Confidentiality Order

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA INSTRUCTIO NS FOR USE OF FORM CONFIDENTIALITY ORDERTo: Counsel and Parties Requesting Entry of a Confidentiality OrderFrom: Joseph F. Anderson, Jr., Chief JudgeSubject: Form Confidentiality OrderDate: September 2, 2003 The court has adopted a form Confidentiality Order for use in this district. All judges willaccept this form order and will require its use as a base form. Even when required, however, thecourt will consider requested modifications of the language as discussed below. The form may befound on the district courts website (www.scd.uscourts.gov) under Forms.I. PROCEDURE FOR OBTAINING A CONFIDENTIALITY ORDER. A. Joint request for unmodified form order. The court will automatically approve joint requests for entry of a confidentiality order ifsubmitted in the form found on the courts website. If you are requesting an unmodified order, youshould: (1) download the form order; (2) make the appropriate edits (addition of caption andselection of the introductory and closing paragraphs designated if by consent); (3) obtain signaturesof counsel for all parties; and (4) submit the proposed consent order to the court via cover letter. B. Joint request for modified form order. Counsel may also jointly request a modified form order. If requesting a modified form order,counsel should submit a proposed consent order (edited as noted above), signed by counsel, andreflecting all proposed modifications. In addition, counsel should submit a cover letter explainingthe basis for each proposed modification along with a redlined version of the order comparing theform document to the proposed order. Note: Neither a redlined version nor explanation is requiredto delete the Reading Room provisions, although the change should be noted in the cover letter. C. Competing versions. If counsel agree that a confidentiality order should be entered, but disagree as to the specificprovisions, they should submit a single draft redlined order along with a disk containing the proposedalternative versions of the order. The draft redlined order should indicate which, if any, proposedchanges to the form order are by agreement. It should also indicate the alternative proposals as toany areas of dispute. The alternative proposals shall be clearly marked to indicate which partyadvances each alternative. The parties may submit either joint or separate cover letters explaining<<<<<<<<<********>>>>>>>>>>>>> 2 1the basis for all proposed changes. When competing versions of the order are submitted, the introductory and closing paragraphsmarked if not fully by consent should be selected. Counsel should not sign the proposed order asit would not be fully by consent. D. Disagreement as to need for Confidentiality Order If the parties disagree as to the need for a confidentiality order, application for an order shallbe by motion with appropriate supporting memorandum. The party proposing the order should: (1)utilize the form Confidentiality Order as a base for the proposed order; (2) attach both the proposedorder and a redlined version comparing the form order to the proposed order (if seeking changes tothe standard language); and (3) explain the need for a confidentiality order and any proposedmodifications. II. KEY PR OVISIONS OF FORM CONFIDENTIALITY ORD ER The form order contains a number of key provisions that are likely to be appropriate to mostcases. For instance, it: imposes limits on what may be designated as confidential and imposes a duty on counsel to certify that the designation is appropriate ( 3); delineates the procedures for filing documents under seal (7) ; establishes procedures for challenging confidentiality ( 9) ; addresses how both unfiled confidential documents and filed sealed documents are to be handled at the conclusion of the action ( 10); provides that the order is always subject to modification, including on motion of third parties ( 11); and prohibits representation of the order as a specific judicial finding that any particular document is, in fact, subject to protection under the Federal Rules of Civil Procedure or otherwise ( 12). In addition, there are some provisions which may be appropriate only in a more limitedcategory of case. For example, the Reading Room provisions ( 4) may be counter-productive incases involving few documents while they may be critical to document intensive cases. Similarly,the provisions placing special conditions on access by litigants or their employees may not benecessary in every case. These latter provisions are included as it would be easier to delete them inthe inappropriate case than to redraft them for the appropriate ones. 1 Where the dispute is substantial, the court may require the parties to submit theirdispute by motion. <<<<<<<<<********>>>>>>>>>>>>> 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA DIVISION __________________ ) Civil Action No. _________________ ) Plaintiff, ) vs. ) ____________________ ) [Consent] Confidentiality Order ) Defendant ) ) __________________________ ) [if by consent] Whereas, the parties to this Consent Confidentiality OrderApar (ties@), have stipulated that certain discovery material is and should be treated as confidential, and have agreed to the terms of this order; accordingly, it is this __ day of _______________, 20__, ORDERED: [if not fully by consent] Whereas, the parties to this actioAnpar ( ties@), have stipulated that certain discovery material is and should be treated as confidential, and have requested that the court enter a confidentiality order; and whereas the court has determined that the terms set forth herein are appropriate to protect the respective interests of the parties. the public, and the court; accordingly, it is this __ day of _______________, 20__, ORDERED: 1. Scope. All documents produced in the course of discovery, all responses to discovery requests and all deposition testimony and deposition exhibits and any other materials which may be subject to discovery (hereinafter collectivelAdoy cument@s) shall be subject to this Order concerning confidential information as set forth below. 2. Form and Timing of Designation. Confidential documents shall be so designated by placing or affixing the wordAC ONFIDENTIAL @ on the document in a manner which will not interfere with the legibility of the document and which will permit complete removal of the Confidential designation. Documents shall be designated CONFIDENTIA