Gardin v. Hi-Tex, Inc.

Filing 23

CONSENT PROTECTIVE ORDER. Signed by Senior Judge Graham Mullen on 6/16/2015. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO: 3:14-cv-00494
____________________________________
)
)
)
Plaintiff,
)
)
)
)
HI-TEX, INC., a/k/a CRYPTON, INC.,
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a Michigan corporation,
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Defendant.
)
____________________________________)
RONNIE GARDIN,

CONSENT PROTECTIVE ORDER
The parties have jointly moved the Court pursuant to Rule 26(c) of the Federal Rules of
Civil Procedure for entry of a Consent Protective Order to expedite the flow of discovery
materials, facilitate the prompt resolution of discovery disputes as well as disputes concerning
confidentiality, protect certain materials designed as confidential (“Confidential Materials”), and
ensure that protection is afforded only to material so designated (Doc. No. 22).
IT IS HEREBY ORDERED THAT:
1. General Scope of the Agreement. This Consent Protective Order shall govern
certain documents and other materials produced in response to any discovery request or other
request for information by Plaintiff Ronnie Gardin (“Plaintiff”) and Defendant Hi-Tex, Inc.,
a/k/a Crypton, Inc. (“Defendant”) in this action, all information contained therein, and all copies,
excerpts or summaries thereof, specifically including, but not limited to, answers to requests for
admissions, answers to interrogatories, responses to requests for production of documents and
documents produced in accordance therewith, documents subpoenaed in connection with

depositions, deposition testimony, and any deposition transcript or portion thereof as to which
protection is sought in accordance with this Agreement. The following documents and/or
information may be designated as “Confidential” pursuant to this Order: (a) plaintiff’s medical
records, and other documents including health-related information; (b) personal information of
Defendant’s employees, including, but not limited to: Social Security numbers, tax information,
and health insurance/health-related information; and (c) personal or personnel file information
and records of Defendant’s current or former employees.
2. Redaction of Certain Information. The Parties shall be allowed to redact the
following information from any documents provided pursuant to this Order: (a) Social Security
numbers; (b) dates of birth and (c) financial account numbers.
3. Designation as Confidential: Good Faith Requirement. Any party producing or
furnishing information of any nature to another party, to the Court, or at a deposition in
connection with this litigation may designate documents or information as “Confidential,” in
accordance with the procedures set forth herein. Such information could include a document or
part thereof, interrogatory answer, response to request for admissions, deposition testimony,
excerpts and summaries of such information, or other materials as set forth in Paragraph 1 of this
Agreement. Such designation shall be made at the time the information is produced or furnished,
or at a later time as provided herein.
No party may designate information as “Confidential” without first determining in good
faith that the information may be so designated as provided in this Order and as contemplated by
Rule 26(c) of the Federal Rules of Civil Procedure.
4. Procedure for Designing Information as Confidential. Parties may designate
“Confidential Materials” in the following manner:

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a)

In the case of documents or other written materials, by affixing to each
page of every such document, at the time of production, the word
“Confidential” by stamp or other method which will make the work
conspicuous;

b)

In the case of answers to interrogatories, designation shall be made by
placing the work “Confidential” adjacent to or at the end of any answer
deemed to contain confidential information. Alternatively, answers
deemed to contain confidential information may be bound separately and
marked with the word “Confidential”;

c)

In the case of depositions or other pretrial testimony in this action by
parties or any of their officers or employees, by a statement to that effect
on the record by counsel for the party who claims that Confidential
Materials are about to be or have been disclosed. Alternatively, a party
may designate information disclosed at such deposition as Confidential
Materials by informing all parties in writing, within thirty (30) days of
receipt of the transcript or other date as agreed upon by the parties, of the
specific pages and lines of the deposition transcript which are deemed
Confidential. Each party shall attach a copy of such written statement to
the face of the transcript and each copy thereof in its possession, custody,
or control. All depositions shall be treated as Confidential for a period of
thirty (30) days after a full and complete transcript of the deposition is
available or other date as agreed upon by the parties. Unless the parties
intend to designate all of the information contained within a particular

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document or deposition testimony as Confidential Materials, counsel for
that party should indicate in a clear fashion the portion of the document or
testimony which is intended to be designated as confidential; and
5. Restricted Use of Confidential Information: The use of information designated as
“Confidential” will be restricted as specifically indicated below:
a)

Documents/information designated as “Confidential” pursuant to
Paragraphs 1 through 4 of this Order shall be used solely for the purposes
of this action and shall not be disclosed to any person except the following
individuals:
i)

the Court (including the Clerk’s office, stenographic reporters and
videographers, and any special master or mediator appointed by
the Court, engaged in such proceedings as are necessary to the
preparation for trial and trial of this action);

ii)

counsel for the parties, their staff members, their professional and
para-professional employees, or other agents or other
representatives of either party, as necessary to prepare this case for
litigation;

iii)

any experts or service contractors (i.e., court reporters or outside
photocopying or imaging services) associated by the parties
regarding this action;

iv)

the parties to this litigation; provided, that no party shall be

permitted to maintain a copy of any document designated as
Confidential by any other party;

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v)

deponents, who may be shown Confidential Information in
preparation for their deposition and during their deposition, but
shall not be permitted to keep copies of said Confidential
Information nor any portion of the deposition transcript reflecting
the Confidential Information;

vi)

any potential witness as necessary to prepare this case for
litigation; provided, that no such person shall be permitted to
maintain a copy of any document designated as Confidential;

vii)

representative(s) of the insurance carrier for the Defendant who are
responsible for making decisions regarding the defense and
resolution of the case;

viii)

any other person or entity to whom the Court orders or allows
disclosure after notice and opportunity for hearing; or

ix)
b)

by mutual consent of the parties.

Documents produced pursuant to this Order shall not be used for any
purpose other than evidence in this litigation and may not be disclosed
under any circumstances to anyone not connected with this action as a
party, witness, counsel, consultant, staff person or Court personnel.

6.

Acknowledgment of Agreement. All persons to whom Confidential Materials

are disclosed pursuant to Paragraph 5 of this Order shall be bound by this Order. It shall be the
responsibility of counsel for each party to this action to ensure that persons authorized to receive
Confidential Materials pursuant to Paragraph 5 of this Order have knowledge of the terms of this

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Order and agree to be bound by them. Any person other than Plaintiff and employees of
Defendant, counsel of record, employees of counsel of record, representative(s) for the insurance
carrier for the Defendant, the court and its personnel, and court reporters and their staff must
execute the form attached hereto as Attachment 1 prior to the disclosure of Confidential
Materials, which shall be maintained in confidence by the counsel disclosing such information.
Any persons breaching the provisions of this Order are subject to the contempt powers of this
Court.
7.

Inadvertent Disclosure. In the event a party inadvertently produces materials

which should have been, but were not, marked “Confidential,” the party may designate such
materials as “Confidential” by notifying counsel of the error and producing the documents again,
with the “Confidential” designation, within twenty (20) days of discovery of the inadvertent
production. The parties will then treat these documents as if they had been marked
“Confidential” when they were first produced, destroy any documents and copies not so marked,
and certify as to such destruction.
8.

Use of Confidential Materials in this Case. Nothing in this Agreement shall

prevent or impair the use by a party of Confidential Materials as set forth in Paragraphs 1 through
4 of this Agreement in proceedings in this litigation, including motion papers, affidavits, briefs,
other papers and depositions filed with the Court at any deposition, hearing, conference, or other
proceeding prior to trial so long as confidentiality of such information is protected as provided
herein. Nothing in this Agreement shall prevent or impair the use by a party of Confidential
Materials as set forth in Paragraphs 1 through 4 of this Agreement at trial in accordance with any
rules established by the Court. Furthermore, no party shall be deemed to have waived any
objections as to the relevancy, admissibility, discoverability or any other objection under the

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Federal Rules of Civil Procedure or the Federal Rules of Evidence in connection with any
proceeding in this action.
9.

Restricted Access Documents.
a)

Sealed Documents: When a party seeks to file Confidential Materials
under seal, said party shall accompany the request with a Motion to Seal.
The Motion to Seal may be filed without supporting memorandum only if
the filing party can cite a statute or rule (federal, local or standing order)
that requires the filing to be sealed. Absent such authority, the filing party
must submit a supporting memorandum that specifies:
i)

the exact document or item, or portions thereof, for which filing
under seal is requested:

ii)

how such request to seal overcomes the common law or the First
Amendment presumption to access;

iii)

the specific qualities of the material at issue which justify sealing
such material, taking into account the balance of competing
interests in access;

iv)
v)
10.

the reasons alternatives to sealing are inadequate; and
whether there is consent to the motion.

Challenging Confidentiality.

Acceptance by a party of any information,

document, or thing identified as “Confidential” pursuant to this Order shall not constitute a
concession that information, documents, or things are Confidential Materials. After attempting to
resolve any dispute regarding confidentiality between themselves, any party is entitled to

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challenge, though an appropriate Motion to the Court, any designation herein by any other party
at any time during this litigation.
11.

Right to Object. Notwithstanding the foregoing provisions, this Order shall not

prejudice the right of any party to object to discovery on other grounds. Any party may, upon
reasonable notice to the opposing party’s counsel, move for an order relieving it of the provisions
of this Order for good cause shown. All parties retain the right to apply to the Court for an order
affording additional protection to Confidential Materials as the circumstances may warrant.
Nothing contained herein shall prevent a party from seeking modification to this Order.
12.

Disclosure.
a)

Nothing contained herein shall prevent a party from disclosing, revealing
or using any documents, materials or other information which is already
lawfully in the possession of that party or which that party lawfully
obtains from any source other than the opposing party, and this Order shall
not otherwise apply to such documents, materials or other information,
except that either party may designate as Confidential any medical records
received in discovery in this matter.

b)

Nothing in this document shall prevent any party from producing any
document or information in his, her, or its possession in response to a
lawful subpoena or other compulsory process, provided that notice shall
be given to the other party prior to the date that the party subpoenaed is
required to response to respond to the subpoena or other compulsory
process in which materials designated confidential are sought.

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13.

Return of Confidential Information. Confidential materials and copies shall be

returned to the producing party within ninety days of the conclusion of this litigation (and any
appeals). At the option of the producing party, destruction of such confidential materials and
copies may be authorized instead. The party returning or destroying such document shall
provide attestation as to such return or destruction. Counsel for either party may retain one copy
of all documents marked Confidential for retention in their files only pursuant to applicable Bar
rules and regulations. However, the ultimate disposition of protected materials will be subject to
a final order of the court on the completion of litigation.
14.

Modification of the Agreement.

In the event of further proceedings in this

action, if any of the parties hereto believe that this Agreement unreasonably impedes discovery to
a party or the use of information discovered from a party for purposes of this litigation, or provides
insufficient protection regarding discovery materials produced by a party, such party may serve
notice upon the parties and request that the Court modify this Agreement.
15.

Protection of Copies.

All copies, extracts or summaries prepared from

Confidential Materials produced hereunder, but excluding any materials which in the good faith
judgment of counsel are work product materials, shall be subject to the same terms of this
Agreement as the Confidential Materials from which such copies, extracts, or summaries were
prepared, if properly designated.
16.

Notices. Notice required under this Agreement shall be in writing and provided to

the attorneys for the parties listed below. Notice to the parties shall be adequate if given solely to
the parties’ counsel of record.
17.

Effective Date. This Agreement shall be effective immediately and shall survive

the conclusion of this lawsuit.

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SO ORDERED.
Signed: June 16, 2015

AGREED to this 16th day of June, 2015.
By:

/s/Geraldine Sumter____________
GERALDINE SUMTER
N.C. State Bar No. 11107
Ferguson Chambers & Sumter, P.A.
309 East Morehead Street, Suite 300
Charlotte, North Carolina 28202
Telephone: [phone]
Facsimile:
[phone]
Email: [e-mail]
Attorney for Plaintiff

By:

/s/Katie W. Hartzog______________
KATIE WEAVER HARTZOG
N.C. State Bar No. 32989
Cranfill Sumner & Hartzog LLP
Post Office Box 27808
Raleigh, North Carolina 27808
Telephone: [phone]
Facsimile:
[phone]
Email: [e-mail]
Attorney for Defendant

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Attachment 1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO: 3:14-cv-00494
____________________________________
)
RONNIE GARDIN,
)
)
Plaintiff,
)
)
)
)
HI-TEX, INC., a/k/a CRYPTON, INC.,
)
a Michigan corporation,
)
)
Defendant.
)
____________________________________)
I, __________________________________, declare as follows:
I acknowledge receipt of a copy of the Consent Protective Order dated ______________,
2015, in Ronnie Gardin v. Hi-Tex, Inc., a/k/a Crypton, Inc., which is pending in the United States
District Court for the Western District of North Carolina, Charlotte Division, Civil Action No.
3:14-cv-00494, and agree that I:
1)

understand the terms thereof, and agree to comply with and be bound by its
provisions with respect to any information provided to me under the terms of this
Consent Protective Order;

2)

will not reveal any information provided to me under the terms of this Consent
Protective Order to anyone other than such persons designated in Paragraph 4 of
this Order; and

3)

will utilize such confidential information solely for the purposes of this litigation.

I further understand that if I fail to comply with the terms of the Consent Protective Order,
I may be subject to sanctions by the Court, and I consent to the jurisdiction of the above-referenced
Court for such purpose.
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.

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Dated: __________________________, 2015

Signature: ______________________________________

Printed Name: ___________________________________

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