Elledge v. Lowe's Home Centers, LLC et al
Filing
16
CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 4/13/17. (rth)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:16-CV-227-RLV-DCK
CHARLES J. ELLEDGE,
Plaintiff,
v.
LOWE’S HOME CENTERS,
LLC, and LOWE’S COMPANIES,
INC.,
Defendants.
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CONSENT PROTECTIVE ORDER
This matter having come before the Court on the joint application of Plaintiff
Charles J. Elledge (hereinafter “Plaintiff”) and Defendants Lowe’s Home Centers, LLC
and Lowe’s Companies, Inc. (hereinafter “Defendants”), and the parties having agreed to
the terms of this Consent Protective Order (“Protective Order”), and that this Protective
Order is necessary to facilitate discovery in this matter, and, for good cause having been
shown:
IT IS HEREBY ORDERED by the Court that the following terms and conditions
shall apply in the above-captioned action (the “Action”):
1.
Scope of Order.
This Protective Order shall apply to all documents,
information, deposition testimony, or any other materials produced, provided, or disclosed
through formal discovery procedures or in response to a subpoena by any party or nonparty in this Action (“Litigation Material”). The term party means any named Plaintiff or
Defendant in this Action. This Protective Order shall govern all pretrial proceedings in
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this Action and shall remain in effect until modified, superseded, or rescinded by further
Order of this Court. The parties shall meet and confer prior to the Pretrial Conference in
this Action to discuss how confidentiality issues will be addressed at trial.
2.
Confidential Information.
For purposes of this Protective Order,
“Confidential” information as used herein means any type or classification of information
which is designated as Confidential in the manner specified below, in the good faith belief
that such information falls within the scope of Rule 26(c) of the Federal Rules of Civil
Procedure and should be afforded the protections provided herein. For purposes of this
Protective Order, Confidential information may include, but is not limited to, trade secrets;
proprietary, confidential, or commercially sensitive business information; employment and
personnel files and records; medical records and files; private, health, insurance, wage,
financial, tax, account, or credit information; and/or other confidential information and
records which are not generally known or accessible, or the disclosure of which is restricted
or prohibited by statute, rule, regulation, statutory or common law privilege, contract or
agreement, or Court Order. Confidential information shall be designated as such by
stamping or labeling the relevant material with the legend “CONFIDENTIAL” or
“CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER,” or by taking other
reasonable steps to so designate the information or documents. Designation of Confidential
information shall occur at or prior to the time of production of documents or provision of
discovery responses. In the event any Litigation Material is produced that the producing
party or non-party does not designate as Confidential, any other party or non-party with
legitimate interests and an appropriate basis may designate such Litigation Material as
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Confidential within thirty (30) calendar days of receipt of the same. Portions of deposition
transcripts shall be designated as Confidential within thirty (30) calendar days of receiving
the transcripts. Deposition transcripts shall be treated as Confidential until they are either
designated as such or, if no such designation is made, until the expiration of the thirty (30)
day period following receipt of the transcripts. A party may designate as Confidential any
portion of depositions taken, or documents produced, before the entry of this Protective
Order within thirty (30) days of entry by the Court.
3.
Use of Confidential Information. Absent a Court Order or written consent
from the designating party or non-party, information designated as Confidential shall be
used solely for the purposes of this Action and in accordance with this Protective Order,
and shall not be used, made available, or disclosed in any other litigation, judicial or
administrative proceedings, or for any commercial, business, competitive, or other
purposes. Information designated as Confidential shall only be made available to persons
designated as Qualified Persons under this Protective Order.
4.
Qualified Persons. The following individuals are “Qualified Persons” under
this Protective Order:
a.
Any Court officer, mediator, or arbitrator handling any aspect of this
Action, including their staff, as well as any court reporters and videographers who
transcribe or record testimony at depositions or hearings in this Action;
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b.
Any party and their counsel in this Action, including counsel’s staff,
support personnel, and outside vendors providing services related to discovery in this
Action;
c.
Counsel for any insurance companies or other indemnitors from
which a party claims coverage or that is providing coverage for the claims asserted in this
Action;
d.
Outside consultants and experts (and their counsel) engaged by a party
in this Action;
e.
Potential witnesses, witnesses noticed for deposition, and witnesses
designated for trial, and their counsel, to the extent reasonably necessary in connection
with, or to prepare for, their testimony;
f.
Any other person agreed to in writing by counsel for the party or non-
party designating the materials as Confidential.
5.
Agreement to Terms of Protective Order. By executing this Protective Order,
the undersigned counsel for the parties bind themselves, their firms, co-counsel, clerical
and support staff, and clients to the terms and restrictions set forth in this Protective Order.
Information designated as Confidential shall not be made available to any Qualified Person
described in paragraph 4(d)-(f) unless that Qualified Person has reviewed and agreed to be
bound by this Protective Order as evidenced by that person’s execution of a Certification
in the form attached hereto as Exhibit A; provided, with respect to a witness at a deposition,
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Confidential information may be made available upon the witness’ review of this
Protective Order. Clerical or support staff need not sign the Certification provided that
they understand the duties and restrictions set forth in this Protective Order. Certifications
executed in accordance with this paragraph shall remain confidential and need not be
disclosed to the other side during this Action, except as provided in this paragraph. Counsel
expressly agree, and it is hereby ordered that, except in the event of an alleged violation of
this Protective Order, they will not seek copies of the Certifications while this Action is
pending. If the Court finds that disclosure of a Certification is necessary to investigate a
violation of this Protective Order, the disclosure will be limited to counsel only or as the
Court directs.
6.
Inadvertent Disclosure.
If a party or non-party inadvertently discloses
Litigation Material containing information that is Confidential without designating the
Litigation Material as such, the failure to make the appropriate designation shall not be
deemed a waiver of confidentiality. The disclosing party or non-party may give notice of
the inadvertent disclosure and designate the inadvertently produced Litigation Material as
Confidential.
If Litigation Material designated as Confidential is inadvertently disclosed to an
unauthorized person, the disclosing party shall use all reasonable efforts to (i) inform the
unauthorized person of the duties and restrictions set forth in this Protective Order, and (ii)
obtain from the unauthorized person a signed Certification in the form attached as Exhibit
A. Any unauthorized person who does not agree to execute the Certification shall be
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promptly identified to the party or non-party who produced the Confidential information
at issue.
7.
Request for Confidential Information.
If a party receives a request,
subpoena, or other compulsory process from a government entity seeking production of
information designated as Confidential under this Protective Order, such party shall
promptly notify the producing party. Nothing in this Protective Order shall relieve a party
from the obligation of making a timely response to a properly served subpoena or request
for information from a government entity. With respect to any other subpoena or request
for information, the party who receives the subpoena or request shall not produce the
Confidential information sought unless ordered to do so by a Court of competent
jurisdiction. No party or non-party shall object to the producing party’s limited appearance
in any litigation or other proceeding for the purpose of seeking to prevent or restrict
disclosure of the producing party’s Confidential information.
8.
Modification of or Objection to Designation.
At any time after the
designation of Litigation Material as Confidential, any party may object to the producing
party’s designation and request in writing that the designating party or non-party remove
the applicable designation. The written request shall identify the Litigation Material as
specifically as possible, without disclosing any Confidential information, and shall specify
the reasons for the request. The designating party or non-party shall respond to the request
in writing within fourteen (14) calendar days of receipt of the request, unless otherwise
agreed to by the parties or ordered by the Court. If the designating party or non-party
refuses to remove the Confidential designation, its written response shall state the reasons
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for the refusal to withdraw the designation. Failure to provide a timely response to a
request under this paragraph shall constitute refusal to remove the Confidential
designation. If the designating party or non-party refuses to remove the Confidential
designation, the objecting party may move the Court for an Order requiring that the
designating party or non-party remove the applicable designation. In the event of such a
motion, the Confidential material at issue may be submitted to the Court for in camera
review. The proponent of retaining the applicable designation shall bear the burden of
persuasion. Unless and until the designating party or non-party agrees to remove the
designation or the Court orders that the designation be removed, all Litigation Material
designated as Confidential shall continue to be treated as such.
9.
Inadvertent Production of Privileged or Protected Litigation Material. In the
event that a party or non-party inadvertently produces Litigation Material that is protected
by the attorney-client privilege, attorney work product doctrine, or any other applicable
privilege, protection, or immunity, such production shall not constitute, and will not be
deemed to constitute, a waiver of any privilege, protection, or immunity that applies to the
inadvertently produced Litigation Material. The producing party may request the return of
any inadvertently produced material under this paragraph. Upon such a request, the
inadvertently produced material shall be returned within five (5) calendar days, and no
copies or reproductions of such material shall be kept. Any receiving party intending to
move the Court to compel production of the returned documents may make one copy of all
such documents exclusively for submission in camera to the Court in connection with such
motion; the receiving party may keep one copy after submitting the documents in camera
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until the Court rules upon the Motion to Compel. Should the Motion be denied, the retained
copy shall be returned to the producing party within five (5) calendar days of the entry of
the Order denying the Motion.
10.
No Waiver. Nothing in this Protective Order shall require the production or
disclosure of any document and/or information. Nothing in this Protective Order shall
prejudice or waive the right of any party or non-party to object to the production of any
Litigation Material, or any portion thereof, on any appropriate ground. Nor shall anything
in this Protective Order prejudice or waive the right of any party to object to the
admissibility at trial of any Litigation Material, or any portion or derivative product thereof,
on any appropriate ground. Nor shall anything in this Protective Order be deemed to waive
any privilege, or prejudice or waive the right of any party or non-party from seeking and
obtaining, on an appropriate showing, such additional protection with respect to
Confidential information as that party may consider appropriate.
11.
Party’s Own Information. Nothing in this Protective Order shall limit or
restrict any producing party or non-party’s use of its own Litigation Material or the use of
its own business or personal records in the ordinary course of business or for personal,
family, or household purposes, or prohibit any producing party from disclosing its
Confidential information to any person. A party or non-party may provide its own
Litigation Material or its own Confidential information to government agencies, without a
request or subpoena from the government agencies, without violating the terms of the
Protective Order. Such disclosures shall not affect any designation of such materials as
Confidential.
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12.
Relief from Protective Order.
Nothing in this Protective Order shall
prejudice or waive the right of any party to seek (i) relief from any restriction set forth
herein, or (ii) an Order compelling, modifying, or further restricting the production,
exchange, uses of, or protections afforded to any Litigation Material under this Protective
Order.
13.
Jurisdiction. The Court retains jurisdiction to amend, modify, or enforce this
Protective Order upon the agreement of the parties to this Action, motion by a party or nonparty, or on its own motion.
14.
Survival of Obligations. The terms and conditions of the Protective Order
shall survive the conclusion of this Action, and shall continue to be binding after the
conclusion of this Action unless modified by further Order of this Court. The “conclusion
of this Action” means the time when all appeal periods have expired and any settlement or
judgment has become final.
15.
Ultimate Disposition of Confidential Information. Confidential information
and all other protected materials shall be subject to a final order of the Court upon
completion of litigation.
16.
Return or Destruction of Confidential Information. Confidential information,
and all duplicates thereof, shall be returned to the party or non-party that produced such
information within thirty (30) calendar days of the conclusion of this Action, excluding (i)
documents filed with the Court; (ii) documents containing notes or other attorney work
product created by the receiving party; (iii) transcript exhibits; and (d) counsel’s litigation
files, including copies of all Litigation Material which is a part of counsel’s case files
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(collectively, “Excluded Materials”). Such Excluded Materials shall remain subject to the
terms of this Protective Order. In lieu of returning Confidential information, a party or
non-party may elect to destroy all Confidential information covered by this Protective
Order within thirty (30) calendar days of the conclusion of this Action, provided that the
electing party shall certify in writing that it has conducted a good-faith search for all
Confidential information and that all such information has been destroyed to the best of its
knowledge.
SO ORDERED.
Signed: April 13, 2017
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THE UNDERSIGNED HEREBY CONSENT TO ENTRY OF THE WITHIN ORDER:
/s/ Robert M. Elliot
Robert M. Elliot
N.C. State Bar No. 7709
426 Old Salem Road
Winston Salem, NC 27201
Telephone: (336) 724-2828
Email: rmelliot@emplawfirm.com
/s/ James M. Powell
James M. Powell
N.C. State Bar No. 12521
300 N. Greene Street, Suite 1900
Greensboro, NC 27401
Telephone: (336) 574-8081
Email: jpowell@wcsr.com
/s/ Michael Elliot
Michael Elliot
N.C. State Bar No. 42806
300 E. Kingston Avenue
Charlotte, NC 28203
Telephone: (704) 707-3705
Email:michaelelliot@emplawfirm.com
/s/ Jillian M. White
Jillian M. White
N. C. State Bar No. 37596
300 N. Greene Street, Suite 1900
Greensboro, NC 27401
Telephone: (336) 574-8095
Email: jill.white@wcsr.com
Attorneys for Plaintiff
Attorneys for Defendants
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:16-CV-227-RLV-DCK
CHARLES J. ELLEDGE,
Plaintiff,
v.
LOWE’S HOME CENTERS,
LLC, and LOWE’S COMPANIES,
INC.,
Defendants.
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EXHIBIT A
I hereby acknowledge that I may receive Confidential information pursuant to the
terms of the Consent Protective Order (“Protective Order”) entered in the above-captioned
action on ________________, 2017. I have reviewed, understand, and agree to be bound
by the Protective Order.
I specifically understand and agree that (1) Confidential
information may only be used in connection with the above-captioned action, and (2) such
Confidential information and any copies thereof are to remain in my personal custody until
I have completed my assigned duties or my involvement in the above-captioned action has
ended, at which time such Confidential information shall be returned to counsel who
provided the information to me. I further agree that at no time will I leave Confidential
information unattended at my place of employment or any other location where it could be
observed, read, or digested by any unauthorized person. I further agree not to disseminate
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any information obtained or derived from such Confidential information to anyone or to
disclose such information except as permitted by the Protective Order. I further understand
that violation of the terms of Protective Order may be punishable and may subject me to a
contempt finding and penalties.
__________________________________________
Signature
__________________________________________
Printed or Typed Name
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WCSR 39094647v1
________________
Date
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