Hartford Life and Accident Insurance Company v. Smith et al
ORDER entered 70 Motion for Confidentiality Order Signed by Magistrate Judge Paige J Gossett on 5/20/2011.(jpet, )
IN THE UNITED STATES COURT
FOR THE DISTRICT OF SOUTH CAROLINA
HARTFORD LIFE AND ACCIDENT
Plaintiff and Stakeholder in Interpleader )
WILSON SMITH, JR., LAUREN SMITH)
LARSON SMITH, WILSON SMITH III, )
ARTHUR W. RICH, as Special
Administrator of the Estate of ANN FOX )
Defendants and Claimants in Interpleader)
Case No. 1:10-cv-01955-MBS
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 22 day of March, 2011, 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. 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.
Documents Which May be Designated Confidential. Any party may designate
documents as confidential but only after review of the documents by an attorney 1 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.
Reading Room. Not applicable.
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.
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 (¶ 6.b.) for any purposes whatsoever other than preparing for and
conducting the litigation in which the documents were disclosed (including any appeal of
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.
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.
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:
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 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;
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
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.
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.
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.
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.
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
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.
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.
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 (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
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 9.b. above; or
the court rules that the documents should no longer be designated as
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.
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 (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
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.
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.
IT IS SO ORDERED.
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
May 20, 2011
Columbia, South Carolina
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