Woldman et al v. First-Citizens Bank & Trust Company
CONSENT PROTECTIVE ORDER. Signed by Magistrate Judge David S. Cayer on 2/15/2021. (mek)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
Case No. 5:20-CV-00158-KDB-DSC
DAVID WOLDMAN and wife MICHELLE
CONSENT PROTECTIVE ORDER
FIRST-CITIZENS BANK & TRUST
Whereas, the parties to this Consent Protective Order (“parties”), have stipulated that
certain discovery material is and should be treated as confidential, and have agreed to the terms of
this order; accordingly, it is hereby ORDERED:
Scope. All documents produced in the course of discovery, all responses to
discovery requests and all deposition testimony and deposition exhibits and any other materials
which may be subject to discovery (hereinafter collectively “documents”) shall be subject to this
Order concerning confidential information as set forth below.
Form and Timing of Designation. Confidential documents shall be so designated
by placing or affixing the word “CONFIDENTIAL” on the document in a manner which will not
interfere with the legibility of the document and which will permit complete removal of the
Confidential designation. Documents shall be designated CONFIDENTIAL prior to, or
contemporaneously with, the production or disclosure of the documents.
unintentional production of documents without prior designation as confidential shall not be
deemed a waiver, in whole or in part, of the right to designate documents as confidential as
otherwise allowed by this Order.
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Documents Which May be Designated Confidential. Any party may designate
documents as confidential, but only after review of the documents by an attorney who has, in good
faith, determined that the documents contain information protected from disclosure by statute,
sensitive personal information, trade secrets, or confidential research, development, or commercial
information. Information or documents which are available in the public sector may not be
designated as confidential.
Portions of depositions shall be deemed confidential only if
designated as such when the deposition is taken or within ten business days after receipt of the
transcript. Such designation shall be specific as to the portions to be protected.
Protection of Confidential Material.
General Protections. Documents designated CONFIDENTIAL under this
Order shall not be used or disclosed by the parties or counsel for the parties or any other
persons identified below (¶ 5.b.) for any purposes whatsoever other than preparing for and
conducting the litigation in which the documents were disclosed (including any appeal of
Limited Third Party Disclosures. The parties and counsel for the parties
shall not disclose or permit the disclosure of any documents designated CONFIDENTIAL
under the terms of this Order to any other person or entity except as set forth in
subparagraphs (i) through (v) below. Subject to these requirements, the following
categories of persons may be allowed to review documents which have been designated
CONFIDENTIAL pursuant to this Order:
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counsel and employees of counsel for the parties who have
responsibility for the preparation and trial of the lawsuit;
parties and employees of a party to this Order but only to the extent
that the specifically named individual party or employee’s assistance is necessary
to the conduct of the litigation in which the information is disclosed,
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of documents;
consultants, investigators, or experts (hereinafter referred to
collectively as “experts”) employed by the parties or counsel for the parties to assist
in the preparation and trial of the lawsuit; and
other persons only upon consent of the producing party or upon
order of the Court and on such conditions as are agreed to or ordered2.
Control of Documents.
Counsel for the parties shall take reasonable
efforts to prevent unauthorized disclosure of documents designated as Confidential
pursuant to the terms of this order.
All copies, duplicates, extracts, summaries or descriptions
(hereinafter referred to collectively as “copies”), of documents designated as Confidential
under this Order or any portion of such a document, shall be immediately affixed with the
At or prior to the time any consultant, investigator or expert described in paragraph (iv) or any other
person described in paragraph (v), receives any document marked CONFIDENTIAL, such individual must
complete an acknowledgment of review of this Order and agreement to be bound by it in the form set out
in Attachment A hereto. Counsel shall retain the certification.
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designation “CONFIDENTIAL” if the word does not already appear on the copy. All such
copies shall be afforded the full protection of this Order.
Filing of Confidential Materials. In the event a party seeks to file any material
that is subject to protection under this Order with the Court, that party shall take appropriate action
to ensure that the documents receive proper protection from public disclosure including: (1) filing
a redacted document with the consent of the party who designated the document as confidential;
(2) where appropriate (e.g. in relation to discovery and evidentiary motions), submitting the
documents solely for in camera review; or (3) where the preceding measures are not adequate,
seeking permission to file the document under seal pursuant to the procedural steps set forth in
LCvR 6.1, or such other rule or procedure as may apply. Absent extraordinary circumstances
making prior consultation impractical or inappropriate, the party seeking to submit the document
to the Court shall first consult with counsel for the party who designated the document as
confidential to determine if some measure less restrictive than filing the document under seal may
serve to provide adequate protection. This duty exists irrespective of the duty to consult on the
underlying motion. Nothing in this Order shall be construed as a prior directive to the Clerk of
Court to allow any document be filed under seal. The parties understand that documents may be
filed under seal only pursuant to LCvR 6.1.
Greater Protection of Specific Documents. No party may withhold information
from discovery on the ground that it requires protection greater than that afforded by this Order
unless the party moves for an Order providing such special protection.
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Challenges to Designation as Confidential. Any CONFIDENTIAL designation
is subject to challenge.
The following procedures shall apply to any such challenge.
The burden of proving the necessity of a Confidential designation remains
with the party asserting confidentiality.
A party who contends that documents designated CONFIDENTIAL are not
entitled to confidential treatment shall give written notice to the party who affixed the
designation of the specific basis for the challenge. The party who so designated the
documents shall have fifteen days from service of the written notice to determine if the
dispute can be resolved without judicial intervention and, if not, to move for an Order
confirming the Confidential designation.
Notwithstanding any challenge to the designation of documents as
confidential, all material previously designated CONFIDENTIAL shall continue to be
treated as subject to the full protections of this Order until one of the following occurs:
the party who claims that the documents are confidential withdraws
such designation in writing;
the party who claims that the documents are confidential fails to
move timely for an Order designating the documents as confidential as set forth in
paragraph 8(b) above; or
the Court rules that the documents should no longer be designated
as confidential information.
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Challenges to the confidentiality of documents may be made at any time
and are not waived by the failure to raise the challenge at the time of initial disclosure or
Treatment on Conclusion of Litigation.
Order Remains in Effect. All provisions of this Order restricting the use
of documents designated CONFIDENTIAL shall continue to be binding after the
conclusion of the litigation unless otherwise agreed or ordered.
Return of CONFIDENTIAL Documents. Within thirty days after the
conclusion of the litigation, including conclusion of any appeal, all documents treated as
confidential under this Order, including copies as defined above (¶ 5.d.) shall be returned
to the producing party unless: (1) the document has been entered as evidence or filed
(unless introduced or filed under seal); (2) the parties stipulate to destruction in lieu of
return; or (3) as to documents containing the notations, summations, or other mental
impressions of the receiving party, that party elects destruction. Notwithstanding the above
requirements to return or destroy documents, counsel may retain attorney work product
including an index which refers or relates to information designated CONFIDENTIAL so
long as that work product does not duplicate verbatim substantial portions of the text of
confidential documents. This work product continues to be Confidential under the terms
of this Order. An attorney may use his or her work product in a subsequent litigation
provided that its use does not disclose the confidential documents.
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Order Subject to Modification. This Order shall be subject to modification on
motion of any party or any other person who may show an adequate interest in the matter to
intervene for purposes of addressing the scope and terms of this Order. The Order shall not,
however, be modified until the parties shall have been given notice and an opportunity to be heard
on the proposed modification.
No Judicial Determination. This Order is entered based on the representations
and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall
be construed or presented as a judicial determination that any specific document or item of
information designated as CONFIDENTIAL by counsel is subject to protection under Rule 26(c)
of the Federal Rules of Civil Procedure or otherwise until such time as a document-specific ruling
shall have been made.
Persons Bound. This Order shall take effect when entered and shall be binding
upon: (1) counsel who signed below and their respective law firms; and (2) their respective clients.
Signed: February 15, 2021
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s/ James W. Surane
James W. Surane
N.C. State Bar No. 19296
20460 Chartwell Center Drive, Suite 103
Cornelius, North Carolina 28031
Telephone: (704) 895-5885
Fax: (866) 410-6311
ATTORNEY FOR PLAINTIFFS
s/ Thomas L. Ogburn III
Thomas L. Ogburn III
N.C. State Bar No. 23415
301 S. College St., Suite 2900
Charlotte, NC 28202
ATTORNEYS FOR DEFENDANT
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
Case No. 5:20-CV-00158
DAVID WOLDMAN, and wife, MICHELLE
AGREEMENT TO BE BOUND
FIRST-CITIZENS BANK & TRUST
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated [confidentiality order date], in the above captioned action, understands the terms thereof,
and agrees to be bound by such terms. The undersigned submits to the jurisdiction of the United
States District Court for the Western District of North Carolina in matters relating to the
Confidentiality Order and understands that the terms of said Order obligate him/her to use
discovery materials designated CONFIDENTIAL solely for the purposes of the above-captioned
action, and not to disclose any such confidential information to any other person, firm or concern.
The undersigned acknowledges that violation of the Stipulated Confidentiality Order may
result in penalties for contempt of court.
[Business Address, Telephone and E-mail]
Date: [date attachment A signed]
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