Payne v. Wal-Mart Stores East LP

Filing 20

CONFIDENTIALITY ORDER granting 19 Motion for Confidentiality Order Signed by Honorable Mary Geiger Lewis on 3/28/2017.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENWOOD DIVISION
Civil Action No. 8:16-cv-02140-MGL

Tammy Payne,
Plaintiff,
vs.

CONSENT CONFIDENTIALITY
ORDER

Wal-Mart Stores East, L.P.,
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 28th day of March, 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” 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 except for
documents produced for inspection under the “Reading Room” provisions set forth in paragraph
4 below. 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.

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 a party’s facility or other controlled

location (“Reading Room”), prior to designation as confidential. 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 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

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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 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, 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.
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 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 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
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

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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.
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

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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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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.
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
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

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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 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;
(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

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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 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 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.

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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 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: (1) counsel who signed below and their respective law firms; and (2) their respective
clients.

IT IS SO ORDERED.
s/Mary Geiger Lewis
Mary Geiger Lewis
United States Magistrate Judge
March 28, 2017
Columbia, South Carolina

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WE SO MOVE AND CONSENT:

s/Zandra L. Johnson
Zandra L. Johnson, USDC ID No. 72014
[e-mail]
The Z Firm, LLC
104 South Calhoun Street
Greenville, South Carolina 29601
[phone] (telephone)
[phone] (fax)
Attorney for Plaintiff

s/ Regina Hollins Lewis
Regina Hollins Lewis, USDC ID No. 7553
[e-mail]
Randi Lynn Roberts, USDC ID No. 12462
[e-mail]
Lee Ellen Bagley, USDC ID No. 11453
[e-mail]
Gaffney Lewis & Edwards, LLC
3700 Forest Drive, Suite 400
Columbia, SC 29204
[phone] (telephone)
[phone] (facsimile)
Attorneys for Defendant

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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
GREENWOOD DIVISION
Tammy Payne,

Civil Action No. 8:16-cv-02140-MGL
Plaintiff,

vs.
CERTIFICATION BY COUNSEL OF
DESIGNATION OF INFORMATION
AS CONFIDENTIAL

Wal-Mart Stores East, L.P.,
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 [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
GREENWOOD DIVISION
Tammy Payne,

Civil Action No. 8:16-cv-02140-MGL
Plaintiff,

vs.
ACKNOWLEDGEMENT OF
UNDERSTANDING AND
AGREEMENT TO BE BOUND

Wal-Mart Stores East, L.P.,
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 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:
Job Title:
Employer:
Business Address:

[undersigned name [att B]]
[Job Title [att B]]
[Employer [att B]]
[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
GREENWOOD DIVISION
Tammy Payne,

Civil Action No. 8:16-cv-02140-MGL
Plaintiff,

vs.
CERTIFICATION OF COUNSEL OF
NEED FOR ASSISTANCE OF
PARTY/EMPLOYEE

Wal-Mart Stores East, L.P.,
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

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