Lee Construction Company of the Carolinas, Inc. v. Zurich American Insurance Company et al

Filing 29

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 4/18/2011. (bsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:10-CV-539-FDW-DCK
LEE CONSTRUCTION COMPANY
OF THE CAROLINAS, INC.,

)
)
)
Plaintiff,
)
)
v.
)
)
ZURICH AMERICAN INSURANCE
)
COMPANY, ZURICH SERVICES
)
CORPORATION, and JAMES A.
)
SCOTT & SON, INC.,
)
)
Defendants.
)
___________________________________ )
CONSENT PROTECTIVE ORDER
The Parties hereto agree that the above action may involve the production or disclosure of
personal, confidential, sensitive or proprietary business information, or trade secrets (collectively
referred to as “Confidential Information”), and hereby stipulate, subject to approval by the Court, to
the following as a Protective Order which shall govern the production or disclosure of Confidential
Information to ensure continued confidentiality during the case.
This Protective Order governs the production or disclosure of all Confidential Information
produced by the parties and non-parties during the course of discovery, hearings or trial in this
action. In addition, the parties contemplate that Confidential Information may be produced by a
non-party.

Any portion of a deposition transcript, pleading or other document into which

Confidential Information is placed or quoted shall also be considered Confidential Information.
DESIGNATION
In connection with discovery proceedings in this action, any non-public document, material,
or information may be designated as “CONFIDENTIAL”. The producing party shall be obligated

to designate only documents or information which it believes in good faith to be information within
the scope of Rule 26(c) of the Federal Rules of Civil Procedure. Moreover, the producing party
shall be obligated to make specific designations to the extent reasonably possible and to avoid
overbroad designations.
The term “CONFIDENTIAL” applies to information, testimony, documents, and data which
is determined by the producing party, acting in good faith, to be non-public and to be proprietary,
financial, business confidential information, or protected personal information.
NOTICE AND MARKINGS
Any documents, material or information may be designated “CONFIDENTIAL” by
furnishing a separate written notice to the receiving party specifically identifying the items or their
designation, or by stamping the legend “CONFIDENTIAL” on each page of the documents, material
or information prior to production.
Any party may designate any portion or all of a deposition as Confidential Information by
notifying the other parties on the record during the deposition or in writing within 15 days of the
receipt of the transcript.
INADVERTENT FAILURE TO DESIGNATE
Failure to designate or stamp as “CONFIDENTIAL” at the time of production shall not be
a waiver of the protection for Confidential Information, provided that counsel promptly notifies the
receiving party upon realizing the failure. However, the receiving party shall not be in violation of
this Protective Order for any disclosure of information made prior to receiving such notice.
OBJECTION TO DESIGNATION

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If a party receiving designated Confidential Information objects to the designation, it shall
treat the information as it is designated until the parties resolve the dispute by agreement or by order
of the Court.
USE OF CONFIDENTIAL INFORMATION
All Confidential Information as defined herein shall be used solely for the purpose of this
action.
Confidential Information which has been designated “CONFIDENTIAL” shall be disclosed
only to:
(1)

The counsel for any party in this action and their employees or contractors (such as

photocopy services) who are assisting them in this action, and any party, to the extent necessary to
prepare this case for this litigation;
(2)

Consultants and expert witnesses who have been retained by the party or its attorneys

for this action, provided that each such person first executes a written “Acknowledgement” in the
form attached;
(3)

Directors, officers, or employees of the parties and their parent companies who

require the information to assist in the prosecution or defense of this action, including in-house
counsel of any party hereto;
(4)

The Court and persons associated with or employed by the Court whose duties

require access to the information;
(5)

Persons having personal knowledge of any such record by virtue of their having

prepared, received and/or reviewed that record prior to this litigation;
(6)

Any witness, but only to the extent that such witness' testimony involves the matters

governed by, subsumed within, or otherwise affected by information or documents designated as
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Confidential material, provided that each such witness first executes a written “Acknowledgement”
in the form attached;
(7)

The officer taking, reporting or videotaping a deposition and employees of such

officer to the extent necessary to prepare the transcript of the deposition;
(8)

Jurors and prospective jurors; and

(9)

The claims personnel of the liability insurers of any party who require the

information to assist in the prosecution or defense of this action, including in-house counsel of
any such insurer.
Nothing herein shall restrict the persons identified above from making working copies for
use in the case, which working copy shall be automatically designated as “CONFIDENTIAL”.
As to those persons who sign the Acknowledgement form, the party obtaining the signed
Acknowledgement shall have the obligation to maintain the Acknowledgement record.
If Confidential Information designated as “CONFIDENTIAL” is sought to be used or
introduced at a hearing or trial of this action, counsel for the party seeking to use or introduce such
Confidential Information shall so advise the Court and request that the Court take such steps as it
deems appropriate to protect the confidentiality of the information.
All Confidential Information designated as “CONFIDENTIAL”, any copies thereof, and the
information contained therein, shall not be given, shown, made available to, or communicated in any
way to anyone, except those persons listed above, unless ordered by the Court or done with the prior
written consent of producing party’s counsel, or as required by law.
The parties to this Order expressly reserve the right to seek any appropriate order modifying
this Order or imposing additional restrictions on discovery in this action, including an order that
production not be had.
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If Confidential Information designated as “CONFIDENTIAL” is disclosed to any person
other than inadvertent disclosure or in the manner authorized by this Order, the party or counsel
responsible for the improper disclosure must immediately bring all pertinent facts relating to such
disclosure to the attention of the other parties and their counsel, and without prejudice to the rights
and remedies of the other parties and their counsel, shall make every reasonable effort to prevent
further disclosure by them or by the person who was the recipient of such information.
INADVERTENT DISCLOSURE OF PRIVILEGED INFORMATION
If a producing party inadvertently discloses to the receiving party information that is
privileged or otherwise immune from discovery, said producing party shall promptly upon discovery
of such disclosure so advise the receiving party in writing and request that the item or items of
information be returned. It is further agreed that the receiving party will promptly return such
inadvertently produced item or items of information and all copies thereof upon either (a) discovery
by the receiving party of its inadvertent production, or (b) receiving a written request for the return
of such item or items of information. The party having returned such inadvertently produced item
or items of information may thereafter seek production of any such documents in accordance with
the Federal Rules of Civil Procedure.
CONFIDENTIAL INFORMATION FROM A NON-PARTY
If any non-party is to produce any documents or information to parties in this action that the
non-party reasonably believes contains Confidential Information, the non-party shall have the same
rights as the parties to designate documents and information as Confidential Information under this
Protective Order and to have such documents and information treated as Confidential Information.
A non-party shall have no further rights under this Protective Order other than the ability to
designate its documents and information as Confidential Information under the terms hereof and to
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have such documents and information treated as Confidential Information, as well as having the
same rights as a producing party given under the section entitled, “Inadvertent Disclosure of
Privileged Information” above.
OBLIGATIONS OF PARTIES
Each of the parties named above and their counsel of record undertakes to abide by and be
bound by its provisions and to use due care to see that its provisions are known and adhered to by
those under its supervision or control. Nothing in this Protective Order shall bar counsel from
rendering advice to their client with respect to this litigation, and in the course thereof, relying upon
any Confidential Information, provided, that in rendering such advice and otherwise communicating
with such clients, counsel shall not make specific disclosure of any item so designated except as
otherwise permitted by this Order.
TERMINATION OF LITIGATION
Within thirty (30) days of the final conclusion or final settlement of this litigation and any
appeal thereof, all persons subject to the terms hereof shall destroy or assemble and return to the
producing party all Confidential Information, at the option of the party making the confidentiality
designation. The terms of this Protective Order shall survive and remain in full force after the
termination of this lawsuit and the Court shall have jurisdiction over the parties, their attorneys, and
all persons to whom Confidential Information has been disclosed for the purpose of enforcing the
terms of this Protective Order and/or redressing any violation thereof.
ADDITIONAL PROTECTION
Nothing in the foregoing provisions of this Protective Order shall be deemed to preclude any
party from seeking and obtaining, on an appropriate showing, additional protection with respect to

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the confidentiality of documents or other discovery material, or relief from this Protective Order
with respect to particular material designated hereunder.
AGREED AND STIPULATED TO:
s/Andrew W. Lax
Andrew W. Lax, Esquire, NC Bar No. 13014
Louis G. Spencer, NC Bar No. 36019
McNair Law Firm, P.A.
Two Wachovia Center
301 South Tryon Street, Suite 1615
Charlotte, North Carolina 28282
704.347-1170
[e-mail]
Benjamin E. Nicholson, V
[admitted pro haec vice]
McNair Law Firm, P.A.
Post Office Box 11390
Columbia, SC 29211
803.799.9800
[e-mail]
Attorneys for the Plaintiff
s/James W. Bryan
James W. Bryan, NC Bar No. 16575
E. Taylor Stukes, NC Bar No. 37077
Nexsen Pruet, PLLC
P. O. Box 3463
Greensboro, NC 27402
336.373.1600
[e-mail]
[e-mail]
Attorneys for Defendants Zurich
s/Stephen G. Teague
Stephen G. Teague, NC Bar No. 11112
Lynn K. Broom, NC Bar No. 17674
Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC
101 S. Elm Street, Suite 350
Greensboro, NC 27401
336.272.4810
[e-mail]
[e-mail]
Attorneys for Defendant Scott
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:10-CV-539-FDW-DCK
LEE CONSTRUCTION COMPANY
OF THE CAROLINAS, INC.,

)
)
)
Plaintiff,
)
)
v.
)
)
ZURICH AMERICAN INSURANCE
)
COMPANY, ZURICH SERVICES
)
CORPORATION, and JAMES A.
)
SCOTT & SON, INC.,
)
)
Defendants.
)
___________________________________ )

ACKNOWLEDGEMENT

, being duly sworn, deposes and says:
1.

(Statement of Employment)

2.
I have read the Consent Protective Order filed
,
, as entered into
by the parties in connection with Civil Action No. 1:10 CV 581, Middle District of North Carolina.
I fully understand and agree to the restrictions on my use of the documents, records, and other
materials described in that Consent Protective Order and the information contained herein.
3.
I understand that unauthorized disclosure of confidential information constitutes
contempt of court and may subject me to sanctions and damages.
4.
I declare under penalty of perjury under the laws of the United States of America;
that the foregoing is true and correct.
Executed on:

(Name - Print)

(Signature)
8

ORDER OF APPROVAL
IT IS ORDERED that the foregoing terms of the Consent Protective Order agreed to by the
parties, including the Acknowledgement form are approved, shall be made of record, and shall
govern the disclosure and use of confidential information in this action.

Signed: April 18, 2011

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