RBC Bank USA v. Epps et al

Filing 214

CONFIDENTIALITY ORDER. Signed by Honorable R Bryan Harwell on 11/27/2012. (Attachments: # 1 Forms)(hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
RBC BANK (USA),

Case No. 4:11-CV-00124-RBH

Plaintiff,
vs.
THOMAS DARIN EPPS, DUNES
MORTGAGE LLC, SYNERGY
INVESTMENT GROUP LLC, JEREMY
EASON, JJE ENTERPRISES LLC a/k/a J&J
ENTERPRISES, MALIA MCCAFFREY,
PRODIGY CONSULTING, LLC, LINDA L.
STEELE, LINBRANDT, LLC, JOSEPH
GRAY, JACQUELINE GRAY, WEST COAST
FUNDING, LLC, THERESA FESCHUK, MAJ,
LLC, ZAG, LLC, ALISSA SMITH, EAST
COAST FUNDING, LLC, CASA MIA, INC.
a/k/a CASA MIA DEVELOPMENT, LLC,
J&M MORTGAGE SERVICES, INC. a/k/a
CHALLENGE HOME EQUITY, MIKE
WIMBERLY, ZEREKO NEVADA, INC.,
YOUVAL GERINGER, STONEGATE
PROPERTIES, INC., JOHN M. WARNER, JR.,
WARFIN DEVELOPERS, LLC, THERON
FLOYD, TRINITY DEVELOPMENT, LLC,
LARRY PROSSER, DUPLEX
DEVELOPMENT, INC., JOHN MARKS,
ACTION BUILDERS OF MYRTLE BEACH,
LLC, DAVID L. BRIDGES, JR., ALVIN H.
SHUMAN, MCKEAN PROPERTIES, LLC,
DAVID THOMAS HIX, JR., MYRTLE
BEACH VILLAS, LLC, DAVID
O’CONNELL, JEFFERY TODD SHOUP,
ATLANTIS VILLAS OF NMB, LLC,
MATTHEW SKINNER, and BILLY JAMES
BARFIELD,
Defendants.

CONSENT 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 27th day of November, 2012, 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 [except for
documents produced for inspection under the “Reading Room” provisions set forth in paragraph
4 below]. 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
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 hac vice admission. By signing the certification, counsel submits to
the jurisdiction of this court in regard to the certification.

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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.

Reading Room. In order to facilitate timely disclosure of large numbers of

documents which may contain confidential documents, but which have not yet been reviewed
and marked, the following “Reading Room” provisions may be utilized.
a.

Documents may be produced for review at a party’s facility or other controlled

location (“Reading Room”), prior to designation as confidential. After review of these
documents, the party seeking discovery may specify those for which further production is
requested. The producing party shall then copy the requested documents for production.
To the extent any of the requested documents warrant a CONFIDENTIAL designation,
the copies shall be so marked prior to further production.
b.

Unless otherwise agreed or ordered, copies of Reading Room documents shall be

requested within twenty days of review in the Reading Room and shall be produced
within thirty days after the request is made.
c.

The producing party shall maintain a log of persons who have reviewed

documents in the Reading Room and the dates and time of their presence.
d.

The production of documents for review within the confines of a Reading Room

shall not be deemed a waiver of any claim of confidentiality, so long as the reviewing
parties are advised that the Reading Room production is pursuant to this provision and
that the Reading Room may contain confidential materials which have not yet been
marked as confidential.

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e.

Until such time as further production is made of documents reviewed in a

Reading Room, the reviewing party shall treat all material reviewed as if it was marked
CONFIDENTIAL at the time reviewed.
5.

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.
6.

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 (¶ 6.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 (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:

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(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.
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

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.

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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.
7.

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.
8.

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.

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9.

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 9.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.

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10.

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 (¶6.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.
11.

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.

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12.

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.
13.

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.
s/R. Bryan Harwell
UNITED STATES DISTRICT JUDGE
November 27, 2012

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WE SO MOVE
s/Amanda K. Dudgeon
David W. Overstreet
Federal Bar No.: 7363
Amanda K. Dudgeon
Federal Bar No.: 9681
Carlock, Copeland & Stair, LLP
40 Calhoun Street, Ste. 400
Charleston, SC 29401
[phone]
Counsel for Alvin H. Shuman and McKean
Properties, LLC
Date: November 19, 2012

WE SO MOVE/CONSENT

s/David Dreifus
David Dreifus
Poyner and Spruill
P.O. Box 10096
Raleigh, NC 27605
[phone]
s/Thomas Lynn Ogburn, III
Thomas Lynn Ogburn, III
Poyner and Spruill
One Wachovia Center
301 S. College Street, Suite 2300
Charlotte, NC 28202-6000
[phone]
Counsel for RBC Bank (USA)
Date: November 19, 2012

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