Ivey v. SCANA Corporation et al
Filing
29
CONFIDENTIALITY ORDER granting 26 Joint MOTION for Confidentiality Order by SCANA Corporation, SCANA Corporation Retirement Plan, SCANA Services Inc. Signed by Magistrate Judge Shiva V Hodges on 11/21/2016. (mwal)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Donald L. Ivey,
C/A No.: 3:16-467-MGL-SVH
Plaintiff,
v.
CONFIDENTIALITY ORDER
SCANA Corporation, SCANA Services,
Inc., and the SCANA Corporation
Retirement Plan,
Defendants.
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 21st day of November, 2016, 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.
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,
1
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
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.
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
(l)-(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:
hac vice admission. By signing the certification, counsel submits to the jurisdiction of this court in regard to the
certification.
(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 disclosed;2
(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 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
2
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.
(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.
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.
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.
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, 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.
November 21, 2016
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Donald L. Ivey,
Civil Action No.: 3:16-cv-467-MGL-SVH
Plaintiff,
v.
SCANA Corporation, SCANA Services,
Inc., and the SCANA Corporation
Retirement Plan,
Defendants.
ATTACHMENT A
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 November 21, 2016.
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 __________ 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.
This _____ day of _________, 2016
Respectfully submitted,
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Donald L. Ivey,
Civil Action No.: 3:16-cv-467-MGL-SVH
Plaintiff,
v.
SCANA Corporation, SCANA Services,
Inc., and the SCANA Corporation
Retirement Plan,
Defendants.
ATTACHMENT B
ACKNOWLEDGEMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated November 21, 2016, 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:
[undersigned name [att B]]
[Job Title [att B]]
[Employer [att B]]
[Business Address [att B]]
Date:
Signature
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Donald L. Ivey,
Civil Action No.: 3:16-cv-467-MGL-SVH
Plaintiff,
v.
SCANA Corporation, SCANA Services,
Inc., and the SCANA Corporation
Retirement Plan,
Defendants.
ATTACHMENT C
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 5.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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