Triplettt v. North Carolina Department of Public Safety
Filing
16
PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 8/5/2016. (cbb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:15-CV-075-RLV-DCK
AMBER A. TRIPLETT,
Plaintiff,
v.
NORTH CAROLINA DEPARTMENT OF
PUBLIC SAFETY,
Defendant.
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PROTECTIVE ORDER
The discovery process in this action may involve the production of information (which
term includes data or data compilations in the form of documents, electronic media, testimony,
or any other form or medium) that a party contends is confidential. Good cause exists for
the entry of a protective order limiting the disclosure of such information. Pursuant to Fed. R.
Civ. P. 26(c), it is ORDERED as follows:
1. Scope of the Order. This Order applies to all information produced in discovery,
filed, or otherwise presented in the course of the prosecution or defense of this action, provided
that the presiding judicial officer shall determine the procedure for presentation of Confidential
Information at pre-trial hearings and trial.
2. Use of Confidential Information. All Confidential Information, as defined in this
Order, shall be used solely in the prosecution or defense of this action including, but not limited
to, mediation, other alternative dispute resolution processes, any other settlement process, and
all other pretrial, trial, and post-trial proceedings in this action, and shall not be used or disclosed
by any person for any other purpose.
3. Disclosure. "Disclose" or "disclosure" means to provide, impart, transmit, transfer,
convey, publish, or otherwise make available.
4. Confidential Information.
"Confidential
Information"
consists of
"General
Confidential Information" and "Attorneys' Eyes Only Confidential Information," which
are defined as follows:
a. "General Confidential Information" means:
1)
The personnel file, as that term is defined in N.C.G.S. § 126-
22(3), maintained by the North Carolina Department of Public Safety ("DPS") of any current
or former employee of the DPS, excluding personal information about the employee as
described in Paragraph 4.b(l ).
2)
The medical and mental health records generated in the treatment
or handling of any inmate during their incarceration within the NCDPS which are deemed
confidential by N.C.G.S. §§ 148-74 and -76.
3)
Records generated in the housing and handling of inmate's during
their incarceration within the NCDPS, including video recordings, which are deemed confidential
by N.C.G.S. §§ 148-74 and -76.
4)
Other information that is potentially embarrassing or invasive of
the privacy of a person not a party to this litigation and therefore an appropriate subject of a
protective order under Rule 26(c)( 1) of the Rules of Civil Procedure.
5)
Reports of, i nvestigations into, and any findings regarding alleged
incidents of sexual harassment by any current or former inmate against Plaintiff or anyone
other than the named Plaintiff.
6)
Medical and mental health records or Plaintiff.
7)
Financial records and documents pertaining to Plaintiff s financial
and/or economic damages.
b. "Attorneys' Eyes Only Confidential Information" means:
1)
Personal information about any current or former
employee of the DPS that is not related to the employee's job performance or duties,
such as social security numbers, home addresses and telephone numbers, insurance
records or designations, medical and/or disability information, and other purely private
information.
2)
The medical and mental health records maintained by
the DPS for current or former inmates of the DPS.
3)
Reports
of,
investigations into, and
any
findings
regarding alleged incidents of sexual abuse by DPS staff against anyone other than the
named Plaintiff, except those reports of such conduct made against any named
Defendant.
4)
Highly sensitive security information as it relates to
investigations, security designations, staffing patterns and logs, schematic or other
drawings and diagrams, and other sensitive security information.
5. Disclosure of General Confidential Information.
General
Confidential
Information shall not be disclosed to anyone except:
a.
The court and its personnel;
b.
The parties to this action;
c.
Counsel for the parties to this action and employees of said counsel;
d.
Experts or consultants specifically retained by the parties or their attorneys
to assist them in the preparation of this case or to serve as expert witnesses at
the trial of this action, but only after execution of a Confidentiality Agreement
as provided in Paragraph 7; and
e.
Court reporters or videographers engaged to record depositions, hearings,
or the trial in this action.
6. Disclosure of Attorneys' Eyes Only Confidential Information. Attorneys'
Eyes Only Confidential Information shall not be disclosed to anyone except:
a.
The court and its personnel;
b.
Counsel for the parties to this action and employees of said counsel;
c.
Experts or consultants specifically retained by the parties or their
attorneys to assist them in the preparation of this case or to serve as expert witnesses
at the trial of this action, but only after execution of a Confidentiality Agreement as
provided in Paragraph 7; and
d.
Court reporters or videographers engaged to record depositions,
hearings, or the trial in this action.
7. Confidentiality Agreements. Before Confidential Information is disclosed
to any person described in Paragraphs 5(d) or 6(c) of this Order, counsel for the party
disclosing the information shall inform the person to whom the disclosure is to be made
that Confidential Information shall be used only for the purpose of the prosecution
or defense of this action, and shall obtain from the person to whom the disclosure
is to be made a signed confidentiality agreement in the form attached hereto as
Exhibit A. Counsel for the party disclosing the Confidential Information to said
person shall maintain the original Confidentiality Agreement and need not produce
it except by agreement of the parties or upon order of the court.
8. Designation of Confidential Information. Information shall be designated as
Confidential Information in the following manner:
a.
In the case of information reduced to paper form, the designation shall be
made:
(1)
by placing the appropriate legend, "CONFIDENTIAL -
SUBJECT TO PROTECTIVE ORDER" for General Confidential Information
or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" for Attorneys' Eyes Only
Confidential Information, on each page containing such information or;
(2)
by such other means as agreed to by the parties. The
party disclosing the information shall designate the documents as confidential at or
before the time of disclosure. A party may make the designation with respect to
information disclosed by another party by a writing directed to the producing party's
counsel. The producing party's counsel shall then be responsible for labeling the
designated information as provided herein.
b.
Information on a computer disk, data tape, or other medium
that has not been reduced to paper form shall be designated as General Confidential
Information or Attorneys' Eyes Only Confidential Information:
(1)
by informing counsel for the parties to this action in
writing that the computer disk, data tape, or other medium contains such Confidential
Information and, where applicable, specifying by Bates or other page number the
particular information being designated or;
(2)
by such other means as agreed to by the parties. To the
extent practicable, such physical medium should also be labeled using the appropriate
legend. Any party receiving Confidential Information designated under this Paragraph
8(b) shall then be responsible for appropriately labeling any printed version(s) of such
information that it creates.
c.
In the case of deposition testimony, any party
may
designate
information disclosed during a deposition as General Confidential Information or
Attorneys' Eyes Only Confidential Information by either:
(I)
identifying on the record at the deposition the information
that is to be treated as Confidential Information or;
(2)
marking the portions of the deposition transcript to be
designated as Confidential Information within 21 days after receipt of the transcript.
When the deponent and the attending parties do not agree to waive the reading,
correcting, and signing of the transcript, all information disclosed during a deposition
shall be treated as Attorneys' Eyes Only Confidential Information before the expiration
of the 21-day period unless otherwise agreed by the parties and the deponent. If any
deposition testimony or any document or information used during the course of a
deposition is designated as Confidential Information, each page of the deposition
transcript containing such information shall be labeled with the appropriate legend
specified in Paragraph 8(a), and the first page of the deposition transcript shall be
labeled in a manner that makes it readily apparent that the transcript contains
Confidential Information.
d.
Any other information that is not reduced to physical form or cannot
be conveniently labeled shall be designated as Confidential Information by serving a
written notification of such designation on counsel for the other parties. The notice
shall, where applicable, specify by Bates or other page number the particular
information being designated.
9. Disputes over Designations. If any party objects to the designation of any
information as confidential, counsel for the objecting party and counsel for the
designating party shall attempt to resolve the disagreement on an informal basis. If
the objection is not so resolved, the objecting party may move the court for appropriate
relief. The information in question shall continue to be treated as confidential in
accordance with the disputed designation unless and until the court issues a final ruling
that the information does not qualify for such a designation. The non-filing by the
objecting party of a motion for relief shall not be deemed an admission that the
information in question qualifies for the disputed designation.
10. Inadvertent Disclosure of Confidential Information. Inadvertent disclosure
of Confidential Information, without identifying the same as confidential, shall not be
deemed a waiver of confidentiality with regard to similar or related information nor
shall it be deemed a waiver of confidentiality with regard to the information
inadvertently disclosed if promptly called to the attention of counsel for each receiving
party.
11. Filing of Confidential Information Under Seal. Before filing a document
containing any Confidential Information, the filing party must confer with the other
parties about how the document should be filed. If the filing party decides that the
document should be sealed, the filing party shall file the document along with a
motion to seal and supporting memorandum showing that the document may properly
be sealed (see, e.g., Stone v. University of Maryland Medical System Corp., 855
F.2d 178, 180-81 (4th Cir. 1988)), as provided in Local Civil Rule 6.1. If a party
other than the filing party seeks to have the document sealed, the filing party shall file
the document as a proposed sealed document. But instead of a motion to seal and
supporting memorandum, the filing party shall file contemporaneously with the
document a notice stating that, pursuant to this Paragraph 11, any party seeking the
sealing of the document must within 7 days file a motion to seal and supporting
memorandum as provided in Local Civil Rule 79.2 or the document will be unsealed
by the Clerk without further order of the court.
12. Authors/Recipients. Except as specifically provided herein, this Order shall
not limit use by a party of its own Confidential Information, nor shall this Order limit
the ability of a party to disclose any document to its author or to anyone identified on
the face of the document as a recipient.
13.
Return of Confidential Information. Following the conclusion of this
action, including any appeals, a party that produced Confidential Information may
request in writing its return by any other party. Within 60 days after service of
such a request, any party that received the Confidential Information shall either
return it to counsel for the producing party or destroy it, at the election of the
receiving party; provided that the information shall not be destroyed if otherwise
ordered by the court or a motion for relief from this Paragraph 13 is pending. If
a receiving party elects to destroy the Confidential Information rather than returning
it to the producing party, counsel for the receiving party shall provide to the
producing party by the 60- day deadline a signed certification that the Confidential
Information has been destroyed. This Paragraph shall not be construed to require
the return or destruction of any regularly maintained litigation files held by the
attorneys of record for each party as archival records or other attorney work-product
created for any party. Any Confidential Information, or portions or excerpts thereof,
which are not returned or destroyed pursuant to this Paragraph shall remain subject
to the terms of this Order. The return of trial exhibits by the court shall be governed
by Local Civil Rules 6.1 or 79.1.
14. Admissibility of lnformation.
Neither the terms of this Order nor the
disclosure or designation as confidential of any information pursuant to it shall
be deemed to establish or vitiate the admissibility under the Federal Rules of
Evidence of any information subject to this Order.
15. Confidential Employee Information. Pursuant to N.C.G.S. § 126-24(4),
this Order authorizes the disclosure of confidential portions of the personnel files
maintained by the DPS- DAC of current or former employees in accordance with
the terms of this Order.
16. Modification. This Order is without prejudice to the right of any party or
witness to seek modification or amendment of the Order by motion to the court, or
to seek and obtain additional protection with respect to Confidential Information as
such party may consider appropriate.
SO ORDERED.
Signed: August 5, 2016
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