Seitz v. U.S. National Whitewater Center, Inc. et al

Filing 59

STIPULATION OF CONFIDENTIALITY AND PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 5/24/18. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Case No. 3:18-CV-00044-MOC-DSC
JAMES SEITZ, ADMINISTRATOR OF
THE ESTATE OF LAUREN E. SEITZ,
DECEASED,
Plaintiff,
v.
U.S. NATIONAL WHITEWATER
CENTER, INC., RECREATION
ENGINEERING AND PLANNING,
INC., and LIQUID DESIGN, P.C.

STIPULATION OF CONFIDENTIALITY
AND PROTECTIVE ORDER

Defendants.
1.

The “Litigation” shall mean the above-captioned case, Case No. 3:18-CV-

00044-MOC-DSC or as the pleadings are amended.
2.

“Discovery Materials” shall mean and include any document (whether

in hard copy or electronic form), records, responses to discovery, whether
documentary or oral, and other information provided, served, disclosed, filed, by or
through a Party or any non-party person or entity through discovery in connection
with this Litigation, whether before or after entry of this Order. All such documents
are produced pursuant to legal obligations arising under the Federal Rules of Civil
Procedure. Discovery Materials shall be used solely and exclusively for the purposes
of prosecuting or defending this Litigation, and shall not be used by a Party for any
other purposes. Notwithstanding any other provision herein, nothing shall prevent
a Party from using Discovery Materials that were created by, or through no unlawful

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means or activities were sent or received by, that Party prior to or outside the context
of this Litigation.
3.

The term “producing Party” shall mean any Party or non-party person

or entity that provides, serves, files, or produces any nonpublic information in
connection with this Litigation.
4.

Discovery Materials produced or disclosed in connection with the

Litigation by a producing Party may be designated as confidential by the producing
Party, to the extent that such Discovery Materials include non-public and highly
sensitive commercial, banking, tax, financial, personal, employee, medical or
proprietary information, or information that is required to be kept confidential due
to preexisting legal or contractual obligations. Confidential Discovery Material may
be designated confidential by marking or stamping the page or pages containing such
information as “CONFIDENTIAL” or by designating any thumb drive, CD, DVD, or
other storage device for electronically formatted discovery on said device.
5.

Discovery Materials designated as confidential shall be referred to

herein as “Confidential Discovery Material.” The Parties further agree that reference
to any categories or types of Discovery Material above is not intended to and shall not
be construed as an admission that the Discovery Material is, or is not, relevant;
admissible; reasonably calculated to lead to the discovery of admissible evidence; or
subject to an applicable privilege, protection or immunity.
6.

Confidential Discovery Material shall be maintained in strict confidence

by the Parties and others who receive such documents or information, and shall be

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used solely and exclusively for the purposes of prosecuting or defending this
Litigation, and shall not be used for any other purposes. Confidential Discovery
Material shall not be disclosed to any person except:
(a)
The Court and persons assisting the Court in the Litigation
process (including, but not limited to, Court personnel, court reporters,
stenographic reporters and videographers);
(b)

Counsel of record for the Parties;

(c)
A Party, or a former or present administrator, officer, employee,
director, manager, member or shareholder of a Party deemed necessary
by counsel of record for the prosecution or defense of this Litigation;
(d)
Subject to the terms of Paragraph 7 below, experts or consultants
and their staff, and litigation support personnel and their staff, retained
by a Party and/or its counsel of record in this Litigation;
(e)
Subject to the terms of Paragraph 7 below, witnesses other than
in (c) and (d) of this Paragraph 6 deemed necessary by counsel of record
for a Party for the prosecution or defense of this Litigation;
(f)
Support vendors or contractors retained by counsel of record for
functions directly related to this Litigation, such as copying, document
management, and graphic design;
(g)

Any other person as to whom all Parties may agree in writing; and

(h)

As filings under seal in this Litigation.

7.

Before being provided access to Confidential Discovery Material outside

of a deposition or trial proceeding, each person within Paragraph 6(d), (e), and (g)
must first sign a Certification in the form set forth as Exhibit A hereto,
acknowledging that he/she has been provided with a copy of this Order, has carefully
and completely read, understood, and agrees to be bound by this Order. Counsel for
the Party on whose behalf such a Certification is signed shall retain the original
Certification, and except as to non-designated experts, shall serve a copy of the

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Certification on all parties within five days of receiving the signed Certification.
Notwithstanding any other provision herein, nothing shall prevent a Party from
revealing Confidential Discovery Material to a person who created such information
or who through no unlawful means or activities sent or received such information
prior to or outside the context of this Litigation.

Additionally, nothing herein

prohibits a Party from showing any Confidential Discovery Materials to a witness in
a deposition or court proceedings in this Litigation, regardless whether such witness
has signed the Certification.
8.

If a producing Party, through inadvertence, produces any Confidential

Discovery Material without marking or designating it as such in accordance with the
provisions of this Order, the producing Party may, within 10 days after discovery of
the production of such Confidential Discovery Material, designate such Discovery
Material as CONFIDENTIAL pursuant to Paragraph 4 of this Order, and such
Discovery Material shall be treated as CONFIDENTIAL in accordance with the
provisions of this Order. If a producing Party, through inadvertence, produces a
document that it later claims is subject to the attorney-client privilege or the attorney
work product doctrine, such document shall be returned to the producing Party
within ten (10) days of any written request therefor, unless the receiving party
challenges the privileged nature of the document(s), in which case the producing
Party shall be entitled to make an application to the Court for the return of the
document(s). While such application is pending, the receiving party shall not use or
disclose the contents of such document(s) except to the Court under seal.

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The

inadvertent production of any document claimed to be privileged or subject to the
work product doctrine shall not constitute a waiver of such privilege or protection.
9.

A producing Party may designate as CONFIDENTIAL any portion of a

deposition transcript that contains or discusses Confidential Discovery Material. The
Producing Party shall advise the court reporter and counsel of record of the beginning
and end of the testimony containing Confidential Discovery Material, either orally on
the record at the deposition or in writing no later than ten (10) days of receipt of the
transcript. Until the end of such ten (10) day period, the Parties shall treat every
transcript of any deposition or Court proceeding as Confidential Discovery Material.
The court reporter shall mark CONFIDENTIAL on the face of the transcript at the
beginning and end of any portions thereof so designated. Copies of the transcript for
counsel’s use may contain the confidential testimony and other testimony in a single
volume.
10.

All Parties reserve the right to challenge the designation of documents,

materials, or testimony as CONFIDENTIAL. Nothing contained in this Order shall
preclude a Party from seeking further orders from this Court.
11.

If at any time a Party objects to a designation of Discovery Material as

CONFIDENTIAL under this Order, the objecting Party shall notify the producing
Party in writing. The objecting Party shall identify the Discovery Materials in
question and shall specify in reasonable detail the reason or reasons for the objection.
If the Parties cannot resolve their disagreement, the objecting Party may apply for a
ruling from the Court on the producing Party’s designation. The Party seeking to

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maintain a designation of any documents or materials shall have the burden of
demonstrating that the material qualifies for its particular designation. While any
such application is pending, the documents or material subject to that application
will be treated as designated until the Court rules.
12.

This Order shall not be construed to prevent any Party from making use

of or disclosing information that was lawfully obtained by such Party independent of
discovery in this Litigation, whether or not such material is also obtained through
discovery in this Litigation, or from disclosing its own Confidential Discovery
Material as it deems appropriate.
13.

Any Party in possession of any Confidential Discovery Materials who

receives a request, subpoena, order or other compulsory process for the production of
such documents or information shall immediately notify the other Parties in writing
of such request, and shall not produce the Confidential Discovery Materials, until the
producing Party who originally designated the documents as Confidential Discovery
Material has had reasonable time to take appropriate steps to protect the documents.
It shall be the responsibility of such producing Party who originally designated the
documents as Confidential Discovery Material to obtain relief from the subpoena or
order prior to the due date of compliance, and the Party from whom such information
is sought shall not make the disclosure before the actual due date of compliance set
forth in the subpoena or order.
14.

Upon final conclusion of this Litigation, each party or other individual

subject to the terms hereof shall be under an obligation to make reasonable efforts to

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assemble and to return to the providing party all originals and unmarked copies of
documents and things containing confidential material and to destroy, should such
source so request, all copies of confidential material that contain and/or constitute
attorney work product as well as excerpts, summaries, and digests revealing
confidential material; provided, however, that counsel may retain complete copies of
all transcripts, documents produced, and pleadings including any exhibits attached
thereto for archival purposes, subject to the provisions of this Protective Order. To
the extent a party requests the return of confidential material from the Court after
the final conclusion of the litigation, including the exhaustion of all appeals therefrom
and all related proceedings, the party shall file a motion seeking such relief.
15.

This Order (including, but not limited to, its provisions pertaining to

preservation and non-waiver of any privilege, protection or immunity) shall govern
the continuing effect hereof on all persons and entities, whether or not they are
parties to this action and all persons who receive Confidential Discovery Materials
under the terms of this Order. This Order shall be incorporated into the terms of any
settlement, judgment, or other final disposition of the Litigation and shall survive
such settlement, judgment or other final disposition of this action and all appeals
therefrom. This Court shall retain continuing jurisdiction in order to enforce the
terms of this Order.
SO ORDERED.

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Signed: May 24, 2018

THE ABOVE STIPULATION AND ORDER OF CONFIDENTIALITY IS HEREBY
AGREED AND CONSENTED TO BY:
/s/ John T. Daniel (with permission)
John T. Daniel
Edward G. Connette
Essex Richards, PA
1701 South Boulevard
Charlotte, NC 28203
Jose Manuel Lopez, Admitted Pro Hac
Jonathan Scott Zweizig, Admitted Pro Hac
Lopez Severt & Pratt LPA – 3
18 E. Water Street
Troy, OH 45373
Attorneys for Plaintiff

/s/ Mark Kutny (with permission)
Mark Kutny
Hamilton Stephens Steele & Martin, PLLC
525 N. Tryon Street, Suite 1400
Charlotte, NC 28202
Attorney for Liquid Design, P.C.

/s/ Morgan H. Rogers
Chip Holmes, N.C. State Bar No. 19980
John H. Beyer, N.C. State Bar No. 24115
Morgan H. Rogers, N.C. State Bar No. 37025
Parker Poe Adams & Bernstein LLP
401 S. Tryon Street, Suite 3000
Charlotte, NC 28202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant U.S. National
Whitewater Center, Inc.
/s/ Joseph L. Nelson (with permission)
Joseph Lawrence Nelson
Dickie, McCamey & Chicote, P.C.
2115 Rexford Road, Suite 210
Charlotte, NC 28211
Mary Barley-McBride, Admitted Pro Hac
Dickie, McCamey & Chicote, P.C.
250 Civic Center Drive, Suite 280
Columbus, OH 43215
Attorneys for Defendant Recreation
Engineering and Planning, Inc.

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Case No. 3:18-CV-00044-MOC-DSC
JAMES SEITZ, ADMINISTRATOR OF
THE ESTATE OF LAUREN E. SEITZ,
DECEASED,
Plaintiff,
v.
U.S. NATIONAL WHITEWATER
CENTER, INC., RECREATION
ENGINEERING AND PLANNING, INC.,
and LIQUID DESIGN, P.C.

CONSENT PROTECTIVE ORDER
CERTIFICATION

Defendants.
I have read the Stipulation that the Court approved and made an Order of the
Court on

, 2018 in James Seitz v. U.S. National

Whitewater Center, Inc., Recreation Engineering and Planning, Inc., and Liquid
Design, P.C. (the “Stipulation”). I understand the responsibilities and obligations the
Stipulation imposes on me as a person to whom Confidential Material or Highly
Confidential Material (as defined in the Stipulation) will be disclosed. Pursuant to
Paragraph 7 of the Order, so as to permit disclosure to me of Confidential Material
or Highly Confidential Material (as defined by the Stipulation), I hereby agree to
comply with the Stipulation and to submit to the jurisdiction of the Court with respect
to enforcement of the Stipulation.
This _____ day of _______________________, 2018.
SIGNATURE
______________________________
PRINT YOUR NAME

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