Hilex Poly Company LLC et al v. Chicoeco Inc
Filing
29
CONFIDENTIALITY ORDER granting 28 Consent Motion for Confidentiality Order. Signed by Honorable Joseph F Anderson, Jr on 05/31/2011.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
HILEX POLY COMPANY, LLC,
SUPERBAG OPERATING, LTD.,
ADVANCE POLYBAG, INC.,
Plaintiffs,
vs.
CHICOECO, INC., doing business as
CHICOBAG,
Defendants.
________________________________
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Civil Action No. 3:11-CV-116-JFA
CONFIDENTIALITY ORDER
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 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
1
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 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 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.
1
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.
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 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 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.
Documents designated CONFIDENTIAL may be further designated as
ATTORNEYS EYES ONLY if the party making that ATTORNEYS EYES
ONLY designation has a reasonable and good faith basis to withhold the
information disclosed therein from the other party or parties and employees
thereof.
Any document designated ATTORNEYS EYES ONLY, and the
information disclosed therein, shall be disclosed only to outside counsel for the
other party or parties and to the other persons identified in paragraph sections
5(b)(1), (3), (4), (5), and (6). Any document designated ATTORNEYS EYES
ONLY, and the information disclosed therein, shall not be disclosed to another
2
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.
party or parties or to any employee thereof or to any in-house counsel thereof.
Documents designated as ATTORNEYS EYES ONLY shall otherwise be
treated the same as documents designated CONFIDENTIAL as provided
herein.
c.
Control of Documents. Counsel for the parties shall take reasonable
efforts to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL or ATTORNEYS EYES ONLY 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 be
immediately
affixed
with
the
designation
“CONFIDENTIAL”
and
“ATTORNEYS EYES ONLY” (if appropriate) if such designations do 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 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 or ATTORNEYS EYES ONLY 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 or Attorneys Eyes Only.
Any CONFIDENTIAL or ATTORNEYS EYES ONLY designation is subject to
challenge. The following procedures shall apply to any such challenge.
a.
The burden of proving the necessity of a CONFIDENTIAL or
ATTORNEYS EYES ONLY designation remains with the party asserting
confidentiality.
b.
A party who contends that documents designated CONFIDENTIAL or
ATTORNEYS EYES ONLY 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 or ATTORNEYS EYES ONLY designation.
c.
Notwithstanding any challenge to the designation of documents as
confidential, all material previously designated CONFIDENTIAL or
ATTORNEYS EYES ONLY 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.
a.
Treatment on Conclusion of Litigation.
Order Remains in Effect. All provisions of this Order restricting the
use of documents designated CONFIDENTIAL or ATTORNEYS EYES
ONLY 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
designated as CONFIDENTIAL and/or ATTORNEYS EYES ONLY under this
Order, including copies as defined above (¶ 5.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 or ATTORNEYS EYES
ONLY 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 or ATTORNEYS EYES ONLY documents or
information contained therein.
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 or
ATTORNEYS EYES ONLY by counsel is subject to protection under Rule 26(c) of
the Federal Rules of Civil Procedure or otherwise until such time as a documentspecific 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.
May 31, 2011
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
HILEX POLY COMPANY, LLC,
SUPERBAG OPERATING, LTD.,
ADVANCE POLYBAG, INC.,
Plaintiffs,
vs.
CHICOECO, INC., doing business as
CHICOBAG,
Defendants.
________________________________
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Civil Action No. 3:11-CV-116-JFA
CERTIFICATION BY COUNSEL
OF DESIGNATION OF
INFORMATION
AS CONFIDENTIAL
Documents produced herewith [whose bates numbers are listed below (or)
which are listed on the attached index] have been marked as CONFIDENTIAL
and/or ATTORNEYS EYES ONLY subject to the Confidentiality Order entered in
this action which Order is dated _________________, 2011.
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 Paragraphs 3 or 5 of the Confidentiality Order, as
applicable.
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
___________.
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
________________ where my Bar number is ________. 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
_____________________________
Signature of Counsel
____________________________
Printed Name of Counsel
ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
HILEX POLY COMPANY, LLC,
SUPERBAG OPERATING, LTD.,
ADVANCE POLYBAG, INC.,
Plaintiffs,
vs.
CHICOECO, INC., doing business as
CHICOBAG,
Defendants.
________________________________
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Civil Action No. 3:11-CV-116-JFA
ACKNOWLEDGMENT OF
UNDERSTANDING
AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he or she has read the
Confidentiality Order dated May 31, 2011, 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
and/or ATTORNEYS EYES ONLY solely for the purposes of the above-captioned
action, and not to disclose any such confidential information to any other person, firm,
or concern, as required by the Confidentiality Order.
The undersigned acknowledges that violation of the Confidentiality Order may
result in penalties for contempt of court.
________________________________
Signature
__________________________________
Name
________________________________
Employer
__________________________________
Job
ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
HILEX POLY COMPANY, LLC,
SUPERBAG OPERATING, LTD.,
ADVANCE POLYBAG, INC.,
Plaintiffs,
vs.
CHICOECO, INC., doing business as
CHICOBAG,
Defendants.
________________________________
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Civil Action No. 3:11-CV-116-JFA
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
____________________________ 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 and/or ATTORNEYS
EYES ONLY.
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:
A named party;
An employee of named party _________________________________.
This employee’s job title is ______________________________ and
work address is ______________________________________.
_________________________
Date
___________________________
Signature
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