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

Filing 39

CONSENT PROTECTIVE ORDER NO. 2. Signed by Magistrate Judge David Keesler on 5/31/11. (gpb)

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 NO. 2
Defendants Zurich American Insurance Company (“Zurich American”) and Zurich Services
Corporation (“Zurich Services”) (collectively “Zurich Defendants”), Defendant James A. Scott &
Son, Inc. (“Scott”), and Plaintiff Lee Construction Company of the Carolinas, Inc. (“Lee”)
(collectively “the Parties”) agree that the above action may involve the production or disclosure of
information by Zurich Defendants, Lee, the non-party law firm Cranfill Sumner & Hartzog, LLP
(“Cranfill Sumner”), and certain non-party experts retained to perform work related to the bridge
collapse at issue, that may be protected by the attorney-client privilege or the attorney work product
immunity doctrine (collectively referred to as “Privileged 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 Privileged Information to ensure that the privileges and immunities protecting such
information continue as to non-parties to this case. Privileged Information shall include, without
limitation, the e-mail from Cranfill Sumner dated February 7, 2009, which was the subject of the
Unopposed Motion to Seal by Zurich Defendants filed on May 5, 2011 (Doc. No. 34).

This Consent Protective Order governs the production or disclosure of all potentially
Privileged Information produced by Zurich Defendants, Lee, Cranfill Sumner, and the retained
experts during the course of discovery, hearings, or trial in this action. Any portion of a deposition
transcript, pleading, or other document into which Privileged Information is placed or quoted shall
also be considered Privileged Information.
PROCEDURE
With regard to Privileged Information, the parties shall follow the processes for designating,
marking, discovering, and using such information and acknowledging the protections provided for
Confidential Information in Consent Protective Order No. 1. All of the provisions of Consent
Protective Order No. 1 shall apply to the Privileged Information marked by Zurich Defendants, Lee,
Cranfill Sumner, and the retained experts as Confidential Information and such provisions are
incorporated into this Order by reference. This Order is not intended to address claims of attorneyclient privilege or attorney work product immunity by any non-party except Cranfill Sumner and the
retained experts. If Cranfill Sumner and/or the retained experts have privilege claims of their own
that cannot be waived by Lee or the Zurich Defendants, such claims are not affected by this Order.
NON-WAIVER OF ATTORNEY-CLIENT PRIVILEGE
AND WORK PRODUCT IMMUNITY
Production of the Privileged Information to Scott in this lawsuit through the procedures set
forth in Consent Protective Order No. 1 is deemed to be a limited waiver of privileges and immunities
with respect to such Privileged Information waiving only as to Scott and only for the purposes of this
lawsuit. Production of Privileged Information to Scott pursuant to Consent Protective Order No. 1
and Consent Protective Order No. 2 is not a waiver of the attorney-client privilege or the attorney
work product immunity doctrine as to any non-party.

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ADDITIONAL PROTECTION
Nothing in the foregoing provisions of this Consent Protective Order No. 2 shall be deemed
to preclude Zurich Defendants, Lee, Cranfill Sumner, or the retained experts from seeking and
obtaining, on an appropriate showing, additional protection with respect to the confidentiality of
documents or other discovery material, or relief from this Order with respect to particular material
designated hereunder. If Cranfill Sumner and/or the retained experts believe it is necessary and
appropriate to bind themselves to the Consent Protective Order No. 1 and Consent Protective Order
No. 2 in order to produce their documents pursuant to subpoena, Cranfill Sumner and/or the retained
experts shall do so by signing an acknowledgement agreeing to be bound by both Orders.

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 hac vice]
McNair Law Firm, P.A.
Post Office Box 11390
Columbia, SC 29211
803.799.9800
[e-mail]
Attorneys for the Plaintiff

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s/James W. Bryan
James W. Bryan, NC Bar No. 16575
Gary L. Beaver, NC Bar No. 10244
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

ORDER OF APPROVAL
IT IS ORDERED that the foregoing terms of Consent Protective Order No. 2 agreed to by
the parties are approved, shall be made of record, and shall govern the disclosure and use of
privileged information in this action.

Signed: May 31, 2011

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