Patterson v. City of Charlotte

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
Civil Action No. 3:18-cv-00612-RJC-DSC
WILL SUMMERS, JR. a/k/a WILLIE
SUMMERS,
Plaintiff,
v.
CITY OF CHARLOTTE,
Defendant.
STIPULATED PROTECTIVE ORDER
SYLIVIA SMITH-PHIFER and LANCE
PATTERSON,
Plaintiffs,
v.
CITY OF CHARLOTTE,
Defendant.
AARON PHIFER,
Plaintiff,
v.
CITY OF CHARLOTTE,
Defendant.
MARTY PUCKETT,
Plaintiff,
v.
CITY OF CHARLOTTE,
Defendant.
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 1 of 13

2
Plaintiffs Will Summers, Jr. a/k/a Willie Summers, Sylivia Smith-Phifer, Lance Patterson,
Aaron Phifer, and Marty Puckett (hereinafter “Plaintiffs”) and Defendant City of Charlotte
(“Defendant” or “City of Charlotte”)(collectively the “Parties”), by and through their respective
counsel, are presently engaged in discovery, and anticipate that discovery will include certain
information and documents of a confidential nature, including but not limited to personnel records
of parties and non-parties, medical and financial information of Plaintiffs, and other confidential
information. City of Charlotte is a public entity with obligations under North Carolina’s public
records laws, N.C. Gen. Stat. § 132-1 et seq., and the personnel records statute, N.C. Gen. Stat.
§160A-168. The Parties hereby stipulate and request that this Stipulated Protective Order
(“Order”) be entered by this Court pursuant to Federal Rule of Civil Procedure 26(c)(1).
The Court having considered the provisions hereof, and finding it appropriate to do so,
hereby orders as follows:
1. PURPOSES AND LIMITATIONS
Counsel for any party may designate any non-public document or non-public information
contained in a document as confidential if counsel reasonably determines, in good faith, that such
designation is necessary to protect the parties and non-parties covered herein and is subject to
confidentiality. This Order only applies to information designated as confidential and protected
hereunder.
2. DEFINITIONS
Except as otherwise expressly defined in this Order, the following definitions shall apply:
2.1 Party. Any Party to this action.
2.2 Counsel. Attorneys representing the Parties and employees and/or agents of
counsel who have responsibility for the preparation and trial of this action.
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 2 of 13

3
2.3 Producing Party. The Party that discloses or produces in response to discovery
requests documents or other materials.
2.4 “CONFIDENTIAL” Information or Items. Confidential information as used
herein includes, but is not necessarily limited to:
(a) personal identifying information such as birthdates or social security
numbers of Plaintiffs, non-parties, and/or their family;
(b) medical, financial, highly personal, or sensitive information of Plaintiffs or
non-parties;
(c) personnel information that is confidential pursuant to N.C.G.S. §160A-168;
(d) any confidential information of non-parties, including any confidential
information produced in response to a subpoena issued to non-parties in this case; and
(e) any information that is confidential pursuant to N.C.G.S. 132-1.2.
2.5 Designating Party. A Party that designates information or items that it or a third
party produces in disclosures or in responses to discovery as confidential.
2.6 Receiving Party. A Party that receives disclosures or discovery materials from the
Producing Party and/or Designating Party.
2.7 Protected Materials. Any disclosures or discovery materials that are designated
as “CONFIDENTIAL” Information or Items. This includes all copies, abstracts, compilations,
summaries or any other form of reproducing or capturing any of the Protected Materials.
2.8 Consultant and Expert. A person or persons with specialized knowledge, skill,
experience, training, or education who has been retained by a Party or Counsel to serve as an expert
witness or consultant in this action. This definition includes, but is not limited to, a professional
jury or trial consultant retained in connection with this litigation.
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 3 of 13

4
3. SCOPE
The protections conferred by this Order cover Protected Materials (as defined above),
including any confidential information copied or extracted therefrom, as well as all copies,
excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by
Parties or Counsel to or in this litigation or in other settings that contain Protected Materials.
Unless otherwise ordered by the Court, or otherwise provided for herein, all Confidential
Information shall remain confidential and shall not be used except in connection with the preparation
for and/or trial of this action, or as otherwise ordered by the Court. Discovery Material designated
Confidential Information shall be used by the Receiving Party solely in connection with this litigation
and not for any business, competitive, other litigation, or other purposes, and shall not be disclosed to
any third party except as expressly provided by this Protective Order or as otherwise required by law.
Nothing in this Order shall be construed as requiring disclosure of documents, information,
or any other materials that are, or may be claimed to be, privileged in nature, or subject to the
attorney-client privilege or the work-product doctrine, assuming no Party has waived said
privileges and protections, and/or documents, information or other materials that are, or may be
claimed to be, otherwise beyond the scope of permissible discovery. The City acknowledges as
a public entity it has disclosure obligations pursuant to N.C. Gen. Stat. § 132-1.1. Potential
discovery disputes including those regarding privilege, work product, or scope will need to be
addressed separately.
4. DURATION
This Order shall apply from the time it is entered and shall survive the termination of this
litigation. Even after final disposition of this litigation, the confidentiality obligations imposed by
this Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court
order otherwise directs.
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 4 of 13

5
5. DESIGNATING PROTECTED MATERIAL
5.1 Manner of Designations. The designation of Protected Materials shall be
performed in the following manner:
(a) Documents Designated as “CONFIDENTIAL”: Counsel for any Party
to this litigation, or any Designating Party appearing pro se, may designate a document or portions
of a document as “CONFIDENTIAL” if counsel or the pro se Designating Party reasonably
determines, in good faith, that the documents contain information protected from disclosure by
statute or that should be protected from disclosure as set forth above. Information or documents
that are available in the public sector may not be designated as “CONFIDENTIAL.”
(b) Deposition testimony: Any Party may designate deposition testimony as
“CONFIDENTIAL.” Such designation shall be specific as to the portion(s) of testimony to be
designated “CONFIDENTIAL.” Within forty-five days after delivery of the transcript, or within
a timeframe otherwise agreed to by the Parties, a Designating Party may serve a Notice of
Designation to all Parties of record as to specific portions of the transcript designated
“CONFIDENTIAL.”
(c) Other Information or Tangible Items: For all other information produced
in some form other than documentary, and for any other tangible items, the Producing Party shall
affix in a prominent place on the exterior of the container or containers in which the information
or item is stored the legend “CONFIDENTIAL.”
5.2 Exercise of Restraint and Care in Designating Material for Protection. Each
Party that designates information or items as “CONFIDENTIAL” for protection under this Order
must take due care to limit any such designation to Protected Material as defined in this Order. A
Designating Party must designate as “CONFIDENTIAL” only those parts of materials, documents,
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 5 of 13

6
transcripts, items, or oral or written communications that qualify so that other portions of the
materials, documents, transcripts, items, or communications for which protection is not warranted
are not swept unjustifiably within the ambit of this Order.
5.3 Inadvertent Failure to Designate. An inadvertent failure to designate qualified
information or items as “CONFIDENTIAL” does not waive the Designating Party’s right to secure
protection under this Order for such material. If material is designated as “CONFIDENTIAL”
after the material was initially produced, the Receiving Party, on timely notification of the
designation, must make reasonable efforts to assure that the material is treated in accordance with
the provisions of this Order. The Designating Party must reproduce the documents and bates label
them as “CONFIDENTIAL.”
6. CHALLENGING A PARTY’S DESIGNATION
In the event a party challenges another party’s confidential designation, counsel shall make
a good faith effort to resolve the dispute, and in the absence of a resolution, the challenging party
may thereafter seek resolution by the Court. The documents designated as confidential will be
treated as confidential pending an order of the Court. Nothing in this Protective Order constitutes
an admission by any party that confidential information disclosed in this case is relevant or
admissible. Nothing in this Order or any action or agreement of a Party limits the Court’s power
to make orders concerning the disclosure of information, documents, or materials produced in
discovery, filed with the Court, or used during any hearing or at trial.
7. ACCESS TO AND USE OF PROTECTED MATERIALS
7.1 Persons to Whom Protected Material May Be Disclosed. Unless otherwise
ordered by the Court or permitted in writing by the Designating Party, Protected Materials
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 6 of 13

7
designated as “CONFIDENTIAL” Information or Items by a Designating Party may be disclosed
only to the following persons:
(a) Counsel of record in this case, as well as other attorneys, paralegals, and
staff who are employed by or are members of Counsel’s respective law firms or the City of
Charlotte who work to represent a Party or Parties to this action, as well as all independent
companies, agencies or agents who are directly engaged by Counsel to perform litigation support
services under the supervision of such Counsel, and whose duties and responsibilities require
access to the “CONFIDENTIAL” Information or Items;
(b) The Parties to this action;
(c) Consultants or experts to the extent deemed necessary by counsel;
(d) Any person from whom testimony is taken or is expected to be taken, except
that such a person may only be shown confidential information during and in preparation for
his/her testimony and may not retain the confidential information;
(e) The Mediator;
(f) The Court or the jury at trial or as exhibits to motions;
(g) The author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information or item;
(h) Court Reporters and Recorders; and
(i) Any other person by written agreement of the Designating Party;
7.2 Persons Required to Sign “Exhibit A.” The confidential information may be
displayed to and discussed with the persons identified in Paragraph 7.1(c), (d), and (i) only on the
condition that prior to any such display or discussion, each such person shall be asked to sign an
agreement to be bound by this Order in the form attached as Exhibit A. In the event such person
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 7 of 13

8
refuses to sign an agreement in the form attached as Exhibit A, the party desiring to disclose the
confidential information may seek appropriate relief from this Court.
7.3 Duty to Maintain “Protected Material” Securely. Protected Materials must be
stored, maintained, and controlled by a Receiving Party in a secure manner that ensures that access
is limited only to the persons authorized under this Order. Nothing in this Order shall be deemed
to restrict in any way any Producing Party with respect to the use of its own Protected Materials.
7.4 Presentation of Protected Materials to the Court. It is understood by the parties
that any documents which become part of an official judicial proceeding or which are filed with
the Court are public documents, and that such documents can and will be sealed by the Court only
upon motion and in accordance with applicable law. In the event that a Party seeks to file an
unredacted document that a non-filing Party or Parties designated as “CONFIDENTIAL” under
this Order, the filing Party shall, after consulting with the non-filing Party or Parties, seek to file
the unredacted documents marked “CONFIDENTIAL” under seal pursuant to LCvR 6.1.
Protected Materials may only be filed under seal pursuant to a Court order authorizing the seal of
the specific Protected Materials at issue. If the Court declines to permit specific Protected
Materials to be filed under seal, those Protected Materials may then be filed in the public record
only upon redaction of any non-party and/or Plaintiffs’ personal identifying information such as
birthdates and social security numbers. Nothing herein prevents a filing Party from filing
documents in the public record with all confidential information redacted.
8. NON-PARTY’S PROTECTED MATERIALS SOUGHT IN THIS LITIGATION
The terms of this Order are also applicable to information produced by a non-party in this
action that is designated as “CONFIDENTIAL.” Such information produced by non-parties in
connection with this litigation is protected by the remedies and relief provided by this Order.
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 8 of 13

9
Nothing in these provisions should be construed as prohibiting a non-party, or any other party,
from seeking additional protections.
9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIALS
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Materials to any person or in any circumstance not authorized under this Order, the Receiving
Party must promptly (a) notify the Designating Party of the unauthorized disclosure(s) in writing;
(b) use its best efforts to retrieve all copies of the Protected Materials; (c) promptly inform the
person or persons to whom unauthorized disclosures were made of all the terms of this Order; (d)
request such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
that is attached hereto as Exhibit A; and (e) request that the person or persons to whom
unauthorized disclosures were made destroy any information, materials or documents not
otherwise returned as well as any copies made thereof.
10. FINAL DISPOSITION
Pursuant to Section I, Paragraph F of the Pretrial Order and Case Management Plan (Doc.
19), the ultimate disposition of Protected Materials is subject to a final order of the Court on the
completion of litigation.
However, in the absence of a final order of the Court addressing the disposition of
Confidential Information, each Receiving Party (excluding counsel) must return or destroy all
Protected Materials to the Designating Party and notify counsel in writing that all Protected
Materials have been destroyed within thirty days of final disposition as defined below.
Counsel are entitled to retain all Protected Materials/Confidential Information, documents,
pleadings, discovery, transcripts, exhibits used in the litigation, motion papers, transcripts, legal
memoranda, correspondence or attorney work-product, even if such materials contain Protected
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 9 of 13

10
Materials. Any such copies that contain or constitute Protected Material remain subject to this
Order as set forth in Section 4.
Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses
in this action, with prejudice; and (2) final judgment herein after the completion and exhaustion of
all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing
any motions or applications for extension of time pursuant to applicable law.
Filings with the Court under seal shall remain in the ECF system and will not be deleted
except by order of the Court.
11. MISCELLANEOUS
11.1 Enforcement. Each Party and person bound by this Order, including all those who
have executed Exhibit A, agrees that the United States District Court for the Western District of
North Carolina – Charlotte Division has jurisdiction to enforce the terms of this Order, and that
such jurisdiction continues beyond the date this matter is concluded. The United States District
Court for the Western District of North Carolina – Charlotte Division shall retain jurisdiction over
all Parties and persons who have received Protected Materials for the purpose of enforcing the
provisions of the Order after the action is otherwise terminated, making such rulings and entering
such orders as may be necessary to compel compliance and impose sanctions as the Court shall
determine.
11.2 Production of Documents in Response to Subpoenas. Nothing in this Agreement
shall prevent any party from producing any document or information in its possession to another
person or governmental entity in response to a subpoena or other compulsory process. Provided,
however, that if such party receives a subpoena or compulsory process seeking production or other
disclosure of Confidential Information, that party shall give prompt written notice within forty-
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 10 of 13

11
eight hours of receipt of such subpoena or compulsory process to the counsel for the party that
produced or designated the confidential information, identifying the Confidential Information and,
unless prohibited by applicable law, enclosing a copy of the subpoena or other compulsory process.
In no event shall production or other disclosure be made before a reasonable notice is given.
11.3 Right to Assert Other Objections. By stipulating to the 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.
11.4 Order Subject to Modification. The foregoing is entirely without prejudice to the
right of any party or non-party with standing to apply to the Court for any further Protective Order
relating to confidential information; or to object to the production of documents or information; or
to apply to the Court for an order compelling production of documents or information; or for
modification of this Order.
SO ORDERED. Signed: May 29, 2020
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 11 of 13

12
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
/s/ Margaret B. Maloney
Margaret B. Maloney (N.C. Bar No. 13253)
Maloney Law & Associates, PLLC
1824 East 7th Street
Charlotte, NC 28204
Telephone: (704) 632-1622
Facsimile: (704) 632-1623
mmaloney@maloneylegal.com
/s/ Jennifer D. Spyker____________
Jennifer D. Spyker (N.C. Bar No. 46048)
Maloney Law & Associates, PLLC
1824 East 7th Street
Charlotte, NC 28204
Telephone: (704) 632-1622
Facsimile: (704) 632-1623
jspyker@maloneylegal.com
/s/ Kathleen K. Lucchesi
Kathleen K. Lucchesi (N.C. Bar No. 24386)
Lincoln Derr PLLC
4350 Congress Street, Suite 575
Charlotte, NC 28209
Telephone: (704) 496-4500
Facsimile: (866) 393-6043
Kathleen.lucchesi@lincolnderr.com
/s/ Sara R. Lincoln__________
Sara R. Lincoln (N.C. Bar No. 22744)
Lincoln Derr PLLC
4350 Congress Street, Suite 575
Charlotte, NC 28209
Telephone: (704) 496-4500
Facsimile: (866) 393-6043
Sara.lincoln@lincolnderr.com
/s/ Phoebe N. Coddington____________
Phoebe N. Coddington (N.C. Bar No. 35218)
Counsel for Plaintiffs Lincoln Derr PLLC
4350 Congress Street, Suite 575
Charlotte, NC 28209
Telephone: (704) 496-4500
Facsimile: (866) 393-6043
Phoebe.coddington@lincolnderr.com
Counsel for Defendant
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 12 of 13

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I have reviewed the foregoing Consent Protective Order and have been informed by
counsel that certain documents or information to be disclosed to me in connection with the matter
entitled Summers et al v. City of Charlotte, Civil Action No. 3:18-CV-00612-RJC-DSC, have been
designated as confidential. I have been informed that any such document or information labeled
as “CONFIDENTIAL” is confidential by Order of the Court. Under penalty of contempt of Court,
I hereby agree that I will not disclose any information contained in such documents to any other
person, and I further agree not to use any such information for any purpose other than this
litigation.
I further agree to submit to the jurisdiction of the United States District Court for the
Western District of North Carolina – Charlotte Division for the purpose of enforcing the terms of
this Stipulated Protective Order, even if such enforcement proceedings occur after termination of
this action.
Printed name: __________________________________
Address: __________________________________
__________________________________
Signature: __________________________________
Date: __________________________________
Jurisdiction where signed: ___________________________________________
Case 3:18-cv-00612-TMR-SCR Document 28 Filed 05/29/20 Page 13 of 13