Laurence v. Harris Teeter, LLC

Filing 19

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 2/12/18. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE
TERRY LAURENCE, individually, and on
behalf of others similarly situated,
Plaintiff,
v.
HARRIS TEETER, LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 3:17-cv-00602-RJC-DSC

CONSENT PROTECTIVE ORDER
This matter is before the Court upon Consent Motion of the Parties for a protective order.
This Protective Order governing certain records, documents and information should be entered in
this matter for the reason that one or more parties assert that certain information is confidential,
sensitive and/or proprietary. In connection with this matter, the Court FINDS as follows:
A.

The Parties possess certain documents containing confidential and proprietary

business information which may be discoverable in this action but should not be made available
to the general public.
B.

The parties have exchanged, or will exchange, discovery requests seeking

confidential business and/or personal information and documents.
C.

A Protective Order should be entered which will properly balance the discovery

rights of the parties against their rights to protect confidential business and personal information
from unnecessary public disclosure.

EXHIBIT 1

It appearing to the Court that the attorneys of record for the parties have consented to the
entry of this Order and for good cause shown, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED:
1.

“Confidential” as used herein refers to any non-public information, however

described, regarding current and/or former employees of Defendant Harris Teeter, LLC
(“Defendant”) or its parents, subsidiaries, or affiliates, or other individuals who are not parties to
this litigation, including, but not limited to, personnel records, evaluations, compensation levels,
databases, or similar; Defendant’s business, commercial, and proprietary information and trade
secrets and confidential internal policies and procedures; Defendant’s operating agreements, or
other business formation or business operations documentation; and the Parties’ non-public
financial information which are entitled to some expectation of privacy; and, any other confidential
agreements or materials the Parties may have.

Such information shall be designated as

CONFIDENTIAL only upon a good faith belief that the information falls within this definition.
2.

To designate information as "Confidential,"
a. With respect to Documents, a Party shall place or affix on the Document in a
manner which will not interfere with its legibility the word
"CONFIDENTIAL" or otherwise puts the recipient on reasonable notice that
it contains Confidential information;
b. At depositions, by making an oral statement to that effect on the record or
notifying opposing counsel in writing anytime up to thirty (30) days after
receipt of the transcript, or thirty (30) days after entry of this Order, whichever
is later. If counsel for a Party or for the deponent deems that the answer to a
question will result in the disclosure of information that is or should be
designated as Confidential Information, counsel may direct that the transcript
of the question or series of questions and answers should be printed and bound
separately from the remainder of the deposition. The court reporter shall send
Confidential and non-confidential transcripts to all counsel of record in this
Lawsuit. Counsel may then review the transcripts and designate additional
portions as Confidential. The additional designations must be reported to the
court reporter within thirty (30) days of the date counsel receive the transcripts

2

from the court reporter. The court reporter shall then delete any additional
material designated as Confidential from the non-confidential transcript and
add it to the Confidential transcript so marked. The court reporter shall treat
exhibits designated as Confidential by so marking them and including them
with those portions of the Confidential transcript. For depositions recorded by
video, those portions of the video testimony designated as Confidential on the
deposition transcript shall be treated in accordance with this Order. Counsel
shall use their best efforts to designate all portions of the testimony they
consider Confidential at the time of the deposition. When portions of a
deposition are designated Confidential pursuant to this Order, the Parties shall
use the designated portions of the transcript only as provided in this Order.
Any Person present at the deposition who does not meet one of the designations
set forth below in paragraph 5 shall be excluded from the deposition during the
discussion of Confidential Information if such a request is made on the record
by counsel for any Party or the deponent.
3.

All information in whatever form subject to this Protective Order shall be used by

the receiving party only in connection with the above-referenced action, Terry Laurence v. Harris
Teeter, LLC, which is pending in the United States District Court for the Western District of North
Carolina (Civil Action No. 3:17-cv-000602-RJC) and shall not be used in connection with any
other lawsuit or for any other purpose whatsoever.
4.

To the extent possible, the Parties shall redact Confidential Information from

materials filed with the Court or exhibits offered in evidence so as to minimize requests to file
under seal. If it is necessary to file documents or other materials under seal, such materials shall
be filed in accordance with procedures directed by the Court at the time of such filing or if filed as
an attachment to any filing in this action via the Court’s ECF system, be filed under seal, with
access limited to Parties and attorneys of record in this matter. The Parties are granted leave to file
Confidential material under seal for consideration by the Court.
5.

All information subject to this Consent Protective Order shall be revealed only as

follows:

3

(a)

To the Court;

(b)

Attorneys of record for the parties in this litigation, in-house counsel for
those parties which are legal entities, insurance adjusters assigned to this
case by an insurance company that may be obligated in whole or in part to
pay for the defense, settlement and/or judgment in this case, and employees
or independent contractors (i.e. contract lawyers, document imaging and
electronic discovery companies, computer forensic companies, litigation
support companies, and others) of such attorneys of record and/or in-house
counsel to whom it is necessary that the Confidential material be shown for
purposes of this litigation;

(c)

Each party to this case or, where the party is a legal entity, such party’s
representatives;

(d)

To court reporters and/or videographers retained for use in this matter;

(e)

Any deponent (solely for the purposes of his/her deposition or preparation
for that deposition) if such information is reasonably likely to be relevant to
the deposition;

(f)

Any witness if such information is reasonably likely to be relevant to that
witness’s knowledge or subject matter of testimony, but the witness shall
not be able to retain any Confidential material;

(g)

To law clerks, paralegals, legal assistants, stenographic and clerical
employees of counsel referred to in Paragraph 5(b), who have agreed to
abide by the terms of this Order and who are operating under the direct
supervision of counsel;

(h)

To any person who is indicated, on the face of a document containing such
information, to be the author or recipient of such document, or who, during
a deposition, is established as knowledgeable of the contents of such
document;

(i)

To independent experts working on behalf of a party for the purposes of this
litigation who have agreed to abide by the terms of this Order; and

(j)

Any person designated as a mediator by Court Order or by agreement of the
parties after such person executes a copy of Acknowledgement A and agrees
to be bound by this Order. Agreement to abide by the terms of this Order
shall be evidenced by compliance with the provisions of Paragraph 6 of this
Order.

4

6.

Each person examining the information subject to this Protective Order, or to whom

any of the contents thereof are disseminated, hereby agrees to be subject to the jurisdiction of this
Court for contempt and any other appropriate proceedings in the event of any violation of this
Order, both before and after entry of a final judgment in this case, whether by settlement or
adjudication. No person shall be allowed to disclose, other than as provided in Paragraph 5, by
any means whatsoever, any such information or any notes arising therefrom until the person to
whom disclosure is to be made has:
(a)
(b)

7.

Read this Order in its entirety; and
Signed and dated a copy of Acknowledgement A signifying his/her
agreement to the provisions of this Protective Order and consent to the
jurisdiction of the Court over his/her improper disclosure.

No person who examines Confidential information produced pursuant to this Order

shall disseminate orally, in writing, or by any other means any such information to any other person
not also authorized to examine Confidential information under the terms of this Order. Failure to
abide by this provision may lead to sanctions, up to and including dismissal of this lawsuit with
prejudice, or the striking of pleadings.
8.

If original documents are produced for inspection pursuant hereto, the producing

party and its attorneys of record have the right to have a person present in the inspection room at
all times during the inspection of such documents. The original documents produced under the
terms of this Order shall remain in the custody and control of the producing party at all times.
9.

Any Party may challenge or dispute at any time a designation of a Document or

information pursuant to this Order. If a Party challenges a "CONFIDENTIAL" designation that
Party must first notify in writing the Attorneys of record for the designating Party, explain in
writing the reason for the challenge, and request an opportunity to attempt to resolve the dispute.
The designating Party must then respond in writing within fourteen (14) days of receipt of the
5

written challenge, either agreeing to withdraw the designation or setting forth the reasons the
designating Party believes the Document or information should be treated as CONFIDENTIAL.
If the challenge cannot be resolved by agreement of counsel, the challenging Party may then--and
only then--file a motion with the Court for an appropriate order upon notice to all Parties.
a. Any such motion must be filed under seal and must identify specifically the
material in question and specify the reasons why the moving Party contends
that such designation is improper.
b. The designating Party may respond in accordance with the Court's briefing
schedule.
c. The designating Party shall bear the burden of proving the propriety of the
designation(s).
d. Until the Court rules on such motion, all Persons shall continue to treat the
disputed Document or Information in accordance with the designating Party’s
designation and the terms of this Order.
10.

This Order has been entered to facilitate discovery and the production of

information discoverable in accordance with the applicable Rules of Civil Procedure in this
Lawsuit. Any Person's decision to enter into this Order, any designation of Documents or
information in accordance with this Order, any failure to object to the designation of any Document
or information, or any ruling of the Court as to whether a Document or information has been
designated properly as Confidential under this Order shall not constitute an agreement, evidence,
admission, estoppel, or preclusive judicial determination that the Document or information (a) is
a trade secret or otherwise legally protected confidential business or personal information; or (b)
is admissible, authentic, competent or relevant evidence; and in no instance shall constitute or be
offered as an admission, evidence, estoppel, or preclusive judicial determination with respect to
any issue in any proceeding except to enforce the provisions of this Order.
11.

If a producing Party realizes that it has inadvertently produced a Document or

information that it considers to be Confidential without previously marking it as such pursuant to
this Order, it may contact the receiving Party or Parties and notify them in writing of the mistake.

6

Once a receiving Party has been notified of the mistake, the Document will be treated as designated
in the written notice from the time of receipt of the notice forward and will be subject to the terms
of this Order, and the receiving Party shall promptly use all means reasonably available to retrieve
such Documents and all copies and return them to the producing Party for proper designation under
this Order.
12.

If a producing Party realizes that it has inadvertently produced a Document or

information that it considers to be protected from disclosure to a Party in this Lawsuit by any of
the attorney-client privilege, attorney work product doctrine, the common interest or joint defense
privilege, or such other privilege or immunity from discovery, then the producing Party may
contact the receiving Party and notify it in writing of the mistake. Once the receiving Party has
been notified of the mistake, the receiving Party shall promptly use all means reasonably available
to retrieve such Document or information and all copies and return them to the producing Party.
The inadvertent production of any such privileged Document or information shall not constitute a
waiver of any otherwise applicable privilege, and no Party shall assert a waiver of any such
otherwise applicable privilege upon the basis of any inadvertent production in the course of
discovery in this Lawsuit.
13.

Nothing herein shall affect any Party's right to seek additional protection against

the disclosure of any Documents or materials.
14.

The production of any information subject to this Protective Order shall not

constitute a waiver of a party’s right to claim in this lawsuit or hereafter that said information is
privileged and/or otherwise non-discoverable or inadmissible as evidence in this lawsuit.
15.

All information designated as Confidential shall retain that designation and shall

remain subject to this Order until such time, if ever, as the Court renders a decision that any

7

challenged information shall not be covered by the terms of this Order and all proceedings and
appeals challenging such decision have been concluded.
16.

Subject to the Federal Rules of Evidence and any final pretrial filing or order

identifying trial exhibits, Confidential information produced pursuant to this Order may be offered
in evidence at trial or any court hearing. Subject to the provisions set forth above, any Party may
move the Court for an order that the evidence be received in camera or under other conditions to
prevent unnecessary disclosure. The Court will then determine whether the proffered evidence
should continue to be treated as Confidential and, if so, what protection, if any, may be afforded
to such information.
17.

All confidential material, including any copies thereof, shall be returned to the

producing party within ninety (90) days of the conclusion of this civil lawsuit, including conclusion
of any appeal. However, either party may, at its election, destroy the Confidential material in the
normal course of its business and in accordance with its document retention procedures and will
certify to the producing Party that it has complied with this paragraph.
SO ORDERED.
Signed: February 12, 2018

8

Stipulated to this 9th day of February, 2018 by:
JTB LAW GROUP, LLC
/s/ Nicholas Conlon
Jason T. Brown (pro hac vice)
Nicholas Conlon (pro hac vice)
155 2nd St., Suite 4
Jersey City, NJ 07302
[e-mail]
[e-mail]
Trey Lindley
Satie Rachel Munn
LINDLEY LAW, PLLC
225 S. McDowell Street
Charlotte, NC 28204
[e-mail]
Attorneys for Plaintiff Terry Laurence

OGLETREE, DEAKINS, NASH
SMOAK & STEWART, P.C.
/s/ Regina W. Calabro
Kevin S. Joyner (N.C. Bar No. 25605)
Regina W. Calabro (N.C. Bar No. 20889)
4208 Six Forks Road, Suite 1100
Raleigh, NC 27609
Telephone: [phone]
Facsimile: 919.783.9412
[e-mail]
[e-mail]
Attorneys for Defendant Harris Teeter, LLC

9

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE
TERRY LAURENCE, individually, and on
behalf of others similarly situated,
Plaintiff,
v.
HARRIS TEETER, LLC,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Civil Action No. 3:17-cv-00602-RJC

ACKNOWLEDGMENT A TO PROTECTIVE ORDER
The undersigned hereby acknowledges that he or she has read the Protective Order entered
in the above captioned action, understands the terms thereof, and agrees to be bound by such terms.
The undersigned submits to the jurisdiction of the United States District Court for the Western
District of North Carolina in matters relating to the Protective Order and understands that the terms
of said 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

10