The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:20-cv-00029-MR
KEVIN CRAWFORD GUNTER, )
)
Plaintiff, )
)
vs. ) PROTECTIVE ORDER
)
JOHN DOE, et al., )
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on the Consent Motion of for Entry
of Protective Order filed by Defendant Keith D’Amico [Doc. 35].
The Defendant D’Amico asks the Court to enter a protective order
authorizing and governing the production of confidential documents,
material, and information (“Confidential Information”). Defendant relates
that, in the course of the litigation, it is anticipated that Confidential
Information will be needed to disclosed during the course of the litigation,
including information that relates to the Plaintiff, an inmate currently or
formerly in the custody of the North Carolina Department of Public Safety,
Division of Adult Corrections (“DAC”), or that relates to current or former
employees, contract employees or independent contractors of DAC.
On review of Defendants’ motion, the Court finds that such information
may be deemed confidential under federal and state law, including N.C.G.S.
§§ 126-22(3) and -24, § 122C-52, § 132-1.7, §§ 148-74 and -76; Goble v.
Bounds, 13 N.C. App. 579, 581, 186 S.E.2d 638, 639, aff’d, 281 N.C. 307,
188 S.E.2d 347 (1972); Paine v. Baker, 595 F.2d 197, 200 (4th Cir. 1979),
cert. denied, 444 U.S. 925 (1979); 42 U.S.C. § 1320d et seq.; 42 C.F.R. 2.1
et seq.; and 45 C.F.R. §§ 160-164.
Due to the confidential nature of much of the information that will be
produced in this matter, a protective order is necessary to authorize the
release of such confidential information and to ensure that such confidential
information is not disclosed or used for any purpose except in connection
with this litigation. Counsel for the Plaintiff, who is appearing for the limited
purpose of conducting discovery in this matter, has consented to the entry of
a protective order. [Doc. 35 at 15]. The Court will, therefore, grant
Defendant’s request for a protective order.
The Motion [Doc. 35] is hereby GRANTED, and the Court enters the
following order.
IT IS HEREBY ORDERED THAT:
1. Scope of the Order. This Order requires DAC to disclose
Confidential Information, as defined and designated in accordance with
this Order, to Counsel for Defendant D’Amico. This Order governs the
handling and disclosure of all documents, materials and information
identified, produced, given, exchanged, obtained, or filed herein and
which are designated by DAC as “confidential information.”
2. Agreement on Use of Confidential Information. All
Confidential Information, as defined and designated in accordance with
this Order, shall be used solely in the prosecution or defense of this
action including, but not limited to, mediation, other alternative dispute
resolution processes, any other settlement process, and all other pre-
trial, trial and post-trial proceedings in this action and shall not be used
or disclosed by any person for any other purpose.
3. “Disclosure.” When used in this Order, the term “Disclosure”
shall mean to provide, impart, transmit, transfer, convey, publish, or
otherwise make available.
4. “Confidential Information.” For the purposes of this Order and
during the course of this litigation, the parties to this Order identify
“General Confidential Information” and define it as follows:
a. “General Confidential Information” means:
(1) Inmate records of Plaintiff Kevin Crawford Gunter
including, but not limited to, grievances, use-of-force
reports, incident reports, external and internal
movement records, confidential inmate witness
statements provided in the course of disciplinary
investigations, and infraction reports pertaining to
Plaintiff;
(2) The medical records maintained by the DAC
pertaining to Plaintiff Kevin Crawford Gunter;
(3) The mental health records maintained by the DAC
pertaining to Plaintiff Kevin Crawford Gunter; and
(4) Other documents, materials, or information that is
potentially embarrassing or invasive of the privacy of
a person not a party to this litigation and therefore an
appropriate subject of a Consent Order.
b. “Attorneys’ Eyes Only Confidential Information” means:
(1) “Personally Identifiable Information”, as that phrase is
defined in 45 C.F.R. § 75.2, of current or former
employees and contractors of the Department, such
as but not limited to date of birth, social security
numbers, home addresses and telephone numbers,
insurance records or designations, medical and/or
disability information, and other purely private
information;
(2) The personal financial records, telephone records,
and e-mail records of current or former employees
and contractors of the Department; and
(3) Other non-public information as provided in N.C.G.S.
§ 132-1.7, which includes specific security
information or detailed plans, patterns, or practices
associated with prison operations, such as certain
investigations, security designations, staffing
patterns and logs, schematic or other drawings and
diagrams, and other sensitive security information.
5. Disclosure of Confidential Information. General Confidential
Information shall not be disclosed to anyone except:
a. The court and its personnel;
b. The parties to this action as required by law and pursuant
to the terms of this Order;
c. Shumaker, Loop, & Kendrick, LLP, Counsel for Defendant
D’Amico in this action and employees and/or vendors of
Shumaker, Loop, & Kendrick, LLP;
d. Members of the Inmate Grievance Resolution Board;
e. Experts or consultants specifically retained by the parties
or their attorneys to assist them in the preparation of this
case or to serve as expert witnesses at the trial of this
action, but only after execution of a Confidentiality
Agreement as provided in Paragraph 6;
f. Court reporters or videographers engaged to record
depositions, hearings or the trial of this action;
g. Witnesses at any deposition in this matter as well as
witnesses or jurors at the trial of this matter; and
h. Defendant D’Amico’s professional liability insurance
carrier.
6. Disclosure of Attorneys’ Eyes Only Confidential
Information. Attorneys’ Eyes Only Confidential Information shall not
be disclosed to anyone except:
a. The court and its personnel;
b. Counsel for the parties to this action and employees of said
counsel;
c. Experts or consultants specifically retained by the parties or
their attorneys to assist them in the preparation of this case or
to serve as expert witnesses at the
trial of this action, but only after execution of a Confidentiality
Agreement as
provided in Paragraph 8; and
d. Court reporters or videographers engaged to record
depositions, hearings, or the
trial in this action.
7. Withdrawal of Plaintiff’s Counsel. In the event that counsel for
Plaintiff withdraws from representation during the pendency of this
litigation and Plaintiff proceeds pro se, any Attorneys’ Eyes Only
Confidential Information disclosed to counsel for Plaintiff may not
thereafter be disclosed to Plaintiff and shall instead be returned to
defense counsel. The Court may allow Plaintiff to view Attorney’s Eyes
Only Confidential information only upon a motion for good cause
shown.
8. Confidentiality Agreements. Before Confidential Information is
disclosed to any vendors of Shumaker, Loop, & Kendrick, LLC as well
as any person described in Paragraphs 5(e) and 5(h) of this Order,
Shumaker, Loop, & Kendrick, LLC, Counsel for Defendant D’Amico,
shall inform the person to whom the disclosure is to be made that
Confidential Information shall be used only for the purpose of the
prosecution or defense of this action, and shall obtain from the person
to whom the disclosure is to be made a signed confidentiality
agreement in the form attached as Exhibit A. Shumaker, Loop, &
Kendrick, LLC, Counsel for Defendant D’Amico, shall maintain the
original Confidentiality Agreement and need not produce it except by
agreement of the DAC and Counsel for Defendant D’Amico, or upon
order of the court.
9. Designation of Confidential Information. Information shall be
designated as Confidential Information in the following manner:
a. In the case of information reduced to paper form, the
designation shall be made (1) by placing the appropriate
legend, “CONFIDENTIAL - SUBJECT TO CONSENT
ORDER” for General Confidential Information or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” for
Attorneys’ Eyes Only Confidential Information, on each
page containing such information or (2) by such other
means as agreed to by the DAC and Counsel for
Defendant D’Amico. Counsel for the DAC shall designate
the documents as confidential at or before the time of the
disclosure.
b. Information on a computer disk, data tape, or other medium
that has not been reduced to paper form shall be
designated as General Confidential Information (1) by
informing counsel for the receiving party in writing that the
computer disk, data tape, or other medium contains such
Confidential Information and, where applicable, specifying
by Bates or other page number the particular information
being designated or (2) by such other means as agreed to
by the parties to this Consent Order. To the extent
practicable, such physical medium shall be labeled using
the appropriate legend. Any party receiving Confidential
Information designated under this Paragraph shall then be
responsible for appropriately labeling any printed
version(s) of such information that it creates.
c. In the case of deposition testimony, any party may
designate information disclosed during a deposition as
Confidential Information by either identifying on the record
at the deposition the information that is to be treated as
Confidential Information or; marking the portions of the
deposition transcript to be designated as Confidential
Information within 21 days after receipt of the transcript.
When the deponent and the attending parties do not agree
to waive the reading, correcting, and signing of the
transcript, all information disclosed during a deposition
shall be treated as Attorneys’ Eyes Only Confidential
Information before the expiration of the 21-day period
unless otherwise agreed by the parties and the deponent.
If any deposition testimony or any document or information
used during the course of a deposition is designated as
Confidential Information, each page of the deposition
transcript containing such information shall be labeled with
the appropriate legend specified in Paragraph 9(A), and
the first page of the deposition transcript shall be labeled in
a manner that makes it readily apparent that the transcript
contains Confidential Information.
d. Any other information that is not reduced to physical form
or cannot be conveniently labeled shall be designated as
Confidential Information by serving a written notification of
such designation on Shumaker, Loop, & Kendrick, LLC,
Counsel for Defendant D’Amico. The notice shall, where
applicable, specify by Bates or other page number the
particular information being designated.
10. Disputes over Designations. If Shumaker, Loop, & Kendrick,
LLC, Counsel for Defendant D’Amico, objects to the designation of any
information as confidential, Shumaker, Loop, & Kendrick, LLC,
Counsel for Defendant D’Amico and Counsel for the DAC shall attempt
to resolve the disagreement on an informal basis. If the objection is
not so resolved, the objecting counsel may move the court for
appropriate relief. The information in question shall continue to be
treated as confidential in accordance with the disputed designation
unless and until the court issues a final ruling that the information does
not qualify for such a designation. The non-filing by the objecting party
of a motion for relief shall not be deemed an admission that the
information qualifies for the disputed designation.
11. Inadvertent Disclosure of Confidential Information.
Inadvertent disclosure of Confidential Information, without identifying
the same as confidential, shall not be deemed a waiver of
confidentiality with regard to the information inadvertently disclosed if
promptly called to the attention of counsel for the receiving party.
12. Filing of Confidential Information Under Seal. At the time that
confidential information is produced to Shumaker, Loop, & Kendrick,
LLC, Counsel for Defendant D’Amico and counsel for the DAC will
indicate, in writing, if any of the confidential information being produced
is of the type that should be filed with the Court as a proposed sealed
document. If such indication is given, Shumaker, Loop, & Kendrick,
LLC, Counsel for Defendant D’Amico, shall file the document as a
proposed sealed document along with a motion to seal and supporting
memorandum indicating the basis under which the DAC determined
that the document should be filed under seal. If Counsel for the DAC
determines that the document should be filed as a proposed sealed
document, Counsel for the DAC agrees that the determination as set
forth in this paragraph will be narrow in scope and any such
determination will be consistent with the manner in which the attorneys
in the Public Safety Section of the North Carolina Department of
Justice file the same or similar documents in 42 USC § 1983 cases
involving the medical care of inmates. If no such indication is given by
Counsel for the DAC, Shumaker, Loop, & Kendrick, LLC, Counsel for
Defendant D’Amico, may file the confidential information with the Court
without the need to file such confidential information as a proposed
sealed document. Each time a party seeks to file under seal
confidential documents, things, and/or information, said party shall
accompany the request with a motion to seal and supporting
memorandum of law specifying:
a. The exact documents, things, and/or information, or
portions thereof, for which filing under seal is requested;
b. Where it is necessary for the court to determine the source
of the public’s right to access before a request to seal may
be evaluated, whether any such request to seal seeks to
overcome the common law or the First Amendment
presumption to access;
c. The specific qualities of the material at issue which justify
sealing such material, taking into account the balance of
competing interests in access;
d. The reasons why alternatives to sealing are inadequate;
and
e. Whether there is consent to the motion.
Finally, in addition to the motion and supporting memorandum, said
party must set out such findings in a proposed order to seal for the
court. Before ruling on any motion to seal, the court will give public
notice of the motion and a reasonable opportunity to challenge it.
While individual notice is unwarranted, the court will docket the motion
reasonably in advance of deciding the issue, or, where applicable, the
court will notify persons present in courtroom proceedings of the
motion. The court will rule favorably upon any motion to seal only after
carefully weighing the interest advanced by the movant and those
interests favoring public access to judicial documents and records, and
only upon finding that the interests advanced by the movant override
any constitutional or common law right of public access which may
attach to the documents, things, and/or information at issue.
13. Authors/Recipients. Except as specifically provided herein, this
Order shall not limit use by a party of its own Confidential Information,
nor shall this Order limit the ability of a party to disclose any document
to its author or to anyone identified on the face of the document as a
recipient.
14. Return of Confidential Information. Following the conclusion
of this action, including any appeals, Shumaker, Loop, & Kendrick,
LLC, Counsel for Defendant D’Amico, shall request that any
Confidential Information provided to any vendors of Shumaker, Loop,
& Kendrick, LLC as well as any person described in Paragraphs 5(d)
and 5(h) of this Order either be returned or shredded. Further, a party
that produced Confidential Information may request in writing its return
by any other party. Within 60 days after service of such a request, any
party that received the Confidential Information shall either return it to
counsel for the producing party or destroy it, at the election of the
receiving party; provided that the information shall not be destroyed if
otherwise ordered by the court or a motion for relief from this
Paragraph 14 is pending. If a receiving party elects to destroy the
Confidential Information rather than returning it to the producing party,
counsel for the receiving party shall provide to the producing party by
the 60-day deadline a signed certification that the Confidential
Information has been destroyed. This Paragraph shall not be
construed to require the return or destruction of any regularly-
maintained litigation files held by the attorneys of record or former
attorneys of record for each party as archival records or other attorney
work-product created for any party. Any Confidential Information, or
portions or excerpts thereof, which are not returned or destroyed
pursuant to this Paragraph shall remain subject to the terms of this
Order. The return of trial exhibits by the court shall be governed by
Local Civil Rule 79.1.
15. Admissibility of Information. Neither the terms of this Order
nor the disclosure or designation as confidential of any information
pursuant to it shall be deemed to establish or vitiate the admissibility
under the Federal Rules of Evidence of any information subject to this
Order.
16. Modification. This Order is without prejudice of the right of the
DAC and/or Shumaker, Loop, & Kendrick, LLC, Counsel for Defendant
D’Amico, to seek modification or amendment of the Order by motion to
the court, or to seek and obtain additional protection with respect to
Confidential Information as such party may consider appropriate.
IT IS FURTHER ORDERED that Shumaker, Loop, & Kendrick, LLC,
Counsel for Defendant D’Amico, will observe the requirements of this Order
as to Confidential Information produced by the DAC as required by this
Order.
Signed: May 31, 2021
IT IS SO ORDERED.
Ct ey
Chief United States District Judge AS
16
EXHIBIT A
CONFIDENTIALITY AGREEMENT
I have read and am familiar with the terms of the Consent Order
governing the Confidential Information in the case of Kevin Crawford Gunter
v. Keith D’Amico, PA, et al., Civil Action No. 1:20-cv-00029-MR, in the
Western District of North Carolina, Asheville Division. I agree to abide by all
the terms of said Order and not to reveal or otherwise communicate any of
the information or documents disclosed to me pursuant thereto to anyone
except in accordance with the terms of said Order. I agree not to make use
of any information obtained, whether in documentary or other form, pursuant
to that Order other than for purposes of this litigation. I also agree, upon
written request, to return to counsel of record no later than 60 days after the
termination of this litigation any and all documents in my possession
containing information which is the subject of said Order or disclosed to me
pursuant to the Order (whether such information is in the form of notes,
memoranda, reports, or other written communications or documents
prepared by any person at any time containing information covered by the
terms of said Order). I further agree to submit myself to the jurisdiction of
the foregoing court, including its contempt power, for enforcement of said
Order.
This the _____ day of ________________, 20__.
____________________________
PRINTED NAME
____________________________
SIGNATURE