Coker v. XPO Logistics, Inc.

Filing 12

CONSENT PROTECTIVE ORDER. Signed by Senior Judge Graham Mullen on 8/13/2018. (jaw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO: 17-cv-00557-GCM
GENE COKER,
Plaintiff,
v.
XPO LOGISTICS, INC.,
Defendant.

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CONSENT PROTECTIVE ORDER

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Background Statement
In the course of discovery, the parties will request and exchange information and
documents that are or may be of a personal and/or of a proprietary nature, including but
not limited to personnel records, financial records, insurance records, medical records and
materials related to employee benefits, as well as confidential commercial information
and trade secrets, competitively sensitive commercial information, customer data and
other personal or financial information the parties seek to keep confidential regarding
third parties. The parties seek to limit the use of the information and documents to
protect themselves from annoyance and potential embarrassment as well as to maintain
the confidentiality of personal and/or proprietary information. Accordingly, they have
agreed to the entry of this Consent Protective Order (“Order”) to facilitate the production
of the information requested and any information which has been or will be produced
during discovery in this case.

Protective Order
Designation of Confidential Information
1.

“Confidential information” as used herein means any type or classification

of information which is designated as “Confidential” in the manner specified below, in
the good faith belief that such information falls within the scope of Rule 26(c) of the
Federal Rules of Civil Procedure and is subject to this Order. For purposes of this Order,
“confidential information” means proprietary, business, commercial, financial and/or
personal information, including but not limited to employee personnel files, pay
information, medical records, drug testing documents, workers’ compensation files,
corporate policies and procedures, trade secrets and other competitively sensitive
materials, financial records, pricing information, actuarial records and reports and
information about disabilities, tax returns, retirement benefits, customer information,
vendor information, and other personal or financial information relating to third parties.
“Confidential information” may include documents, information contained in documents,
depositions, interrogatory answers, and all other discovery pursuant to the Federal Rules
of Civil Procedure, court testimony, matters in evidence and other information furnished
by or on behalf of any party in connection with this litigation which falls within the scope
of this Order.
2.

The party producing any documents or information subject to this Order

shall have the right to use its discretion in designating materials to be confidential
information as defined herein. However, the party shall be obligated to designate only
documents or information which it believes in good faith to be information within the

scope of Rule 26(c) of the Federal Rules of Civil Procedure. Moreover, the party shall be
obligated to make specific designations to the extent reasonably possible and to avoid
overbroad designations.
3.

Any party producing documents may designate such documents and copies

thereof as confidential by marking any confidential page as follows: CONFIDENTIAL.
In lieu of placing said legend on the originals of documents, the producing party may
legend the copies that are produced. When producing a multi-page document, all of
which it contends is confidential, a party may designate the entire document as
confidential by marking the cover page as follows: CONFIDENTIAL.
4.

Information disclosed at the deposition of any party or at the deposition of

one of its present or former officers, directors, employees or agents, or of independent
experts retained by any party for purposes of this litigation may be designated by such
party as confidential by indicating on the record at the deposition that the testimony is
confidential and subject to the provisions of this Order. Alternatively, such party may
designate information disclosed at such deposition as confidential by notifying all parties
in writing, within ten (10) business days of receipt of the transcript, of the specific pages
and lines of the transcript which are 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 at least
ten (10) business days after a full and complete transcript of said deposition is available.

Use of Confidential Information
5.

Confidential information shall be used only for the purpose of these

proceedings and shall not be disclosed to any person except the following:
(a)

Counsel for any party, the legal associates, clerical or other support

staff of such counsel assisting in the preparation of this action, and any party, to the
extent necessary to prepare this case for this litigation;
(b)

Agents, representatives and employees of any party, as is necessary

to prepare this case for litigation;
(c)

Subject to the provisions of Paragraph 6 below, independent experts

(who shall not be a party or an employee of a party) employed by counsel for the purpose
of assisting in this action;
(d)

A witness who is either the producing party or an employee of the

producing party or a former or current employee of the producing party, as is necessary to
prepare this case for litigation, and, the court reporter and courtroom personnel at any
deposition, pretrial hearing, trial or other proceedings held in connection with this action;
(e)

Subject to the provisions of Paragraph 7 below, any court, including

this Court, or appellate body which has cause to consider any of the issues raised in this
action;
(f)

Jurors and prospective jurors;

(g)

Or any other person or entity to whom this Court orders or allows

disclosure after notice and opportunity for hearing.

Non-Disclosure of Confidential Information
6.

No person to whom confidential information is disclosed shall disclose

such confidential information to any person to whom disclosure is not authorized by the
terms of this Order, or make any other disclosure of such confidential information for any
purpose whatsoever, commercial or otherwise. In addition to the other restrictions on
disclosure contained herein, the parties agree that no confidential information may be
disclosed to any person (including any consultant, expert or employee of any party) until
such person has read and signed a copy of this Order, thereby indicating his or her
willingness to be bound by its provisions. The disclosing party shall have the obligation
to maintain records identifying all such persons to whom information has been disclosed.
Information Filed with the Court
7.

When a party seeks to file under seal confidential documents, things, and/or

information, including confidential portions of any transcript, a party shall electronically
file under seal pursuant to the applicable local rule and the Administrative Procedures
Governing Filing and Service by Electronic Means.
General Conditions
8.

In the event that a party disputes the propriety of the designation of any

material or information as confidential, that party may file a motion with the Court
requesting a ruling regarding whether the material or information should be treated as
confidential for purposes of this Order. No party shall be obligated to challenge the
propriety of any designation of information as confidential and a failure to do so shall not
preclude a subsequent attack on the propriety of such designation.

9.

At the conclusion of this litigation, either party may contact the Court to

obtain any confidential information in the Court’s files so the parties may make
appropriate disposition of all confidential information furnished pursuant to the terms of
this Order. At the conclusion of the litigation, upon written request of the opposing party
the parties agree to return any confidential information to the party providing the
confidential information except transcriptions of depositions taken in the course of this
proceeding.
10.

Pursuant to the Pretrial Order and Case Management Plan, the ultimate

disposition of protected materials shall be subject to final order of the Court on
completion of litigation.
11.

This Order shall not abrogate or diminish any contractual, statutory or other

legal obligation or right of any party or person with respect to the confidential
information. Specifically, this Order shall not require any party to notify or to obtain
permission from other parties before introducing materials designated confidential at trial
or examining witnesses about materials designated confidential during depositions or at
trial, beyond the notice required by the Federal Rules of Civil Procedure, local court rules
or order of Court.
12.

Nothing in the foregoing provisions of this Order shall be deemed to preclude

any party from seeking and obtaining, on an appropriate showing, such additional
protection with respect to confidential information as that party may consider appropriate;
nor shall any party be precluded from claiming that any matter designated

hereunder is not entitled to protection, or is entitled to a more limited form of protection
than designated.
13.

The production of attorney-client privileged materials, work product

protected materials, or trial preparation materials shall not constitute a waiver of those
protections. In the event of the production of such protected information, the Parties will
follow the procedure set out in Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure.
This the 13th day of August, 2018.
/s/Geraldine Sumter
Geraldine Sumter
NC State Bar No. 11107
Email: [e-mail]
FERGUSON, CHAMBERS &
SUMTER, P.A.
309 E. Morehead Street, Suite 110
Charlotte, NC 28202
Telephone: [phone]
Facsimile: [phone]
/s/Edward R. Forman
Edward R. Forman
Email: [e-mail]
250 Civic Center Drive, Suite 480
Columbus, Ohio 43215
Telephone: [phone]
Facsimile: [phone]
Pro Hac Vice

/s/Kristine M. Sims
Kristine M. Sims
NC State Bar No. 26903 Email:
[e-mail]
William J. McMahon, IV
NC State Bar No. 34097
Email: [e-mail]
CONSTANGY, BROOKS, SMITH &
PROPHETE, LLP
100 North Cherry Street, Suite 300
Winston-Salem, NC 27101
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant

Attorneys for Plaintiff

It is so ORDERED.

Signed: August 13, 2018