Manning v. Walmart, Inc.
AGREED CONFIDENTIALITY ORDER. Signed by Magistrate Judge David Keesler on 2/17/21. (mga)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CASE NO. 3:20-CV-150-MOC-DCK
AGREED CONFIDENTIALITY ORDER
The parties have agreed to and have submitted to the Court a “Joint Motion And Stipulation
For Entry Of Confidentiality Order” (Document No. 15), and for good cause shown the Court
hereby enters, the following Confidentiality Order:
This Order shall govern the disclosure of materials designated as Confidential
Material in this litigation. Confidential Material, as used in this Order, shall refer to any document
or item designated as Confidential or Highly Confidential – Attorneys’ Eyes Only, including but
not limited to, documents or items produced during discovery, all copies thereof, and the
information contained in such material. Nothing in this Order shall require any party to produce
any specific documents or category of documents which a party deems inappropriate for
Definitions of Confidential Material
Confidential Material, as used in this Order, consists of the following materials and
categories of materials:
a. Materials relating to any privileged, confidential, or nonpublic
information, including, but not limited to, trade secrets, research,
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design, development, financial, technical, marketing, planning,
personal, or commercial information, as such terms are used in the
Federal Rules of Civil Procedure (Fed. R. Civ.) and any applicable
case law interpreting Fed. R. Civ. 26(c)(1)(G) contracts; non-public
compilations of retail prices; proprietary information; vendor
agreements; personnel files; claim/litigation information; and
nonpublic policies and procedures shall be deemed Confidential.
b. Materials containing corporate trade secrets, nonpublic research
and development data, including, but not limited to, cost data,
pricing formulas, inventory management programs, and other sales
or business information not known to the public; information
obtained from a non-party pursuant to a non-disclosure agreement;
and customer-related Protected Data shall be deemed Highly
Confidential – Attorneys’ Eyes Only.
c. Protected Data shall refer to any information that a party believes
in good faith to be subject to federal, state or foreign data protection
laws or other privacy obligations. Examples of such data protection
laws include but are not limited to The Gramm-Leach-Bliley Act,
15 U.S.C. § 6801 et seq. (financial information); and, The Health
Insurance Portability and Accountability Act and the regulations
thereunder, 45 CFR Part 160 and Subparts A and E of Part 164
(medical information). Certain Protected Data may compel
alternative or additional protections beyond those afforded Highly
Confidential – Attorneys’ Eyes Only material, in which event the
parties shall meet and confer in good faith, and, if unsuccessful, shall
move the Court for appropriate relief.
The parties shall not designate as confidential information anything that is already public
The parties agree that such Confidential Material as described in Paragraph 2
should be given the protection of an order of this Court to prevent injury through disclosure to
persons other than those persons involved in the prosecution or defense of this litigation.
Procedure for Designating Information as Confidential
To designate information as confidential, the producing party shall mark
Confidential Material with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” Parties shall submit confidential discovery responses, such as
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answers to interrogatories or answers to requests for admissions, in a separate document stamped
with the appropriate legend designating those responses as Confidential Material. The Receiving
Party may make copies of Confidential Material and such copies shall become subject to the same
protections as the Confidential Material from which those copies were made.
a. Information on a disk or other electronic format (e.g., a native
format production) may be designated confidential by marking the
storage medium itself (or the native file’s title) with the legend
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” The Receiving Party shall mark
any hard-copy printouts and the storage medium of any permissible
copies of such electronic material with the corresponding legend
contained on the original and such copies shall become subject to
the same protections, as the Confidential Material from which those
copies were made.
b. Information disclosed at any deposition of a party taken in this
action may be designated by the party as confidential by indicating
on the record at the deposition that the information is confidential
and subject to the provisions of this Order. Alternatively, the party
may designate information disclosed at the deposition as
confidential by notifying the court reporter and other parties in
writing, within fifteen (15) business days of receipt of the transcript,
of the specific pages and lines of the transcript which are designated
as confidential. The parties may agree to a reasonable extension of
the 15-business-day period for designation. Designations of
transcripts will apply to audio, video, or other recordings of the
testimony. During such 15-business-day period, the entire transcript
shall receive confidential treatment. Upon such designation, the
court reporter and each party shall affix the “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
legend to the designated pages and segregate them as appropriate.
A producing party may change the confidentiality designation of materials it has
produced, as follows: (1) The producing party must give the receiving parties notice of the change
by identifying the documents or information at issue. Once notice is given, the receiving party
must make good-faith efforts to ensure that the documents or information are accorded treatment
under the new designation. (2) Within a reasonable period after giving notice, the producing party
must reproduce the documents or information in a format that contains the new designation. (3)
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If such information has been disclosed to persons not qualified pursuant to paragraph(s) (12-13)
below, the party who disclosed such information shall (a) take reasonable efforts to retrieve
previously disclosed Confidential Material; (b) advise such persons that the material is
Confidential; and (c) give the producing party written assurance that steps (a) and (b) have been
The Parties agree to provide adequate security to protect data produced by the other
party(ies) or by non-parties. This includes secure data storage systems, established security
policies, and security training for employees, contractors and experts. Adequate security also
includes such measures as data encryption in transit, data encryption at rest, data access controls,
and physical security, whether hosted/outsourced to a vendor or on premises. At a minimum, any
receiving party subject to the terms of this Confidentiality Order, will provide reasonable measures
to protect non-client data consistent with the American Bar Association Standing Committee on
Ethics and Professional Responsibility, Formal Opinion 477R.
The production of privileged or 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 (FRE) 502(d)) and shall be enforceable and granted full faith and credit
in all other state and federal proceedings by 28 U.S. Code § 1738. In the event of any subsequent
conflict of law, the law that is most protective of privilege and work product shall apply.
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Nothing contained herein is intended to or shall serve to limit a party’s right to
conduct a review of documents, ESI or information (including metadata) for relevance,
responsiveness and/or segregation of privileged and/or protected information before production.
If the receiving party has reason to believe that a produced document or other
information may reasonably be subject to a claim of privilege, then the receiving party shall
immediately sequester the document or information, cease using the document or information and
cease using any work product containing the information, and shall inform the producing party of
the beginning BATES number of the document or, if no BATES number is available, shall
otherwise inform the producing party of the information.
Within 14 days of being notified of the inadvertent production by the receiving
party, a producing party must give written notice to any receiving party asserting a claim of
privilege, work-product protection, or other ground for reclaiming documents or information (a
“clawback request”). After a clawback request is received, the receiving party shall immediately
sequester the document (if not already sequestered) and shall not review or use that document, or
any work product containing information taken from that document, for any purpose. The parties
shall meet and confer regarding any clawback request.
Who May Receive Confidential and Highly Confidential Information
Confidential Material. Any Confidential Material and the information contained
therein shall be disclosed only to the Court, its staff, in-house counsel and outside counsel of record
for each party, and also shall be disclosed on a need-to-know basis only to the parties, counsel’s
staff personnel, employees of a party to whom disclosure is necessary in connection with the
preparation for and trial of this action, and any witnesses in the case (including consulting and
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testifying experts) as may from time to time reasonably be necessary in prosecution or defense of
Highly Confidential—Attorneys’ Eyes Only Material. Material and information
designated as “Highly Confidential—Attorneys’ Eyes Only” shall only be disclosed to the Court,
its staff, in-house and outside counsel of record for each party, the secretarial, clerical, and
paralegal staff of each, and consulting and testifying experts retained by a party in this action.
Restriction on Disclosure to Direct Competitors. Notwithstanding the foregoing,
Confidential Material shall not be disclosed to any current or former employees of, or current or
former consultants, advisors, or agents of, a direct competitor of any party named in the litigation.
If a Receiving Party is in doubt about whether a particular entity is a direct competitor of a party
named in this lawsuit, then before disclosing any Confidential Material to a current or former
employee, consultant, advisor, or agent of that entity, the Receiving Party’s counsel must confer
with counsel for the Producing Party.
Persons Receiving Confidential Information Must Sign Exhibit A. Counsel for each
party shall advise all persons to whom Confidential Material is disclosed pursuant to this Order of
the existence of this Order and shall provide all such persons (other than the Court and its staff)
with a copy of this Order. Counsel shall also require such persons to execute the Affidavit attached
as Exhibit A, prior to the disclosure of Confidential Material.
Duties in the Event of Unauthorized Disclosures. It shall be the obligation of
counsel, upon learning of any unauthorized disclosure or threatened unauthorized disclosure of
Confidential Information, or any other breach or threatened breach of the provisions of this Order,
to promptly notify counsel for the Producing Party. The notification shall be supplemented with
reasonable details of the circumstances of the disclosure in order to permit the producing party to
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understand and take appropriate steps. Each party and its counsel agree to take reasonable and
good-faith efforts to contain or limit any breach promptly upon receiving notice of it, and to make
reasonable and good-faith attempts to retrieve any unauthorized disclosure of documents or
information. This provision does not limit the producing party’s entitlement to damages resulting
from any breach of this Order.
Authorized Uses of Confidential Material
Confidential Material shall only be used for the purpose of litigating the above-
captioned lawsuit and may not be used in other lawsuits.
Persons having knowledge of Confidential Material and information due to their
participation in the conduct of this litigation shall use such knowledge and information only as
permitted herein, and shall not disclose such Confidential Material, their contents, or any portion
or summary thereof to any person(s) not involved in the conduct of this litigation.
If any person having access to the Confidential Material herein shall violate this
Order, he/she may be subject to sanctions by the Court and may be liable to pay for the damages
caused by his/her violation.
Challenges to the Designation of Confidential Material
Any party or interested member of the public may move the Court to modify the
designation of any documents or information produced in this litigation (either to include
additional protection with respect to confidentiality or to remove a confidential designation).
Before making such a motion, the party or an interested member of the public shall first attempt
to resolve such dispute with the producing party’s counsel. Pending resolution of any challenges
to the designation of documents or information, the material at issue shall continue to be treated
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as Confidential Material until ordered otherwise by the Court. The burden shall be on the party
seeking to modify the designation to show that the producing party’s designation is inappropriate.
Withholding of Information
Non-relevant Attachments. The parties will not produce non-relevant attachments
that are attached to relevant emails. When an attachment is withheld, either for privilege or nonresponsiveness, the producing party shall produce a one-page TIFF image (or PDF if production
format dictates) in place of the withheld attachment, correspondingly stating “Attachment
Withheld-Privileged” or “Attachment Withheld-Nonresponsive”, and bearing a sequential BATES
number within the family BATES range. If any attachment to an email contains responsive
content, then the cover email shall be produced for context, regardless of the cover email’s
responsiveness. The cover email may be redacted in part to remove sensitive information, as
Redactions. The parties may redact (1) information that is privileged or protected
from discovery as work product or by reason of any other applicable privilege or immunity; (2)
information subject to non-disclosure obligations imposed by governmental authorities, law or
regulation (e.g., protected personal information); and (3) sensitive, non-relevant information,
including but not limited to personally identifiable information, trade secrets, or information
regarding products, data, or people. Privilege redactions will state, over the redacted portion,
“Redacted–Privileged,” and all other redactions will state, “Redacted–Nonresponsive.”
Redactions of emails will not redact the names of recipients or the subject line of the emails, unless
the subject line is itself privileged or contains the sensitive information described above, in which
case only so much of the subject line will be redacted as may be needed. The parties will produce
redacted documents in TIFF format (or searchable PDF if production format dictates; or in native
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format for file types that do not convert well to TIFF/PDF, such as Excel files) with corresponding
searchable OCR text and the associated metadata for the document, ensuring the redacted content
is fully protected from disclosure.
Confidential Material In Filings, Hearings, and Trial
Confidential Material in Filings. Without written permission from the Producing
Party or court order secured after appropriate notice to all interested persons, a party may not file
Confidential Material in the public record in this action (or in any other action, such as an appeal).
A party that seeks to file under seal any Confidential Material must comply with Section G (6) of
the Electronic Case Filing Administrative Policies and Procedure Manual and/or any applicable
rules of the Court. Confidential Material may only be filed under seal in a manner prescribed by
the Court for such filings.
Manner of Sealing. In the event Confidential Materials or portions of transcripts
are sealed as confidential by the Court or as described in paragraph (23) above, they shall be filed
in an envelope bearing the following designation when deposited:
IN ACCORDANCE WITH THE CONFIDENTIALITY ORDER
OF THE COURT, THE CONTENTS OF THIS ENVELOPE
SHALL BE TREATED AS CONFIDENTIAL AND MUST NOT
BE SHOWN TO A PERSON OTHER THAN THE COURT,
ATTORNEYS IN THIS CASE, OR TO PERSONS ASSISTING
Confidential Material in Hearings and Trial. The provisions of this Order shall not
affect, and this Order does not limit, the admissibility of Confidential Material (or references to
that material) as evidence at trial, or during a hearing or similar proceeding in this action. Prior to
using Confidential Material or the information contained therein at any hearing that is open to the
public, the party seeking to use the Confidential Material must give at least seven (7) days advance
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notice to the producing party of the intent to use the Confidential Material so that the producing
party may seek an appropriate Court Order to protect the Confidential Material.
Continuing Effect of this Order and Duty to Destroy
This Order shall continue to be binding throughout and after the conclusion of this
litigation, including all appeals. Within thirty (30) days of settlement or final adjudication,
including the expiration or exhaustion of all rights to appeal or petitions for extraordinary writs,
each party or non-party to whom any materials were produced shall, without further request or
direction from the Producing Party, promptly destroy all documents, items or data received
including, but not limited to, copies or summaries thereof, in the possession or control of any
expert or employee. This requirement to destroy includes all documents, not only those documents
designated as Confidential Material. The Receiving Party shall, if requested, submit a written
certification to the Producing Party by the 30-day deadline that confirms the destruction/deletion
of all Confidential Material, including any copies of Confidential Materials provided to persons
required to execute Exhibit A (Affidavit). Counsel for the parties may retain one copy of
documents in their file in order to comply with the requirements of the North Carolina State Bar
record retention rules. Notwithstanding this provision, outside counsel is entitled to retain an
archival copy of filings, depositions, and deposition exhibits.
The ultimate disposition of protected materials shall be subject to final order of the
Court at the conclusion of the litigation.
Procedure if Confidential Material Is Required to be Produced
If any person receiving documents covered by this Order is served with a subpoena,
order, interrogatory, or document or civil investigative demand (collectively, a “Demand”) issued
in any other action, investigation, or proceeding, and such Demand seeks material that was
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produced or designated as Confidential Material by someone other than the Receiving Party, the
Receiving Party shall give prompt written notice by hand or electronic transmission within five (5)
business days of receipt of such Demand to the party or non-party who produced or designated the
material as Confidential Material, and shall object to the production of such materials on the
grounds of the existence of this Order. At the request of the party or non-party who produced or
designated the material as Confidential Material, the Receiving Party shall refuse to comply with
the Demand unless (a) ordered to do so by a court with jurisdiction over the Receiving Party; or
(b) released in writing by the party or non-party who designated the material as Confidential
Material. The burden of opposing the enforcement of the Demand shall fall upon the party or nonparty who produced or designated the material as Confidential Material. Compliance by the
Receiving Party with any order of a court of competent jurisdiction, directing production of any
Confidential Material, shall not constitute a violation of this Order.
Application of this Order to Productions by Third Parties
This Order may be used by third parties producing documents in connection with
this action. Third parties may designate information as Confidential or Highly Confidential –
Attorneys’ Eyes Only.
If a third party produces (or intends to produce) documents and does not designate
(or does not intend to designate) those documents as Confidential Material, then any party to this
action may seek to designate that third party’s documents or categories of documents as
Confidential Material. In that case, it will be the burden of the party seeking protected status to
move for a court order designating the materials as Confidential Material after the parties confer.
In the event additional parties join or intervene in this litigation, the newly joined
party(ies) shall not have access to Confidential Material until its/their counsel has executed and,
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at the request of any party, filed with the Court the agreement of such party(ies) and such counsel
to be fully bound by this Order.
The parties agree that nothing in this Order shall be deemed to limit the extent to
which counsel for the parties may advise or represent their respective clients, conduct discovery,
prepare for trial, present proof at trial, including any document designated Confidential Material
as set forth herein, or oppose the production or admissibility of any information or documents
which have been requested.
This Order shall remain in full force and effect until such time as it is modified,
amended, or rescinded by the Court.
Signed: February 17, 2021
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Respectfully stipulated to and submitted by,
Dated: February 16, 2021
By: /s/Nicole Haynes
Nicole Haynes, Bar No. 47793
Joshua R. VanKampen, Bar No. 32168
VAN KAMPEN LAW, P.C.
201315 East Worthington Avenue
Charlotte, NC 28203
Counsel for Plaintiff
Dated: February 16, 2021
By: /s/Jennifer K. Staples
Jennifer K. Staples, Bar No. 39833
LITTLER MENDELSON, P.C.
Bank of America Corporate Center
100 North Tryon Street, Suite 4150
Charlotte, NC 28202
Counsel for Defendant
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EXHIBIT A TO CONFIDENTIALITY ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 3:20-CV-150-MOC-DCK
AFFIDAVIT OF COMPLIANCE WITH CONFIDENTIALITY ORDER
1. My name is ___________________. I live at __________________________. I am
working on behalf (or at the direction and engagement) of __________________________.
2. I am aware that a Confidentiality Order has been entered in the above-captioned lawsuit.
A copy of this Confidentiality Order has been given to me, and I have read and understand the
provisions of same.
3. I acknowledge that documents and information designated as confidential and/or highly
confidential pursuant to such Confidentiality Order (“Confidential Materials”) are being disclosed
to me only upon the conditions that I agree (a) to be subject to the jurisdiction of this Court, and
(b) to comply with that Order. I hereby agree to abide by such Order, subject to all penalties
prescribed therein, including contempt of Court, for disobedience of said Order. I promise that the
documents and information given confidential treatment under the Confidentiality Order entered
in this case will be used by me only to assist counsel for the parties in preparing for litigation of
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the above-captioned matter. I understand that any use of such Confidential Material in any manner
contrary to the provisions of the Confidentiality Order may subject me to the sanctions of this
Court for contempt and to liability for any damages caused by my breach of the Confidentiality
4. I shall not disclose nor permit to be reviewed or copied said Confidential Materials, or
any information derived from, by any person other than the parties and counsel for the parties or
members of their staff.
5. Within 30 days after the above-captioned lawsuit ends in a final non-appealable order,
I agree to destroy all Confidential Materials in my possession.
DATED: _________________, 20___
Exhibit A, Affidavit of Compliance with Confidentiality Order
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