MCFADYEN et al v. DUKE UNIVERSITY et al
Filing
284
PROTECTIVE ORDER on CONFIDENTIALITY, re: confidential information as set out. Signed by MAG/JUDGE JOI ELIZABETH PEAKE on 7/24/2012. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
1:07CV953
PROTECTIVE ORDER ON CONFIDENTIALITY
IT IS HEREBY 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 all remaining Duke University Defendants (collectively, the “Parties”). The
Parties consent to this Protective Order through their counsel of record: Plaintiffs,
through Robert C. Ekstrand and Stefanie A. Smith of Ekstrand & Ekstrand LLP; 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 other persons during the course of discovery in this Litigation,
including pages of documents or divisible parts of other materials.
2
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 protected under
the Health Insurance Portability and Accountability Act (“HIPAA”); 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;
information related to police investigations that is ordinarily maintained in confidence;
and any trade secret or other confidential research, development, or commercial
information, as provided under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure.
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.
3
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, for supporting or opposing any motion, 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. 1:08CV119, 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 non4
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 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.
5
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 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
6
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.
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
7
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;
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
8
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.
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.
9
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 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.
10
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.
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
11
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 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:
12
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
13
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.
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.
14
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 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
15
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
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/ Joi Elizabeth Peake
United States Magistrate Judge
Date: July 24, 2012
16
EXHIBIT A: Agreement Concerning Protected Information
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RYAN MCFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
1:07CV953
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 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
17
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
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?