American Modern Select Insurance Company v. Crain et al

Filing 29

CONSENT CONFIDENTIALITY ORDER; granting 28 Motion for Confidentiality Order. Signed by Honorable J Michelle Childs on 3/25/2015.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA,
COLUMBIA DIVISION
AMERICAN MODERN SELECT
INSURANCE COMPANY,
Plaintiff,
vs.
CAROL CRAIN and
ARCHIE L. TODD, III,
Defendants.
ARCHIE L. TODD, III,
Plaintiff,
v.
AMERICAN MODERN SELECT
INSURANCE COMPANY,
Defendant,

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C/A No.: 3:14-cv-2952-JMC

CONSENT
CONFIDENTIALITY
ORDER

Whereas, the parties to this Consent Confidentiality Order (the “Parties” or
“Party” as the context dictates), have agreed and stipulated that certain discovery
material is and should be treated in the above-captioned litigation as confidential, and
have agreed and stipulated to the terms of this Consent Confidentiality Order;
accordingly, it is this 24th day of March, 2015, therefore ORDERED:
1.

Scope.

All documents produced by the Parties in the course of

discovery, all of the Parties’ respective responses to discovery requests, all deposition
testimony and deposition exhibits, and any other materials which may be subject to
discovery (collectively the “Documents”), whether produced directly form one or more of

the Parties hereto or obtained by one of the Parties hereto from third-parties not directly
involved in this litigation, shall be subject to this Consent Confidentiality 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 being CONFIDENTIAL shall not be deemed a waiver, in whole or in part,
of the right to subsequently designate documents as CONFIDENTIAL as otherwise
allowed by this Consent Confidentiality Order. Documents produced in advance of
the issuance of this Consent Confidentiality Order may subsequently be designated
CONFIDENTIAL pursuant to the terms of this Consent Confidentiality Order within
thirty (30) days of entry of this Consent Confidentiality 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 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 (7) business days after receipt of the deposition transcript. Such designation as
CONFIDENTIAL shall be specific as to the portions to be protected.
5.

Protection of Confidential Material.
a.

General Protections.

Documents designated CONFIDENTIAL

under this Confidentiality 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
Consent Confidentiality 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 Consent

Confidentiality Order and agrees to be 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 Consent Confidentiality Order:
(1)

counsel and employees of counsel for the Parties who have
responsibility for the preparation and trial of this litigation;

(2)

the Parties and employees of a Party to this Consent
Confidentiality 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 this
litigation in which the information is disclosed;

(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

(collectively

the

“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 written consent of the producing
Party or upon subsequent order of this District 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
Consent Confidentiality 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 Consent Confidentiality Order.
d.

Copies.

All

copies,

duplicates,

extracts,

summaries

or

descriptions (collectively the “copies”), of documents designated as
CONFIDENTIAL under this Consent Confidentiality 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 Consent Confidentiality Order.

6.

Filing of Confidential Materials.

In the event a Party seeks to file

any material that is subject to protection under this Consent Confidentiality Order with
this District 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 District of South Carolina Local Civil
Rule 5.03 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 this District 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 Consent Confidentiality Order shall be

construed as a prior directive to the Clerk of Court of this District Court to allow any
document be filed under seal.

The Parties understand and acknowledge that

documents may be filed under seal only with the permission of this District Court after
proper motion pursuant to DSC Local Civil Rule 5.03.

7.

Greater Protection of Specific Documents.

No

Party

may

withhold information and/or documentation from discovery on the ground that it requires
protection greater than that afforded by this Consent Confidentiality Order unless the
Party moves for an order providing such special protection.
8.

Challenges to Designation as Confidential.

Any designation of

a document, etc. as CONFIDENTIAL is subject to challenge by any non-producing
Party. 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 Consent Confidentiality 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 so
designating the documents as CONFIDENTIAL as set forth
in Paragraph 9.b. above; or
(3)

this District 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

Consent Confidentiality Order restricting the use of documents
designated CONFIDENTIAL shall continue to be binding after the
conclusion of this litigation unless otherwise agreed by the Parties
or ordered by this District Court.
b.

Return of CONFIDENTIAL Documents.

Within

thirty

(30)

days after the conclusion of this litigation, including the conclusion
of any appeal, all documents treated and designated as
CONFIDENTIAL under this Consent Confidentiality Order,
including copies as defined above (Paragraph 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 Consent Confidentiality 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

Consent

Confidentiality

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 Consent Confidentiality Order.

Nevertheless, this

Consent Confidentiality 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 Consent Confidentiality Order is

entered based on the representations and agreements of the Parties and for the
purpose of facilitating discovery under both the Federal Rules of Civil Procedure and the
District of South Carolina Local Civil Rules.

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),
FRCivP, or otherwise until such time as a document-specific ruling shall have been
made.
12.

Persons Bound.

This Consent Confidentiality 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/J. Michelle Childs
J. MICHELE CHILDS
UNITED STATES DISTRICT JUDGE

March 24, 2015
Columbia, South Carolina

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
AMERICAN MODERN SELECT
INSURANCE COMPANY,
Plaintiff,
vs.
CAROL CRAIN and
ARCHIE L. TODD, III,
Defendants.
ARCHIE L. TODD, III,
Plaintiff,
v.
AMERICAN MODERN SELECT
INSURANCE COMPANY,
Defendant,

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C/A No.: 3:14-cv-2952-JMC

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 Consent Confidentiality Order entered in the above-captioned action
which Consent Confidentiality Order is dated [confidentiality order date].

By signing below, I am certifying that I have personally reviewed the marked

documents and believe, based on my review, that the documents are properly subject to
protection under the terms of Paragraph 3 of the Consent 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 I certify that I 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)

Dated:___________________________

ATTACHMENT B

ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA,
COLUMBIA DIVISION
AMERICAN MODERN SELECT
INSURANCE COMPANY,
Plaintiff,
vs.
CAROL CRAIN and
ARCHIE L. TODD, III,
Defendants.
ARCHIE L. TODD, III,
Plaintiff,
v.
AMERICAN MODERN SELECT
INSURANCE COMPANY,
Defendant,

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C/A No.: 3:14-cv-2952-JMC

ACKNOWLEDGMENT
OF UNDERSTANDING
AND AGREEMENT
TO BE BOUND

The undersigned hereby acknowledges that he or she (a) has read the Consent
Confidentiality Order dated __________________ and issued by this District Court in
the above captioned action, (b) understands the terms, conditions, and prohibitions,
thereof and therein, and (c) agrees to be bound by such terms, conditions, and
prohibitions. The undersigned further agrees to submit to the jurisdiction of the United
States District Court for the District of South Carolina, Columbia Division, in matters

relating to the Consent Confidentiality Order and understands that the terms,
conditions, and prohibitions of said Consent Confidentiality Order obligate him or 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 Consent Confidentiality
Order may result in, among other things, penalties for being in contempt of this District
Court.

Name:
Job Title:

_____________________________
(Printed)
_____________________________

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
AMERICAN MODERN SELECT
INSURANCE COMPANY,
Plaintiff,
vs.
CAROL CRAIN and
ARCHIE L. TODD, III,
Defendants.
ARCHIE L. TODD, III,
Plaintiff,
v.
AMERICAN MODERN SELECT
INSURANCE COMPANY,
Defendant,

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C/A No.: 3:14-cv-2952-JMC

CERTIFICATION OF
COUNSEL OF NEED
FOR ASSISTANCE
OF PARTY/EMPLOYEE

Pursuant to the Consent Confidentiality Order entered in this action, dated
__________________, 2015, 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 which has been designated as
CONFIDENTIAL.
I have explained the terms of the Consent 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