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Millwood v. State Farm Life Insurance Co.

United States District Court, D. South Carolina, Spartanburg Division

October 9, 2019




         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 9th day of October, 2019 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. Nothing in this Order shall be construed to limit the use of any document at any trial or hearing in these actions provided that the parties take necessary advance precautions to avoid the public disclosure of confidential information. A party that intends to present or that anticipates that another party may present confidential information at a hearing or trial in these actions shall bring that issue to the Court's and the parties' attention by motion sufficiently in advance of the proceeding without disclosing the confidential material. The Court may thereafter make such orders as are necessary to govern the use of such documents at the hearing or trial.

         2. Confidential Information and Documents Which May be Designated Confidential.

         Any party may designate information as confidential but only after review of the documents by an attorney[1] who has, in good faith, determined that the documents contain information protected from disclosure by statute or contractual agreement; sensitive personal information (including personal identifying information); trade secrets; confidential research related to proprietary marketing, sales, product development, or other competitive strategy; or commercially-sensitive information, the unprotected disclosure of which would cause competitive harm to the disclosing party, of any party or a party's customer. Confidential information may include a document, electronically stored information (“ESI”), or other written material or image; information contained in a document, ESI, or other material; information revealed during a deposition; information revealed in an interrogatory, answer, or written responses to discovery; information revealed during a meet and confer, or otherwise in connection with formal or informal discovery. 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. The parties have also agreed to a meet and confer regarding a stipulated protocol as to the production of ESI and as to a protocol with respect to clawback under FRE 502(d), which they intend to submit to the Court in due course.

         3. Form and Timing of Designation.

         a. Confidential information and/or documents shall be so designated by placing or affixing the words “CONFIDENTIAL: PURSUANT TO PROTECTIVE ORDER” to each page that contains confidential information and in a manner that will not interfere with the legibility of the document and that will permit complete removal of the designation language. If only a portion or portions of the material on a page qualifies for protection, the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). To the extent a document is produced in a form in which placing or affixing the words “CONFIDENTIAL - PURSUANT TO PROTECTIVE ORDER” on the document is not practicable, the producing party may designate the document as confidential by cover letter, slip sheet, production metadata, or by affixing a label to the production media containing the document.

         b. Applying such marking to a document does not mean that the document has any status or protection by statute or otherwise except to the extent and for the purposes of this Order.

         c. Documents shall be designated as 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.

         d. Information designated as confidential must be stored and maintained by a receiving party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order.

         e. If timely corrected, an 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. Upon timely correction of a designation, the receiving party must make reasonable efforts to ensure that the material is treated in accordance with the provisions of this agreement. No party shall be found to have violated this Order for failing to maintain the confidentiality of material during a time when that material has not been designated as confidential, even where the failure to so designate was inadvertent and where the material is subsequently designated 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, and/or in order to facilitate the timely disclosure of documents for which there are technological difficulties to produce, 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 in a manner consistent with this Order 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, unless it is not technologically or practically feasible to do so within that time frame, in which case the producing party shall notify the receiving party in writing of such and of a timeline for production and the requesting party may seek relief from the Court if the producing party fails to meet that timeline.

         c. The producing party shall maintain a log of persons who have reviewed documents in the Reading Room and the dates and time(s) 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 or privilege, 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 and/or privileged materials which have not yet been marked as confidential and/or privileged, and the producing party asserts confidently or privilege in the manner prescribed in this Order and any yet-to-be-entered order governing the parties' assertions of privilege.

         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 by written notice to all counsel within thirty (30) days after receipt of the transcript. To the extent that portions of the deposition testimony do not qualify as confidential, such designation shall be specific as to the portions to be protected. All testimony, regardless of whether designated as confidential on the record, shall be treated as confidential until thirty (30) days after receipt of the transcript of said deposition by all parties. Certain depositions may, in their entirety, be designated as confidential pursuant to this Order prior to being taken because of the subject matter of the anticipated testimony. Furthermore, any document designated as confidential shall maintain that designation and the protections afforded thereto if introduced or discussed during a deposition.

         6. Protection of Confidential Material.

         a. General Protections. Documents designated as 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 as confidential under the terms of this Order to any other person or entity except as set forth in subparagraphs (1)-(12) 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 officers, directors, or 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 disclosed[2];
(3) Court reporters engaged for depositions and those persons, if any, specifically engaged for the limited purpose of ...

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