STUDENTS FOR FAIR ADMISSIONS, INC. v. UNIVERSITY OF NORTH CAROLINA, et al

Filing 49

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER. Signed by MAG/JUDGE JOE L. WEBSTER on 7/9/2015. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
STUDENTS FOR F,A.IR ADMISSIONS,
INC.,
Plaintiffs,
Y

THE, UNIVERSITY OF' NORTH

CÂROLINA AT CH,\PEL HILL, et aI.,
Defendants.

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1,:1,4CY954

AGREED CONFIDENTIAIITY AND PROTECTIVE ORDER
Putsuant to Fed. R. Civ. P.26(c), and upon the agreement and stipulation of the
parties, the Coutt finds good cause to issue a Ptotective Otder in this matte4 protecting the

confidentiality of cettain Material (as defined below) that may be produced in the course of
this litigation. Accordingly, the Coutt enters the following Otdet:

T.

DEFINITIONS
1,.1,

1,.2

"Material" refers to aîy document, data compilation, testimony, intettogatory
response, response to a request to admit, ânswer, pleading, filing, ot other
infotmation in any fotm ptoduced ot disclosed in this action, whethet
voluntarily ot thtough any means of discovery authorízed by law, and whether
by a party or non-party to this action.

"FERPA" is the Family Educational Right and Pdvacy Act,20 U.S.C. \ 12329,
and its implementing regulations, 34 C.F.R. pt. 99. The paties acknowledge
that F'ERPA may âpply to certain Material that is tequested ot ptoduced in

this litigation. The parties futher acknowledge that the parties are obligated to
comply with FERPA.
1,.3

1,.4

Material may be deemed "confidential" if (i) it contains ot tends to reveal
nonpublic infotmation about University personnel; (ü) it is deemed
confidential ot exempted from the North Caroltna Public Recotds Law, N'C.
Gen. Stat. S 132-1 et seq.; (Í1) it is protected fiom public disclosute by any
applicable law, tegulation, protective order, ot non-disclosute agteemenq or
(iv) other Material as agteed upon by the parties. The followrngmatetialmay
be deemed "highly confidential:" (i) Matedal that is subiect to the protections
of FERPA; (ri) Material that contains or tends to reveal pdvate infotmation
about an apphcznt ot student (as defined in 1.5 and 1'.6 hetein), including but
not limited to, Matetial contained in"apphcation fìles" (as defined ín 1..4
herein); (iii) contains "personally identifìable infotmatjon from or about an
applicant for admission" to the University; protected ftom public disclosure
pursuant to N.C. Gen. Stat. \ 1,32-1.1,; or (iv) other matetial as agteed upon by
the patties.

"r{.pplication file" includes all materials submitted by an applicant fot
admission to the Univetsity or received by the Univetsity from a thitd-party
regarding the applicant's application for admission, including but not ümited
to: (1) the applicant's Common Application ot any other application fotm,
essay, ttansctipts, test scores, extfacutticular activities, and class tank; (2)
evaluations, assessments, and commeflts regatding the applicant; (3) lettets of
recommendation regarding the applicant; and (4) any documents containing
an apphcant's name, addtess, social security number, high school or other
institution attended, or other petsonally identifiable infotmation. Such
materials may be deemed highly confidential regardless of whethet they are
subject to FERPA protection.

1.5

"Student" shall mean any individual who cuttently attends ot is enrolled at the
University or has attended or enrolled at the Univetsity.

1,.6

"Applicant" means any individual who submitted an application fot admission
to the University, tegardless of whether that petson was admitted, denied
admission, or placed on a waitlist.

1,.7

"Disclosin gParty" refets to p^rty or non-party to this action who ptoduces
^
Material.

1.8

"Receiving Patty" tefets to a party who receives Matetial.

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1,.9

2.

"RequestingParty" refers to apàtLy who has made a discovery tequest.

SCOPE OF ORDER

2.1,

2.2

To be subject to the particular confìdentiality ptotections of this Ordet,
Material must (1) be confidential or highly confidential within the meaning of
Section 1..3 of this Ordet; and Q) be desþated confìdential or highly
confidential pursuant to Section 3 of this Otdet.

2.3

3

Except as the parties may otherwise agree or the Court may order, Material
produced in this action, whether or not designated confidential or highly
confidential, includingany excerpt, analysis, summarry, or description of any
MatenaI, data dedved using any Material or documents based on or genetated
using any Material, shall be used solely fot putposes of the prosecution ot
defense of this action, including appeals, and fot no othet purpose.

The protections of this Order shall not apply toMatetialthat, priot to
disclosure in this action, was within the actual possession ot knowledge of a
Receiving Party or was actually public knowledge, ptovided that the Material
act ot omission of a Receiving
did not become public knowledge through
^n Material was, ptiot to
Party. If and to the extent any p^îty claims that
disclosute in this action, within its actual possession ot knowledge, ot v¡as
public knowledge, the Coutt shall determine which party has the butden of
ptoving that fact in accordance with applicable law.

DESIGNATION OF MATERIAL AS CONFIDENTIAL

3.1,

Genetal Provisrons

3.1,.1, A DisclosingParty may designateMaterial as confidential ot highly
confidential only if the Matedal (1) is confidential ot highly confidential
as defìned by Section 1,.3; and (2) is not excluded from the scope of
this Otdet by Section 2.3.
âs otherwise ptovided in this Order, the designation of Matetial
confidential or highly confidential should be made pdor to, or
contempotaneously with, the production ot disclosute of that Material.
A Disclosing Party's failure to designate Material as confidential or
highly confidentialatthe time of production or disclosure of the
Material does not, howevet, waive its right later to desþate the
Material as confidential or highly confidential, and the Disclosing Party
may so designate any Material until the close of all discovery, as set by

3.1,.2 Except
as

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the Court. If Material is designated confidential or highly confidential
after that Material has alteady been disclosed by a Receiving Party to
any other person or entity, the Receiving Party that disclosed the
previously non-confidential Material shall promptly notify the patty to
which such Material was disclosed that the Material has been
designated confidential ot highly confidential, and that the
requirements of this Ordet govern any further or subsequent disclosure
of that Mzterial. Such post-disclosute designation shall not impose any
obligation, responsibility, ot liabil-ity on any Receiving Paty wrth
respect to any pre-designation dissemination of the Material. Howevet,
after such a designation, each Receiving ParS shall treat the Matetial as
confìdential or highly confidential, accotding to the designation, and
subject to the protections of this Order.
3.2

Methods of Designation

3.2.1, A Disclosing Party may designateMaterial as confìdential by placing or
affixing on the Matedal in a manner that will not intetfete with its
legibility the word "CONFIDENTIAL." A Disclosing Party may
designate Matetial as highly confìdential by placing ot affixing on the
Material in a manner thatwill not interfete with its legibility the words
..CONFIDE,NTIAI; ATTORNEY EYE,S ONLY.,,

3.2.2 If

an interogatorT ot other discovery tequest calls for confidential or
highly confidentialMaterial, the response may be designated
confidential ot highly confidential by labeling the response with the
wotds "CONFIDENTIAL" ot "CONFIDENTIAL; ATTORNE Y
EYES ONLY." In the alternative, any confidential or highly
confidential portion of the Íesponse may be ptovided in a separate
document appended to the main body of the tesponses and
incorporated by teference therein. Undet this alternative, the main
body of the response to the interrogatory ot wtitten discovery request
at issue shall state: "Requests confidentialinformatton; see response
contained in addendum, which response is incorporated hetein by
reference."

3.2.3 Transctipts of any depositions in this action shall be tteated

as

confidential until the expiration of 30 days after the court reporter
delivets the transcript of the deposition to all counsel who request a
copy. If counsel for any party believes that the deposition transctipt ot
a pottion thereof is confidential or highly confidential putsuant to

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Section 1.3, counsel shall, within the 30 day period, designate in writing
the specific pages and lines deemed confidential ot highly confìdential,
and shall noti$r all parties and the court reporter. Unless the
deposition testimony is designated confidential ot highly confìdential
within the 30 day pedod or as otherwise ptovided in this patagtaph,
any confìdentiality is waived, unless otherwise stipulated ot otdeted by
the Court. Portions of testimony taken dudng depositions may also be
designated confidential or highly confÌdential by counsel so stating on
the tecotd during the deposition, and in such event no futhet action
need be taken to preserve the confidentiality of that pottion (ot
pottions) of the ttansctipt.

3.2.4 \)íhen confìdential or highly confidentialMaterialis

supplied ot stored
ot magnetic medium, the confidential
on an electtonic, digital,
designation shall be made, to the extent physically possible, on the
medium itself (such as on a label attached to a disk), on the sleeve,
envelope, box, or other container of the medium, and within the
medium itself in mannet that immediately and consistendy informs
^
those persons who access the medium that they have accessed Matedal
that is resticted ftom disclosure. This ptovision shall not tequite the
parties to protect against disclosute to persons within their own
orgatizattons or those of their counsel actually involved in the defense
or prosecution of the action, and the usual computer netwotk
safeguards pteventing access beyond those individuals will be deemed
sufficient.

3.J

Challenges to Confidentiality Designations

3.3.1, A ReceivingParty may challenge a confidentiality designaion of a
DesignatingParqr by objecting to the confidentiality designaionina
lettet to the Designating Paty. Any such objection must be faxed ot
emailed to the DesignatingParty within a teasonable time aftet the
confìdentiality designatton atissue is made. The Designating Party and
the Receiving Party who objects to the confidentiality designation then
must engage in a conference to address and if possible tesolve the
objection to the confidentiality designation. If the DesignatingPargr
and the Receiving Party are unable to resolve the dispute regarding the
confìdentiality designation, the Receiving Patty may make an
appropdate motion in the Court challenging the designation. If and to
the extent a Receiving Party challenges the confidentiality designation

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of a Designating ParS, the Court shall determine which patty
burden of ptoof in acconda,nce with applicable law

3.3.2

4.

has the

resolving a challenge to a confidenttaltr¡
Pending
^î ^greement
designation under Section 3.3.1., ot a ding on a motion under Section
3.3.1., the Material in question shall be ueated as confidential ot highly
confidential and subject to the protections of this Order.

DISCLOSURE, USE, AND HANDLING OF MATERIAL DESIGNATED
AS

CONFIDENTIAL

4.1,

Use and Handling of Confidential Material

4.1,.1, Putsuant to Section 2.1.,Material designated as confìdential ot highly
confidentialby a DesignatingParty shall not be used or disclosed by
any Receiving Party or its counsel for any purpose othet than the
ptosecution ot defense of this action, including appeals. This Otder's
restrictions on the dissemination of confidential or highly confidential
}i/,atetial apply with equal force to any excerpt, analysis, summatry, or
description of the confidential or highly confidentjalMaterial, as well as
any bdef, pleading, filing, exhibit, transcript, or other document
containing or tending to reveal such confidential or highly confidential
}datertal.
provided in Section 4.2, counsel fot any Receiving Patty shall
keep all Materials designated as confidenial or highly confidential
within his or het exclusive possession and in a secure area.

4.1,.2 Except

as

4.1,.3 Except upon the DesignalngParty's consent to the filing in the Coutt
of Matetial that has been designated confidential or highly confidential,
patty wishing to file with the Court any paper or matter that contains
^
or tends to reveal confidentialMatetial shall fìle such matetial pursuant
to the procedures of Local Rule 5.4.
4.1,.4 All copies, duplicates, extrâcts, summaties, ot desctiptions (collectively,
"copies") of Materials designated as confìdential or highly conûdential,
or any portion theteof, shall immediately be affìxed with the words
"CONFIDENTIAL" or "C ONFIDENTIAL; ATTORNEY E YE S
ONLY" if those words do not akeady appe r on the copies.
4.1,.5 Nothing in this Otder shall prohibit the parties ot their counsel ftom
transmitting confidential or highly c on fi denti al Materials through the

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mail, by othet common carrier, ot by non-public telephonic
transmission ot email, so long as the transmission is fot purposes
this litigation. However, undet no citcumstances may material
designated as confidential ot highly confidential be posted on a
publicly-available Internet web site.

4.1.6 Material designated

of

confìdential or highly confidential shall not lose
its protected status thtough disclosute, eithet intentionally ot
inadvertently, by a ReceivingParty. In the event of such a disclosute,
the parties shall take all steps teasonably required to assure the
continued confidentialtty of the Material.
as

4.1,.7 At the conclusion of the litigation, allMaterial designated as
confidential or highly confìdential undet this Otder and not received in
evidence or contained in papets filed with the Court shall be teturned
to the Disclosing Party. If the Disclosing Pzrty agrees in wtiting, the
Matetial may be destroyed; in that event, counsel fot the Receiving
ParS shall ceni$' in wtiting that all Matedal designated as confidential
or highly confidential under this Otder and not teceived in evidence ot
contained in papers filed with the Coutt has been destoyed.

4.2

Permitted Disclosutes

Othet than as ptovided in Section 4.1,.3, disclosute of Material designated
confidential or highly confidential may be made only in the following

as

cfucumstances:

4.2,1, Unless otherwise prohibited by this Ptotective Ordet, confidential
Matetial may be disclosed to named patties to this litigation, to their
counsel, and to the employees and agents of counsel who have working
tesponsibilities in connection with this litigation. Any employee or
to whom a disclosure is made putsuant to the preceding sentence
^gent
shall be advised of, and shall agtee to be bound by, the ptovisions of
this Otdet tequiting that the Materials be held in confidence.

4.2.2 Confidential

Matedal may be disclosed to: a) ptesent or fotmer
officers, ditectots, partners, employees of a paty to this litigation; b)
agents of a party to this litigation who have working responsibilities in
connection with this litigation; and c) to a deponent or ttial witness if it
appears that the witness authoted ot teceived copy of it. Any ptesent
or
ot formet officet, ditectot, partner, employee, ^ agent to whom a
disclosure is made pursuant to the preceding sentence shall be advised

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of the provisions of this Ordet. ConfidentialMaterial also may be
disclosed to non-patty experts, putsuant to Section 4.2.5, to court
reporters and copy services, püsuant to Section 4.2.4, and to the
Coutt, pursuant to Section 4.1,.3.
material may be disclosed only to: a) counsel for
the parties; b) to the employees and agents of counsel who have
working responsibilities in connection with this litigation; and c) to a
deponent or trial witness if it appears that the witness authoted or
teceived a copy of it. Any employee or agent to whom a disclosute is
made pursuant to the pteceding sentence shall be advised of the
ptovisions of this Otder requiring that the Matedals be held in
confìdence. Highly confidentialMaterial also may be disclosed to nonparty experts, pursuant to Section 4.2.5, to court reporters and copy
services, pursuant to Section 4.2.4, and to the Coutt, pursuant to
Section 4.1,.3. Absent an Otder of the Court or the agreement of the
Disclosing ParLy,materials designated as highly confidential shall not
be disclosed to any other person or entity, including the parties
themselves.

4.2.3 Highly confidential

4.2.4 Confidential and highly confidential Matedal may be disclosed to coutt
repoÍters engaged fot depositions, and to those persons, if any,
specifically engaged for the ümited purpose of ptoviding litigation
support (e.g., mal<tne copies of Materials). Ptiot to disclosute to any
such petsons, such persons must ftst be infotmed of, and agree to be
bound by, the terms of this Otder.

4.2.5 Confidential and highly confidentialMaterial

may be disclosed to nonpatty consultants, investigatots, and experts (along with any person
assisting them) (collectively, "expetts") who ate employed by counsel
for the parties for the sole purpose of assisting in the prepatatton and
ttial of the lawsuit, provided that such experts ate ftst advised of, and
agree in writing to be bound by, the provisions of this Otder. Expetts
shall be ptovided with a copy of the Order and sign the Third Party
,Acknowledgement attached hereto as Exhibit A. Counsel of record
shall keep copies of all signed Exhibit A acknowledgments for all Third
parties to whom confidential and highly confidential Material is
othet telief ptovided in this Otder or
disclosed. In addition to
^ny
law, if an expert is shown to have violated the terms of this
available by
Order at any time, he or she may be subject to being held in contempt
by this Coutt.

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Experts are ptohibited from using any Material ptoduced in this
litigation for any othet putpose than assisting in the pteparation and
tnal of the lawsuit. Experts may not use Material or any compilation ot
reports made from reviewing Material to support activitjes not related
to the lawsuit, including but not limited to scholarship, articles, and fot
promotional putposes.

4.2.6

4,3

Disclosure of confidential and highly confidentialMaterial shall not be
made in open court, except as follows: If a patty intends to disclose
confìdential ot highly confidential Matetial, and has not otherwise
provided notice to the othet parties of this intention in a wtiting filed
with the Coutt and served on all patties, then the p^rq intending to
disclose the confidential or highly confidentialMaterial shall provide
reasonable notice of this intention to the other patties to this litìgation
prior to disclosure at tÀal or altearine. Pdor to disclosure at tÅal ot
^
headng of materials or information designated confidential or highly
confidential, the patties may seek futther ptotections against public
disclosure from the Coutt.

Unauthodzed Disclosutes

4.3.1, If. aParty learns that, by inadvertence of othefir¡ise, it has disclosed
person ot in any
confidential or highly confidentialMaterial to
^ny Ptotective Ordet,
circumstance not atthortzed under this Stipulated
the Receiving Patty must immediately (a) notif in writing the
DesignatingParty of the :unà'othorized disclosures, þ) use its best
effots to retrieve all unauthotized copies of the confidential ot Highly
Confidential Matedal, (c) infotm the petson or persons to whom
un vthorized disclosutes were made of all the terms of this Ordet, and
(d) request such petson or persons to execute the "Acknowledgment
and Agteement to Be Bound" that is attached heteto as Exhibit A.
should violate the terms of this
Protective Otder, the aggtieved Disclosing should apply to the Coutt
to obtain telief against any such person or patLy violating or
threatening to violate any of the tetms of this Protective Order.

4.3.2 In the event that any person or p^fty

5.

THIRD PARTIES

5.1 If any person ot entity who is not a p^rty to this litigation (a "third patry")
patLy
receives a subpoena or request fot the production of Material ftom
^ny
in connection with this litigation, and the Material so subpoenaed or requested

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ot highly confidential, as defìned by Sectìon 1..3, and (2) is
not excluded from the scope of this Otdet by Section 2.3, the thitd patty may
execute a copy of this Ordet by executing the Third-Party Endotsement of
,{.geed Confidentiality Ordet (the "Third-Pafty Endotsement") that appeafs
as Exhibit A heteto, and thereafter make any appfopriate designations
pursuant to Section 3 of this Ordet. By executing the Thitd-Party
Endorsement, the third party agrees to comply with the terms and conditions
of this Otdet, and submits to the judsdiction of the Court fot purposes of
enforcing this Otdet. If the third patty executes the Third-Parry
Endotsement, he, she, ot it shall pfomptly serve the executed Endorsement
on all parties to the litigation.
(1) is confidential

5.2

If

any party issues a subpoena for documents

ot information to any third patty
in connection with this litigation, the patty issuing the subpoena shall serve â
copy of this Otdet on the third party, togethet with the subpoena, in ordet to
allow the third pafty to execute the Third-Parq Endorsement (if the third
pafty so chooses) and theteafter avail him-, het-, ot itself of the protections
ptovided by the Otder. Furthermote, any parq that has issued a subpoena to
any third p^rry in connection with this litigation ptiot to enttT of this Otder
shall serve, within 1,4 days aftet entry of this Order, a copy of this Otder on all
third parties on which the patty served a subpoena, in order to allow such
third panies to execute the Thitd-Party Endotsement, if they so choose.

5.3

If

any

third paty demands by subpoen or othet compulsory process the
production of confidential ot highly confidentialMaterial from a Receiving
Parq, the Receiving Party served with the third-patty subpoena ot compulsory
pfocess shall immediately noti$' the DesignaingPatty that designated the
subject Material confidential ot highly confidential of the subpoena or
compulsory process. This notice shall be both written þy facsimile and mail)
and otal þy telephone). In no event shall ptoduction ot disclosure of the
confidential or highly confidentialMaterial be made, unless required by law.
The purpose of this p^tagtaiph is to provide the Designating Patty the
opportunity to seek to intervene, at its own expense, to object to the
production of confidential ot highly confidentialMaterial pursuant to any such
subpoena or compulsory process.

5.4

In the event any additional person or entity joins ot is joined in the litigation
p^rty, that party shall not have access to Material designated as
^s ^
confidential or highly confidential unless the newly-joined P^rV, through its
counsel, ftst executes and files with the Court its agteement to be bound by
the tetms of this agreed Ordet.
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6.

OTHER PROVISIONS
6.1

designates Material it has created as confidential or
highly confidential may continue to use that Materizl in any way consistent

A Disclosing Pafty that

with the terms of this Ordet, including in the otdinary course of business,
provided that the contents of Material so designated do not become public
a tesult of such use.

as

6.2

If Matedal that is requested in discovery is subject to a claim of attorney-client
ptivilege, attorney work ptoduct, or any other gtound on which production of
such materiai ot infotmation should not be made to any p^tq (collectively,
"ptivilege"), and such pdvileged Matedal is inadvertently produced in the
course of the litigation, such ptoduction shall in no way ptejudice or otherwise
constitute a waiver of, ot estoppel as to, the claimed privilege. If a claim of
inadvertent ptoduction is made with tespect to Matedal then in the custody of
a ReceivingPar͡, the Receiving Patty shall promptly tetutn to the Disclosing
Pafty the Material as to which the claim of inadvertent ptoduction has been
made, and the Receiving Patty shall not use the Material for any putpose until
funher order of the Court. The Receiving Party in such a situation may Ftle a
motion disputing the claim of privilege, and seeking an otder compelling
ptoduction of the Material at issue; the Disclosing Patty may oppose any such
motion, including on the gtounds that inadvertent disclosure does not waive
any privilege.

6.3

This Order shall not prevent any p^rLy from applying to the Coutt for furthet
or additional protective otdets, ot fiom agteeing wrth the other parties to
modi$r this Otder, subject to the apptoval of the Coutt.

6.4

This Order shall not pteclude any pxq from enfotcing its tights against any
other part!, or àny non-party, believed to be violating its rights undet this
Otdet.

(r.5

In addition to such other remedies as may be available at law ot in equity,
violation of the terms of this Order may constitute a contempt of this Coutt,
which may tesult in the imposition of sanctions, including, inter alia, an award
of damages, costs, attorneys' fees, fines, and any othet appropriate relief.

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SO ORDERED. This, the 9È day of July,201'5

L
Stnter !'f4gi$ffi¡eJ"fu*

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EXHIBIT A

IN THE, UNITED STATES DISTRICT COURT
F'OR THE MIDDLE, DISTRICT OF NORTH CAROLINA

STUDENTS FOR FAIR ADMISSIONS,
INC.,
Plaintiffs,

v
THE UNIVERSITY OF' NORTH
CAROLIN,A. ÂT CHAPEL HILL, et al.,
Defendants.

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1,:14-CY-954

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THIRD-PARTY ENDORSEMENT OF AGREED CONFIDENTIALITY ORDER

1.

Third-patty

and conditions of the Agreed Confidentiality and Ptotective Order (the "Order"), as entered

by the Court, and (ü) consents to the jurisdiction of the Court fot purposes of enfotcing the
terms of the Otder.

2.

By executing this Third-Party Endotsement, the thitd-party agrees to abide by

the terms and conditions of the Ordet.

3.
set

The terms used in this Third-Patty Endorsement have the same meanings

fonh in the Ordet.

Name:
Street Addtess:

City,State,ZIP:
Telephone:
Facsimile:

Counsel fot Third P^rÍI:
Dated:
Signatute

as