Lester v. MindsInSync Inc et al

Filing 26

CONSENT CONFIDENTIALITY ORDER. Signed by Honorable R Bryan Harwell on 3/5/2013. (Attachments: # 1 Certifications/Acknowledgment(hcic, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Joan Lester,
Plaintiff,
vs.
MindsInSync, Inc. and Bed Bath &
Beyond, Inc.,
Defendants.

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Civil Action No. 4:12-03339-RBH

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 4th day of March, 2013,
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, 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 (¶ 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
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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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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:
(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;

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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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(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

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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.
8.

Challenges to Designation as Confidential.

designation is subject to challenge.

Any CONFIDENTIAL

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

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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.
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.

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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.
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

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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.

s/R. Bryan Harwell
R. BRYAN HARWELL
UNITED STATES DISTRICT JUDGE
March 5, 2013
Florence, South Carolina

WE CONSENT AND AGREE:
Plaintiff:

Defendant:

MIKE KELLY LAW GROUP, LLC

SOWELL GRAY STEPP & LAFFITTE, LLC

By:

By:

S / Brad D. Hewett
Brad D. Hewett
Fed. I.D. No. 10388
500 Taylor Street
P.O. Box 8113
Columbia, SC 29202
[phone]

Attorneys for Plaintiff, Joan Lester
Dated:

March 5, 2013

S / Rebecca Laffitte
Rebecca Laffitte
Fed. I.D. No.: 1036
[e-mail]
J. Michael Montgomery
Fed I.D. No.: 10290
[e-mail]
Alex E. Davis
Fed I.D. No. 11323
[e-mail]
Post Office Box 11449
Columbia, South Carolina 29211

Attorneys for Defendant, MindsInSync, Inc.
Dated:

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March 5, 2013