Propst v. HWS Company, Inc et al
Filing
9
STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 9/29/2014. (cbb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:14-CV-079-RLV-DCK
ARNOLD PROPST,
Plaintiff,
vs.
HWS COMPANY, INC. d/b/a HICKORY
WHITE and SHERRILL FURNITURE
COMPANY,
Defendants.
STIPULATED PROTECTIVE ORDER
WHEREAS, this matter involves allegations by the Plaintiff that the Defendants
discriminated and/or retaliated against him on the basis of his use of FMLA leave, his disability
and/or his age, and that the Defendants have discriminated and/or retaliated against other
employees on the same bases;1 and
WHEREAS, the parties in the above-captioned matter have agreed that these proceedings
may involve the discovery and use of
non-public, sensitive, or proprietary business,
employment, tax, financial, and personally identifiable information, documents and other
materials;
WHEREAS, the parties have agreed to produce such documents only on the agreement
that such “Confidential Information,” including information regarding current and former
employees’ social security information, dates of birth, personal banking information, personnel
and medical information regarding third party current and former employees of Defendants,
corporate trade secrets, and proprietary information not generally known to the general public,
1
Defendants specifically deny these allegations.
including identities and contact information related to outside customers of the Defendants, will
be disclosed only as provided herein;
WHEREAS, the parties have agreed to stipulate to protect certain confidential and
otherwise protected documents, data (including electronically stored information) and other
information, including without limitation, metadata (collectively “Documents”), against claims
of waiver and inadvertent production in the event they are produced during the course of this
litigation whether pursuant to a Court Order, a parties’ discovery request, or informal production.
WHEREAS, both parties may be required to produce large volumes of Documents, the
parties wish to comply with discovery deadlines and complete discovery as expeditiously as
possible, while preserving and without waiving any evidentiary protections or privileges
applicable to the information contained in the Documents produced, including as against third
parties and other proceedings, and in addition to their agreement, need the additional protections
of a Court Order under FRE 502 (d) and (e) to do so.
WHEREAS, because the purpose of this Stipulation is to protect and preserve
Confidential Information and privileged Documents, the parties agree they are bound as follows
from and after the date both their counsel have signed it, even if such execution occurs prior to
Court approval.
THEREFORE, the parties seek the entry of an Order, pursuant to Federal Rule of Civil
Procedure 26(c) governing the disclosure of documents and information therein pertaining to
“Confidential Information” on the terms set forth herein, as well as an Order governing the return
of inadvertently produced documents and data and affording them the protections of FRE 502 (d)
and (e), on the terms set forth herein.
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IT IS HEREBY STIPULATED AND AGREED THAT:
1.
The Protective Order shall be entered pursuant to the Federal Rules of Civil
Procedure and FRE 502 (d) and (e).
2.
The Protective Order shall govern all materials deemed to be “Confidential
Information.” Such Confidential Information shall include the following:
(a)
(b)
Any documents from the personnel, medical or workers’ compensation
file of any current or former employee or contractor;
(c)
Any documents relating to the medical or health information of any of
Defendants’ current or former employees or contractors;
(d)
Any documents containing corporate trade secrets, nonpublic research and
development data, pricing formulas, proprietary business information not
generally known to the general public, and information related to
Defendants’ outside customers;
(e)
Any information such as bank account numbers, Social Security Numbers,
full dates of birth, drivers’ license numbers, or other information which
could be used for the purposes of identity theft or fraud, shall be redacted
but the presence of such numbers shall not render the entire document
“confidential;”
(f)
3.
Any and all documents referring or related to confidential and proprietary
business information; financial records of the parties; and personnel,
medical or disciplinary information or compensation of Defendants’
current or former personnel;
Any portions of written discovery responses or depositions (audio or
video) where Confidential Information is disclosed or used as exhibits.
In the case of documents and the information contained therein, designation of
Confidential Information produced shall be made by placing the following legend on the face of
the document and each page so designated “CONFIDENTIAL” or otherwise expressly identified
as confidential. The Parties shall limit the number of documents designated Confidential to
those which are proprietary or protected personally identifying information. The Parties agree
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that medical-related documents belonging to individuals other than the Plaintiff, and the
information contained therein, shall be produced with the following legend on the face of the
document: “Confidential – Attorney’s Eyes Only”.
4.
Except as required by law or executive order, Confidential Information shall be
held in confidence by each qualified recipient to whom it is disclosed, shall be used only for
purposes of this action, shall not be used for any business purpose, and shall not be disclosed to
any person who is not a qualified recipient. All produced Confidential Information shall be
carefully maintained so as to preclude access by persons who are not qualified recipients.
5.
Qualified recipients shall include only the following:
(a)
In-house counsel and law firms for each party and the secretarial, clerical
and paralegal staff of each;
(b)
Deposition notaries and staff;
(c)
Persons other than legal counsel who have been retained or specially
employed by a party as an expert witness for purposes of this lawsuit or to
perform investigative work or fact research;
(d)
Deponents during the course of their depositions or potential witnesses of
this case; and
(e)
The Court and its staff, parties to this litigation, their officers, and
professional employees.
Materials designated “Confidential – Attorney’s Eyes Only” may be disclosed only to the
individuals identified in Paragraph 5(a), 5(b), 5(c), and 5(e) above, and only the individuals
identified in Paragraph 5(a), 5(b), 5(c), and 5(e) above shall be considered "Qualified Persons"
with respect to materials designated “Confidential – Attorney’s Eyes Only.” Such materials shall
not be disclosed to any party in this lawsuit, except with written consent of the party designating
the material “Confidential – Attorney’s Eyes Only.”
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6.
Each counsel shall be responsible for providing notice of the Protective Order and
the terms therein to persons to whom they disclose “Confidential Information,” as defined by the
terms of the Protective Order.
Persons to whom Confidential Information is shown shall be informed of the terms of this
Order and advised that its breach may be punished or sanctioned as contempt of the Court. Such
deponents may be shown Confidential Information during their deposition, but shall not be
permitted to retain copies of said Confidential Information nor any portion of the deposition
transcript reflecting the Confidential Information, other than for the purposes of reading and
signing such deposition.
If the receiving party objects to the claims that information should be deemed
Confidential, the receiving party’s counsel shall inform producing party’s counsel in writing
within thirty (30) days of receipt of the Confidential Information that the information should not
be so deemed, and the parties shall attempt first to dispose of such disputes in good faith and on
an informal basis. If the parties are unable to resolve their dispute, the producing party may
present a motion to the Court asking that such information be protected. The information shall
continue to have Confidential status during the pendency of any such motion.
7.
No copies of Confidential Information shall be made except by or on behalf of
attorneys of record, in-house counsel or the parties in this action. Any person making copies of
such information shall maintain all copies within their possession or the possession of those
entitled to access to such information under the Protective Order.
8.
All information produced in this action, whether deemed Confidential or not, shall
be used by the receiving party only for purposes of this litigation and not for any other purpose.
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9.
Whenever a party wishes to file any writing designated as Confidential with the
Court, the party may either (a) redact any and all information contained on any page that is
marked Confidential before filing said document with the Court, (b) if the party wishing to file
said writing is the party that originally designated the document as Confidential that party may,
at their discretion, redact only that information that it deems Confidential from any page that is
marked Confidential before filing with the Court or (c) separately file the document under seal
with the Court. If a party wishes to file a document that has been marked Confidential with the
Court, the party will follow all rules and practices followed by the Court regarding filing a
document under seal, including filing a motion establishing good cause for the document to be
preserved under seal if necessary, prior to so filing.
10.
The termination of this action shall not relieve the parties and persons obligated
hereunder from their responsibility to maintain the confidentiality of information designated
Confidential pursuant to this Order.
11.
Upon termination of this action by entry of a final judgment (inclusive of any
appeals or petitions for review), the parties may request the return or destruction of all previously
furnished Confidential Information, including any copies thereof, and each person or party to
whom such Confidential Information has been furnished or produced shall be obligated to return
or destroy it within thirty (30) days of said request.
12.
Pursuant to FRE 502 (d) and (e), the parties agree to and the Court orders
protection of privileged and otherwise protected Documents against claims of waiver (including
as against third parties and in other federal and state proceedings) as follows:
(a)
The disclosure or production of Documents by a Producing Party subject
to a legally recognized claim of privilege, including without limitation the
attorney-client privilege and the work-product doctrine, to a Receiving
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Party, shall in no way constitute the voluntary disclosure of such
Document.
(b)
The inadvertent disclosure or production of any Document in this action
shall not result in the waiver of any privilege, evidentiary protection or
other protection associated with such Document as to the Receiving Party
or any third parties, and shall not result in any waiver, including subject
matter waiver, of any kind.
(c)
If, during the course of this litigation, a party determines that any
Document produced by another party is or may reasonably be subject to a
legally recognizable privilege or evidentiary protection (“Protected
Document”):
(i)
the Receiving Party shall: (A) refrain from reading the Protected
Document any more closely than is necessary to ascertain that it is
privileged or otherwise protected from disclosure;
(B)
immediately notify the Producing Party in writing that it has
discovered Documents believed to be privileged or protected; (C)
specifically identify the Protected Documents by Bates number
range or hash value, and, (D) within ten (10) days of discovery by
the Receiving Party, return, sequester, or destroy all copies of such
Protected Documents, along with any notes, abstracts or
compilations of the content thereof. To the extent that a Protected
Document has been loaded into a litigation review database under
the control of the Receiving Party, the Receiving Party shall have
all electronic copies of the Protected Document extracted from the
database. Where such Protected Documents cannot be destroyed
or separated, they shall not be reviewed, disclosed, or otherwise
used by the Receiving Party. Notwithstanding, the Receiving
Party is under no obligation to search or review the Producing
Party’s Documents to identify potentially privileged or work
product Protected Documents.
(ii)
If the Producing Party intends to assert a claim of privilege or other
protection over Documents identified by the Receiving Party as
Protected Documents, the Producing Party will, within ten (10)
days of receiving the Receiving Party’s written notification
described above, inform the Receiving Party of such intention in
writing and shall provide the Receiving Party with a log for such
Protected Documents that is consistent with the requirements of
the Federal Rules of Civil Procedure, setting forth the basis for the
claim of privilege or other protection. In the event that any portion
of a Protected Document does not contain privileged or protected
information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the document that omits the
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information that the Producing Party believes is subject to a claim
of privilege or other protection.
(d)
If, during the course of this litigation, a party determines it has produced a
Protected Document:
(i)
the Producing Party may notify the Receiving Party of such
inadvertent production in writing, and demand the return of such
documents. Such notice shall be in writing, however, it may be
delivered orally on the record at a deposition, promptly followed
up in writing. The Producing Party’s written notice will identify
the Protected Document inadvertently produced by bates number
range or hash value, the privilege or protection claimed, and the
basis for the assertion of the privilege and shall provide the
Receiving Party with a log for such Protected Documents that is
consistent with the requirements of the Federal Rules of Civil
Procedure, setting forth the basis for the claim of privilege or other
protection. In the event that any portion of the Protected
Document does not contain privileged or protected information,
the Producing Party shall also provide to the Receiving Party a
redacted copy of the Document that omits the information that the
Producing Party believes is subject to a claim of privilege or other
protection.
(ii)
The Receiving Party must, within ten (10) days of receiving the
Producing Party’s written notification described above, return,
sequester, or destroy the Protected Document and any copies,
along with any notes, abstracts or compilations of the content
thereof. To the extent that a Protected Document has been loaded
into a litigation review database under the control of the Receiving
Party, the Receiving Party shall have all electronic copies of the
Protected Document extracted from the database.
(e)
To the extent that the information contained in a Protected Document has
already been used in or described in other documents generated or
maintained by the Receiving Party prior to the date of receipt of written
notice by the Producing Party as set forth in paragraphs (c)(ii) and (d)(i),
then the Receiving Party shall sequester such documents until the claim
has been resolved. If the Receiving Party disclosed the Protected
Document before being notified of its inadvertent production, it must take
reasonable steps to retrieve it.
(f)
The Receiving Party’s return, sequestering or destruction of Protected
Documents as provided herein will not act as a waiver of the Requesting
Party’s right to move for the production of the returned, sequestered or
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destroyed documents on the grounds that the documents are not, in fact,
subject to a viable claim of privilege or protection.
(g)
(h)
Upon a determination by the Court that the Protected Documents are
protected by the applicable privilege or evidentiary protection, and if the
Protected Documents have been sequestered rather than returned or
destroyed by the Receiving Party, the Protected Documents shall be
returned or destroyed within 10 (ten) days of the Court’s order. The Court
may also order the identification by the Receiving Party of Protected
Documents by search terms or other means.
(i)
Nothing contained herein is intended to, or shall serve to limit a party’s
right to conduct a review of documents, data (including electronically
stored information) and other information, including without limitation,
metadata, for relevance, responsiveness or the segregation of privileged or
protected information before such information is produced to another
party.
(j)
13.
Either party may submit Protected Documents to the Court under seal for a
determination of the claim of privilege or other protection. The Producing
Party shall preserve the Protected Documents until such claim is resolved.
The Receiving Party may not use the Protected Documents for any
purpose absent this Court’s Order.
By operation of the parties’ agreement and Court Order, the parties are
specifically afforded the protections of FRE 502 (d) and (e).
Subject to the Rules of Evidence, a stamped Confidential document and other
Confidential Information may be offered in evidence at trial or any court hearing, provided that
the proponent of the evidence gives five days’ advance notice to counsel for the party or other
person that designated the information as Confidential. Any party may move the court for an
order that the evidence be received in camera or under other conditions to prevent unnecessary
disclosure. The court will then determine whether the proffered evidence should continue to be
treated as Confidential Information and, if so, what protection, if any, may be afforded to such
information at the trial.
14.
If another court or an administrative agency subpoenas or orders production of
stamped Confidential documents which a party has obtained under the terms of this order, such
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party shall promptly notify the party or other person who designated the document as
Confidential of the pendency of such subpoena or order.
15.
Nothing in this Order shall be construed as an admission as to the relevance,
authenticity, foundation or admissibility of any document, material, transcript, or other
information.
16.
Nothing in the Protective Order shall be deemed to preclude any party from
seeking and obtaining, on an appropriate showing, a modification of this Order.
17.
Once executed by all parties, the Stipulation shall be by treated by the Parties as
an Order of Court until it is formally approved by the Court.
SO ORDERED.
Signed: September 29, 2014
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Respectfully submitted this 29th day of September, 2014.
s/Vicki Brown Rowan
Vicki Brown Rowan
State Bar No. 14294
1515 Mockingbird Lane
Suite 400
Charlotte, NC 28209
Tel.: (704) 525-4110
Fax: (704) 525-4301
Email: VBRowan@bellsouth.net
s/Julie K. Adams
Julie K. Adams, Bar No. 32773
jkadams@littler.com
Littler Mendelson, P.C.
Bank of America Corporate Center
100 North Tryon Street, Suite 4150
Charlotte, NC 28202
Telephone: 704.972.7000
Facsimile:
704.333.4005
Attorney for Plaintiff
Attorney for Defendants
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