Knightner v. Blue Cross and Blue Shield of South Carolina
Filing
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CONFIDENTIALITY ORDER, signed by Magistrate Judge Paige J. Gossett on 3/3/2017. (mwal)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Devon C. Knightner,
Plaintiff,
v.
Blue Cross Blue Shield of South Carolina,
Defendant.
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C.A. No. 3:16-308-JFA-PJG
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 3rd day of March, 2017, 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 by the producing party upon agreement by the parties or after
direction by the Court. This may be effected by the use of a watermark at 50% opacity on the
documents. Documents shall be designated CONFIDENTIAL prior to, or contemporaneously with,
the production or disclosure of the documents. The requesting party shall produce subpoenaed
documents to the other party within seven (7) days of receipt for the other party to determine
whether to designate the documents as CONFIDENTIAL. 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 (¶ 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). 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.
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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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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
(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.
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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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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 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
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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.
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 (¶5.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,
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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: (1) counsel who signed below and their respective law firms; and (2) their respective clients.
IT IS SO ORDERED.
__________________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
March 3, 2017
Columbia, South Carolina
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Devon C. Knightner,
Plaintiff,
v.
Blue Cross Blue Shield of South Carolina,
Defendant.
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C.A. No. 3:16-308-JFA-PJG
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 ________.
❑
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 South Carolina 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:
Signature of Counsel
Printed Name of Counsel
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ATTACHMENT B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Devon C. Knightner,
Plaintiff,
v.
Blue Cross Blue Shield of South Carolina,
Defendant.
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C.A. No. 3:16-308-JFA-PJG
ACKNOWLEDGMENT OF
UNDERSTANDING AND
AGREEMENT TO BE BOUND
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
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ATTACHMENT C
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Devon C. Knightner,
Plaintiff,
v.
Blue Cross Blue Shield of South Carolina,
Defendant.
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)
C.A. No. 3:16-308-JFA-PJG
)
)
) CERTIFICATION OF COUNSEL OF
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NEED FOR ASSISTANCE OF
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PARTY/EMPLOYEE
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Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.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 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
title is
. This employee’s job
and work address is
.
Date:
Signature
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