Mack v. Wal-Mart Stores Inc
Filing
24
CONFIDENTIALITY ORDER. Signed by Magistrate Judge Thomas E Rogers, III on 10/28/2014. (dsto, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
BARBARA J. MACK
Plaintiff,
vs.
WAL-MART STORES EAST, LP
Defendant
)
)
)
)
)
)
)
)
)
Civil Action No. 3:14-CV-2179-CMC-TER
Consent 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 28th day of October, 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 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.
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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, medical, or health information, trade secrets, pricing formulas,
prospective inventory management programs, customer-related information, proprietary human
resources or business information, compensation information, policies, procedures, training
materials, 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.
Designation of Certain Discovery Material as “ATTORNEYS’ EYES
ONLY.” A party may designate Discovery Material as “ATTORNEYS’ EYES ONLY” if such
Discovery Material contains particularly sensitive confidential information that the producing
party believes in good faith cannot be disclosed without threat of competitive injury, because
such Discovery Material contains proprietary or commercially sensitive information. Such
Discovery Material shall be so identified at the time of service of such Discovery Material by
including on each page the legend “ATTORNEYS’ EYES ONLY.” This designation shall be
used as sparingly as possible. Any document, material, or information designated by a party as
“ATTORNEYS’ EYES ONLY” must be reviewed by an attorney. The designation of any
document, material, or information as “ATTORNEYS’ EYES ONLY,” in the manner described
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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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above, shall constitute a certification by the attorney reviewing the material and making such
designation that he or she in good faith believes the material deserves this heightened level of
protection under Fed. R. Civ. P. 26(c)(1)(G) and shall be used sparingly.
5.
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. Deposition
testimony shall be protected during the seven-day notice period referenced in this paragraph.
6.
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 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:
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(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.
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
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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.
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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.
7.
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.
8.
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.
9.
Challenges to Designation as Confidential. Any CONFIDENTIAL designation
is subject to challenge.
The following procedures shall apply to any such challenge.
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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 thirty (30) 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.
10.
Treatment on Conclusion of Litigation.
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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. Upon request of the producing party,
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.
11.
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.
12.
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
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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.
13. Pursuant to FRE 502 (d) and (e), the parties agree to and the Court orders protection
of privileged and otherwise protected Documents against claims of waiver (including as against
third parties and in other federal and state proceedings) as follows:
(a)
The disclosure or production of Documents by a Producing Party subject
to a legally recognized claim of privilege, including without limitation the
attorney-client privilege and the work-product doctrine, to a Receiving
Party, shall in no way constitute the voluntary disclosure of such
Document.
(b)
The inadvertent disclosure or production of any Document in this action
shall not result in the waiver of any privilege, evidentiary protection or
other protection associated with such Document as to the Receiving Party
or any third parties, and shall not result in any waiver, including subject
matter waiver, of any kind.
(c)
If, during the course of this litigation, a party determines that any
Document produced by another party is or may reasonably be subject to a
legally recognizable privilege or evidentiary protection (“Protected
Document”):
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(i)
the Receiving Party shall: (A) refrain from reading the Protected
Document any more closely than is necessary to ascertain that it is
privileged or otherwise protected from disclosure;
(B)
immediately notify the Producing Party in writing that it has
discovered Documents believed to be privileged or protected; (C)
specifically identify the Protected Documents by Bates number
range or hash value, and, (D) within ten (10) days of discovery by
the Receiving Party, return, sequester, or destroy all copies of such
Protected Documents, along with any notes, abstracts or
compilations of the content thereof. To the extent that a Protected
Document has been loaded into a litigation review database under
the control of the Receiving Party, the Receiving Party shall have
all electronic copies of the Protected Document extracted from the
database. Where such Protected Documents cannot be destroyed
or separated, they shall not be reviewed, disclosed, or otherwise
used by the Receiving Party.
Notwithstanding, the Receiving
Party is under no obligation to search or review the Producing
Party’s Documents to identify potentially privileged or work
product Protected Documents.
(ii)
If the Producing Party intends to assert a claim of privilege or other
protection over Documents identified by the Receiving Party as
Protected Documents, the Producing Party will, within ten (10)
days of receiving the Receiving Party’s written notification
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described above, inform the Receiving Party of such intention in
writing and shall provide the Receiving Party with a log for such
Protected Documents that is consistent with the requirements of
the Federal Rules of Civil Procedure, setting forth the basis for the
claim of privilege or other protection. In the event that any portion
of a Protected Document does not contain privileged or protected
information, the Producing Party shall also provide to the
Receiving Party a redacted copy of the document that omits the
information that the Producing Party believes is subject to a claim
of privilege or other protection.
(d)
If, during the course of this litigation, a party determines it has produced a
Protected Document:
(i)
the Producing Party may notify the Receiving Party of such
inadvertent production in writing, and demand the return of such
documents. Such notice shall be in writing, however, it may be
delivered orally on the record at a deposition, promptly followed
up in writing. The Producing Party’s written notice will identify
the Protected Document inadvertently produced by bates number
range or hash value, the privilege or protection claimed, and the
basis for the assertion of the privilege and shall provide the
Receiving Party with a log for such Protected Documents that is
consistent with the requirements of the Federal Rules of Civil
Procedure, setting forth the basis for the claim of privilege or other
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protection.
In the event that any portion of the Protected
Document does not contain privileged or protected information,
the Producing Party shall also provide to the Receiving Party a
redacted copy of the Document that omits the information that the
Producing Party believes is subject to a claim of privilege or other
protection.
(ii)
The Receiving Party must, within ten (10) days of receiving the
Producing Party’s written notification described above, return,
sequester, or destroy the Protected Document and any copies,
along with any notes, abstracts or compilations of the content
thereof. To the extent that a Protected Document has been loaded
into a litigation review database under the control of the Receiving
Party, the Receiving Party shall have all electronic copies of the
Protected Document extracted from the database.
(e)
To the extent that the information contained in a Protected Document has
already been used in or described in other documents generated or
maintained by the Receiving Party prior to the date of receipt of written
notice by the Producing Party as set forth in paragraphs (c)(ii) and (d)(i),
then the Receiving Party shall sequester such documents until the claim
has been resolved.
If the Receiving Party disclosed the Protected
Document before being notified of its inadvertent production, it must take
reasonable steps to retrieve it.
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(f)
The Receiving Party’s return, sequestering or destruction of Protected
Documents as provided herein will not act as a waiver of the Requesting
Party’s right to move for the production of the returned, sequestered or
destroyed documents on the grounds that the documents are not, in fact,
subject to a viable claim of privilege or protection.
However, the
Receiving Party is prohibited and estopped from arguing that:
(i)
the disclosure or production of the Protected Documents acts as a
waiver of an applicable privilege or evidentiary protection;
(ii)
the disclosure of the Protected Documents was not inadvertent;
(iii)
the Producing Party did not take reasonable steps to prevent the
disclosure of the Protected Documents; or
(iv)
the Producing Party failed to take reasonable or timely steps to
rectify the error.
(g)
Either party may submit Protected Documents to the Court under seal for a
determination of the claim of privilege or other protection. The Producing
Party shall preserve the Protected Documents until such claim is resolved.
The Receiving Party may not use the Protected Documents for any
purpose absent this Court’s Order.
(h)
Upon a determination by the Court that the Protected Documents are
protected by the applicable privilege or evidentiary protection, and if the
Protected Documents have been sequestered rather than returned or
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destroyed by the Receiving Party, the Protected Documents shall be
returned or destroyed within 10 (ten) days of the Court’s order. The Court
may also order the identification by the Receiving Party of Protected
Documents by search terms or other means.
(i)
Nothing contained herein is intended to, or shall serve to limit a party’s
right to conduct a review of documents, data (including electronically
stored information) and other information, including without limitation,
metadata, for relevance, responsiveness or the segregation of privileged or
protected information before such information is produced to another
party.
(j)
By operation of the parties’ agreement and Court Order, the parties are
specifically afforded the protections of FRE 502 (d) and (e).
14.
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.
s/Thomas E. Rogers, III
United States Magistrate Judge
October 28, 2014
Florence, South Carolina
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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
BARBARA J. MACK
Plaintiff,
vs.
WAL-MART STORES EAST, LP
Defendant
)
)
)
)
)
)
)
)
Civil Action No. 3:14-CV-2179-CMC-TER
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 subject to the
Confidentiality Order entered in this action which Order is dated [confidentiality order date].
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 [District Court Bar #].
❑
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 [state in which I practice most]
where my Bar number is [that state's Bar #]. 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: [date attachment A signed]
[Signature of Counsel [s/name]]
Signature of Counsel
[Printed Name of Counsel [A]]
Printed Name of Counsel
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ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
BARBARA J. MACK
Plaintiff,
vs.
WAL-MART STORES EAST, LP
Defendant
)
)
)
)
)
)
)
)
)
Civil Action No. 3:14-CV-2179-CMC-TER
Acknowledgment of Understanding
and
Agreement to be Bound
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated [confidentiality order date], 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:
[undersigned name [att B]]
Job Title:
[Job Title [att B]]
Employer:
[Employer [att B]]
Business Address:
[Business Address [att B]]
Date: [date attachment B signed]
[Signature [attachment B]]
Signature
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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
BARBARA J. MACK
)
)
Plaintiff,
)
vs.
)
WAL-MART STORES EAST, LP
)
)
Defendant
)
)
___________________________________ )
Civil Action No. 3:14-CV-2179-CMC-TER
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 6.b.2., I certify that the assistance of [name of assistant [att C]] 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 [employee of named party]. This employee’s job
title is [employee's job title] and work address is [employee's work address].
Date: [date attachment C signed]
[Signature [attachment C]]
Signature
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