National Association for the Advancement of Colored People Inc et al v. Myrtle Beach, City of et al
Filing
53
ORDER granting 51 Motion for Confidentiality Order. Signed by Honorable A Marvin Quattlebaum, Jr on 6/22/18.(swel, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
C.A. NO. 4:18-CV-00554-AMQ
National Association for the Advancement of
Colored People, Inc. by and through its Myrtle
Beach Branch, Simuel Jones, Leslie Stevenson,
and Cedric Stevenson,
PROPOSED CONFIDENTIALITY
ORDER
Plaintiffs,
v.
City of Myrtle Beach, a municipal corporation
within the State of South Carolina and City of
Myrtle Beach Police Department, a department
of the City of Myrtle Beach,
Defendants.
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 22nd day of June, 2018, 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
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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. Nothing shall be subjected to
his Order if it is information or documents that either: 1) are available in the public sector; 2)
become a part of the public domain through no fault of the other party; 3) the receiving party can
show was in its rightful and lawful possession at the time of the disclosures; or 4) the receiving
party lawfully received from a third party without restriction as to disclosure, provided such third
party had the right to make the disclosure to the receiving party.
4.
Depositions. Portions of depositions shall be deemed confidential only if designated as
such when the deposition is taken or within thirty 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
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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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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)-(6) below. For
those persons or entities identified in subparagraphs (3)-(6) below, disclosure may only be made
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)
the Court, its personnel, and court reporters;
(2)
counsel and employees of counsel for the parties who have responsibility for the
preparation and trial of the lawsuit;
(3)
parties and employees of a party to this Order but only to the extent counsel in good faith
believes that the specifically named individual party or employee’s assistance is necessary to the
conduct of the litigation in which the information is disclosed;
(4)
court reporters engaged for depositions and those persons, if any, specifically engaged for
the limited purpose of making photocopies of documents;
(5)
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
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(6)
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 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. 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 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.
b.
Return of CONFIDENTIAL Documents. Within sixty (60) 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.
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10.
Order Subje to Modif
O
ect
fication. Th Order sh be subject to modification on m
his
hall
motion
of any pa or any other person who may show an ade
arty
n
s
equate intere in the matter to inter
est
rvene
for purpo
oses of addre
essing the sc
cope and ter of this O
rms
Order. The Order shall not, howeve be
er,
modified until the parties shall have been given notice and an opp
d
g
e
portunity to be heard o the
on
proposed modificatio
d
on.
11.
No Judicial Determinat
N
tion.
This Order is en
ntered based on the rep
d
presentations and
s
agreemen of the pa
nts
arties and fo the purpos of facilita
or
se
ating discove
ery. Nothin herein sha be
ng
all
construed or presen
d
nted as a ju
udicial deter
rmination th any spe
hat
ecific docum
ment or item of
m
informati designat as CONF
ion
ted
FIDENTIAL by counsel is subject to protection under Rule 26(c)
L
o
of the Fe
ederal Rules of Civil Procedure or otherwise until such t
s
P
r
time as a d
document-spe
ecific
ruling shall have been made.
12.
Persons Bound. This Or
P
rder shall tak effect wh en entered a shall be b
ke
and
binding upon (1)
n:
counsel who signed below and th respectiv law firms and (2) the respective clients.
w
b
heir
ve
s;
eir
e
IT IS SO ORDERED
O
D.
_________
___________
__________
_____
The Honora A. Marv Quattleb
able
vin
baum, Jr.
UNITED S
STATES DIS
STRICT JUD
DGE
June 22, 2018
e
Gree
enville, Sout Carolina
th
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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
[DIVISION [all caps]] DIVISION
[Plaintiff]
Plaintiff,
vs.
[Defendant]
Defendant
)
)
)
)
)
)
)
)
Civil Action No. [Case Number]
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
[Printed Name of Counsel [A]]
Printed Name of Counsel
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ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
[DIVISION [all caps]] DIVISION
[Plaintiff]
Plaintiff,
vs.
[Defendant]
Defendant
)
)
)
)
)
)
)
)
)
Civil Action No. [Case Number]
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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