Thrower v. Michelin North America Inc et al

Filing 15

STIPULATED SHARING AND NON-SHARING PROTECTIVE ORDER. Signed by Honorable J Michelle Childs on 9/20/2017. (asni, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Ralph Thrower,
Plaintiff,
v.
Ford Motor Company, TBC Retail Group,
Inc. d/b/a NTB-National Tire and Battery,
TBC Corporation d/b/a NTB-National Tire
and Battery, and Sumitomo Corporation of
America d/b/a NTB-National Tire and
Battery,
Defendants.

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Civil Action No.: 5:17-cv-02261-JMC

STIPULATED SHARING AND NONSHARING PROTECTIVE ORDER

In order to preserve and maintain the confidentiality of certain confidential,
commercial and/or proprietary documents and information produced or to be produced by
FORD MOTOR COMPANY (“Ford”) or by any party in this action, it is ordered that:
1.

Documents or information to be produced or provided by Ford or any party in

this litigation that contain confidential, commercially sensitive, private personal information
and/or proprietary information may be designated as confidential by marking or placing the
applicable notice “Subject to Non-Sharing Protective Order,” “Subject to Protective Order,”
or “Confidential,” or substantially similar language on media containing the documents, on
the document itself, or on a copy of the document, in such a way that it does not obscure the
text or other content of the document.

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2.

As used in this Order, the terms “documents” or “information” mean all written

material, electronic data, videotapes and all other tangible items, produced in whatever format
(e.g., hard copy, electronic, digital, etc.) and on whatever media (e.g., hard copy, videotape,
computer diskette, CD-ROM, DVD, by secure electronic transmission, hard drive or otherwise).
3.

Documents or information designated as “Subject to Non-Sharing Protective

Order,” “Subject to Protective Order,” or “Confidential” or substantially similar language in
accordance with the provisions of this Order (“Protected Documents” or “Protected
Information”) shall only be used, shown or disclosed as provided in this Order. However,
nothing in this Order shall limit a party’s use or disclosure of his or her own information
designated as a Protected Document or Protected Information.
4.

If a receiving party disagrees with the “Protected” designation of any document

or information, the party will notify the producing party in a written letter and identify the
challenged document(s) with specificity, including Bates-number(s) where available, and the
specific grounds for the objection to the designation. If the parties are unable to resolve the
issue of confidentiality regarding the challenged document(s), Ford will thereafter timely
apply to the Court to set a hearing for the purpose of establishing that the challenged
document(s) or information is/are confidential. Protected Documents will continue to be
treated as such pending determination by the Court as to the confidential status.
5.

Protected Documents and any copies thereof shall be maintained confidential by

the persons authorized to receive the documents pursuant to paragraph 6 and shall be used only
for prosecuting, defending, or attempting to settle this litigation, subject to the limitations set forth
herein.
6.

Protected Documents shall be disclosed only to “Qualified Persons.” Qualified

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Persons are limited to:
a.

Counsel of Record for the parties, and the parties;

b.

Paralegals and staff employed by Counsel of Record and involved in the
preparation and trial of this action;

c.

A vendor hired by a party to host data and maintain a database of
electronic data or perform other work related to the collection, review
or production of documents in the case;

d.

Experts and non-attorney consultants retained by the parties for the
preparation and/or trial of this case, provided that no disclosure shall be
made to any expert or consultant who is employed by a competitor of
Ford;

e.

The Court, the Court’s staff, witnesses, and the jury in this case; and

f.

With respect to documents designated as “Sharing” or “Subject to
Protective Order,” attorneys representing Plaintiff(s) and the experts and
non-attorney consultants retained by such attorneys, in other cases
pending against Ford involving a 1992-2014 Ford Econoline (E-150/E250/E-350) completed extended van involved in a rollover collision and
in which it is alleged that the front door latch system, handling and
stability characteristics, and/or roof structure were defective, provided
no disclosure shall be made to any expert or consultant who is employed
by a competitor of Ford.

7.

The receiving party must make reasonable efforts to ensure the individuals

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described in paragraphs 6(b), 6(c), 6(d) and 6(f) above are Qualified Persons.
8.

Before receiving access to any Protected Document or the information contained

therein, each person described in paragraphs 6(c), 6(d) and 6(f) above shall execute a “Written
Assurance” in the form contained in Exhibit A, attached hereto. The receiving party shall retain
each such executed Written Assurance and shall keep a list identifying (a) all persons described in
paragraphs 6(c), 6(d) and 6(f) above to whom Protected Documents have been disclosed, and (b)
all Protected Documents disclosed to such persons.

Executed written assurances by those

individuals described in paragraph 6 shall be maintained by Counsel of Record for the Parties.
Each such executed Written Assurance and list shall be submitted to counsel for Ford, upon
request, at the termination of this litigation or upon Order of the Court requiring production,
whichever comes first. However, for consulting experts who were not designated as testifying
experts, the receiving party may redact the name, address, and signature of the consultant before
disclosing the executed Exhibit A and document list for that person. To the extent the “Qualified
Persons” described in paragraph 6(d) and 6(f) above include privileged non-testifying expert
consultants, the receiving party shall retain each such executed Exhibit A and shall keep a list
identifying (a) all such non-testifying expert consultants described in paragraphs 6(d) and 6(f)
above to whom Protected Documents have been disclosed, and (b) all Protected Documents
disclosed to such persons. In the event that Ford (or the producing party) seeks to compel the
production of each unredacted and executed Exhibit A for good cause, the receiving party shall
submit each unredacted and executed Exhibit A and list to the Court for in camera inspection.
Persons described in paragraph 6(b) shall be covered under the signature of Counsel of Record.

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9.

As the Protected Documents may only be distributed to Qualified Persons,

Qualified Persons may not post Protected Documents on any website or internet accessible
document repository, excepting a vendor hosted review platform for the sole purpose of
reviewing the information for the subject case and not for any other purpose, and shall not under
any circumstance sell, offer for sale, advertise, or publicize either the Protected Documents and
the Confidential information contained therein or the fact that such persons have obtained Ford’s
(or the producing party’s) Protected Documents and confidential information.
10.

To the extent that Protected Documents or information obtained therefrom are

used in the taking of depositions (including exhibits) or other pretrial testimony, such documents
or information shall remain subject to the provisions of this Order, along with the transcript
pages of the deposition testimony and/or pre-trial testimony dealing with, referring to or
referencing the Protected Documents or information. Designation of the portion of the transcript
(including exhibits) which contains references to Protected Documents or information shall be
made (i) by a statement to such effect on the record during the proceeding in which the testimony
is received, or (ii) by written notice served on counsel of record in this Litigation within thirty
(30) business days after the receipt of the draft or final transcript (whichever is received
earlier) of such proceeding (as used herein, the term “draft transcript” does not include an
ASCII or rough transcript).

However, before such thirty (30) day period expires, all

testimony, exhibits and transcripts of depositions or other testimony shall be treated as
Protected Documents. All portions of transcripts not designed as Confidential within the time
frame provided herein shall be deemed not confidential.

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11.

If any party disagrees with the designation of all or part of a deposition transcript

designated as “Protected” pursuant to Paragraph 10 above, such party must notify the designating
party in a written letter and identify the testimony (by line and page designation) and the specific
grounds for the objection to the designation. If the parties are unable to resolve the issue of
confidentiality regarding the challenged deposition testimony, the designating party will
thereafter timely apply to the Court to set a hearing for the purpose of establishing that the
challenged deposition testimony is confidential. The designated deposition testimony at issue,
and any related exhibits, will continue to be treated as a Protected Document, in accord with
its respective designation, pending determination by the Court as to the confidential status.
12.

All documents that are filed with the Court during pre-trial proceedings that contain

any portion of any Protected Document or information taken from any Protected Document shall
be filed under seal by following the protocols for sealed filings in this Court. If a party believes
that documents designated as Protected Documents cannot or should not be sealed, pursuant to the
protocols and rules in this Court, then the party wishing to file the materials shall particularly
identify the documents or information that it wishes to file to the producing party, in writing. The
parties will then meet and confer, in a good faith effort to resolve the dispute. Failing agreement,
the party wishing to file the materials must request a ruling from the Court on whether the Protected
Documents in question must be submitted under seal. The producing party shall have the burden
of justifying that the materials must be submitted under seal. Absent written permission from the
producing party or a court Order

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denying a motion to seal, a receiving party may not file in the public record any Protected
Documents during any pre-trial proceedings.
13.

To the extent the receiving party wishes to use Protected Documents at trial, those

exhibits will be disclosed on the receiving party’s exhibit list pursuant to the scheduling order
entered by the Court, so that the producing party has an opportunity pursuant to Rule 41.1 of the
South Carolina Rules Of Civil Procedure, to move for an order to seal all or portions of the
Court’s record, prior to the placement of the information which has been designated as confidential
or protected pursuant to this Protective Order into the record of the Court. The parties agree that
they will work together to provide timely and advanced notice should any party wish to submit
another party’s Protected Documents or Confidential Information to the Court. If the parties are
unable to agree, nothing in this Paragraph 13 shall preclude a party from making an additional
objection or submitting further briefing on the sealing issue with the Court. The party wishing to
place the confidential or protected information into the Court’s record shall not do so until the
Court rules upon the producing parties’ motion, objection or request to seal.
14.

To the extent Ford (or the producing party) is requested to produce documents

it has determined should not be subject to the sharing provision of this protective order in
paragraph 6(f), Ford (or the producing party) will designate such documents as “NonSharing.” Documents designated as “Non-Sharing” shall not be shared under paragraph 6(f).
15.

With respect to Protected Documents designated as “Non-Sharing,” within one

hundred and twenty (120) days after the conclusion of this case, counsel for the parties who
received Protected Documents, including any documents that any such party disclosed to any
person described in paragraph 6(b) or (c) above, shall either (a) return to Ford (or the producing
party) the Protected Documents; or (b) securely destroy the Protected Documents and certify

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such destruction to Ford (or the producing party) within one hundred and fifty (150) days after
the conclusion of this case.
16.

With respect to documents designated as “Sharing” or “Subject to Protective

Order,” Counsel for the parties shall not be required to return the Protected Documents to
Ford after the conclusion of this case and may retain the documents pursuant to the terms of
this Order.
17.

Submission to regulatory agency or governmental entity:
a.

This protective order shall not be construed to prohibit Ford’s disclosure
or production of safety-related information to a regulatory agency or
governmental entity with an interest in the safety-related information.
Material subject to this protective order may only be disclosed to a
regulatory agency or governmental entity with an interest in the safety­
related information by Ford, and such disclosure shall be made pursuant
to 49 CFR 512 or similar applicable rules.

b.

If other parties to this protective order have a reasonable belief that
certain documents are safety-related and need to be disclosed to a
regulatory agency or governmental entity, they are not prohibited from
advising the regulatory agency or governmental entity that they believe
such documents were produced in this case, however, any disclosure of
such documents shall adhere to the procedure described in Paragraph
17(a).

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18.

Inadvertent or unintentional production of documents or information

containing confidential information that should have been designated as Protected
Document(s) shall not be deemed a waiver in whole or in part of the party’s claims of
confidentiality.
19.

The parties may disclose and produce responsive documents to each other in

this litigation, and seek to do so without risking waiver of any attorney-client privilege, work
product or other applicable privilege or protection. As such, the parties will adhere to the
following procedures with regard to the production of privileged or protected material, should
that occur:
a.

The production of documents (including both paper documents and
electronically stored information or “ESI”) subject to protection by the
attorney-client and/or work product doctrine or by another legal
privilege protecting information from discovery, shall not constitute a
waiver of any privilege or other protection, provided that the producing
party notifies the receiving party, in writing, of the production after its
discovery of the same.

b.

If the producing party notifies the receiving party after discovery that
privileged materials (hereinafter referred to as the “Identified Materials”)
have been produced, the Identified Materials and all copies of those
materials shall be returned to the producing party or destroyed or deleted,
on request of the producing party. The producing party will provide a
privilege log providing information upon request or if required by Rule
26(b)(5)(A), SCRCP and applicable case law to the receiving party at the

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time the producing party provides the receiving party notice of the Identified
Materials. If the receiving party has any notes or other work product
reflecting the contents of the Identified Materials, the receiving party will
not review or use those materials unless a court later designates the
Identified Materials as not privileged or protected.
c.

The Identified Materials shall be deleted from any systems used to house
the documents, including document review databases, e-rooms and any
other location that stores the documents. The receiving party may make no
use of the Identified Materials during any aspect of this matter or any other
matter, including in depositions or at trial, unless the documents have
been designated by a court as not privileged or protected.

d.

The contents of the Identified Materials shall not be disclosed to anyone
who was not already aware of the contents of them before the notice was
made. The receiving party must take reasonable steps to retrieve the
Identified Materials if the receiving party disclosed the Identified Materials
before being notified.

e.

If any receiving party is in receipt of a document from a producing party
which the receiving party has reason to believe is privileged, the
receiving party shall in good faith take reasonable steps to promptly
notify the producing party of the production of that document so that the
producing party may make a determination of whether it wishes to have
the documents returned or destroyed pursuant to this Stipulation and
Order.

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f.

The party returning the Identified Materials may move the Court for an
order compelling production of some or all of the Identified Material
returned or destroyed, but the basis for such motion may not be based
on the fact or circumstances of the production.

g.

The disclosure of Identified Materials in this action is not a waiver of
the attorney-client privilege, work product doctrine or any other asserted
privilege in any other federal or state proceeding, pursuant to Rule 501,
SCRE.

20.

No provision of this stipulated Order shall constitute a concession by any party

that any documents are subject to protection by the attorney-client privilege, the work product
doctrine or any other potentially applicable privilege or doctrine. No provision of this stipulated
order is intended to waive or limit in any way either party’s right to contest any privilege claims
that may be asserted with respect to any of the documents produced except to the extent set forth
herein.
21.

In the event that a party produces a document without a confidentiality

designation as permitted by this Order, the following procedures shall apply:
a.

The producing party shall, within fourteen (14) days of the discovery of
the disclosure, notify the other party in writing. The party receiving
such notice shall promptly destroy the document, including any copies it
has, or return the document on request of the producing party. Within
ten (10) days after such document is returned or its destruction certified,
the producing party will produce a new version of any such document
that was returned or destroyed, which will contain the appropriate

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confidentiality designation.
b.

If the receiving party disputes the producing party’s claim of
confidentiality, that party may move the Court to challenge the
confidential designation in accordance with Paragraph 4 of this Order.
If the receiving party elects to file such a motion, the receiving party
may retain possession of the document, but shall treat it in accordance
with the terms of the Protective Order pending resolution of the motion.
If the receiving party’s motion is denied, the parties shall promptly
comply with Paragraph 18(a) of this Order.

c.

The production of such document does not constitute a waiver of any
claim of confidentiality as set forth in this order or any other matter in
any other jurisdiction, unless otherwise ordered by the Court.

22.

This Protective Order may not be waived, modified, abandoned or terminated,

in whole or part, except by an instrument in writing signed by the parties. If any provision of
this Protective Order shall be held invalid for any reason whatsoever, the remaining provisions
shall not be affected thereby.
23.

After termination of this litigation, the provisions of this Order shall continue

to be binding. This Court retains and shall have jurisdiction over the parties and recipients
of the Protected Documents for enforcement of the provisions of this Order following
termination of this litigation.
24.

This Protective Order shall be binding upon the parties hereto, upon their

attorneys, and upon the parties’ and their attorneys’ successors, executors, personal
representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions,

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employees, agents, independent contractors, or other persons or organizations over which
they have control.
IT IS SO ORDERED.

United States District Judge
September 20, 2017
Columbia, South Carolina

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WE CONSENT:
September 20, 2017

By:

s/ Carmelo B. Sammataro
J. Kenneth Carter, Jr. (Fed. I.D. # 5108)
Carmelo B. Sammataro (Fed. I.D. # 9174)
Turner, Padget, Graham & Laney, P.A.
Post Office Box 1473
Columbia, SC 29202
[e-mail]
[e-mail]
Phone: [phone]
Fax: [phone]
ATTORNEYS FOR DEFENDANT
FORD MOTOR COMPANY

WE CONSENT:
September 20, 2017

By:

s/ Ronnie L. Crosby
Ronnie L. Crosby (Fed. I.D. # 6311)
Austin H. Crosby (Fed. I.D. # 11536)
Peters Murdaugh, Parker, Eltzroth & Detrick,
P.A.
Post Office Box 457
Hampton, SC 29924-0457
[e-mail]
[e-mail]
Phone: [phone]
Fax: [phone]
Alex B. Cash (Fed. I.D. #5559)
Rosen & Hagood, LLC
134 Meeting Street, Suite 200
Charleston, SC 29401
[e-mail]
Phone: [phone]
Fax: [phone]
ATTORNEYS FOR PLAINTIFF

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Ralph Thrower,
Plaintiff,
v.
Ford Motor Company, TBC Retail Group,
Inc. d/b/a NTB-National Tire and Battery,
TBC Corporation d/b/a NTB-National Tire
and Battery, and Sumitomo Corporation of
America d/b/a NTB-National Tire and
Battery,
Defendants.

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Civil Action No.: 5:17-cv-02261-JMC

EXHIBIT A

AFFIDAVIT OF __________________, being duly sworn and personally appearing
before the undersigned attesting officer, duly authorized by law to administer oaths, deposes and
says that the within statements are true and correct:
1.
I have read the Stipulated Sharing and Non-Sharing Protective Order attached hereto, and
I understand its terms and meanings.
2.
I agree that my signature below submits me to the jurisdiction of the United Stated District
Court for the District of South Carolina, Orangeburg Division, in the above-captioned case and
binds me to the provisions of the Stipulated Sharing and Non-Sharing Protective Order, including
to all promises undertaken in the Order, as if originally agreed by me.

Further Affiant sayeth not.
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This ______ day of ________________, 20___.

__________________________________
AFFIANT
SUBSCRIBED AND SWORN to before me
this ___ day of ______________ 20___.
___________________________________
NOTARY PUBLIC OF ________________
Name: _____________________________
My Commission Expires: ______________

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