Bonaparte v. Ahava Hospice
Filing
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ORDER granting 11 Joint MOTION for Confidentiality Order. Signed by Magistrate Judge Shiva V Hodges on 3/24/2015. (mwal)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Lenora Bonaparte,
Plaintiff,
v.
Ahava Hospice,
Defendant.
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C/A No.: 3:15-644-TLW-SVH
CONFIDENTIALITY ORDER
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 24th day of March, 2015, ORDERED:
1.
Scope. All documents produced in the course of discovery, all responses to
discovery requests, 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, 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:
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The attorney who reviews the documents and certified 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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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.
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.
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.
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),
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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 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.
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.
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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. Destruction of CONFIDENTIAL Documents. Within ninety (90) 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
destroyed unless the document has been entered as evidence or filed (unless
introduced or filed under seal). Notwithstanding the above requirements to 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
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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 all counsel in this action and their respective law firms and clients.
IT IS SO ORDERED.
March 24, 2015
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
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
LENORA BONAPARTE,
PLAINTIFF,
v.
AHAVA HOSPICE,
DEFENDANT.
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C.A. No. 3:15-CV-00644-TLW-SVH
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 March 24, 2014.
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 by 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:
Signature of Counsel
Printed Name of Counsel
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