McClellan v. Cothron et al

Filing 68

PROTECTIVE ORDER granting the 66 Consent Motion for Entry of Protective Order. Signed by Chief Judge Martin Reidinger on 7/29/2022. (Pro se litigant served by US Mail.)(kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:20-cv-00189-MR
IAIAN EVANS MCCLELLAN,

)
)
Plaintiff,
)
)
vs.
)
)
)
TODD SCHETTER, et al.,
)
)
Defendants.
)
___________________________ )

PROTECTIVE ORDER

THIS MATTER is before the Court on a Consent Motion for Entry of
Protective Order. [Doc. 66].
Defendants request the Court to enter a protective order authorizing
and governing the production of confidential documents, material, and
information (“Confidential Information”). [Doc. 66]. Defendants relate that,
“[d]uring the course of this litigation, Defendants have obtained and will
continue to obtain and disclose to Plaintiff or the Court, information in the
possession custody, or control of the North Carolina Department of Public
Safety (“the NCDPS”) that is Confidential Information by operation of federal
and state law.” [Id. at 1].
On review of Defendants’ motion, the Court finds that such information
may be deemed confidential under federal and state law, including but not

limited to inmate records deemed confidential pursuant to N.C.G.S. §§ 14874 and -76; other non-public information deemed confidential by N.C.G.S.
132-1.7; and information that is confidential under 42 CFR 2.1, et seq.,
N.C.G.S. § 122C-52, and the federal Health Insurance Portability and
Accountability Act.
Due to the confidential nature of much of the information that will be
produced in this matter, a protective order is necessary to authorize the
release of such confidential information and to ensure that such confidential
information is not disclosed or used for any purpose except in connection
with this litigation. Counsel for Plaintiff, appearing for the limited purpose of
conducting discovery in this matter, consents to the entry of a protective
order.

[Id. at 2; see Docs. 53, 55].

The Court will, therefore, grant

Defendants’ request for a protective order.
The Motion [Doc. 66] is hereby GRANTED, and the Court enters the
following order.
IT IS HEREBY ORDERED THAT:
1. Scope of the Order. This Order applies to all information produced
by Defendant in response to Plaintiff’s discovery requests and thereafter in
the course of the prosecution or defense of this action, provided that the

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presiding judicial officer shall determine the procedure for presentation of
Confidential Information at pre-trial hearings and trial.
2. Use of Confidential Information. All Confidential Information, as
defined in 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. “Disclose” or “disclosure” means to provide, impart,
transmit, transfer, convey, publish, or otherwise make available.
4.

Confidential Information. “Confidential Information” consists of

“General Confidential Information” and “Attorneys’ Eyes Only Confidential
Information,” which are defined as follows:
a. “General Confidential Information” means:
1)

Any personnel files, as that term is defined in N.C.G.S. §
126-22(3), maintained by DPS, excluding personal
information as described in Paragraph 4(b)(1).

2)

The medical and mental health records generated in the
treatment or handling of Plaintiff during his incarceration

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within DPS which are deemed confidential by N.C.G.S. §§
148-74 and -76.
3)

Records generated in the housing and handling of the
named Plaintiff during his incarceration within the DPS,
including video recordings, which are deemed confidential
by N.C.G.S. §§ 148-74 and -76.

4)

Other information that is potentially embarrassing or
invasive of the privacy of a person not a party to this
litigation and therefore an appropriate subject of a
protective order under Rule 26(c)(1) of the Rules of Civil
Procedure.

5)

Reports of, investigations into, and any findings regarding
alleged incidents of sexual misconduct or use of force by
Defendant against Plaintiff.

b. “Attorneys’ Eyes Only Confidential Information” means:
1)

Personal information about current or former employees of
DPS that is not related to the employee’s job performance
or duties, such as social security numbers, home
addresses and telephone numbers, insurance records or

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designations, medical and/or disability information, and
other purely private information.
2)

The medical records of Defendant.

3)

The personal financial records, telephone records, and email records of Defendant.

4)

Reports of, investigations into, and any findings regarding
alleged incidents of sexual misconduct or use of force by
current or former employees of DPS, other than Defendant,
against Plaintiff.

5)

Reports of, investigations into, and any findings regarding
alleged incidents of sexual misconduct or use of force by
Defendant against current or former inmates in the custody
of DPS, other than Plaintiff.

6)

The medical and mental health records generated in the
treatment or handling of current or former inmates, other
than Plaintiff, during their incarceration within DPS which
are deemed confidential by N.C.G.S. §§ 122C-52, 148-74,
and -76.

7)

Records generated in the housing and handling of current
or former inmates, other than Plaintiff, during their
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incarceration within the DPS, including video recordings,
which are deemed confidential by N.C.G.S. §§ 148-74 and
-76. This designation is not intended to cover Plaintiff’s
records that mention other inmates, which would only be
subject to the Confidential designation.
8)

Highly sensitive security information as it relates to
investigations, security designations, staffing patterns and
logs, schematic or other drawings and diagrams, and other
sensitive

security

information

deemed

confidential

pursuant to N.C.G.S. § 132-1.7.
5.

Disclosure of General Confidential Information. General

Confidential Information shall not be disclosed to anyone except:
a.

The court and its personnel;

b.

The parties to this action;

c.

Counsel for the parties to this action and employees of said
counsel;

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

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execution of a Confidentiality Agreement as provided in
Paragraph 8; and
e.

Court reporters or videographers engaged to record depositions,
hearings, or the trial in this action.

6.

Disclosure of Attorneys’ Eyes Only Confidential Information.

Attorneys’ Eyes Only Confidential Information shall not be disclosed to
anyone except:
a.

The court and its personnel;

b.

Counsel for the parties to this action and employees of said
counsel;

c.

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 8; and

d.

Court reporters or videographers engaged to record depositions,
hearings, or the trial in this action.

7.

Withdrawal of Plaintiff’s Counsel. In the event that counsel for

Plaintiff withdraws from representation during the pendency of this litigation
and Plaintiff proceeds pro se, any Attorneys’ Eyes Only Confidential
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Information disclosed to counsel for Plaintiff may not thereafter be disclosed
to Plaintiff and shall instead be returned to defense counsel. The Court may
allow Plaintiff to view Attorneys’ Eyes Only Confidential Information only
upon a motion for good cause shown.
8.

Confidentiality Agreements.

Before Confidential Information is

disclosed to any person described in Paragraphs 5(d), 6(c), or 7 of this Order,
counsel for the party disclosing the information 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 hereto as Exhibit A. Counsel
for the party disclosing the Confidential Information to said person shall
maintain the original Confidentiality Agreement and need not produce it
except by agreement of the parties or upon order of the court.
9.

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 PROTECTIVE ORDER” for General
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Confidential

Information

or

“CONFIDENTIAL–

ATTORNEYS’ EYES ONLY” for Attorneys’ Eyes Only
Confidential Information, on each page containing such
information or;
(2)

by such other means as agreed to by the parties. The party
disclosing the information shall designate the documents
as confidential at or before the time of disclosure. A party
may make the designation with respect to information
disclosed by another party by a writing directed to the
producing party’s counsel. The producing party’s counsel
shall then be responsible for labeling the designated
information as provided herein.

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 or Attorneys’ Eyes Only
Confidential Information:
(1)

by informing counsel for the parties to this action in writing
that the computer disk, data tape, or other medium
contains such Confidential Information and, where

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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 the
extent practicable, such physical medium should also be
labeled using the appropriate legend. Any party receiving
Confidential Information designated under this Paragraph
9(b) shall then be responsible for appropriately labeling any
printed version(s) of such information that it creates.

c.

In the case of deposition testimony, any party may designate
information

disclosed

during

a

deposition

as

General

Confidential Information or Attorneys’ Eyes Only Confidential
Information by either:
(1)

identifying on the record at the deposition the information
that is to be treated as Confidential Information or;

(2)

marking the portions of the deposition transcript to be
designated as Confidential Information within 21 days after
receipt of the transcript. When the deponent and the
attending parties do not agree to waive the reading,
correcting, and signing of the transcript, all information
disclosed during a deposition shall be treated as Attorneys’
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Eyes Only Confidential Information before the expiration of
the 21-day period unless otherwise agreed by the parties
and the deponent. If any deposition testimony or any
document or information used during the course of a
deposition is designated as Confidential Information, each
page of the deposition transcript containing such
information shall be labeled with the appropriate legend
specified in Paragraph 9(a), and the first page of the
deposition transcript shall be labeled in a manner that
makes it readily apparent that the transcript contains
Confidential Information.
d.

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 counsel for the other parties. The notice shall,
where applicable, specify by Bates or other page number the
particular information being designated.

10. Disputes over Designations. If any party objects to the designation
of any information as confidential, counsel for the objecting party and counsel
for the designating party shall attempt to resolve the disagreement on an
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informal basis. If the objection is not so resolved, the objecting party 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 nonfiling by the objecting party
of a motion for relief shall not be deemed an admission that the information
in question qualifies for the disputed designation.
11. 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
similar or related information nor shall it be deemed a waiver of confidentiality
with regard to the information inadvertently disclosed if promptly called to the
attention of counsel for each receiving party.
12.

Filing of Confidential Information Under Seal. When filing a

document marked “Confidential Information” or “Attorneys’ Eyes Only”, the
filing party must comply with Local Civil Rule 6.1.
13. 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.
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14. Return of Confidential Information. Following the conclusion of
this action, including any appeals, a party that produced Confidential
Information may request in writing its return by any other party. Within 60
days after service of such a request, any party that received the Confidential
Information shall either return it to counsel for the producing party or destroy
it, at the election of the receiving party; provided that the information shall
not be destroyed if otherwise ordered by the court or a motion for relief from
this Paragraph 14 is pending. If a receiving party elects to destroy the
Confidential Information rather than returning it to the producing party,
counsel for the receiving party shall provide to the producing party by the 60day deadline a signed certification that the Confidential Information has been
destroyed. This Paragraph shall not be construed to require the return or
destruction of any regularly-maintained litigation files held by the attorneys
of record or former attorneys of record for each party as archival records or
other attorney work-product created for any party.

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.

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15. 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.
16. Confidential Employee Information. Pursuant to N.C.G.S. § 12624(4), this Order authorizes the disclosure of confidential portions of the
personnel files maintained by the DPS-DAC of current or former employees
in accordance with the terms of this Order.
17. Disposition of Protected Materials. Pursuant to the Court’s Case
Management Order, paragraph F, notwithstanding any other provisions in
this Protective Order, the ultimate disposition of protected materials are
subject to a final order of the Court on the completion of litigation.
18. Modification. This Order is without prejudice to the right of any
party or witness 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.
IT IS SO ORDERED.

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EXHIBIT A
CONFIDENTIALITY AGREEMENT
I, _______________________, have read and am familiar with the
terms of the Protective Order governing the disclosure of confidential
information in the case of McClellan v. Schetter, Case No. 1:20-cv-00189MR, United States District Court for the Western District of North Carolina,
and agree with the following:
1.

To abide by all the terms of said Order and not to reveal or

otherwise communicate any of the information or documents disclosed to me
pursuant thereto to anyone except in accordance with the terms of said
Order.
2.

To not make use of any information obtained, whether in

documentary or other form, pursuant to that Order other than for purposes
of this litigation.
3.

Upon written request, to return to counsel of record or to destroy

no later than 60 days after the termination of this litigation any and all
documents in my possession containing information which is the subject of
said Order or disclosed to me pursuant to the Order (whether such
information is in the form of notes, memoranda, reports, or other written

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communications or documents prepared by any person at any time
containing information covered by the terms of said Order).
4.

To submit myself to the jurisdiction of the foregoing court,

including its contempt power, for enforcement of said Order.
This the ____ day of ____________________, 20____.

_______________________
PRINTED NAME
_______________________
SIGNATURE

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