SourceLink Carolina LLC v. White et al
Filing
26
CONFIDENTIALITY ORDER granting 25 Motion for Confidentiality Order Signed by Honorable Mary Geiger Lewis on 4/6/2017.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
SOURCELINK CAROLINA, LLC,
VS.
JEFF WHITE, REBECCA CALE,
)
Plaintiff, ) Civil Action No. 6:17-cv-00147-MGL
)
)
) CONFIDENTIALITY ORDER
)
AND THE WHEELHOUSE GROUP LLC,
)
)
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 6th day of April, 2017, 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” 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 [except for
documents produced for inspection under the “Reading Room” provisions set forth in paragraph
4 below]. Inadvertent or unintentional production of documents without prior designation as
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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. 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. In order to facilitate timely disclosure of large numbers of
documents which may contain confidential documents, but which have not yet been reviewed
and marked, the following “Reading Room” provisions may be utilized.
a.
Documents may be produced for review at a party’s facility or other controlled
location (“Reading Room”), prior to designation as confidential. After review of these
documents, the party seeking discovery may specify those for which further production is
requested. The producing party shall then copy the requested documents for production.
To the extent any of the requested documents warrant a CONFIDENTIAL designation,
the copies shall be so marked prior to further production.
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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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b.
Unless otherwise agreed or ordered, copies of Reading Room documents shall be
requested within twenty days of review in the Reading Room and shall be produced
within thirty days after the request is made.
c.
The producing party shall maintain a log of persons who have reviewed
documents in the Reading Room and the dates and time of their presence.
d.
The production of documents for review within the confines of a Reading Room
shall not be deemed a waiver of any claim of confidentiality, so long as the reviewing
parties are advised that the Reading Room production is pursuant to this provision and
that the Reading Room may contain confidential materials which have not yet been
marked as confidential.
e.
Until such time as further production is made of documents reviewed in a
Reading Room, the reviewing party shall treat all material reviewed as if it was marked
CONFIDENTIAL at the time reviewed.
5.
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.
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. 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
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.
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.
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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.
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
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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.
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
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(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
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.
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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.
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.
PRIVILEGE LOGGING PROTOCOL
14.
Post-Complaint Documents. Documents generated after the filing of the original
complaint in this litigation need not be logged.
15.
Presumptively Privileged Documents.
privileged need not be logged. These are:
Documents that are presumptively
a. Internal communications within a law firm; and
b. Communications solely between outside counsel (including their staff) and inhouse counsel (including their staff) related to this litigation.
16.
Asserting Privilege or Protection. The Parties will exchange information
regarding claims of attorney-client privilege and/or work product protection in an efficient
manner.
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When asserting privilege on the same basis with respect to multiple documents, it
is presumptively proper to provide the information required by Fed. R.
Civ. P. 26(b)(5)(A)(ii) by group or category. A Party receiving a privilege
log that groups documents or otherwise departs from a document-bydocument or communication-by-communication listing may not object
solely on that basis, but may object if the substantive information required
by Fed. R. Civ. P. 26(b)(5)(A)(ii) has not been provided in a
comprehensible form.
For documents and ESI that cannot be grouped or categorized and for which
individual log entries are necessary, the withholding Party shall provide a
listing of such documents and ESI in electronic spreadsheet format,
providing as much objective metadata as is reasonably available (e.g.,
document control number, date, author(s), recipient(s), file type, etc.) and
an indication of the privilege and/or protection being asserted. “Objective
metadata” does not include substantive content from, or a subjective
description of, the document or ESI being withheld.
Where an individual log entry is necessary for an email thread, the Party’s
privilege log should reflect only the most inclusive message and need not
include earlier, less inclusive messages that are fully contained, including
attachments, within the most inclusive message.
17.
Redactions. Redacted documents need not be logged as long as (i) for emails, the
bibliographic information (i.e., to, from, cc: and bcc: recipients, date, and time) is not redacted,
and the reason for the redaction is noted on the face of the document; and (ii) for non-email
documents, the reason for the redaction is noted on the face of the document. Upon request,
made on an individualized basis as to particular redacted documents, and within reason, the
producing Party will provide log entries for such particular redacted documents in the manner set
forth in paragraph 16 above.
18.
Challenging Asserted Privilege and Protection. If a Party challenges an assertion
of privilege or protection from discovery then the Parties shall meet and confer and make a good
faith effort to resolve such challenges without Court intervention. In the event that the Parties
are not able to resolve such challenges, they shall make a good faith effort cooperatively to
classify the challenged documents and ESI into categories that are subject to common factual and
legal issues insofar as practicable. Thereafter, the Parties shall jointly present their dispute to the
Court.
NON-WAIVER AND CLAWBACK PROTOCOL (FED. R. EVID. 502(D))
19.
Non-Waiver By Production. Disclosure of communications and information in
this case, in any form and regardless of whether made by agreement or otherwise, shall be
without prejudice to and shall not waive for purposes of this proceeding or any other Federal or
State proceeding, any attorney-client privilege, work product protection, or any other applicable
privilege, immunity, or protection afforded by law. For the avoidance of doubt, the provisions of
this paragraph 19 shall apply to all disclosures, privileges, and protections within the scope of
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Fed. R. Evid. 502(d), and further shall apply to all disclosures, privileges, and protections within
this Court’s authority, to the fullest extent permitted under law.
20.
Time For Asserting Privilege And Protection. A producing Party may assert
privilege or protection over produced documents and ESI at any time by notifying the receiving
Party or Parties in writing of the assertion of privilege or protection, except that:
1.
Affirmative use of ESI or a document by the producing Party in the case
waives privilege and protection with respect to that ESI or document; and
2.
Upon use in the case by another of ESI or a document that was produced
by a Party, where such use is known to the Party, that producing Party
must promptly (within 10 business days) assert any claimed privilege
and/or protection over it and request return or destruction thereof.
21.
Disputing Claims of Privilege/Protection Over Produced Documents. Upon
receipt of notice of the assertion of privilege or protection over produced documents or ESI, the
receiving Party shall either:
1.
Promptly certify in writing to the producing Party that it has returned or
destroyed the applicable document(s) and/or ESI, and has made
reasonably diligent efforts to identify and destroy each copy thereof and
all information derived therefrom; or
2.
Promptly meet and confer and, to the extent the assertion of privilege or
protection cannot be resolved amicably after meeting and conferring in
good faith, promptly move the Court for an order that the documents
and/or ESI be produced. The documents and/or ESI in question may be
submitted to the Court. If the receiving party promptly files such a
motion, it may maintain the contested documents and ESI pending
resolution of the contest by the Court. The party asserting privilege shall
have the burden of proving that the privilege or protection exists if any
such motion is filed.
IT IS SO ORDERED.
s/Mary Geiger Lewis
________________________________
UNITED STATES DISTRICT JUDGE
April 6, 2017
Columbia, South Carolina
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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
SOURCELINK CAROLINA, LLC,
VS.
JEFF WHITE, REBECCA CALE,
)
Plaintiff, ) Civil Action No. 6:17-cv-00147-MGL
)
)
) Certification by Counsel of Designation
)
of Information as Confidential
AND THE WHEELHOUSE GROUP LLC,
)
)
Defendants. )
_______________________________________ )
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
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ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
SOURCELINK CAROLINA, LLC,
VS.
JEFF WHITE, REBECCA CALE,
)
Plaintiff, ) Civil Action No. 6:17-cv-00147-MGL
)
)
) Acknowledgment of Understanding
) and Agreement to be Bound
AND THE WHEELHOUSE GROUP LLC,
)
)
Defendants. )
_______________________________________)
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 Stipulated 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
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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
SOURCELINK CAROLINA, LLC,
VS.
JEFF WHITE, REBECCA CALE,
)
Plaintiff, ) Civil Action No. 6:17-cv-00147-MGL
)
)
)
Certification of Counsel
) of Need for Assistance of Party/Employee
AND THE WHEELHOUSE GROUP LLC,
)
)
Defendants. )
_______________________________________)
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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