Wiggan v. University of North Carolina - Charlotte

Filing 27

CONSENT CONFIDENTIALITY AND PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 3/8/19. (mga)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 3:18-CV-317-FDW-DCK
GREG A. WIGGAN, Dr.,
Plaintiff,
v.

CONSENT CONFIDENTIALITY AND
PROTECTIVE ORDER

UNIVERSITY OF NORTH
CAROLINA AT CHARLOTTE,
Defendant.
WHEREAS, in this action, Plaintiff Dr. Greg A. Wiggan, a current employee of
University of North Carolina at Charlotte (UNCC), alleges that he has been discriminated
against in violation of Title VII;
WHEREAS, discovery sought in this action may require the production of certain
confidential information, including but not limited to documents related to State employee
personnel files protected pursuant to N.C. Gen. Stat. § 126-22 et seq.; and
WHEREAS, the parties seek to expedite the flow of discovery material, facilitate
the prompt resolution of disputes over confidentiality, protect adequately material entitled
to be kept confidential, and ensure that protection is afforded only to materials so entitled.
THEREFORE, there is good cause for the issuance of this Order pursuant to the
Court’s authority under Federal Rule of Civil Procedure 26(c). It is hereby ordered, with
the consent of the Parties, as follows:
1.

Nondisclosure of Confidential Information in Discovery Responses. Except

with the prior written consent of the Party or other person originally designating
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information or a document as confidential, or as hereinafter provided under this Order, no
Confidential Information obtained through discovery may be disclosed to any person.
“Confidential Information” means any information or document designated in
writing by a Party as “Confidential,” or which bears the legend or is noted as “Confidential”
to signify that it contains information believed to be subject to protection under N.C. Gen.
Stat. § 126-22 et seq.; Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g,
including its implementing regulations; Health Insurance Portability and Accountability
Act of 1996, including its implementing regulations; and Federal Rule of Civil Procedure
26(c). For purposes of this Order, the term “document” means all written, stored, recorded,
or graphic material, whether produced or created by a Party or another person, whether
produced pursuant to Federal Rule of Civil Procedure 34 (“Rule 34”), subpoena, by
agreement or otherwise. Interrogatory answers, responses to requests for production of
documents, responses to requests for admission, deposition transcripts and exhibits,
pleadings, motions, affidavits, and briefs that “summarize” and/or that contain materials
entitled to protection may be accorded “confidential” status, but, to the extent feasible,
shall be prepared in such a manner that the confidential information is segregated from that
not entitled to protection.
2.

Permissible Disclosures. Notwithstanding paragraph 1 herein, Confidential

Information may be disclosed to any Party to this action; to counsel for the Parties; to the
partners, associates, secretaries, paralegals, assistants, and employees of such attorney to
the extent reasonably necessary to render professional services to the Party; and to court
officials involved in this litigation (including court reporters and persons operating video
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recording equipment at depositions). Subject to the provisions of this paragraph, such
Confidential Information may also be disclosed:
A.

To any person designated by the Court in the interest of justice, upon

such terms as the Court may deem proper;
B.

To persons noticed for depositions or designated as trial witnesses to

the extent reasonably necessary in preparing to testify;
C.

To employees of Parties involved solely in one or more aspects of

organizing, filing, coding, converting, storing, or retrieving data or designing programs for
handling data connected with this action, including the performance of such duties in
relation to a computerized litigation support system;
D.

To expert witnesses retained by the Parties to testify at trial, to the

extent reasonably necessary to prepare for trial, expert reports or depositions; and
E.

To employees of third-Party contractors performing one or more of

these functions.
Prior to any disclosure to any person described in 2A–E above, the individual to
whom disclosure is to be made must have signed a form containing the following, such
form to be retained by counsel:
i. A recital that the signatory has read and understands this Order;
ii. A recital that the signatory understands that unauthorized disclosures
of the Confidential Information constitute Contempt of Court; and
iii. A statement that the signatory consents to the exercise of personal
jurisdiction over the signatory by this Court.
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Before disclosing Confidential Information to any person or entity not listed or
described above, a Party who wishes to make such disclosure shall either (1) obtain the
written consent of the Party or person who designated the information as confidential to
disclose the information to the individual; or (2) move the Court for permission to do so
on such terms and conditions as the Court may order.
3.

Declassification. A Party (or aggrieved entity permitted by the Court to

intervene for such purpose) may apply to the Court for a ruling that a document or
information (or a category of documents or information) designated as confidential is not
entitled to such status or protection. The Party or other person that designated the document
or information as confidential shall be given notice of the application and an opportunity
to respond. To maintain confidential status, the proponent of confidentiality must show by
a preponderance of the evidence that there is good cause for the document to have such
protection.
4.

Confidential Information in Depositions.
A. A deponent may, during the deposition, be shown and be examined about

confidential documents if the deponent already knows of the Confidential Information
contained therein, or if the provisions of paragraph 2 are complied with. In the event a
deponent noticed for a deposition fails or refuses to sign the form prescribed in paragraph
2, the Party noticing the deposition shall apply to the Court for an Order making the
provisions of this Order binding on the deponent. Deponent shall not retain or copy
portions of the transcript of their depositions that contain Confidential Information not
provided by them or the entities they represent unless they sign the form prescribed in
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paragraph 2. A deponent who is not a Party or a representative of a Party shall be furnished
a copy of this Order before being examined about, or asked to produce, potentially
Confidential Information.
B.

Parties (and deponents) may, within fifteen (15) days after receiving

the transcript of a deposition taken after the entry of this Order, designate pages of the
transcript (and exhibits thereto) as confidential. Confidential Information within the
deposition transcript may be designated by underlining the portions of the pages that are
confidential and marking such pages with the following legend: “Confidential – Subject to
Protection Pursuant to Court Order;” and serving copies of the marked pages on counsel
for all other Parties. Entire transcripts may be so designated by giving notice of such
designation in writing to counsel for all other Parties. Until expiration of the fifteen-day
period, the entire deposition will be treated as subject to protection against disclosure under
this Order. A Party may also designate a portion of the deposition as Confidential during
the deposition. If no Party or deponent timely designates Confidential Information in a
deposition, then none of the transcript or its exhibits will be treated as confidential; if a
timely designation is made, the confidential portions and exhibits shall be filed under seal
separate from the portions and exhibits not so marked.
C.

The Parties (and deponents) may, within fifteen (15) days of the entry

by the Court of this Order, designate pages of depositions, deposition exhibits and/or entire
depositions previously taken in this action as confidential by following the procedure set
forth in paragraph 4b above. If no Party or deponent timely designates Confidential
Information in a deposition, then none of the transcript or its exhibits will be treated as
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confidential; if a timely designation is made, the confidential portions and exhibits shall be
filed under seal separate from the portions and exhibits not so marked.
5.

Subpoena by Other Courts or Agencies. If another court or an administrative

agency subpoenas or orders production of Confidential Information which a Party or other
person has obtained under the terms of this Order, such Party or person shall promptly
notify the Party or other person who designated the information as confidential of the
pendency of such subpoena or order. Such notification shall take place as soon as
practicable and in advance of the date on which the Confidential Information is sought, and
in sufficient time for the designating Party to object to or move to quash the subpoena or
order.
6.

Use. Persons obtaining access to Confidential Information under this Order

shall use the information only for preparation and trial of this litigation (including appeals
and retrials), and shall not use such information for any other purpose, including business,
governmental, commercial, administrative or judicial proceedings. The Parties are
prohibited from any use of information protected under this order which is calculated to
interfere with, disrupt or undermine the business or financial arrangements or plans of the
disclosing Party.
7.

Non-Termination. The provisions of this Order shall not terminate at the

conclusion of this action. Within one hundred-twenty (120) days after the final conclusion
of all aspects of this litigation, including any and all possible appeals, Confidential
Information and all copies of same (other than exhibits of record and documents required
by law to be retained by a Party or person) shall be returned to the Party or person which
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produced such information or, at the option of the producing Party or person (if it retains
at least one copy of the same), destroyed. All counsel of record shall make certification of
compliance herewith and shall deliver the same to counsel for the Party who produced the
Confidential Information no more than one hundred-twenty (120) days after the final
conclusion of this litigation. Provided, however, that counsel for each party may retain a
copy of the documents for their records to comply with record retention policies of the
State Bar.
8.

Modification Permitted. Nothing in this Order shall prevent any Party or

other person from seeking modification of this Order, contesting the designation of
information or documents as confidential, or from objecting to discovery that it believes to
be otherwise improper.
9.

Responsibility of Parties. The attorneys of record and Parties are responsible

for employing reasonable measures to control, consistent with this Order, duplication of,
access to, and distribution of copies of Confidential Information. Parties shall not duplicate
any confidential documents except working copies and for filing in Court under seal.
10.

Waiver.
A.

Review of Confidential Information by counsel, experts, or

consultants for the Parties in this litigation shall not waive the confidentiality of
information and documents or objections to production.
B.

The inadvertent, unintentional, or in camera disclosure of

Confidential Information shall not, under any circumstances be deemed as waiver, in whole
or in part, of any Party’s claims of confidentiality. Further, the production of privileged or
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work-product protected documents, electronically stored information ("ESI") or
information, whether inadvertent or otherwise, is not a waiver of the privilege or protection
from discovery in this case or in any other federal or state proceeding. This Order shall be
interpreted to provide the maximum protection allowed by Federal Rule of Evidence
502(d).
11.

Reservation of Rights. Nothing contained in this Confidentiality and

Protective Order and no action taken pursuant to it shall prejudice the right of any Party to
contest the alleged authenticity, relevancy, admissibility, or discoverability of the
Confidential Information sought.
12.

Before filing any information that has been designated “CONFIDENTIAL

INFORMATION” with the Court, or any pleadings, motions or other papers that disclose
any such information, counsel shall confer with counsel for the party that produced the
information so designated about how it should be filed. If the party that produced the
information so designated desires that the materials be filed under seal, then the filing party
shall file the materials in accordance with Local Civil Rule 6.1, WDNC, with notice served
upon the producing party. The filing of the materials under seal shall not be binding on the
Court, however.
Each time a party seeks to file under seal confidential documents, things, and/or
information, said party shall accompany the request with a motion to seal and a supporting
memorandum of law specifying (a) the exact documents, things, and/or information, or
portions thereof, for which filing under seal is requested; (b) where it is necessary for the
court to determine the source of the public’s right to access before a request to seal may be
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evaluated, whether any such request to seal seeks to overcome the common law or the First
Amendment presumption to access; (c) the specific qualities of the material at issue which
justify sealing such material, taking into account the balance of competing interests in
access; (d) the reasons why alternatives to sealing are inadequate; and, (e) whether there is
consent to the motion. Finally, in addition to the motion and supporting memorandum,
said party must set out such findings in a proposed order to seal for the court.
Before ruling on any motion to seal the court will give the public notice of the
motion and a reasonable opportunity to challenge it. While individual notice is
unwarranted, the court will docket the motion reasonably in advance of deciding the issue,
or, where applicable, the court will notify persons present in courtroom proceedings of the
motion. The court will rule favorably upon any motion to seal only after carefully weighing
the interest advanced by the movant and those interests favoring public access to judicial
documents and records, and only upon finding that the interests advanced by the movant
override any constitutional or common law right of public access which may attach to the
documents, things, and/or information at issue.
Signed: March 8, 2019

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CONSENTED TO BY:
This, the 8th day of March 2019.
JOSHUA H. STEIN
Attorney General
/s/ Zachary Padget
Zachary Padget
Assistant Attorney General
N.C. State Bar No. 46610
N.C. Department of Justice
P.O. Box 629
Raleigh, NC 27602
T: [phone]
F: [phone]
E: [e-mail]
Attorney for Defendant

/s/Geraldine Sumter
Geraldine Sumter
N.C. Bar No. 11107
Ferguson Chambers & Sumter, P.A.
309 East Morehead Street, Suite 110
Charlotte, North Carolina 28202
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for Plaintiff

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