Gold v. NSI Holdings, Inc. et al
Filing
13
PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 2/7/17. (mga)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CASE NO. 3:16-CV-645-RJC-DCK
CATHY GOLD,
Plaintiff,
v.
NSI HOLDINGS, INC., NSI
INDUSTRIES, LLC, SUMMIT
PARK II, L.P. and SPP
INVESTMENTS GENERAL
PARTNER, LLC,
Defendants.
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PROTECTIVE ORDER
Whereas, the parties to this Consent Protective Order (“Parties”) have stipulated that
certain discovery material is and should be treated as confidential, and have agreed to the terms of
this order; accordingly, it is ORDERED:
1.
Scope. All documents produced in the course of discovery, all responses to
discovery requests, and all deposition testimony and deposition exhibits and any other materials
which may be subject to discovery (“Documents”) shall be subject to this Order.
2.
Form and Timing of Designation. Confidential documents shall be designated by
placing or affixing the word “CONFIDENTIAL” on the document in a manner which will not
interfere with the legibility of the document and which will permit complete removal of the
confidential designation.
Documents shall be designated CONFIDENTIAL prior to, or
contemporaneously with, the production or disclosure of the documents.
Inadvertent or
unintentional production of documents without prior designation as confidential shall not be
deemed a waiver, in whole or in part, of the right to designate documents as confidential as
otherwise allowed by this Order.
3.
Documents Which May be Designated Confidential. Any party may designate
documents as confidential but only after review of the documents by an attorney who has, in good
faith, determined that the documents contain information protected from disclosure by statute,
sensitive personal information, trade secrets, or confidential research, development, or commercial
information. The certification shall be made concurrently with the disclosure of the documents,
using Attachment A, which shall be executed subject to the standards of Rule 11 of the Federal
Rules of Civil Procedure. Information or documents which are available in the public sector may
not be designated as confidential.
4.
Depositions.
Portions of depositions shall be deemed confidential only if
designated as such when the deposition is taken or within fourteen business days after receipt of
the transcript. Such designation shall be specific as to the portions to be protected.
5.
Protection of Confidential Material.
a.
General Protections. Documents designated CONFIDENTIAL under this
Order shall not be used or disclosed by the parties or counsel for the parties or any other
persons identified below for any purposes other than preparing for and conducting the
litigation in which the documents were disclosed (including any appeal of that litigation).
b.
Limited Third Party Disclosures. The parties and counsel for the parties
shall not disclose or permit the disclosure of any documents designated CONFIDENTIAL
under the terms of this Order to any other person or entity except as set forth in
subparagraphs (1)-(5) below, and then only after the person to whom disclosure is to be
made has executed Attachment B. Subject to these requirements, the following categories
of persons may be allowed to review documents which have been designated
CONFIDENTIAL pursuant to this Order:
(1)
counsel and employees of counsel for the parties who have
responsibility for the preparation and trial of the lawsuit;
(2)
parties and employees of a party to this Order, but only to the extent
counsel shall certify that the specifically named individual party or employee’s
assistance is necessary to the conduct of the litigation in which the information is
disclosed1;
(3)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of documents;
(4)
consultants, investigators, or experts (hereinafter referred to
collectively as “Experts”) employed by the parties or counsel for the parties to assist
in the preparation and trial of the lawsuit; and
(5)
other persons only upon consent of the producing party or upon
order of the court and on such conditions as are agreed to or ordered.
c.
Control of Documents. Counsel for the parties shall take reasonable
efforts to prevent unauthorized disclosure of documents designated as Confidential
pursuant to the terms of this order. Counsel shall maintain a record of those persons,
including employees of counsel, who have reviewed or been given access to the documents
along with the originals of the forms signed by those persons acknowledging their
obligations under this Order.
d.
Copies.
All copies, duplicates, extracts, summaries or descriptions
(“Copies”), of documents designated as Confidential under this Order, or any portion of
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At or prior to the time such party or employee completes Attachment B, counsel shall complete Attachment C.
Counsel shall retain the certification together with the form signed by the party or employee.
such a document, shall be immediately affixed with the designation “CONFIDENTIAL”
if the word does not already appear on the copy. All such copies shall be afforded the full
protection of this Order.
6.
Filing of Confidential Materials. In the event a party seeks to file any material
that is subject to protection under this Order with the court, that party shall take appropriate action
to ensure that the documents receive proper protection from public disclosure including: (1) filing
a redacted document with the consent of the party who designated the document as confidential;
(2) where appropriate (e.g. in relation to discovery and evidentiary motions), submitting the
documents solely for in camera review; or (3) where the preceding measures are not adequate,
seeking permission to file the document under seal. Absent extraordinary circumstances making
prior consultation impractical or inappropriate, the party seeking to submit the document to the
court shall first consult with counsel for the party who designated the document as confidential to
determine if some measure less restrictive than filing the document under seal may serve to provide
adequate protection. This duty exists irrespective of the duty to consult on the underlying motion.
Nothing in this Order shall be construed as a prior directive to the Clerk of Court to allow any
document be filed under seal. The parties understand that documents may be filed under seal only
with the permission of the court.
7.
Greater Protection of Specific Documents. No party may withhold information
from discovery on the ground that it requires protection greater than that afforded by this Order
unless the party moves for an Order providing such special protection.
8.
Challenges to Designation as Confidential. Any CONFIDENTIAL designation
is subject to challenge. The following procedures shall apply to any such challenge:
a.
The burden of proving the necessity of a confidential designation remains
with the party asserting confidentiality.
b.
A party who contends that documents designated CONFIDENTIAL are not
entitled to confidential treatment shall give written notice to the party who affixed the
designation of the specific basis for the challenge. The party who so designated the
documents shall have fifteen (15) days from service of the written notice to determine if
the dispute can be resolved without judicial intervention and, if not, to move for an Order
confirming the confidential designation.
c.
Notwithstanding any challenge to the designation of documents as
confidential, all material previously designated CONFIDENTIAL shall continue to be
treated as subject to the full protections of this Order until one of the following occurs:
(1)
the party who claims that the documents are confidential withdraws
such designation in writing;
(2)
the party who claims that the documents are confidential fails to
move timely for an Order designating the documents as confidential; or
(3)
the court rules that the documents should no longer be designated as
confidential information.
d.
Challenges to the confidentiality of documents may be made at any time
and are not waived by the failure to raise the challenge at the time of initial disclosure or
designation.
9.
Treatment on Conclusion of Litigation.
a.
Order Remains in Effect. All provisions of this Order restricting the use
of documents designated CONFIDENTIAL shall continue to be binding after the
conclusion of the litigation, unless otherwise agreed or ordered.
b.
Return of CONFIDENTIAL Documents. Within thirty (30) days after
the conclusion of the litigation, including conclusion of any appeal, all documents treated
as confidential under this Order, including copies as defined above (Paragraph 6.d.) shall
be returned to the producing party unless: (1) the document has been entered as evidence
or filed (unless introduced or filed under seal); (2) the parties stipulate to destruction in lieu
of return; or (3) as to documents containing the notations, summations, or other mental
impressions of the receiving party, that party elects destruction. Notwithstanding the above
requirements to return or destroy documents, counsel may retain attorney work product
including an index which refers or relates to information designated CONFIDENTIAL so
long as that work product does not duplicate verbatim substantial portions of the text of
confidential documents. This work product continues to be Confidential under the terms
of this Order. An attorney may use his or her work product in a subsequent litigation
provided that its use does not disclose the confidential documents.
10.
Order Subject to Modification. This Order shall be subject to modification on
motion of any party or any other person who may show an adequate interest in the matter to
intervene for purposes of addressing the scope and terms of this Order. The Order shall not,
however, be modified until the parties shall have been given notice and an opportunity to be heard
on the proposed modification.
11.
No Judicial Determination. This Order is entered based on the representations
and agreements of the parties and for the purpose of facilitating discovery. Nothing in this Order
shall be construed or presented as a judicial determination that any specific document or item of
information designated as CONFIDENTIAL by counsel is subject to protection until such time as
a document-specific ruling shall have been made.
12.
Persons Bound. This Order shall take effect when entered and shall be binding
upon: (1) counsel who signed below and their respective law firms; and (2) their respective clients.
SO ORDERED.
Signed: February 7, 2017
ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CASE NO. 3:16-CV-645-RJC-DCK
CATHY GOLD,
Plaintiff,
v.
NSI HOLDINGS, INC., NSI
INDUSTRIES, LLC, SUMMIT
PARK II, L.P. and SPP
INVESTMENTS GENERAL
PARTNER, LLC,
Defendants.
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CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION
AS CONFIDENTIAL
Documents produced in this action which are listed on the attached index have been marked
as CONFIDENTIAL subject to the Protective Order entered in this action.
By signing below, I am certifying that I have personally reviewed the marked documents
and believe, based on that review that they are properly subject to protection under the terms of
Paragraph ______ of the Protective Order.
Date:
Signature of Counsel
Printed Name of Counsel
ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CASE NO. 3:16-CV-645-RJC-DCK
CATHY GOLD,
Plaintiff,
v.
NSI HOLDINGS, INC., NSI
INDUSTRIES, LLC, SUMMIT
PARK II, L.P. and SPP
INVESTMENTS GENERAL
PARTNER, LLC,
Defendants.
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ACKNOWLEDGMENT OF
UNDERSTANDING
AND AGREEMENT TO BE BOUND
The undersigned acknowledges that he or she has read the Protective Order, in the abovecaptioned action, understands its terms, and agrees to be bound by such terms. The undersigned
understands that the terms of the Protective Order obligate him/her to use discovery materials
designated CONFIDENTIAL solely for the purposes of the above-captioned action, and not to
disclose any such confidential information to any other person, firm or concern.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date:
Signature
ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CASE NO. 3:16-CV-645-RJC-DCK
CATHY GOLD,
Plaintiff,
v.
NSI HOLDINGS, INC., NSI
INDUSTRIES, LLC, SUMMIT
PARK II, L.P. and SPP
INVESTMENTS GENERAL
PARTNER, LLC,
Defendants.
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CERTIFICATION OF COUNSEL OF
NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE
Pursuant to the Protective Order entered in this action, I certify that the assistance of
_______________ is reasonably necessary to the conduct of this litigation and that this assistance
requires the disclosure to this individual of information which has been designated as
CONFIDENTIAL.
I have explained the terms of the Protective Order to the individual named above and will
obtain his or her signature on an “Acknowledgment of Understanding and Agreement to be
Bound” prior to releasing any confidential documents to the named individual and I will release
only such confidential documents as are reasonably necessary to the conduct of the litigation.
The individual named above is:
A named party;
An employee of named party. This employee’s job title is ________________
and work address is ____________________________________.
Date:
Signature of Counsel
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