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

Filing 64

CONSENT PROTECTIVE ORDER NO. 3. Signed by Magistrate Judge David Keesler on 9/21/11. (gpb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action No. 3:10-CV-00539-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. 3

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 Stiles, Byrum &
Horne (“SBH”), and certain non-party experts and independent insurance adjusters 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 (hereinafter “PRIVILEGED
INFORMATION AS TO SBH”). The Parties also agree that the above action may involve the
production or disclosure of information by Zurich Defendants and the non-party law firm Butler
Pappas Weihmuller Katz Craig, LLP (“Butler Pappas”) that may be protected by the attorney1

client privilege or the attorney work product immunity doctrine (hereinafter “PRIVILEGED
INFORMATION AS TO BUTLER PAPPAS”).

Accordingly, the Parties 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 AS TO SBH and PRIVILEGED
INFORMATION AS TO BUTLER PAPPAS to ensure that the privileges and immunities
protecting such information continue as to non-parties to this case.
This Consent Protective Order governs the production or disclosure of all potentially
PRIVILEGED INFORMATION AS TO SBH and potentially PRIVILEGED INFORMATION
AS TO BUTLER PAPPAS produced by Zurich Defendants, Lee, SBH, Butler Pappas and/or the
retained experts and independent insurance adjusters 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 AS TO SBH and PRIVILEGED INFORMATION AS
TO BUTLER PAPPAS is placed or quoted shall also be considered PRIVILEGED
INFORMATION AS TO SBH and PRIVILEGED INFORMATION AS TO BUTLER PAPPAS,
respectively.
PROCEDURE
With regard to PRIVILEGED INFORMATION AS TO SBH and PRIVILEGED
INFORMATION AS TO BUTLER PAPPAS, 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
AS TO SBH marked by Zurich Defendants, Lee, SBH, and the retained experts and independent
insurance adjusters as Confidential Information and shall apply to the PRIVILEGED

2

INFORMATION AS TO BUTLER PAPPAS marked by Zurich Defendants and Butler Pappas,
and such provisions are incorporated into this Order by reference. This Order is not intended to
address claims of attorney-client privilege or attorney work product immunity by any non-party
except SBH, Butler Pappas, and the retained experts and independent insurance adjusters. If
SBH, Butler Pappas, and/or the retained experts and independent insurance adjusters have
privilege claims of their own that cannot be waived by Lee and/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 AS TO SBH 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 AS
TO SBH waiving only as to Scott and only for the purposes of this lawsuit.

Production of

PRIVILEGED INFORMATION AS TO SBH to Scott pursuant to Consent Protective Order No.
1 and Consent Protective Order No. 3 is not a waiver of the attorney-client privilege or the
attorney work product immunity doctrine as to any non-party.
Production of the PRIVILEGED INFORMATION AS TO BUTLER PAPPAS to Lee and
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 AS TO BUTLER PAPPAS waiving only as to Lee and Scott and only for the
purposes of this lawsuit.

Production of PRIVILEGED INFORMATION AS TO BUTLER

PAPPAS to Lee and Scott pursuant to Consent Protective Order No. 1 and Consent Protective
Order No. 3 is not a waiver of the attorney-client privilege or the attorney work product
immunity doctrine as to any non-party.

3

ADDITIONAL PROTECTION
Nothing in the foregoing provisions of this Consent Protective Order No. 3 shall be
deemed to preclude Zurich Defendants, Lee, SBH, Butler Pappas or the retained experts and
independent insurance adjusters 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
SBH, Butler Pappas and/or the retained experts and independent insurance adjusters believe it is
necessary and appropriate to bind themselves to the Consent Protective Order No. 1 and Consent
Protective Order No. 3 in order to produce their documents pursuant to subpoena, SBH, Butler
Pappas and/or the retained experts and independent insurance adjusters 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

4

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. 3 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: September 21, 2011

5