Beazer Homes Corp v. National Grange Mutual Insurance Company et al

Filing 258

CONSENT PROTECTIVE ORDER BETWEEN BEAZER HOMES CORP AND NATIONWIDE MUTUAL FIRE INSURANCE COMPANY. Signed by Honorable R Bryan Harwell on 1/8/2013. (hcic, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Case No.: 4:10-cv-02419-RBH
)
)
Plaintiff,
)
)
v.
)
CONSENT PROTECTIVE ORDER
) BETWEEN BEAZER HOMES CORP.
HARTFORD FIRE INSURANCE
)
COMPANY; NATIONWIDE MUTUAL
AND NATIONWIDE MUTUAL FIRE
)
FIRE INSURANCE COMPANY; NGM
INSURANCE COMPANY
)
INSURANCE COMPANY; AMERICAN
)
EMPIRE SURPLUS LINES INSURANCE
)
COMPANY; CLARENDON AMERICA
)
INSURANCE; USF INSURANCE
)
COMPANY; ALEA LONDON, LTD.;
)
CERTAIN INTERESTED
)
UNDERWRITERS AT LLOYD’S,
)
LONDON; CINCINNATI INSURANCE
)
COMPANY; DISCOVER PROPERTY &
)
CASUALTY INSURANCE COMPANY;
)
ESSEX INSURANCE COMPANY;
SCOTTSDALE INSURANCE COMPANY; )
SELECTIVE INSURANCE COMPANY OF )
SOUTH CAROLINA; UNION INSURANCE )
)
COMPANY; and WESTERN WORLD
)
INSURANCE COMPANY,
)
)
Defendants.
)
BEAZER HOMES CORP.,

Whereas, by Amended Order dated December 13, 2012 (Docket Entry Number 251)
United States Magistrate Judge Thomas E. Rogers, III requiring the production of Beazer Homes
Corp.’s (“Beazer”) legal bills in the underlying St. Andrews Action to Nationwide Mutual Fire
Insurance Company (“Nationwide”) and to submit a proposed protective order that “specifically
guards against the release of said legal bills to any attorney, insurance adjuster, or any other
individual involved” in the underlying St. Andrews Action;

Whereas, Beazer and Nationwide agree to this Consent Protective Order (“Parties”), and
have stipulated that Plaintiff’s legal bills, expert witness bills, costs, and expenses are, and
should be treated as, confidential, and have agreed to the terms of this order; accordingly, it is
ORDERED:
1.

Scope.

All legal bills, expert witness bills, costs, and expenses of Beazer,

whether produced in response to discovery requests, at deposition testimony or deposition
exhibits 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 Beazer 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.

Depositions.

Portions of depositions and deposition exhibits dealing with

Beazer’s legal bills, expert witness bills, costs, and expenses shall be deemed confidential only if
designated as such by Beazer 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.
4.

Protection of Confidential Material.

a.

General Protections. Documents designated CONFIDENTIAL under this Order

shall not be used or disclosed by Nationwide or counsel for Nationwide or any other
persons identified below for any purposes whatsoever other than preparing for and
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conducting the litigation in which the documents were disclosed (including any appeal of
that litigation).
b.

Specific Protections. Under no circumstance without the prior written approval

of the Plaintiff or prior Order of this Court, shall Nationwide disclose, distribute or
disseminate such documents designated as CONFIDENTIAL to any attorney, insurance
adjuster, or other individual in the underlying St. Andrews Action. The Parties
specifically acknowledge that any such unauthorized disclosure, distribution or
dissemination shall be deemed to be contemptible conduct and a violation of this Order.
c.

Limited Third Party Disclosures. Nationwide shall not disclose or permit the

disclosure or dissemination 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 A 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 Nationwide who have responsibility

for the preparation and trial of this lawsuit;
(2)

employees of Nationwide but only to the extent Nationwide’s 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
and has no direct involvement for the party in the St. Andrews Action1;
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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 A hereto), counsel shall complete a certification in the form shown at
Attachment B hereto. Counsel shall retain the certification together with the form signed by the party or employee.

3

(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 this lawsuit; and
(5)

other persons only upon written consent of the Plaintiff or upon order of

the court and on such conditions as are agreed to or ordered.
d.

Control of Documents. Counsel for Nationwide shall take reasonable efforts to

prevent unauthorized disclosure of documents designated as CONFIDENTIAL pursuant
to the terms of this order. Counsel for Nationwide 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. Beazer’s counsel shall be provided with a copy of the
record of persons reviewing or who have been given access of the documents designated
as CONFIDENTIAL on a monthly basis along with all acknowledgments obtained during
the month.
e.

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.
5.

Filing of Confidential Materials. In the event Nationwide seeks to file any

material that is subject to protection under this Order with the court, Nationwide shall take
4

appropriate action to insure that the documents receive proper protection from public disclosure
including: (1) filing a redacted document with the consent of Beazer; (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.
Absent extraordinary circumstances making prior consultation impractical or
inappropriate, Nationwide shall first consult with counsel for Plaintiff 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. Documents may be filed under seal only with the permission of
the court after proper motion pursuant to Local Civil Rule 5.03.
6.

Greater Protection of Specific Documents.

Beazer may not withhold

information from discovery on the ground that it requires protection greater than that afforded by
this Order unless Beazer moves for an Order providing such special protection.
7.

Challenges to Designation as Confidential. Any CONFIDENTIAL designation

is subject to challenge. The following procedures shall apply to any such challenge.
a.

Whereas, Beazer having met its burden of demonstrating the need for

confidentiality, if Nationwide contests the necessity of a CONFIDENTIAL designation
Nationwide bears the burden of proving to the Court there is no such necessity.
b.

If Nationwide contends that documents designated CONFIDENTIAL are not

entitled to confidential treatment, it shall give written notice to Beazer of the specific
5

basis for the challenge. Beazer 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)

Beazer withdraws such confidential designation in writing;

(2)

Beazer 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.
8.

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. However, the terms of this Order are
subject to and shall not be construed to supersede the terms of any subsequent settlement
agreement.
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 shall be returned to
6

Beazer unless: (1) the document has been entered as evidence or filed (unless introduced
or filed under seal); (2) Beazer and Nationwide stipulate in writing to destruction in lieu
of return; or (3) as to documents containing the notations, summations, or other mental
impressions of Nationwide or its counsel, that party elects destruction. Notwithstanding
the above requirements to return or destroy documents, Nationwide’s 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.
9.

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.
10.

No Judicial Determination. This Order is entered based on the representations

and agreements of Beazer and Nationwide 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 documentspecific ruling shall have been made.

7

11.

Persons Bound. This Order shall take effect when entered and shall be binding

uponBeazer, Nationwide, and their respective counsel.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
Dated: January 8, 2013
Florence, South Carolina

WE CONSENT:

s/Timothy J. Newton
J.R. Murphy (Fed. I.D. # 3119)
Timothy J. Newton (Fed. I.D. # 9807)
MURPHY & GRANTLAND, P.A.
4406-B Forest Drive (29204)
Post Office Box 6648
Columbia, South Carolina 29260
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Nationwide Mutual Fire
Insurance Company

s/L. Franklin Elmore
L. Franklin Elmore (Fed. ID # 718)
Kimila L. Wooten (Fed. ID # 5525)
Elmore Goldsmith, PA
55 Beattie Place, Suite 1050 (29601)
Post Office Box 1887
Greenville, South Carolina 29602
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff Beazer Homes Corp.

8

ATTACHMENT A
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Case No.: 4:10-cv-02419-RBH
)
)
Plaintiff,
)
)
v.
ACKNOWLEDGMENT OF
)
UNDERSTANDING
)
HARTFORD FIRE INSURANCE
AND
)
COMPANY; NATIONWIDE MUTUAL
AGREEMENT TO BE BOUND
)
FIRE INSURANCE COMPANY; NGM
)
INSURANCE COMPANY; AMERICAN
)
EMPIRE SURPLUS LINES INSURANCE
)
COMPANY; CLARENDON AMERICA
)
INSURANCE; USF INSURANCE
)
COMPANY; ALEA LONDON, LTD.;
)
CERTAIN INTERESTED
)
UNDERWRITERS AT LLOYD’S,
)
LONDON; CINCINNATI INSURANCE
)
COMPANY; DISCOVER PROPERTY &
)
CASUALTY INSURANCE COMPANY;
)
ESSEX INSURANCE COMPANY;
SCOTTSDALE INSURANCE COMPANY; )
SELECTIVE INSURANCE COMPANY OF )
SOUTH CAROLINA; UNION INSURANCE )
)
COMPANY; and WESTERN WORLD
)
INSURANCE COMPANY,
)
)
Defendants.
)
BEAZER HOMES CORP.,

The undersigned hereby acknowledges that he or she has read the Consent Protective
Order dated [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 Consent Protective
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 in strict
adherence to the terms of the Order, and not to disclose any such confidential information to any
other person, firm or concern.
The undersigned specifically acknowledges that under no circumstance without the prior
written approval of the Plaintiff or prior Order of this Court, shall the undersigned disclose,
distribute or disseminate such documents designated as CONFIDENTIAL to any attorney,
insurance adjuster, or other individual involved in the underlying St. Andrews Action.

The undersigned acknowledges that violation of the Consent Protective Order may result
in penalties for contempt of court.

MURPHY & GRANTLAND, P.A.

NATIONWIDE MUTUAL FIRE
INSURANCE COMPANY

________________________________
J.R. Murphy (Fed. I.D. # 3119)

By: _________________________________
Name: _______________________________

________________________________
Timothy J. Newton (Fed. I.D. # 9807)
4406-B Forest Drive (29204)
Post Office Box 6648
Columbia, South Carolina 29260
Telephone: [phone]
[e-mail]
[e-mail]

Job Title: _____________________________

Attorneys for Nationwide Mutual Fire
Insurance Company

Date: _____________

Business Address: ______________________
______________________________________
______________________________________

Date: _____________

2

ATTACHMENT B
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
) Case No.: 4:10-cv-02419-RBH
)
)
Plaintiff,
)
)
v.
CERTIFICATION OF COUNSEL
)
OF NEED FOR ASSISTANCE OF
)
HARTFORD FIRE INSURANCE
PARTY/EMPLOYEE
)
COMPANY; NATIONWIDE MUTUAL
)
FIRE INSURANCE COMPANY; NGM
)
INSURANCE COMPANY; AMERICAN
)
EMPIRE SURPLUS LINES INSURANCE
)
COMPANY; CLARENDON AMERICA
)
INSURANCE; USF INSURANCE
)
COMPANY; ALEA LONDON, LTD.;
)
CERTAIN INTERESTED
)
UNDERWRITERS AT LLOYD’S,
)
LONDON; CINCINNATI INSURANCE
)
COMPANY; DISCOVER PROPERTY &
)
CASUALTY INSURANCE COMPANY;
)
ESSEX INSURANCE COMPANY;
SCOTTSDALE INSURANCE COMPANY; )
SELECTIVE INSURANCE COMPANY OF )
SOUTH CAROLINA; UNION INSURANCE )
)
COMPANY; and WESTERN WORLD
)
INSURANCE COMPANY,
)
)
Defendants.
)
BEAZER HOMES CORP.,

Pursuant to the Consent Protective Order entered in this action, most particularly the
provisions of Paragraph 4(c)(1)-(4), I certify that the assistance of [name of assistant [att B]] 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 Consent Protective 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 B signed]

[Signature [attachment B]]
Signature

2