The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:20-cv-698-RJC-DSC
SPENCER BROWN,
Plaintiff,
v.
GREYSTAR REAL ESTATE PARTNERS,
STIPULATED PROTECTIVE ORDER
LLC, GREYSTAR MANAGEMENT
SERVICES, L.P., MORGAN BOND
CHARLOTTE, LLC, KIMBERLY UPTON,
and STEPHANIE HOVIS,
Defendants.
I. Purpose and Scope
The purpose of this Stipulated Protective Order (“Order”) is to govern the parties ’handling
and disclosure of personal, confidential, and proprietary information during discovery and
mediation. This Order does not govern testimony at any trial or hearing and does not 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 in accordance with the applicable procedural rules.
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 confidential and proprietary nature, including
but not limited to personnel records, financial information, medical records, and proprietary
business information, 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, corporate policies and procedures,
trade secrets and other competitively sensitive materials, financial records, and other personal or
financial information relating to third parties. "Confidential information" may include documents,
information contained in documents, depositions, interrogatory answers, and 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 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 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 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.
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, 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 ten days after a full and complete transcript of said deposition is available.
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) Subject to the provisions of Paragraph 6 below, 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 counsel for a party in good faith believes may be called to testify at
trial or deposition in this action as is necessary to prepare this case for litigation,
(e) the court reporter and courtroom personnel at any deposition, pretrial hearing, trial or
other proceedings held in connection with this action;
(f) 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;
(g) Jurors and prospective jurors;
(h) 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, except those listed in Paragraph
5(a), (b), (e), (f), (g), and (h), until such person has read and signed a copy of this Order, thereby
indicating his or her willingness to be bound by its provisions. The disclosing party shall have the
obligation tto obtain written confirmation from persons falling within categories 5(c) and (d) that
they will abide by the provisions in this Order.
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 this litigation, the parties will contact the Court to obtain any
confidential information in the Court’s files so the parties may make appropriate disposition of all
confidential information furnished pursuant to the terms of this Order. At the conclusion of the
litigation, 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 of record for
the parties may retain copies of any part of the “Confidential Information” produced by others that
has become part of counsel’s official file of this litigation as well as abstracts or summaries of
materials that reference “Confidential Information.” Such copies shall remain subject to the terms
of this Protective Order.
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, “document” or “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 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 that Protected Information without intending a waiver by the disclosure and,
in that notification, assert the basis for the claimed privilege. 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.
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 accompanied by a motion to file under seal, pursuant to Section VII above, 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. Such a petition will toll the Receiving Party’s
five business day deadline in Paragraph 17 until such time as the Court denies such petition or
until such time as the Court issues an Order following such in camera review.
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.
SO ORDERED. Signed: August 25, 2021
fr4c ey
David S. Cayer : -f
United States Magistrate Judge ae
So Stipulated:
/s/Kevin P. Murphy /s/Elizabeth H. Pratt
Kevin P. Murphy, Bar No. 44453 Elizabeth H. Pratt, Bar No. 46132
kevin@hermannmurphy.com epratt@littler.com
HERMAN & MURPHY, PLLC LITTLER MENDELSON, P.C.
1712 Euclid Avenue 100 North Tryon Street, Suite 4150
Charlotte, NC 28203 Charlotte, NC 28202
Telephone: 704.940.6399 Telephone: 704.972.7000
Facsimile: 704.940.6407 Facsimile: 704.333.4005
Attorneys for Plaintiff Spencer Brown Jessica T. Travers (admitted pro hac vice)
jtravers@littler.com
LITTLER MENDELSON, P.C.
111 N. Orange Ave, Suite 1750
Orlando, FL 32801
Telephone: 407.393.2950
Facsimile: 407.393.2929
George J. Oliver, Bar No. 05774
jerryoliver@foxrothschild.com
FOX ROTHSCHILD, LLP
P.O. Box 257525
Raleigh, NC 27611
Telephone: 919.755.8700
Facsimile: 919.755.8800
Attorneys for Defendants Greystar Real
Estate Partners, LLC, Greystar
Management Services, L.P., Morgan Bond
Charlotte, LLC, Kimberly Upton, and
Stephanie Hovis