Sowells v. DePaul Adult Care Communities Inc
Filing
16
CONFIDENTIALITY ORDER. Signed by Magistrate Judge Thomas E Rogers, III on 10/20/2017. (dsto, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Brenda R. Sowells,
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)
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Plaintiff,
v.
DePaul Adult Care Communities, Inc.
d/b/a Pee Dee Gardens,
Defendant.
C/A No. 4:17-cv-02230-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 20th day of October, 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.
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
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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 1 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 preparing for and conducting the litigation in which the documents were
disclosed (including any appeal of that litigation). The parties shall not disclose
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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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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 disclosed 2;
(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.
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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 CONFIDENTlAL 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
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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.
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
(¶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.
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
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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
Thomas E. Rogers, III
United States Magistrate Judge
October 20, 2017
Florence, South Carolina
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Brenda R. Sowells,
Plaintiff,
v.
DePaul Adult Care Communities, Inc.
d/b/a Pee Dee Gardens,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
C/A No. 4:17-cv-02230-RBH-TER
CERTIFICATION OF COUNSEL OF
DESIGNATION OF INFORMATION AS
CONFIDENTIAL
Documents produced herewith, 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 October ____, 2017.
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
.
❑
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
_______________ where my Bar number is _____________. 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:
Signature of Counsel
Printed Name of Counsel
ATTACHMENT B
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Brenda R. Sowells,
Plaintiff,
v.
DePaul Adult Care Communities, Inc.
d/b/a Pee Dee Gardens,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
C/A No. 4:17-cv-02230-RBH-TER
CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION AS
CONFIDENTIAL
The undersigned hereby acknowledges that he or she has read the
Confidentiality Order dated October ___, 2017, 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:
Job Title:
Employer:
Business Address:
Date:
Signature
ATTACHMENT C
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Brenda R. Sowells,
Plaintiff,
v.
DePaul Adult Care Communities, Inc.
d/b/a Pee Dee Gardens,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
C/A No. 4:17-cv-02230-RBH-TER
CERTIFICATION OF COUNSEL OF
NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.b.2., I certify that the assistance of
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
job title is
. This employee’s
and work address is
.
Date:
Signature
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