Sentry Select Insurance Company v. Maybank Law Firm LLC et al
Filing
77
CONFIDENTIALITY ORDER Signed by Honorable J Michelle Childs on 7/22/2019. (asni, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Sentry Select Insurance Company,
Case No: 5:15-CV-04984
Plaintiff,
vs.
CONSENT CONFIDENTIALITY ORDER
Maybank Law Firm, LLC, and Roy P.
Maybank,
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 July, 2019,
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” or “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” or a similar designation 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 or CONFIDENTIAL – ATTORNEYS’ EYES ONLY prior to, or
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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
or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY. Any party may designate documents
as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY but only after
review of the documents by an attorney 1 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 CONFIDENTIAL – ATTORNEYS’ EYES ONLY classification, being
more highly protective of disclosure than the CONFIDENTIAL classification, governs
information that an attorney, in good faith, determined would materially affect the
business, financial, commercial, or proprietary interests of the party or person
producing such material if such information is disclosed. The certification for one or
more of the designations 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. Documents provided by a third party shall also be subject to this Order if
The attorney who reviews the documents and certifies them to be CONFIDENTIAL
must be admitted to the Bar of South Carolina, or 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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designated as confidential by the third party.
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 or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY 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 or 5.c) 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
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documents which have been designated CONFIDENTIAL pursuant to this
Order:
(1)
counsel, including corporate or in-house counsel for either party,
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 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; 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.
Limited
Third
Party
Disclosures
of
CONFIDENTIAL
–
ATTORNEYS’ EYES ONLY documents. The parties and counsel for the
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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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parties shall not disclose or permit the disclosure of any documents designated
CONFIDENTIAL – ATTORNEYS’ EYES ONLY under the terms of this Order to
any other person or entity except as set forth in subparagraphs (1) – (4) 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, only the following categories of persons may be
allowed to review documents which have been designated CONFIDENTIAL –
ATTORNEYS’ EYES ONLY pursuant to this Order:
(1)
counsel, including corporate or in-house counsel for any party, and
employees of counsel for the parties who have responsibility for the preparation
and trial of the lawsuit;
(2)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of
documents;
(3)
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 who are not otherwise
employees of the parties; and
(4)
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.
Notwithstanding the restrictions set forth herein, nothing shall prevent
counsel for a party from rendering legal advice to a party that may be based in
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part on information designated as CONFIDENTIAL or CONFIDENTIAL –
ATTORNEY’S EYES ONLY, including any advice that provides summary or
conclusory analysis of such information necessary for the party to make an
informed decision.
d.
Control of Documents. Counsel for the parties shall take reasonable
efforts to prevent unauthorized disclosure of documents designated as
CONFIDENTIAL or CONFIDANTIAL – ATTORNEYS’ EYES ONLY 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. Documents designated
CONFIDENTIAL – ATTORNEYS’ EYES ONLY shall at all times be maintained at
the offices of the parties’ legal counsel of record and/or those third parties
authorized to receive such documents as set forth in paragraph 5.c above.
e.
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
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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 any procedural steps set forth
in any local court (Court of Common Pleas) with jurisdiction over the action or a
portion of the action, 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 having jurisdiction after proper motion. See, for guidance, the USDC for the
District of South Carolina, 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.
a.
Challenges to Designation as Confidential. Any CONFIDENTIAL
or CONFIDENTIAL – ATTORNEYS’ EYES ONLY (both designations hereinafter
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referred to as Confidential except where expressly started otherwise) designation is
subject to challenge. The following procedures shall apply to any such challenge.
b.
The burden of proving the necessity of a Confidential designation
remains with the party asserting confidentiality.
c.
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. A party designating a
document CONFIDENTIAL – ATTORNEYS’ EYES ONLY may change the designation
to CONFIDENTIAL upon challenge and the challenging party may contest that
designation as well by following the same procedures. Counsel for the parties may by
written agreement allow particular CONFIDENTIAL – ATTORNEYS’ EYES ONLY
documents to be utilized by expert witnesses, but such agreement does not otherwise
change the restriction on other persons having access to or utilizing the documents
and any such expert must execute an agreement agreeing to be bound by the terms of
this order. Any restrictions on the use of such documents at trial, such as sealing the
courtroom for testimony related to such documents will be addressed to the trial judge
prior to trial.
d.
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:
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(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.
8.
Treatment on Conclusion of Litigation.
a.
Order Remains in Effect. All provisions of this Order restricting the
use of documents designated CONFIDENTIAL and CONFIDENTIAL – ATTORNEYS’
EYES ONLY 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 (¶ 5.) 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,
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counsel may retain attorney work product including an index which refers or relates to
information designated CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES
ONLY 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.
9.
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.
10.
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 or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY 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.
11.
Persons Bound. This Order shall take effect when entered and shall
be binding upon: (1) counsel who signed below and their respective law firms; (2) any
associated counsel and their respective law firms; and (3) their respective clients.
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WE CONSENT:
s/ Daryl G. Hawkins
Daryl G. Hawkins
Attorney for Plaintiff
s/ Steve Kropski
Steve Kropski
David Overstreet
Mike McCall
Attorneys for Defendant
IT IS SO ORDERED.
July 22, 2019
s/J. Michelle Childs
J. Michelle Childs
United States District Judge
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Sentry Select Insurance Company,
Case No: 5:15-CV-04984
Plaintiff,
vs.
Maybank Law Firm, LLC, and Roy P.
Maybank,
CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION AS
CONFIDENTIAL
Defendants.
Documents produced herewith [whose bates numbers are listed below (or) which
are listed on the attached index] have been marked as CONFIDENTIAL and/or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY subject to the Confidentiality Order entered
in this action which Order is dated ___________________.
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 State of South Carolina. My South
Carolina Bar number is ___________.
❑
I am not a member of the Bar of the State 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 t h e s t a t e o f _____________________, where my Bar number is
__________. I understand that by completing this certification I am submitting to the
jurisdiction of the Courts of South Carolina including the Courts of Commons Pleas and
the Appellate Courts of South Carolina as to any matter relating to this certification.
Date: _______________
_________________________
Printed Name of Counsel
_________________________
Signature of Counsel
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ATTACHMENT B
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Sentry Select Insurance Company,
Case No: 5:15-CV-04984
Plaintiff,
vs.
Maybank Law Firm, LLC, and Roy P.
Maybank,
ACKNOWLEDGMENT OF
UNDERSTANDING AND AGREEMENT TO
BE BOUND
Defendants.
The undersigned hereby acknowledges that he or she has read the Confidentiality
Order dated ________________________, 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 Courts of the State 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 and/or CONFIDENTIAL – ATTORNEYS’
EYES ONLY 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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ATTACHMENT C
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Sentry Select Insurance Company,
Case No: 5:15-CV-04984
Plaintiff,
vs.
Maybank Law Firm, LLC, and Roy P.
Maybank,
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY OR
EMPLOYEE
Defendants.
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.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 or CONFIDENTIAL – ATTORNEYS’ EYES ONLY.
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
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