Howard v. Allen University et al
Filing
43
CONFIDENTIALITY ORDER granting #42 Motion for Confidentiality Order. Signed by Magistrate Judge Shiva V Hodges on 6/12/2012.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Dr. Walter C. Howard,
Plaintiff,
vs.
Allen University, Dr. Charles E. Young,
and Dr. Pamela M. Wilson,
Defendants.
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C/A No. 3:11-2214-MBS-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; according, it is this 12th day of June, 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 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.
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).
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
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.
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 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.
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.
d.
Copies. All copies, duplicates, extracts, summaries or descriptions (hereinafter
referred to collectively as "copies"), created or produced from 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. This Order shall not apply to
copies of documents obtained by either party prior to this litigation.
If either party has
document(s) obtained prior to this litigation which the other party has marked as
"CONFIDENTIAL," the party will mark such documents as "CONFIDENTIAL" prior to filing
such document(s) with the Court.
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, D.S.C., 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 documents 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 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:
(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 in (¶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 as 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.
June 12, 2012
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
ATTACHMENT A
CERTIFICATION OF COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Dr. Walter C. Howard,
Plaintiff,
vs.
Allen University, Dr. Charles E. Young,
and Dr. Pamela M. Wilson,
Defendants.
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C/A No. 3:11-2214-MBS-SVH
CERTIFICATION OF COUNSEL OF
CONFIDENTIAL DESIGNATION
Documents produced herewith [whose bates numbers are listed below (or) which are listed
on the attached index] have been marked as CONFIDENTIAL subject to the Confidentiality
Order entered in this action which Order is dated June 12, 2012.
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 _____________.
❑
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
Dr. Walter C. Howard,
Plaintiffs,
vs.
Allen University, Dr. Charles E. Young,
and Dr. Pamela M. Wilson,
Defendants.
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C/A No. 3:11-2214-MBS-SVH
Acknowledgment of Understanding
and
Agreement to be Bound
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated_____________ 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:
_______________________________________
Job Title:
_______________________________________
Employer:
_______________________________________
Business Address: ____________________________________
Date: _________________
______________________
Signature
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
Dr. Walter C. Howard,
Plaintiff,
vs.
Allen University, Dr. Charles E. Young,
and Dr. Pamela M. Wilson,
Defendants.
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C/A No. 3:11-2214-MBS-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 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.
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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