Moore v. Advance Stores Company, Incorporated

Filing 18

CONSENT PROTECTIVE ORDER. Signed by Senior Judge Graham Mullen on 8/29/11. (chh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action No. 3:10-cv-00377

____________________________________
)
RICHARD MOORE,
)
)
Plaintiff,
)
)
v.
)
)
ADVANCE STORES COMPANY, INC. )
d/b/a ADVANCE AUTO PARTS,
)
)
Defendant.
)
____________________________________)

CONSENT PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, upon motion by
the parties and it appearing that the discovery process in this action may involve the
production of information that a party may contend is confidential and/or proprietary and
that good cause exists for the entry of an Order limiting the disclosure of such
information;
IT IS THEREFORE ORDERED that:
1.

This Order governs the handling and disclosure of all materials produced,

given, or filed herein by the parties and designated as “CONFIDENTIAL
INFORMATION.”
2.

Definitions.

a. “Document” means all writings, drawings, graphs, charts, recordings, and any
other documents as defined in Rule 34 of the Federal Rules of Civil Procedure.

b. “Material” means any document, any answer to any interrogatory or other
discovery request in this action, any portion of any deposition (including deposition
exhibits) in this action, and any other information produced, given, or filed in this action.
c. “Parties” means plaintiff Richard Moore and defendant Advance Stores
Company, Inc.
d. “Confidential Information” as used herein includes personnel and payroll
records of individuals who are not parties to this case, medical records, and all
proprietary, business or other commercially sensitive information, whether documentary
or otherwise, designated as “confidential” and delivered, produced or disclosed by any
party in this action in response to an interrogatory, a request for production of documents,
a deposition question or otherwise, or delivered, produced or disclosed by any third party
in response to a subpoena, deposition question or otherwise.

The designation of

documents or information as “Confidential Information” shall not be conclusive for
purposes of the substantive issues in this case.

The definition of “Confidential

Information” does not establish or create any presumption that such information is
discoverable or admissible and this Order shall be without prejudice to the right of any
party to oppose production of any information on any other ground.
3.

A party or witness may designate as CONFIDENTIAL INFORMATION

any material produced in the course of discovery that contains confidential information
by affixing to each page of every such document, by stamp or other method which will
make the word conspicuous, the word “CONFIDENTIAL.” In the case of deposition
transcripts and exhibits, the parties may designate such material as CONFIDENTIAL by
a statement to that effect on the record by counsel for the party who claims that

Confidential Information is about to be or has been disclosed, or by letter thereafter,
submitted within 30 days of receipt of the deposition transcript.

In the event

CONFIDENTIAL INFORMATION is contained in any written response to a discovery
request, in any deposition transcript, or in any exhibit thereto, the confidential portion of
such response, transcript, or exhibit shall be separately bound, and the words
“CONFIDENTIAL” shall be placed thereon.
4.

In the event confidential, proprietary or sensitive material is inadvertently

produced without placing the designation “CONFIDENTIAL” thereon, the party or
witness may, subsequent to the production (or subsequent to the 30-day period for
designating deposition transcripts), designate the material as CONFIDENTIAL
INFORMATION. In such event, the material shall be treated in accordance with the
terms of this Order from the time of the designation.

Inadvertent or unintentional

disclosure of CONFIDENTIAL INFORMATION, or information which a producing
party intends to designate as CONFIDENTIAL INFORMATION, shall not be deemed a
waiver in whole or in part of its claim of confidentiality with respect to either the
information so disclosed or any other related information.
5.

Should a party object to the designation of any material as

CONFIDENTIAL INFORMATION that party may apply to the Court for a ruling that the
material shall not be so treated. Acceptance by a party of any confidential information,
document or thing identified as CONFIDENTIAL INFORMATION hereunder shall not
constitute a concession that the information, document or thing is CONFIDENTIAL
INFORMATION. Either party may contest the right of the opposing party to designate
documents as CONFIDENTIAL INFORMATION.

Any such objections shall be in

writing and served upon the other party within 30 days of receipt of such information,
specifically identifying by bates number or otherwise each document as to which an

objection is raised. If the designating party wishes thereafter to have the documents
treated as CONFIDENTIAL INFORMATION, that party shall move for a protective
order under Fed. R. Civ. P. 26(c) within 20 days of receipt of the other party’s objection;
provided, however, that until the Court enters an order, if any, changing the designation
of the material, it shall be treated as confidential as provided in this Order.
6.

Except

upon

further

order

of

the

Court,

CONFIDENTIAL

INFORMATION, and information derived therefrom, shall be disclosed only to the
parties; counsel for the parties in this action; their legal assistants and other staff
members; third-party witnesses or potential witnesses whom counsel reasonably deem
necessary for the preparation and trial of this action; reporters taking testimony and their
support personnel; and experts (including in-house experts) consulted or assisting the
parties in this action. Counsel for each party shall be responsible for notifying each
individual to whom disclosure is made of his/her obligations and responsibilities under
this Order.

Prior to the disclosure of documents or other materials designated as

CONFIDENTIAL INFORMATION pursuant to this Order, the party or non-party to
whom the CONFIDENTIAL INFORMATION will be disclosed shall sign a statement of
confidentiality in the form attached hereto as Exhibit A.
7.

All

CONFIDENTIAL

INFORMATION,

and

information

derived

therefrom, shall be used solely in the prosecution or defense of the claims between the
parties and shall not be used or disclosed by any person for any other purpose.

5
8.

Counsel for each party agrees to retain in their possession all of the written

statements signed by individuals to whom disclosures were made.

All documents

designated as CONFIDENTIAL INFORMATION, including copies or excerpts of
documents, shall be returned to counsel by individuals given access to them as soon as
possible.
9.

Any confidential material used at any deposition, hearing, trial or

appellate proceeding of this matter shall be submitted under seal and maintained as
confidential material unless directed otherwise by the Court. Additionally, pleadings,
motions, affidavits, and briefs that quote, summarize, or contain material entitled to
protection

may be marked

“Confidential.”

As

long

as

CONFIDENTIAL

INFORMATION is handled in accordance with Paragraph 6 and all other aspects of this
Order, this Order shall not be construed as prohibiting or restricting the use of
CONFIDENTIAL INFORMATION during such proceedings. Similarly, no party shall
be deemed to have waived any objections to the admissibility of any CONFIDENTIAL
INFORMATION into evidence with any proceeding in this action.
10.

Any CONFIDENTIAL INFORMATION filed with the Court shall be

clearly marked “Confidential” and shall be kept by the Clerk under seal and made
available only to the Court and persons authorized by the terms of this Protective Order to
have access thereto. The person filing any such designated confidential documents shall
inform the Clerk that all or designated portions thereof are subject to this Protective
Order and are to be kept under seal, except that upon the default of the filing party to so
inform the Clerk, any party may do so. Documents to be filed electronically that contain
CONFIDENTIAL INFORMATION shall be redacted to exclude such confidential
information and an unredacted hard copy of any such document shall be clearly marked
“Confidential” kept by the Clerk under seal.

11.

This Order shall remain in effect for the period of this litigation and

subsequent to its termination so as to protect the confidentiality of the CONFIDENTIAL
INFORMATION.
12.

The attorneys of record are responsible for employing reasonable

measures to control, consistent with this Order, duplication of, access to, and distribution
of copies of CONFIDENTIAL INFORMATION.

Parties shall not duplicate any

CONFIDENTIAL INFORMATION except to create working copies, deposition exhibits,
or trial exhibits, for use in accordance with the terms of this Order.
13.

Counsel may move for a modification of this Order at any time that the

interests of justice appear to so require.
14.

Ultimate disposition of materials and information protected by this Order

is subject to a final order of the Court upon completion of litigation. However, in the
absence of a final order of the Court addressing the disposition of CONFIDENTIAL
INFORMATION, the parties agree to destroy within 60 days after the termination of this
litigation, any and all documents in their possession or control containing information
which is the subject of this Order, including without limitation, any copies or excerpts of
such documents. Counsel for the parties may retain one copy of all documents to be kept
in counsels’ files and otherwise subject to the terms of this Order for purposes of
complying with the applicable rules of professional conduct.

Signed: August 29, 2011

CONSENTED TO:

/s/ John W. Gresham
John W. Gresham, NC Bar No.: 6647
Attorney for Plaintiff
TIN FULTON WALKER

& OWEN , PLLC

301 East Park Avenue
Charlotte, NC 28203
Telephone: [phone]
Fax: [phone]
[e-mail]

/s/ Tanisha P. Johnson
Tanisha P. Johnson, NC Bar No.: 36856
Attorney for Plaintiff
FERGUSON , STEIN , CHAMBERS, GRESHAM & SUMTER , P.A.
741 Kenilworth Avenue, Suite 300
Charlotte, NC 28204
Telephone: [phone]
Fax:

[phone]

[e-mail]

/s/ Matthew Keen
Matthew Keen, N.C. State Bar No. 14204
Attorney for Defendant
OGLETREE, DEAKINS, NASH , SMOAK, & STEWART , P.C.
4208 Six Forks Road, Suite 1100
Raleigh, North Carolina 27609
Telephone:

[phone]

Facsimile:

[phone]

[e-mail]

/s/ Michael L. Wade
Michael L. Wade, Jr., N.C. State Bar No. 33520
Attorney for Defendant
OGLETREE, DEAKINS, NASH , SMOAK, & STEWART , P.C.
201 South College Street, Suite 2300
Charlotte, NC 28244
Telephone:

[phone]

Facsimile:

[phone]

[e-mail]

EXHIBIT A

CONFIDENTIALITY AGREEMENT

I have read and am familiar with the terms of the Consent Protective Order
governing the disclosure of confidential information in the case of Richard Moore v.
Advanced Stores Company, Inc., Case No. 3:1O-cv-00377. I agree to abide by all the
terms of said Order.
I understand that I may be subject to contempt for violating this Order and will be
subject to the jurisdiction of the Court in which this action is pending for the purpose of
proceedings to enforce this Order.
I also agree to return to counsel of record not later than thirty (30) days after the
termination of this litigation any and all documents in my possession containing
information which is the subject of said Order (whether such information is in the form of
notes, memoranda, reports or other written communications or documents prepared by
any person at any time containing information covered by the terms of said Order).

Name: __________________________________________
Date: ___________________________________________