First South Bank v. Seely et al

Filing 31

PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 5/31/16. (mga)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO.: 3:16-CV-023-MOC-DCK
FIRST SOUTH BANK,
Plaintiff,

v.

CYNTHIA LEONARD SEELY, THE
PHILIP J. BRUST CHARITABLE
REMAINDER TRUST, and CYNTHIA
LEONARD SEELY, AS EXECUTRIX OF
THE ESTATE OF PHILIP J. BRUST,
Defendants.

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PROTECTIVE ORDER

Plaintiff First South Bank (“Plaintiff”) and Defendants Cynthia Leonard Seely, the Philip
J. Brust Charitable Remainder Trust, and Cynthia Leonard Seely, as executrix of the estate of
Philip J. Brust (“Defendants”) (hereinafter, Plaintiff and Defendants may be referred to
individually as a “Party” or together as the “Parties”) have agreed to be bound by the material
terms set forth in the below Protective Order. For good cause shown, the Court orders as
follows:
1.
“Discovery Material” means any or all documents and information produced by
the Parties, whether pursuant to subpoena, agreement or otherwise. Such materials include but
are not limited to deposition testimony or other testimony given at any court hearing or trial.
2.
“Confidential Information” means any Discovery Material produced in this
lawsuit that a Party in good faith believes contains, reflects or concerns its non-public,
confidential, sensitive, proprietary or trade secret information which, if disclosed, could cause it
injury or prejudice. Confidential Information may not be used or disseminated except as provided
in this Order.
3.
A Party may designate any Discovery Material as Confidential Information to be
restricted in disclosure by placing or affixing the words “CONFIDENTIAL” or
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” on the document in a manner that
will not interfere with the legibility of the document. Deposition testimony and/or exhibits may
be designated Confidential Information either by: (a) stating on the record of the deposition that
such deposition, or portion thereof, or exhibit is confidential; or (b) stating in writing served
upon counsel of record up to ten (10) days after receipt of the deposition transcript that such
deposition, or portion thereof, or exhibit is confidential.

4.
Counsel for the Parties shall use all Confidential Information produced and
disclosed to the Parties solely for the purposes of preparation for discovery, the contested case,
and appeals related to the case unless another use is specifically agreed upon by the Parties or
authorized by the Court.
5.
Counsel for the parties may not disclose Discovery Material designated
Confidential Information except to:
a. the Parties;
b. counsel of record for the Parties, and the personnel (such as assistants and
paralegals) who are employed or contracted by those firms and are assisting
the attorneys working on this lawsuit;
c. any person who is expected to testify as a witness either at a deposition or
court proceeding in this action for the purpose of assisting in his/her
preparation therefor;
d. expert witnesses and consulting experts retained by the Parties in this lawsuit;
e. the Court and its officers, including stenographic reporters engaged in such
proceedings as are necessarily incidental to the preparation or trial of this
lawsuit; and
f. any mediator selected with the consent of all Parties or by the Court.
6.
Confidential Information shall not be disclosed to any of the persons referred to in
subparagraphs 5(c) and 5(d) until such persons have been provided with a copy of this Order and
have agreed to be bound thereto by execution of a written statement to that effect (in the form
attached hereto as Exhibit A).
7.
A Party that intends to file pleadings or other papers containing or referring to
Confidential Information shall take all reasonable steps to have such matter filed under seal. The
Parties agree that prior to filing pleadings or other papers containing or referring to Confidential
Information, they will confer and consider redactions and/or other reasonable means of
protection to avoid filing under seal.
8.
Subject to the Federal Rules of Evidence, Confidential Information may be offered
in evidence at trial or any court hearing upon reasonable written notice to the Parties and having
any objections ruled on by this Court.
9.
With respect to any Confidential Information covered by this Order, a Party may
at any time serve upon counsel for the producing Party a written notice of objection to the
materials designated as “Confidential Information.” The producing Party, within ten (10) business
days of receipt of such notice, shall review the designated material sought to be reclassified,
and notify the objecting Party in writing whether or not it will agree to the reclassification
requested and, if not, whether it will agree to reclassify a redacted copy. If no agreement can
be reached, the producing Party may apply to the Court for an order that the
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information or documents so designated are entitled to such status and protection. The objecting
Party shall be given notice of the application and an opportunity to respond. All such applications
and responses will be filed under seal and review of any documents by the Court shall be in
camera. In the event of such application, to maintain the status of the information or documents
as Confidential under this Stipulation, the producing Party must show there is good cause for
the information or documents to have such designated protection. Prior to the Court’s
determination of this issue, the information or documents designated as “Confidential
Information” shall remain as such. This procedure shall also apply to objections to designations
of deposition testimony.
10.
Any Party that mistakenly produces materials that the producing Party claims are
protected by the attorney/client privilege, work product doctrine, or other privilege, doctrine, or
right recognized under the Federal Rules of Evidence or other applicable law, may request the
return of those materials by promptly notifying the recipient(s) of the produced documents. The
recipient shall then promptly gather and return to the producing Party or destroy all copies of the
privileged materials and any copy, abstract, summary, or other reproduction thereof, and cease
all use of the privileged materials until the claim is resolved. The producing Party must list and
describe the privileged materials on a privilege log in a manner that will permit the recipient to
assess the claim of privilege. The producing Party must preserve the privileged materials until
the claim is resolved. Any inadvertent production of such privileged materials shall not be
deemed a waiver in whole or in part of the producing Party’s claim of privilege, either as to the
specific information disclosed or as to any other information relating thereto or on the same or
related subject matter that the producing Party has designated as privileged.
11.
Upon termination of this action, unless otherwise ordered by the Court, the Parties
and their respective counsel shall within thirty (30) days return to counsel for the producing
Party all materials marked Confidential Information (and any copies thereof) or destroy them. If
requested, counsel for each Party shall furnish a certificate of compliance that all materials
marked Confidential Information that were produced to that Party, as well as all summaries,
excerpts or copies of such materials, have been returned or destroyed.
12.
The ultimate disposition of protected materials is subject to final Order of the
Court on the completion of litigation.

Signed: May 29, 2016

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EXHIBIT A
ACKNOWLEDGMENT CONCERNING MATERIAL
COVERED BY A PROTECTIVE ORDER
I, the undersigned, hereby acknowledge that I have read the attached Protective Order
entered in First South Bank v. Seely et al., Case No.3:16-cv-00023-MOC-DCK, United States
District Court for the Western District of North Carolina, and understand the terms thereof and
agree to be bound by all such terms. Without limiting the generality of the foregoing, I agree not
to copy, disclose to, or discuss with any person or entity not authorized to receive Confidential
Information pursuant to the terms of said Protective Order, any document or any information
designated as Confidential Information or any copies of extracts or information derived
therefrom which has been disclosed to me. I further agree to use any information disclosed to
me in connection with the case solely for the purposes permitted under said Protective Order, and
to return any Confidential Information to counsel for the producing party or destroy it within
thirty (30) days of the conclusion of this litigation.
I understand that the use of any Confidential Information or document in any manner
contrary to the provisions of the Protective Order may subject me to sanctions of the Court and
that I am subject to the jurisdiction of the United States District Court for the Western District of
North Carolina for the purpose of enforcing said Protective Order.

Date:

Signature:

Print Name:

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