Tool Shed Inc, The v. Mattoon Rural King Supply Inc
Filing
45
ORDER granting 44 Motion for Confidentiality Order. Signed by Honorable Donald C Coggins, Jr on 1/30/2018.(abuc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Civil Action No.: 6:17-cv-01660-DCC
The Tool Shed, Inc.,
Plaintiff,
v.
CONSENT CONFIDENTIALITY ORDER
Mattoon Rural King Supply, Inc. d/b/a
Rural King Supply
Defendant.
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 30th day of January, 2018, 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” 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 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
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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.
a.
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,
financial information, 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.
b.
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 technology interests of the party or person
producing such material if such information is disclosed. Materials entitled to protection
under the CONFIDENTIAL – ATTORNEYS EYES ONLY designation are limited to
business plans; marketing surveys; financial information, including but not limited to
financial statements (such as budgets, sales or profit projections or reports, profit and loss
statements, balance sheets and income statements); customer lists; documents that identify
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The attorney who reviews the documents and certifies them to be CONFIDENTIAL or ATTORNEYS
EYES ONLY 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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customers or suppliers of the producing party or person; technical drawings and
specifications; and documents related to the design, development and/or improvement of
machinery, products or processes.
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 the producing party’s facility or other
controlled location (“Reading Room”), prior to designation as confidential. The review in the
Reading Room will be conducted by the reviewing party’s outside counsel only. 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 or CONFIDENTIAL –
ATTORNEYS EYES ONLY designation, the copies shall be so marked prior to further
production.
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 or privilege, 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.
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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 – ATTORNEYS EYES ONLY 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
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 (¶ 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).
b.
Limited Third Party Disclosures. The parties and counsel for the parties shall
not disclose or permit the disclosure of any documents designated
CONFIDENTIAL or
CONFIDENTIAL – ATTORNEYS EYES ONLY under the terms of this Order to any other
person or entity except as set forth in subparagraphs (1)-(2) below. For persons or entities
defined in subparagraphs (1)(b), (1)(d), (1)(e), and (2)(c)-(d) below, disclosure shall not occur
before 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.
(1)
Subject to these requirements, the following categories of persons may be
allowed to review documents which have been designated CONFIDENTIAL pursuant to this
Order:
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(a)
counsel and employees of counsel for the parties who have
responsibility for the preparation and trial of the lawsuit;
(b)
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;
(c)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of documents;
(d)
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
(e)
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)
Subject to these requirements, the following categories of persons may be
allowed to review documents which have been designated CONFIDENTIAL – ATTORNEYS’
EYES ONLY pursuant to this Order:
(a)
counsel and employees of counsel for the parties, and in-house
counsel after completing his or her acknowledgment of review of this Order and agreement to be
bound by it (Attachment B hereto), who have responsibility for the preparation and trial of the
lawsuit;
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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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(b)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of documents;
(c) experts employed by the parties or counsel for the parties to assist
in the preparation and trial of the lawsuit. In addition to a signed Acknowledgement in the
form of Attachment B to this Protective Order, the written notice will include: (1) name,
business address, title, and profession of the proposed person; (ii) any previous or current
relationship (personal or professional) between the proposed person and any of the parties or
their counsel; and (iii) a resume or curriculum vitae of the proposed person, if one exists. The
receiving party shall not disclose any CONFIDENTIAL - ATTORNEYS EYES ONLY
information to the proposed person unless the producing party or producing witness
approves of such disclosure or by Order of the Court. The producing party or producing
witness shall have ten (10) calendar days after receipt of such notice of proposed person to
challenge the substance or sufficiency of the notice by providing a detailed, written
explanation and basis for the challenge. A failure of the producing party or producing
witness to timely challenge such notice shall constitute approval of disclosure to the
proposed person.
Upon conclusion of this matter, outside experts and consultants shall
return or destroy all CONFIDENTIAL - ATTORNEYS EYES ONLY material in their
possession, including notes or other documents prepared relating to the CONFIDENTIAL ATTORNEYS EYES ONLY material. The parties shall not seek discovery (whether by
subpoena, deposition or otherwise) from any expert whose identity has become known due to
the requirements of this paragraph unless and until such expert has been designated as a
testifying expert pursuant to the Scheduling Order and Fed. R. Civ. P. 26(a)(2)(A); and
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(d)
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.
prevent
Control of Documents. Counsel for the parties shall take reasonable efforts to
unauthorized
disclosure
of
documents
designated
as
CONFIDENTIAL
or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY pursuant to the terms of this order. Counsel
shall maintain a record of those persons listed in subparagraphs (1)(b), (1)(d), 1(e), and (2)(c)-(d)
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 or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY under this Order or any portion of such a
document, shall be immediately affixed with the designation CONFIDENTIAL or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY, as applicable, if the words do 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
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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.
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 or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY 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 or
CONFIDENTIAL – ATTORNEYS’ EYES ONLY are not entitled to confidential treatment shall
give written notice to the party who affixed the designation of the specific basis for the
challenge(s). 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 or CONFIDENTIAL – ATTORNEYS’
EYES ONLY 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.
10.
Treatment on Conclusion of Litigation.
a.
Order Remains in Effect. All provisions of this Order restricting the use of
documents designated CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY
shall continue to be binding after the conclusion of the litigation unless otherwise agreed or
ordered.
b.
Return of CONFIDENTIAL and CONFIDENTIAL – ATTORNEYS’ EYES
ONLY 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 or CONFIDENTIAL – ATTORNEYS’ EYES ONLY so long as that work
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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.
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 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.
13.
Persons Bound. This Order shall take effect when entered and shall be binding
upon all counsel in this action and their respective law firms and clients.
IT IS SO ORDERED.
s/Donald C. Coggins, Jr.
________________________________
UNITED STATES DISTRICT JUDGE
January 30, 2018
Spartanburg, South Carolina
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
The Tool Shed, Inc.,
Civil Action No.: 6:17-cv-01660-DCC
Plaintiff,
Certification by Counsel of Designation of
Information as Confidential
v.
Mattoon Rural King Supply, Inc. d/b/a
Rural King Supply
Defendant.
Documents produced herewith [whose bates numbers are listed below (or) which are
listed on the attached index] have been marked as CONFIDENTIAL or CONFIDENTIAL –
ATTORNEYS’ EYES ONLY 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
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Civil Action No.: 6:17-cv-01660-DCC
The Tool Shed, Inc.,
Plaintiff,
Acknowledgement of Understanding
And
Agreement to be Bound
v.
Mattoon Rural King Supply, Inc. d/b/a
Rural King Supply
Defendant.
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 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:
[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
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
The Tool Shed, Inc.,
Civil Action No.: 6:17-cv-01660-DCC
Plaintiff,
Certification of Counsel of Need for
Assistance of Party/Employee
v.
Mattoon Rural King Supply, Inc. d/b/a
Rural King Supply
Defendant.
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
1722351v1
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