Lang v. Jeffrey T Cutter et al
Filing
37
CONFIDENTIALITY ORDER granting 36 Motion for Confidentiality Order. Signed by Honorable J Michelle Childs on 8/3/2016.(asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Pete A. Lang and Lang Capital,
Case No. 0:16-cv-00087-JMC
Plaintiffs,
vs.
Jeffrey T. Cutter; Ryan J. Borer; Fusion
Investment Advisors, LLC; Coppell Advisory
Solutions, LLC, a/k/a Fusion Capital
Management; PCM Advisory, LLC, d/b/a
Precision Capital Management; and Radical
Promoting, Inc., d/b/a Radical Promotions,
a/k/a Radical, and Cutter Insurance Group, Inc.
CONFIDENTIALITY ORDER
Defendants.
Whereas, the parties to this 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 3rd day of August, 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 that will not
interfere with the legibility of the document and that 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
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deemed a waiver, in whole or in part, of the right to designate documents as confidential as
otherwise allowed by this Order.
3.
Documents That 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 that shall be executed subject to the standards of
Rule 11 of the Federal Rules of Civil Procedure. Information or documents that 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
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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.
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named as plaintiffs in putative class litigation unless and until one or more classes have been
certified.
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 that have been designated
CONFIDENTIAL pursuant to this Order:
(1)
counsel and employees of counsel for the parties who have responsibility
for the preparation and trial of the lawsuit;
(2)
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 disclosed 2;
(3)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of
documents;
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.
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(4)
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
(5)
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
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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.
Claw Back Agreement. This provision provides a mechanism as requested by the
parties for the “claw-back” of inadvertently produced documents under certain circumstances. The
parties may produce documents, including Electronically Stored Information (“ESI”), that are
responsive to each other’s discovery requests and not privileged or otherwise exempted from
discovery under the Federal Rules of Evidence, Federal Rules of Civil Procedure, or other
applicable source of law. Some of the ESI and other documents produced in this matter by the
parties, or by third parties pursuant to subpoena, may contain attorney-client privileged
communications or other privileged information, including, but not limited to, any information
that would constitute information protected as “privileged” under the Federal Rules of Evidence
and not subject to discovery under the Federal Rules of Civil Procedure or other applicable source
of law (“Privileged Material”). Further, some of the produced ESI and other documents in this
matter may contain protected attorney work-product material prepared or compiled in anticipation
5
of litigation and potentially not subject to discovery under the Federal Rules of Civil Procedure,
the Federal Rules of Evidence, or other applicable source of law (“Work Product Material”). The
parties have acknowledged that some Work Product Material and Privileged Material (collectively,
“Protected Material”) may be disclosed inadvertently to the other party during the course of this
litigation. The parties have represented that the volume of potentially discoverable ESI may
increase substantially the total volume of documents that will be produced by the parties, thereby
exacerbating the risk of disclosure of Protected Material. Therefore, the parties wish to establish
a mechanism to (a) avoid waiver of privilege or any other applicable protective evidentiary
doctrine as a result of the disclosure of Protected Material; and (b) keep disclosed Protected
Material confidential to the maximum extent possible and have agreed on the below mechanism
for doing so. The Court agrees with the parties and IT IS HEREBY ORDERED that the following
shall govern the disclosure of Protected Material in this action:
a.
The disclosure of any document that is subject to a legitimate claim that the
document should have been withheld from disclosure as Protected Material shall NOT waive any
privilege, protection, immunity, or other applicable protective doctrine for that document or for
the subject matter of the disclosed document if the producing party, upon becoming aware of the
disclosure, promptly requests its return.
b.
Except in the event that the requesting party disputes the claim of privilege,
protection, or immunity, any documents that the producing party deems to contain disclosed
Protected Material shall be, upon written request, promptly returned to the producing party or
destroyed at the producing party’s option. This includes all copies, electronic or otherwise, of any
such documents. In the event that the producing party requests destruction, the requesting party
shall provide written certification of compliance within thirty (30) days of such written request.
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In the event that the requesting party disputes the producing party’s claim as to the protected nature
of the disclosed material, a single set of copies may be sequestered and retained by and under the
control of requesting party for the sole purpose of seeking determination of the issue by the Court.
c.
Any such Protected Material disclosed by the producing party to the
requesting party pursuant to this Order, shall be and remain the property of the producing party.
9.
Challenges to Designation as Confidential. Any CONFIDENTIAL designation
is subject to challenge.
a.
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:
(1)
the party who claims that the documents are confidential withdraws such
designation in writing;
(2)
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
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(3)
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.
10.
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.
11.
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
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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.
12.
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.
13.
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!
s/J. Michelle Childs
J. Michelle Childs
UNITED STATES DISTRICT JUDGE
August 3, 2016
Columbia, South Carolina
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Pete A. Lang and Lang Capital,
Case No. 0:16-cv-00087-JMC
Plaintiffs,
vs.
Jeffrey T. Cutter; Ryan J. Borer; Fusion
Investment Advisors, LLC; Coppell Advisory
Solutions, LLC, a/k/a Fusion Capital
Management; PCM Advisory, LLC, d/b/a
Precision Capital Management; and Radical
Promoting, Inc., d/b/a Radical Promotions,
a/k/a Radical, and Cutter Insurance Group, Inc.
CERTIFICATION BY COUNSEL
OF DESIGNATION OF INFORMATION
AS CONFIDENTIAL
Defendants.
Documents produced herewith [whose bates numbers are listed below (or) that are listed
on the attached index] have been marked as CONFIDENTIAL subject to the Confidentiality Order
entered in this action which Order is dated [confidentiality order date].
By signing below, I am certifying that I have personally reviewed the marked documents
and believe that, based on that review, they are properly subject to protection under the terms of
Paragraph 3 of the Confidentiality Order.
Check and complete one of the two options below.
❑
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 [District Court Bar #].
❑
I am not a member of the Bar of the United States District Court for the District of
South Carolina but am admitted to the bar of one or more states. The state in which
I conduct the majority of my practice is [state in which I practice most] where my
Bar number is [state’s Bar #]. I understand that by completing this certification I
am submitting to the jurisdiction of the United States District Court for the District
of South Carolina as to any matter relating to this certification.
Date: [date attachment A signed]
[Signature of Counsel [s/name]]
Signature of Counsel
[Printed Name of Counsel]
Printed Name of Counsel
ATTACHMENT B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Pete A. Lang and Lang Capital,
Case No. 0:16-cv-00087-JMC
Plaintiffs,
vs.
Jeffrey T. Cutter; Ryan J. Borer; Fusion
Investment Advisors, LLC; Coppell Advisory
Solutions, LLC, a/k/a Fusion Capital
Management; PCM Advisory, LLC, d/b/a
Precision Capital Management; and Radical
Promoting, Inc., d/b/a Radical Promotions,
a/k/a Radical, and Cutter Insurance Group, Inc.
ACKNOWLEDGMENT
OF UNDERSTANDING AND
AGREEMENT TO BE BOUND
Defendants.
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 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 violation of the Stipulated Confidentiality Order may
result in penalties for contempt of court.
Name:
[undersigned name]
Job Title:
[Job Title]
Employer:
[Employer]
Business Address:
[Business Address]
Date: [date attachment B signed]
[Signature]
Signature
ATTACHMENT C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Pete A. Lang and Lang Capital,
Case No. 0:16-cv-00087-JMC
Plaintiffs,
vs.
Jeffrey T. Cutter; Ryan J. Borer; Fusion
Investment Advisors, LLC; Coppell Advisory
Solutions, LLC, a/k/a Fusion Capital
Management; PCM Advisory, LLC, d/b/a
Precision Capital Management; and Radical
Promoting, Inc., d/b/a Radical Promotions,
a/k/a Radical, and Cutter Insurance Group, Inc.
CERTIFICATION OF COUNSEL
OF NEED FOR ASSISTANCE
OF PARTY/EMPLOYEE
Defendants.
Pursuant to the Confidentiality Order entered in this action, most particularly the provisions
of Paragraph 6.b.2., I certify that the assistance of [name of assistant [att C]] 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 and 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 named party [employee of named party]. This employee’s job
title is [employee’s job title] and work address is [employee's work address].
Date: [date attachment C signed]
COLUMBIA 1283330v1
[Signature]
Signature
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