Portee v. Invista

Filing 27

CONFIDENTIALITY ORDER granting 26 Motion for Confidentiality Order. Signed by Magistrate Judge Shiva V Hodges on 9/13/2012.(abuc)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
PATSY PORTEE,
Plaintiff,
vs.
INVISTA S.à r.l., a Subsidiary of Koch
Industries, Inc.,
Defendant.

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C/A No. 3:12-534-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 13th day of September, 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.
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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
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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.

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

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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.
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
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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 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.

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 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 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.

designation is subject to challenge.

Any CONFIDENTIAL

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 (¶ 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
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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.

September 13, 2012
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
PATSY PORTEE,
Plaintiff,
vs.
INVISTA S.à r.l., a Subsidiary of Koch
Industries, Inc.,
Defendant.

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C/A No. 3:12-534-CMC-SVH

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 __________________.
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

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ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
PATSY PORTEE,
Plaintiff,
vs.
INVISTA S.à r.l., a Subsidiary of Koch
Industries, Inc.,
Defendant.

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C/A No. 3:12-534-CMC-SVH

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 abovecaptioned 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

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ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
PATSY PORTEE,
Plaintiff,
vs.
INVISTA S.à r.l., a Subsidiary of Koch
Industries, Inc.,
Defendant.

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C/A No. 3:12-534-CMC-SVH

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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