Shepherd v. Community First Bank et al

Filing 33

CONFIDENTIALITY ORDER granting 31 Motion for Confidentiality Order. Signed by Honorable Mary Geiger Lewis on 2/2/2016.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FREDERICK D. SHEPHERD, JR.,

)
CIVIL ACTION FILE
)
Plaintiff,
)
NO. 8:15-cv-04337-MGL
)
v.
)
)
)
COMMUNITY FIRST BANK,
)
RICHARD D. BURLESON,
)
CONSENT
GARY V. THRIFT, DR. LARRY S.
)
CONFIDENTIALITY ORDER
BOWMAN, WILLIAM M. BROWN,
)
JOHN R. HAMRICK, JAMES E.
)
TURNER, CHARLES L.
)
WINCHESTER, and ROBERT H.
)
EDWARDS,
)
)
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 2nd day of February, 2016, 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, including documents obtained by subpoena (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 in a manner that can be removed,
either electronically or physically, such that the document can be produced without a
CONFIDENTIAL designation. Documents shall be designated CONFIDENTIAL prior to, or
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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.
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, court rule, 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 ten (10) business days after receipt of
the transcript. Such designation shall be specific as to the portions to be protected and shall be
separately marked in the transcript.
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 (¶ 5.b.) for any purposes whatsoever other than preparing for and
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.
2

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
under the terms of this Order to any other person or entity except as set forth in
subparagraphs (1)-(7) 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)

any person identified in the Confidential document as having authored or

previously received the information or document;
(4)

any person who counsel in good faith believes is or may be a testifying

witness in the lawsuit regarding the document;

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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(5)

court reporters engaged for depositions and those persons, if any,

specifically engaged for the limited purpose of making photocopies of documents;
(6)

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
(7)

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.

Use of Documents in Depositions.

To the extent that any information,

document, electronic file, or thing designated as CONFIDENTIAL is used in the taking
of a deposition, such material shall remain subject to this Confidentiality Order, along
with pages of the deposition testimony referencing the material.
d.

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.
e.

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
4

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
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.
7.

Documents containing Account Information. Without limiting any provision to

this Confidentiality Order, any Confidential document produced by party or third-party,
including pursuant to subpoena, that includes account numbers regarding a bank account, loan
account or other financial account of a Defendant may be produced without redacting the
account number. In the event any document with account numbers are introduced as exhibits at
depositions, or at any trial or hearing, or are submitted to the Court in connection with any
motion or filing, the account numbers shall be redacted in addition to any other protections
required by this Confidentiality Order.
8.

Inadvertent or Unintentional Disclosure of Confidential Documents. The

inadvertent or unintentional disclosure of Confidential document either by way of document
5

production or deposition testimony, regardless of whether the information was designated
CONFIDENTIAL at the time of disclosure, shall not be deemed a waiver in whole or in part of a
disclosing party’s claim of confidentiality, either as to the specific information disclosed or as to
any other information relating thereto or on the same or related subject matter.

Any

inadvertently or unintentionally disclosed Confidential document not designated as such pursuant
to this Order at the time of its disclosure shall be designated as CONFIDENTIAL as soon as
reasonably possible after the disclosing party becomes aware of the erroneous disclosure and
shall thereafter be treated as Confidential. No party shall be responsible to any other party for
any use made of information produced and not designated as CONFIDENTIAL until such
designation is made in writing.
9.

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.
10.

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.

6

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 10.b. above; or
(3)

the court rules that the documents should no longer be designated as

CONFIDENTIAL.
d.

Challenges to the confidentiality of documents may be made at any time and are

not waived solely by the failure to raise the challenge at the time of initial disclosure or
designation.
11.

Subpoenas for Confidential documents. With respect to subpoenas or other

discovery requests seeking Confidential documents:
a.

If any party receives a subpoena or other discovery request commanding the

production of any Confidential document produced by another party, such party shall
object to the production, refuse to produce the documents, and notify the producing party
of the service of the subpoena or request.
b.

If the producing party objects to the production of the Confidential documents,

the party or person receiving the subpoena or request shall provide reasonable
cooperation with any motion to quash, motion for protective order, or other such motion
the producing party may bring objecting to the production of the Confidential documents
pursuant to the Federal Rules of Civil Procedure or any similar federal or state rule,
7

whereupon the producing party shall bear the burden of defending such motion and any
subsequent motion to enforce the subpoena or request.
c.

Unless the producing party consents in writing, the party or person receiving the

subpoena or request shall not produce any Confidential documents in response to the
subpoena or request pending a ruling on the request for relief unless expressly required to
produce such Confidential documents pursuant to court order.
12.

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 (¶ 3.e) shall be
returned to the producing party unless: (1) the document has been entered as evidence at
trial or deposition 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.
8

13.

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.
14.

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.
15.

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
February 2, 2016
Columbia, South Carolina

9

WE SO MOVE:

PLAINTIFF(S)

DEFENDANT(S)

_/S/ Douglas F. Patrick_________________
Signature of Plaintiff’s Counsel

__/s/ David R. Price, Jr.____________________
Signature of Defendant’s Counsel

__________________________________
Douglas F. Patrick Fed. ID # 300
Douglas F. Patrick, PA
PO Box 2343
Greenville, SC 29602
864-242-9000

____________________________________
David R. Price, Jr. Fed. ID # 9964
Samuel B. Tooker, Fed. ID #12162
David R. Price, Jr., PA
PO Box 2446
Greenville, SC 29609
864-271-2636

_/s/ Austin F. Watts_________________
Signature of Plaintiff’s Counsel

__/s/ James C. Adams, Jr._________________
Signature of Defendant’s Counsel

__________________________________
Austin F. Watts Fed. ID # 12120
Douglas F. Patrick, PA
PO Box 2343
Greenville, SC 29602
864-242-9000

_______________________________________
James C. Adams, Jr. N.C. Bar #18063
Justin N. Outling,
N.C. Bar # 38409
Brooks, Pierce, McLendon, Humphrey &
Leonard, LLP
PO Box 26000
Greensboro, NC 27420
336-373-8850

Attorneys for Plaintiff

Attorneys For Defendants

Dated: January 31, 2016

Dated: January 31, 2016

10

ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

FREDERICK D. SHEPHERD, JR.,

)
CIVIL ACTION FILE
)
Plaintiff,
)
NO. 8:15-cv-04337-MGL
)
v.
)
)
)
COMMUNITY FIRST BANK,
)
RICHARD D. BURLESON,
)
Certification by Counsel of Designation
GARY V. THRIFT, DR. LARRY S.
)
of Information as Confidential
BOWMAN, WILLIAM M. BROWN,
)
JOHN R. HAMRICK, JAMES E.
)
TURNER, CHARLES L.
)
WINCHESTER, and ROBERT H.
)
EDWARDS,
)
)
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 ________________ ____,
2015.
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 United States District Court for the District of South
Carolina. My District Court Bar number is ___________.

❑

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 _______________ where my Bar
number is ___________. 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.
11

Date: ________________

________________________
Signature of Counsel
________________________
Printed Name of Counsel

12

ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING
AND
AGREEMENT TO BE BOUND
FREDERICK D. SHEPHERD, JR.,

)
CIVIL ACTION FILE
)
Plaintiff,
)
NO. 8:15-cv-04337-MGL
)
v.
)
)
)
COMMUNITY FIRST BANK,
)
RICHARD D. BURLESON,
)
Acknowledgement of Understanding
GARY V. THRIFT, DR. LARRY S.
)
and
BOWMAN, WILLIAM M. BROWN,
)
Agreement to Be Bound
JOHN R. HAMRICK, JAMES E.
)
TURNER, CHARLES L.
)
WINCHESTER, and ROBERT H.
)
EDWARDS,
)
)
Defendants.
)
________________________________________________________________________

The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated _____________ ___, 2015, 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 Confidentiality Order may result in
penalties for contempt of court.
Name:

_____________________

Job Title:

_____________________

Employer:

_____________________

Business Address:

_____________________

Date: _________________

______________________
Signature
13

ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

FREDERICK D. SHEPHERD, JR.,

)
CIVIL ACTION FILE
)
Plaintiff,
)
NO. 8:15-cv-04337-MGL
)
v.
)
)
)
COMMUNITY FIRST BANK,
)
RICHARD D. BURLESON,
)
Certification of Counsel of Need
GARY V. THRIFT, DR. LARRY S.
)
for Assistance of Party/Employee
BOWMAN, WILLIAM M. BROWN,
)
JOHN R. HAMRICK, JAMES E.
)
TURNER, CHARLES L.
)
WINCHESTER, and ROBERT H.
)
EDWARDS,
)
)
Defendants.
)
________________________________________________________________________
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraph 5.b(2), I certify that the assistance of ___________________ 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 __________________. This employee’s job title is
__________________and work address is ____________________________.

14

Date: _________________

__________________________
Signature

15