Andrews v. Fedex Freight Inc

Filing 17

PROTECTIVE ORDER Signed by Honorable Mary Geiger Lewis on 10/17/2017. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION

Dustin Andrews,
Plaintiff,
v.
FedEx Freight, Inc.,
Defendant.

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C.A. No. 7:17-cv-00586-MGL

PROTECTIVE ORDER

INTRODUCTION
Plaintiff Dustin Andrews (hereinafter “Plaintiff”) requested that Defendant FedEx
Freight, Inc. (hereinafter “FedEx”) produce documentary material in this matter.

FedEx

subsequently asserted privilege and objected to the release of its Driver’s Manual (“the Manual”)
of it on the basis that such materials are confidential and proprietary. Consequently, Plaintiff and
FedEx agreed to a consent protective order in this matter that would allow the Plaintiff to obtain
the Manual.
PURPOSE OF PROTECTIVE ORDER
The purpose of this Protective Order is to facilitate the release and/or use of the Manual,
while protecting the confidentiality of this material.
PROTECTIVE ORDER
The parties stipulate that the Manual is protected, and therefore, the disclosure and use of
that information shall be conducted pursuant to the following conditions:

(1)

Non-Disclosure Requirement: Except as provided herein, neither the Manual nor any of
the information contained therein shall be disclosed or used by anyone or by any entity
for any purpose, without FedEx’s explicit written consent.
(A) Specifically Precluded Uses: It is specifically understood and agreed that the
Manual shall not be used/disclosed for any data base, index, or similar
compilation maintained by any person or entity. It is specifically understood and
agreed, however, that the foregoing shall not prohibit the Plaintiff or his attorney
from summarizing or compiling the Manual for use in the instant matter only.
(B) Specifically Allowable Uses, Disclosures, and Maintenance: It is
specifically understood and agreed that the Manual may be used, and/or disclosed,
and/or maintained, without FedEx’s consent as may be required to comply with
state or federal laws/rules, and court, arbitrator, or administrative order (including
subpoenas duces tecum), and in relation to any claim, litigation, and/or
proceeding arising out of the alleged injuries that the Plaintiff sustained as a result
of the incident that occurred on June 5, 2015, (hereinafter “Subject Incident”),
including the following:
(1)

for the subject case, including for evaluation, investigation, negotiations,
mediation, arbitration, litigation, and/or claims handling;

(2)

for subrogation and reimbursement matters concerning the Subject
Incident, such as subrogation or reimbursement clams for workers’
compensation liens, medical liens, or other insurer’s claims for
subrogation, reimbursement, or contribution relating to the Subject
Incident;

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(3)

for any record keeping requirements or obligations relating to any of the
forgoing, and pertaining to the Subject Incident;

The above-noted permissible uses, disclosures, and maintenance provisions are not
intended to circumvent the intent of this Order to protect the Manual, and are not
intended to unreasonably limit a party’s or their counsel’s or insurer’s record-keeping
obligations or requirements. Plaintiff and/or his attorney, or insurers may request that
additional permissible categories of uses, disclosures, or maintenance be added. FedEx
shall not unreasonably withhold consent, provided that the additional categories
requested are consistent with the intent of this Order.
(2)

Acknowledgment Requirement:

In order to protect the Manual under this Order, any

counsel, employees of the Plaintiff, or agent or employee of any recipient who intends to
disclose the Manual to anyone other than the Plaintiff or Defendant, or their attorneys or
employees (“Others”), for substantive purposes, shall first provide such Others a
complete copy of this Order and shall obtain from such Others a signed Acknowledgment
of the requirements of this Order in the form attached as Exhibit A. With respect to the
Plaintiff’s insurer, an Acknowledgment signed by an authorized representative shall
suffice. A signed Acknowledgment is not required for disclosure to the court, mediator,
arbitrator, or jury as related to any case, claim, proceeding arising out of the Subject
Incident.
(3)

Procedures for Filing Materials: In the event that the Plaintiff intends to file or disclose
the Manual or any part thereof in any public filing, they will give the Defendant ten (10)
days’ notice of such intention, including specific information that the Plaintiff intends to
file or disclose. This Order does not require or preclude the sealing of the Manual. If

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Defendant believes that any part of the Manual requires additional protection of filing
with the Court under seal, Defendant shall identify the specific sections or parts to the
Plaintiff as soon as practical, but no later than ten (10) days after such notice. If within
two (2) weeks after the Defendant’s identification, the parties are unable to agree as to the
extent of additional protection, if any, to be applied, Defendant shall file an appropriate
motion with the Court for a determination as to whether, and to what extent, the Manual
provisions identified by the Defendant shall be sealed or otherwise further protected. The
parties shall exercise good faith efforts to carry out the provisions or this Order. It is
further agreed that submissions of the Manual for the purposes of Arbitration, Mediation,
or settlement communication are not to be considered public disclosures of those
documents.
(4)

Return or Destruction of All Copies: Within ninety (90) days after the final conclusion
of the above-captioned case by fully-executed non-litigation settlement agreement, filed
stipulation for dismissal with prejudice, or final judgment (i.e., a judgment as to which
the time for appeal has run), Plaintiff, at his counsel’s option, shall either return to
Defendant’s counsel or destroy the Manual. Counsel for the Plaintiff shall provide
written confirmation to Defendant’s counsel that counsel for the Plaintiff has destroyed
and/or returned all copies of the Manual, and made a good faith effort to confirm that
Others have destroyed all copies of the Manual.
This paragraph shall not apply to copies of the Manual retained by insurance carriers, law
firms, courts, and court reporters for the specifically allowable uses, disclosures, and
maintenance stated in paragraph 1(B) above.

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(5)

Jurisdiction and Governing Law: This Court shall have the jurisdiction to enforce
and/or modify this Order in accordance with the Federal Rules of Civil Procedure and
South Carolina law. Subject to any contrary provision of South Carolina or federal law,
no citation, contempt or other sanction shall be imposed pursuant to the Federal Rules of
Civil Procedure without a hearing and proof, to the satisfaction of the Court, of a material
breach of this Order.

(6)

Continuing Enforceability: All provisions of this Order shall continue to be binding
after conclusion of the above-entitled case, unless otherwise agreed by the parties or
ordered by a Court.

AND IT IS SO ORDERED.

s/Mary Geiger Lewis
______________________________
The Honorable Mary Geiger Lewis
U.S. District Judge
October 17, 2017
Columbia, South Carolina

WE CONSENT:
s/Charles J. Hodge
Charles J. Hodge, Esq.
Hodge & Langley Law Firm, P.C.
P.O. Box 2765
Spartanburg, SC 29304
Attorney for Plaintiff
s/Robert T. Green
Robert D. Moseley, Jr. (Bar No. 64084)
Robert T. Green (Bar No. 100308)
2 W. Washington Street, Suite 1100
Greenville, South Carolina 29601

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Attorneys for Defendant
ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER

EXHIBIT A

Re:

Dustin Andrews v. FedEx Freight, Inc.
C.A. No. 7:17-cv-00586-MGL

I have read and I understand the Protective Order (“Order”) regarding the use and
disclosure of the Driver’s Manual. I hereby certify my understanding that access to Protected
Materials is provided to me pursuant to the terms and restrictions of the Protective Order in this
proceeding. I understand that I (and my agents and employees) am/are bound to comply with the
terms of the Order. I understand that the contents of the Protected Materials, any notes or other
memoranda, or any other form of information that copies or discloses Protected Materials shall
not be disclosed to anyone other than in accordance with the Protective Order.
Dated: _______________

GREENVILLE 1501705

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