Harper v. Lemon et al
Filing
67
PROTECTIVE ORDER. Signed by Senior Judge Graham Mullen on 9/13/2017. (eef)
DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-182-GCM
MICHAEL S. HARPER,
)
)
Plaintiff,
)
)
vs.
)
)
TERRY LEMON,
)
FNU WHITLEY,
)
)
Defendants.
)
___________________________________ )
ORDER
Upon a Joint Motion for Protective Order, filed by Defendants Terry Lemon and FNU
Whitley, (Doc. No. 64), the motion is hereby GRANTED, according to the following terms:
The discovery process in this action may involve the production of information (which
term includes, but is not limited to, data or data compilations in the form of documents, electronic
media, testimony, or any other form or medium and documents in possession of the North
Carolina Department of Public Safety (“NCDPS”) regarding Plaintiff Michael Harper (OPUS
#1078044) and other individuals who are or have been in custody with or employed by NCDPS
that a party contends is confidential. Good cause exists for the entry of a protective order limiting
the disclosure of such information.
Pursuant to Fed. R. Civ. P. 26(c), it is ORDERED as follows:
1. Scope of the Order. This Order applies to all information produced in discovery, filed, or
otherwise presented in the course of the prosecution or defense of this action, provided that the
presiding judicial officer shall determine the procedure for presentation of Confidential
Information at pre-trial hearings and trial.
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2. Use of Confidential Information. All Confidential Information, as defined in this Order, shall
be used solely in the prosecution or defense of this action including, but not limited to,
mediation, other alternative dispute resolution processes, any other settlement process, and all
other pretrial, trial, and post-trial proceedings in this action, and shall not be used or disclosed by
any person for any other purpose.
3. Disclosure. “Disclose” or “disclosure” means to provide, impart, transmit, transfer, convey,
publish, or otherwise make available.
4. Confidential Information. “Confidential Information” consists of “General Confidential
Information” and “Attorneys’ Eyes Only Confidential Information,” which are defined as
follows:
a. “General Confidential Information” means:
1)
The personnel file, as that term is defined in N.C.G.S. § 126-22(3), maintained by
the North Carolina Department of Public Safety (“DPS”) of any current or former
employee of the DPS, excluding personal information about the employee as described in
Paragraph 4(b)(1).
2)
The medical and mental health records generated in the treatment or handling of
the named Plaintiff during his incarceration within the NCDPS which are deemed
confidential by N.C.G.S. §§ 148-74 and -76.
3)
Records generated in the housing and handling of the named Plaintiff during his
incarceration within the NCDPS, including video recordings, which are deemed
confidential by N.C.G.S. §§ 148-74 and -76.
4)
Other information that is potentially embarrassing or invasive of the privacy of a
person not a party to this litigation and therefore an appropriate subject of a protective
order under Rule 26(c)(1) of the Rules of Civil Procedure.
5)
Reports of, investigations into, and any findings regarding alleged incidents of
excessive force by any named Defendant against Plaintiff or anyone other than the named
Plaintiff.
b. “Attorneys’ Eyes Only Confidential Information” means:
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1)
Information including reports, records, and all other documents pertaining to other
inmates not named as a Plaintiff in this case.
2)
Personal information about any current or former employee of the DPS that is not
related to the employee’s job performance or duties, such as social security numbers,
home addresses and telephone numbers, insurance records or designations, medical
and/or disability information, and other purely private information.
3)
The medical and mental health records maintained by the DPS for current or
former inmates of the DPS, other than the medical and mental health records of the
named Plaintiff.
4)
Highly sensitive security information as it relates to investigations, security
designations, staffing patterns and logs, schematic or other drawings and diagrams, and
other sensitive security information.
5. Disclosure of General Confidential Information. General Confidential Information shall not
be disclosed to anyone except:
a.
The court and its personnel;
b.
The parties to this action;
c.
Counsel for the parties to this action and employees of said counsel;
d.
Experts or consultants specifically retained by the parties or their attorneys to
assist them in the preparation of this case or to serve as expert witnesses at the trial of this
action, but only after execution of a Confidentiality Agreement as provided in Paragraph
7; and
e.
Court reporters or videographers engaged to record depositions, hearings, or the
trial in this action.
6. Disclosure of Attorneys’ Eyes Only Confidential Information. Attorneys’ Eyes Only
Confidential Information shall not be disclosed to anyone except:
a.
The court and its personnel;
b.
Counsel for the parties to this action and employees of said counsel;
c.
Experts or consultants specifically retained by the parties or their attorneys to
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assist them in the preparation of this case or to serve as expert witnesses at the trial of this
action, but only after execution of a Confidentiality Agreement as provided in Paragraph
7; and
d.
Court reporters or videographers engaged to record depositions, hearings, or the
trial in this action.
7. Confidentiality Agreements. Before Confidential Information is disclosed to any person
described in Paragraphs 5(d) or 6(c) of this Order, counsel for the party disclosing the
information shall inform the person to whom the disclosure is to be made that Confidential
Information shall be used only for the purpose of the prosecution or defense of this action, and
shall obtain from the person to whom the disclosure is to be made a signed confidentiality
agreement in the form attached hereto as Exhibit A. Counsel for the party disclosing the
Confidential Information to said person shall maintain the original Confidentiality Agreement
and need not produce it except by agreement of the parties or upon order of the court.
8. Designation of Confidential Information. Information shall be designated as Confidential
Information in the following manner:
a.
In the case of information reduced to paper form, the designation shall be made:
(1)
by placing the appropriate legend, “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” for General Confidential Information or “CONFIDENTIALATTORNEYS’ EYES ONLY” for Attorneys’ Eyes Only Confidential Information, on
each page containing such information or;
(2)
by such other means as agreed to by the parties. The party disclosing the
information shall designate the documents as confidential at or before the time of
disclosure. A party may make the designation with respect to information disclosed by
another party by a writing directed to the producing party’s counsel. The producing
party’s counsel shall then be responsible for labeling the designated information as
provided herein.
b.
Information on a computer disk, data tape, or other medium that is in a native
format shall be designated as General Confidential Information or Attorneys’ Eyes Only
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Confidential Information:
(1)
by informing counsel for the parties to this action in writing that the computer
disk, data tape, or other medium contains such Confidential Information and, where
applicable, specifying by file name or other particular information being designated or;
(2)
by such other means as agreed to by the parties. To the extent practicable, such
physical medium should also be labeled using the appropriate legend. Any party
receiving Confidential Information designated under this Paragraph 8(b) shall then be
responsible for appropriately labeling any printed version(s) of such information that it
creates.
c.
In the case of deposition testimony, any party may designate information
disclosed during a deposition as General Confidential Information or Attorneys’ Eyes Only
Confidential Information by either:
(1)
identifying on the record at the deposition the information that is to be treated as
Confidential Information or;
(2)
marking the portions of the deposition transcript to be designated as Confidential
Information within 21 days after receipt of the final transcript. When the deponent and
the attending parties do not agree to waive the reading, correcting, and signing of the
transcript, all information disclosed during a deposition shall be treated as Attorneys’
Eyes Only Confidential Information before the expiration of the 21-day period unless
otherwise agreed by the parties and the deponent. If any deposition testimony or any
document or information used during the course of a deposition is designated as
Confidential Information, each page of the deposition transcript containing such
information shall be labeled with the appropriate legend specified in Paragraph 8(a), and
the first page of the deposition transcript shall be labeled in a manner that makes it
readily apparent that the transcript contains Confidential Information.
d.
Any other information that is not reduced to physical form or cannot be
conveniently labeled shall be designated as Confidential Information by serving a written
notification of such designation on counsel for the other parties. The notice shall, where
applicable, specify by file name and/or page number the particular information being designated.
9. Disputes over Designations. If any party objects to the designation of any information as
confidential, counsel for the objecting party and counsel for the designating party shall attempt to
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resolve the disagreement on an informal basis. If the objection is not so resolved, the objecting
party may move the court for appropriate relief. The information in question shall continue to be
treated as confidential in accordance with the disputed designation unless and until the court
issues a final ruling that the information does not qualify for such a designation. The nonfiling by
the objecting party of a motion for relief shall not be deemed an admission that the information
in question qualifies for the disputed designation.
10. Inadvertent Disclosure of Confidential Information. Inadvertent disclosure of Confidential
Information, without identifying the same as confidential, shall not be deemed a waiver of
confidentiality with regard to similar or related information nor shall it be deemed a waiver of
confidentiality with regard to the information inadvertently disclosed if promptly called to the
attention of counsel for each receiving party.
11. Filing of Confidential Information Under Seal. Before filing a document containing any
Confidential Information, the filing party must confer with the other parties about how the
document should be filed. If the filing party decides that the document should be sealed, the
filing party shall file the document along with a motion to seal and supporting memorandum
showing that the document may properly be sealed (see, e.g., Stone v. University of Maryland
Medical System Corp., 855 F.2d 178, 180-81 (4th Cir. 1988)), and as may be provided in the
Local Civil Rules. If a party other than the filing party seeks to have the document sealed, the
filing party shall file the document as a proposed sealed document. But instead of a motion to
seal and supporting memorandum, the filing party shall file contemporaneously with the
document a notice stating that, pursuant to this Paragraph 11, any party seeking the sealing of the
document must within 7 days file a motion to seal and supporting memorandum. If the party
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seeking the sealing of the document does not file a motion to seal and supporting memorandum
within 7 days, or such motion to seal is denied, the filing party may file the proposed sealed
document as a publicly filed document within 3 days after the expiration of the seven-day period
or entry of the order denying the motion to seal, consistent with any Local Civil Rules.
12.
Use of Confidential Information at Trial. This Protective Order does not restrict or limit
the use of Confidential Information at any hearing or trial. However, in the event a party in this
litigation wants to file with or submit to the Court any Confidential Information at a hearing or at
trial, that party shall first notify the designating party and attempt to reach an agreement
regarding filing or redaction of the Confidential Information. If an agreement cannot be reached
as to presentation of the Confidential Information, the party seeking to submit the Confidential
Information shall obtain permission from the Court to file or submit said information
Confidential Information under seal in the same or similar manner set forth in Paragraph 11.
13. Authors/Recipients. Except as specifically provided herein, this Order shall not limit use by
a party of its own Confidential Information, nor shall this Order limit the ability of a party to
disclose any document to its author or to anyone identified on the face of the document as a
recipient.
14. Return of Confidential Information. Within 60 days of the conclusion of this action,
including any appeals, a party that produced Confidential Information may request in writing its
return by any other party. Within 60 days after service of such a request, any party that received
the Confidential Information shall either return it to counsel for the producing party or destroy it,
at the election of the receiving party; provided that the information shall not be destroyed if
otherwise ordered by the court or a motion for relief from this Paragraph 13 is pending. If a
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receiving party elects to destroy the Confidential Information rather than returning it to the
producing party, counsel for the receiving party shall provide to the producing party by the 60day deadline a signed certification that the Confidential Information has been destroyed. This
Paragraph shall not be construed to require the return or destruction of any regularly maintained
litigation files held by the attorneys of record for each party as archival records or other attorney
work-product created for any party. Any Confidential Information, or portions or excerpts
thereof, which are not returned or destroyed pursuant to this Paragraph shall remain subject to
the terms of this Order. The return of trial exhibits by the court shall be governed by the Local
Civil Rules.
15. Admissibility of Information. Neither the terms of this Order nor the disclosure or
designation as confidential of any information pursuant to it shall be deemed to establish or
vitiate the admissibility under the Federal Rules of Evidence of any information subject to this
Order.
16. Confidential Employee Information. Pursuant to N.C.G.S. § 126-24(4), this Order authorizes
the disclosure of confidential portions of the personnel files maintained by the DPS-DAC of
current or former employees in accordance with the terms of this Order.
17. Modification. This Order is without prejudice to the right of any party or witness to seek
modification or amendment of the Order by motion to the court, or to seek and obtain additional
protection with respect to Confidential Information as such party may consider appropriate.
Signed: September 13, 2017
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WE CONSENT:
FOR DEFENDANTS:
JOSH STEIN
Attorney General
/s/ Kimberly D. Grande
Kimberly D. Grande
Assistant Attorney General
N.C. State Bar No. 40708
N.C. Department of Justice
P.O. Box 629
Raleigh, North Carolina 27602-0629
Telephone: (919) 716-6567
Facsimile: (919) 716-6761
E-Mail: kgrande@ncdoj.gov
FOR PLAINTIFF:
D. Jared Nobles , Jr.
N.C. State Bar No. 50909
Moore & Van Allen, PLLC
100 North Tryon Street, Suite 4700
Charlotte, NC 28202
704-331-1097
Email: jarednobles@mvalaw.com
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