Albanesi v. North American Company for Life and Health Insurance

Filing 11

STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Dennis Howell on 5/10/18. (ejb)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
FREDERICK ALBANESI,

)
)
Plaintiff,
)
)
v.
)
)
NORTH AMERICAN COMPANY FOR )
LIFE AND HEALTH INSURANCE,
)
)
Defendant.
)
)

Case No. 1:18-cv-101

STIPULATED PROTECTIVE ORDER
IT IS HEREBY STIPULATED AND AGREED by and between the parties
through their respective counsel, subject to the approval of the Court, that pursuant to the
Federal Rules of Civil Procedure, the following Protective Order be entered.
IT IS HEREBY ORDERED THAT:
1.

This Protective Order shall apply to all information, documents, and things

subject to discovery in this action which are conveyed by any party or third party witness
(hereinafter termed “conveying party”) to another party (hereinafter termed “receiving
party”) in this action, including, without limitation, all portions of transcripts of deposition
testimony, exhibits, answers to interrogatories or requests for admission, documents, or
things, including any excerpt, index, description, copy, summary or abstract thereof
(referred to as “DISCOVERY MATERIALS”). “CONFIDENTIAL MATERIALS” are
any DISCOVERY MATERIALS of the conveying party: (a) containing trade secrets,
competitively sensitive technical, marketing, financial, sales, or other confidential business

information; or (b) containing private or confidential personal information; or (c)
containing information received in confidence from third parties; or (d) which the
producing party otherwise believes in good faith to be entitled to protection under Rule
26(c)(1)(G) of the Federal Rules of Civil Procedure. It is expressly contemplated and
agreed that third party witnesses may invoke all provisions of this Protective Order which
are available to a conveying party, and that the parties will treat all CONFIDENTIAL
MATERIALS of a third party witness, which information is designated in writing by the
conveying party as such, in accordance with the terms of this Protective Order.
2.

Subject to the terms set forth below, all information produced by the

conveying party shall be used by the parties receiving the information solely for the
purposes of preparing for and conducting this action, and the information shall not be used
for any other purpose, subject to any subsequent modification or further order by the Court.
3.

Each party or third person conveying DISCOVERY MATERIALS shall

mark documents and things produced by it and answers to interrogatories and responses to
other discovery demands deemed to be CONFIDENTIAL MATERIALS with an
appropriate description such as: “CONFIDENTIAL – SUBJECT TO COURT
ORDER”.
4.

Making documents and things available for inspection shall not constitute a

waiver by the conveying party of any claim of confidentiality, attorney-client privilege,
work-product immunity, or any other right.
5.

If questions put to a witness in a pretrial deposition will disclose information

constituting CONFIDENTIAL MATERIALS, or the answer to any question requires such
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disclosure, or if documents to be used as exhibits during the deposition constitute such
materials, then counsel may notify the witness that such documents or material are
CONFIDENTIAL MATERIALS subject to this Protective Order, and that the witness is
bound by the terms of this Protective Order. Further, if a person other than the witness is
present at the deposition who would not otherwise be entitled to review the
CONFIDENTIAL MATERIALS, that person must leave the deposition during that portion
of the testimony upon request of any of the parties, and such request must be honored
absent an order from the Court to the contrary. If a party believes there is just cause under
applicable law for prohibiting the witness from reviewing the CONFIDENTIAL
MATERIALS, such objection must be asserted during the deposition, and either resolved
by the parties consensually, or by seeking assistance telephonically from the Court. If the
Court is not available to resolve any such objections, the witness shall not be shown the
subject materials, unless and until the Court resolves the dispute. In the event such
objection is not sustained by the Court, the party asserting such objection shall be held
responsible for the additional attorneys’ fees and expenses of the other parties incurred as
a result of requiring a resumption of the deposition at a later date. The foregoing procedures
and provisions likewise shall apply to objections to the exclusion from the deposition of
persons other than the witness. To the extent deposition transcripts and documents reflect
or contain CONFIDENTIAL MATERIALS, such shall be available only to the persons
entitled to access to CONFIDENTIAL MATERIALS under this Protective Order, to the
reporter, to the witness, and to representatives of the conveying party. Testimony and
documents may be designated as CONFIDENTIAL MATERIALS not only during the
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deposition itself, but also upon written designation served upon all the parties within 30
days of the date that the court reporter makes the transcript available to the parties. The
entirety of a deposition and its exhibits shall be treated as CONFIDENTIAL MATERIALS
for five business days after the testimony has been given, in order to provide a party the
opportunity to designate testimony or documents as confidential on an accelerated basis.
6.

The parties recognize that in order to assist in the preparation of their case,

the receiving party may desire to use the service of potential testifying experts and/or
consultants, whose advice and consultation are being or will be used by such party in
connection with the conduct of this litigation. Counsel desiring to disclose
CONFIDENTIAL MATERIALS to such experts or consultants shall first obtain a signed
undertaking of each such expert or consultant who may require access to CONFIDENTIAL
MATERIALS, in the form of Exhibit A attached to this Protective Order (the “Expert
Confidentiality Pledge”). CONFIDENTIAL MATERIALS may be shown to an expert or
consultant after such expert or consultant signs the Expert Confidentiality Pledge. Any and
all signed Expert Confidentiality Pledges shall be maintained by counsel, but need not be
produced to opposing counsel absent an order of Court. This provision is designed to permit
counsel to use the services of experts and consultants without revealing the identity of those
experts or consultants to opposing counsel.
7.

CONFIDENTIAL MATERIALS may be disclosed only to the following

individuals under the following conditions:
(a)

Counsel of record in this action and in-house counsel and staff for any
corporate party;

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(b)

(c)

Secretarial, paralegal, clerical, duplicating and data processing
personnel of the foregoing persons and entities described in ¶ 7(a) or
(b):

(d)

The Court and court personnel;

(e)

Any person who was or is employed by the party who produced the
information, document, or thing, or any other person for whom the
producing party consents to such disclosure;

(f)

Vendors retained by or for the parties to assist in preparing for pretrial
discovery, trial, and/or hearings including, but not limited to, court
reporters, litigation support personnel, jury consultants, individuals to
prepare demonstrative and audiovisual aids for use in the courtroom
or in depositions or mock jury sessions, as well as their staff,
stenographic, and clerical employees whose duties and
responsibilities require access to such materials; and

(g)

8.

Outside experts or consultants retained by outside counsel for
purposes of this action, subject to the provisions of ¶ 6 of this
Protective Order;

The parties. In the case of parties that are corporations or other
business entities, “party” shall mean employees who are called upon
to participate in discussions or decisions concerning this lawsuit or the
issues raised in this lawsuit, or who may be called upon to provide
advice, analysis, or testimony about the subject matter of the material,
including in-house legal personnel and their staff.

CONFIDENTIAL MATERIALS or copies of such bearing the identification

specified in paragraph 3 shall not be made public by counsel or persons entitled access to
CONFIDENTIAL MATERIALS under this Protective Order, unless they become a part of
the public record of this action other than through conduct in breach of this Protective
Order, and shall not be disclosed to anyone other than the Judge, jury, and court staff
involved in this litigation, witnesses at trial or deposition, and the persons entitled to access
CONFIDENTIAL MATERIALS under this Protective Order. To the extent that it is

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necessary to file CONFIDENTIAL MATERIALS with the Court in connection with
proceedings in this action, the filing party will follow the Federal Rules of Civil Procedure.
9.

CONFIDENTIAL MATERIALS may be used in motion papers, at any

motion hearing, in testimony at trial, and may be offered in evidence at trial or at any
motion hearing, all subject to ¶ 8 of this Protective Order, and subject to any further order
regarding confidentiality as this Court may enter, and may be used to prepare for discovery,
to conduct discovery, to prepare for trial, and to support or oppose any motion, all subject
to the provisions of this Protective Order. CONFIDENTIAL MATERIALS may also be
used at depositions and may be disclosed to a witness who is not a person otherwise entitled
to access to CONFIDENTIAL MATERIALS under this Protective Order.
10.

The acceptance by a party of materials designated as CONFIDENTIAL

MATERIALS shall not constitute an admission or concession or permit an inference that
such materials are, in fact, confidential and subject to protections under applicable law.
This Protective Order shall not foreclose any of the parties or other persons with standing
from moving this Court for an order declaring that materials designated as
CONFIDENTIAL MATERIALS are not, in fact, entitled to the protection of this Protective
Order. On such motion, the party asserting confidentiality shall have the burden of proving
that the material in question is within the scope of protection afforded by the Federal Rules
of Civil Procedure and applicable law governing whether, how, and to what extent
documents, testimony, and other material are entitled to confidentiality protections.
11.

This Protective Order shall not prevent any of the parties or any third party

from applying in the Court for relief or a modification of this Protective Order, or from
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applying to the Court for further or additional protective orders, or from agreeing between
themselves in writing, to modification of this Protective Order. This Protective Order shall
not preclude the parties from enforcing their rights against any other party or any third
party believed to be violating their rights.
12.

In the event that the parties desire to provide access to or disseminate

CONFIDENTIAL MATERIALS to any person not otherwise entitled to access under this
Protective Order, they may move the Court for an order providing for such access, upon
terms to be set by the Court.
13.

Nothing in this Protective Order shall require disclosure of material which

the conveying party contends is protected from disclosure by the attorney-client privilege
or the work-product doctrine or of material the disclosure of which might constitute a
breach of an agreement with a third party. This Protective Order shall not preclude any
party from moving the Court for an order directing the disclosure of such material.
14.

Restrictions and obligations set forth in this Protective Order relating to

CONFIDENTIAL MATERIALS and to DISCOVERY MATERIALS shall not apply to
any information which: (i) is already public knowledge; (ii) has become public knowledge
other than as a result of disclosure by the receiving party or as a result of a violation of this
Protective Order; (iii) was already known to the receiving party under conditions such that
its use and/or public disclosure by receiving party would not violate some obligation to
another; or (iv) has come or shall come into the receiving party’s legitimate possession
independently of the producing party under conditions such that its use and/or public
disclosure by the receiving party would not violate some obligation to another. Such
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restrictions and obligations shall not be deemed to prohibit discussions with any person of
CONFIDENTIAL MATERIALS if said person already has or obtains legitimate
possession of such materials which would independently prohibit such discussion.
15.

Pursuant to Section II(F) of this Court’s standard Pretrial Order and Case

Management Plan, the ultimate disposition of CONFIDENTIAL MATERIALS will be
subject to a final order of the Court, upon completion of this litigation.
Within 60 days of the final termination of this action, each
receiving party shall either return all CONFIDENTIAL
MATERIALS of the conveying party in its or their possession,
custody or control, and copies thereof to counsel for the
conveying party, or shall otherwise delete and/or destroy such
CONFIDENTIAL MATERIALS, and shall request the
deletion and/or destruction of such materials by any
consultants or experts who were provided such materials by a
party. Notwithstanding the foregoing, outside counsel for the
parties to this action may retain CONFIDENTIAL
MATERIALS as called for by the then-current records
retention procedures of outside counsel’s law firm. In such
event, outside counsel’s continued retention of such materials
shall not be imputed to the client, and such material shall not
be deemed to be property of the client, shall not be made
available to the client, and shall not be deemed to be within the
possession or control of the client.
Any conveying party shall have the right to request, no sooner
than 60 days and no later than 75 days of the final termination
of this action, written certification of compliance with this
Protective Order by any receiving party. Such written
certification shall be provided within ten business days of the
receipt of such a written request.
16.

This Protective Order shall survive the final termination of this action, except

to the extent that the information in such CONFIDENTIAL MATERIALS is or becomes
known to the public through no fault of the receiving party.

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IT IS SO ORDERED.
Signed: May 10, 2018

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