Robinson v. Ragland et al

Filing 115

CONFIDENTIALITY ORDER. Signed by Magistrate Judge Thomas E Rogers, III on 07/10/2017. (dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Gary Lavon Robinson, aka Gary Lamont
)
Robinson, aka Gary L. Robinson, aka Gary )
Robinson,
)
)
Plaintiff,
)
)
vs.
)
)
Thomas Ragland; Nikon Morgan;
)
Christopher Dillard; Faith Chappell;
)
and Jason Palmer,
)
)
Defendants.
)
____________________________________)

C/A No.: 4:15-3472-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 July, 2017, 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.
documents

Form and Timing of Designation.
shall

be

so

designated

by

Confidential/Attorney’s Eyes Only
placing

or

affixing

the

word

“CONFIDENTIAL/ATTORNEY’S EYES ONLY” 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/Attorney’s

Eyes

Only

designation.

Documents

shall

be

designated

CONFIDENTIAL/ATTORNEY’S EYES ONLY prior to, or contemporaneously with, the
production or disclosure of the documents.

Inadvertent or unintentional production of

documents without prior designation as confidential/Attorney’s Eyes Only shall not be deemed a
waiver, in whole or in part, of the right to designate documents as confidential/Attorney’s Eyes
Only as otherwise allowed by this Order.
3.

Documents Which May be Designated Confidential/Attorney’s Eyes Only.

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/Attorney’s

Eyes Only 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/ATTORNEY’S

EYES ONLY 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
1

The attorney who reviews the documents and certifies them to be
CONFIDENTIAL/ATTORNEY’S EYES ONLY 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.

other than preparing for and conducting the litigation in which the documents were
disclosed (including any appeal of that litigation). Additionally, it is acknowledged that
Plaintiff is an inmate under the supervision and control of the South Carolina Department
of Corrections. At no time will Attorney for the Plaintiff divulge information marked
‘Attorney Eyes Only’ to the Plaintiff except pursuant to the provisions of this Order.
b.

Limited Third Party Disclosures. The parties and counsel for the parties shall

not disclose or permit the disclosure of any documents designated CONFIDENTIAL/
ATTORNEY’S EYES ONLY under the terms of this Order to any other person or entity
except as set forth in subparagraphs (1)-(6) 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/
ATTORNEY’S EYES ONLY 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)

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;
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.

(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/Attorney’s
Eyes Only 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/Attorney’s
Eyes Only under this Order or any portion of such a document, shall be immediately
affixed with the designation “CONFIDENTIAL/ATTORNEY’S EYES ONLY” 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 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.

Any CONFIDENTIAL/

ATTORNEY’S EYES ONLY designation is subject to challenge.

The following procedures

shall apply to any such challenge.
a.

The burden of proving the necessity of a Confidential/Attorney’s Eyes Only

designation remains with the party asserting confidentiality.
b.

A

party

who

contends

that

documents

designated

CONFIDENTIAL/

ATTORNEY’S EYES ONLY 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/

Attorney’s

Eyes

Only,

all

material

previously designated

CONFIDENTIAL/

ATTORNEY’S EYES ONLY 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/Attorney’s Eyes

Only fails to move timely for an Order designating the documents as confidential/
Attorney’s Eyes Only as set forth in paragraph 8.b. above; or
(3)

the court rules that the documents should no longer be designated as

confidential /Attorney’s Eyes Only 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/ATTORNEY’S EYES ONLY shall continue to
be binding after the conclusion of the litigation unless otherwise agreed or ordered.
b.

Return of CONFIDENTIAL/ATTORNEY’S EYES ONLY Documents.

Within thirty (30) days after the conclusion of the litigation, including conclusion of any
appeal, all documents treated as confidential/Attorney’s Eyes Only 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/ATTORNEY’S EYES ONLY so
long as that work product does not duplicate verbatim substantial portions of the text of
confidential/Attorney’s Eyes Only documents.

This work product continues to be

Confidential/Attorney’s Eyes Only 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/Attorney’s Eyes Only 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/ATTORNEY’S EYES ONLY 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
Thomas E. Rogers, III
United States Magistrate Judge
July 10, 2017
Florence, South Carolina

ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL/ATTORNEY’S EYES ONLY
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Gary Lavon Robinson, aka Gary Lamont
)
C/A No.: 4:15-3472-TER
Robinson, aka Gary L. Robinson, aka Gary )
Robinson,
)
)
Plaintiff,
)
Certification by Counsel of Designation
vs.
)
of Information as Confidential
)
Thomas Ragland; Nikon Morgan;
)
Christopher Dillard; Faith Chappell;
)
and Jason Palmer,
)
)
Defendants.
)
____________________________________)
Documents produced herewith [whose bates numbers are listed below (or) which are
listed on the attached index] have been marked as CONFIDENTIAL/ATTORNEY’S EYES
ONLY 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

ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Gary Lavon Robinson, aka Gary Lamont
)
C/A No.: 4:15-3472-TER
Robinson, aka Gary L. Robinson, aka Gary )
Robinson,
)
)
Plaintiff,
)
)
vs.
)
Acknowledgment of Understanding and
)
Agreement to be Bound
Thomas Ragland; Nikon Morgan;
)
Christopher Dillard; Faith Chappell;
)
and Jason Palmer,
)
)
Defendants.
)
____________________________________)

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/ATTORNEY’S EYES ONLY 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

ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Gary Lavon Robinson, aka Gary Lamont
)
C/A No.: 4:15-3472-TER
Robinson, aka Gary L. Robinson, aka Gary )
Robinson,
)
)
Plaintiff,
)
Certification of Counsel
vs.
)
of Need for Assistance of Party/Employee
)
Thomas Ragland; Nikon Morgan;
)
Christopher Dillard; Faith Chappell;
)
and Jason Palmer,
)
)
Defendants.
)
____________________________________)

Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.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/ATTORNEY’S EYES ONLY.
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