Bethel et al v. South Carolina Department of Corrections et al
Filing
17
CONSENT CONFIDENTIALITY ORDER. Signed by Magistrate Judge Thomas E Rogers, III on 09/12/2018. (dsto)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
James Bethel, Derrick Brown, David Dempsey,
Arthur Ladia, Meon Miller, Jamarcus Murray,
Clifford Ramsey, Joseph D. Roach and
Christopher Watt,
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Plaintiffs,
v.
South Carolina Department of Corrections,
Warden Larry Cartledge, individually and in his
official capacity as warden of Broad River
Correctional Institution, and Warden Dennis
Bush, individually and in his official capacity as
warden of Broad River Correctional Institution,
Defendants.
Civil Action No.:
4:18-cv-01343-MBS-TER
CONSENT CONFIDENTIALITY
ORDER
Whereas, the parties to this action (“parties”), have stipulated that certain discovery
material and/or other information is and should be treated as confidential, and have agreed to the
terms of this order; accordingly, it is this 12th day of September, 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
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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 person, entity, or 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.
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 for any purposes whatsoever other than preparing for and conducting the
litigation in which the documents were disclosed (including any appeal of that litigation).
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
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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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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 responsible party or counsel has advised the third
party of the existence and terms of this Order, and that they are 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 that the
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;
(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;
(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;
(6)
any current or former inmate of the South Carolina Department of
Corrections, but not without first obtaining the written consent of all parties or an
order from the Court.
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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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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.
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. 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.
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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.
a.
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.
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;
(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 above;
or
(3)
the court rules that the documents should no longer be designated as
confidential information.
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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 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,
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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
Thomas E. Rogers, III
United States Magistrate Judge
September 12, 2018
Florence, South Carolina
WE SO MOVE AND CONSENT:
WE SO MOVE AND CONSENT:
DAVIDSON, WREN & PLYLER, P.A.
BELL LEGAL GROUP, LLC
_______s/ David A. DeMasters_______
DANIEL C. PLYLER, FED. ID # 9762
DAVID A. DEMASTERS, FED. ID # 11389
Post Office Box 8568
Columbia, South Carolina 29202-8568
T: 803-806-8222
C: 803-806-8855
E-Mail: dplyler@dml-law.com
____s/ Gabrielle Sulpizio___________
J. EDWARD BELL, III, FED. ID # 1280
VICTORIA S.H. KNIGHT, FED. ID #
GABRIELLE SULPIZIO, FED. ID # 12715
219 North Ridge Street
Georgetown, South Carolina 29440
T: 843-546-2408
F: 843-546-9604
E-Mail: ebell@edbelllaw.com
gsulpizio@edbelllaw.com
Counsel for Defendants SCDC, Livingston,
Cunningham, McNutt, and Clark
ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
James Bethel, Derrick Brown, David Dempsey,
Arthur Ladia, Meon Miller, Jamarcus Murray,
Clifford Ramsey, Joseph D. Roach and
Christopher Watt,
Plaintiffs,
v.
South Carolina Department of Corrections;
Warden Larry Cartledge, individually and in his
official capacity as warden of Broad River
Correctional Institution, and Warden Dennis
Bush, individually and in his official capacity as
warden of Broad River Correctional Institution,
Defendants.
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Civil Action Number:
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4:18-cv-01343-MBS-TER
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) Certification by Counsel of Designation of
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Information as Confidential
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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
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[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
FLORENCE DIVISION
James Bethel, Derrick Brown, David Dempsey,
Arthur Ladia, Meon Miller, Jamarcus Murray,
Clifford Ramsey, Joseph D. Roach and
Christopher Watt,
Plaintiffs,
v.
South Carolina Department of Corrections,
Warden Larry Cartledge, individually and in his
official capacity as warden of Broad River
Correctional Institution, and Warden Dennis
Bush, individually and in his official capacity as
warden of Broad River Correctional Institution,
Defendants.
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Civil Action Number:
4:18-cv-01343-MBS-TER
Acknowledgement 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]]
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Date: [date attachment B signed]
[Signature [attachment B]]
Signature
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ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
James Bethel, Derrick Brown, David Dempsey,
Arthur Ladia, Meon Miller, Jamarcus Murray,
Clifford Ramsey, Joseph D. Roach and
Christopher Watt,
Plaintiffs,
v.
South Carolina Department of Corrections;
Warden Larry Cartledge, individually and in his
official capacity as warden of Broad River
Correctional Institution, and Warden Dennis
Bush, individually and in his official capacity as
warden of Broad River Correctional Institution,
Defendants.
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Civil Action Number:
4:18-cv-01343-MBS-TER
Certification by Counsel of need of
assistance of party/employee
Pursuant to the Confidentiality Order entered in this action, most particularly the provisions
of Paragraph 6.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.
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:
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A named party;
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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].
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Date: [date attachment C signed]
[Signature [attachment C]]
Signature
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