U.S. Equal Employment Opportunity Commission v. Akebono Brake Corporation

Filing 39

CONFIDENTIALITY ORDER granting 38 Joint MOTION for Confidentiality Order. Signed by Magistrate Judge Shiva V Hodges on 7/18/2017. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
)
)
)
)
Plaintiff,
)
)
v.
)
)
AKEBONO BRAKE CORPORATION,
)
Defendant/Third Party Plaintiff, )
)
)
v.
)
CAROLINA PERSONNEL SERVICES, )
INC. and CAROLINA INDUSTRIAL )
STAFFING, INC., Successor in Interest for )
)
Carolina Personnel Services, Inc.,
)
)
Third Party Defendants.
)
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

Civil Action No.: 3:16-cv-03545-CMC-SVH

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 18th day of July 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. Documents shall be designated CONFIDENTIAL prior

FPDOCS 32944005.1

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 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. 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).
b.
shall

not

Limited Third Party Disclosures. The parties and counsel for the parties
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)-(6) below, and then only after the person to whom

2
FPDOCS 32944005.1

disclosure is to be made acknowledged that he or she 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;

(3)

Charging Party Clintoria Burnett, who filed EEOC Charge No.

436-2015-00183;1
(4)

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

specifically engaged for the limited purpose of making photocopies of documents;
(5)

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
(6)

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.

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

referred to collectively as “copies”), of documents designated as Confidential under this

1

In the event that any document designated as CONFIDENTIAL by the Defendant or any Third
Party Defendant is shown to Burnett, prior to such disclosure Burnett will execute the
acknowledgement attached hereto as Attachment A.
3
FPDOCS 32944005.1

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 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.

4
FPDOCS 32944005.1

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.

5
FPDOCS 32944005.1

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 except that Plaintiff, the
U.S. Equal Employment Opportunity Commission, shall retain copies of all documents
related to or obtained in the course of the case and shall have no obligation to return or
destroy documents produced hereunder to the extent required to comply with all laws,
orders, and requirements regarding the retention of federal records. 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.

6
FPDOCS 32944005.1

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.

July 18, 2017
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

7
FPDOCS 32944005.1

ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
)
)
)
)
Plaintiff,
)
)
v.
)
)
AKEBONO BRAKE CORPORATION,
)
)
Defendant/Third Party Plaintiff,
)
)
v.
)
CAROLINA PERSONNEL SERVICES, INC. )
and CAROLINA INDUSTRIAL STAFFING, )
INC., Successor in Interest for Carolina )
)
Personnel Services, Inc.,
)
)
Third Party Defendants.
)
U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Civil Action No.: 3:16-cv-03545-CMC-SVH

ACKNOWLEDGMENT OF
UNDERSTANDING
AND
AGREEMENT TO BE BOUND

The undersigned hereby acknowledges that he or she has been informed of the contents of the
Confidentiality Order dated July 18, 2017, 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

8
FPDOCS 32944005.1