Ackerman et al v. Travelers Home and Marine Insurance Company, The
Filing
21
CONFIDENTIALITY ORDER granting 20 Motion for Confidentiality Order. Signed by Honorable Donald C Coggins, Jr on 11/1/2018.(abuc)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
David Ackerman and Lauren
Ackerman
) District Court Action No.: 6:18-cv-01537-DCC
)
)
Plaintiffs,
)
)
v.
)
)
CONFIDENTIALITY ORDER
The Travelers Home and Marine
)
Insurance Company
)
)
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 1st day of November, 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” 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
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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.
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.
5.
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
1
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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putative class members not named as plaintiffs in putative class litigation unless and until
one or more classes have been certified.
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;
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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(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.
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.
6.
Filing of Confidential Materials. In the event a party seeks to file any material that
is subject to protection under this Order with the court, 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
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permission to file the document under seal pursuant to the procedural steps set forth in Local Civil
Rule 5.03, DSC, or such other rule or procedure as may apply in the relevant jurisdiction. Absent
extraordinary circumstances making prior consultation impractical or inappropriate, the party
seeking to submit the document to the court shall first consult with counsel for the party who
designated the document as confidential to determine if some measure less restrictive than filing the
document under seal may serve to provide adequate protection. This duty exists irrespective of the
duty to consult on the underlying motion. Nothing in this Order shall be construed as a prior
directive to the Clerk of Court to allow any document be filed under seal. The parties understand
that documents may be filed under seal only with the permission of the court after proper motion
pursuant to Local Civil Rule 5.03.
7.
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.
8.
Challenges to Designation as Confidential. Any CONFIDENTIAL designation is
subject to challenge.
a.
The following procedures shall apply to any such challenge.
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
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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.
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.
9.
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
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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.
10.
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.
11.
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.
12.
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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s/Donald C. Coggins, Jr.
____________________________
Donald C. Coggins, Jr.
UNITED STATES DISTRICT JUDGE
November 1, 2018
Spartanburg, South Carolina
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ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
David Ackerman and Lauren
Ackerman
) District Court Action No.: 6:18-cv-01537-DCC
)
)
Plaintiffs,
)
)
v.
)
)
Certification by Counsel of Designation
The Travelers Home and Marine
)
of Information as Confidential
Insurance Company
)
)
Defendant.
)
__________________________________ )
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 __________, 2018.
Bates numbers 1-201
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.
x
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 454.
❑
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.
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Date: October 31, 2018
s/William P. Davis
William P. Davis
Federal ID No.: 454
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ATTACHMENT B
ACKNOWLEDGE OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
David Ackerman and Lauren
Ackerman
) District Court Action No.: 6:18-cv-01537-DCC
)
)
Plaintiffs,
)
)
v.
)
Acknowledgement of Understanding
)
and
The Travelers Home and Marine
)
Agreement to be Bound
Insurance Company
)
)
Defendant.
)
__________________________________ )
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated _____________, 2018, 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:
Joshua D. Christian
Job Title:
Attorney-at-Law
Employer:
Christian & Davis, LLC
Business Address:
1007 East Washington Street
P.O. Box 332
Greenville, SC 29602
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Date: October 31, 2018
s/Joshua D. Christian
Joshua D. Christian
Federal ID No.: 73820
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