Bacote v. Agape Senior LLC

Filing 35

CONFIDENTIALITY ORDER. Signed by Magistrate Judge Thomas E Rogers, III on 03/28/2014.(dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

JERALDINE BACOTE,

)
)
Plaintiff,
)
)
vs.
)
)
AGAPE COMMUNITY HOSPICE OF
)
THE PEE DEE, INC.,
)
)
Defendant.
)
_______________________________ )

Civil Action No.: 4:13-cv-01516-MGL-TER

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 28th day of March, 2014, 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
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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 (¶ 5.b.) for any purposes whatsoever other than

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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.

2

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:
(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;

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

(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

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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.
8.

Challenges to Designation as Confidential.

designation is subject to challenge.

Any CONFIDENTIAL

The following procedures shall apply to any such

challenge.

5

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.
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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.

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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.
s/Thomas E. Rogers, III
UNITED STATES MAGISTRATE JUDGE
March 28, 2014
Florence, South Carolina

8

ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

JERALDINE BACOTE,

)
)
Plaintiff,
)
)
vs.
)
)
AGAPE COMMUNITY HOSPICE OF
)
THE PEE DEE, INC.,
)
)
Defendant.
)
_______________________________ )

Civil Action No.: 4:13-cv-01516-MGL-TER

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 [confidentiality order
date].
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 [District Court Bar #].

“

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 [state in which I
practice most] where my Bar number is [that state's Bar #]. 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.

Date: [date attachment A signed]

[Signature of Counsel [s/name]]
Signature of Counsel
9

[Printed Name of Counsel [A]]
Printed Name of Counsel

10

ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

JERALDINE BACOTE,

)
)
Plaintiff,
)
)
vs.
)
)
AGAPE COMMUNITY HOSPICE OF
)
THE PEE DEE, INC.,
)
)
Defendant.
)
_______________________________ )

Civil Action No.: 4:13-cv-01516-MGL-TER

ACKNOWLEDGMENT OF
UNDERSTANDING AND AGREEMENT
TO BE BOUND

The undersigned hereby acknowledges that he or she has read the Confidentiality
Order dated [confidentiality 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 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:

[undersigned name [att B]]

Job Title:

[Job Title [att B]]

Employer:

[Employer [att B]]

Business Address:

[Business Address [att B]]

Date: [date attachment B signed]

[Signature [attachment B]]
Signature
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ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

JERALDINE BACOTE,

)
)
Plaintiff,
)
)
vs.
)
)
AGAPE COMMUNITY HOSPICE OF
)
THE PEE DEE, INC.,
)
)
Defendant.
)
_______________________________ )

Civil Action No.: 4:13-cv-01516-MGL-TER

CERTIFICATION BY COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE

Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 6.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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