Lundy v. Charleston County
Filing
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CONSENT CONFIDENTIALITY ORDER. Signed by Magistrate Judge Kaymani D. West on 2/17/2017. (hcic, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Donald B. Lundy,
Plaintiff,
v.
Charleston County,
Defendant.
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C.A. No.: 2:16-cv-03372-CWH-KDW
CONSENT CONFIDENTIALITY
ORDER
Whereas, the parties to this Consent Confidentiality Order (Aparties@), 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 17th 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 Adocuments@) 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 ACONFIDENTIAL@ 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.
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 as “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 (& 5.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
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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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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:
(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;
(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
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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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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 Acopies@), of documents designated as Confidential under
this Order or any portion of such a document, shall be immediately affixed with the
designation ACONFIDENTIAL@ 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.
Challenges to Designation as Confidential. Any CONFIDENTIAL designation
is subject to challenge. 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 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
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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 8.b. above;
or
(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.
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. 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 upon the written request of 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
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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.
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February 17, 2017
Florence, South Carolina
Kaymani D. West
United States Magistrate Judge
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ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Donald B. Lundy,
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Plaintiff,
v.
Charleston County,
Defendant.
C.A. No.: 2:16-cv-03372-CWH-KDW
Certification by Counsel of Designation of
Information as Confidential
)
Documents produced herewith whose bates numbers are listed below 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.
“
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:
[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
CHARLESTON DIVISION
Donald B. Lundy,
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Plaintiff,
v.
Charleston County,
Defendant.
C.A. No.: 2:16-cv-03372-CWH-KDW
Acknowledgment of Understanding and
Agreement to be Bound
)
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 [attachment B]]
Job Title:
[Job Title [attachment B]]
Employer:
[Employer [attachment B]]
Business Address:
Date:
[Business Address [attachment 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
CHARLESTON DIVISION
Donald B. Lundy,
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Plaintiff,
v.
Charleston County
Defendant.
C.A. No.: 2:16-cv-03372-CWH-KDW
Certification of Counsel of Need for
Assistance of Party/Employee
)
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.b.2., I certify that the assistance of [name of assistant [attachment 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 AAcknowledgment 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:
“
“
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]]
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