Lineberger v. Lowe et al

Filing 50

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 2/23/16. (smj)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Civil Action No. 5:14-cv-137
ALVIN LINEBERGER,

)
)
Plaintiff,
)
)
)
)
TOU-BER YANG, JAMIE LOWE,
)
BRIAN CLONINGER, and NEWTON )
POLICE DEPARTMENT
)
)
Defendants.
)
____________________________________)

Consent Protective Order

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and upon agreement
of counsel, and deeming it just and proper to do so, the Court enters the following Order: This
Order governs the handling and disclosure of all materials produced, given or filed herein by the
parties and designated as “CONFIDENTIAL.” For purposes of this Order, CONFIDENTIAL
INFORMATION includes, but is not limited to, confidential personnel information pursuant to
N.C. Gen. Stat. § 160A-168 which is not generally accessible to the public.
WHEREFORE, IT IS HEREBY ORDERED that:
1.

“CONFIDENTIAL INFORMATION” as used herein means:
a. All information and documents made confidential by N.C. Gen. Stat. §
160A-168;
b. Any documents or information which are contained in a personnel file
maintained by any party;
c. Any documents or information of medical, financial or personal nature
which are not generally accessible to the public; and

d. Any documents or information that any party has designated as
confidential in the normal course of business.
2.

Any party producing documents may designate the documents as Confidential

Information by marking each page of the document “CONFIDENTIAL.” Alternatively, when
producing a multi-page document, all of which it contends is Confidential Information, a party
may designate the entire document as Confidential Information by marking the cover page
“CONFIDENTIAL.” The confidential documents shall be disclosed only for official use in this
action, and for no other purpose. In consideration for the agreement to permit documents to be
designated as confidential without a document by document analysis by the Court, the parties agree
that they will not withhold documents on the basis of confidentiality, except with respect to
documents falling under a privileged recognized under federal law.
3.

Certain information disclosed at the deposition of any witness, including any party,

may be designated as Confidential Information by indicating on the record at the deposition that
the specific testimony is Confidential Information subject to the provisions of this Order.
Alternatively, a party or witness may designate information disclosed at such deposition as
Confidential Information by notifying all parties in writing, within thirty (30) days of receipt of
the transcript or other date as agreed upon by the parties, of the specific pages and lines of the
transcript which are deemed Confidential Information. Each party shall attach a copy of such
written statement to the face of the transcript and each copy thereof in its possession, custody or
control. All depositions shall be treated as Confidential Information for a period of thirty (30)
days after a full and complete transcript of the deposition is available or other date as agreed upon
by the parties.

2

4.

The CONFIDENTIAL INFORMATION shall not be otherwise reviewed,

disclosed or released to anyone other than:
a. Any party to this action;
b. Counsel for any party, the legal associates, clerical or other support staff of
such counsel assisting in preparation of this action;
c. Agents, representatives and employees of either party, as is necessary to
prepare this case for litigation;
d. Subject to the provision of ¶ 5 below, independent experts employed by
counsel for the purpose of assisting in this action;
e. The court, appellate court, court reporter and courtroom personnel at any
deposition, pretrial hearing, or other proceedings held in connection with
this action;
f. Subject to ¶ 5 below, any potential witness as necessary to prepare this case
for litigation; provided, that no such person shall be permitted to maintain a
copy of any document designated as Confidential Information; and that no
Confidential Information may be disclosed to any person under this
paragraph – except during a deposition, at trial, or when such witness is
otherwise testifying -- until such person has read and signed a copy of this
Order, thereby indicating his/her willingness to be bound by its provisions,
which shall be maintained in confidence by the disclosing party subject to
any order of disclosure by the court;
g. Any other person or entity to whom the Court orders or allows disclosure
after notice and opportunity for hearing.

3

5.

Disclosure of CONFIDENTIAL INFORMATION pursuant to this Order shall be

handled as follows:
a. Any person described in subparagraphs 4(a), (b), (c), (e), and (g) of this Order is
bound by the provisions of this Order without the necessity of executing a separate
confidentiality agreement;
b. Prior to making disclosures to any person under the terms set forth in subparagraph
4(d) and (f) of this Order, the party disclosing the CONFIDENTIAL
INFORMATION shall inform any persons to whom disclosure is made that
CONFIDENTIAL INFORMATION shall be used for the purposes of the
prosecution or defense of this action only, and that said person shall be bound by
the terms of this Order and shall execute an Agreement to be bound by the this
Order. The parties shall obtain from such persons a written statement in the form
of Exhibit A, attached hereto. A record of all persons to whom disclosures are made
shall be kept and all the written statements signed by those persons shall be retained
in the possession, custody, and control of counsel by whom the person is retained;
provided, however, the disclosing party shall have no obligation to disclose such
records to the opposing party or any other person unless ordered to do so by the
Court. All CONFIDENTIAL INFORMATION, and any documents containing
information derived therefrom, including copies of such documents, shall be
returned to counsel by persons given access to them as soon as practicable, but
excluding any materials which in good faith judgment of counsel are work product
materials. Counsel shall be permitted to maintain a file copy of all the documents
subject to the terms of this Order.

4

6.

The production or disclosure of CONFIDENTIAL INFORMATION pursuant to

the terms of this Order by the producing party shall not be construed as prohibiting or restricting
the use of CONFIDENTIAL INFORMATION during depositions, any hearing, the trial of this
matter, or any appellate proceeding. Similarly, no party shall be deemed to have waived any
objections as to the relevancy, admissibility, discoverability or any other objection under the
Federal Rules of Civil Procedure or the Federal Rules of Evidence in connection with any
proceeding in this action.
7.

No CONFIDENTIAL INFORMATION produced pursuant to this Order shall be

used for any purpose other than for relevant and proper conduct of this litigation.
8.

If any such confidential documents or information are used in connection with a

deposition or other discovery or documents filed with the court, or are quoted or referenced in any
memorandum, pleading or other paper filed with the court, the deposition transcript, filing or paper
shall be submitted to the court with a request that the document be placed under seal and
appropriately marked to indicate that the transcript, filing or paper is subject to the terms of this
Order, or redacted so as to eliminate sensitive personal information.
9.

The

designation

of

documents

or

information

as

“CONFIDENTIAL

INFORMATION” shall not be conclusive for purposes of the substantive issues in this case. In
addition, any party is entitled to challenge, through an appropriate Motion to the Court, any
designation herein by any other party at any time during this litigation. If a confidentiality
designation is challenged, the party seeking to designate a document as confidential shall have the
burden of proof with regard to that designation.

5

10.

The inadvertent, unintentional or in camera disclosure of confidential documents

and information shall not, under any circumstances, be deemed a waiver, in whole or in part, of
any party’s claims of confidentiality.
11. Within fifteen (15) days after the entry of final judgment or dismissal in this litigation
(including appeals or petitions for review), the parties’ counsel, their staff, and all experts and/or
consultants for the parties shall return all confidential documents produced pursuant to this Order
(including all xeroxed copies of the same) to the party producing said documents or shall destroy
the same with a written certification by the party's counsel of record that all such documents and
copies of the same have, in fact, been returned or destroyed; provided, counsel shall be permitted
to maintain such documents for their case files, which shall continue to be subject to the terms of
this Order.
IT IS SO ORDERED.

Signed: February 23, 2016

6

EXHIBIT A
Agreement concerning materials covered by a Protective Order entered in the United
States District Court for the Western District of North Carolina.
The Undersigned acknowledges that she/he has read the Protective Order entered by the
Court dated _____________________, 2016, in the Civil Action No. 5:14-CV-00137, and
understands the terms thereof, and agrees to be bound by such terms. The undersigned hereby
acknowledges that she/he is subject to the jurisdiction of the United States District Court for the
Western District of North Carolina with regard to this Protective Order and understands (1) the
violation of the Order shall subject the offender to such penalties, damages and other relief as may
be permitted by law, and (2) that the jurisdiction of the Court regarding this Order survives any
settlement, discontinuance, dismissal, judgment, or other disposition of this action.
____________________________
(Date)
_________________________________________________
(Signature)
Subscribed and sworn before me,
This ____________ day of _________________________, 20_____.

_________________________________________________
NOTARY PUBLIC
My commission expires:_____________________________

7