Wilson v. Gaston County, NC et al

Filing 25

CONSENT PROTECTIVE ORDER. Signed by Senior Judge Graham Mullen on 12/3/2013. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

ABIGAIL WILSON,

)
)
Plaintiff,
)
)
vs.
)
)
GASTON COUNTY and JIM N. PUTMAN, III,
)
)
Defendants.
)
_____________________________________________)

3:13-CV-00058-GCM

CONSENT PROTECTIVE ORDER
This case is before this Court for entry of a protective order pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure and LCvR 6.1(I) (Doc. No. 24). Because of the nature of some of
the factual issues involved in this case, the parties anticipate that the discovery in this case may
include production and disclosures by the parties and by third parties of information that may be
confidential or proprietary, including, without limitation, financial information, medical records,
personnel information, and employment records. Accordingly, this Court believes that entry of this
Consent Protective Order is in the interest of all parties and in the interest of the fair and efficient
administration of justice. Therefore, until further order of this Court, it hereby is ordered that the
parties shall follow the procedures set forth below with respect to information, documents,
testimony, or tangible things produced or otherwise disclosed in this litigation:
1.

“CONFIDENTIAL Information” shall mean any information, documents, testimony,

or tangible things (“Information”) furnished in the course of this litigation regarded by a party as
confidential and/or private information, including proprietary data, trade secrets, other valuable or
commercially sensitive information, confidential and private information concerning parties,

witnesses, and persons not party to this action, and/or sensitive or otherwise confidential
information designated as “CONFIDENTIAL” pursuant to the procedures set forth below. The term
may include Information obtained by any party from a third party via subpoena, deposition, or other
discovery. The term “documents” shall be broadly construed to include information that is recorded
in any form, including but not limited to hard copy, electronically stored information, and audio and
video recordings.
2.

“CONFIDENTIAL” designations shall be made as follows:
a.

Information shall be designated CONFIDENTIAL within the meaning of this

Protective Order in the following ways:
i.

In the case of documents or tangible things, including the information

contained therein, that are produced by any party, designation shall be made by placing on each
page of the document or each tangible thing the legend or stamp CONFIDENTIAL.
ii.

In the case of documents or tangible things, including the information

contained therein, that are obtained by subpoena or other discovery from third parties, the
documents or tangible things automatically shall be deemed CONFIDENTIAL Information upon
receipt, and the receiving party shall furnish copies thereof to all parties within fifteen business
days. All parties then shall have ten calendar days after receipt within which to formally designate
any documents or tangible things as CONFIDENTIAL Information. If no party designates any such
document or tangible thing as CONFIDENTIAL within said ten-day period, then the
CONFIDENTIAL designation will terminate.
iii.

In the case of responses to interrogatories and requests for admission,

including the information contained therein, designation shall be made by placing on the pages
containing the CONFIDENTIAL Information the legend CONFIDENTIAL.

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iv.

In the case of deposition testimony, counsel may designate, on the

record, those portions of a deposition that counsel believes contain CONFIDENTIAL Information.
If designation of CONFIDENTIAL Information is made, those portions of said depositions
involving such CONFIDENTIAL Information will be taken with no one present except those
persons who are authorized to have access to such CONFIDENTIAL Information in accordance
with this Protective Order. A witness whose deposition is being taken may see any document
identified as CONFIDENTIAL if the witness is within the category of persons entitled to see this
type of information, pursuant to the provisions described below in subsections 3(a) and (b). Any
party shall have 30 days after the receipt of the deposition transcript to inform the other parties to
the action of the portions of the transcript (by specific page and line reference) to be designated as
CONFIDENTIAL. Unless otherwise agreed by counsel, the right to make such designation shall be
waived unless made within the 30-day period. Prior to such designation or the expiration of the 30day period, the entire deposition transcript shall be deemed CONFIDENTIAL Information.
b.

The parties agree to designate Information as CONFIDENTIAL on a good-

faith basis and not for purposes of harassing the other parties or for purposes of unnecessarily
restricting the other parties’ access to information concerning the lawsuit.
c.

Except as permitted by further order of the court, or by subsequent written

agreement of the parties, such designated Information shall be received by counsel of record upon
the terms and conditions of this Protective Order.
3.

The following restrictions apply to Information designated as CONFIDENTIAL:
a.

Disclosure

of

Information

designated

CONFIDENTIAL,

including

summaries thereof, shall be limited to the Court; court reporters and videographers of sworn
proceedings; the parties’ counsel of record and the employees of such counsel who are assisting

3

with this matter; Defendant Gaston County’s internal counsel, directors, and managers; Plaintiff,
provided that Plaintiff’s counsel must retain physical custody of the CONFIDENTIAL Information
disclosed to Plaintiff, including any copies thereof; and to the following persons, who shall be
required first to execute a written declaration, in the form attached hereto as Exhibit A: (i)
consultants or experts retained by the parties to consult or testify in the case, but only to the extent
the information is necessary for the consultation work or to prepare to testify; (ii) services retained
by counsel to photocopy or image documents or to prepare charts, summaries, timelines,
illustration, or other demonstrative materials to be used in the litigation; and (iii) witnesses and
prospective witnesses to the extent deemed necessary by counsel to prepare for or give testimony
regarding facts at issue in this litigation, or to assist counsel in performing work in this litigation,
but as to this category (iii), counsel must retain physical custody of the CONFIDENTIAL
Information unless consent to release it is given by the party that designated it CONFIDENTIAL.
The originals of all signed declarations shall be maintained by the party who procures the signature
throughout the duration of this litigation, including all appeals.
b.

All Information that is designated CONFIDENTIAL under this Protective

Order shall be kept confidential and shall not be given, shown, made available, discussed or
otherwise communicated in any manner (“disclosed”), either directly or indirectly, to any person not
authorized to receive the Information under the terms of this Protective Order. CONFIDENTIAL
Information received by any authorized person shall be used only for purposes of this litigation and
for no other purpose.
c.

In no case shall Information designated CONFIDENTIAL be disclosed to

any person or entity who is not involved in this litigation and who has a specific need to know or
otherwise come into contact with such Information.

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4.

If, through inadvertence, a party produces any Confidential Information without

designating it as CONFIDENTIAL, the party may, as soon as reasonably practical, inform the other
parties of the intended CONFIDENTIAL designation, and all parties shall treat such Information as
CONFIDENTIAL Information under this Protective Order. To the extent that any party already has
disclosed this Information, that party promptly shall notify the designating party as to the specific
recipients of such Information and shall take all reasonable steps to remove such Information from
said recipients unless they otherwise are entitled to disclosure under this Order.
5.

If any Information designated CONFIDENTIAL is disclosed to any person other

than in the manner authorized by this Order, the person responsible for the disclosure must
immediately bring all pertinent facts relating to such disclosure to the attention of counsel for the
designating party and, without prejudice to any other rights and remedies of the parties, make every
effort to prevent further disclosure by it or by the person who was the recipient of such Information.
6.

No person or party shall directly or indirectly utilize or disclose any

CONFIDENTIAL Information for any purpose other than the prosecution or defense of this action,
including any appeals and retrials thereof, and such utilization or disclosure must be in compliance
with this Order.
7.

Before filing with the Court any document (including, but not limited to, pleadings,

briefs, memoranda, depositions, and exhibits) containing or consisting of Information that has been
designated CONFIDENTIAL, counsel shall confer with counsel for the party that so designated the
Information about how it should be filed. If the party that so designated the Information desires that
the materials be filed under seal, then the filing party shall file the materials in accordance with the
applicable civil and local rules, with notice served upon the designating party. Only those portions
of the document containing or consisting of Information that has been designated CONFIDENTIAL

5

need be filed under seal, and the filing of the materials under seal shall not be binding on the Court.
Within seven days of service of such notice, the party desiring that the materials be maintained
under seal shall file with the Court a Motion to Seal and supporting memorandum of law specifying
the interests that would be served by restricting public access to the Information. The party that
initially filed the materials need not file any such Motion to Seal or otherwise defend another
party’s desire that the materials remain sealed. The Court will grant the Motion to Seal only after
providing adequate notice to the public and opportunity for interested parties to object, after
carefully weighing the interests advance by the movant and those interests favoring public access to
judicial documents and records, and upon finding that the interests advance by the movant override
any common law or constitutional right of public access which may attach to the documents or
Information. Documents and Information submitted under seal in accordance with this paragraph
will remain under seal pending the Court’s ruling. If the party desiring that the Information be
maintained under seal does not timely file a Motion to Seal, then the materials will be deemed
unsealed, without need for order of the Court.
8.

Each time a party seeks to file under seal confidential documents, things, and/or

information, said party shall accompany the request with a motion to seal and a supporting
memorandum of law specifying: (a) the exact documents, things, and/or information, or portions
thereof, for which filing under seal is requested; (b) where it is necessary for the court to determine
the source of the public’s right to access before a request to seal may be evaluated, whether any
such request to seal seeks to overcome the common law or the First Amendment presumption to
access; (c) the specific qualities of the material at issue which justify sealing such material, taking
into account the balance of competing interests in access; (d) the reasons why alternatives to sealing
are inadequate; and (e) whether there is consent to the motion. Finally, in addition to the motion

6

and supporting memorandum, said party must set out such findings in a proposed order to seal for
the court.
9.

The parties and their attorneys shall inform all witnesses, consultants, employees,

agents, court reporters, and anyone else who has or had access to any material designated
CONFIDENTIAL Information of the substance of this Order.
10.

Acceptance or receipt by any party of any Information designated as

CONFIDENTIAL, or with no designation, shall not constitute a concession that the Information is
properly so designated or not designated. If any party disagrees with the designation of any such
Information as CONFIDENTIAL, then the party first shall try to resolve such dispute on an
informal basis through consultation with counsel. If agreement cannot be reached by counsel, then
the party opposing the designation may present such dispute to the Court by motion, but all such
designations shall be respected pursuant to the terms of this Order until the Court rules on the
motion. In the resolution of such matter, the burden of establishing confidentiality shall be on the
party who made the claim of confidentiality. Notwithstanding the designation or non-designation of
any Information as CONFIDENTIAL, the parties reserve their right to seek relief regarding material
that they believe was illegally obtained, including, but not limited to, the return of the material
and/or damages for misappropriation or unauthorized use.
11.

This Order shall be without prejudice to the right of any party to oppose production

of any Information on grounds other than confidentiality.
12.

This Order shall not prevent any party from applying to the Court for relief herefrom,

from applying to the Court for further or additional protective orders, or from agreeing with the
other parties to modify or vacate this Order, subject to the approval of the Court.

7

13.

Within 30 days of the conclusion of this action, including any appeals, all

Information designated as CONFIDENTIAL by a party pursuant to this Order, and all copies
thereof, shall be destroyed by all other parties, except that counsel for each party is entitled to keep
copies of pleadings and correspondence and any attachments or exhibits thereto, including
CONFIDENTIAL Information, used in this litigation in a secure storage area subject to the terms of
this Consent Order. Within 24 hours of destruction, a party shall confirm such destruction in
writing to the designating party. The provisions of this Order insofar as they restrict the disclosure,
communication of, and use of CONFIDENTIAL Information produced hereunder shall continue to
be binding after the conclusion of this action.
14.

Nothing in this Order shall prevent or limit a party who has designated any

Information as CONFIDENTIAL from, in writing and without Court Order, releasing such
Information.
15.

Any party to this action may file a motion requesting that the Court sanction or hold

in contempt of Court anyone who violates the terms of this Order.
16.

The ultimate disposition of protected materials shall be subject to a final order of the

Court upon completion of litigation.

SO ORDERED.
Signed: December 3, 2013

8

WE CONSENT:
VAN KAMPEN LAW, PLLC
By:

/s/ Joshua R. Van Kampen
Joshua R. Van Kampen
North Carolina State Bar No. 32168
Email: [e-mail]
Sean F. Herrmann
North Carolina State Bar No. 44453
Email: [e-mail]
225 East Worthington Avenue
Charlotte, North Carolina 28203
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff

CRANFILL SUMNER & HARTZOG LLP
By:

/s/ Paul H. Derrick
Paul H. Derrick
North Carolina State Bar No. 27366
P.O. Box 27808
Raleigh, North Carolina 27611-7808
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendant Gaston County

STOTT, HOLLOWELL, PALMER & WINDHAM, LLP
By:

/s/ Martha Raymond Thompson
Martha Raymond Thompson
North Carolina State Bar No. 16020
P.O. 995
Gastonia, North Carolina 28053-0995
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendant Gaston County

9

CLAWSON AND STAUBES, PLLC
By:

/s/ Andrew J. Santaniello
Andrew J. Santaniello
North Carolina State Bar No. 23532
Email: [e-mail]
756 Tyvola Road, Suite 130
Charlotte, North Carolina 28217
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant Putman

10

EXHIBIT A
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

ABIGAIL WILSON,

)
)
Plaintiff,
)
)
v.
)
)
GASTON COUNTY and JIM N. PUTMAN, III,
)
)
Defendants.
)
_____________________________________________)

C.A. No. 3:13-cv-00058-GCM

DECLARATION
1.

My name is _______________________________. I have personal knowledge

of the facts set forth in this Declaration, and if called and sworn as a witness, I would testify
competently to those facts.
2.

I live at:

.

3.

I am employed as (state position):

.

4.

The full name and address of my employer is:

5.

I am aware that a Consent Protective Order has been entered in the above-

captioned case. A copy of that Protective Order has been given to me. I have carefully reviewed
its terms and conditions.
6.

I

agree

that

documents,

information,

testimony,

and

tangible

things

(“Information”) designated as CONFIDENTIAL shall be subject to the terms of the Protective
Order and agree to comply with and be bound by the terms of the Protective Order.

7.

Without limiting the foregoing, I agree that I will not disclose or discuss any

Information designated CONFIDENTIAL except as allowed by Protective Order.
8.

I agree to use any Information designated CONFIDENTIAL solely in connection

with participation in this action and for no other purpose.
9.

I am aware that contempt sanctions may be entered against me for violation of the

Protective Order.
10.

I agree to waive any objections to the exercise of personal jurisdiction over me by

the Court.

I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing
declaration is true and correct.
Executed this ____ day of _____________________, 20___.

Signature

EXHIBIT B

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION

ABIGAIL WILSON,

)
)
Plaintiff,
)
)
v.
)
)
GASTON COUNTY and JIM N. PUTMAN, III,
)
)
Defendants.
)
_____________________________________________)

C.A. No. 3:13-cv-00058-GCM

DECLARATION
1.

My name is _______________________________. I have personal knowledge

of the facts set forth in this Declaration, and if called and sworn as a witness, I would testify
competently to those facts.
2.

This statement is submitted in support of my request for access to materials under

the Consent Protective Order in this action.
3.

I have been retained by

consultant or expert witness. My title is

, a party to this action, as a
, and my employer is

.
4.

My professional relationship with the party for whom I am retained in this

proceeding and its personnel is strictly as a consultant on issues relevant to this proceeding. I
identify here (by writing “none” or listing names, position, and responsibilities) any member of
my immediate family who is an officer or holds a management position with a party in this
action or with any other firm that might gain a competitive advantage from access to the material
disclosed under the Consent Protective Order:

5.

I have attached the following information:

A.

a current resume describing my education and employment history to date;

B.

a list of all clients for whom I have performed work within the two years

prior to the date of this statement and a brief description of the work performed;
C.

a description of any work that my employer has performed for any party to

this proceeding within the two years prior to the date of this statement; and
D.

a description of the financial interests that I, my spouse, and/or my

immediate family has in any entity that is an interested party in this proceeding or whose
Confidential Information will be reviewed.
6.

I am aware that a Consent Protective Order has been entered in the above-

captioned case. A copy of that Protective Order has been given to me. I have carefully reviewed
its terms and conditions.
7.

I

agree

that

documents,

information,

testimony,

and

tangible

things

(“Information”) designated as CONFIDENTIAL shall be subject to the terms of the Protective
Order and agree to comply with and be bound by the terms of the Protective Order.
8.

Without limiting the foregoing, I agree that I will not disclose or discuss any

Information designated CONFIDENTIAL except as allowed by Protective Order.
9.

I agree to use any Information designated CONFIDENTIAL solely in connection

with participation in this action and for no other purpose.
10.

I am aware that contempt sanctions may be entered against me for violation of the

Protective Order.
11.

I agree to waive any objections to the exercise of personal jurisdiction over me by

the Court.
I declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing
declaration is true and correct.
Executed this ____ day of ________________________, 20___.

Signature