Johnson v. South Carolina Law Enforcement Training Council et al

Filing 33

CONFIDENTIALITY ORDER. Signed by Magistrate Judge Paige J Gossett on 9/13/2011. (jpet, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION

Martha E. Johnson,
Plaintiff,
v.
South Carolina Law Enforcement Training
Council, South Carolina Criminal Justice
Academy and Hubert F. Harrell, D.
Michael Lanier and Randall W. King, in
their individual capacities,
Defendants.

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Civil Action No. 3:10-02859-MBS-PJG

CONFIDENTIALITY ORDER

Whereas, the Plaintiff has requested that certain discovery material be treated as
confidential, and having requested that the Court enter a confidentiality order, and Defendants
having objected to the proposed confidentiality order; now then, after a hearing regarding the
issues raised by the Plaintiff and Defendants with regards the issuance of a confidentiality order
in this case, 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; 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 called “documents”) shall be subject
to this Order concerning confidentiality 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

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removal of the CONFIDENTIAL designation. Documents shall be designated CONFIDENTIAL
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 the 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, or by application of the attorney-client privilege or
attorney work product doctrines. 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.
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,
except as identified in Paragraph 5.b below, for any purposes whatsoever other than preparing
for or conducting the litigation in which the documents were disclosed (including any appeal of

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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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that litigation), with the exception that such confidential documents may be disclosed for
purposes outside of this litigation as are set forth in Paragraph 12.
b.

Limited Third Party Disclosures. The parties and counsel for the parties

shall not disclose or permit the disclosures 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
acknowledgement (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. The preceding provision does not apply to
a disclosure of Confidential documents made pursuant to Paragraph 12 below. Subject to these
requirements, the following categories of persons may be allowed to review documents which
have been designated as 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 the lawsuit; and

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At or prior to the time such party or employee completes his or her acknowledgement 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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(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, or in accordance with the
provisions of Paragraph 12 below.
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 immediately be 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 proceeding 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

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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 material previously designated CONFIDENTIAL shall continue to be treated as
subject to the full protections of this Order until one of the following occurs:

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(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. 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

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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.

Disclosure for Purposes Outside of the Instant Litigation. Notwithstanding any

other provision or term of this Order, either party may disclose documents designated as
CONFIDENTIAL to the Commission on Lawyer Conduct, the Office of Disciplinary Counsel, or
to a law enforcement entity, if the disclosing party believes that such a duty of disclosure is
mandated by the provisions of Rule 8.3(b) of the South Carolina Rules of Professional Conduct,
or if the disclosing party believes that the documents constitute evidence of criminal activity.
Representatives of the Commission on Lawyer Conduct, the Office of Disciplinary Counsel, or a
law enforcement entity are not required to sign the acknowledgement set forth at Attachment B
prior to receiving the disclosed documents.

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13.

Persons Bound. This Order shall take effect when entered and shall be binding

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

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
September 13, 2011
Columbia, South Carolina

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