Pickens v. Lewis et al
Filing
18
CONSENT PROTECTIVE ORDER. Signed by Chief Judge Frank D. Whitney on 8/22/16. (Pro se litigant served by US Mail.) (ejb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:15-cv-275-FDW
BRANDON MICHAEL PICKENS,
)
)
Plaintiff,
)
)
vs.
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)
FRANK PERRY, et al.,
)
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Defendants.
)
___________________________________ )
CONSENT ORDER
Upon a Motion for Protective Order filed by Defendants J. Rickman and Donna L.
Woodruff, (Doc. No. 15), the motion is hereby GRANTED, according to the following terms:
Certain confidential documents, material, and information (hereinafter, “Confidential
Information”) in the possession, custody or control of the North Carolina Department of Public
Safety, Division of Adult Correction (hereinafter, “the DAC”) is necessary for Defendants Donna
Woodruff and Jeffrey Rickman, to obtain in order to answer or otherwise respond to the Amended
Complaint filed by Plaintiff and to otherwise defend against Plaintiff’s allegations in the above
named suit and it may be necessary that additional Confidential Information will need to be
disclosed during the course of this litigation. It is anticipated that some portion of the Confidential
Information relates to Plaintiff, an inmate currently in the custody of the DAC, or relates to current
or former employees, contract employees or independent contractors of the DAC. The Confidential
Information is expected to include inmate records deemed confidential pursuant to N.C.G.S. §§
148-74 and -76. In addition, the information may also be confidential under 42 CFR 2.1 et seq.,
N.C.G.S. § 122C-42, and HIPAA.
In light of the confidentiality of this material, and in an effort to protect that confidentiality,
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the DAC requires the entry of a Consent Order to order the release of the Confidential Information
and to ensure that the Confidential Information is not disclosed or used for any purpose except in
connection with this litigation. In the interests of justice and to further the legitimate causes of this
litigation, the DAC agrees to disclose the Confidential Information in its custody and possession
to Carruthers & Roth, P.A. (“Carruthers & Roth”), Counsel for the Defendants Woodruff and
Rickman, subject to the conditions set forth herein and adopted by the Court. Accordingly, upon
the agreement of counsel, it is hereby ORDERED that:
1.
Scope of the Order. This Order requires DAC to disclose Confidential
Information, as defined and designated in accordance with this Order, to Counsel for
Defendants Woodruff and Rickman. This Order governs the handling and disclosure of all
documents, materials and information identified, produced, given, exchanged, obtained,
or filed herein and which are designated by DAC as “confidential information.”
2.
Agreement on Use of Confidential Information. All Confidential Information,
as defined and designated in accordance with this Order, shall be used solely in the
prosecution or defense of this action including, but not limited to, mediation, other
alternative dispute resolution processes, any other settlement process, and all other pretrial, trial and post-trial proceedings in this action and shall not be used or disclosed by
any person for any other purpose.
3.
“Disclosure.” When used in this Order, the term “Disclosure” shall mean to
provide, impart, transmit, transfer, convey, publish, or otherwise make available.
4.
“Confidential Information.” For the purposes of this Order and during the course
of this litigation, the parties to this Order identify “General Confidential Information” and
define it as follows:
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a.
“General Confidential Information” means:
(1)
Inmate records of Plaintiff Brandon Michael Pickens including, but
not limited to, grievances, use-of-force reports, incident reports,
external and internal movement records, disciplinary reports, and
infraction reports;
(2)
The medical records, including dental records, maintained by the
DAC pertaining to Plaintiff Brandon Michael Pickens; and
(3)
Other documents, materials, or information which are potentially
embarrassing or invasive of the privacy of a person not a party to
this litigation and therefore an appropriate subject of a Consent
Order.
5.
Disclosure of Confidential Information. General Confidential Information shall
not be disclosed to anyone except:
a.
The court and its personnel;
b.
The parties to this action as required by law and pursuant to the terms of
this Order;
c.
Carruthers & Roth, Counsel for Defendants Woodruff and Rickman in this
action, and employees and/or vendors of Carruthers & Roth;
d.
Experts or consultants specifically retained by the parties or their attorneys
to assist them in the preparation of this case or to serve as expert witnesses
at the trial of this action, but only after execution of a Confidentiality
Agreement as provided in Paragraph 6;
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e.
Court reporters or videographers engaged to record depositions, hearings
or the trial of this action;
f.
Members of the Inmate Grievance Resolution Board;
g.
Witnesses at any deposition in this matter as well as witnesses or jurors at
the trial of this matter; and
h.
6.
The Defendants’ insurer, if any.
Confidentiality Agreements. Before Confidential Information is disclosed to any
vendors of Carruthers & Roth as well as any person described in Paragraphs 5(d) and 5(h)
of this Order, Carruthers & Roth, Counsel for Defendants Woodruff and Rickman, shall
inform the person to whom the disclosure is to be made that Confidential Information shall
be used only for the purpose of the prosecution or defense of this action, and shall obtain
from the person to whom the disclosure is to be made a signed confidentiality agreement
in the form attached as Exhibit A. Carruthers & Roth, Counsel for Defendants Woodruff
and Rickman, shall maintain the original Confidentiality Agreement and need not produce
it except by agreement of the DAC and Carruthers & Roth, Counsel for Defendants
Woodruff and Rickman, or upon order of the court.
7.
Designation of Confidential Information. Information shall be designated as
Confidential Information in the following manner:
a.
In the case of information reduced to paper form, the designation shall be
made (1) by placing the appropriate legend, “CONFIDENTIAL - SUBJECT
TO CONSENT ORDER” for General Confidential Information on each
page containing such information or (2) by such other means as agreed to by
the DAC and Counsel for Defendants Woodruff and Rickman. Counsel for
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the DAC shall designate the documents as confidential at or before the time
of the disclosure.
b.
Information on a computer disk, data tape, or other medium that has not been
reduced to paper form shall be designated as General Confidential
Information (1) by informing counsel for the receiving party in writing that
the computer disk, data tape, or other medium contains such Confidential
Information and, where applicable, specifying by Bates or other page
number the particular information being designated or (2) by such other
means as agreed to by the parties to this Consent Order. To the extent
practicable, such physical medium shall be labeled using the appropriate
legend. Any party receiving Confidential Information designated under this
Paragraph shall then be responsible for appropriately labeling any printed
version(s) of such information that it creates.
c.
Any other information that is not reduced to physical form or cannot be
conveniently labeled shall be designated as Confidential Information by
serving a written notification of such designation on Carruthers & Roth,
Counsel for Defendants Woodruff and Rickman. The notice shall, where
applicable, specify by Bates or other page number the particular
information being designated.
8.
Disputes over Designations. If Carruthers & Roth, Counsel for Defendants
Woodruff and Rickman, objects to the designation of any information as confidential,
Carruthers & Roth, Counsel for Defendants Woodruff and Rickman, and Counsel for the
DAC shall attempt to resolve the disagreement on an informal basis. If the objection is not
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so resolved, the objecting counsel may move the court for appropriate relief. The
information in question shall continue to be treated as confidential in accordance with the
disputed designation unless and until the court issues a final ruling that the information
does not qualify for such a designation. The non-filing by the objecting party of a motion
for relief shall not be deemed an admission that the information qualifies for the disputed
designation.
9.
Inadvertent Disclosure of Confidential Information. Inadvertent disclosure of
Confidential Information, without identifying the same as confidential, shall not be
deemed a waiver of confidentiality with regard to the information inadvertently disclosed
if promptly called to the attention of counsel for the receiving party.
10.
Filing of Confidential Information Under Seal. At the time that confidential
information is produced to Carruthers & Roth, Counsel for Defendants Woodruff and
Rickman, counsel for the DAC will indicate, in writing, if any of the confidential
information being produced is of the type that should be filed with the Court as a proposed
sealed document. If such indication is given, Carruthers & Roth, Counsel for Defendants
Woodruff and Rickman, shall file the document as a proposed sealed document along with
a motion to seal and supporting memorandum indicating the basis under which the DAC
determined that the document should be filed under seal. If Counsel for the DAC determines
that the document should be filed as a proposed sealed document, Counsel for the DAC
agrees that the determination as set forth in this paragraph will be narrow in scope and any
such determination will be consistent with the manner in which the attorneys in the Public
Safety Section of the North Carolina Department of Justice file the same or similar
documents in 42 USC § 1983 cases involving the medical care of inmates. If no such
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indication is given by Counsel for the DAC, Carruthers & Roth, Counsel for Defendants
Woodruff and Rickman, may file the confidential information with the Court without the
need to file such confidential information as a proposed sealed document. Each time a party
seeks to file under seal confidential documents, things, and/or information, said party shall
accompany the request with a motion to seal and supporting memorandum of law specifying:
a.
The exact documents, things, and/or information, or portions thereof, for
which filing under seal is requested;
b.
Where it is necessary for the court to determine the source of the public’s
right to access before a request to seal may be evaluated, whether any such
request to seal seeks to overcome the common law or the First
Amendment presumption to access;
c.
The specific qualities of the material at issue which justify sealing such
material, taking into account the balance of competing interests in access;
d.
The reasons why alternatives to sealing are inadequate; and
e.
Whether there is consent to the motion.
Finally, in addition to the motion and supporting memorandum, said party must set out
such findings in a proposed order to seal for the court. Before ruling on any motion to seal,
the court will give public notice of the motion and a reasonable opportunity to challenge
it. While individual notice is unwarranted, the court will docket the motion reasonably in
advance of deciding the issue, or, where applicable, the court will notify persons present
in courtroom proceedings of the motion. The court will rule favorably upon any motion to
seal only after carefully weighing the interest advanced by the movant and those interests
favoring public access to judicial documents and records, and only upon finding that the
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interests advanced by the movant override any constitutional or common law right of
public access which may attach to the documents, things, and/or information at issue.
11.
Authors/Recipients. Except as specifically provided herein, this Order shall not
limit use by a party of its own Confidential Information, nor shall this Order limit the
ability of a party to disclose any document to its author or to anyone identified on the face
of the document as a recipient.
12.
Return of Confidential Information. Following the conclusion of this action,
including any appeals, Carruthers & Roth, Counsel for Defendants Woodruff and Rickman,
shall request that any Confidential Information provided to any vendors of Carruthers & Roth
as well as any person described in Paragraphs 5(d) and 5(h) of this Order either be returned
or shredded. Carruthers & Roth, Counsel for Defendants Woodruff and Rickman, shall
destroy any Confidential Information provided by the DAC in accordance with the Rules of
Professional Conduct of the North Carolina State Bar and/or any professional liability policy
requirements which provide coverage for the services of Carruthers & Roth and/or Counsel
for Defendants Woodruff and Rickman. If any vendor of Carruthers & Roth, any person
identified in Paragraphs 5(d) and 5(h) of this Order, or Carruthers & Roth itself elects to
destroy the Confidential Information rather than return it to Counsel for the DAC, Carruthers
& Roth, Counsel for Defendants Woodruff and Rickman shall provide to counsel for the
DAC a signed certification that the Confidential Information has been destroyed or will be
destroyed in accordance with the file retention policy of Carruthers & Roth. Any
Confidential Information, or portions or excerpts thereof, which are not returned or
destroyed pursuant to this paragraph shall remain subject to the terms of this Order. The
return of trial exhibits by the Court shall be governed by Local Civil Rule 79.1, E.D.N.C.
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13.
Admissibility of Information. Neither the terms of this Order nor the disclosure or
designation as confidential of any information pursuant to it shall be deemed to establish or
vitiate the admissibility under the Federal Rules of Evidence of any information subject to
this Order.
14.
Modification. This Order is without prejudice of the right of the DAC and/or
Carruthers & Roth, Counsel for Defendants Woodruff and Rickman, to seek modification
or amendment of the Order by motion to the court, or to seek and obtain additional protection
with respect to Confidential Information as such party may consider appropriate.
BASED UPON the foregoing, it is therefore FURTHER ORDERED that Carruthers &
Roth, Counsel for Defendants Woodruff and Rickman, will observe the requirements of this Order
as to Confidential Information produced by the DAC as required by this Order.
WE CONSENT:
ROY COOPER
Attorney General
/s/ Joseph Finarelli
Joseph Finarelli
Special Deputy Attorney General
N.C. Bar No. 26712
Telephone: (919) 716-6531
E-mail: jfinarelli@ncdoj.gov
Attorney for DAC
CARRUTHERS & ROTH, P.A.
/s/ Kenneth L. Jones
Kenneth L. Jones
N.C. Bar No. 13002
Telephone: (336) 478-1128
E-mail: klj@crlaw.com
Attorneys for Defendants Woodruff and Rickman
.
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