The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
SHARON HADDEN, Civil Action No. 3:21-cv-00336-MOC-DSC
Plaintiff,
STIPULATED PROTECTIVE ORDER
vs.
UNITED PARCEL SERVICE INC.,
Defendant.
I. Purpose and Scope
The purpose of this Stipulated Protective Order (“Order”) is to govern the parties’ handling
and disclosure of personal and proprietary information during discovery and mediation. This
Order does not govern testimony at any trial or hearing; nor does this Order govern any tangible
thing that may be offered into evidence at any trial or hearing. Nothing in this Order should be
read as authority to restrict public access to judicial records, court testimony, matters in evidence,
or to any information relied upon by a court in making its decisions. Nothing in this Order should
be read as authority to file any document under seal without prior authorization from this Court.
II. Need for a Protective Order
In the course of discovery, the parties will request and exchange information and
documents that are or may be of a personal and/or of a proprietary nature, including but not limited
to personnel records, tax returns and financial information, medical records and materials related
to employee benefits, as well as confidential personal or financial information regarding third
parties. The parties seek to limit the use of the information and documents during discovery and
mediation in order to protect themselves from annoyance and potential embarrassment.
Accordingly, they have agreed to the entry of this Order to facilitate the production of the
information requested and any information that has been or will be produced during discovery and
mediation in this case.
III. Definition of Confidential Information
1. “Confidential information” as used herein means any type or classification of
information which is designated as “confidential” in the manner specified below, in the good faith
belief that such information falls within the scope of Rule 26(c) of the Federal Rules of Civil
Procedure and is subject to this Order. For purposes of this Order, “confidential information” is
likely to include proprietary, business, commercial, financial, and/or personal information,
including but not limited to employee personnel files, pay information, medical records, drug
testing documents, workers’ compensation files, corporate policies and procedures, trade secrets
and other competitively sensitive materials, financial records, actuarial records and reports and
information about disabilities, tax returns, retirement benefits, customer information, and other
personal or financial information relating to third parties. “Confidential information” may include
documents, information contained in documents, depositions, interrogatory answers, all other
discovery pursuant to the Federal Rules of Civil Procedure, and other information furnished by or
on behalf of any party in connection with this litigation that falls within the scope of this Order.
IV. Designation of Information as Confidential
2. The party producing of any documents or information subject to this Order shall
have the right to use its discretion in designating materials to be Confidential Information as
defined herein. However, the producing party shall be obligated to designate only documents or
information that it believes in good faith to be information within the scope of Rule 26(c) of the
Federal Rules of Civil Procedure. Moreover, the producing party shall be obligated to make
specific designations to the extent reasonably possible and to avoid overbroad designations.
3. Any party producing documents may designate such documents and copies thereof
as confidential by marking any confidential page as follows: CONFIDENTIAL. In lieu of placing
said legend on the originals of documents, the producing party may legend the copies that are
produced. When producing a multi-page document, all of which it contends is confidential, a party
may designate the entire document as confidential by marking the cover page as follows:
CONFIDENTIAL. In the event of production of native files, the producing party shall designate
any native files produced which contain Confidential Information by placing the word
CONFIDENTIAL in the filename.
4. Information disclosed at the deposition of any party or at the deposition of one of
the Defendant’s present or former officers, directors, employees, or agents, or of independent
experts retained by any party for purposes of this litigation, may be designated by such party as
confidential by indicating on the record at the deposition that the testimony is confidential and
subject to the provisions of this Order. Alternatively, such party may designate information
disclosed at such deposition as confidential by notifying all parties in writing, within ten days of
receipt of the transcript (or some other time period as may agreed to by the parties), of the specific
pages and lines of the transcript which are confidential. Each party shall attach a copy of such
written statement to the face of the transcript and each copy thereof in its possession, custody, or
control. All depositions shall be treated as confidential for a period of at least three business days
after a full and complete transcript of said deposition is available (or some other time period as
may be agreed to by the parties).
V. Use of Confidential Information
5. Confidential information shall be used only for the purpose of these proceedings
and shall not be disclosed to any person except the following:
(a) Counsel for any party, the legal associates, and clerical or other support staff
of such counsel assisting in the preparation of this action, and any party, to the extent necessary to
prepare this case for this litigation;
(b) Agents, representatives, and employees of any party, as is necessary to
prepare this case for litigation;
(c) Independent experts (who shall not be a party or an employee of a party)
employed by counsel for the purpose of assisting in this action;
(d) A witness who is either the producing party or an employee of the producing
party or a former or current employee of the producing party, as is necessary to prepare this case
for litigation, and
(e) Any court reporter and courtroom personnel at any deposition, pretrial
hearing, trial, or other proceedings held in connection with this action;
(f) Any mediator and their staff;
(g) Subject to the provisions of Paragraphs 7 and 8 below, any court, including
this Court, or appellate body which has cause to consider any of the issues raised in this action;
(h) Jurors and prospective jurors;
(i) Or any other person or entity to whom this Court orders or allows disclosure
after notice and opportunity for hearing.
VI. Non-Disclosure of Confidential Information
6. No person to whom confidential information is disclosed shall disclose such
confidential information to any person to whom disclosure is not authorized by the terms of this
Order, or make any other disclosure of such confidential information for any purpose whatsoever,
commercial or otherwise. In addition to the other restrictions on disclosure contained herein, the
parties agree that no confidential information may be disclosed to any person who falls under 5(b)
– 5(d) above (including any consultant, expert, or employee of any party) until such person has
read and signed a copy of this Order, thereby indicating their willingness to be bound by its
provisions. The disclosing party shall have the obligation to maintain records identifying all such
persons to whom information has been disclosed.
VII. Sealed Filings
7. Documents, things, and/or information, including portions of any transcript, shall
not be filed under seal without a specific court order to do so. Any party seeking such an order
shall comply with Section G (6) of the Electronic Case Filing Administrative Policies and
Procedure Manual.
8. Pursuant to Stone v. University of Maryland Medical System Corp., 855 F.2d 178,
180-181 (4th Cir. 1988), each time a party seeks permission to make a sealed filing, it shall
accompany the motion to seal with a 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.
VIII. General Provisions
9. In the event that a party disputes the propriety of the designation of any material or
information as confidential, that party may file a motion with the Court requesting a ruling
regarding whether the material or information should be treated as confidential for purposes of this
Order. No party shall be obligated to challenge the propriety of any designation of information as
confidential and a failure to do so shall not preclude a subsequent attack on the propriety of such
designation.
10. Nothing in this Protective Order constitutes an admission by any party that
confidential information disclosed in this case is relevant or admissible. Each party specifically
reserves the right to object to the use or admissibility of all confidential information disclosed, in
accordance with applicable law.
11. At the conclusion of the litigation, upon the written request of the other party, the
parties agree to return any confidential information to the party providing the confidential
information, except transcriptions of depositions taken in the course of this proceeding, or certify
that the confidential information has been destroyed. Counsel for the parties may retain one copy
of documents in their file in order to comply with the requirements of the North Carolina State Bar
record retention rules.
12. The ultimate disposition of protected materials shall be subject to final order of the
Court.
13. This Order shall not abrogate or diminish any contractual, statutory, or other legal
obligation, or right of any party or person with respect to the Confidential Information.
Specifically, this Order shall not require any party to notify or to obtain permission from other
parties before introducing materials designated confidential at trial or examining witnesses about
materials designated confidential during depositions or at trial, beyond the notice required by the
Federal Rules of Civil Procedure, Local Court Rules or order of Court.
14. Nothing in the foregoing provisions of this Order shall be deemed to preclude any
party from seeking and obtaining, on an appropriate showing, such additional protection with
respect to Confidential Information as that party may consider appropriate, including but not
limited to moving that certain materials be filed under seal; nor shall any party be precluded from
claiming that any matter designated hereunder is not entitled to protection, or is entitled to a more
limited form of protection than designated.
IX. Clawback and Presumptively Privileged Protocol
The parties further stipulate to protect certain privileged and otherwise protected
documents and electronically stored information (collectively, “documents”) against claims of
waiver in the event they are produced during the course of this litigation whether pursuant to a
Court Order, a parties’ discovery request, or informal production.
Both parties may be required to produce large volumes of documents and, to comply with
discovery deadlines in the case, wish to complete discovery as expeditiously as possible, while
preserving and without waiving any evidentiary protections or privileges applicable to the
information contained in the documents produced, including as against third parties and other
Federal and State proceedings. Accordingly, the parties hereby stipulate to, and the Court hereby
Orders pursuant to Federal Rules of Civil Procedure 502(d) and (e), as follows:
15. No Waiver by Disclosure. This order is entered pursuant to Rule 502(d) of the
Federal Rules of Evidence. Subject to the provisions of this Order, if a party or subpoenaed
nonparty (the “Disclosing Party”) discloses information in connection with the pending litigation
that the Disclosing Party thereafter claims to be privileged or protected by the attorney-client
privilege or work product protection (“Protected Information”), the disclosure of that Protected
Information will not constitute or be deemed a waiver or forfeiture - in this or any other federal or
state action - of any claim of privilege or work product protection that the Disclosing Party would
otherwise be entitled to assert with respect to the Protected Information and its subject matter.
16. Notification Requirements; Best Efforts of Receiving Party. A Disclosing Party
must promptly notify the party receiving the Protected Information (“the Receiving Party”), in
writing, that it has disclosed Protected Information without intending a waiver by the disclosure.
Upon such notification, the Receiving Party must, unless it contests the claim of attorney-client
privilege or work product protection in accordance with Paragraph 17, promptly (i) notify the
Disclosing Party that it will make best efforts to identify and return, sequester, or destroy (or in
the case of electronically stored information, delete) the Protected Information and any reasonably
accessible copies it has; and (ii) provide a certification that it will cease further review,
dissemination, and use of the Protected Information. Within five business days of receipt of the
notification from the Receiving Party the Disclosing Party must explain as specifically as possible
why the Protected Information is privileged.
17. Contesting Claim of Privilege or Work Product Protection. If the Receiving Party
contests the claim of attorney-client privilege or work product protection, the Receiving Party must
- within five business days of receipt of the notice of disclosure - move the Court for an Order
compelling disclosure of the information claimed as unprotected (a “Disclosure Motion”). The
Disclosure Motion must be filed under seal and must not assert as a ground for compelling
disclosure the fact or circumstances of the disclosure. Pending resolution of the Disclosure Motion,
the Receiving Party must not use the challenged information in any way or disclose it to any person
other than those required by law to be served with a copy of the sealed Disclosure Motion.
18. Stipulated Time Periods. The parties may stipulate to extend the time periods set
forth in Paragraphs 16 and 17.
19. Attorney’s Ethical Responsibilities. Nothing in this Order overrides any attorney’s
ethical responsibilities to refrain from examining or disclosing materials that the attorney knows
or reasonably should know to be privileged and to inform the Disclosing Party that such materials
have been produced.
20. Burden of Proving Privilege or Work-Product Protection. The Disclosing Party
retains the burden - upon challenge pursuant to Paragraph 17 - of establishing the privileged or
protected nature of the Protected Information.
21. In Camera Review. Nothing in this Order limits the right of any party to petition
the Court for an in camera review of the Protected Information.
22. Voluntary and Subject Matter Waiver. This Order does not preclude a party from
voluntarily waiving the attorney-client privilege or work product protection. The provisions of
Federal Rule 502(a) apply when the Disclosing Party uses or indicates that it may use information
produced under this Order to support a claim or defense.
23. Review. Nothing contained herein is intended to or shall serve to limit a party’s
right to conduct a review of documents, ESI, or information (including metadata) for relevance,
responsiveness, and/or segregation of privileged and/or protected information before production.
Further nothing contained herein is intended to reduce the time frame provided to the Disclosing
Party to complete their review should they choose to do so.
24. Proportionality. Nothing contained herein is intended to limit a party’s
proportionality and burden arguments specifically related to the costs to conduct a review of
documents, ESI, or information (including metadata) for relevance, responsiveness, and/or
segregation of privileged and/or protected information before production.
25. Rule 502(b)(2). The provisions of Federal Rule of Evidence 502(b)(2) are
inapplicable to the production of Protected Information under this Order.
[SIGNATURE BLOCKS ON FOLLOWING PAGE]
So Stipulated:
/s/Alesha_ S. Brown /s/Kellie A. Tabor
Alesha S. Brown, Bar No. 53000 Kellie A. Tabor, Bar No. 57153
abrown @ justiceinactionlaw.com ktabor @ littler.com
JUSTICE IN ACTION LAW CENTER Kevin M. Cleys, N.C. Bar No. 51589
521 Briar Creek Road kcleys @ littl
Charlotte, NC 28205 er.com
Telephone: 704.500.0197 LITTLER MENDELSON, P.C.
Facsimile: 704.500.0197 Bank of America Corporate Center
100 North Tryon Street, Suite 4150
Attorneys for Plaintiff Sharon Hadden Charlotte, NC 28202
Telephone: 704.972.7000
Facsimile: 704.731.0797
Attorneys for Defendant United Parcel Service,
Inc.
APPROVED AND SO ORDERED.
September 2, 2021
David S. Cayer : i-f
United States Magistrate Judge a