Nickelson v. McLeod Health
CONFIDENTIALITY ORDER. Signed by Magistrate Judge Kaymani D West on 6/3/2015. (hcic, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
James O. Nickelson,
) Civil Action No.:4:15-cv-01465-BHH-KDW
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 third day of June, 2015, ORDERED:
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.
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.
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, 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.
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.
Protection of Confidential Material.
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 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.
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
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.
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.
Greater Protection of Specific Documents. Except for attorney/client 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.
Challenges to Designation as Confidential. Any CONFIDENTIAL designation
is subject to challenge. The following procedures shall apply to any such challenge.
The burden of proving the necessity of a Confidential designation remains with
the party asserting confidentiality.
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.
Notwithstanding any challenge to the designation of documents as confidential,
all material previously designated CONFIDENTIAL shall continue to be treated as
Confidential subject to the full protections of this Order until one of the following occurs:
the party who claims that the documents are confidential withdraws such
designation in writing;
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
the court rules that the documents should no longer be designated as
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
Treatment on Conclusion of Litigation.
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.
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
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.
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.
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
IT IS SO ORDERED.
June 3, 2015
Florence, South Carolina
Kaymani D. West
United States Magistrate Judge
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
DISTRICT OF SOUTH CAROLINA
James O. Nickelson,
) Civil Action No.:4:15-cv-01465-BHH-KDW
McLeod Health, Inc.,
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
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