Hill v. Forward Air Solutions, Inc

Filing 14

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 4/13/2011. (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:10-CV-0665-RJC-DCK
CARLYLE H. HILL,

)
)
Plaintiff,
)
)
v.
)
)
FORWARD AIR SOLUTIONS, INC.,
)
)
Defendant.
)
___________________________________ )
CONSENT PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), and
upon stipulation of the parties, as evidenced by the endorsement of counsel hereon, and with the
concurrence of the Court,
1. Whereas the parties herein represent to the Court that in prosecuting and defending
against the claims in this action it may be necessary for the parties to produce and/or utilize
documents containing confidential or proprietary information belonging to the parties or
produced pursuant to a third party subpoena, including but not limited to business information,
personnel information, tax information, account information, and social security identification
information; and
2. Whereas the Court concurs that the parties in this action have an important interest in
protecting the confidentiality of that information given its sensitive, proprietary and personal
nature.
It is hereby ORDERED, ADJUDGED and DECREED that the following procedures
shall be adopted for the protection of the confidential information identified in this Order:

A. Coverage and Definitions
3. This Order shall govern material and information produced by the parties and/or
obtained by the parties in this action, including, without limitation: deposition testimony;
testimony taken at hearings or other proceedings; transcripts of any such testimony; documents,
physical objects, recordings and things produced; and all discovery responses, whether produced
informally, in response to requests for production of documents, by subpoena, or through any
other method of discovery.
4. For purposes of this Order, the term "counsel" shall mean partners, of counsel,
counsel, associates and contract attorneys for the law firms that have been retained by and that
have entered an appearance on behalf of the parties in this case, as well as paralegal, legal
assistants, office clerks, secretaries, support staff and other individuals employed to assist
counsel.
B. Designation of Information
5. A party, or third party to which the document belongs, may classify a document, or
portion thereof, or an item of information as CONFIDENTIAL if the document or information
contains or constitutes confidential or sensitive information of a personal or business nature,
including certain information which concerns or relates to an individual's employment; records
maintained by physicians or other health care providers; records maintained in an employer's
files which relate to the physical and/or psychological condition of any individual; and certain
non-public information regarding Defendant.
6. Nothing in this Order, including the definition found in paragraph 5, constitutes an
admission or waiver by either party that any particular document or item of information, or
category of information, is otherwise discoverable or admissible in this action.
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7. Nothing in this Order requires Plaintiff or Defendant to disclose or produce any
information protected from disclosure by the attorney-client privilege, work-product privilege or
any rule of professional conduct including Rules 1.0(b) and 1.6 of the Revised Rules of
Professional Conduct of the North Carolina State Bar.
8. Any document or thing containing CONFIDENTIAL information which a party
wishes to be made subject to this Order shall be marked CONFIDENTIAL on the first page and
those pages actually containing the designated information at the time it is turned over to the
receiving party. Any copy made of such document or thing, or document or thing created (e.g.,
any abstract, summary, memorandum or exhibit), containing information designated pursuant to
this Order shall bear on its face and on those pages actually containing the CONFIDENTIAL
information the legend CONFIDENTIAL. All things containing CONFIDENTIAL information
that cannot be conveniently labeled shall be designated as CONFIDENTIAL by letter to the
receiving party. Nothing in this Order requires Plaintiff or Defendant to disclose or produce an
individual’s social security number or a nonparty employee’s current or former salary, benefit,
health or medical information.
9. Whenever a party believes that testimony during a deposition or other proceeding
involves a disclosure of CONFIDENTIAL information, the party may designate that testimony
as CONFIDENTIAL. The party may so designate the testimony on the record during a
deposition or other proceeding, but the party also may designate the testimony as
CONFIDENTIAL within thirty days of receipt of the transcript of the testimony by providing
written notice of such designation to the other party. The party may designate the entire
transcript as CONFIDENTIAL, but, as is reasonably practicable, the party will identify the
specific pages of the transcript that contain the CONFIDENTIAL information. The parties shall
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not disseminate a transcript or the contents thereof beyond the persons designated in Paragraph
12 hereof for a period of thirty-five days after receipt of the transcript in order to give adequate
time for such notice, except that portions of transcripts may be filed under seal with the Court in
connection with these proceedings at any time.
10. If any CONFIDENTIAL information is included with, or the content thereof is in any
way disclosed in any pleading, motion, deposition transcript or other paper filed with the Court,
such documents and related materials shall be filed under seal. In addition, or in the alternative,
a party may move the Court for an order permitting the CONFIDENTIAL information to be
reviewed in camera to prevent unnecessary disclosure of the CONFIDENTIAL information.
C. Use of Confidential Information
11. CONFIDENTIAL information shall be maintained in confidence according to the
terms of this Order and may be disclosed only as provided in this Order. Except by prior written
consent of the parties or as otherwise stated in this Order, all materials or information produced
in this action shall not be used by the receiving party for any purpose other than the proceedings
in this case.
12. CONFIDENTIAL information may be disclosed to:
a) the Court, Court personnel, and Court reporters;
b) counsel for the parties (as defined above in Paragraph 4);
c) the parties;
d) experts and their employees who are retained for the purpose of assisting in
the prosecution or defense of this action, including to provide testimony in
these proceedings, provided, however, that before CONFIDENTIAL
information is disclosed to any such person, that person shall sign an
acknowledgment in writing in the form set forth in Exhibit A that the person
has read and agrees to abide by the terms of this Order, and submits to the

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jurisdiction and contempt power of this Court for the purpose of enforcing this
Order;
e) persons who prepared or assisted in the preparation of such CONFIDENTIAL
information, persons to whom such materials were addressed, circulated, or
shown, or persons who would have access to such materials in the ordinary
course of their business; and
f) to deposition witnesses or trial witnesses at the time the deposition or trial
testimony is given, or in preparation for their testimony, provided, however,
that, if any such witness is not otherwise entitled to access to the
CONFIDENTIAL information pursuant to some other provision in this
Paragraph 12, before such CONFIDENTIAL information is disclosed to that
witness, that person shall sign an acknowledgment in writing in the form set
forth in Exhibit A that the person has read and agrees to abide by the terms of
this Order, and submits to the jurisdiction and contempt power of this Court
for the purpose of enforcing this Order.
13. Counsel shall retain all executed versions of Exhibit A until the end of the litigation
and, at that time, shall provide copies thereof to counsel for the opposing party, upon request.
Counsel shall not disclose CONFIDENTIAL information, if such action would require the
person to whom the documents are disclosed to execute Exhibit A, unless counsel believes in
good faith that such disclosure is reasonably necessary to prosecute or defend this action and the
person to whom the documents are disclosed is a properly qualified person under Paragraph 12.
14. Deponents may not be shown copies of Plaintiff's medical or health records, if any,
without first notifying Plaintiff's counsel and securing Plaintiff's counsel's agreement to such
disclosure. In the event, that counsel disagree regarding the ability to show copies of Plaintiff’s
medical or health records to a deponent, the parties can utilize the dispute process set forth in
Section D below. This limitation shall not apply to Plaintiff, to any expert as defined in
Paragraph 12(d) or any factual witnesses identified by Plaintiff as having knowledge or offering
an opinion regarding Plaintiff’s alleged emotional or mental damages.

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D. Information Designated Improperly
15. Any party may challenge any designation of CONFIDENTIAL by giving written
notice to the other party or a third party that makes the designation (which notice shall specify
with particularity the challenged document or other matter). Within ten business days of receipt
of such notice, the party or third party must determine whether to withdraw the designation. If
the designation is withdrawn, the party or third party shall give written notice of the change and
shall substitute undesignated copies of the items. If the designation is not withdrawn, the party
making the challenge may file a motion with the Court with respect thereto. The parties agree
that, before seeking any relief from the Court, they will make a good faith effort to resolve any
disputes concerning the appropriate treatment of such materials. Until this Court enters an Order
resolving the Motion, the materials shall be treated in accordance with their initial designation.
E. Inadvertent Disclosure
16. If a party fails to designate CONFIDENTIAL information at the time of its
production, or if a party or third party produces information without such designation, any party
shall have thirty days thereafter in which to correct the designation to CONFIDENTIAL. For
good cause shown, a party may correct a designation or failure to designate as CONFIDENTIAL
after thirty days. Such correction, and notice thereof, shall be made in writing, accompanied by
substitute copies of each affected item or document, designated as described above, or any claim
of confidentiality under this Order will be deemed waived.
17. If either party discloses to a receiving party information that is privileged or
otherwise immune from discovery, the 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, and no party to these consolidated actions shall thereafter assert that such disclosure
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waived a privilege or immunity. It is further agreed that the receiving party will return such
produced item or items of information and all copies thereof within ten business days of (a)
discovery by the receiving party of documents that, based on objective criteria, reasonably
appear to be privileged, or (b) receiving a written request for the return of such item or items of
information, whichever occurs first. The party having returned such produced item or items of
information may thereafter seek production of any such documents in accordance with the
Federal Rules of Civil Procedure, provided that the party seeking discovery may not assert
waiver as a basis for production.
F. Other
18. Nothing in this Order shall limit any party's ability to use or disclose in the ordinary
course of business any documents or information which the party otherwise has the right to
possess.
19. Within thirty days of the completion of the litigation, including without limitation,
any appeal or retrial, each party shall return or destroy all documents designated as
CONFIDENTIAL and all copies thereof and shall destroy all documents and things containing
information based on CONFIDENTIAL information, except that counsel need not return
CONFIDENTIAL documents, things or information that are attached to or contained within
pleadings or other filings in this case. Upon written request, a party shall certify to the
requesting party within ten business days that it has complied with the requirements of this
paragraph.
20. After the conclusion of this action, including without limitation, any appeal or retrial,
this Order shall continue to be binding upon the parties hereto, and all persons to whom
designated materials have been disclosed or communicated. This Court retains jurisdiction over
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the parties hereto indefinitely with respect to any dispute regarding the improper use of
information produced under this Order.
21. Nothing in this Order shall be deemed to preclude a party 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.
22. The Clerk hereby is directed to accept as filed under seal all documents or
information designated as CONFIDENTIAL.
IT IS SO ORDERED.
Signed: April 13, 2011

We ask for this:

S/ Stephen D. Dellinger
Stephen D. Dellinger
LITTLER MENDELSON, P.C.
NC Bar #16609
Bank of America Corporate Center
100 North Tryon Street, Ste. 4150
Charlotte, NC 28202
T: 704-972-7010
F:704-333-4005
[e-mail]
Attorney for Defendant

S/ Joy M. Chappell
Joy M. Chappell
Julie H. Fosbinder
Fosbinder Law Office
NC Bar #39574
501 E. Morehead St. Ste. 1
Charlotte, NC 28202
T: 704-333-1428
F: 704-333-1431
[e-mail]
m
Attorney for Plaintiff

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EXHIBIT A
NON-DISCLOSURE AGREEMENT
I, _____________________________, do solemnly swear that I am fully familiar with
the terms of the Consent Protective Order pertaining to information to be produced in Carlyle H.
Hill v. Forward Air Solutions, Inc. (Civil Action No.: 3:10-cv-00665-RJC-DCK) and hereby
agree to comply with and be bound by the terms and conditions of said Order unless and until
modified by further Order of this Court. I acknowledge that I am about to receive
CONFIDENTIAL information in said consolidated actions and certify my understanding that
such CONFIDENTIAL information is being provided to me pursuant to the terms and
restrictions of the Consent Protective Order. I understand that such information and any copies I
make of any documentary material containing CONFIDENTIAL information or any notes or
other records that may be made regarding any such information shall not be disclosed to others,
except other qualified persons as defined in that Order. I hereby consent to the jurisdiction and
contempt power of said Court for purposes of enforcing this Order.
Signed: ___________________________
Dated: ____________________________

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