Robinson v. Gilliard

Filing 117

CONSENT CONFIDENTIALITY AND PROTECTIVE ORDER Signed by Honorable J Michelle Childs on 5/16/2018. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
C.A. NO. 5:16-cv-1635-JMC
Corey Jawan Robinson #294233,
Plaintiff,
v.
Officer/Sergeant Mr. Gilliard,
Defendant.

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CONSENT CONFIDENTIALITY AND
PROTECTIVE ORDER

The parties to this Consent Confidentiality and Protective Order (“parties”)
have stipulated that the South Carolina Department of Corrections (“SCDC”)
restricted policies that are the subject of the Plaintiff’s Rule 45 subpoena should be
treated as confidential, and have agreed to the terms of this order; accordingly, it is
on this 16th day of May, 2018, ORDERED:
1.

Scope. All documents (whether in paper or electronic form) produced in

by SCDC in response to the Plaintiff’s Rule 45 subpoena to SCDC (hereinafter
collectively “the subpoenaed policies”) 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 -- ATTORNEY’S EYES
ONLY” on the document in a manner which will not interfere with the legibility of
the document. Documents shall be designated “CONFIDENTIAL – ATTORNEY’S
EYES ONLY” prior to, or contemporaneously with, the production or disclosure of the
documents. Inadvertent or unintentional production of documents without prior
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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. All policy

documents that SCDC produces in response to the Plaintiff’s Rule 45 subpoena will
be designated as “CONFIDENTIAL – ATTORNEY’S EYES ONLY.”
4.

Depositions. For the purposes of depositions only, documents designated

as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be discussed with
deponents and entered as sealed exhibits to the deposition without losing their
confidential designation. The Plaintiff may not see these policy documents, even
during a deposition. Any other party who is present at the deposition may see these
documents during the deposition and assist their attorney in the deposition. However,
the party may not take notes based on the contents of a document designated as
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, and once the deposition is over,
the party may not retain a copy of, or otherwise see, documents bearing this
designation unless SCDC consents in writing or the Court enters an order to the
contrary.
5.

Protection of Confidential Material.
a. General Protections. Documents designated “CONFIDENTIAL –
ATTORNEY’S 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 (¶ 5.5(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).
b. Limited Third Party Disclosures. The parties and counsel for the
parties shall not disclose or permit the disclosure of any documents
designated “CONFIDENTIAL – ATTORNEY’S EYES ONLY” under
the terms of this Order to any other person or entity except as set
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forth in subparagraphs (i)-(iii) 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 A 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 – ATTORNEY’S EYES ONLY” pursuant to this
Order:
i.

ii.

counsel and employees of counsel for the parties who have
responsibility for the preparation and trial of the lawsuit –
these individuals will be exempt from signing the
acknowledgement described above;
other persons only upon consent of the producing party;

iii.

upon order of the court and on such conditions as are
agreed to or ordered; or

iv.

except with the prior consent of the producing party, or
upon further order of the Court, no material designated as
“CONFIDENTIAL – ATTORNEY’S EYES ONLY”
pursuant to the provisions set forth herein, and no
information contained therein may be disclosed to any
persons other than those listed in Section 5(b)(1) – (2).

c. Control of Documents. Counsel for the parties shall take all
reasonable efforts to prevent unauthorized disclosure of documents
designated as “CONFIDENTIAL – ATTORNEY’S 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.
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 – ATTORNEY’S EYES ONLY” 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 or to introduce
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the material as evidence at trial, that party shall take appropriate action to insure
that the documents receive proper protection from public disclosure including: (1)
where appropriate (e.g. in relation to discovery and evidentiary motions), submitting
the documents solely for in camera review; or (2) 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.
7.

Treatment on Conclusion of Litigation.
a. Order Remains in Effect. All provisions of this Order restricting the
use of documents designated “CONFIDENTIAL – ATTORNEY’S
EYES ONLY” shall continue to be binding after the conclusion of the
litigation unless otherwise agreed or ordered.
b. Return of “CONFIDENTIAL – ATTORNEY’S EYES ONLY”
Documents. Within thirty (30) days after the conclusion of the
litigation, including conclusion of any appeal, all documents treated
as “CONFIDENTIAL – ATTORNEY’S EYES ONLY” under this
Order, including copies as defined above shall be returned to the
producing party unless: (1) the document has been entered as
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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 – ATTORNEY’S 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 -- ATTORNEY’S EYES ONLY” under the terms
of this Order.
c. Documents Filed under Seal. The Clerk of Court may, at the
conclusion of the litigation including conclusion of any appeal, return
to counsel for the parties, or destroy, any materials filed under seal.
Before destroying any document filed under seal, the Clerk of Court
shall advise all parties of their option to accept return or destruction
and shall allow no less than thirty (30) days from issuance of the
notice for counsel to respond. In the absence of a response, the Clerk
of Court may destroy documents filed under seal.
8.

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 (including
SCDC) shall have been given notice and an opportunity to be heard on the proposed
modification.
9.

Protective Order under Rule 26(c). This Order also serves as a protective

order under Rule 26(c) of the Federal Rules of Civil Procedure. Unrestricted discovery
and use of the SCDC Restricted Policies sought in the Plaintiff’s Rule 45 subpoena
will adversely affect SCDC’s ability to maintain a safe and secure prison system. This
protective order is necessary to protect the safety of the inmates, SCDC personnel,
and the general public.
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10.

Nothing in this order prevents SCDC from redacting information from

the policies that is not within the scope of allowable discovery in this case.
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; and (2)
their respective clients. However, the parties agree to be bound by the terms of this
Order upon their signatures below.
IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

Columbia, South Carolina
[CONSENTS ON FOLLOWING PAGE]

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We Consent:

s/Chadwick Devlin

s/Elloree Ganes

Chadwick Devlin

Elloree Ganes

Attorney for the Plaintiff

Attorney for the Defendant

s/ Christopher R. Antley

Christopher R. Antley

Attorney for the South Carolina
Department of Corrections

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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
C.A. NO. 5:16-CV-1635-JMC-KDW
Corey Jawan Robinson #294233,
Plaintiff,
v.
Officer/Sergeant Mr. Gilliard,
Defendant.

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ACKNOWLEDGEMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND

The undersigned hereby acknowledges that he or she has read the
Confidentiality and Protective 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 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 – ATTORNEY’S 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.

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The

undersigned

acknowledges

that

a

violation

of

Confidentiality Order may result in penalties for contempt of court.

NAME:
JOB TITLE:
EMPLOYER:
BUSINESS ADDRESS:

SIGNATURE
Date:

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the

Stipulated