IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`FOOD LION, LLC, AND MARYLAND
`AND VIRGINIA MILK PRODUCERS
`COOPERATIVE ASSOCIATION, INC.,
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`1:20-CV-442
`
`v.
`
`DAIRY FARMERS OF AMERICA, INC.,
`
`
`Defendant.
`
`
`
`
`
`
`
`RULE 502(d) ORDER
`
`Pursuant to Federal Rule of Civil Procedure 26(c), the parties have entered into a
`
`Protective Order concerning the handling and use of Confidential, Highly Confidential—
`
`Attorney’s Eyes Only, and Highly Confidential—Outside Counsel Eyes Only Material
`
`(“Protected Materials”) in this action. That Protective Order does not address procedures
`
`for filing motions or other documents under seal or otherwise lodging those Protected
`
`Materials on the Court record. As set forth in the Court’s Standard Preliminary Order for
`
`All Civil Cases, “[t]he Court discourages motions to seal, especially in connection with
`
`motions, unrelated to discovery disputes, as the public has a strong interest in access to
`
`court records and courts have a strong interest in transparency.” With these interests in
`
`mind, the parties stipulate and the Court orders the parties to follow these additional
`
`procedures:
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 1 of 10
`
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`FOOD LION, LLC, AND MARYLAND
`AND VIRGINIA MILK PRODUCERS
`COOPERATIVE ASSOCIATION, INC.,
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`1:20-CV-442
`
`v.
`
`DAIRY FARMERS OF AMERICA, INC.,
`
`
`Defendant.
`
`
`
`
`
`
`
`RULE 502(d) ORDER
`
`Pursuant to Federal Rule of Civil Procedure 26(c), the parties have entered into a
`
`Protective Order concerning the handling and use of Confidential, Highly Confidential—
`
`Attorney’s Eyes Only, and Highly Confidential—Outside Counsel Eyes Only Material
`
`(“Protected Materials”) in this action. That Protective Order does not address procedures
`
`for filing motions or other documents under seal or otherwise lodging those Protected
`
`Materials on the Court record. As set forth in the Court’s Standard Preliminary Order for
`
`All Civil Cases, “[t]he Court discourages motions to seal, especially in connection with
`
`motions, unrelated to discovery disputes, as the public has a strong interest in access to
`
`court records and courts have a strong interest in transparency.” With these interests in
`
`mind, the parties stipulate and the Court orders the parties to follow these additional
`
`procedures:
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 1 of 10
`
`
`
`(1) THE TERMS OF THIS ORDER TAKE PRECEDENCE.
`
`While the Protective Order is intended to be consistent with this Supplemental
`
`Protective Order, to the extent they are inconsistent, this Supplemental Protective Order
`
`controls. Any item or document submitted to the Court in violation of this Order is
`
`subject to being stricken.
`
`(2) NOTHING MAY BE FILED UNDER SEAL WITHOUT A COURT
`ORDER.
`
`The parties may not file any pleading, motion, brief or exhibit or part thereof
`
`under seal without obtaining separate approval from the Court, except as authorized by
`
`these procedures. To the extent these procedures are inconsistent with Local Rule 5.4 or
`
`this Court’s Standard Preliminary Order, these procedures control.
`
`The parties are directed to minimize the amount of material that they seek to file
`
`under seal and to exclude confidential information from court filings unless directly
`
`relevant to the issue to be considered. The parties have discussed the issues of
`
`confidentiality raised in this case and the potential need for filing documents under seal.
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`At this time, the parties anticipate that a number of documents may need to be filed under
`
`seal.
`
`(3)
`
`PROCEDURES FOR FILING DOCUMENTS UNDER SEAL
`
`To the extent any documents are filed under seal, the parties agree and the Court
`
`directs the parties to utilize the following procedures:
`
`
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`Sealing is Disfavored. Sealed documents should not be filed unless
`
`necessary for determination of the matter before the Court. If only non-confidential
`
`
`
`
`2
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`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 2 of 10
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`
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`portions of a document are necessary, only those portions should be filed, immaterial
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`portions should be redacted, and no motion to seal should be filed.
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` Motion To Seal and Evidentiary Support Required. Except as provided
`
`in Sections (3)(e) and (3)(f), documents will not be sealed absent a motion to seal and an
`
`order of the Court. Motions to seal must:
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`
`
`
`
`
`
`contain a non-confidential description of what is to be sealed,
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`be filed on the public docket, and
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`be supported by a sufficient showing by the party seeking
`
`confidentiality as to why sealing is necessary and why less drastic
`
`alternatives will not afford adequate protection, with evidentiary support,
`
`including affidavits or declarations, and with citation to any supporting
`
`statutes, case law, or other authority. If confidential information needs to
`
`be discussed or provided to make this showing, a sealed supplement to the
`
`motion to seal may be filed separately. This showing also must address the
`
`length of time for which sealing is sought.
`
` Detailed Procedures for Motions to Seal. Motions to seal must be filed in
`
`accordance with the following procedures:
`
`
`
`If a party seeks to file documents or portions of documents under
`
`seal, the party must file a public motion to seal as required in Sections (3)(b)(1)-(3). A
`
`brief is not required.
`
`
`
`If the filing party is the party claiming confidentiality, the materials
`
`required in Sections (3)(b)(1)-(3) must be filed with the motion. If the filing party is not
`
`
`
`
`3
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 3 of 10
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`
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`the party claiming confidentiality, the materials required in Sections (3)(b)(1)-(3) must be
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`filed by the party claiming confidentiality within fourteen (14) days of the motion to seal,
`
`and the filing party must meet and confer with the party claiming confidentiality as soon
`
`as practicable, but at least two (2) days before filing of such documents, to discuss
`
`narrowing the claim of confidentiality. The motion to seal must certify that the required
`
`conference has occurred, and the party claiming confidentiality must file supporting
`
`materials pursuant to the default procedures set forth above within fourteen (14) days of
`
`the motion to seal. Any opposition or objection to sealing by a party must be filed within
`
`fourteen (14) days of the filing of the supporting materials required by Sections (3)(b)(1)-
`
`(3). Failure to file these supporting materials will result in denial of the motion to seal
`
`and unsealing of the materials without further notice.
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`
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`The movant must, within three (3) days of filing the motion to seal:
`
`(i)
`
`submit a completed Checklist (Exhibit A) to this Court’s ECF
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`mailbox; and
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`(ii)
`
`if more than three documents are subject to the motion to
`
`seal, file a summary chart (Exhibit B).
`
` A party filing a motion to seal may elect to have the underlying
`
`documents withdrawn if the motion to seal is denied and no other party has relied upon
`
`the documents, in which case the documents will not be considered by the Court. Any
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`such election must be included in the initial motion to seal, and if the motion to seal does
`
`not include such an election, the documents will be unsealed if the motion to seal is
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`denied.
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`
`
`
`4
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`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 4 of 10
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`
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` Temporary Filing of Sealed Documents. Until the Court rules on the
`
`motion to seal, the underlying documents shall be filed under temporary seal. To provide
`
`clarity on the CM/ECF docket, the party filing documents under seal must file two
`
`complete sets of documents, one public and one under temporary seal, as follows:
`
`
`
`The public set of the underlying documents shall be filed as a single
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`docket entry, with the primary document (i.e., motion, brief, complaint) filed as the main
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`docket entry and each supporting document filed as an attachment to the main docket
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`entry. Information sought to be sealed shall be redacted. If an attachment is sealed in its
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`entirety, there must be a placeholder so indicating.
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`
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`The full, unredacted version of the underlying documents shall be
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`filed under temporary seal in a single docket entry, with the primary document (i.e.,
`
`motion, brief, complaint) filed as the main docket entry and each supporting document
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`filed as an attachment to the main docket entry, with the information sought to be sealed
`
`highlighted.
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` Upon request of the Clerk, the party seeking to seal shall provide a
`
`judge’s copy of the complete unredacted document, with the redacted part clearly
`
`highlighted, to facilitate review.
`
` Discovery Motions. Because discovery materials are not usually subject to
`
`a public right of access, no motion to seal is required for discovery motions and related
`
`briefing; but the filer must file a public version and a sealed version consistent with
`
`Sections (3)(d)(1)-(3). In addition, the filer must include a certification signed by counsel
`
`outlining the basis for the claim of confidentiality for each item filed under seal, or noting
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`
`
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`5
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 5 of 10
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`
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`that the materials filed under seal were designated by another party as confidential. For
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`material designated by another party as confidential, the party claiming confidentiality
`
`must file a certification within fourteen (14) days of the filing of the sealed documents,
`
`outlining the basis for the claim of confidentiality for each item. Failure to file a
`
`certification within fourteen (14) days will result in unsealing of the materials without
`
`further notice. Filings pursuant to this subsection are subject to motions to lift the seal
`
`and to sua sponte review by the Court. The Court may lift the seal as to some or all of
`
`the information if such sealed filings are overbroad or are otherwise inappropriate.
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`
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`Exceptions. No motion is required to file the following under seal:
`
` Documents for which sealing is provided by a governing statute,
`
`rule, or order, but in that case the face of the document should specifically note the
`
`statute, rule, or order providing for sealing, and the CM/ECF filer shall provide public
`
`notice by stating in the docket entry that the document contains sealed material pursuant
`
`to the specified statute, rule, or order.
`
`
`
`Financial Affidavits of individuals seeking representation of an
`
`attorney at government expense under the Criminal Justice Act;
`
` Motions for issuance of criminal subpoenas;
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` Motions to seal indictments and for issuance of corresponding arrest
`
`warrants;
`
` Motions for leave to subpoena witnesses at Government expense
`
`under the Criminal Justice Act;
`
` Motions for issuance of writs of habeas corpus ad testificandum;
`
`
`
`
`6
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 6 of 10
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`
`
` Motions filed pursuant to Section 5K1.1 of the United States
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`Sentencing Guidelines for a downward departure;
`
` Motions filed pursuant to 18 U.S.C. § 3553(e) for authority to
`
`impose a sentence below a statutory minimum;
`
` Motions filed pursuant to Rule 35(b) of the Federal Rules of
`
`Criminal Procedure to reduce a sentence for substantial assistance;
`
` Motions and pleadings identifying national security information;
`
` Motions filed pursuant to 18 U.S.C. § 4241 for determination of
`
`mental competency to stand trial and pursuant to 18 U.S.C. § 4242 for determination of
`
`the existence of insanity at the time of the offense;
`
` Administrative records in Social Security cases;
`
` Presentence Investigation Reports, Position Papers Regarding
`
`Sentencing Factors, and other sentencing memorandums pursuant to Local Criminal Rule
`
`32.2; and
`
` Unexecuted criminal summonses or warrants.
`
`(4) EVIDENCE AT TRIAL REQUIRES A SEPARATE MOTION AND
`ORDER TO BE SEALED.
`
`To seal or otherwise restrict access to an exhibit or other document introduced
`
`during a hearing, trial, or other court proceedings, the party must make a separate motion
`
`before the court conducting the proceedings and provide sufficient justification for
`
`sealing. Likewise, to seal any portion of a transcript of a court proceeding, the party must
`
`file a separate motion to seal before the court that conducted the proceeding.
`
`
`
`
`7
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 7 of 10
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`
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`(5)
`
`SEALING DOCUMENTS OR RESTRICTING ACCESS IN
`PROCEEDINGS BEFORE ANY OTHER COURT MUST BE
`ADDRESSED UNDER THE RULES OF THAT COURT.
`
`If the parties later proceed before any other court, including appeals in this case,
`
`they must follow the rules of that court as to sealing or restricting access to documents.
`
`(6) THE PROTECTIVE ORDER AND THIS SUPPLEMENTAL
`ORDER MAY NOT BE MODIFIED WITHOUT LEAVE OF
`COURT.
`
`This order and the Protective Order may not be modified by agreement of the
`
`parties. Orders may be modified only with leave of Court on a motion of the parties.
`
`(7) ALL SEALED DOCUMENTS SHALL BE DISPOSED OF PURSUANT TO
`L.R. 79.4.
`
`L.R. 79.4 provides for disposition of documents filed with the Court. That rule
`
`will control sealed documents unless otherwise ordered at the conclusion of the case.
`
`This the 31st day of August, 2020.
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`_______________________________
`UNITED STATES DISTRICT JUDGE
`
`8
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 8 of 10
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`EXHIBIT A
`
`Checklist
`
`
`_____
`
`
`_____
`
`
`_____
`
`
`_____
`
`
`
`
`
`
`
`
`_____
`
`
`
`
`
`
`Public Version filed with redactions noted (Doc. #______)
`
`Sealed Version filed with all attachments included (Doc. #_____)
`
`Sealed Version is highlighted to show what was redacted
`
`Public Motion to Seal is filed (Doc. #____) with a non-confidential
`description of what is to be sealed and
`
`a sufficient showing as to why sealing is necessary and why
`___
`less drastic alternatives to sealing will not afford adequate
`protection, with evidentiary support including affidavits; or
`
`___
`
`a statement that another party claims confidentiality
`
`
`Supplement to Motion to Seal
`
`___ was filed under seal (Doc. #____) to discuss confidential
`information in order to make the requisite showing
`
`___ was not necessary
`
`
`
`
`
`
`
`
`
`_____ Does the Motion include an election to have the underlying
`documents withdrawn if the Motion to Seal is denied?
`
`
`
`
`
`
`
`____ Yes
`
`
`
`
`
`___No
`
`
`
`_____
`
`
`
`
`
`Summary Chart (Exhibit B)
`
`is not required because three or fewer documents are subject
`___
`to the motion to seal; or
`___
`has been filed because four or more documents are subject to
`the motion to seal.
`
`
`9
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 9 of 10
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`
`
`Summary Chart
`
`
`Docket
`No. of
`Public
`Version
`
`Docket
`No. of
`Sealed
`Version
`
`Description
`of Document
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
`
`EXHIBIT B
`
`Party (or
`non-party)
`designating
`as
`confidential
`
`
`
`
`
`
`Length
`of time
`to be
`sealed
`
`Any
`disagreement
`as to
`sealing?
`
`
`Basis for
`Sealing1
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1This explanation should be short, with a more detailed explanation and supporting
`materials provided separately as required above in Section (2)(c)(2). A non-
`exhaustive list of examples includes:
`
`1. reveals trade secrets of a party (or non-party)
`2. reveals proprietary business methods of a party (or non-party)
`3. confidential financial records
`4. confidential personal health information
`5. contains confidential personnel information regarding other employees of
`defendant
`6. reveals information regarding a minor
`7. contains information ordered sealed by the court on DATE [Docket No. XX]
`
`10
`
`Case 1:20-cv-00442-CCE-JLW Document 51 Filed 08/31/20 Page 10 of 10
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`
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