| ||UNITED STATES DISTRICT COURT|
FOR THE DISTRICT OF SOUTH CAROLINA
USDC, CLERK, CHARLESTON, SC
2008 JUL - 7 P 1:
UNITED STATES OF AMERICA,
LISTING SERVICE, INC.,
Case No. 3:08-CV-01786-SB
STIPULATED PROTECTIVE ORDER GOVERNING
DESIGNATION AND DISCLOSURE OF CONFIDENTIAL INFORMATION
In the interests of (i) ensuring an efficient and prompt resolution of this Action; (ii)
facilitating discovery by the Parties litigating this Action; and (iii) protecting the Parties' and
non-Parties' confidential information from improper disclosure or use, and pursuant to Fed. R.
Civ. P. 26(c)(1)(G), the Court enters the following Stipulated Protective Order,
1. As used herein:
- "Confidential Information" means any trade secret or other confidential research,
development, or commercial information, as such terms arc used in Fed. R. Civ. P.
or any document, transcript or other material containing such information;
- "disclosed" means shown, divulged, revealed, produced, described, transmitted or
otherwise communicated, in whole or in part;
- "document" is defined as the term is used in Fed. R. Civ. P. 34(a);
- "Investigation" means the Department of Justice's pre-Complaint inquiry into the
matters at issue in this Action;
- "Defendant" means the Consolidated Multiple Listing Service, Inc.;
- "Party" or "Parties" means Plaintiff and/or Defendant in this Action;
- "Protected Person" means any non-Party person or entity who has produced
information or testified during the Investigation either voluntarily or in response to a Civil
Investigative Demand from the Department of Justice, or who produces any information or
testifies in this Action voluntarily or in response to a discovery request or subpoena; and
- "this Action" means the above-captioned action pending in this Court, including
any pretrial, trial, post-trial or appellate proceedings.
B. DESIGNATION OF CONFIDENTIAL INFORMATION
2. Designation of Confidential Information by a Party. A Party may designate as
"Confidential" any information disclosed in this Action by the Party or by any other person or
entity, but only to the extent that such information constitutes Confidential Information as
defined in Paragraph 1(a) of this Order. Such designations constitute a representation to the
Court that such Party and counsel in good faith believe that the information so designated
constitutes Confidential Information as defined in Paragraph 1(a) of this Order.
3. Designation of Confidential Information by a Non-Party. A Protected Person
may designate as "Confidential" any information it has disclosed in connection with the
Investigation, or hereafter discloses in this Action, but only to the extent that such information
constitutes Confidential Information as defined in Paragraph 1(a) of this Order. Such
designations constitute a representation to the Court that such Protected Person (and
counsel, if any) in good faith believes that the information designated "Confidential" constitutes
Confidential Information as defined in Paragraph 1(a) of this Order.
4. Consent to Jurisdiction. By invoking this Order and designating any
information as "Confidential" hereunder, a Protected Person consents to the jurisdiction
United States District Court for the District of South Carolina solely for the purpose of
the terms of this Protective Order and waives any right the Protected Person may
to object to the jurisdiction of this Court with respect to a challenge to any designation
5. Third-Party Materials from Pre-Complaint Investigation. Within five
business days after the Court's entry of this Order, the United States shall provide a copy
Order to each Protected Person (or, if represented by counsel, the Protected Person's
who produced documents during the Investigation, Within ten business days of receipt of
Order, any Protected Person or its counsel may designate as "Confidential," in compliance
Paragraphs 3 of this Order, any document or portion of a document produced to the
of Justice by providing both Plaintiff's counsel and Defendant's counsel with page
other means of easily identifying the designated documents. Any documents produced by
Protected Persons that are not so designated pursuant to this provision will not be treated as
Confidential" under this Order, notwithstanding any prior designation.
6. Discovery Materials in this Action. Designation of deposition transcripts and
documents produced in this Action after this Order is entered is governed as follows;
- Depositions. All transcripts of depositions taken in this Action will be
treated as "Confidential" in their entirety for 21 days after the date a full and final copy of
transcript has been made available to the deponent (or, if applicable, deponent's counsel).
Following the deposition, at any time during the 21-day period, any Party, deponent, or
deponent's counsel may designate as "Confidential," in accordance with Paragraphs 2 and
this Order, any portion of the transcript, by page and line, and any deposition exhibits
by the deponent or the deponent's employer. Such designations must be provided to
and Defendant's counsel in writing to be deemed effective. Any portion of the transcript
exhibits not so designated pursuant to this provision will not be treated as "Confidential"
this Order, notwithstanding any prior designation.
- Documents. A Party or Protected Person who designates as "Confidential"
any document produced in this Action must stamp or label each page of each such
with the designation "Confidential." If the entire document does not constitute
Information, the Party or Protected Person must stamp or label only those pages that
Confidential Information. Any documents produced by Protected Persons that are not so
designated pursuant to this provision will not be treated as "Confidential" under this
notwithstanding any prior designation.
- The Parties must retain copies of all documents containing Confidential
Information which are provided in discovery under this Order.
7. Subsequent Designation. If a Party or Protected Person
inadvertently fails to
designate any information as "Confidential" pursuant to Paragraphs 5 and/or
6, it may later so
designate by notifying the receiving Parties in writing. The receiving Parties
reasonable steps to see that the information is thereafter treated in
accordance with the
designation. "No person or Party, however, shall incur any liability
hereunder with respect to
disclosure that occurred prior to receipt of written notice of a belated
C. CHALLENGE TO DESIGNATION
8. Information from Public and Other Rightful Sources. Designation of
documents or information as "Confidential" shall not be effective as to
from the public domain or from sources (other than the Protected Person) who
were rightfully in
possession of the information, regardless of whether such information is also
materials designated as ''Confidential" pursuant to this Order.
9. Challenge to Designation. Any Party may challenge a "Confidential"
designation at any time. A failure of any Party to challenge expressly a
"Confidential" shall not constitute a waiver of the right to assert at any
subsequent time that the
material designated does not constitute Confidential Information or is not an appropriate
designation for any reason.
10. Procedures for Challenge. Any Party that disagrees with the designation of any
information as "Confidential" may notify the designating Party or the designating
Person of such disagreement in writing, copying the other Party. The designating Party or
Protected Person shall then have ten business days from receipt of the notification to move the
Court for an order upholding the designation. The burden of proving that the designation is
proper under Rule 26(c)(1)(G) shall be upon the designating Party or Protected Person, The
designated information shall be treated as "Confidential" (as originally designated) under this
Order until the Court rules on the designating Party's timely filed motion. If the designating Party
or Protected Person fails to move the Court in accordance with this Paragraph, or if the Court
finds the designation of "Confidential" to have been inappropriate, the challenged designation
shall be considered rescinded. The Parties thereafter shall not be required to treat the information
as "Confidential" under this Order.
11. Other Limitations on the Scope of this Order. Nothing in this Order shall be
construed to affect the admissibility of any document, material or information at any trial
hearing. Any request for confidentiality, closure or sealing of any hearing or trial must be
to the judge then presiding.
D. DISCLOSURE OF CONFIDENTIAL INFORMATION
12. Disclosure of Confidential Information. Except as otherwise authorized by this
Order, information designated as "Confidential" pursuant to this Order (and for which
designation has not been rescinded pursuant to Paragraph 10) may be disclosed only to
individuals set forth below and may be used by those individuals only in connection with this
- the Court and all persons assisting the Court in this Action, including law clerks, court reporters, and stenographic or clerical personnel;
- Department of Justice attorneys, employees, and independent contractors
retained by the Department of Justice to assist in prosecution of this litigation;
- outside counsel acting for Defendant in.this Action and that counsel's
employees and independent contractors assisting such counsel in the defense of this litigation;
- authors, addressees, and recipients of particular information designated as
Confidential solely to the extent that the disclosing Party believes in good faith that the person
has previously had lawful access to the particular information disclosed or to be disclosed;
- persons (and their counsel) whom counsel for the Parties believe in good
faith to have, or have had, prior access to Confidential Information, or who have been
participants in a communication that is the subject of the Confidential Information and from
whom verification of or other information about that access or participation is sought, solely to
the extent of disclosing such information to which they have or may have had access or that is the
subject of the communication in which they have or may have participated; provided that, unless
and until counsel confirms that any such persons have or have had access or were participants,
only as much of the information maybe disclosed as may be necessary to confirm the person's
access or participation;
- testifying or consulting experts retained by a Party to assist in the
prosecution or defense of this Action, including employees of the firm with which the expert or
consultant is associated to the extent necessary to assist the expert's work in this Action.
13. Execution of Notice of Order. Before any information designated as
"Confidential" may be disclosed to any person described in Paragraph 12(f) of this Order, such
person must first have read this Order and have executed the agreement included as Appendix A
hereto. Counsel for the Party making the disclosure must retain the original of such executed
agreement for a period of at least one year following the final resolution of this Action, but each executed agreement is only subject to discovery by the other Party if the Party retaining the
executed agreement has disclosed, pursuant to Rule 26(a)(2), the identity of the expert who
executed the agreement (in which case any agreements executed by employees of the firm with
which the expert consultant is associated arc also discoverable). No individual described in
Paragraph 12 of this Order to whom information designated as "Confidential" is disclosed may
disclose that Confidential Information to any other individual, except as provided in this Order.
14. Other Permitted Uses of Designated Information. Notwithstanding the
provisions of this Order, nothing in this Order:
- limits a Party's or Protected Person's use or disclosure of its own
information designated as "Confidential";
- prevents the Parties, subject to taking appropriate steps to preserve the
further confidentiality of such information, from disclosing information designated as
"Confidential" either (1) to another court of law; or (2) as may be required by law; or
- prevents Plaintiff from disclosing information designated as Confidential:
(i) to duly-authorized representatives of the Executive Branch of the United States Government; (ii) in the course of legal proceedings to which the United States is a party; (iii) for the purpose of
securing compliance with any Final Judgment in this action; or (iv) for law enforcement
purposes, as authorized by law. Except when used for law enforcement purposes or where
prohibited by law or regulation, the Plaintiff will promptly inform the party or person who
designated the information as "Confidential" at least ten business days before disclosure is made
if Plaintiff intends to make disclosure pursuant to this paragraph. When disclosing Confidential Information as authorized by this provision, Plaintiff shall seek to preserve confidentiality
beyond the authorized disclosure.
15. Notice of Other Permissible Disclosures. The Party intending to make any disclosure pursuant to Paragraph 14 of this Order must give notice to that effect to the
Party or Protected Person who designated as "Confidential" the information to be disclosed at
least ten business days prior to making any such disclosure.
E. USE OF CONFIDENTIAL INFORMATION IN LITIGATION
16. Use of Designated Information in Court Filings.
- Motion to Seal. Concurrently with the filing with the Court of any
document containing or referring to Confidential Information, the Parties shall comply with
Local Civil Rule 5.03 by filing a Motion to Seal accompanied by
- a memorandum that identifies, with specificity, the documents or
portions thereof for which sealing is requested, states the reasons why sealing is necessary,
explains (for each document or group of documents) why less drastic alternatives to scaling will
not afford adequate protection, and addresses the factors governing scaling of documents
reflected in controlling case law. See, e.g., Ashcraft v. Conoco, Inc., 218 F.3d288 (4th Cir.
2000); In re Knight Publishing Co., 743 F.2d 231 (4th Cir. 1984);
- a non-confidential descriptive index of the documents at issue;
- the filing Party's certification of compliance with Local Civil Rule 5.03.
- Submission to the Court. Concurrently with the filing of the Motion to
Seal, the filing Party shall submit to chambers a sealed attachment labeled "Confidential
Information to be Submitted to Court in Connection with Motion to Seal" containing the
documents at issue for the Court's in camera review. The sealed attachment containing
Confidential Information shall NOT be filed with the Clerk of Court.
- Notice to Protected Persons. Within three business days after the date of
filing, the filing Party must provide notice of the filing to all Protected Persons who produced
information designated as "Confidential" that was contained in the filing, identifying with
specificity the information contained in the filing that the Protected Person designated as
"Confidential;" The Protected Person may thereafter submit to the Court information in support
of the filing Party's Motion to Seal.
17. Use of Designated Information at Trial.
- Use of Documents on the Party's Exhibits Lists or Designated Deposition
Testimony: Documents or deposition testimony used at trial that were designated "Confidential" by a Protected Person will be disclosed on the record and made part of the public record, and
any examination relating to such information will likewise be conducted in open court, after
compliance with the following process,
- Within five days after the Parties exchange initial pre-trial exhibit lists and deposition designations, each Party shall provide an "Initial Notice" to each Protected Person of any documents designated "Confidential" by the Protected Person that appear on the
Party's exhibit list or deposition testimony designated "Confidential" by the Protected Person that
have been designated by the Party. The Party that included the document on its exhibit list or designated the deposition testimony shall provide such Initial Notice to the Protected Person
by providing a copy of the document and/or deposition testimony designated "Confidential." Initial Notice may be provided by electronic mail, facsimile, or overnight delivery to the
Protected Person, with a copy provided to the other Party.
- If the Protected Person objects to the public disclosure of all or part
of the information identified in the Initial Notice, it shall, within seven days of the date on which
the Initial Notice was sent, identify the Confidential Information for which it seeks additional
protection by electronic mail to the Party that provided the Initial Notice. The Protected Person
and the Party that provided the Initial Notice shall attempt to resolve the Protected Person's
confidentiality concerns by, for example, redacting irrelevant Confidential Information. If no
such resolution is reached and the Protected Person continues to object to potential public
disclosure of the information at trial, the Protected Person must, within fourteen days after the
Initial Notice was sent, file a motion for additional protection setting forth the specific
Confidential Information by exhibit number and deposition page and line designation it seeks to
protect and the restriction sought.
- Use of other documents or deposition testimony on cross examination: Documents designated "Confidential" that are not listed on either Party's exhibit lists or
Confidential" deposition designations that will be used in cross-examination or in any other
manner that is likely to publicly disclose the Confidential Information will be used in open court
after compliance with the following process.
- Each Party shall provide "Cross-Examination Notice" to any
Protected Person as soon as practicable after the Party has in good faith determined that a
document or portion of a deposition designated "Confidential" by the Protected Person that was
not listed on either Party's exhibit list or designated by either Party will be used in
cross-examination or in any other manner that is likely to publicly disclose the Confidential
Information. Any such document or deposition testimony designated "Confidential" will be
presumed to be used in this manner unless counsel for the Party using document or deposition
testimony believes in good faith that the portion likely to be read into the record is self-evidently
- The Protected Person who receives Cross-Examination Notice is
prohibited from disclosing, directly or indirectly, to the other Party or its counsel, or any other
witness (or employer or counsel for such other witness) the fact of that Cross-Examination
Notice or the identity of such materials identified in it, and such individuals who have notice of
this Order are prohibited from receiving that information.
- A Protected Person who receives Cross-Examination Notice shall,
if it intends to continue seeking protection for the identified material, discuss with the Party
providing Cross-Examination Notice possible measures to limit the disclosure of Confidential
Information contained in the documents or deposition testimony. If the Protected Person and the
Party cannot come to an agreement that resolves the Protected Person's confidentiality concerns,
the Protected Person shall as soon as practicable file a motion for additional protection
identifying the Confidential Information for which the Protected Person seeks protection and the restriction sought. The Protected Person shall submit such motion to chambers and shall serve
only the Party seeking to use the document or deposition testimony (and not the other Party).
18. Nothing in this Order shall prevent any Party or non-party (including interested
members of the public) from petitioning the Court for reconsideration of a determination
pursuant to Paragraphs 16 or 17 of this Order that Court filings or proceedings shall
F. PROCEDURES UPON TERMINATION OF LITIGATION
19. Within ninety days after termination of this Action (including the resolution of all
appeals, if any), all persons having received information designated as "Confidential"
make a good faith effort to return such material and all copies thereof to the Party or
Person (or the person's counsel if represented by counsel) that produced it, or destroy all
material and certify that fact in writing to the Party or Protected Person. Counsel for
Defendant will be entitled to retain court papers, deposition and trial transcripts and
work product, provided that Plaintiff's employees and Defendant's counsel and such
employees must not disclose the portions of court papers, deposition transcripts, exhibits,
work product containing information designated as "Confidential" to any person except
to Court order or agreement with the Party or Protected Person that produced the information
designated as "Confidential." All Confidential materials returned to the Parties or their counsel
by the Court likewise must be disposed of in accordance with this Paragraph. Nothing in this
Paragraph, however, restricts the rights of the Parties under Paragraph 14 of this Order, or the
rights of the Plaintiff to retain and use confidential materials for law enforcement purposes or as
otherwise required by law.
G. RIGHT TO SEEK MODIFICATION
21. Nothing in this order prevents any Party or Protected Person from seeking
modification of this order upon motion duly made pursuant to the Rules of this Court.
UNITED STATES OF AMERICA
JENNIFER J. ALDRICH (#6035)
Assistant United States Attorney
District of South Carolina
Main Street; Suite 500
DAVID C. KULLY
United States Department of
Antitrust Division, Litigation III
450 5th St., NW, Suite 4000
Washington, DC 20530
| FOR DEFENDANT
EDWARD M. WOODWARD, JR.
Woodward, Cothran &
440 Knox Abbott Drive;
Cayce, SC 29033
Sol Blatt, Jr.
Senior United States District Judge
July 7, 2008
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
UNITED STATES OF AMERICA,
LISTING SERVICE, INC.,
Case No. 3:08-CV-01786-SB
AGREEMENT CONCERNING CONFIDENTIALITY
I,_________________, am employed as_______________by____________________.
I hereby certify that:
1. I have read the Protective Order entered in the above-captioned action, and understand its terms.
2. I agree to be bound by the terms of the Protective Order entered in the above-captioned action. I agree to use the information provided to me only for the purpose of this litigation.
3. I understand that my failure to abide by the terms of the Protective Order entered in the above-captioned action will subject me, without limitation, to civil and criminal penalties for contempt of Court.
4. 1 submit to the jurisdiction of the United States District Court for the District of South Carolina solely for the purpose of enforcing the terms of the Protective Order entered in the above-captioned action and knowingly waive any right I may otherwise have to object to the
jurisdiction of said Court.
5. I make this certificate this _______ day of _____________________, 2008 .