Schmitz v. BenefitFocus.com, Inc., et al
Filing
25
STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 2/17/2017. (eef)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
File No. 3:12-cv-00783-DCK
ELIZABETH WOOTEN SCHMITZ,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
BENEFITFOCUS.COM, INC., and
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendants.
STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER
THIS STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE
ORDER is made between and among the parties to the above-captioned action on the date so
indicated below.
WHEREAS, discovery, including but not limited to interrogatories, document requests,
requests for admission and depositions, in the above-captioned action will involve the production
of information that the producing parties assert is confidential, personal, sensitive, proprietary,
trade secret, commercial, financial and/or business information;
WHEREAS, the parties agree to the terms herein, and to stipulate to the entry of an Order
concerning confidential and otherwise sensitive business or proprietary information, and to
facilitate the preservation of such confidential material, the parties agree to adhere to the terms
herein regardless of whether the Court enters this Stipulated Confidentiality And Protective Order
(“Order”) as an order of the Court.
WHEREAS, The Parties agree that once documents are labeled as Confidential and filed
under Seal with the court, the documents are proprietary information and if released would damage
Defendants competitively in the marketplace and may involve private medical information
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regarding Plaintiff’s deceased husband or insurance records of other individuals whose identities
should be reasonably protected.
NOW, THEREFORE, IT IS IT IS HEREBY STIPULATED, AGREED and ORDERED
as follows:
1. Scope
This Order includes in its scope any documents, electronically stored information, or other
information produced, or disclosed in the above-captioned litigation (“Action”), whether pursuant
to formal or informal discovery requests, correspondence, motions not filed with the court, by
subpoena, or through testimony; including all documents and tangible things as defined in the
Federal Rules of Civil Procedure, or any applicable local rules; and to all such information
produced or disclosed by non-parties to this Action pursuant to subpoena and/or deposition notice
(“Litigation Material”).
“Action” shall also include any litigation, action, proceeding or
supplemental proceeding in any jurisdiction brought to enforce any judgment entered in this Action
or any settlement agreement among or between any of the parties hereto.
2. Use of Litigation Material
All Litigation Material, disclosed or obtained by or from any person, whether or not a party,
in response to any discovery method authorized or permitted by the Federal Rules of Civil
Procedure or disclosed through the sealed filing of papers with the Court, shall be used for no
purpose other than the prosecution and/or defense of this Action absent further Order of the Court.
Nothing in this Order shall be construed to limit, condition or otherwise restrict in any way each
party’s use of its own Confidential Information. Such disclosure by the producing party shall not
waive the protections of this Order and shall not entitle other parties, non-parties or their attorneys
to use or disclose such information in violation of the Order.
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3.
Confidential Information
Each party or a non-party in its sole discretion may designate as “Confidential” under the
terms of this Order any: (i) Litigation Material such party or non-party produces in this Action; or
(ii) Litigation Material produced by any non-party consisting of information concerning one or
more parties (“Confidential Information”).
Litigation Material may be designated as
“Confidential” before or after it has been produced or disclosed.
4.
a.
Designation of Litigation Material as Confidential
Litigation Materials containing Confidential Information shall be so designated
by marking the respective pages of the document and where appropriate, the entire document, with
the legend “CONFIDENTIAL – Document produced subject to Confidentiality Agreement
or Stipulated Protective Order for use only in:
Elizabeth Wooten Schmitz v.
Benefitfocus.com, Inc. and Hartford Life and Accident Insurance Company; WDNC Case
No. 3:12-cv-00783-DCK. The confidential designation language will appear as a watermark
diagonally across each applicable page. In the event a party produces Litigation Material that it
deems to be Confidential Information without designating it as such, the producing party may, by
written notice delivered to the receiving party, designate the information Confidential and upon
receipt of such notice, every receiving party shall mark the Litigation Material with the confidential
designation language and shall treat it thereafter as Confidential and subject to this Order.
b.
Documents made available for inspection in response to a request for production
need not be marked with the confidential designation language prior to inspection. However, the
producing party following an inspection can mark those documents designated for copying that
contain Confidential Information with the confidential designation language specified in subpart
4(a) above.
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c.
All portions of deposition transcripts shall be treated as Confidential Information if
designated as such on the record by counsel for any party hereto, or by counsel for any non-party
testifying pursuant to subpoena.
d.
The Confidential Information designation shall apply to any copies or other
reproductions, excerpts, summaries, abstracts or other documents that paraphrase, excerpt, or
contain Confidential Information. Any such material shall also be clearly designated as containing
Confidential Information and shall be subject to all other applicable protections and provisions of
this Order.
5.
Contesting Confidential Designation
Any party who contests the designation of any Litigation Material as Confidential shall
provide written notice to opposing counsel of their objection within thirty (30) days of receipt or
notice of designation of the Litigation Materials as Confidential, and the parties shall use their best
efforts to resolve any objection informally. If the parties are unable to resolve their dispute, the
party who contests the designation of materials as Confidential can file an objection with the Court
within (45) days of receipt or notice of designation of the Litigation Materials as Confidential if
written notice was provided within 30 days, and the matter shall be briefed according to local rules.
In any challenge to the designation of the materials as Confidential, the burden of proof shall be
on the party seeking protection.
Designation of materials as Confidential shall not operate as an admission by any party
receiving the materials that the information is or is not: (a) confidential; (b) privileged; (c) relevant;
or (d) admissible in evidence at trial.
6.
Access to Confidential Information
The Parties shall be governed by the following restrictions in its use of the Confidential
Information produced to it and as to the information derived therefrom:
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a.
Such Confidential Information may not be disclosed except as is necessary for the
purpose of, and solely in connection with, litigating this case. For that purpose only, a party may
disclose such information to the Court and its employees, court reporters, independent expert
witnesses or potential expert witnesses retained by a party, and such other persons as may be
agreed upon by the parties in the future, said agreement to be in writing signed by Counsel for all
parties.
b.
Before disclosure of Confidential Information to any person as permitted by the
preceding paragraph (other than the Court and its employees), such person shall read a copy of this
Stipulation and sign an Agreement To Respect Confidential Information attached hereto as
Appendix “A” (the “Agreement”). The parties shall maintain a copy of all Agreements signed by
such persons and shall furnish copies to Counsel for the producing party upon its request. No
Confidential Information shall be disclosed to any person who refuses or has failed to sign the
Agreement. In the event any person who has signed an Agreement refuses to comply therewith or
fails to adhere to the terms thereof, the party shall make no further disclosure to such person and
shall immediately notify counsel for the other parties in writing.
c.
Confidential Information may be copies and summaries, digests or abstracts may
be made, but all such copies, digests, abstracts and summaries shall be considered Confidential
and shall be subject to the provisions of this Stipulation.
7.
Use of Confidential Information at Hearings, Trial, and Depositions
Confidential Information may be referred to in documents filed with the Court such as
briefs, memoranda, or other submissions, or made exhibits to documents filed with the Court or at
trial, provided that any such briefs, memoranda, exhibits or submissions incorporating or
referencing such Confidential Information, shall bear the statement “Confidential - Document
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Subject to Stipulated Confidentiality Agreement and Protective Order” on the first page of the
brief, memorandum, exhibit or submission. Any brief, memorandum, exhibit or submission being
filed with the court shall be filed under seal endorsed with the case caption, the word
“CONFIDENTIAL” and a statement substantially in the following form:
“This is sealed pursuant to order of the Court and contains Confidential Information
filed in this case by [name of party or non-party] and is not to be opened nor the
contents thereof to be displayed or revealed except by order of the Court or pursuant
to stipulation of the parties to this action. Violation thereof may be regarded as
contempt of Court.”
In the event that any Confidential Information is used in any court proceeding prior to or
at trial, it shall not lose its confidential status through such use.
8.
References in Open Court
Confidential Information may be used by the Parties in connection with any hearing or
trial.
9.
Notice of Unauthorized Disclosure
If Confidential Information is disclosed to or comes into the possession of any person other
than in the manner authorized by this Order, the party who improperly disclosed the information
must immediately inform the producing party of all pertinent facts relating to such disclosure and
shall make every effort to retrieve the improperly disclosed information and prevent disclosure by
each unauthorized person who received such information.
10.
Response to Third-Party Discovery
In the event that any court requires the disclosure of Confidential Information, the third
party or non-party from whom disclosure is sought shall be apprised of this order and asked to
give immediate written notice to the parties that requested the Litigation Material that it should be
treated as Confidential to enable said third-party or non-party or requesting party to take protective
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actions as it may deem necessary. In the event a party believes that disclosure is otherwise required
by law, it shall give at least 30 days written notice to the parties or non-parties that produced or
designated the Litigation Material as Confidential prior to disclosure.
11.
Return of Confidential Information
Within 30 days of the conclusion of this Action, the parties agree to return all Confidential
Information (including electronically produced materials) and copies thereof to the producing
party, or certify in writing that they have destroyed all Confidential Information (including
electronically produced materials) and all copies thereof. The provisions of this Order restricting
communication, treatment and use of Confidential Information, shall continue to be binding after
the termination of this Action. Ultimate disposition of any confidential information exchanged
pursuant to this Order is subject to final order of the Court on the completion of litigation.
12.
Legal Action and Remedies
The Parties acknowledge they may be subject to sanctions for breach of this Confidentiality
Agreement and agree to reimburse any party for all reasonable attorneys’ fees and costs incurred
as a result of a successful action initiated by the party seeking sanctions for breach of this
Confidentiality Stipulation. The parties also agree to reimburse any other party for all reasonable
attorneys’ fees and costs incurred as a result of any successful action initiated by the party to
enforce this Confidentiality Stipulation. Nothing in this Confidentiality Stipulation limits the
parties’ right to pursue other legal or equitable remedies available to it resulting from a breach of
this Confidentiality Stipulation.
13.
Purpose of Stipulation and Order
This Order is entered for the purposes of providing appropriate confidentiality protections
and facilitating the production of documents and information without involving the Court
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unnecessarily in the process. Nothing in this Order nor the production of any information or
document under the terms of the Order nor any proceedings pursuant to this Order shall be deemed:
(a) to have the effect of an admission or waiver by either party; or (b) to alter the confidentiality
or non-confidentiality of any document or information; or (c) to alter any existing obligation of
any party or the absence thereof.
14.
Court Retains Jurisdiction
After the conclusion of this litigation, the provisions of this Order shall continue to be
binding and this Court shall retain jurisdiction over all persons who have access to confidential
information produced pursuant to this Order for the purpose of enforcement of this Order,
including any appropriate sanctions for violations.
15.
Non-termination of Order
This Order shall remain in effect for the duration of the Litigation unless terminated by
stipulation executed by Counsel of record for the parties or by order of the Court. The provisions
of this Order, insofar as they restrict the communication, treatment and use of Confidential
Information, shall continue to be binding after the termination of this action unless the Court orders
otherwise.
16.
Modification Permitted
Nothing in this Order shall prevent any party from seeking modification of this Order.
17.
Non-waiver
Nothing in this Order shall prevent any party from objecting to discovery that the party
believes to be otherwise improper.
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IT IS SO ORDERED.
Signed: February 17, 2017
WE CONSENT:
/s/ S. Luke Largess (with permission)
S. Luke Largess (N.C. Bar No. 17486)
Cheyenne Chambers (N.C. Bar No. 48699)
TIN, FULTON, WALKER & OWEN, PLLC
301 East Park Ave.
Charlotte, NC 28203
Telephone: (704) 338-1220
Facsimile: (704) 338-1312
E-mail: llargess@tinfulton.com
E-mail: cchambers@tinfulton.com
/s/ Jennifer Theim (with permission)
Jennifer Theim (admitted pro hac vice)
Marla T. Reschly (N.C. Bar No. 46706)
Rebecca Gauthier (N.C. Bar No. 50721)
K&L GATES LLP
Hearst Tower, 47th Floor
214 North Tryon Street
Charlotte, NC 28202
Telephone: (704) 331-7414
Facsimile: (704) 353-3114
E-mail: jennifer.thiem.klgates.com
E-mail: marlareschly@klgates.com
E-mail: Rebecca.gauthier@klgates.com
Attorneys for Plaintiff
Attorneys for Defendant Benefitfocus.com
/s/ Katherine T. Lange
Debbie W. Harden / N.C. Bar No. 10576
Katherine T. Lange / N.C. Bar No. 18287
Brandie N. Smith / N.C. Bar No. 41603
WOMBLE CARLYLE SANDRIDGE & RICE
A Limited Liability Partnership
One Wells Fargo Center, Suite 3500
301 South College Street
Charlotte, North Carolina 28202-6025
Telephone: (704) 331-4900
Fax: (704) 331-4955
E-mail: dharden@wcsr.com
E-mail: klange@wcsr.com
E-mail: brsmith@wcsr.com
Attorneys for Defendant Hartford Life and
Accident Insurance Company
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
File No. 3:12-cv-00783
ELIZABETH WOOTEN SCHMITZ,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
BENEFITFOCUS.COM, INC., and
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY,
Defendants.
APPENDIX “A” TO PROTECTIVE
ORDER
AGREEMENT TO RESPECT CONFIDENTIAL INFORMATION
I have read and understand the Confidentiality Stipulation in the case of ELIZABETH
WOOTEN SCHMITZ v. BENEFITFOCUS.COM, INC. and HARTFORD LIFE AND
ACCIDENT INSURANCE COMPANY, pending in the Western District of North Carolina,
Charlotte Division, a copy of which Stipulation has been delivered to me to keep with my copy of
this Agreement. I agree to be bound by all the terms of the Confidentiality Stipulation and hereby
agree not to use or disclose the Confidential Information to be disclosed to me except for purposes
of this litigation as set forth in the Confidentiality Stipulation. I further agree and attest to my
understanding that breach of this Agreement is directly actionable by the party which designated
the Confidential Information which is disclosed, and that in the event I fail to abide by the terms
of the Stipulation, I may be subject to sanctions.
____________________________
Signature
____________________________
Name (Printed)
____________________________
Street Address
____________________________
City State
Zip
____________________________
Occupation or Business
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