The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:20-cv-00164-MR
JONATHAN ANTHONY LEE TORRES, )
)
Plaintiff, )
)
vs. ) PROTECTIVE ORDER
)
ERIC DYE, et al., )
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on Defendants Biecker, Brown,
Carroll, Chester, Clawson, Delozier, Dye, Franks, Morrison, Moss, Poteat,
and Turner’s filing of a Motion for Entry of Protective Order [Doc. 51].
The moving Defendants request the Court to enter a protective order
authorizing and governing the production of confidential documents,
material, and information (“Confidential Information”). The moving
Defendants relate that, “[d]uring the course of this litigation, Moving
Defendants have obtained and will continue to obtain and disclose to Plaintiff
or the Court, information in the possession, custody, or control of the North
Carolina Department of Public Safety (“NCDPS”) that is Confidential
Information by operation of federal and state law.” [Doc. 51 at 1].
On review of the Defendants’ motion, the Court finds that such
information may be deemed confidential under federal and state law,
including N.C. Gen. Stat. §§ 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.; 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. The Court will, therefore, grant Defendants’ request for a
protective order.
IT IS, THEREFORE, ORDERED that the Motion [Doc. 51] is hereby
GRANTED, and the Court enters the following order.
IT IS HEREBY ORDERED THAT:
1. Scope of the Order. This Order applies to all information
produced during written discovery, including any discovery
exchanged prior to the entry of this Order.
2. Use of Confidential Information. All Confidential Information, as
defined in this Order, shall be used solely in the prosecution or
defense of this action, and shall not be used or disclosed by any
person for any other purpose.
3. Disclosure. “Disclose” or “disclosure” means to provide, impart,
transmit, transfer, convey, publish, or otherwise make available.
4. Confidential Information. “Confidential Information” consists of
“General Confidential Information” and “Attorneys’ Eyes Only
Confidential Information,” which are defined as follows:
A. “General Confidential Information” refers to and includes:
i. Information and documents contained in “personnel
files,” as that phrase is defined in N.C. Gen. Stat. § 126-
22;
ii. Information, documents, and related materials
collected, created, and maintained by the Department
pursuant to N.C. Gen. Stat. § 148-74, -76, -118.5; and
§ 122C-52;
iii. “Protected health information” as that phrase is defined
in 45 C.F.R. § 160.103;
iv. Other 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
protective order under Rule 26(c)(1) of the Federal
Rules of Civil Procedure.
B. “Attorneys’ Eyes Only Confidential Information” means:
i. “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, including
but not limited to dates of birth, social security numbers,
home addresses and telephone numbers, insurance
records or designations, medical and/or disability
information, and other purely private information;
ii. The personal financial records, telephone records, and
e-mail records of current or former employees and
contractors of the Department; and
iii. Other non-public information as provided in N.C. Gen.
Stat. § 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 General Confidential Information. General
Confidential Information shall not be disclosed to anyone except:
A. The Court and its personnel;
B. The parties to this action;
C. Counsel for the parties to this action and employees of said
counsel;
D. 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
E. Court reporters or videographers engaged to record
depositions, hearings, or the trial in this action.
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 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 Attorneys’ Eyes Only Confidential
Information only upon a motion for good cause shown.
8. Confidentiality Agreements. Before Confidential Information or
Attorneys’ Eyes Only Confidential Information is disclosed to any
person described in Paragraphs 5(d), 6(c), or 7, of this Order,
counsel for the party disclosing the information 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 a copy of the
Confidentiality Agreement attached hereto as Exhibit A. Counsel
for the party disclosing the Confidential Information to said
person shall maintain the original Confidentiality Agreement and
need not produce it except by agreement of the parties 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 by placing the appropriate legend,
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” for
General Confidential Information or “CONFIDENTIAL–
ATTORNEYS’ EYES ONLY” for Attorneys’ Eyes Only
Confidential Information, on each page containing such
information or by such other means as agreed to by the
parties. The party disclosing the information shall designate
the documents as confidential at or before the time of
disclosure. A party may make the designation with respect to
information disclosed by another party by a writing directed to
the producing party's counsel. The producing party's counsel
shall then be responsible for labeling the designated
information as provided herein, or otherwise agreed to by the
parties.
B. Information on a computer disk, flash-drive, or other medium
that has not been reduced to paper form shall be designated
as Confidential Information by informing counsel for the
parties to this action in writing that the computer disk, flash-
drive, or other medium contains such Confidential Information
and, where applicable, specifying by Bates or other page
number the particular information being designated or by such
other means as agreed to by the parties. To the extent
practicable, such physical medium should also be labeled
using the appropriate marking. 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 counsel for the other parties. The notice
shall, where applicable, specify by Bates or other page
number the particular information being designated.
10. Disputes over Designations. If any party objects to the
designation of any information as Confidential Information,
counsel for the objecting party and counsel for the designating
party shall attempt to resolve the disagreement on an informal
basis. If the objection is not so resolved, the objecting party 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 in question
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 similar or related information nor
shall it be deemed a waiver of confidentiality with regard to the
information inadvertently disclosed if promptly called to the
attention of counsel for each receiving party.
12. Filing of Confidential Information Under Seal. When filing a
document marked “Confidential Information,” the filing party must
comply with Local Civil Rule 6.1.
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, 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, the 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 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.
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. Confidential Employee Information. Pursuant to N.C. Gen. Stat.
§ 126-24(4), this Order specifically authorizes the disclosure of
confidential portions of the personnel files maintained by the
Department of current or former employees in accordance with
the terms of this Order.
17. Modification. This Order is without prejudice to the right of any
party or witness 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 SO ORDERED.
Signed: January 6, 2023
Martifi Reidinger ee
Chief United States District Judge “AES
13
EXHIBIT A
CONFIDENTIALITY AGREEMENT
I, ________________________, have read and familiar with the terms
of the Protective Order governing the Confidential Information in the case of
Torres v. Dye, 5:20-CV-00164-MR, in the Western District of North Carolina,
and agree with the following:
1. To abide by all the terms of said Order and not to reveal or
otherwise communicate any of the information disclosed to me pursuant
thereto to anyone except in accordance with the terms of said Order.
2. To not make use of any information obtained, whether in
documentary or other form, for purposes other than this litigation.
3. Upon written request, to return to counsel of record or to destroy
not later than 60 days after notification of the termination of this litigation any
and all documents in my possession containing information which is the
subject of said 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).
4. 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