Allied World Assurance Company (US) Inc v. Ahepa National Housing Corporation et al
Filing
121
CONFIDENTIALITY ORDER granting 120 Consent MOTION for Confidentiality Order. Signed by Honorable Joseph F. Anderson, Jr. on 05/06/2014.(bshr, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Allied World Assurance Company (U.S.), Inc.,
C/A No. 3:13-cv-00354-JFA
Plaintiff,
vs.
CONFIDENTIALITY
ORDER
AHEPA National Housing Corporation;
AHEPA Affordable Housing Management
Company, Inc., d/b/a AHEPA Management
Company, Inc.; AHEPA 242, Inc.; AHEPA
284 III, Inc.; and AHEPA 284, IV, Inc.,
Defendants.
Whereas, the parties to this action (“parties”), have stipulated that certain discovery material
is and should be treated as confidential, and have requested that the court enter a confidentiality
order; and whereas 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 this 6th day of May,
2014, 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 except for documents
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produced for inspection under the “Reading Room” provisions set forth in paragraph 4 below.
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 (¶ 6.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
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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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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
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At or before 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.
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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.
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 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
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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 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.
a.
The following procedures shall apply to any such challenge.
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 9.b.
above; or
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(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 (¶6.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 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
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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 representations and
agreements of the parties and for purpose of facilitating discovery. Nothing herein shall be construed
or presented as a judicial determination that a 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
all counsel in this action and their respective law firms and clients.
IT IS SO ORDERED.
May 6, 2014
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Allied World Assurance Company (U.S.), Inc.,
C/A No. 3:13-cv-00354-JFA
Plaintiff,
CERTIFICATION BY COUNSEL
OF DESIGNATION OF INFORMATION
AS CONFIDENTIAL
vs.
AHEPA National Housing Corporation;
AHEPA Affordable Housing Management
Company, Inc., d/b/a AHEPA Management
Company, Inc.; AHEPA 242, Inc.; AHEPA
284 III, Inc.; and AHEPA 284, IV, Inc.,
Defendants.
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 in
this action 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
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Allied World Assurance Company (U.S.), Inc.,
C/A No. 3:13-cv-00354-JFA
Plaintiff,
ACKNOWLEDGMENT OF
UNDERSTANDING AND
AGREEMENT TO BE BOUND
vs.
AHEPA National Housing Corporation;
AHEPA Affordable Housing Management
Company, Inc., d/b/a AHEPA Management
Company, Inc.; AHEPA 242, Inc.; AHEPA
284 III, Inc.; and AHEPA 284, IV, Inc.,
Defendants.
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 of Counsel
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ATTACHMENT C
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Allied World Assurance Company (U.S.), Inc.,
C/A No. 3:13-cv-00354-JFA
Plaintiff,
CERTIFICATION OF NEED FOR
ASSISTANCE OF PARTY/EMPLOYEE
vs.
AHEPA National Housing Corporation;
AHEPA Affordable Housing Management
Company, Inc., d/b/a AHEPA Management
Company, Inc.; AHEPA 242, Inc.; AHEPA
284 III, Inc.; and AHEPA 284, IV, Inc.,
Defendants.
Pursuant to the Confidentiality Order entered in this action, most particularly the provisions of
Paragraph 6.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 that 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 of Counsel
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