Maxum Casualty Insurance Company v. East Penn Trucking Company Inc et al

Filing 20

CONSENT PROTECTIVE ORDER Signed by Honorable J Michelle Childs on 7/12/2013. (asni, )

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

MAXUM CASUALTY INSURANCE
COMPANY,

Plaintiff,
vs.
EAST PENN TRUCKING COMPANY,
INC., JONATHAN M. KLUK, and FRED
JOSEPH JONES,
Defendants.

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Civil Action NO. 5:13-cv-00580-JMC

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CONSENT PROTECTIVE ORDER

WHEREAS the Defendant Fred Joseph Jones, through written discovery, seeks to obtain
unredacted copies of Maxum Casualty Insurance Company’s policy, which contains trade secrets
and/or confidential, proprietary, or other commercially sensitive business information; and
WHEREAS Maxum Casualty Insurance Company objects to the aforementioned
discovery requests, for multiple reasons, including the reason that such documents may contain
trade secrets and/or confidential, proprietary, or other commercially sensitive business
information, the disclosure of which could cause harm or damage to Maxum Casualty Insurance
Company and which should be protected and restricted; and
WHEREAS the Defendant Fred Joseph Jones is willing to limit the use of the information
and documents produced and to protect the claimed confidentiality of this information and these
documents; and

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WHEREAS other documents, information and materials may be sought, produced or
exhibited by and among the parties to the above-captioned proceedings, some of which are
claimed to relate to or contain confidential information; and
WHEREAS the undersigned parties consent to the entry of this Protective Order.
NOW, THEREFORE, IT IS HEREBY ORDERED that:
1.)

This Order governs the disclosure and use of Confidential Material

contained in documents or any other written, recorded or graphic material, answers to
interrogatories, deposition testimony or transcripts, responses to requests for admissions and any
other discovery (hereinafter “Discovery Material”) under the Federal Rules of Civil Procedure
produced by any person or entity, including non-parties, in this action.
2.)

“Confidential Material” shall be defined to include any and all policies of

insurance, policy declarations, premium notices, and any other document, information, or
discovery response produced in this case that is deemed to constitute proprietary or sensitive
business, personal or financial information, or information subject to a legally protected right of
privacy.
3.)

The undersigned parties may designate any document, information, or

discovery response produced in this case as protected by marking it “CONFIDENTIAL” at or
before the time of production or exchange pursuant to this Order. All Confidential designations
must be based on the good faith belief that the information constitutes (a) proprietary or sensitive
business, personal or financial information or (b) information subject to a legally protected right
of privacy.
4.)

All Confidential Material produced and information furnished which is

designated “CONFIDENTIAL” shall be treated as such by the undersigned parties. Confidential

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Material and all copies, summaries, compilations, notes, or abstracts shall be used solely for the
purpose of litigating the above-captioned action and shall not be used by the parties, their
counsel of record, or any other person to whom such material is disclosed in connection with any
other action or proceeding or for any other purpose, to include the underlying action Civil Action
No. 5:12-cv-00719-JMC.
5.)

Discovery Material designated as “CONFIDENTIAL” pursuant to the

terms of this Order shall be restricted to “Qualified Persons” including:
a.)

The attorneys and the law firms appearing in this captioned case

and personnel who are directly employed by those firms and who are assisting the
attorneys working on this captioned case;
b.)

The named parties to this case, including officers, directors, or

employees of the parties whose assistance is reasonably required in the preparation of this
captioned case for trial and who must have access to the materials to render assistance;
c.)

Experts or consultants retained by any party in connection with the

preparation of this captioned case for trial or in connection with the trial of this case;
d.)

Persons with knowledge of discoverable matters who are or have

been employees of Defendants, provided that these persons shall not be given copies of
Confidential Material with the exception of documents contained in their own personnel
files;
e.)

The Court, Jurors, and Court personnel, including court reporters

and videographers engaged in such proceedings as are reasonably incidental to the
preparation or trial of the captioned case; and

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f.)

Any such other persons as the parties shall agree to in writing or

the Court shall determine.
6.)

Each Qualified Person described in subparagraphs c.) or f.) of the

preceding paragraph to whom Confidential Material is to be furnished, shown or disclosed, shall
agree in writing to be bound by the terms of this Consent Protective Order and shall not permit
disclosure of the Discovery Material produced in and designated “CONFIDENTIAL” other than
pursuant to the terms of this Order. Such written agreement shall be in the form and substance as
attached hereto as EXHIBIT A, and shall be retained in the files of the attorney for the party
obtaining the written agreement.
7.)

If Confidential Material is inadvertently disclosed without designating it

“CONFIDENTIAL”, the producing party shall, upon discovery of such inadvertent disclosure,
promptly inform opposing counsel and the receiving party in writing. If the receiving party is a
Qualified Person, that person shall thereafter treat the Discovery Material as Confidential
pursuant to this Order.

If the Discovery Material that should have been designated

“CONFIDENTIAL” was disclosed to non-Qualified Persons as defined in Paragraph 5, the
receiving party shall make every reasonable effort to retrieve the Confidential Material and to
limit any further disclosure to non-Qualified Persons.
8.)

Except as provided in Paragraphs 9, 10, and 11 herein, original

Confidential Material shall at all times be kept in the custody, control and possession of a party’s
counsel of record, except that copies of Confidential Material may be distributed outside the
office to the persons identified in Paragraph 5 above.

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9.)

Any Discovery Material designated as “CONFIDENTIAL” under this

Order shall, if filed with the Court, be clearly marked “CONFIDENTIAL”, sealed, and opened
only by authorized court personnel.
10.)

When Confidential Material is to be presented, quoted, or referred to in

any deposition, hearing or other proceeding in this action, counsel shall ensure that only persons
qualified in accordance with Paragraph 5 of this Order are present.
11.)

When Confidential Material is incorporated into, quoted, or referred to in,

or made an exhibit to any deposition or hearing transcript, counsel shall ensure that the court
reporter attending such deposition or proceeding shall separately identify the Confidential
Material. Alternatively, the parties may agree that the entire transcript remain Confidential until
fifteen (15) days following receipt of the deposition transcript by counsel, and counsel may
designate those portions to be kept Confidential.
12.)

A party may oppose the designation of protected material at any time

before the trial by notifying the opposing party. If the parties are unable to agree on the
protected status of a document, the party opposing the designation may request an appropriate
order from the Court.
13.)

The designation of information, documents or things as Confidential

pursuant to this Order shall not be construed as a concession by a producing party that such
information is relevant, material to any issue, otherwise discoverable, or admissible at trial, or by
a receiving party that such information is, in fact, confidential information.
14.)

Following settlement or entry of a final non-appealable judgment in this

captioned case, all protected material and any copies of such material or other documents

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incorporating such material shall be returned to the originating party together with appropriate
certification of compliance with the terms of this paragraph.
15.)

In lieu of returning copies of confidential material to the designating party,

opposing counsel may destroy all copies of the protected material if opposing counsel confirms,
in writing, to the designating party that opposing counsel has destroyed all such protected
material.
16.)

This Order does not prevent any party from asserting any legally

cognizable privilege to withhold any document or information.
17.)

Any undersigned party may apply to the Court for a modification of this

Order for good cause shown and nothing herein shall be deemed to prejudice or waive any
party’s right to seek such a modification.
AND IT IS SO ORDERED!

United States District Court Judge

July 12, 2013
Greenville, South Carolina

[consent signature blocks on following page]
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WE SO CONSENT:

WE SO CONSENT:

SMITH MOORE LEATHERWOOD, LLP

URICCHIO, HOWE, KRELL, JACOBSON,
TOPOREK, THEOS & KEITH, P.A.

By:
s/Robert D. Moseley, Jr.
Robert D. Moseley, Jr. (Bar No. 5526)
Joseph W. Rohe (Bar No. 11129)
300 East McBee Avenue, Suite 500
P.O. Box 87, Greenville, SC 29602
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff

By:
s/Jonathan F. Krell
Carl H. Jacobson (Bar No. 2059)
Jonathan F. Krell (Bar No. 7552)
17 ½ Broad Street
P.O. Box 399, Charleston, SC 29402
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant Fred Joseph Jones

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EXHIBIT A
MEMORANDUM OF UNDERSTANDING
I have been informed by counsel that certain documents or information to be disclosed to
me in connection with the matter entitled Maxum Casualty Insurance Company v. Fred Joseph
Jones, et al. have been designated as confidential. I have been informed that any such document
or information labeled as “CONFIDENTIAL” are confidential by Order of the Court.
Under penalty of contempt of Court, I hereby agree that I will not disclose any
information contained in such documents to any other person, and I further agree not to use any
such information for any purpose other than this litigation.

DATED: ____________________

____________________________
(Signature)

____________________________
(Printed Name)

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