Munchel v. Red Coats, Inc.
Filing
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Confidentiality ORDER in re 6 Joint Motion For Entry Of A Confidentiality Order. Signed by Senior Judge Graham Mullen on 11/20/2017. (jaw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
MARK MUNCHEL,
Plaintiff,
vs.
RED COATS, INC.,
Defendant.
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Civil Action No. 3:17-cv-00615
CONFIDENTIALITY ORDER
Whereas, the parties to this Consent Confidentiality 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 this 20th day of November, 2017, 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 (hereinafter collectively “documents”) shall be subject to this
Order concerning confidential information as set forth below.
2.
Form and Timing of Designation. Confidential documents shall be so 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.
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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. 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 seven 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 (¶ 5.b.) for any purposes whatsoever 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
an acknowledgment (in the form set forth at Attachment B hereto), that he or she has read
and understands the terms of this Order and is bound by it. Subject to these requirements,
the following categories of persons may be allowed to review documents which have been
designated CONFIDENTIAL pursuant to this Order:
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(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 after said party or
employee signs the Acknowledgement of Understanding and Agreement to be
Bound (Attachment A hereto);
(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 (hereinafter
referred to collectively as “copies”), of documents designated as Confidential under this
Order or any portion of 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.
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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 insure 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 pursuant to subsections (2) or (3) above shall notify counsel for the party who designated the
document as confidential in advance of the filing, so the designating party can seek the Court’s
permission to submit the document in camera or under seal. 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 after proper motion.
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.
a.
The following procedures shall apply to any such challenge.
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
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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 as set forth in
paragraph 8.b. above; 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 (¶5.d.) shall be returned
to the producing party upon written request unless: (1) the document has been entered as
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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 a copy of the documents as part of the attorney’s record retention policy and
documents constituting attorney work product including an index which refers or relates to
information designated CONFIDENTIAL. 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 herein 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 under Rule 26(c)
of the Federal Rules of Civil Procedure or otherwise until such time as a document-specific ruling
shall have been made. The ultimate disposition of protected materials shall be subject to a final
order of the court upon completion of the litigation.
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.
IT IS SO ORDERED.
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Signed: November 20, 2017
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ATTACHMENT A
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
MARK MUNCHEL,
Plaintiff,
vs.
RED COATS, INC.,
Defendant.
)
)
)
)
)
)
)
)
)
Civil Action No. 3:17-cv-00615
ACKNOWLEDGMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated [confidentiality order date], 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
Confidentiality 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 Stipulated Confidentiality Order may
result in penalties for contempt of court.
Name:
[undersigned name [att A]]
Job Title:
[Job Title [att A]]
Employer:
[Employer [att A]]
Business Address:
[Business Address [att A]]
Date: [date attachment A signed]
[Signature [attachment A]]
Signature
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