Hines v. Northern Engraving Corporation
Filing
14
PROTECTIVE ORDER. Signed by Magistrate Judge David Keesler on 4/18/2017. (tmg)
IN THE UNITED STATES DISTRICT COURT
F O R T H E WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:17-CV-019-RLV-DCK
SCOTT HINES,
Plaintiff
v.
NORTHERN ENGRAVING
CORPORATION,
Defendant.
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CONSENT PROTECTIVE ORDER
To facilitate the prompt resolution of disputes over confidentiality and adequately protect
material entitled to be kept confidential, the parties in the above-captioned matter, by and through
their respective counsel, and pursuant Rule 26(c) of the Federal Rules of Civil Procedure, the
parties hereby stipulate and agree to the terms of this Consent Protective Order (“Order”) as
follows:
1.
Scope. This Order shall apply to information, testimony, documents and things
provided by the parties in the above-captioned matter that contain: information protected from
disclosure by statute; personal information (such as Social Security numbers); trade secrets;
sensitive security data; or information in any format that the producing party believes in good
faith constitutes or reveals any confidential, proprietary, commercially sensitive, or otherwise
non-public business, technical, financial, or employee personnel information, or information
protected by third-party privacy rights provided that any such information is generally
unavailable to others, not readily determinable from other sources, and reasonably likely to lead
to competitive injury, invasion of privacy, or annoyance or oppression if disclosed to persons other
than as provided herein.
2.
Non-disclosure of Stamped Confidential Documents. No stamped confidential
document may be disclosed to any person except as provided in paragraph 3 below. A “stamped
confidential document” means any document that bears the legend “CONFIDENTIAL.” For
purposes of this Order, the term “document” shall have the meaning assigned to that term in Rule
34(a).
3.
Permissible Disclosures. Stamped confidential documents and information may
be disclosed to:
(a)
counsel for the parties in this action who are actively engaged in the
conduct of this litigation, including counsel’s legal and clerical assistants;
(b)
a party, or an officer, director, or employee of a corporate party deemed
necessary by counsel for that party to aid in the prosecution, defense, or settlement of this action;
(c)
this Court or any other court exercising appellate jurisdiction with respect
to the determinations of this Court, court officials, employees, and stenographers transcribing
testimony or argument at a hearing, trial, or deposition;
(d)
persons sitting for depositions or appearing as trial witnesses;
(e)
outside consultants or experts retained for the purpose of assisting counsel
in the litigation;
(f)
court reporters employed in this action;
(g)
any jurors and alternate jurors in the lawsuit;
(h)
a non-party who authored or is shown to have previously received the
confidential document; and
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(i)
any other person as to whom the parties in writing agree, provided,
however, that persons identified in subparts (d) and (e) shall sign the form appended as Exhibit A
prior to the disclosure of any stamped confidential documents to such person.
4.
Dispute Regarding Classification.
In the event that a party objects to the
designation of any document or documents as confidential by the other party, the objecting party
shall provide notification of the objection to counsel for the party asserting confidentiality.
Counsel for the party asserting confidentiality may apply to the Court for a protective order
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure. Any document(s) that are stamped
confidential and subject to challenge shall be treated as subject to the protections of this Order
until the Court orders otherwise.
5.
Designation of Transcripts. When confidential information is incorporated into
a transcript of a deposition, hearing, trial or other proceeding, including exhibits, the designating
party shall, with the cooperation of all other parties, make arrangements with the reporter during
the course of such deposition or other proceeding to label such transcript, portions thereof and/or
exhibits as “CONFIDENTIAL.” In the alternative, a party may designate, in writing, such
transcripts, portions thereof and/or exhibits as “CONFIDENTIAL” within twenty-one (21) days
after receipt by the designating party of the original or a copy thereof.
6.
Use of Confidential Information.
Persons obtaining access to stamped
confidential documents or information under this Order shall use the information only for
preparation and trial of this litigation (including motion practice, mediation, appeals and retrials),
and shall not use such information for any other purpose, including, but not limited to use in
business, governmental, commercial, administrative, or judicial proceedings or transactions
unrelated to the present action.
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7.
Confidential Information at Trial. Subject to the Federal Rules of Civil
Procedure, stamped confidential documents and other confidential information may be offered in
evidence at trial or any court hearing.
Any party may move the Court for an order that the
evidence be received in camera or under other conditions to prevent unnecessary disclosures. The
Court then will 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.
8.
Filing of Confidential Information. To the extent that any party seeks to file
documents or information subject to this Order with the Court, the filing party may either (i) file a
motion for leave to file the information under seal prior to submitting such material to the court,
or (ii) seek the producing party’s consent to file such information without such protections. Any
party who wishes to file documents under seal shall follow the procedures laid out in Local Civil
Rule 6.1.
9.
Non-termination.
conclusion of this action.
The provisions of this Order shall not terminate at the
Within ninety (90) days after final conclusion of all aspects of this
litigation, including any and all appeals or collateral proceedings, stamped confidential
documents and all copies of same shall be returned to the party or person that produced or
designated such documents or stamped confidential documents and all copies of same shall be
destroyed unless the document has been entered as evidence or filed (unless introduced or filed
under seal). All counsel of record shall make certification of compliance herewith and shall
deliver the same to counsel for the party who produced or designated the documents not more
than forty-five (45) days after final termination of this litigation. The ultimate disposition of
protected materials shall be subject to a final order of the Court on the completion of litigation.
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10.
No Waiver.
The inadvertent, unintentional, or in camera disclosure of
confidential documents and information shall not be deemed a waiver of the party’s claims of
confidentiality. If a party inadvertently or unintentionally produces any confidential document or
information without marking or designating it as such, the party may, promptly upon discovery,
furnish a substitute copy properly marked along with written notice to all parties (or written notice
alone as to non-documentary information) that such information is deemed confidential and
should be treated as such in accordance with the provisions of this Order. Each person receiving
such a notice must treat the inadvertently-produced, confidential information as confidential from
the date such notice is received. If the inadvertently produced, confidential information has been
disclosed prior to the receipt of such notice, the party that made the disclosure shall notify the
party providing notice of inadvertent disclosure in writing within fourteen (14) days.
11.
Privileged Documents. Pursuant to Rule 502 of the Federal Rules of Evidence,
the inadvertent disclosure of communications, documents, or information protected by the
attorney-client privilege, work product doctrine, or any other privilege (“Privileged Material”)
shall not constitute a waiver of any privilege or other protection if the producing party took
reasonable steps to prevent disclosure and also took reasonable steps to rectify the error in the
event of an inadvertent disclosure. The producing party will be deemed to have taken reasonable
steps to prevent Privileged Material from inadvertent disclosure if that party utilized either
attorney screening, keyword search term screening, advanced analytical software applications
and/or linguistic tools in screening for privilege, work product, or other protection. In the event
of the inadvertent disclosure of Privileged Material, the producing party shall be deemed to have
taken reasonable steps to rectify the error of the disclosure if, within thirty (30) days from the
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date that the inadvertent disclosure was discovered or brought to the attention of the producing
party, the producing party notifies the receiving party of the inadvertent disclosure and instructs
the receiving party to promptly sequester, return, delete, or destroy all copies of the inadvertently
produced Privileged Material (including any and all work product containing such Privileged
Material). The receiving party also has an affirmative obligation to notify the producing party if
it receives communications, documents, or information that appear to constitute Privileged
Material. Upon receiving such a request from the producing party, the receiving party shall
promptly sequester, return, delete, or destroy all copies of such inadvertently produced Privileged
Material (including any and all work product containing such Privileged Material), and shall make
no further use of such Privileged Material (or work product containing such Privileged Material).
12.
Effect of Order. This Order shall not be deemed to prejudice the parties in any
way in any future application for modification of this Order. This Order is entered solely for the
purpose of facilitating the exchange of documents and information between the parties to this
action without involving the Court unnecessarily in that process. Neither this Order nor the
production of any information or document under the terms of this Order nor any proceedings
pursuant to this Order shall be deemed to have the effect of an admission or waiver by either party
or of altering the confidentiality or non-confidentiality of any such document or information or
altering any existing obligation of any party or the absence thereof. Nothing contained in this
Order and no action taken pursuant to it shall prejudice the right of any party to contest the alleged
relevancy, admissibility, or discoverability of the confidential documents and information sought.
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STIPULATED AND AGREED TO THIS 11TH DAY OF APRIL, 2017:
By: /s/Paul E. Culpepper
Paul E. Culpepper
NC Bar No. 19883
Timothy D. Swanson NC
Bar No. 35598
P.O. Drawer 2428
Hickory, North Carolina 28603
Phone: (828) 322-4663
Fax: (828) 324-2431
Email: paulc@hickorylaw.com
timothys@hickorylaw.com
By: /s/Ada W. Dolph
Frederick T. Smith
NC Bar No. 45229
SEYFARTH SHAW LLP
6000 Fairview Road
Suite 1200
Charlotte, North Carolina 28210
Phone: (404) 888-1021
Fax: (404) 892-7056
Email: fsmith@seyfarth.com
Ada W. Dolph*
131 South Dearborn Street
Suite 2400
Chicago, Illinois 60603
Phone: (312) 460-5000
Fax: (312) 460-7000
Email: Adolph@seyfarth.com
Counsel for Plaintiff
Counsel for Defendant
*Admitted pro hac vice
SO ORDERED.
Signed: April 18, 2017
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