Schaap v. Kentucky Higher Education Student Loan Corporation et al

Filing 122

CONFIDENTIALITY ORDER Signed by Magistrate Judge Paige J. Gossett on 2/14/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
KEVIN SCHAAP,
Plaintiff,
v.
KENTUCKY HIGHER EDUCATION
STUDENT LOAN CORPORATION;
KENTUCKY HIGHER EDUCATION
ASSISTANCE AGENCY; EQUIFAX
INFORMATION SERVICES; EXPERIAN
INFORMATION SERVICES; and
TRANSUNION, LLC,
Defendants.

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CASE NO.0:16-cv-2779-CMC-PJG

CONFIDENTIALITY ORDER

Whereas, the parties to this action have stipulated that certain discovery material is and
should be treated as confidential; and whereas the court has determined that the terms set forth
herein are appropriate to protect the respective interests of the parties, the public, and the court; it
is this 14th day of February, 2017, 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
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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. If, at any time, a party or non-party discovers that it produced
or disclosed protected information without designation, it may promptly notify the Receiving
Party and identify with particularity the information to be designated and the level of designation
(the claw-back notification). The Receiving Party may then request substitute production of the
newly-designated information. Within fourteen (14) days of receiving the claw-back notification,
the Receiving Party must (1) certify to the Designating Party it has appropriately marked or, if
substitute production has been requested, destroyed all unmarked copies that it received, made,
and/or distributed; and (2) if it was practicably unable to mark or destroy any information
because disclosures occurred while the Receiving Party was under no duty of confidentiality
under the terms of this Order regarding that information, the Receiving Party must reasonably
provide as much information as practicable to aid the Designating Party in protecting the
information, consistently with the Receiving Party’s attorney-client, work-product, and/or
trial-preparation privileges.
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

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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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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.
5.

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, unless the parties stipulate to an extension. Such designation shall be specific as to
the portions to be protected.
6.

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.
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:
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(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
disclosed2;
(3)

court reporters engaged for depositions and those persons, if any,

specifically engaged for the limited purpose of making photocopies of documents;
(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

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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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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.
7.

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, including any motions, briefs,
pleadings, deposition transcripts, or other papers that incorporate documents or information
subject to this Order, 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.
8.

Greater Protection of Specific Documents.
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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.
9.

Challenges to Designation as Confidential.

designation is subject to challenge.

Any CONFIDENTIAL

The following procedures shall apply to any such

challenge.
a.

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 thirty (30) 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
(3)

the court rules that the documents should no longer be designated as

confidential information.
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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.
Confidential under the terms of this Order.

This work product continues to be

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 all parties in this action and their respective law firms and clients.
IT IS SO ORDERED.

__________________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
February 14, 2017
Columbia, South Carolina

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ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
KEVIN SCHAAP,
Plaintiff,
v.
KENTUCKY HIGHER EDUCATION
STUDENT LOAN CORPORATION;
KENTUCKY HIGHER EDUCATION
ASSISTANCE AGENCY; EQUIFAX
INFORMATION SERVICES; EXPERIAN
INFORMATION SERVICES; and
TRANSUNION, LLC,
Defendants.

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CASE NO.0:16-cv-2779-CMC-PJG

Documents produced herewith [whose bates numbers are listed below (or) which 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, based on that review, that 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.
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

Date:

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 [that 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 attachment A signed]

[Signature of Counsel [s/name]]
Signature of Counsel
[Printed Name of Counsel [A]]
Printed Name of Counsel
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ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
KEVIN SCHAAP,
Plaintiff,
v.
KENTUCKY HIGHER EDUCATION
STUDENT LOAN CORPORATION;
KENTUCKY HIGHER EDUCATION
ASSISTANCE AGENCY; EQUIFAX
INFORMATION SERVICES; EXPERIAN
INFORMATION SERVICES; and
TRANSUNION, LLC,
Defendants.

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CASE NO.0:16-cv-2779-CMC-PJG

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 [att B]]

Job Title:

[Job Title [att B]]

Employer:

[Employer [att B]]

Business Address:

Date:

[Business Address [att B]]

[date attachment B signed]

[Signature [attachment B]]
Signature

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ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
KEVIN SCHAAP,
Plaintiff,
v.
KENTUCKY HIGHER EDUCATION
STUDENT LOAN CORPORATION;
KENTUCKY HIGHER EDUCATION
ASSISTANCE AGENCY; EQUIFAX
INFORMATION SERVICES; EXPERIAN
INFORMATION SERVICES; and
TRANSUNION, LLC,
Defendants.

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CASE NO.0:16-cv-2779-CMC-PJG

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:
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Date:

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 attachment C signed]

[Signature [attachment C]]
Signature

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