Blakely v. Kershaw County Sheriff's Office et al
Filing
63
CONFIDENTIALITY ORDER granting 62 Consent Motion for Confidentiality Order. Signed by Honorable Joseph F Anderson, Jr on 07/15/2011.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
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Plaintiff,
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v.
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Kershaw County Sheriff’s Office, Stephen D.
McCaskill in his capacity as Sheriff of Kershaw )
County, Tyrell Coleman, William Sowell, South )
Carolina Department of Natural Resources, John )
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E. Frampton, in his capacity as the Director of
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the South Carolina Department of Natural
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Resources and Gregg Lowery,
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Defendants.
______________________________________ )
Deloris Blakely, As Personal Representative of
the Estate of Lori Jean Ellis,
Civil Action Number: 3:10-cv-707-JFA
CONFIDENTIALITY ORDER
Whereas, the parties to this action (“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 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 attorney who has, in
good faith, determined that the documents contain information protected from disclosure by
statute, sensitive personal information, trade secrets, law enforcement, or confidential research,
development, or commercial information.
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 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 responsible party or counsel has advised the third party of the
existence and terms of this Order, and that they are 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 that
the individual party or employee’s assistance is necessary to the conduct of the
litigation in which the information is disclosed;
(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.
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.
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.
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 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 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. 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 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.
July 15, 2011
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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