Doe v. Kershaw County et al

Filing 92

CONFIDENTIALITY ORDER. Signed by Magistrate Judge Kaymani D West on 2/27/2013. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
John Doe,
Plaintiff,
v.
Kershaw County, Murray Hudson,
Ada Blackmon, Wanda Dean,
Ervin Whack, Angie Threatt,
James Robinson, Matilda Lowe,
Manuel DeJesus, James Butler,
Makeda Dawes, Sherrie Billie,
Sandra Armentrout, Quinton Arthur,
Chene Graham, Irma Rubio,
Donnie Anthony, and Linda Bradshaw,
Defendants.
_________________________________

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Civil Action No. 5:11-2419-SB-KDW

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 27th day of February, 2013, ORDERED:
1.

Scope. All documents produced in the course of discovery, all responses to

discovery requests; all deposition testimony; deposition exhibits; notes taken, documents and/or
photographs obtained at any site inspections; 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
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. 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.

Site Inspections. Any records, photographs, digital images, measurements and/or

notes taken and/or reviewed during any site inspections at the Kershaw County Detention Center
shall be deemed CONFIDENTIAL.

Any reproductions thereof shall be marked

CONFIDENTIAL. Any such documents shall not be provided to and/or reviewed by Plaintiff, or
anyone on his behalf, other than Plaintiff's counsel, staff employed by Plaintiff's counsel or any
experts retained or consulted with on Plaintiff's behalf. Any such documents shall be deemed
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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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strictly CONFIDENTIAL and shall be filed under seal with the Court. If any such document is
to be used as an exhibit to a deposition transcript, it shall be marked CONFIDENTIAL and
sealed. To the extent any of these documents are used at the trial of this matter, the Court shall
address this confidentiality issue at the time of trial.
6.

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 (¶ 6.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 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 the provisions of Paragraph 5 above and 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
disclosed2;

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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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(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; 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.

d.

7.

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.
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. Any such copies shall apply to
the provisions as set forth in ¶ 5 as well.

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

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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.
8.

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.
9.

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;

(2)

the party who claims that the documents are confidential
fails to move timely for an Order designating the

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documents as confidential as set forth in paragraph 9.b.
above; or
(3)

d.

10.

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.

Treatment on Conclusion of Litigation.
a.

b.

11.

the court rules that the documents should no longer be
designated as confidential information.

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 documents; however, any documents obtained or
generated in response to ¶ 5 shall not be used in any subsequent litigation.

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.
12.

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

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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.
13.

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.

February 27, 2013
Florence, South Carolina

Kaymani D. West
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION

John Doe,
Plaintiff,
v.
Kershaw County, Murray Hudson,
Ada Blackmon, Wanda Dean,
Ervin Whack, Angie Threatt,
James Robinson, Matilda Lowe,
Manuel DeJesus, James Butler,
Makeda Dawes, Sherrie Billie,
Sandra Armentrout, Quinton Arthur,
Chene Graham, Irma Rubio,
Donnie Anthony, and Linda Bradshaw,
Defendants.
_________________________________

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Civil Action No. 5:11-2419-SB-KDW

(ATTACHMENT A TO
CONFIDENTIALITY ORDER)
CERTIFICATION BY COUNSEL
OF DESIGNATION OF
INFORMATION AS CONFIDENTIAL

Documents produced herewith1 have been marked as CONFIDENTIAL subject to the
Confidentiality Order entered in this action which Order is dated February 22, 2013.
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.
❑

❑

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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.

List bates numbers or provide an attached index.

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Attachment A to Confidentiality Order
Certification by Counsel of Designation
of Information as Confidential
C/A No. 5:11-2419-SB-KDW
Signature Page
_________________________________

_________________________________________
Signature of Counsel
_________________________________________
Printed Name of Counsel
Dated: _________________

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
John Doe,
Plaintiff,
v.
Kershaw County, Murray Hudson,
Ada Blackmon, Wanda Dean,
Ervin Whack, Angie Threatt,
James Robinson, Matilda Lowe,
Manuel DeJesus, James Butler,
Makeda Dawes, Sherrie Billie,
Sandra Armentrout, Quinton Arthur,
Chene Graham, Irma Rubio,
Donnie Anthony, and Linda Bradshaw,
Defendants.
_________________________________

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Civil Action No. 5:11-2419-SB-KDW

(ATTACHMENT B TO
CONFIDENTIALITY ORDER)

ACKNOWLEDGMENT OF
UNDERSTANDING AND
AGREEMENT TO BE BOUND

The undersigned hereby acknowledges that he/she has read the Confidentiality Order
dated February 22, 2013, 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

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
John Doe,
Plaintiff,
v.
Kershaw County, Murray Hudson,
Ada Blackmon, Wanda Dean,
Ervin Whack, Angie Threatt,
James Robinson, Matilda Lowe,
Manuel DeJesus, James Butler,
Makeda Dawes, Sherrie Billie,
Sandra Armentrout, Quinton Arthur,
Chene Graham, Irma Rubio,
Donnie Anthony, and Linda Bradshaw,
Defendants.
_________________________________

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Civil Action No. 5:11-2419-SB-KDW

(ATTACHMENT C TO
CONFIDENTIALITY ORDER)

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 6.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 ________________. This employee’s job title is
_________________and work address is ___________________________.

Date:
Signature

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