Epstein v. World Acceptance Corporation et al

Filing 137

CONFIDENTIALITY ORDER granting 136 Motion for Confidentiality Order. Signed by Honorable Mary Geiger Lewis on 2/19/2016.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
)
EDNA SELAN EPSTEIN, Individually and )
on Behalf of All Others Similarly Situated,
)
)
Plaintiff,
)
)
vs.
)
)
WORLD ACCEPTANCE CORPORATION, )
A. ALEXANDER MCLEAN, III, JOHN L. )
CALMES, JR., KELLY M. MALSON and
)
MARK ROLAND,
)
)
Defendants.
)

CIVIL ACTION NO.
6:14-cv-01606-MGL

)

CONSENT CONFIDENTIALITY ORDER
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 19th day of February, 2016, 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.

Any person or entity who

produces any documents, and any person or entity who generated any documents or created or
provided any information that is contained in any documents, shall be referred to herein as a
“Producing Party.”
2.

Form and Timing of Designation.

Confidential documents shall be so

designated by placing or affixing the word “CONFIDENTIAL” 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 prior

to, or 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. In the event a party or non-party inadvertently produces
materials which should have been, but were not, marked CONFIDENTIAL, the party or nonparty may designate such materials as CONFIDENTIAL by notifying counsel of the error, and
producing the documents again, with the CONFIDENTIAL designation, prior to the expiration
of the discovery deadline set by the Court. The parties will then treat those documents so
marked as if they had been marked CONFIDENTIAL when first produced.
3.

Documents Which May be Designated Confidential. Any party or non-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.

Depositions. Portions of depositions or other pretrial testimony shall be deemed

confidential only if (i) designated as such by counsel on the record when the deposition is taken
or (ii) by written notice, sent by such counsel to all parties within thirty (30) days after receiving

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.
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a copy of the transcript thereof, or at the time errata sheets for such transcripts are provided to
the court reporter, whichever occurs earlier; and in both of the foregoing instances, by directing
the court reporter that the appropriate confidential legend be affixed to the first page and all
portions of the original and all copies of the transcript containing any Confidential documents.
Such designation shall be specific as to the portions to be protected. All depositions shall be
treated in their entirety as Confidential for a period of thirty (30) days after receipt of the
transcript.
5.

Confidential Documents Produced by Non-Party. In the case of documents

produced by a non-party that were not designated as confidential by the non-party that produced
them, any Party may designate the documents as containing Confidential information by (i)
placing the appropriate legend on each page containing Confidential documents after receiving
the production from the non-party or the Party who directly receives the production from the
non-party; or (ii) identifying in an e-mail, by bates number, the documents to be treated as
Confidential documents. The designating party shall comply with the certification requirement
in paragraph 3.
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.

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b.

Limited Third Party Disclosures of Confidential Documents. The parties and

counsel for the parties shall not disclose or describe, or permit the disclosure or
description, in whole or in part, of any documents designated CONFIDENTIAL under
the terms of this Order to any other person or entity except as set forth in subparagraphs
(1)-(8) below. Prior to disclosure, those listed in subparagraphs (2), (4), (5), and (7) must
have 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, including outside

administrators that perform regular activities for that party, 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
disclosed2;
(3)

witnesses or deponents and their counsel, during the course of or, to the

extent necessary, in preparation for depositions or testimony in the Litigation;
(4)

court reporters engaged for depositions and those persons, if any,

specifically engaged for the limited purpose of making photocopies of documents;

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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2

(5)

consultants, investigators, or experts (hereinafter referred to collectively as

“experts”), including their staff and others who are assisting experts in preparing
for their deposition(s), retained by the parties or counsel for the parties to assist in
the preparation and trial of the lawsuit;
(6)

the author, addressee, or recipient of the documents;

(7)

professional vendors to whom disclosure is reasonably necessary for the

Action, including, but not limited to, outside copying vendors and outside
litigation support vendors;
(8)

mediators, settlement judges, and their respective staff;

(9)

the Court and its employees and staff and supporting personnel, including,

but not limited to, law clerks, jurors, and alternative jurors, pursuant to paragraph
7 of this Confidentiality Order; and
(10)

other persons only upon order of the court or written stipulation of the

Producing Party.
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

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designation “CONFIDENTIAL” if the word does not already appear on the copy. All
such copies shall be afforded the full protection of this Order.
e.

Effect Upon a Party’s Own Documents. This Confidentiality Order has no

effect upon, and shall not apply to, the parties’ use of their own Confidential documents
for any purpose.

Moreover, if such a disclosure is made or the CONFIDENTIAL

document(s) be used in such a way that is beyond those articulated in this Order, the
designating party shall have seven (7) days to notify the opposing party in writing and
withdraw the CONFIDENTIAL designation from any such document(s).
7.

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 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.
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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. The following procedures shall apply to any such challenge.
a.

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.
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.

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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
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.
11.

Inadvertent Production of Privileged Materials. If information subject to a

claim of attorney-client privilege or attorney work product is nevertheless inadvertently
produced, such production shall in no way prejudice or otherwise constitute a waiver of, or
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estoppel as to, any claim of privilege or work product. If a claim of inadvertent production is
made pursuant to this paragraph with respect to information then in the custody of another party,
such party shall promptly return to the claiming party or person that material as to which the
claim of inadvertent production has been made, and the receiving party shall not use such
information for any purpose, except in good faith to dispute the claim of privilege or work
product. The party returning such material may then move the Court for an Order compelling
production of the material, but the motion shall not assert as a ground for entering such an Order
the fact or circumstance of the inadvertent production.
12.

Confidential Documents Subpoenaed or Ordered Produced in Other

Litigation. Nothing in this Confidentiality Order shall preclude any party or Producing Party
from complying with a subpoena or a request from a governmental agency requesting production
of Confidential documents; provided, however, that counsel for the Producing Party shall be
given notice of such a subpoena or request from a governmental agency within seven (7)
business days of receipt thereof by the party receiving the subpoena or request and, if possible, at
least seven (7) business days prior to production of any Confidential documents.

If the

Producing Party files a motion for protective order in this Court, or in any other court of
competent jurisdiction, then the party that received the subpoena or request will await a court
ruling on the motion before producing the subpoenaed or requested documents or information.
13.

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.

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14.

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.
15.

Unauthorized Disclosure of Confidential Documents.

If Confidential

documents are disclosed to any person other than in the manner authorized by this
Confidentiality Order, the Party responsible for the disclosure must immediately bring all
pertinent facts relating to such disclosure to the attention of the Producing Party, and without
prejudice to the rights and remedies of the Producing Party, make every effort to retrieve the
improperly disclosed material and to prevent further unauthorized disclosure on its own part or
on the part of the recipient of such information or material.
16.

No Waiver of Objections. Nothing in this Order shall prejudice the right of any

party or non-party to object to the production of any document or part thereof upon any
appropriate ground, including any applicable privilege, and nothing herein shall be construed as
a waiver of such right. Moreover, nothing in this Order shall prejudice the right of any party to
object to the admissibility at trial of any litigation material or other evidentiary material on any
appropriate ground, and nothing herein shall be construed as a waiver of such right.
17.

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.

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IT IS SO ORDERED.
s/Mary Geiger Lewis
________________________________
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE
February 19, 2016
Columbia, South Carolina

11

ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
)
EDNA SELAN EPSTEIN, Individually and )
on Behalf of All Others Similarly Situated,
)
)
Plaintiff,
)
)
vs.
)
)
WORLD ACCEPTANCE CORPORATION, )
A. ALEXANDER MCLEAN, III, JOHN L. )
CALMES, JR., KELLY M. MALSON and
)
MARK ROLAND,
)
)
Defendants.
)

CIVIL ACTION NO.
6:14-cv-01606-MGL

)

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]

[Signature of Counsel [s/name]]
Signature of Counsel
[Printed Name of Counsel [A]]
Printed Name of Counsel
12

ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
)
EDNA SELAN EPSTEIN, Individually and )
on Behalf of All Others Similarly Situated,
)
)
Plaintiff,
)
)
vs.
)
)
WORLD ACCEPTANCE CORPORATION, )
A. ALEXANDER MCLEAN, III, JOHN L. )
CALMES, JR., KELLY M. MALSON and
)
MARK ROLAND,
)
)
Defendants.
)

CIVIL ACTION NO.
6:14-cv-01606-MGL

)

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 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 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 Confidentiality Order may result in
penalties for contempt of court.
Name:

[undersigned name [att B]]

Job Title:

[Job Title [att B]]

Employer:

[Employer [att B]]

Business Address:

[Business Address [att B]]

Date: [date attachment B signed]

[Signature [attachment B]]
Signature
13

ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
)
)
)
)
Plaintiff,
)
)
vs.
)
)
WORLD ACCEPTANCE CORPORATION, )
A. ALEXANDER MCLEAN, III, JOHN L. )
CALMES, JR., KELLY M. MALSON and
)
MARK ROLAND,
)
)
Defendants.
)
EDNA SELAN EPSTEIN, Individually and
on Behalf of All Others Similarly Situated,

CIVIL ACTION NO.
6:14-cv-01606-MGL

)

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: [date attachment C signed]

[Signature [attachment C]]
Signature

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