McClary v. Searles

Filing 32

CONSENT PROTECTIVE ORDER. Signed by Chief Judge Frank D. Whitney on 09/01/2015. (Pro se litigant served by US Mail.)(jlk)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-77-FDW
RONALD MCCLARY,

)
)
Plaintiff,
)
)
vs.
)
)
ANTHONY SEARLES,
)
)
Defendant.
)
___________________________________ )

CONSENT PROTECTIVE ORDER

Certain additional confidential documents, material, and information (hereinafter,
“Confidential Information”) in the possession, custody or control of the North Carolina
Department of Public Safety, Division of Adult Correction (hereinafter, “the DAC”) is necessary
for Defendant Anthony Searles, M.D. (“Defendant Searles”), to obtain in order to defend against
Plaintiff’s allegations in the above named suit and it may be necessary that additional Confidential
Information will need to be disclosed during the course of this litigation. It is anticipated that some
portion of the Confidential Information relates to Plaintiff, an inmate currently or formerly in the
custody of the DAC, or relates to current or former employees, contract employees or independent
contractors of the DAC. The Confidential Information is expected to include inmate records
deemed confidential pursuant to N.C.G.S. §§ 148-74 and -76. In addition, the information may
also be confidential under 42 CFR 2.1 et seq., N.C.G.S. § 122C-52, and HIPAA. In light of the
confidentiality of this material, and in an effort to protect that confidentiality, the DAC requires
the entry of a consent order to order the release of additional Confidential Information and to
ensure that the additional Confidential Information is not disclosed or used for any purpose except
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in connection with this litigation. In the interests of justice and to further the legitimate causes of
this litigation, the DAC agrees to disclose the additional Confidential Information in its custody
and possession to Young Moore and Henderson, Counsel for Defendant Searles, subject to the
conditions set forth herein and adopted by the Court. Accordingly, upon the agreement of counsel,
it is hereby ORDERED that:
1.

Scope of the Order.

This Order requires DAC to disclose Confidential

Information, as defined and designated in accordance with this Order, to Counsel for
Defendant Searles. This Order governs the handling and disclosure of all documents,
materials and information identified, produced, given, exchanged, obtained, or filed herein
and which are designated by DAC as “confidential information.”
2.

Agreement on Use of Confidential Information. All Confidential Information, as

defined and designated in accordance with 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.” When used in this Order, the term “Disclosure” shall mean to

provide, impart, transmit, transfer, convey, publish, or otherwise make available.
4.

“Confidential Information.” For the purposes of this Order and during the course

of this litigation, the parties to this Order identify “General Confidential Information” and
define it as follows:
a.

“General Confidential Information” means:

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(1)

Inmate records of Plaintiff Ronald McClary including, but not
limited to, grievances, use-of-force reports, incident reports,
external and internal movement records, confidential inmate witness
statements provided in the course of disciplinary investigations, and
infraction reports pertaining to Plaintiff;

(2)

The medical records maintained by the DAC pertaining to Plaintiff
Ronald McClary;

(3)

The mental health records maintained by the DAC pertaining to
Plaintiff Ronald McClary; and

(4)

Other documents, materials, or information that are potentially
embarrassing or invasive of the privacy of a person not a party to
this litigation and therefore an appropriate subject of a Consent
Order.

5.

Disclosure of Confidential Information. General Confidential Information shall

not be disclosed to anyone except:
a.

The court and its personnel;

b.

The parties to this action as required by law and pursuant to the terms of
this Order;

c.

Young Moore and Henderson, Counsel for Defendant Searles to this action
and employees and/or vendors of Young Moore and Henderson;

d.

Members of the Inmate Grievance Resolution Board;

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e.

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 6;

f.

Court reporters or videographers engaged to record depositions, hearings or
the trial of this action;

g.

Witnesses at any deposition in this matter as well as witnesses or jurors at
the trial of this matter; and

h.
6.

Defendant Searles’ insurer, if any.

Confidentiality Agreements. Before Confidential Information is disclosed to any

vendors of Young Moore and Henderson as well as any person described in Paragraphs
5(e) and 5(h) of this Order, Young Moore and Henderson, Counsel for Defendant Searles,
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 as Exhibit A. Young Moore and Henderson, Counsel for
Defendant Searles, shall maintain the original Confidentiality Agreement and need not
produce it except by agreement of the DAC and Counsel for Defendant Searles, Young
Moore and Henderson or upon order of the court.
7.

Designation of Confidential Information. Information shall be designated as

Confidential Information in the following manner:

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a.

In the case of information reduced to paper form, the designation shall be
made (1) by placing the appropriate legend, “CONFIDENTIAL - SUBJECT
TO CONSENT ORDER” for General Confidential Information on each
page containing such information or (2) by such other means as agreed to
by the DAC and Counsel for Defendant Searles. Counsel for the DAC shall
designate the documents as confidential at or before the time of the
disclosure.

b.

Information on a computer disk, data tape, or other medium that has not
been reduced to paper form shall be designated as General Confidential
Information (1) by informing counsel for the receiving party in writing that
the computer disk, data tape, or other medium contains such Confidential
Information and, where applicable, specifying by Bates or other page
number the particular information being designated or (2) by such other
means as agreed to by the parties to this Consent Order. To the extent
practicable, such physical medium shall be labeled using the appropriate
legend. Any party receiving Confidential Information designated under this
Paragraph shall then be responsible for appropriately labeling any printed
version(s) of such information that it creates.

c.

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 Young Moore and
Henderson, Counsel for Defendant Searles.

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The notice shall, where

applicable, specify by Bates or other page number the particular information
being designated.
8.

Disputes over Designations.

If Young Moore and Henderson, Counsel for

Defendant Searles, objects to the designation of any information as confidential, Young
Moore and Henderson, Counsel for Defendant Searles, and Counsel for the DAC shall
attempt to resolve the disagreement on an informal basis. If the objection is not so resolved,
the objecting counsel 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 non-filing by the objecting party of a motion for relief
shall not be deemed an admission that the information qualifies for the disputed
designation.
9.

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 the information inadvertently disclosed if
promptly called to the attention of counsel for the receiving party.
10.

Filing of Confidential Information Under Seal. At the time that confidential

information is produced to Young Moore and Henderson, Counsel for Defendant Searles
and counsel for the DAC will indicate, in writing, if any of the confidential information
being produced is of the type that should be filed with the Court as a proposed sealed
document.

If such indication is given, Young Moore and Henderson, Counsel for

Defendant Searles, shall file the document as a proposed sealed document along with a

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motion to seal and supporting memorandum indicating the basis under which the DAC
determined that the document should be filed under seal.

If Counsel for the DAC

determines that the document should be filed as a proposed sealed document, Counsel for
the DAC agrees that the determination as set forth in this paragraph will be narrow in scope
and any such determination will be consistent with the manner in which the attorneys in
the Public Safety Section of the North Carolina Department of Justice file the same or
similar documents in 42 USC § 1983 cases involving the medical care of inmates. If no
such indication is given by Counsel for the DAC, Young Moore and Henderson, Counsel
for Defendant Searles, may file the confidential information with the Court without the
need to file such confidential information as a proposed sealed document. 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 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

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e.

Whether there is consent to the motion.

Finally, in addition to the motion and supporting memorandum, said party must set out
such findings in a proposed order to seal for the court. Before ruling on any motion to seal,
the court will give public notice of the motion and a reasonable opportunity to challenge
it. While individual notice is unwarranted, the court will docket the motion reasonably in
advance of deciding the issue, or, where applicable, the court will notify persons present in
courtroom proceedings of the motion. The court will rule favorably upon any motion to
seal only after carefully weighing the interest advanced by the movant and those interests
favoring public access to judicial documents and records, and only upon finding that the
interests advanced by the movant override any constitutional or common law right of public
access which may attach to the documents, things, and/or information at issue.
11.

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.
12.

Return of Confidential Information. Following the conclusion of this action,

including any appeals, Young Moore and Henderson, Counsel for Defendant Searles, shall
request that any Confidential Information provided to any vendors of Young Moore and
Henderson as well as any person described in Paragraphs 5(d) and 5(h) of this Order either
be returned or shredded. Young Moore and Henderson, Counsel for Defendant Searles,
shall destroy any Confidential Information provided by the DAC in accordance with the
Rules of Professional Conduct of the North Carolina State Bar and/or any professional

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liability policy requirements which provide coverage for the services of Young Moore and
Henderson and/or Counsel for Defendant Searles. If any vendor of Young Moore and
Henderson, any person identified in Paragraphs 5(d) and 5(h) of this Order, or Young
Moore, & Henderson itself elects to destroy the Confidential Information rather than return
it to Counsel for the DAC, Young Moore and Henderson, Counsel for Defendant Searles
shall provide to counsel for the DAC a signed certification that the Confidential
Information has been destroyed or will be destroyed in accordance with the file retention
policy of Young Moore and Henderson, Counsel for Defendant Searles. 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 Local Civil Rule 79.1, E.D.N.C.
13.

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.
14.

Modification. This Order is without prejudice of the right of the DAC and/or

Young Moore and Henderson, Counsel for Defendant Searles, 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.

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BASED UPON the foregoing, it is therefore FURTHER ORDERED that Young Moore
and Henderson, Counsel for Defendant Searles, will observe the requirements of this Order as to
Confidential Information produced by the DAC as required by this Order.

Signed: September 1, 2015

WE CONSENT:

ROY COOPER
Attorney General
/s/ Joseph Finarelli
Joseph Finarelli
Special Deputy Attorney General
N.C. Bar No. 26712
Telephone: [phone]
E-mail: [e-mail]
Attorney for DAC
Young Moore and Henderson, P.A.
/s/ Elizabeth P. McCullough
Elizabeth P. McCullough
N.C. Bar No. 32301
Nathan D. Childs
N.C. Bar No. 35211
Telephone: [phone]
E-mail: [e-mail]
[e-mail]
Attorney for Defendant Anthony Searles, M.D.

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EXHIBIT A
CONFIDENTIALITY AGREEMENT

I have read and am familiar with the terms of the Consent Order governing the Confidential
Information in the case of Ronald McClary v. Anthony Searles, et al., Civil Action No. 3:15-CV00077-FDW, in the Western District of North Carolina, Charlotte Division, and I agree to abide
by all the terms of said Order and not to reveal or otherwise communicate any of the information
disclosed to me pursuant thereto to anyone except in accordance with the terms of said Order. I
agree not to make use of any information obtained, whether in documentary or other form, pursuant
to that Order other than for purposes of this litigation. I also agree to return to counsel of record
or to destroy not later than 30 days after notification of the termination of this litigation any and
all documents in my possession containing information which is the subject of said Order (whether
such information is in the form of notes, memoranda, reports, or other written communications or
documents prepared by any person at any time containing information covered by the terms of said
Order). I further agree to submit myself to the jurisdiction of the foregoing court, including its
contempt power, for enforcement of said Order.

___________________
Signature

_____________
Date

___________________
Name
199-1122/3774866

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