McNeill v. Herring et al
Filing
29
CONSENT PROTECTIVE ORDER. Signed by Chief Judge Frank D. Whitney on 03/05/2020. (ctb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-00189-FDW
JAMES C. MCNEILL,
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Plaintiff,
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vs.
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FNU HINSON,
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Defendant.
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___________________________________ )
CONSENT PROTECTIVE ORDER
THIS MATTER is before the Court on a Consent Motion for Entry of Protective Order
[Doc. 28] by Defendants FNU Simmons, FNU Allen, and FNU Kinney (“Defendants”).
Defendants seek the entry of a Protective Order that will control the production and
dissemination of confidential documents, material, and information (“Confidential Information”).
Counsel for Plaintiff, appearing for the limited purpose of assisting Plaintiff to conduct discovery,
consents to this motion. [Doc. 28 at 1-2].
It is anticipated that some portion of the Confidential Information relates to current or
former inmates in the custody of the Division of Adult Correction of the Department of Public
Safety (“DPS”), including Plaintiff, or relates to current or former employees of DPS, including
Defendant.
This Confidential Information is expected to include inmate records deemed
confidential pursuant to N.C.G.S. §§ 148-74 and -76, security information deemed confidential by
N.C.G.S. 132-1.7, including video recordings of DPS facilities, and may include information that
is confidential under 42 CFR 2.1, et seq., N.C.G.S. § 122C-52, and the federal Health Insurance
Portability and Accountability Act. In light of the confidentiality of this material, and in an effort
to protect that confidentiality, the Defendants require the entry of a consent order to release the
Confidential Information and to ensure that the Confidential Information is not disclosed or used
for any purpose other than in connection with this litigation. In the interests of justice and to
further the legitimate causes of this litigation, Defendants agree to disclose the Confidential
Information in their possession, custody, or control, subject to the conditions set forth herein and
adopted by the Court.
The Motion [Doc. 28] is hereby GRANTED, and the Court enters the following order.
IT IS, THEREFORE, ORDERED that:
1. Scope of the Order. This Order applies to all information produced by the Defendants
in response to Plaintiff’s discovery requests and thereafter in the course of the prosecution or
defense of this action, provided that the presiding judicial officer shall determine the procedure for
presentation of Confidential Information at pre-trial hearings and trial.
2. Use of Confidential Information. All Confidential Information, as defined in this Order,
shall be used solely in the prosecution or defense of this action including, but not limited to,
mediation, other alternative dispute resolution processes, any other settlement process, and all
other pretrial, trial, and post-trial proceedings in this action, and shall not be used or disclosed by
any person for any other purpose.
3. Disclosure. “Disclose” or “disclosure” means to provide, impart, transmit, transfer,
convey, publish, or otherwise make available.
4. Confidential Information. “Confidential Information” consists of “General Confidential
Information” and “Attorneys’ Eyes Only Confidential Information,” which are defined as follows:
a. “General Confidential Information” means:
1)
Any personnel files, as that term is defined in N.C.G.S. § 126-22(3),
maintained by DPS, excluding personal information as described in
Paragraph 4(b)(1).
2)
The medical and mental health records generated in the treatment or
handling of Plaintiff during his incarceration within DPS which are deemed
confidential by N.C.G.S. §§ 148-74 and -76.
3)
Records generated in the housing and handling of the named Plaintiff during
his incarceration within the DPS, including video recordings, which are
deemed confidential by N.C.G.S. §§ 148-74 and -76.
4)
Other information that is potentially embarrassing or invasive of the privacy
of a person not a party to this litigation and therefore an appropriate subject
of a protective order under Rule 26(c)(1) of the Rules of Civil Procedure.
5)
Reports of, investigations into, and any findings regarding alleged incidents
of sexual misconduct or use of force by Defendants against Plaintiff.
b. “Attorneys’ Eyes Only Confidential Information” means:
1)
Personal information about current or former employees of DPS that is not
related to the employee’s job performance or duties, such as social security
numbers, home addresses and telephone numbers, insurance records or
designations, medical and/or disability information, and other purely private
information.
2)
The medical records of Defendants.
3)
The personal financial records, telephone records, and e-mail records of
Defendants.
4)
Reports of, investigations into, and any findings regarding alleged incidents
of sexual misconduct by current or former employees of DPS, other than
Defendants, against Plaintiff.
5)
Reports of, investigations into, and any findings regarding alleged incidents
of sexual misconduct by Defendants against current or former inmates in
the custody of DPS, other than Plaintiff.
6)
The medical and mental health records generated in the treatment or
handling of current or former inmates, other than Plaintiff, during their
incarceration within DPS which are deemed confidential by N.C.G.S. §§
122C-52, 148-74, and -76.
7)
Records generated in the housing and handling of current or former inmates,
other than Plaintiff, during their incarceration within the DPS, including
video recordings, which are deemed confidential by N.C.G.S. §§ 148-74
and -76. This designation is not intended to cover Plaintiff’s records that
mention other inmates, or videos of the incidents at issue in this case, which
would only be subject to the General Confidential Information designation.
8)
Highly sensitive security information as it relates to investigations, security
designations, staffing patterns and logs, schematic or other drawings and
diagrams, and other sensitive security information deemed confidential
pursuant to N.C.G.S. § 132-1.7.
5. Disclosure of General Confidential Information. General Confidential Information shall
not be disclosed to anyone except:
a.
The court and its personnel;
b.
The parties to this action;
c.
Counsel for the parties to this action and employees of said counsel;
d.
Experts or consultants specifically retained by the parties or their attorneys to assist
them in the preparation of this case or to serve as expert witnesses at the trial of this
action, but only after execution of a Confidentiality Agreement as provided in
Paragraph 7; and
e.
Court reporters or videographers engaged to record depositions, hearings, or the
trial in this action.
6. Disclosure of Attorneys’ Eyes Only Confidential Information. Attorneys’ Eyes
Only Confidential Information shall not be disclosed to anyone except:
a.
The court and its personnel;
b.
Counsel for the parties to this action and employees of said counsel;
c.
Experts or consultants specifically retained by the parties or their attorneys to assist
them in the preparation of this case or to serve as expert witnesses at the trial of this
action, but only after execution of a Confidentiality Agreement as provided in
Paragraph 7; and
d.
Court reporters or videographers engaged to record depositions, hearings, or the
trial in this action.
e.
In the event that counsel for Plaintiff withdraws from representation during the
pendency of this litigation and Plaintiff proceeds pro se, any Attorneys’ Eyes Only
Confidential Information disclosed by Defendant to counsel for Plaintiff may
thereafter be disclosed to Plaintiff upon the following conditions:
1)
Plaintiff must sign a Confidentiality Agreement, a copy of which is attached
hereto as Exhibit A, as provided for in Paragraph 7 of this Order, and abide
by the terms of that Confidentiality Agreement and this Order; and
2)
Counsel for Plaintiff agrees to copy any documents marked as Attorneys’
Eyes Only Confidential Information onto red paper before disclosing said
material to Plaintiff. If, after the conclusion of this litigation, DPS officials,
during any searches of Plaintiff’s personal property or outgoing mail,
discover red papers marked as Attorneys’ Eyes Only Confidential
Information, those officials are authorized to seize the documents and return
them to DPS, or counsel for Defendant.
7. Confidentiality Agreements. Before Confidential Information is disclosed to any person
described in Paragraphs 5(d) or 6(c) of this Order, counsel for the party disclosing the information
shall inform the person to whom the disclosure is to be made that Confidential Information shall
be used only for the purpose of the prosecution or defense of this action, and shall obtain from the
person to whom the disclosure is to be made a signed confidentiality agreement in the form
attached hereto as Exhibit A. Counsel for the party disclosing the Confidential Information to said
person shall maintain the original Confidentiality Agreement and need not produce it except by
agreement of the parties or upon order of the court.
8. Designation of Confidential Information. Information shall be designated as
Confidential Information in the following manner:
a.
In the case of information reduced to paper form, the designation shall be made:
(1)
by placing the appropriate legend, “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER” for General Confidential Information or
“CONFIDENTIAL–ATTORNEYS’ EYES ONLY” for Attorneys’ Eyes
Only Confidential Information, on each page containing such information
or;
(2)
by such other means as agreed to by the parties. The party disclosing the
information shall designate the documents as confidential at or before the
time of disclosure. A party may make the designation with respect to
information disclosed by another party by a writing directed to the
producing party’s counsel. The producing party’s counsel shall then be
responsible for labeling the designated information as provided herein.
b.
Information on a computer disk, data tape, or other medium that has not been
reduced to paper form shall be designated as General Confidential Information or
Attorneys’ Eyes Only Confidential Information:
(1)
by informing counsel for the parties to this action in writing that the
computer disk, data tape, or other medium contains such Confidential
Information and, where applicable, specifying by Bates or other page
number the particular information being designated or;
(2)
by such other means as agreed to by the parties. To the extent practicable,
such physical medium should also be labeled using the appropriate legend.
Any party receiving Confidential Information designated under this
Paragraph 8(b) shall then be responsible for appropriately labeling any
printed version(s) of such information that it creates.
c.
In the case of deposition testimony, any party may designate information disclosed
during a deposition as General Confidential Information or Attorneys’ Eyes Only
Confidential Information by either:
(1)
identifying on the record at the deposition the information that is to be
treated as Confidential Information or;
(2)
marking the portions of the deposition transcript to be designated as
Confidential Information within 21 days after receipt of the transcript.
When the deponent and the attending parties do not agree to waive the
reading, correcting, and signing of the transcript, all information disclosed
during a deposition shall be treated as Attorneys’ Eyes Only Confidential
Information before the expiration of the 21-day period unless otherwise
agreed by the parties and the deponent. If any deposition testimony or any
document or information used during the course of a deposition is
designated as Confidential Information, each page of the deposition
transcript containing such information shall be labeled with the appropriate
legend specified in Paragraph 8(a), and the first page of the deposition
transcript shall be labeled in a manner that makes it readily apparent that the
transcript contains Confidential Information.
d.
Any other information that is not reduced to physical form or cannot be
conveniently labeled shall be designated as Confidential Information by serving a
written notification of such designation on counsel for the other parties. The notice
shall, where applicable, specify by Bates or other page number the particular
information being designated.
9. Disputes over Designations. If any party objects to the designation of any information
as confidential, counsel for the objecting party and counsel for the designating party shall attempt
to resolve the disagreement on an informal basis. If the objection is not so resolved, the objecting
party may move the court for appropriate relief. The information in question shall continue to be
treated as confidential in accordance with the disputed designation unless and until the court issues
a final ruling that the information does not qualify for such a designation. The nonfiling by the
objecting party of a motion for relief shall not be deemed an admission that the information in
question qualifies for the disputed designation.
10. Inadvertent Disclosure of Confidential Information. Inadvertent disclosure of
Confidential Information, without identifying the same as confidential, shall not be deemed a
waiver of confidentiality with regard to similar or related information nor shall it be deemed a
waiver of confidentiality with regard to the information inadvertently disclosed if promptly called
to the attention of counsel for each receiving party.
11. Filing of Confidential Information Under Seal.
a.
The Parties Must Confer. Before filing a document containing any Confidential
Information, the filing party must confer with the other parties about how the
document should be filed. If the filing party decides that the document should be
sealed, the filing party shall file the document along with a motion to seal pursuant
to Local Civil Rule 6.1 showing that the document may properly be sealed. If a
party other than the filing party seeks to have the document sealed, the filing party
shall file the document as a proposed sealed document. But instead of a motion to
seal and supporting memorandum, the filing party shall file contemporaneously
with the document a notice stating that, pursuant to this Paragraph 11, any party
seeking the sealing of the document must within 7 days file a motion to seal as
provided in Local Civil Rule 6.1 or the document will be unsealed by the Clerk
without further order of the court.
b.
Motion to Seal Requirements. Motions to Seal shall be filed pursuant to Local Civil
Rule 6.1.
12. Authors/Recipients. Except as specifically provided herein, this Order shall not limit
use by a party of its own Confidential Information, nor shall this Order limit the ability of a party
to disclose any document to its author or to anyone identified on the face of the document as a
recipient.
13. Return of Confidential Information. Following the conclusion of this action, including
any appeals, a party that produced Confidential Information may request in writing its return by
any other party. Within 60 days after service of such a request, any party that received the
Confidential Information shall either return it to counsel for the producing party or destroy it, at
the election of the receiving party; provided that the information shall not be destroyed if otherwise
ordered by the court or a motion for relief from this Paragraph 13 is pending. If a receiving party
elects to destroy the Confidential Information rather than returning it to the producing party,
counsel for the receiving party shall provide to the producing party by the 60- day deadline a signed
certification that the Confidential Information has been destroyed. This Paragraph shall not be
construed to require the return or destruction of any regularly maintained litigation files held by
the attorneys of record for each party as archival records or other attorney work-product created
for any party. Any Confidential Information, or portions or excerpts thereof, which are not returned
or destroyed pursuant to this Paragraph shall remain subject to the terms of this Order. The return
of trial exhibits by the court shall be governed by Local Civil Rule 79.1.
14. Admissibility of Information. Neither the terms of this Order nor the disclosure or
designation as confidential of any information pursuant to it shall be deemed to establish or vitiate
the admissibility under the Federal Rules of Evidence of any information subject to this Order.
15. Confidential Employee Information. Pursuant to N.C.G.S. § 126-24(4), this Order
authorizes the disclosure of confidential portions of the personnel files maintained by the DPSDAC of current or former employees in accordance with the terms of this Order.
16. Disposition of Protected Materials. Pursuant to the Court’s Case Management Order,
paragraph E, notwithstanding any other provisions in this Protective Order, the ultimate disposition
of protected materials are subject to a final order of the Court on the completion of litigation.
16. Modification. This Order is without prejudice to the right of any party or witness to
seek modification or amendment of the Order by motion to the court, or to seek and obtain
additional protection with respect to Confidential Information as such party may consider
appropriate.
IT IS SO ORDERED.
Signed: March 5, 2020
THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
FILE NO. 3:18-cv-00189-FDW
JAMES C. MCNEILL,
Plaintiff,
v.
JOHN HERRING, et al.,
Defendants.
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EXHIBIT A:
CONFIDENTIALITY
AGREEMENT
I have read and am familiar with the terms of the Protective Order governing the disclosure
of confidential information in the case of McNeill v. Herring, et al., Case No. 3:18-cv-00189FDW, United States District Court for the Western District of North Carolina. I agree to abide by
all the terms of said Order and not to reveal or otherwise communicate any of the information or
documents disclosed to me pursuant thereto to anyone except in accordance with the terms of said
Order. I agree not to make use of any information obtained, whether in documentary or other
form, pursuant to that Order other than for purposes of this litigation. I also agree that after the
termination of this litigation, and upon written request from counsel for Plaintiff, counsel for
Defendants, or DPS, to return to counsel of record no later than 60 days after the termination of
this litigation any and all documents in my possession containing information which is the subject
of said Order or disclosed to me pursuant to the Order (whether such information is in the form of
notes, memoranda, reports, or other written communications or documents prepared by any person
at any time containing information covered by the terms of said Order). I further agree to submit
myself to the jurisdiction of the foregoing court, including its contempt power, for enforcement of
said Order.
________________________
Signature
(Date)
________________________
Printed Name
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