Milligan v. Merrill Lynch, Pierce, Fenner & Smith, Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CASE NO. 3:24-CV-440-KDB-DCK
THIS MATTER IS BEFORE THE COURT on the “Joint Motion For Entry Of
Stipulated Protective Order” (Document No. 43) filed September 30, 2024. This motion has been
referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and immediate
review is appropriate. Having carefully considered the motion and the record, the undersigned
will grant the motion and enter the Stipulated Protective Order as follows.
IT IS, THEREFORE, ORDERED that:
1. PURPOSES AND LIMITATIONS
Disclosure and discovery activity in the Action is likely to involve the production of
confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting and defending the Action is
warranted. Protection of the identified categories of confidential, proprietary, or private
information is necessary because certain documents and information the parties and others may
produce as part of their disclosures or in response to discovery requests contain confidential
information, personal compensation, or financial information about current or former employees
KELLY MILLIGAN, )
)
Plaintiff, ) ORDER
)
v. )
)
MERRILL LYNCH, PIERCE, FENNER
& SMITH, INC., et al.,
)
)
)
Defendants. )
)
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of the Defendants, proprietary and sensitive business information, and other confidential personal
and financial information. Accordingly, the Parties stipulate to, and request that the Court enter,
the following Stipulated Protective Order (the “Order”).
The Parties acknowledge that this Order does not confer blanket protections on all
disclosures or responses to discovery, and that the protections it affords from public disclosure and
use extend only to the limited information or items entitled to confidential treatment under
applicable law.
2. DEFINITIONS
2.1 Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2 “CONFIDENTIAL” Information or Items: information (regardless of how
it is generated, stored, or maintained) or tangible things that contain confidential and non-public
development, financial, or commercial information or non-public personal information or any
other information for which a good faith claim of need for protection from disclosure can be made
under the Federal Rules of Civil Procedure or other applicable law.
2.3 Counsel: Outside Counsel of Record and In-House Counsel (as well as their
support staff).
2.4 Designating Party: a Party or Non-Party that designates information or
items that it produces as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY”.
2.5 Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which they are generated, stored, or maintained (including, among other
things, testimony, transcripts, exhibits, all tangible things, electronically stored information,
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documents, records, minutes, and information derived directly therefrom), that are produced or
generated in this Action.
2.6 Expert: a person with specialized knowledge or experience in a matter
pertinent to the Action who has been retained by a Party or its Counsel to serve as an expert witness
or as a non-testifying consultant in this Action.
2.7 In-House Counsel: litigation attorneys who are employees of a Party to this
action. In-House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
Information or Items: information or items (regardless of how generated, stored, or maintained) or
tangible things that satisfy the definition of Confidential Information and that the Designating
Party reasonably and in good faith believes is so highly sensitive that its disclosure could result in
significant competitive or commercial disadvantage to the Designating Party.
2.9 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party in this Action.
2.10 Outside Counsel of Record: attorneys who are not employees of a Party to
this action but are retained to represent or advise a Party to the Action and have appeared in the
Action on behalf of that Party or are affiliated with or contracted by a law firm which has appeared
on behalf of that Party.
2.11 Party: any party to this Action, including its officers, directors, and
employees.
2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
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2.13 Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
2.14 Privacy Information: any documents containing an individual's social
security number or taxpayer identification number (other than only the last four digits thereof), an
individual's birth date (other than only the year of the individual's birth), the name of an individual
known to be a minor (other than only the minor's initials), a financial account number (other than
only the last four digits thereof), “Personal Data,” “Personally Identifiable Information,”
“Sensitive Private Data,” or “Nonpublic Personal Information” as these terms are defined under
federal, state, or foreign data protection laws, including without limitation the General Data
Protection Regulation (EU) 2016/679 (the “GDPR”), or any information that a party or non-party
believes in good faith to be subject to non-US data protection laws, regardless of whether such
information has been designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” (collectively, “Privacy Information”).
2.15 Protected Material:
(a) any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
(b) any Privacy Information.
2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
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3. SCOPE
This Order applies to (a) Protected Material (as defined above); (b) any information copied
or extracted from Protected Material; (c) all copies, excerpts, summaries, or compilations of
Protected Material; and (d) any testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. This Order shall govern all documents and
information produced, whether informally or pursuant to formal discovery requests, and shall
include all information contained in the documents or information revealed during a deposition or
in any interrogatory answer or otherwise disclosed in discovery.
This Order does not apply to (a) any information that is in the public domain at the time of
disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a
Receiving Party as a result of publication not involving a violation of this Order; and (b) any
information obtained by the Receiving Party, either before or after the disclosure, from a source
who obtained the information lawfully and under no obligation of confidentiality to the
Designating Party.
This Order does not prevent any party from seeking relief from the Court related to the
production of documents or information. This Order does not alter any confidentiality obligations
that a party may have at law or under another agreement. Any use of Protected Material at trial
shall be governed by a separate agreement or order.
4. DURATION
Even after Final Disposition of the Action, the confidentiality obligations imposed by this
Order shall remain in effect until a Designating Party otherwise agrees in writing or a court order
otherwise directs. “Final Disposition” shall be deemed to be the later of (1) dismissal of all claims
and defenses in the Action, with or without prejudice; and (2) final judgment herein after the
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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of the Action,
including the time limits for filing any motions or applications for extension of time pursuant to
applicable law. After Final Disposition, all Protected Material shall be maintained or destroyed
pursuant to normal business practice or local Data Protection Laws. This Court will retain
jurisdiction to enforce the terms of this Order following the Final Disposition of the Action.
5. CONFIDENTIAL DESIGNATIONS
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party
or Non-Party that designates information or items as Protected Materials under this Order must
take reasonable care to limit any such designation to specific material that qualifies for protection
under the appropriate standards. If it comes to a Designating Party’s attention that information or
items that it designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designations.
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order or
as otherwise stipulated or ordered, and to the extent feasible, any material designated as
Confidential under this Order shall be so designated before or at the time the material is disclosed
or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents,
but excluding transcripts of depositions or other pretrial proceedings), that the Producing Party or
Designating Party affix “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” to each page of the document and on all copies in a manner that will not interfere
with the legibility of the document. In lieu of marking the originals of documents, any party may
mark the copies of such documents that are produced or exchanged. If a document is marked or
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stamped as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the
designation must not cover or mark over any textual material in the document. As used in this
Order, “copies” includes electronic images, duplicates, extracts, summaries, or descriptions that
contain the Confidential Information. If it is not practicable to affix the marking to the document,
then the Producing Party or Designating Party must clearly identify the Protected Material in a
writing accompanying the document, with the accompanying Bates production numbers or other
unequivocal identifier. Any copies of designated documents must also bear the marking, except
that indices, electronic databases, or lists of documents that do not contain substantial portions or
images of the text of marked documents and do not otherwise disclose the substance of the
Confidential Information are not required to be marked. A Party or Non-Party that makes original
documents or materials available for inspection need not designate them for protection until after
the inspecting Party has indicated which material it would like copied and produced. During the
inspection and before the designation, all of the material made available for inspection shall be
deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting
Party has identified the documents it wants copied and produced, the Producing Party must
determine which documents, or pages thereof, qualify for protection under this Order. Then,
before producing the specified documents, the Producing Party must affix the appropriate legend
(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each
document or page of a document that contains Protected Material.
(b) for testimony given in deposition or in other pretrial proceedings, that the
Designating Party either (1) identifies on the record, before the close of the deposition, hearing, or
other proceeding, that they seek to designate the transcript (or portions thereof) as Confidential; or
(2) no later than 30 days after receipt of the final transcript, informs the other party in writing of
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which portions of the specific sections of the transcript that they seek to designate Confidential.
The deposition or other pretrial proceeding shall be treated as Protected Material in its entirety
until the expiration of 30 days following the delivery of the final transcript to all parties. After the
expiration of that period, the transcript shall be treated only as actually designated.
(c) for information produced in some form other than documentary form and
for any other tangible items, that the Producing Party affixes in a prominent place on the exterior
of the container or containers in which the information or item is stored the legend
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. If only a
portion or portions of the information or item warrant protection, the Producing Party, to the extent
practicable, shall identify the protected portion(s) and specify the level of protection asserted.
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the Designating Party’s
right to secure protection under this Order for such material. Upon correction of a designation, the
Receiving Party must make reasonable efforts to assure that the material is treated in accordance
with the provisions of this Order.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party may challenge a confidentiality designation
within 120 days of disclosure of the designation.
6.2 Meet and Confer. To challenge a confidentiality designation, the Challenging Party
shall initiate the dispute resolution process by providing written notice of each designation it is
challenging and describing the basis for each challenge with sufficient particularity to enable the
Parties to engage in a meaningful meet-and-confer discussion. To avoid ambiguity as to whether
a challenge has been made, the written notice must recite that the challenge to confidentiality is
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being made in accordance with this specific paragraph of the Order. The Parties shall attempt to
resolve each challenge in good faith and must begin the process by conferring directly (in person
or by phone) within 14 days of the date of service of notice. In conferring, the Challenging Party
shall explain the basis for its belief that the confidentiality designation was not proper and shall
give the Designating Party an opportunity to review the designated material, to reconsider the
designation, and, if no change in designation is offered, to explain why the chosen designation is
proper. A Challenging Party may proceed to the next stage of the challenge process only if it has
engaged in this meet-and-confer process first or establishes that the Designating Party is unwilling
to participate in the meet-and-confer process in a timely manner.
6.3 Judicial Intervention. If the Parties cannot resolve a challenge without Court
intervention, the Challenging Party shall file and serve a motion to challenge the designation. Any
such motion must be accompanied by a competent declaration affirming that the movant has
complied with the meet-and-confer requirements in the preceding paragraph. Failure by the
Challenging Party to submit the required declaration shall automatically waive the challenge. The
burden of proving the necessity of a confidentiality designation remains with the Designating
Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
unnecessary expenses and burdens) may expose the Challenging Party to sanctions. Until the
Court rules on a challenge, all Parties must continue to treat the materials at issue with the
protection to which it is entitled under the Designating Party’s designation.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed
or produced by another Party or by a Non-Party in connection with this Action only, for
prosecuting, defending, or attempting to settle the Action, including any appeals. Such Protected
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Material may be disclosed only to the categories of persons and under the conditions described in
this Order. When the Action has been terminated, a Receiving Party must comply with the
provisions of Section 16 below.
Protected Material must be stored and maintained by a Receiving Party at a location and in
a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any
information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in the Action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for purposes of the Action;
(b) where the Receiving Party is an individual, the Receiving Party her- or
himself;
(c) where the Receiving Party is an entity, the officers, directors, employees
(including In-House Counsel), and professional vendors of the Receiving Party to whom it is
reasonably necessary to disclose the information to for purposes of the Action, including the
Receiving Party’s insurer(s), if applicable;
(d) the Court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock
jurors, and Professional Vendors to whom disclosure is reasonably necessary for purposes of the
Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) any potential, anticipated, or actual fact witness and his or her counsel, but
only to the extent such Protected Material will assist the witness in recalling, relating, or explaining
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facts or in testifying, and only after such persons have completed the certification contained in
Exhibit A, except that counsel for the Parties may show a witness in a deposition, at a hearing, or
at trial items or information designated “CONFIDENTIAL” without the witness’s having
completed the certification contained in Exhibit A. Any witness who is shown items or
information designated “CONFIDENTIAL” is bound by this Order to maintain the confidentiality
of such items or information once the witness is on notice of the terms of this Order
(g) Experts retained by the Receiving Party for purposes of this Action and to
whom disclosure is reasonably necessary for this Action and who have signed the
“Acknowledgement and Agreement to Be Bound” (Exhibit A);
(h) the author or recipient of a document containing the information;
(i) any mediator appointed by the Court or jointly selected by the Parties; and
(j) other persons only by written consent of the Designating Party or upon order
of the Court and on such conditions as may be agreed or ordered.
7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
Information or Items. Unless otherwise ordered by the Court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” solely for purposes of this Action only to:
(a) the Receiving Party’s Outside Counsel of Record in the Action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for purposes of the Action;
(b) In-House Counsel of the Receiving Party to whom disclosure is reasonably
necessary for purposes of the Action, who have signed the “Acknowledgement and Agreement to
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Be Bound” (Exhibit A), and who has been designated to receive such information or item
(“Designated In-House Counsel”);
(c) Witnesses who appear for deposition in this matter, during the course of
their testimony, after the witness has been advised of the need to keep the information confidential
and agrees to do so in writing by signing the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), to the extent that the information labeled “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” relates directly to the witness and must reasonably be disclosed in
order to conduct the witness’s deposition;
(d) Experts engaged by the Receiving Party to whom disclosure is reasonably
necessary for this Action and who have signed the “Acknowledgement and Agreement to Be
Bound” (Exhibit A);
(e) the Court and its personnel;
(f) court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information;
(h) any mediator appointed by the Court or jointly selected by the Parties; and
(i) other persons only by written consent of the Designating Party or upon order
of the Court and on such conditions as may be agreed or ordered.
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in the Action as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that Party must:
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(a) Within five business days from receiving the subpoena or order, notify in
writing the Designating Party, and include in such notification a copy of the subpoena or order;
(b) promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena or order is
subject to this Order, and include a copy of this Order with the notification; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena
or court order shall not produce any information designated in this action as “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by an
appropriate court, unless the Party has obtained the Designating Party’s permission. The
Designating Party shall bear the burden and expense of seeking protection in that court of its
confidential material, and nothing in these provisions should be construed as authorizing or
encouraging a Receiving Party in this Action to disobey a lawful directive from another court.
9. APPLICABILITY OF THIS ORDER TO NON-PARTIES
9.1 Order Applicable to Non-Parties. The terms of this Order apply to information
produced by Non-Parties in the Action and designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Any information produced by Non-Parties
in this Action is protected by the remedies and relief provided by this Order. Nothing in this Order
shall prohibit a Non-Party from seeking additional protections.
9.2 Service of Order with Non-Party Discovery Request. The Party issuing any
subpoena or other discovery request on any Non-Party in this Action shall include with any such
subpoena or discovery request a copy of this Order.
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9.3 Request to a Party Seeking Non-Party Confidential Information. If a Party is
required, by a valid discovery request, to produce a Non-Party’s confidential information in its
possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-
Party’s confidential information, then the Party shall:
(a) promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement with a Non-Party;
(b) promptly provide the Non-Party with a copy of this Order, the relevant
discovery request(s), and a reasonably specific description of the information requested; and
(c) make the information requested available for inspection by the Non-Party.
If the Non-Party fails to object or seek a protective order from this Court within 14 days of
receiving the notice and accompanying information, the Party that received the discovery request
may produce the Non-Party’s responsive confidential information. If the Non-Party timely seeks
a protective order, the Party that received the discovery request shall not produce any information
in its possession or control that is subject to the confidentiality agreement with the Non-Party
before a determination by the Court. Absent a court order to the contrary, the Non-Party shall bear
the burden and expense of seeking protection in this Court of its Protected Material.
10. FILING OF PROTECTED MATERIAL
If a Party wishes to file any Protected Material or any papers containing or referencing the
content of such material in any pleading or document with the Court in this Action, (a) the Party
shall do so provisionally under seal and/or with redactions, as applicable, and (b) the Designating
Party shall move to file the Protected Material under seal within seven (7) days of the filing.
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11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Order, the Receiving Party
shall immediately (a) notify in writing the Designating Party of the unauthorized disclosures;
(b) use its best efforts to retrieve all unauthorized copies of the Protected Material; (c) inform the
person or persons to whom unauthorized disclosures were made of all the terms of this Order; and
(d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
(Exhibit A).
Further, if the Receiving Party discovers any loss of Protected Material or a breach of
security, including any actual or suspected unauthorized access, relating to the produced Protected
Material, the Receiving Party shall:
(a) promptly provide written notice to the Producing Party of such breach
within twenty-four (24) hours of the breach discovery;
(b) investigate and make reasonable efforts to remediate the effects of the
breach, and provide the Producing Party with assurances that such breach shall not reoccur;
(c) provide sufficient information about the breach that the Producing Party can
reasonably ascertain the size and scope of the breach;
(d) cooperate with the Producing Party or law enforcement in investigating any
such security incident; and
(d) promptly take all necessary and appropriate corrective action to terminate
the unauthorized access and/or correct the breach.
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12. PROTECTED MATERIAL AND ARTIFICIAL INTELLIGENCE PLATFORMS
The Receiving Party shall not load, import, submit, or otherwise transfer documents or data
produced by the Producing Party to a publicly accessible Large Language Model (“LLM”) or
Artificial Intelligence (“AI”) platform. LLM or AI platforms may be used with industry standard
data security provisions and if the Party has ensured the documents or data will not be utilized to
train public models or otherwise made accessible to other users of the LLM or AI platform.
13. PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
13.1 No Waiver by Disclosure. This Order is entered pursuant to Rule 502(d) of the
Federal Rules of Evidence. Subject to the provisions of this Order, if a Party or subpoenaed
nonparty (“Disclosing Party”) discloses information in connection with this Action that the
Disclosing Party thereafter claims to be privileged or protected by the attorney-client privilege or
work product protection (“Privileged Information”), the disclosure of that Privileged Information
will not constitute or be deemed a waiver or forfeiture—in this or any other federal or state
action—of any claim of privilege or work product protection the Disclosing Party would otherwise
be entitled to assert concerning the Privileged Information and its subject matter. This Order shall
be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d).
13.2 Notification Requirements; Best Efforts of Receiving Party. A Disclosing Party
must promptly notify the Party receiving the Privileged Information (“the Receiving Party”), in
writing, that it has disclosed that Privileged Information without intending a waiver by the
disclosure. Upon such notification, the Receiving Party must—unless it contests the claim of
attorney-client privilege or work product protection in accordance with paragraph 13.3—promptly
(i) notify the Disclosing Party that it will make best efforts to identify and return, sequester, or
destroy (or in the case of electronically stored information, delete) the Privileged Information and
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any reasonably accessible copies it has; and (ii) provide a certification that it will cease further
review, dissemination, and use of the Privileged Information. Within five business days of receipt
of the notification from the Receiving Party, the Disclosing Party must explain as specifically as
possible why the Protected Information is privileged.
13.3 Contesting Claim of Privilege or Work Product Protection. If the Receiving Party
contests the claim of attorney-client privilege or work product protection, the Receiving Party
must—within five business days of receipt of the notice of disclosure—move the Court for an
Order compelling disclosure of the information claimed as unprotected (a “Disclosure Motion”).
The Disclosure Motion must be filed under seal and must not assert as a ground for compelling
disclosure the fact or circumstances of the disclosure. Until resolution of the Disclosure Motion,
the Receiving Party must not use the challenged information in any way or disclose it to any person
other than those required by law to be served with a copy of the sealed Disclosure Motion.
13.4 Stipulated Time Periods. The Parties may stipulate to extend the time periods set
forth in the paragraphs in this Section 13.
13.5 Attorney’s Ethical Responsibilities. Nothing in this Order overrides any attorney’s
ethical responsibilities to refrain from examining or disclosing materials the attorney knows or
reasonably should know to be privileged and to inform the Disclosing Party that such materials
were produced.
13.6 Burden of Proving Privilege or Work-Product Protection. The Disclosing Party
retains the burden—upon challenge pursuant to paragraph 13.3—of establishing the privileged or
protected nature of the Protected Information.
13.7 In camera Review. Nothing in this Order limits the right of any Party to petition
the Court for an in camera review of the Privileged Information.
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13.8 Voluntary and Subject Matter Waiver. This Order does not preclude a Party from
voluntarily waiving the attorney-client privilege or work product protection. The provisions of
Federal Rule 502(a) apply when the Disclosing Party uses or indicates that it may use information
produced under this Order to support a claim or defense.
13.9 Review. Nothing in this Order is intended to or shall serve to limit a Party’s right
to conduct a review of documents, ESI, or information (including metadata) for relevance,
responsiveness, or segregation of privileged or protected information before production. Further,
nothing in this Order is intended to reduce the time frame provided to the Disclosing Party to
complete their review should they choose to do so.
13.10 Proportionality. Nothing in this Order is intended to limit a Party’s proportionality
and burden arguments specifically related to the costs to conduct a review of documents, ESI, or
information (including metadata) for relevance, responsiveness, or segregation of privileged or
protected information before production.
13.11 Rule 502(b)(2). The provisions of Federal Rule of Evidence 502(b)(2) are
inapplicable to the production of Protected Information under this Order.
14. MISCELLANEOUS
14.1 Right to Further Relief. Nothing in this Order abridges the right of any Party or
other person with standing to seek to modify this Order by the Court in the future. The Order must
not, however, be modified until the Parties have met-and-conferred on the proposed
modification(s). If the Parties agree, an Amended Protective Order may be filed that incorporates
the modification(s) and shall become the operative Order. Motions to modify this Order shall
include a proposed Amended Protective Order as an exhibit and shall be served and filed in
accordance with the Federal Rules of Civil Procedure and the Local Rules.
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14.2 Right to Assert Other Objections. By entry of this Order, no Party waives any right
it otherwise would have to object to disclosing or producing any information or item on any ground
not addressed in this Order. Similarly, no Party waives any right to object on any ground to use in
evidence of any of the material covered by this Order.
14.3 Right of a Party to Use Its Own Documents. Nothing in this Order shall affect a
Party’s use or disclosure of its own documents in any way.
14.4 Right of a Party to Use Independently Obtained Documents. Nothing in this Order
shall impose any restrictions on the use or disclosure by a Party of documents, material or
information obtained by such Party independent of formal discovery proceedings in this Action.
14.5 Right to Supplement or Request Deletion. If during the course of litigation, a data
subject with privacy rights pursuant to the Data Protection Laws identified herein exercises his or
her right to erasure of personal data contained within the previously produced Protected Material,
the Producing Party shall furnish newly redacted versions of the Protected Material within a
reasonable time. The Requesting Party will promptly destroy the original version of the Protected
Material and replace it with the redacted version. The Producing Party may also require the entire
document destroyed and replaced with a slip-sheet indicating the Protected Material is subject to
erasure pursuant to the applicable Data Protection Law.
14.6 Personally Identifiable Information. Personally identifiable information that a party
has designated as Protected Material as defined herein, based on its good faith belief that the
information is subject to federal, state, or foreign Data Protection Laws, data privacy laws, or other
privacy obligations, or any of the information contained therein, shall be handled by Counsel for
the Receiving Party with the highest care.
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14.7 Sending Protected Materials: Any document production that may contain Protected
Material shall be produced in encrypted form and the production media shall be labeled “MAY
CONTAIN NON-PUBLIC PERSONAL INFORMATION.” If a Producing Party encrypts or
“locks” the production, the Producing Party shall send, under separate cover, an explanation of
how to decrypt the files. When a Producing Party ships by U.S. Mail, Federal Express, UPS, or
other courier delivery service, any Discovery Material to others designated in this Order as
authorized to receive Discovery Material, the Producing Party will encrypt the electronic data and
supply the password in a separate correspondence to the recipient.
14.8 Redaction of Privacy Information: For any matter that any Party claims, in good
faith, contains “Personally Identifiable Information,” “Sensitive Private Data,” or “Nonpublic
Personal Information” as these terms are defined under federal, state, or foreign data protection
laws, the party shall mark each thing where matter has been redacted with a legend stating
“REDACTED,” and specify the basis for the redaction (e.g., data privacy) as appropriate, or a
comparable notice. The right to challenge and the process for challenging redactions shall be the
same as the right to challenge and the process for challenging the confidentiality designations of
Discovery Material as set forth above.
15. FINAL DISPOSITION
15.1 Within 90 days after the Final Disposition of this action, as defined in Section 4,
each Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or entity, to the
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Designating Party) by the 90 day deadline that (1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed; and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries, or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain archival copies of all pleadings, motion papers, deposition, hearing, and trial transcripts,
legal memoranda, correspondence, deposition, hearing, and trial exhibits, expert reports, attorney
work product, and consultant and expert work product, even if such materials contain Protected
Material. Any such archival copies that contain or constitute Protected Material remain subject to
this Order as set forth in Section 4.
15.2 This requirement to return or destroy Confidential Material/Documents also does
not require a party or individual subject to this Order to produce or destroy any computer archival
or backup tapes, archival or backup systems, archival or backup servers, archival or backup files,
any information that is only retrievable through the use of specialized tools or techniques typically
used by a forensic expert, or any other data that is generally considered not reasonably accessible.
Such material shall continue to be treated as Confidential Information under this Order.
SO ORDERED. Signed: October 1, 2024
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: September 30, 2024 Respectfully submitted,
/s/ Jack Edwards (with permission)________ /s/ Zachary L. McCamey__________
Jack Edwards Robert A. Muckenfuss
AJAMIE LLP Zachary McCamey
711 Louisiana Street, Suite 2150 McGUIREWOODS LLP
Houston, TX 77002 210 N. Tryon Street, Suite 3000
Charlotte, NC 28202
COUNSEL FOR PLAINTIFF
COUNSEL FOR DEFENDANTS
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EXHIBIT A
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
I, _______________________________, of ______________________________,
declare under penalty of perjury that I have read in its entirety and understand the Stipulated
Protective Order that was issued in the case of Kelly Milligan v. Merrill Lynch, Pierce, Fenner &
Smith Inc, et al., Case No. 3:24-CV-440-KDB-DCK (W.D.N.C.). I agree to be bound by all terms
of this Stipulated Protective Order, and understand and acknowledge that failing to so comply
could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that
I will not disclose in any manner any information or item that is subject to this Stipulated Protective
Order to any person or entity, except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the Western District of North Carolina for
the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement
proceedings occur after termination of this action.
Date: _________________________
City and State where sworn and signed: _______________________________
Printed name: ___________________________________
Signature: _______________________________________
Case 3:24-cv-00440-KDB-DCK Document 44 Filed 10/01/24 Page 23 of 23