Shell v. Tyson Foods, Inc.

Filing 12

CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 10/8/15. (smj)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:15-CV-037-RLV-DCK
TIMOTHY SHELL,
Plaintiff
,
v.
TYSON FOODS, INC.,
Defendant.

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) CONSENT PROTECTIVE ORDER
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The parties to this action, through their respective undersigned attorneys, hereby stipulate
and agree that certain information, documents, and other discovery information provided or
disclosed by the parties and by other persons or entities may contain confidential proprietary
business or financial information regarding the defendant, personnel information on individual
parties or non-parties, and private medical, financial, and personal information regarding the
plaintiff.
THEREFORE, IT IS HEREBY STIPULATED, AGREED, AND ORDERED that
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the following confidentiality
provisions shall govern all information and documents disclosed in discovery in this action:
1.

The parties’ discovery will entail production of confidential documents and

materials, including the following:
a.

Defendant’s personnel information regarding Plaintiff and potentially other

current or former non-party employees. Such information may contain sensitive personal
identification information, dependent and/or spouse or family information, tax withholding
documents, insurance and retirement plan enrollment information, and similar documents.

b.

Confidential reports or information that non-party employees may have

provided to Defendant, with an expectation that Defendant would not disclose the employees’
identities and/or the information that the employees provided.
c.

Health records, medical records, and other documents or materials

containing personal health information about Plaintiff.
d.

Documents containing Defendant’s confidential proprietary, financial, and

business information.
e.

Documents, records, or other information that provide names, addresses,

telephone numbers, employment dates, job titles, compensation, disciplinary action information,
or other details about Defendant’s current or former employees.
2.

The parties stipulate, and the Court finds, that documents and information like that

described in paragraph 1 should be protected from unreasonable disclosure pursuant to Rule 26(c)
of the Federal Rules of Civil Procedure.
3.

Any party, in good faith, may designate information like that described in paragraph

1 above (and in the related subparagraphs) as “CONFIDENTIAL,” and subject to the protections
in this Order, regardless of who produced or provided the information. Information designated as
“CONFIDENTIAL” shall be used solely for purposes of prosecuting or defending this litigation
and shall not be disclosed except as provided herein.
4.

Documents and other information designated “CONFIDENTIAL” may be used or

disclosed in the course of this action, as follows:
a.

Materials and information designated as “CONFIDENTIAL” may be

disclosed to the Court (including court reporters, stenographic reporters and videographers, and
court personnel) as necessary to support any claim or defense; however, counsel should redact any
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irrelevant confidential material where that can be done without making the document more
difficult to understand or obscuring the context. Such redactions especially should be made when
removing irrelevant confidential material will avoid the need to seal the document from public
view. Even if marked as “CONFIDENTIAL,” documents and other information in the Court's
record will become part of the public record, unless filed under seal and, for cause shown, allowed
to remain sealed by the Court under this Order and applicable law.
b.

The parties’ counsel, and other attorneys or staff personnel in their

respective firms (collectively referred to as “the parties’ counsel”), and Defendant’s internal legal
counsel, may review all documents and information marked “CONFIDENTIAL” provided by the
opposing party, but shall not make any other disclosures of that information, except as allowed by
this Order.
c.

The respective parties, including Defendant’s managers and executives who

are involved in this litigation, may review “CONFIDENTIAL” documents and information,
provided that such disclosures shall be limited to a “need to know” basis in regards to prosecuting
or defending this litigation. Before making such disclosures, counsel shall inform the person to
whom the disclosure is being made that he/she may not disclose the information to any other person
or entity other than as permitted by this Order.
d.

Documents and information deemed “Confidential” under this Order may

be disclosed to experts (including consulting experts and attorneys) and their staff, and litigation
support personnel and their staff, who have been retained by the party’s counsel in this litigation.
Such disclosures shall be limited to what is required for the expert or consultant to provide the
services in regards to this action for which the expert or consultant has been retained. In addition,
each person to whom disclosure will be made for this purpose must sign a Nondisclosure
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Agreement in the form of Exhibit A hereto, which shall be maintained by the party retaining such
expert or consultant; and
e.

If a party desires to disclose any Confidential Information to any person not

described in the above subsections of paragraph 4 of this Order, counsel for the party desiring such
disclosure Party shall inform the other parties’ counsel in writing about the desired disclosure at least
ten (10) days before such disclosure will be made (or within such other time as agreed by the parties
in writing). If the parties cannot agree on whether the additional disclosure should be allowed, the
party or parties objecting to further disclosure shall notify the requesting party in writing about its/their
objection to the requested disclosure and submit the dispute to the Court by motion for a protective
order within ten (10) days of giving such notice. No additional disclosure like that requested then
shall be made until either the time for submitting the dispute to the Court has expired without any
action being taken, or, if timely submitted to the Court, until the Court has ruled on such motion.
5.

Nothing in this Order shall be taken as a non-producing party’s consent that

designated information is in fact “CONFIDENTIAL” or otherwise entitled to protection under
Rule 26 of the Federal Rules of Civil Procedure. Any party may at any time prior to trial seek an
order from the Court determining that information designated as “CONFIDENTIAL is not entitled
to the protections provided by this Order, or that the information may be disclosed to persons other
than those named in this Order. Similarly, nothing herein precludes a party from asking the Court
to extend the protection under this Order to information that a producing party has failed, or has
refused, to designate as either “CONFIDENTIAL.” These actions shall be taken by motion. If a
motion is filed under this paragraph, the information in question shall continue to be treated by all
parties as “CONFIDENTIAL” information, and all provisions of this Order shall be adhered to
with respect to the same, until such time as the Court determines whether such protection(s) are
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warranted.
6.

Nothing in this Order shall preclude any party from applying to this Court for relief

from any provision hereof or from asserting that certain discovery materials should receive greater
confidentiality protection than that provided herein. Each party expressly reserves the right to
assert that certain information is so highly confidential that it should not to be subject to disclosure
under any circumstances.
7.

Documents and other materials or information will be protected as

“CONFIDENTIAL” information if the producing party or subject party places or affixes, or causes
to be placed or affixed on such document a “CONFIDENTIAL” stamp or equivalent label. In lieu
of placing a stamp or equivalent label, the parties may also designate “CONFIDENTIAL”
documents by “Bates stamp number” or other identifying number when exchanged in this matter
during the course of discovery or otherwise. Testimony given at a deposition or hearing, and
exhibits tendered in a deposition may be designated “CONFIDENTIAL” either by stating the
designation on the record, or by notifying the deposing party in writing within twenty-one (21)
days of the receipt of the transcript of those pages and lines, and/or those exhibits, that are
“CONFIDENTIAL.” Any designation that is inadvertently omitted from a document or testimony
may be corrected by written notification to the other parties’ counsel, but any disclosure prior to
such notification cannot be challenged or asserted as a violation of this Order.
8.

All information designated “CONFIDENTIAL” shall be maintained under the

control of the parties’ counsel of record. Such counsel shall be responsible for preventing any
disclosure thereof except in accordance with the terms of this Order.
9.

Before filing any information that has been designated “CONFIDENTIAL” with

the Court, or any pleadings, motions, or other papers that disclose any such information, counsel
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shall consult and follow the procedures set out in this paragraph.
Each time a party seeks to file under seal confidential documents, things, and/or other
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 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.
When a party seeks to file confidential documents, things, and/or information, including
confidential portions of any transcript, a party shall submit such materials to the court in a sealed
envelope or other appropriately sealed container, which covering shall be endorsed with the title
of this action and a statement substantially in the following form: “Filed Under Seal Pursuant to
Protective Order.”
Documents submitted under seal in accordance with this paragraph will remain under seal
pending the Court’s ruling. If the party desiring to have particular information filed under seal
does not timely file a Motion to Seal in accordance with this paragraph, the sealed materials
submitted to the Court will be deemed unsealed and made a part of the public record, without any
need for the Court to enter a formal ruling.
10.

Information produced by non-parties during the course of this action may be
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designated under this Order by such non-party as “CONFIDENTIAL” by following the procedures
set forth herein. All such information shall thereafter be treated by the parties in the same manner
as if produced with such designation by a party. A producing non-party shall have all the rights
of a producing party with respect to protection of information under the terms of this Order. The
provisions of this Order for challenging the designation by a party are applicable to challenges to
designations by non-parties.
11.

Any violation of any term of this Order or of an executed Nondisclosure Agreement

shall be punishable as contempt of court. Any person or entity that is affiliated with either party
that produces “CONFIDENTIAL” information in response to a discovery request or subpoena in
this action shall be a third-party beneficiary of this Order and the Nondisclosure Agreements
executed under this Order, and may pursue all remedies available for breach thereof. No provision
of this Order shall be deemed to require any person or entity not a party to this action to respond
to any discovery request or subpoena, except as may otherwise be required by law.
12.

Nothing in this Order shall prevent or prohibit any party or non-party from seeking

such additional or further protection as it deems necessary to protect documents or information
that is requested during discovery in this action.
13.

Nothing in this Order shall prevent or restrict any person from using or disclosing

in any manner its own “CONFIDENTIAL” information that it has produced or disclosed in this
litigation.
14.

Nothing in this Order shall prevent disclosure beyond the terms of this Order of any

“CONFIDENTIAL” information if the parties to this action and, if applicable, the non-party from
which the material originated, or about whom it concerns, consents, or if the Court, on motion filed
by the party seeking to make disclosure, orders that such additional disclosure is permitted.
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15.

Nothing herein and no action taken under this Order shall constitute a waiver or

admission that any specific document, material, testimony or thing: (a) is relevant and subject to
discovery; (b) is or is not confidential business, personnel or personal information; or (c) is or is
not admissible in evidence at trial or at any hearing. The production of any documents or
information that the producing party claims to be privileged shall be governed by the facts and
applicable law.
16.

The restrictions set forth in any of the preceding paragraphs of this Order shall not

apply to information that was, is, or becomes public knowledge not in violation of this Order.
17.

The provisions of this Order do not apply to documents introduced into evidence

or testimony given during the actual trial of this matter, and such documents may be introduced
into evidence at trial with the designation required by paragraph 8 above removed, provided that
the party offering the documents has first given notice in the Final Pretrial Order that it intends to
offer the document into evidence at trial. To the extent that a party believes a document should
continue to be subject to protection at trial for reasons of confidentiality, that party shall file a
proper motion requesting appropriate protections. The Court shall address any such motion and
rule on it separate and apart from the terms set forth in this Order.
18.

This Order shall continue in full force and effect after the termination of this

litigation, including all appeals, and the Court shall retain jurisdiction necessary to enforce the
terms of this Order. However, this Order shall be subject to revocation or modification by order
of the Court upon written stipulation of the parties, or upon motion and reasonable notice,
including opportunity for a hearing and presentation of evidence should the Court so decide.
19.

Within sixty (60) days following the final termination of this case and any related

appeals, each party’s counsel shall collect all copies of “CONFIDENTIAL” information and
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documents that the party received during this action, including any copies, extracts or summaries
thereof, all documents containing or derived from information designated as “CONFIDENTIAL”
and all copies in the possession or control of said party’s employees, agents, representatives and
experts. These materials shall be stored in a manner that protects them from any disclosure that
would be inconsistent with the restrictions stated in this Order. After three (3) years following
the termination of this litigation and any related appeals, each party’s counsel shall, at the written
request of the party which produced any confidential information, return the party’s copies of
“CONFIDENTIAL” information or documents to counsel for the requesting party, or, if requested,
destroy those copies; provided only that the counsel for the party possessing that information may
retain any copies of confidential material or information that includes that counsel’s litigation work
product or evidence of privileged communications. Those copies shall continue to be maintained
in confidence consistent with the restrictions of this Order. Upon complying with a request to
return confidential documents and information that a party received during this action, that party’s
counsel shall certify in writing to the counsel for the requesting party that he/she has returned all
copies, abstracts, and summaries of such information and documents in the possession or control
of his/her client and any retained experts or consultants, if applicable, or, if requested, that all such
copies, abstracts and summaries have been destroyed, excepting only the litigation work product
of said client and the client’s counsel and documents containing privileged communications. The
parties should agree to reasonable extensions of time to complete the return or destruction of the
“CONFIDENTIAL” information, if necessary.
20.

Each person who receives “CONFIDENTIAL INFORMATION” submits himself or

herself to the personal jurisdiction of the Court, wherever he or she shall be, for purposes of the
enforcement of this Order.
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21.

The parties agree to submit this Order for entry by the Court and to be bound by its

terms prior to entry by the Court.
22.

Pursuant to paragraph F of this Court’s Pretrial Order and Case Management Plan

(D.E. 7), the ultimate disposition of protected materials is subject to a final order of the court on
the completion of litigation.
23.

The parties, through counsel, have consented to the entry and terms of this Order.

Signed: October 8, 2015

We consent:
For the Defendant

For the Plaintiff

/s/ Kevin J. Dalton
Kevin J. Dalton
N.C. Bar No. 24197
FISHER & PHILLIPS, LLP
227 West Trade Street, Suite 2020
Charlotte, NC 28202
Telephone:
704.334.4565
Facsimile:
704.334.9774
Email: [e-mail]
Counsel for Defendant

/s/ Kirk J. Angel
Kirk J. Angel
N.C. Bar No. 33559
THE ANGEL LAW FIRM, PLLC
P.O. Box 1296
Concord, NC 28025
Telephone: [phone]
Facsimile: 704.973.7859
Email: [e-mail]
Counsel for Plaintiff

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:15-CV-00037-RLV-DCK
TIMOTHY SHELL,
Plaintiff,
v.
TYSON FOODS, INC.,
Defendant.

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EXHIBIT A
TO
CONSENT PROTECTIVE ORDER
Nondisclosure Agreement

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:15-CV-00037-RLV-DCK
TIMOTHY SHELL,
Plaintiff,
v.
TYSON FOODS, INC.,
Defendant.

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CONSENT PROTECTIVE ORDER NONDISCLOSURE AGREEMENT
The undersigned has read and understands the terms of the Consent Protective Order
entered in this case, and agrees to abide by the terms of that Consent Protective Order. The
undersigned agrees that, if any information is communicated to the undersigned marked
“CONFIDENTIAL,” the undersigned will only disclose such information to the extent allowed by
the terms of the Consent Protective Order. 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 that the jurisdiction of the Court regarding that Order survives
any settlement, discontinuance, dismissal, judgment, or other disposition of this action and that
violations of this Agreement may be punishable as contempt.

Name (Please print or type)

Date

Signature

Position or Capacity in regards to this litigation
(e.g., Attorney’s staff, Expert Witness)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:15-CV-037-RLV-DCK
TIMOTHY SHELL,
Plaintiff,
v.
TYSON FOODS, INC.,
Defendant.

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CERTIFICATE OF SERVICE
I hereby certify that on October 7, 2015, I electronically filed the foregoing Consent
Protective Order with the Clerk of Court using the CM/ECF system which will send notice of such
filing to Plaintiff’s counsel, Kirk J. Angel, at [e-mail] and Clay White, at
[e-mail].
Respectfully submitted,
/s/Kevin J. Dalton
NC State Bar No. 24197
Attorney for Defendant
Fisher & Phillips LLP
227 West Trade Street, Suite 2020
Charlotte, North Carolina 28202
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]

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