Equal Employment Opportunity Commission v. McLeod Health, Inc

Filing 22

CONFIDENTIALITY ORDER. Signed by Magistrate Judge Thomas E Rogers, III on 03/10/2015. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Plaintiff,
)
)
v.
)
)
McLEOD HEALTH, INC.,
)
)
Defendant.
)
______________________________________ )

CIVIL ACTION NO.
4:14-cv-03615-RBH-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 10th day of March, 2015, 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 attorney who has, in
good faith, determined that the documents contain information protected from disclosure by
statute, medical records or other health-related information, sensitive personal information,
including but not limited to social security numbers and personnel records, 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 shall be used

solely for the purposes of this action, including any appeal, and shall not be disclosed to any
person except the following individuals: the Court (including the Clerk’s office and court
reporters); counsel for the parties, their staff members, their professional and para-professional
employees; any experts or service contractors (i.e., court reporters or outside photocopying or
imaging services) associated by the parties regarding this action; Defendant’s liability insurance
carrier, and the parties, including officers or employees of a corporate party. All persons to
whom Confidential documents are disclosed shall be bound by this Order. It shall be the
responsibility of counsel for each party to this action to insure that persons authorized to receive
Confidential documents have knowledge of the terms of this Order and agree to be bound by
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them. Use of Confidential Material during the trial of this action or in any hearing in connection
with the disposition of this matter by any party shall in no way permit the use of such material
for or in connection with any other lawsuit, action, hearing or proceeding, without further order
of the Court, express agreement by both parties, or pursuant to a valid subpoena.
b.

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.
c.

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 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
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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. Except for attorney/client privilege,

governmental deliberative process privilege, or work product protected 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. 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;
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(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.
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.

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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.
s/Thomas E. Rogers, III
UNITED STATES MAGISTRATE JUDGE
March 10, 2015
Florence, South Carolina

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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
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Plaintiff,
)
)
v.
)
)
McLEOD HEALTH, INC.,
)
)
Defendant.
)
______________________________________ )

CIVIL ACTION NO.
4:14-cv-03615-RBH-TER

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
[Printed Name of Counsel [A]]
Printed Name of Counsel
20151547.1

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