Boan v. TJX Companies, Inc. et al
Filing
25
CONFIDENTIALITY ORDER, Motions terminated: 24 Consent MOTION for Confidentiality Order. Signed by Magistrate Judge Paige J Gossett on 3/16/2016. (bgoo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
LINDA H. BOAN,
Plaintiff,
v.
TJX COMPANIES, INC. and ELLIOT
JAMISON,
Defendants.
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CASE NO. 0:15-CV-4845-JMC-PJG
CONSENT CONFIDENTIALITY
ORDER
Whereas, the parties to this Consent Confidentiality 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 this 16th day of March, 2016, ORDERED:
1.
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.
2.
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.
Inadvertent or 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.
3.
Documents Which May be Designated Confidential.
Any party may designate
documents as confidential but only after review of the documents by an attorney1 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.
The certification shall be made
concurrently with the disclosure of the documents, using the form attached hereto at
Attachment A which shall be executed subject to the standards of Rule 11 of the Federal
Rules of Civil Procedure. Information or documents which are available in the public
sector may not be designated as confidential.
4.
Depositions. Portions of depositions shall be deemed confidential only if designated as
such when the deposition is taken or within seven business days after receipt of the
transcript. Such designation shall be specific as to the portions to be protected.
5.
Protection of Confidential Material.
(a)
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 (¶ 6.b.) for any purposes whatsoever other than
preparing for and conducting the litigation in which the documents were disclosed
(including any appeal of that litigation). The parties shall not disclose documents
designated as confidential to putative class members not named as plaintiffs in
putative class litigation unless and until one or more classes have been certified.
1
The attorney who reviews the documents and certifies them to be CONFIDENTIAL must be admitted
to the Bar of at least one state but need not be admitted to practice in the District of South Carolina and
need not apply for pro hac vice admission. By signing the certification, counsel submits to the jurisdiction
of this court in regard to the certification.
(b)
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 (1)-(5) below, and then only after the person
to whom disclosure is to be made has executed an acknowledgment (in the form
set forth at Attachment B hereto), that he or she has read and understands the
terms of this Order and is bound by it. Subject to these requirements, the
following categories of persons may be allowed to review documents which have
been designated CONFIDENTIAL pursuant to this Order:
(i)
counsel and employees of counsel for the parties who have responsibility
for the preparation and trial of the lawsuit;
(ii)
parties and employees of a party to this Order but only to the extent
counsel shall certify that the specifically named individual party or
employee’s assistance is necessary to the conduct of the litigation in which
the information is disclosed2;
(iii)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of
documents;
(iv)
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
2
At or prior to the time such party or employee completes his or her acknowledgment of review of this
Order and agreement to be bound by it (Attachment B hereto), counsel shall complete a certification in
the form shown at Attachment C hereto. Counsel shall retain the certification together with the form
signed by the party or employee.
(v)
other persons only upon consent of the producing party or upon order of
the court and on such conditions as are agreed to or ordered.
(c)
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. Counsel shall maintain a record of those persons,
including employees of counsel, who have reviewed or been given access to the
documents along with the originals of the forms signed by those persons
acknowledging their obligations under this Order.
(d)
Copies. 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 designation “CONFIDENTIAL” if the word does not already appear on
the copy. All such copies shall be afforded the full protection of this Order.
6.
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 insure 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 Local Civil Rule 5.03, DSC, or such
other rule or procedure as may apply in the relevant jurisdiction. 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 with
the permission of the court after proper motion pursuant to Local Civil Rule 5.03.
7.
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.
8.
Challenges to Designation as Confidential.
subject to challenge.
(a)
Any CONFIDENTIAL designation is
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.
(b)
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 (15) 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.
(c)
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:
(i)
the party who claims that the documents are confidential withdraws such
designation in writing;
(ii)
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 9.b. above; or
(iii)
the court rules that the documents should no longer be designated as
confidential information.
(d)
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
designation.
9.
Treatment on Conclusion of Litigation.
(a)
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.
(b)
Return of CONFIDENTIAL Documents. Within thirty (30) 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 (¶6.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.
10.
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.
11.
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.
12.
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.
IT IS SO ORDERED.
__________________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
March 16, 2016
Columbia, South Carolina
ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
LINDA H. BOAN,
Plaintiff,
v.
TJX COMPANIES, INC. and ELLIOT
JAMISON,
Defendants.
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)
)
)
)
)
)
)
)
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CASE NO. 0:15-CV-4845-JMC-PJG
CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION AS
CONFIDENTIAL
Documents produced herewith (whose bates numbers are listed below (or) are listed on
the attached index) have been marked as CONFIDENTIAL subject to the Confidentiality Order
entered in this action on ________.
By signing below, I certify that I have personally reviewed the marked documents and
believe, based on that review, that they are properly subject to protection under the terms of
Paragraph 3 of the Confidentiality Order.
I am a member of the Bar of the United States District Court for the District of
South Carolina. My District Court Bar number is ________.
Date: ___________________
Signature of Counsel
Printed Name of Counsel
ATTACHMENT B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
LINDA H. BOAN,
Plaintiff,
v.
TJX COMPANIES, INC. and ELLIOT
JAMISON,
Defendants.
)
CASE NO. 0:15-CV-4845-JMC-PJG
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)
)
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ACKNOWLEDGMENT OF
) UNDERSTANDING AND AGREEMENT
)
TO BE BOUND
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The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated __________, 2016, 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 District of South 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 a violation of the Stipulated Confidentiality Order
may result in penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date
Signature
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PPAB 3164894v1
ATTACHMENT C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
LINDA H. BOAN,
Plaintiff,
v.
TJX COMPANIES, INC. and ELLIOT
JAMISON,
Defendants.
)
)
)
)
)
)
)
)
)
)
CASE NO. 0:15-CV-4845-JMC-PJG
CERTIFICATION OF COUNSEL OF
NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of ¶ 5b2, I certify that the assistance of ________________ is reasonably necessary to
the conduct of this litigation and that this assistance requires the disclosure to this individual of
information which has been designated as CONFIDENTIAL.
I have explained the terms of the Confidentiality Order to the individual named above
and will obtain his or her signature on an “Acknowledgment of Understanding and Agreement to
be Bound” prior to releasing any confidential documents to the named individual. I will release
only such confidential documents as are reasonably necessary to the conduct of the litigation.
The individual named above is:
A named party;
An employee of a named party. This employee’s job title is ________ and his/her
work address is ______________________.
Date
Signature
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PPAB 3164894v1
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