Agreed Protective Order (LRCivP26.4)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA AT v. CIVIL ACTION PROTECTIVE ORDER By signi n g this Protective Order, the parties have agreed to be bound b y its ter m s and to request its entry b y the presiding district or m a gistrate judge. It is hereby ORDERED as follows: I. DI S C O VERY PHASE A. If a party , or a non - party producing information in this civil action, or an attorney for the party or non - party , h a s a good faith belief that certain docu m ents or ot h er m ate r ials (including digital infor m ati o n) subject to disclosure pursuant to a request or court order , are confidential and should not be disclosed o t her than in connection with this action and American LegalNet, Inc. www.FormsWorkFlow.com 2 pursuant t o this Protective Order, the party , non - party, or at t orn e y shall clearly m ark each such docu m ent or other m aterial as CON F IDENTIAL The individual or entity designating the document or materials CONFIDENTIAL specific documents or material s that qualif y for protection under the appropriate standards. Mass, indiscriminate, or routine designations are prohibited. Designations that are shown to be clearly unjustifi ed or that have been made for an improper purpose (e.g. to unnecessarily encumber or delay the case development process or impose unnecessary expense and burden on another party) expose the designating individual or entity to sanctions. If it comes to the attention of the designating individual or entity that a document or other material ha s been improperly marked CONFIDENTIAL notify all parties that the erroneous designation is being withdrawn and mu st replace the improperly designated document or material with a copy that is not marked CONFIDENTIAL . B. If a party or an attorney for a party d i sputes whether a docu m ent or other m ate r ial should be m CONFID EN TIAL y s shall att e m p t to resolve the dispute with the designating individual or entity . If th e y are unsucce s sful, the party or CONFID E NTIAL b y filing an appro p riate m o tion. C. No par t y or attorney or other person subject to this Protective Order shall distribute , trans m it, or otherwise divulge any docu m ent or other m ate r ial which is marked CONFID E NTIAL, or the contents thereof, except in acc o rdance with this Protective O rder. C ou rt perso n nel are not su b ject to this Protective Order while engaged in t he perfor m ance of their official duties. American LegalNet, Inc. www.FormsWorkFlow.com 3 D. Any docu m ent or other m ate r ial which is m arked CONFIDENTIAL, or the contents thereof, m ay be used by a part y , or a party s attorne y , expert witness, co n sultant, or other person to w h om disclosure is m ade, o nly f o r the purpose of th i s action. N o thing contained in this Protective Order shall prevent the use of any docu m ent or other m aterial which is m arked CONFIDEN TI AL deposition taken in this action. E. If a p a rty or attorn e y wishes to disc l ose a n y do c u m ent or other m aterial which is m CONFID E NTIAL or the contents thereof, to any p e rson a ctively eng a ged in work i ng on this acti o n (e.g., expert witness, p a ralegal, ass o ciate, consultant), the person m aking the disclosure shall do the following: 1. Provide a c o py of this Protective Order to the person to whom disclosure is m ade; 2. Inform the person to w h om disclosure is m ade that s/he is bound b y this Protective Order; 3. Require the person to whom disclosure is m ade to sign an acknowledg m ent and receipt of this Protective Order; 4. Instruct the person to whom disclosure is m ade to return a ny docu m ent or other m ate r ial which is m arked CON F IDENTIAL the conclusion of t he case, including notes or m e m o r anda m ade from CON F IDENTIAL m ate r ial; and 5. Maintain a list of persons to whom disclosure was m ade and the CONFID E NTIAL m aterials which were disclosed to that person . II. POST - DISCOVERY PH ASE A. If any par t y , non - party , or attorney wishes to file, or use as an exhibit or as CON F ID E NTIA L m ent or m aterial, s/he m ust pr o vide reason a ble notice to the party that produced the docu m ent o r m a terial. The parties a nd/or attorneys shall then att e m pt to r esolve the m atter of c o ntinued confidentiality by either (a) re m oving the C O NFIDENTIAL m arking, or (b) creating a mutually acceptable redacted version th a t suffices for purposes of the case. If an a m i c able resolution proves unsuc c essful, American LegalNet, Inc. www.FormsWorkFlow.com 4 the parties and/or attorne y s may present the issue to the court for resolution. The propon e nt of continued confidentiality will have the burd e n of persuas i on that the docu m ent or m ate r ial should be withheld from the public record in accordance with (a) L ocal Rule of Civil Procedure 26.4, (b) the Adminis t rative Procedures f o r Electronic Filing in the Southern District of West Virginia 247 12, and (c) controlling precedent. See, e.g. , Press - Enterprise Co. v. Superior Court, 478 U.S. 1, 8 9 (1986); Virginia Dep t. of State Police v. Washington Post , 386 F. 3d 567, 575 (4th Cir. 2004). B. Within thirty days after the conclusion of the action, each party shall gather the CONFIDEN TI AL m aterials, copies thereof, and related notes and m e m oranda, including materials given by that party to an y other individual, and shall r e turn them to the party or attorney who originally disclosed the m , with a certificate of co m p liance with the te r m s of t h is Protective Order , unless: (1) the document has been offered into evidence or filed without restriction as to disclosure; (2) the parties agree to destruction in lieu of return; or (3) as to documents bearing the notations, summations, or other mental impressions of a receiving party rt witness or consultant , that party elects to destroy the documents and certifies to the producing party that it has done so. Notwithstanding the above requirements to return or destroy documents, counsel may retain attorney work product, including drafts of preliminary reports submitted by an expert or consultant, which includes information produced CONFIDENTIAL portions or the text or images of confidential documents. Any such wor k product retained by CONFIDENTIAL order. The attorney may use his or her work product in other litigation provided that the attorney does not use or disclose the confidential docum ents. American LegalNet, Inc. www.FormsWorkFlow.com 5 The Clerk is instructed to provide a copy of this Order to counsel of record and any unrepresented party. ENTER : Parties and Counsel : American LegalNet, Inc. www.FormsWorkFlow.com