Sturdivant v. Continental Tire The Americas LLC et al

Filing 72

CONFIDENTIALITY ORDER; granting (66) Motion for Confidentiality Order in case 5:14-cv-02852-JMC; granting (54) Motion for Confidentiality Order in case 5:14-cv-04567-JMC; granting (29) Motion for Confidentiality Order in ca se 5:15-cv-02820-JMC; granting (28) Motion for Confidentiality Order in case 5:15-cv-02821-JMC; granting (29) Motion for Confidentiality Order in case 5:15-cv-02827-JMC; granting (27) Motion for Confidentiality Order in case 5:15-cv-02829-JMC; gra nting (29) Motion for Confidentiality Order in case 5:15-cv-02830-JMC; granting (26) Motion for Confidentiality Order in case 5:15-cv-02831-JMC Signed by Honorable J Michelle Childs on 11/4/2015.Associated Cases: 5:14-cv-02852-JMC et al.(asni, )

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

)
)
ALJANA F. EDWARDS, GUARDIAN AD )
LITEM FOR TLC-E, a minor under the age of )
fourteen years,
)
)
SHUNTAVIS L. STURDIVANT,
)
)
REBEKAH STUCKER,
)
)
TIFFANY N. PROVENCE, ESQ., as Special )
Administrator of the Estate of DTT-S,
)
)
TERESA P. FAUST, as Personal
)
Representative of the Estate of Sharonda T. )
Turnipseed,
)
)
ESHA R. CROWDER, as Personal
)
Representative of the Estate of Tresy S.
)
Crowder,
)
)
TERRY L. JENKINS, as Personal
)
Representative of the Estate of JFW-T,
)
)
Plaintiffs,
)
)
v.
)
)
Continental Tire The Americas, LLC; COSSI )
Holdings, LLC d/b/a SpeeDee Oil Change and )
Auto Service; TBC Corporation d/b/a
)
SpeeDee Oil Change and Auto Service; and )
SpeeDee Worldwide Corporation d/b/a
)
SpeeDee Oil Change and Auto Service,
)
)
Defendants.
)
)

C/A No. 5:14-2852-JMC
C/A No. 5:14-4567-JMC

C/A No. 5:15-2820-JMC
C/A No. 5:15-2821-JMC
C/A No. 5:15-2829-JMC

C/A No. 5:15-2831-JMC

C/A No. 5:15-2827-JMC

C/A No. 5:15-2830-JMC

CONFIDENTIALITY ORDER

1

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 4th day of November, 2015, 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.

In order to designate a portion of any

document or other printed material as CONFIDENTIAL, the producing party shall mark the
designated pages of the material with the following legend:

CONFIDENTIAL-

DISCLOSURE OF THIS INFORMATION IS SUBJECT TO A PROTECTIVE ORDER
AND MAY ONLY BE USED IN THE CASE OF SHUNOVIA STURDIVANT v.
CONTINENTAL TIRE THE AMERICAS, LLC, et al., CASE NO. 5:14- 2852-JMC, AND
NOT FOR ANY OTHER PURPOSE WHATSOEVER. The Confidentiality legend shall be
placed in a manner that does not cover, obscure, or impair the legibility of any information
contained within the material and must be removable by the producing party. In order to
designate a computer database, disc, compact disc, drive, or other electronically recorded
material as CONFIDENTIAL, the producing party shall mark the case or envelope containing
the material with the word CONFIDENTIAL or apply the confidentiality legend set forth above.
Documents printed from such electronic media shall be marked the same as documents originally
produced on paper.

2

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.

Reading Room.

The parties do not anticipate the need for Reading Room

procedures at this time but may revisit the issue if and as necessary.
5.

Depositions. In the case of a deposition or oral examination, counsel for any

party may, during the deposition, designate on the record that testimony involving
CONFIDENTIAL MATERIAL be held as CONFIDENTIAL, and the entire deposition
transcript will be treated as CONFIDENTIAL until designating counsel receives a transcript of
the deposition and for 30 days thereafter.

After receipt of the deposition transcript,

designating counsel shall identify by page and line the portion of the material that designating
counsel intends to designate as CONFIDENTIAL in a written letter served to all counsel of
record and court reporter within 30 days after receiving the written deposition transcript from the
court reporter. Only the portions of the deposition transcript designated by designating counsel
during this time period shall remain CONFIDENTIAL. The parties stipulate that the court
reporter or videographer for any such depositions will be given a copy of this Protective Order,
1

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.
3

will execute an acknowledgement thereof; and shall not disclose to anyone (other than the
COVERED PERSONS as defined in Section I E below) any deposition testimony or exhibits
in this lawsuit. Counsel for any party may provide copies of this Order to any court reporter or
videographer.
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
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
4

assistance is necessary to the conduct of the litigation in which the information is
disclosed2;
(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.

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.

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.
5

7.

Procedures for Filing and Handling. 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 ensure 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 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.
CONFIDENTIAL MATERIAL may be introduced into evidence, if otherwise
admissible, provided that it may only be done so during a hearing or trial when counsel for
the party making the CONFIDENTIAL designation is present, and the parties agree that
confidentiality of the CONFIDENTIAL MATERIALS and CONFIDENTIAL INFORMATION
shall continue to the maximum extent permitted by the Court, pursuant to such procedures as the
Court may require.
If any party or person who has obtained CONFIDENTIAL MATERIAL under the
terms of this Protective Order receives a subpoena or other legal process commanding the
6

production of any such CONFIDENTIAL MATERIAL (the "Subpoena"), such party or person
shall promptly notify counsel for the party making the CONFIDENTIAL designation of the
service of the Subpoena. The party or person receiving the Subpoena shall not produce any
CONFIDENTIAL MATERIAL in response to the Subpoena without either the prior written
consent of counsel for the party making the CONFIDENTIAL designation, or an order of a
court of competent jurisdiction. However, the party making the CONFIDENTIAL designation
shall have the burden of seeking a court order relieving the subpoenaed party or person of the
obligations of the Subpoena prior to the return date of the Subpoena, or the subpoenaed
person or party shall be relieved of its obligations under this paragraph.
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.
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.

7

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 9.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.
10.

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 (¶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
8

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.
c. Written Assurances. At the conclusion of the litigation, the parties shall
forward to counsel for the designating party, upon request, each and every signed
WRITTEN ASSURANCE and a list of all recipients of CONFIDENTIAL
MATERIALS; however, with regard to consultant(s) not identified as expert(s) in this
matter, counsel need only provide a copy of the WRITTEN ASSURANCE redacted to
remove any reference to the identity of the consultant(s); provided, however, that if the
designating party has a good faith reason to believe that CONFIDENTIAL MATERIAL
or CONFIDENTIAL INFORMATION produced in this case has been improperly
disclosed in violation of this Order, then the designating party may either request that
Counsel for any other party provide the WRITTEN ASSURANCES for non-disclosed
consulting experts or may petition the Court to review the WRITTEN ASSURANCES.
11.

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.

9

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
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.
s/J. Michelle Childs
Honorable J. Michelle Childs
United States District Judge
November 4, 2015
Columbia, South Carolina

10

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

)
)
ALJANA F. EDWARDS, GUARDIAN AD )
LITEM FOR TLC-E, a minor under the age of )
fourteen years,
)
)
SHUNTAVIS L. STURDIVANT,
)
)
REBEKAH STUCKER,
)
)
TIFFANY N. PROVENCE, ESQ., as Special )
Administrator of the Estate of DTT-S,
)
)
TERESA P. FAUST, as Personal
)
Representative of the Estate of Sharonda T. )
Turnipseed,
)
)
ESHA R. CROWDER, as Personal
)
Representative of the Estate of Tresy S.
)
Crowder,
)
)
TERRY L. JENKINS, as Personal
)
Representative of the Estate of JFW-T,
)
)
Plaintiffs,
)
)
v.
)
)
Continental Tire The Americas, LLC; COSSI )
Holdings, LLC d/b/a SpeeDee Oil Change and )
Auto Service; TBC Corporation d/b/a
)
SpeeDee Oil Change and Auto Service; and )
SpeeDee Worldwide Corporation d/b/a
)
SpeeDee Oil Change and Auto Service,
)
)
Defendants.
)
)

C/A No. 5:14-2852-JMC
C/A No. 5:14-4567-JMC

C/A No. 5:15-2820-JMC
C/A No. 5:15-2821-JMC
C/A No. 5:15-2829-JMC

C/A No. 5:15-2831-JMC

C/A No. 5:15-2827-JMC

C/A No. 5:15-2830-JMC

CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL

11

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]
PETERS, MURDAUGH, PARKER,
ELTZROTH & DETRICK, P.A.

WOMBLE CARLYLE SANDRIDGE &
RICE, LLP

__________________________________
Ronnie L. Crosby, Fed ID No. 6311
[e-mail]
Randolph Murdaugh, IV, Fed ID No. 6319
[e-mail]
R. Alexander Murdaugh, Fed ID No. 6342
[e-mail]
Austin H. Crosby, Fed ID #11536
[e-mail]

_________________________________
Matthew E. Tillman, Fed ID No. 9115
Five Exchange Street (29401)
P.O. Box 999
Charleston, SC 29402-0999
[phone]
-andMatthew C. Henning, Fed ID No. 14360
Thornton Davis & Fein, P.A.
80 SW 8th Street
Suite 2900
Miami, FL 33130

101 Mulberry Street East
PO Box 457
Hampton, SC 29924
Phone: [phone]
-and-

Attorneys for Defendant Continental Tire the
Americas, LLC

Carol Kendrick, Fed ID No. 23190
Huffman & Kendrick, PLLC
[e-mail]
340 West Morgan Street
PO Box 1008

____________________________________
Clarke W. DuBose, Fed ID No. 612
1201 Main Street – 22nd Floor
PO Box 11889 (29211-1889)
12

Monroe, NC 28111
Phone: [phone]

Columbia, SC 29201
[phone]
[e-mail]

-andAttorney for Defendant COSSI Holdings, LLC
d/b/a SpeeDee Oil Change and Auto Service
and SpeeDee Worldwide Corporation d/b/a
SpeeDee Oil Change and Auto Service

Java O. Warren, Esquire
Fed ID #30692
[e-mail]
Law Office of Java O. Warren
4919 Albemarle Road, Suite 106
Charlotte, NC 28205
Phone: [phone]

__________, 2015

-andBeth E. Bernstein, Esquire
FED ID # 9741
[e-mail]
Bernstein & Bernstein, LLC
PO Box 583
Columbia, SC 29202
Phone: [phone]
Attorneys for Plaintiff
___________, 2015

13

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

)
)
ALJANA F. EDWARDS, GUARDIAN AD )
LITEM FOR TLC-E, a minor under the age of )
fourteen years,
)
)
SHUNTAVIS L. STURDIVANT,
)
)
REBEKAH STUCKER,
)
)
TIFFANY N. PROVENCE, ESQ., as Special )
Administrator of the Estate of DTT-S,
)
)
TERESA P. FAUST, as Personal
)
Representative of the Estate of Sharonda T. )
Turnipseed,
)
)
ESHA R. CROWDER, as Personal
)
Representative of the Estate of Tresy S.
)
Crowder,
)
)
TERRY L. JENKINS, as Personal
)
Representative of the Estate of JFW-T,
)
)
Plaintiffs,
)
)
v.
)
)
Continental Tire The Americas, LLC; COSSI )
Holdings, LLC d/b/a SpeeDee Oil Change and )
Auto Service; TBC Corporation d/b/a
)
SpeeDee Oil Change and Auto Service; and )
SpeeDee Worldwide Corporation d/b/a
)
SpeeDee Oil Change and Auto Service,
)
)
Defendants.
)
)

C/A No. 5:14-2852-JMC
C/A No. 5:14-4567-JMC

C/A No. 5:15-2820-JMC
C/A No. 5:15-2821-JMC
C/A No. 5:15-2829-JMC

C/A No. 5:15-2831-JMC

C/A No. 5:15-2827-JMC

C/A No. 5:15-2830-JMC

ACKNOWLEDGEMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND

14

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 any court
of competent jurisdiction 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 and all civil remedies.
Name:
Job Title:
Employer:
Business Address:

Date:

_______________________
Signature

15

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

)
)
ALJANA F. EDWARDS, GUARDIAN AD )
LITEM FOR TLC-E, a minor under the age of )
fourteen years,
)
)
SHUNTAVIS L. STURDIVANT,
)
)
REBEKAH STUCKER,
)
)
TIFFANY N. PROVENCE, ESQ., as Special )
Administrator of the Estate of DTT-S,
)
)
TERESA P. FAUST, as Personal
)
Representative of the Estate of Sharonda T. )
Turnipseed,
)
)
ESHA R. CROWDER, as Personal
)
Representative of the Estate of Tresy S.
)
Crowder,
)
)
TERRY L. JENKINS, as Personal
)
Representative of the Estate of JFW-T,
)
)
Plaintiffs,
)
)
v.
)
)
Continental Tire The Americas, LLC; COSSI )
Holdings, LLC d/b/a SpeeDee Oil Change and )
Auto Service; TBC Corporation d/b/a
)
SpeeDee Oil Change and Auto Service; and )
SpeeDee Worldwide Corporation d/b/a
)
SpeeDee Oil Change and Auto Service,
)
)
Defendants.
)
)

C/A No. 5:14-2852-JMC
C/A No. 5:14-4567-JMC

C/A No. 5:15-2820-JMC
C/A No. 5:15-2821-JMC
C/A No. 5:15-2829-JMC

C/A No. 5:15-2831-JMC

C/A No. 5:15-2827-JMC

C/A No. 5:15-2830-JMC

CERTIFICATION OF COUNSEL OF NEED FOR ASSISTANCE
OF PARTY/EMPLOYEE

16

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:
❑

A named party;

❑

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].

Date:

____________________________
Signature

17