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Nix v. The Chemours Company FC, LLC

United States District Court, E.D. North Carolina, Southern Division

September 19, 2019

BRENT NIX, individually and on behalf of all others similarly situated, Plaintiff,
v.
THE CHEMOURS COMPANY FC, LLC, THE CHEMOURS COMPANY, E.I. DUPONT de NEMOURS AND COMPANY, INC., E.I. DUPONT CHEMICAL CORPORATION, ELLIS H. MCGAUGHY, and MICHAEL E. JOHNSON, Defendants. ROGER MORTON, individually and on behalf of all others similarly situated, Plaintiff,
v.
THE CHEMOURS COMPANY FC, LLC, THE CHEMOURS COMPANY, E.I. DUPONT de NEMOURS AND COMPANY, INC., E.I. DUPONT CHEMICAL CORPORATION, ELLIS H. MCGAUGHY, AND MICHAEL E. JOHNSON, Defendants. VICTORIA CAREY, MARIE BURRIS, MICHAEL KISER, and BRENT NIX, individually and on behalf of all others similarly situated, Plaintiffs,
v.
E.I. DUPONT de NEMOURS AND COMPANY and THE CHEMOURS COMPANY FC, LLC, Defendants. CAPE FEAR PUBLIC UTILITY AUTHORITY, BRUNSWICK COUNTY, LOWER CAPE FEAR WATER & SEWER AUTHORITY, and TOWN OF WRIGHTSVILLE BEACH, Plaintiff,
v.
THE CHEMOURS COMPANY FC, LLC, E.I. DU PONT de NEMOURS AND COMPANY, and THE CHEMOURS COMPANY, Defendants. JAMES S. DEW, et al., Plaintiffs,
v.
E.I. DUPONT de NEMOURS AND COMPANY, et al., Defendants.

          John K. Sherk III CA State Bar No. 295838 SHOOK, HARDY & BACON, L.L.P, Kenneth J. Reilly FL State Bar No. 157082 SHOOK, HARDY & BACON, L.L.P, Jonathan D. Sasser Stephen D. Feldman ELLIS & WINTERS LLP Attorneys for Defendants.

          Theodore J. Leopold COHEN MILSTEIN SELLERS & TOLL PLLC, Jay Chaudhuri N.C. Bar No. 27747 COHEN MILSTEIN SELLERS & TOLL PLLC, Andrew Whiteman N.C. Bar No. 9523 WHITEMAN LAW FIRM, S. Douglas Bunch Douglas J. McNamara Jamie Bowers Alison Deich COHEN MILSTEIN SELLERS & TOLL PLLC, Vineet Bhatia SUSMAN GODFREY, L.L.P., Stephen Morrissey Jordan Connors Steven Seigel SUSMAN GODFREY, L.L.P., Gary W. Jackson N.C. Bar No. 13976 THE LAW OFFICES OF JAMES SCOTT FARRIN, P.C., Neal H. Weinfield THE DEDENDUM GROUP Attorneys for Victoria Carey, Marie Burris, Brent Nix, and Michael Kiser.

          Joseph A. Ponzi N.C. Bar No. 36999 George W. House N.C. Bar No. 7426 William P. H. Cary N.C. Bar No. 7651 V. Randall Tinsley N.C. Bar No. 14429 BROOKS, PIERCE, McLENDON, HUMPHREY & LEONARD, LLP Counsel for Plaintiff Cape Fear Public Utility Authority.

          M. Cristina Sanchez Scott Summy N.C. Bar No. 27171 Cary McDougal Stephen Johnston Brett Land BARON & BUDD, P.C. J. Harold Seagle N.C. Bar No. 8017 SEAGLE LAW, PLLC Attorneys for Plaintiffs Brunswick County, Lower Cape Fear Sewer & Water Authority, and Town of Wrightsville Beach.

          STIPULATION AND ORDER GOVERNING THE EXCHANGE OF CONFIDENTIAL MATERIAL

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE

         IT IS HEREBY STIPULATED AND AGREED, by and among Plaintiffs and Defendants (each of whom individually is referred to herein as a “Party, ” and collectively, the “Parties”), by and through their undersigned counsel, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and Rule 502 of the Federal Rules of Evidence, that:

         1. Information produced in this action, including deposition testimony and exhibits, documents produced in response to requests for production or subpoenas, electronically stored information, responses to interrogatories and requests for admission, sampling and analytic data, and any other kind of discovery information (collectively, “Discovery Material”) are to be used solely for this litigation, except as set forth below.

         2. Any Party, or individual or entity who produces any information in the above captioned action, may designate any information produced in this action, including deposition testimony and exhibits, documents produced in response to requests for production or subpoenas, electronically stored information, responses to interrogatories and requests for admission, sampling and analytic data, and any other kind of discovery information (collectively, “Discovery Material”), as:

a. “Confidential” if, in good faith, the Party or individual or entity producing the Discovery Material (the “Producing Party”) believes (a) the material contains non-public, proprietary or commercially sensitive information; (b) the material requires the protections provided in this Stipulation and Order to prevent unreasonable annoyance, expense, disadvantage or prejudice to any person or entity; (c) the material contains personally identifying information of any individual, including but not limited to social security numbers and financial account numbers; (d) the material contains any other information of a personal or intimate nature regarding any individual; (e) the material contains information for which applicable agreements, regulations, or laws restrict public disclosure; or (e) the material contains any other category of information hereinafter given confidential status by the Court.
b. “Highly Confidential” if, in good faith, the Producing Party believes any document, or any portion thereof, which a Producing Party or nonparty believes to be so extremely sensitive that disclosure of such information would create a substantial risk of serious harm that could not be avoided by less restrictive means.

         3. The designation of Discovery Material as “Confidential” or “Highly Confidential” for the purposes of this Stipulation and Order shall be made in the following manner: (a) in the case of deposition or other pretrial testimony and any exhibits to said testimony, a Party shall either (i) make a statement on the record at the time of the testimony; or (ii) send within a reasonable period of time a written notice to counsel for all Parties to this litigation indicating the portions of the testimony and exhibits to which the “Confidential” or “Highly Confidential” designation applies; and in both of the foregoing instances, the Producing Party shall direct the court reporter to affix the legend “Confidential” or “Highly Confidential” to the first page and all designated portions of the transcript and exhibits, including all copies thereof; (b) in the case of responses to interrogatories and requests for admission, the Producing Party shall (i) state in the main body of responses that the interrogatory or request for admission at issue requests “Confidential” or “Highly Confidential” information, (ii) set forth the response to the interrogatory or request for admission at issue in an addendum attached to the main body of responses and (iii) affix the legend “Confidential” or “Highly Confidential” to each page of that addendum; (c) in the case of Discovery Materials produced on videotape, CD, DVD, external hard drive, or other electronic storage medium, the Producing Party shall affix the legend “Confidential” or “Highly Confidential” to the outside of such electronic storage medium or to each file, page or unit of electronically stored material; and (d) in the case of Discovery Materials produced in hard copy, the Producing Party shall affix the legend “Confidential” or “Highly Confidential” to each page so designated.

         4. If at any time prior to the trial of this action, a Party determines that some portion[s] of Discovery Material previously produced by that or any other party without limitation should be designated as “Confidential” or “Highly Confidential, ” the Party may so designate by so apprising all Parties to the litigation in writing, and such designated portion[s] will thereafter be treated as Confidential or Highly Confidential Material under this Stipulation and Order. The delay in designating a document as “Confidential” or “Highly Confidential” shall not be deemed to have effected a waiver of any of the protections of this Stipulation and Order.

         5. A Party may designate Discovery Material produced by a non-party as “Confidential” or “Highly Confidential” within thirty (30) days of receiving such material by providing written notice of the designation to all Parties to the litigation and to the producing non-party. Until such time period expires, all materials produced by the non-party shall be treated as Confidential Material. Any Party designating Discovery Material produced by a non-party as “Confidential” or “Highly Confidential” shall have a good faith basis to believe that the Discovery Material meets the criteria for Confidential or Highly Confidential Material set forth in paragraph 1.

         6. Any Discovery Material designated Confidential or Highly Confidential, information derived therefrom, or any other documents or materials reflecting or disclosing any Confidential or Highly Confidential Material may only be used for the prosecution or defense of the above-captioned action, or any appeal therefrom, and shall not be used for any other purpose whatsoever, including but not limited to, any business or commercial purpose, for dissemination to the media or the public, or in connection with any other judicial, administrative or arbitral proceeding, except as set forth below.

         7. Confidential Material may be disclosed, in all cases only in accordance with the provisions of this Stipulation and Order, only to:

a. the Court and Court personnel, as appropriate;
b. witnesses, deponents or persons whom a Party’s counsel believes in good faith may be deponents or trial fact ...

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