Snell v. Wells Fargo Bank NA
Filing
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CONFIDENTIAL ORDER re 24 Motion for Confidentiality Order. Signed by Magistrate Judge Shiva V Hodges on 4/6/2012.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
RICO M. SNELL,
Plaintiff,
vs.
WELLS FARGO BANK, NA, D/B/A
WACHOVIA BANK, A DIVISION OF
WELLS FARGO BANK, NA,
Defendant.
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C/A No.: 3:11-925-CMC-SVH
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 this 6th day of April, 2012, 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, or confidential research, development, or
commercial information. The certification shall be made concurrently with the disclosure of the
documents, using the form attached 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 (¶ 5b) 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
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acknowledgment (in the form attached as Attachment B), 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;1
(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. Counsel shall maintain a record of those persons, including employees
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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), counsel shall complete a
certification in the form of Attachment C. Counsel shall retain the certification together with the
form signed by the party or employee.
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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” 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 with
the Court any material that is subject to protection under this Order, 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 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 to 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.
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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 in
paragraph 8(b) above; or
(3)
the Court rules that the documents should no longer be designated
as confidential information.
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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 (¶ 5d) shall be returned to the
producing party unless: (1) the document has been entered as evidence 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
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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.
April 6, 2012
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
RICO M. SNELL,
Plaintiff,
vs.
WELLS FARGO BANK, NA, D/B/A
WACHOVIA BANK, A DIVISION OF
WELLS FARGO BANK, NA,
Defendant.
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Civil Action No. 3:11-cv-00925-CMC-SVH
CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION AS
CONFIDENTIAL
Documents produced herewith (whose bates numbers are listed on the attached
index) have been marked as CONFIDENTIAL subject to the Confidentiality Order entered in
this action on April 6, 2012.
By signing below, I certify 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.
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 10110.
Date: ___________________
Signature of Counsel
Printed Name of Counsel
ATTACHMENT B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
RICO M. SNELL,
Plaintiff,
vs.
WELLS FARGO BANK, NA, D/B/A
WACHOVIA BANK, A DIVISION OF
WELLS FARGO BANK, NA,
Defendant.
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Civil Action No. 3:11-cv-00925-CMC-SVH
ACKNOWLEDGMENT OF
UNDERSTANDING AND AGREEMENT
TO BE BOUND
The undersigned hereby acknowledges that he or she has read the Confidentiality
Order dated April 6, 2012, 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 a violation of the Stipulated Confidentiality
Order may result in penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date:
Signature
ATTACHMENT C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
RICO M. SNELL,
Plaintiff,
vs.
WELLS FARGO BANK, NA, D/B/A
WACHOVIA BANK, A DIVISION OF
WELLS FARGO BANK, NA,
Defendant.
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Civil Action No. 3:11-cv-00925-CMC-SVH
CERTIFICATION OF COUNSEL OF
NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of ¶ 5b2, 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.
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.
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 a named party. This employee’s job title is
________ and his/her work address is ______________________.
Date:
Signature
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