William J. Thomas II
N.C. State Bar No. 26816
N.C. State Bar No. 9004
Email: dixie.wells@elliswinters.com
Email: thomas@tfmattorneys.com
ELLIS & WINTERS LLP
THOMAS, FERGUSON & MULLINS, 333 N. Greene Street, Suite 200
L.L.P.
Telephone: (336) 217-4197
119 East Main Street
Facsimile: (336) 217-4198
Durham, NC 27701
Telephone: (919) 682-5648
Facsimile: (919) 688-7251
Counsel for Duke University
Defendants
Brian S. Koukoutchos
Email: bkoukoutchos@gmail.com
28 Eagle Trace
Mandeville, LA 70471
Telephone: (985) 626-5052
Facsimile: (985) 626-4407
Counsel for Plaintiffs
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EXHIBIT A: Agreement Concerning Protected Information
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EDWARD CARRINGTON, et al.,
)
)
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)
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Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
1:08CV119
CONSENT PROTECTIVE ORDER ON CONFIDENTIALITY
AND PROSPECTIVE SEALING ORDER Fed. R. Civ. P. 26(c)
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
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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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