Spartan Chemical Company Inc v. Contec Inc
Filing
26
CONFIDENTIALITY ORDER granting 25 Motion for Confidentiality Order Signed by Honorable Mary Geiger Lewis on 11/20/2017.(abuc)
ED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
SPARTAN CHEMICAL COMPANY, INC., a
corporation,
Plaintiff,
v.
CONTEC, INC., a corporation,
Defendant.
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C/A No.: 7:17-cv-01983-MGL
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 20th day of November, 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” or “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 ATTORNEYS’ EYES ONLY 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.
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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 for CONFIDENTIAL documents. 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 (¶ 5.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.
b.
Limited Third Party Disclosures for CONFIDENTIAL documents.
The
parties and counsel for the parties shall not disclose or permit the disclosure of any
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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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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.
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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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c.
General
Protections
for
ATTORNEYS’
EYES
ONLY
documents.
Documents designated ATTORNEYS’ EYES ONLY under this Order shall not be used
or disclosed by counsel for the parties or any other persons identified below (¶ 5.d.) for
any purposes whatsoever other than preparing for and conducting the litigation in which
the documents were disclosed (including any appeal of that litigation).
d.
Limited Third Party Disclosures of ATTORNEYS’ EYES ONLY documents.
Counsel for the parties shall not disclose or permit the disclosure of any documents
designated ATTORNEYS’ EYES ONLY under the terms of this Order to any other
person or entity except as set forth in subparagraphs (1)-(4) 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
ATTORNEYS’ EYES ONLY 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)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of documents;
(3)
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
(4)
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.
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e.
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.
f.
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” or “ATTORNEYS’ EYES ONLY” if the designation
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 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.
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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. 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;
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(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 8.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.
Challenges to Designation as ATTORNEYS’ EYES ONLY.
ATTORNEYS’ EYES ONLY designation is subject to challenge.
Any
The following procedures
shall apply to any such challenge.
a.
The burden of proving the necessity of a ATTORNEYS’ EYES ONLY
designation remains with the party asserting confidentiality.
b.
A party who contends that documents designated ATTORNEYS’ EYES ONLY
are not entitled to ATTORNEYS’ EYES ONLY 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 remove the designation or move for an Order confirming the Confidential
designation.
c.
Notwithstanding
any
challenge
to
the
designation
of
documents
as
ATTORNEYS’ EYES ONLY, all material previously designated 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 ATTORNEYS’ EYES ONLY
withdraws such designation in writing;
(2)
the party who claims that the documents are ATTORNEYS’ EYES ONLY
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
ATTORNEYS’ EYES ONLY information.
d.
Challenges to the ATTORNEYS’ EYES ONLY designation 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 and ATTORNEYS’ EYES ONLY Documents.
Within thirty (30) days after the conclusion of the litigation, including conclusion of any
appeal, all documents treated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
under this Order, including copies as defined above 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
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ATTORNEYS’ EYES ONLY 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 or 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.
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.
IT IS SO ORDERED.
s/Mary Geiger Lewis
________________________________
UNITED STATES DISTRICT JUDGE
November 20, 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
[DIVISION [all caps]] DIVISION
[Plaintiff]
Plaintiff,
vs.
[Defendant]
Defendant
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Civil Action No. [Case Number]
Certification by Counsel of Designation
of Information as Confidential
Documents produced herewith [whose bates numbers are listed below (or) which are
listed on the attached index] have been marked as CONFIDENTIAL or 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
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
[DIVISION [all caps]] DIVISION
[Plaintiff]
Plaintiff,
vs.
[Defendant]
Defendant
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Civil Action No. [Case Number]
Acknowledgment of Understanding
and
Agreement to be Bound
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 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
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
[DIVISION [all caps]] DIVISION
[Plaintiff]
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Plaintiff,
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vs.
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[Defendant]
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Defendant
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___________________________________ )
Civil Action No. [Case Number]
Certification of Counsel
of Need for Assistance of Party/Employee
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.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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