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Albanesi v. North American Company for Life and Health Insurance

United States District Court, W.D. North Carolina, Asheville Division

May 10, 2018



          Dennis L. Howell United States Magistrate Judge

         IT IS HEREBY STIPULATED AND AGREED by and between the parties through their respective counsel, subject to the approval of the Court, that pursuant to the Federal Rules of Civil Procedure, the following Protective Order be entered.


         1. This Protective Order shall apply to all information, documents, and things subject to discovery in this action which are conveyed by any party or third party witness (hereinafter termed “conveying party”) to another party (hereinafter termed “receiving party”) in this action, including, without limitation, all portions of transcripts of deposition testimony, exhibits, answers to interrogatories or requests for admission, documents, or things, including any excerpt, index, description, copy, summary or abstract thereof (referred to as “DISCOVERY MATERIALS”). “CONFIDENTIAL MATERIALS” are any DISCOVERY MATERIALS of the conveying party: (a) containing trade secrets, competitively sensitive technical, marketing, financial, sales, or other confidential business information; or (b) containing private or confidential personal information; or (c) containing information received in confidence from third parties; or (d) which the producing party otherwise believes in good faith to be entitled to protection under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure. It is expressly contemplated and agreed that third party witnesses may invoke all provisions of this Protective Order which are available to a conveying party, and that the parties will treat all CONFIDENTIAL MATERIALS of a third party witness, which information is designated in writing by the conveying party as such, in accordance with the terms of this Protective Order.

         2. Subject to the terms set forth below, all information produced by the conveying party shall be used by the parties receiving the information solely for the purposes of preparing for and conducting this action, and the information shall not be used for any other purpose, subject to any subsequent modification or further order by the Court.

         3. Each party or third person conveying DISCOVERY MATERIALS shall mark documents and things produced by it and answers to interrogatories and responses to other discovery demands deemed to be CONFIDENTIAL MATERIALS with an appropriate description such as: “CONFIDENTIAL - SUBJECT TO COURT ORDER”.

         4. Making documents and things available for inspection shall not constitute a waiver by the conveying party of any claim of confidentiality, attorney-client privilege, work-product immunity, or any other right.

         5. If questions put to a witness in a pretrial deposition will disclose information constituting CONFIDENTIAL MATERIALS, or the answer to any question requires such disclosure, or if documents to be used as exhibits during the deposition constitute such materials, then counsel may notify the witness that such documents or material are CONFIDENTIAL MATERIALS subject to this Protective Order, and that the witness is bound by the terms of this Protective Order. Further, if a person other than the witness is present at the deposition who would not otherwise be entitled to review the CONFIDENTIAL MATERIALS, that person must leave the deposition during that portion of the testimony upon request of any of the parties, and such request must be honored absent an order from the Court to the contrary. If a party believes there is just cause under applicable law for prohibiting the witness from reviewing the CONFIDENTIAL MATERIALS, such objection must be asserted during the deposition, and either resolved by the parties consensually, or by seeking assistance telephonically from the Court. If the Court is not available to resolve any such objections, the witness shall not be shown the subject materials, unless and until the Court resolves the dispute. In the event such objection is not sustained by the Court, the party asserting such objection shall be held responsible for the additional attorneys' fees and expenses of the other parties incurred as a result of requiring a resumption of the deposition at a later date. The foregoing procedures and provisions likewise shall apply to objections to the exclusion from the deposition of persons other than the witness. To the extent deposition transcripts and documents reflect or contain CONFIDENTIAL MATERIALS, such shall be available only to the persons entitled to access to CONFIDENTIAL MATERIALS under this Protective Order, to the reporter, to the witness, and to representatives of the conveying party. Testimony and documents may be designated as CONFIDENTIAL MATERIALS not only during the deposition itself, but also upon written designation served upon all the parties within 30 days of the date that the court reporter makes the transcript available to the parties. The entirety of a deposition and its exhibits shall be treated as CONFIDENTIAL MATERIALS for five business days after the testimony has been given, in order to provide a party the opportunity to designate testimony or documents as confidential on an accelerated basis.

         6. The parties recognize that in order to assist in the preparation of their case, the receiving party may desire to use the service of potential testifying experts and/or consultants, whose advice and consultation are being or will be used by such party in connection with the conduct of this litigation. Counsel desiring to disclose CONFIDENTIAL MATERIALS to such experts or consultants shall first obtain a signed undertaking of each such expert or consultant who may require access to CONFIDENTIAL MATERIALS, in the form of Exhibit A attached to this Protective Order (the “Expert Confidentiality Pledge”). CONFIDENTIAL MATERIALS may be shown to an expert or consultant after such expert or consultant signs the Expert Confidentiality Pledge. Any and all signed Expert Confidentiality Pledges shall be maintained by counsel, but need not be produced to opposing counsel absent an order of Court. This provision is designed to permit counsel to use the services of experts and consultants without revealing the identity of those experts or consultants to opposing counsel.

         7. CONFIDENTIAL MATERIALS may be disclosed only to the following individuals under the following conditions:

(a) Counsel of record in this action and in-house counsel and staff for any corporate party;
(b) Outside experts or consultants retained by outside counsel for purposes of this action, subject to the provisions of ¶ 6 of this Protective Order;
(c) Secretarial, paralegal, clerical, duplicating and data processing personnel of the foregoing persons and entities ...

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