Companion Property and Casualty Insurance Company v. US Bank NA

Filing 124

CONSENT CONFIDENTIALITY ORDER; granting 123 Motion for Confidentiality Order. Signed by Honorable J Michelle Childs on 6/9/2016.(asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
COMPANION PROPERTY AND CASUALTY )
)
INSURANCE COMPANY (n/k/a SUSSEX
)
INSURANCE COMPANY),
)
Plaintiff,
)
)
v.
)
)
U.S. BANK NATIONAL ASSOCIATION,
)
)
Defendant
)
Third-Party Plaintiff,
)
)
v.
)
)
REDWOOD REINSURANCE SPC, LTD.,
)
SOUTHPORT LANE ADVISORS,
)
SOUTHPORT SPECIALTY FINANCE
)
ADMINISTRATIVE AGENCY SERVICES,
)
and ALEXANDER CHATFIELD BURNS,
)
)
Third-Party Defendants.
)

Civil Action No.: 3:15-cv-1300-JMC

CONSENT
CONFIDENTIALITY ORDER

Whereas, the parties to this Consent Confidentiality Order (“Parties” or, individually, a
“Party”), have stipulated that certain discovery material is and should be treated as confidential,
9th
and have agreed to the terms of this order; accordingly, it is this ___ day of June, 2016,
ORDERED:
1.

Scope. All documents, information, communications, and data 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 (collectively,
“Documents”) shall be subject to this Order concerning confidential information as set forth
below.

2.

Documents Which May be Designated Confidential. Any person or entity that

produces documents in connection with this action may designate Documents as
CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY but only after review of
the documents by an attorney who has, in good faith, determined that the Documents contain
information protected from disclosure in accordance with the definitions and procedures below:
a.

The “CONFIDENTIAL” designation means that the document contains

information protected from disclosure by statute, sensitive personal information, sensitive
business information, proprietary business information, trade secrets, or confidential research
and development or other commercial information, or other information required by law or
agreement to be kept confidential.
b.

The “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” designation

means that the document contains information or data disclosing either: (1) Nonparties’ medical
information protected by the Health Insurance Portability and Accountability Act (“Confidential
Health Information”); (2) documents related to bank accounts belonging to Nonparties (including
but not limited to account statements, account opening documents, correspondence about the
nonparty account, and financial information provided by nonparties for the purpose of
establishing an account) (“Nonparty Financial Information”).
3.

Form and Timing of Designation.
a.

Documents Produced in Image Format. Confidential Documents

produced in image format shall be so designated by placing or affixing the words
“CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” on each page as to
which confidentiality is claimed, and in a manner which will not interfere with the legibility of
the Document and which will permit complete removal of the CONFIDENTIAL or

2

CONFIDENTIAL-ATTORNEYS’ EYES ONLY designation. Documents produced in image
format shall be designated CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES
ONLY prior to, or contemporaneously with, the production or disclosure of the documents.
Inadvertent or unintentional production of documents produced in image format 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. Given the volume and
sensitivity of the documents to be produced in this case, the parties may mark as
“CONFIDENTIAL” all documents that they produce, and documents so designated will be
subject to this Confidentiality Order. Notwithstanding section 10 below, the parties will meet
and confer in good faith to resolve challenges to the designation of documents so designated.
b.

Confidential Documents Produced in Native Format. Confidential

Documents produced in native format shall include a TIFF slip sheet with the Bates number,
stating that the document is being produced in native format and whether it has been designated
as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY.
c.

Redaction of account numbers and social security number. Any

person or entity may redact all but the last four digits of any bank or financial account number or
any social security number before production, regardless of whether the document containing the
number is designated as Confidential.
4.

Depositions. Portions of depositions shall be deemed CONFIDENTIAL or

CONFIDENTIAL-ATTORNEYS’ EYES ONLY if designated as such when the deposition is
taken or within fourteen (14) business days after receipt of the transcript. Such designation shall
be specific as to the portions to be protected. Until the expiration of the 14-business day period,
the entire deposition will be treated as confidential.

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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 preparing for and
conducting the litigation in which the Documents were disclosed (including any appeal of that
litigation).
b.

Limited Third Party Disclosures for Confidential Information. 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)-(9) below, and then, except as to persons identified in
subparagraphs (1) and (7) below, only after the person to whom disclosure is to be made has
executed an acknowledgment (in the form set forth at Attachment A hereto)
(“Acknowledgement”), that he or she has read and understands the terms of this Order and is
bound by it. Persons identified in subparagraphs (1) and (7) below may receive disclosure of
CONFIDENTIAL material without signing an Acknowledgement. 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)

in-house and outside counsel for the Parties1, and paralegals,

secretaries, and law department employees who directly assist such attorneys with the provision
of legal services and who have responsibility for the preparation and trial of the lawsuit;

1

For purposes of this Confidentiality Order, in-house counsel for Companion Property and
Casualty Insurance Company (n/k/a Sussex Insurance Company) shall be limited to in-house
counsel for Blue Cross and Blue Shield of South Carolina.
4

(2)

Employees and former employees of a Party to this Order where

the employee or former employee is engaged in assisting that Party’s attorneys in the conduct of
the litigation in which the information is disclosed and needs to know about the subject matter of
the Documents to perform that assistance;
(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)

witnesses or deponents and their counsel for purposes of preparing

for depositions or testimony;
(6)

the Court (and any appellate court), persons employed by the

Court, and court reporters transcribing the testimony or argument at a hearing or trial in this
action or any appeal therefrom;
(7)

auditors or insurers of any Party, or any state or federal regulator

or law enforcement agency (“Regulator or Agency”);
(8)

outside providers of document and ESI processing, hosting,

review, production, imaging, and coding services, to the extent reasonably necessary to prepare
for this litigation and trial, including e-Discovery consultants and trial consultants; and
(9)

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.
6.

Protection of “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” Material.

5

a.

General Protections. The Court recognizes that the production of

Nonparty Financial Information, including information related to nonparties that are competitors
of the Parties, may be requested. In accordance with section 2(b), documents containing
Nonparty Financial Information, which are produced, if any, shall be designated
CONFIDENTIAL-ATTORNEYS’ EYES ONLY. To the extent any state or federal law, privateparty contract, or other legal authority (altogether, “Governing Authority”) permits disclosure of
such Nonparty Financial Information pursuant to an order of a Court, this Order shall constitute
compliance with such requirement, provided such documents are designated CONFIDENTIAL –
ATTORNEYS’ EYES ONLY. To the extent any Governing Authority requires a producing party
to obtain a court-ordered subpoena or to give notice or obtain consent, in any form or manner,
from any person or entity before disclosure, the Court finds that, in view of the protections in this
Order provided for the information disclosed, the volume of documents to be produced and the
ongoing oversight of this Court, there is good cause to excuse such requirement, and the Court
hereby orders that the producing party is exempted from obtaining a court-ordered subpoena or
having to notify or obtain consent from any person or entity prior to the disclosure provided that
such documents are designated CONFIDENTIAL-ATTORNEY EYES’ ONLY. To the extent
that any Governing Authority requires that a person or entity be notified prior to disclosure
except where such notice is prohibited by court order, the Court hereby orders, in view of the
protections in this Order provided for the information disclosed, the volume of documents to be
produced and the ongoing oversight of this Court, that producing parties are explicitly prohibited
from providing such notice in this litigation with respect to those documents designated
CONFIDENTIAL-ATTORNEYS’ EYES ONLY. Documents designated CONFIDENTIALATTORNEYS’ EYES ONLY under this Order shall not be used or disclosed by the Parties or

6

counsel for the Parties or any other persons identified below (¶ 6.b.) for any purposes
whatsoever, and with respect to the persons identified below, only to the extent necessary for
preparing for and conducting the litigation in which the Documents were disclosed (including
any appeal of that litigation).
b.

Limited Third Party Disclosures for Confidential-Attorneys Eyes

Only Information. The Parties and counsel for the Parties shall not disclose or permit the
disclosure of any Documents designated CONFIDENTIAL-ATTORNEYS’ EYES ONLY under
the terms of this Order to any other person or entity except as set forth in subparagraphs (1)-(8)
below, and then, except as to persons identified in subparagraphs (1) and (6) below, only after
the person to whom disclosure is to be made has executed an Acknowledgment (in the form set
forth at Attachment A hereto), that he or she has read and understands the terms of this Order
and is bound by it. Persons identified in subparagraphs (1) and (6) below may receive disclosure
of CONFIDENTIAL-ATTORNEYS’ EYES ONLY material without signing an
Acknowledgement. Subject to these requirements, the following categories of persons may be
allowed to review Documents which have been designated CONFIDENTIAL-ATTORNEYS’
EYES ONLY pursuant to this Order:
(1)

in-house and outside counsel for the Parties, and paralegals,

secretaries, and law department employees who directly assist such attorneys with the provision
of legal services, and who have responsibility for the preparation and trial of the lawsuit;
(2)

court reporters engaged for depositions and those persons, if any,

specifically engaged for the limited purpose of making photocopies of documents;
(3)

“Experts” employed by the Parties or counsel for the Parties to

assist in the preparation and trial of the lawsuit;

7

(4)

witnesses or deponents in this action who, on the face of the

material, appear to have authored or received the material, and their counsel for purposes of
preparing for depositions or testimony;
(5)

the Court (and any appellate court), persons employed by the

Court, and court reporters transcribing the testimony or argument at a hearing or trial in this
action or any appeal therefrom;
(6)

auditors or insurers of any Party, or any Regulator or Agency;

(7)

outside providers of document and ESI processing, hosting,

review, production, imaging, and coding services, to the extent reasonably necessary to prepare
for this litigation and trial, including e-Discovery consultants and trial consultants; and
(8)

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.

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. Nothing contained herein shall be considered a determination
that any particular document or category of documents is relevant or should be produced in this
litigation.
7.

Competitors. Subject to paragraphs 5(b)(4) and 6(b)(3) above, no disclosure of

Confidential Information shall be made to any Competitor of the producing party.2 Any expert

2

For purposes of this Confidentiality Order, a “competitor” of Companion, and Companion’s
former parent company Blue Cross and Blue Shield of South Carolina, is any organization or
person providing commercial health, property, general liability, workers’ compensation, and/or
casualty insurance or claims related services, as well as any services directly related to the
issuance or administration of these policies or coverage plans; and a “competitor” of U.S. Bank
is any banking institution that offers trust administration services for commercial entities.
8

witnesses that have been retained by a party on a consulting or testifying basis who are or work
for Competitors shall execute the attached form and agreement concerning their acceptance of
the terms and conditions of this Order, and such document shall be provided to the producing
party upon the disclosure of such expert witnesses, to the extent such expert witnesses are
disclosed. To the extent such witnesses are not disclosed, the producing party shall be provided
with copies of such documents following the completion of this litigation.
8.

Control of Documents. Counsel for the Parties shall take reasonable efforts to

prevent unauthorized disclosure of Documents designated as CONFIDENTIAL or
CONFIDENTIAL-ATTORNEYS’ EYES ONLY 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. If a Party receives a court order or
valid and effective subpoena, interrogatory or similar legal process from a non-governmental or
non-regulatory body that requires disclosure of any documents that have been designated
CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY, before making any
disclosure, that Party must promptly notify the other Party in writing of the order or other legal
process and provide at least fourteen (14) days for the other Party to object before producing the
material or as much time as is reasonable if the time for production is less than 14 days. Nothing
herein shall preclude any Party from disclosing any document, regardless of designation, to any
auditor or insurer of the Party or to any Regulator or Agency. Moreover, nothing herein shall be
construed as requiring any Party to notify the producing Party of disclosure to any auditor,
insurer, Regulator or Agency, provided that the disclosure is consistent with proper disclosure
under the Right to Financial Privacy (“RFPA”), 12 U.S.C. § 3401 et seq., and any other

9

applicable state or federal privacy law if such disclosure were made directly by a financial
institution.
9.

Copies. All copies, duplicates, extracts, summaries or descriptions (hereinafter

referred to collectively as “Copies”), of Documents designated as CONFIDENTIAL or
CONFIDENTIAL-ATTORNEYS’ EYES ONLY under this Order or any portion of such a
Document, shall be immediately affixed with the designation “CONFIDENTIAL” or
“CONFIDENTIAL-ATTORNEYS’ EYES ONLY” if the words do not already appear on the
Copy. All such Copies shall be afforded the full protection of this Order.
10.

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 or CONFIDENTIAL-ATTORNEYS’ EYES ONLY or who produced the
Document in native format; (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 or
CONFIDENTIAL-ATTORNEYS’ EYES ONLY or who produced the Document in native
format 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

10

underlying motion. If a Party who produced a Document in native format believes that the
document should continue to be treated as CONFIDENTIAL or CONFIDENTIALATTORNEYS’ EYES ONLY, then that Party shall make a certification of confidentiality at that
time. 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.
11.

Challenges to Designation. Any CONFIDENTIAL or CONFIDENTIAL-

ATTORNEYS’ EYES ONLY designation is subject to challenge. The following procedures
shall apply to any such challenge.
a.

The burden of proving the necessity of a CONFIDENTIAL or

CONFIDENTIAL-ATTORNEYS’ EYES ONLY designation remains with the Party asserting
confidentiality.
b.

A Party who contends that Documents designated CONFIDENTIAL or

CONFIDENTIAL-ATTORNEYS’ EYES ONLY is inappropriate 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 or produced the Documents in native format 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 or
CONFIDENTIAL-ATTORNEYS’ EYES ONLY designation.
c.

Notwithstanding any challenge to the designation of Documents as

CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY, all material previously
designated CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY shall continue

11

to be treated as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY subject to
the full protections of this Order until one of the following occurs:
(1)

the Party who claims that the Documents are CONFIDENTIAL or

CONFIDENTIAL-ATTORNEYS’ EYES ONLY withdraws such designation in writing;
(2)

the Party who produced the Document in native format

acknowledges in writing that the document should not be treated as CONFIDENTIAL or
CONFIDENTIAL-ATTORNEYS’ EYES ONLY;
(3)

the Party who claims that the Documents are CONFIDENTIAL or

CONFIDENTIAL-ATTORNEYS’ EYES ONLY fails to move timely for an Order designating
the Documents as confidential as set forth in paragraph 11.b. above; or
(4)

the court rules that the Documents should no longer be designated

as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY.
d.

Challenges to the CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’

EYES ONLY designation 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.
12.

Treatment on Conclusion of Litigation.
a.

Order Remains in Effect. All provisions of this Order restricting the use

of Documents designated or presumed CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’
EYES ONLY 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 or CONFIDENTIAL-ATTORNEYS’ EYES ONLY under this Order,

12

including copies as defined above (¶8) 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 or CONFIDENTIAL-ATTORNEYS’ EYES ONLY so long as that work
product does not duplicate verbatim substantial portions of the text of CONFIDENTIAL or
CONFIDENTIAL-ATTORNEYS’ EYES ONLY Documents. This work product continues to be
CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’ EYES ONLY 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 or CONFIDENTIAL-ATTORNEYS’ EYES ONLY
Documents.
13.

Production of Privileged or Otherwise Protected Documents or Materials.
a.

The inadvertent or unintentional production of privileged or otherwise

protected Documents or materials shall not be deemed a waiver or impairment of any claim of
privilege or protection, including, but not limited to, the attorney-client privilege, the protection
afforded to work product materials, the confidentiality protection of this Order, or the subject
matter thereof. Upon receiving notice from the producing Party that privileged or otherwise
protected Documents or materials have been inadvertently or unintentionally produced, the
receiving Party shall promptly return all copies of the designated documents or materials to the
producing Party or, at the election of the Producing party, shall be destroyed. The return or

13

destruction shall not be deemed an admission or concession regarding any claimed privilege or
protection.
b.

The production of privileged or work-product protected Documents or

information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from
discovery in this case or in any other federal or state proceeding. This provision shall be
interpreted consistent with the Federal Rule of Evidence 502.
14.

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.
15.

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 or CONFIDENTIAL-ATTORNEYS’ EYES ONLY
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.
16.

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. If additional parties join or are joined in this action, the newly joined parties shall not
have access to Documents designated as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS’
EYES ONLY until their counsel have executed Attached A and agreed to be bound to the terms
of this Protective Order.

14

IT IS SO ORDERED.
s/J. Michelle Childs
J. MICHELLE CHILDS
UNITED STATES DISTRICT JUDGE
9
June ___, 2016
Columbia, SC

15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
COMPANION PROPERTY AND CASUALTY )
)
INSURANCE COMPANY (n/k/a SUSSEX
)
INSURANCE COMPANY),
)
Plaintiff,
)
)
v.
)
)
U.S. BANK NATIONAL ASSOCIATION,
)
)
Defendant
)
Third-Party Plaintiff,
)
)
v.
)
)
REDWOOD REINSURANCE SPC, LTD.,
)
SOUTHPORT LANE ADVISORS,
)
SOUTHPORT SPECIALTY FINANCE
)
ADMINISTRATIVE AGENCY SERVICES,
)
and ALEXANDER CHATFIELD BURNS,
)
)
Third-Party Defendants.
)

Civil Action No.: 3:15-cv-1300-JMC

ATTACHMENT A:
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 or CONFIDENTIAL-ATTORNEYS’ EYES ONLY solely for the
purposes of the above-captioned action, and not to disclose any such confidential information to
any other person, firm or concern. To the extent the undersigned is employed by a Competitor, as
defined in paragraph 7 of the Confidentiality Order, the undersigned further acknowledges that
disclosure to his or her employer of any such confidential information constitutes a violation of
16

the Confidentiality Order. Similarly, to the extent the undersigned is employed by a Competitor,
as defined in paragraph 7 of the Confidentiality Order, the undersigned further acknowledges and
confirms that his or her employer has sufficient practices and controls in place to ensure that
information provided to the undersigned will not be transferred, communicated, or otherwise
disseminated to other individuals employed by the undersigned’s employer or otherwise used by
the undersigned’s employer for any purpose whatsoever, including but not limited to use by the
undersigned for any reason in any manner (other than for use in this litigation) in the course of
his or her position at his or her employer.
The undersigned acknowledges that violation of the Stipulated Confidentiality Order may
result in penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:

[undersigned name [att A]]
[Job Title [att A]]
[Employer [att A]]
[Business Address [att A]]

Date: [date attachment A signed]

[Signature [attachment A]]
Signature

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