IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE MCNAIR, )

)

Plaintiff/Counter-Defendant, )

)

v. ) Case No. 2:06-cv-695-WKW

)

RICHARD ALLEN, et al., )

)

Defendants/Counter-Plaintiffs. )

____________________________________

)

JAMES CALLAHAN, )

)

Plaintiff/Counter-Defendant, )

)

v. ) Case No. 2:06-cv-919-WKW

)

RICHARD ALLEN, et al., )

)

Defendants/Counter-Plaintiffs. )

AGREED CONFIDENTIALITY ORDER

The parties to this Action, by and through their respective counsel, have agreed and stipulated

to the entry of this Agreed Confidentiality Order, subject to the approval of the Court, as set forth

below:

1. This Agreed Confidentiality Order between undersigned Plaintiffs and Defendants

covers the use of confidential material (as defined below) (“Confidential Material”) of any kind

produced in discovery by the parties to this litigation and by third parties (collectively, the

“Producing Party”).

2. All material (“Material”) produced in this Action is deemed Confidential Material

and may not be disclosed to persons other than those specified in paragraph 8, provided such

Case 2:06-cv-00695-WKW-CSC Document 29 Filed 12/12/2006 Page 1 of 8
2

Material is designated as Confidential Material by the party producing it in accordance

with provisions of this Agreed Confidentiality Order.

3. The provisions of this Order extend to all Confidential Material regardless of the

manner or form in which it is disclosed, including but not limited to documents, interrogatory

responses, responses to requests for admissions, deposition transcripts, deposition exhibits, testimony

and any other materials produced by a party in response to or in connection with any discovery

conducted in this litigation, and to any copies, notes, abstracts, summaries, analyses, demonstrative

exhibits or other documents that reflect information contained in the foregoing materials.

4. The designation of Confidential Material for the purposes of this Agreed

Confidentiality Order shall be made by plainly marking the Material, or where that is not possible,

by marking a container or tag, with the legend “CONFIDENTIAL.” In the case of depositions or

other pretrial testimony, the parties shall designate the Confidential Material: (i) by a statement on

the record by counsel for the Producing Party at the time of such disclosure; or (ii) by written notice,

sent by counsel for the Producing Party to all counsel of record for the parties to this Action within

fifteen (15) business days after receipt of the transcript of the deposition. All transcripts (including

exhibits) shall be considered Confidential Material and shall be subject to this Agreed

Confidentiality Order until expiration of such fifteen (15) day period. The court reporter shall be

instructed to mark each designated page as “CONFIDENTIAL” and the cover page of any transcript

containing Confidential Material shall indicate that the transcript contains such Confidential

Material. Whenever any Confidential Material is to be discussed or disclosed in a deposition, the

Producing Party may exclude from the room any person who is not entitled to receive such

information. The parties further agree that they can arrange for the review of potentially Confidential

Case 2:06-cv-00695-WKW-CSC Document 29 Filed 12/12/2006 Page 2 of 8
3

Material prior to designation without waiver of any claim to confidentiality. After such Material is

reviewed, the Producing Party may designate copies of the Material requested Confidential as

appropriate before providing copies to the receiving party (“Receiving Party”).

5. The inadvertent or unintentional failure to designate specific Material as Confidential

Material shall not be deemed a waiver in whole or in part of a Producing Party’s claim of

confidentiality as to such Material. In the event that information is provided under this Order,

whether in written or oral form, without any designation of confidentiality, such information may

be designated as Confidential Material within ten (10) days of the discovery by the Producing Party

that such information should have been so designated and, effective upon receipt of written or oral

notice thereof, shall be treated as Confidential by all parties as though such information had been so

designated when originally provided, except to the extent that such information already has been

disclosed to individuals who otherwise would not have been entitled to have access to the

information. Those individuals shall be notified by the Receiving Party immediately, and thereafter,

shall treat the Confidential Material as confidential pursuant to this Agreed Confidentiality Order.

If the Producing Party decides to add a designation to any document previously produced without

designation, or to delete the designation on any document previously produced, the Producing Party

shall produce to the parties substitute copies of such documents bearing the desired designation

within fifteen (15) days of re-designation. The parties to whom the substitute copies of such

documents are produced shall substitute the later produced documents for the previously produced

documents, and destroy or return to the Producing Party the previously produced documents in their

possession and all copies thereof.

Case 2:06-cv-00695-WKW-CSC Document 29 Filed 12/12/2006 Page 3 of 8
4

6. Should any person inadvertently disclose Confidential Material to a court or to a

person other than those persons described in paragraph 8, and should such inadvertent disclosure be

material, counsel for the party responsible for the inadvertent disclosure shall immediately notify the

Producing Party of the inadvertent disclosure, including the identification of all persons who

inadvertently received the Confidential Material, take reasonable steps to insure the return of the

Confidential Material and all copies thereof and advise such persons that such information and its

use are governed by this Agreed Confidentiality Order. Nothing in this paragraph shall prohibit the

Producing Party from taking any further action it deems necessary to protect its Confidential Material

or seek redress for the inadvertent disclosure thereof. 

7. Confidential Material may be shown only to: (a) counsel of record; (b) parties’

experts, consultants and investigators; (c) up to 10 (ten) staff persons assisting counsel of record,

including, but not limited to, secretaries, photocopying personnel and legal assistants; (d) actual or

proposed witnesses with the exception of plaintiff; (e) the Court and court personnel; and (f) any

other person who the Producing Party agrees in writing, or who the Court directs, may have access

to the Confidential Material. Each person (with the exception of those specified in (a), and (e)) who

is permitted to see confidential documents must sign the form attached hereto as Exhibit A agreeing

to be bound by the provisions of this Order. All signed acknowledgements must be maintained in

the files of counsel disclosing such Confidential Material.

8. If any person receiving Confidential Material covered by this Agreed Confidentiality

Order is subpoenaed in another action or proceeding or served with a document demand, and such

subpoena or document demand seeks Confidential Material which was produced or designated as

Confidential Material by any Producing Party, the person receiving the subpoena or document

Case 2:06-cv-00695-WKW-CSC Document 29 Filed 12/12/2006 Page 4 of 8
5

demand shall give prompt written notice to counsel for the Producing Party, and shall, to the extent

permitted by law, withhold production of the subpoenaed Confidential Material until any dispute

relating to the production of such Confidential Material is resolved.

9. In the event a party wishes to use any Confidential Material, or any papers containing

or making reference to the contents of such Confidential Material, in any pleading or document filed

with the Court in this litigation, such pleading or document and Confidential Material shall be filed

under seal, until such time as the Court orders otherwise or denies permission to file under seal, and

such Confidential Material, information or papers shall plainly state on the first page of any bound

or stapled document “Confidential – Filed Under Seal” and shall be filed only in sealed envelopes

on which shall be endorsed the caption of this Action and a statement substantially in the following

form:

CONFIDENTIAL

This envelope contains documents that are subject to a Agreed

Confidentiality Order entered by the Court in this Action. This

envelope shall neither be opened nor the contents revealed except by

Order of the Court.

10. The parties agree to follow in an expeditious manner any additional procedures

imposed by the Court as a prerequisite to filing any document under seal.

11. If a party believes that a document designated “Confidential Material” does not

warrant such designation, the Receiving Party shall raise the matter with the Producing Party. The

parties shall engage in a good faith effort to resolve the dispute. It is the contemplation of this Order

that a document will be designated “Confidential Material” only when legitimately called for and

that the parties will employ their utmost efforts to resolve disputes and avoid presenting the Court

with disputes unless truly necessary.

Case 2:06-cv-00695-WKW-CSC Document 29 Filed 12/12/2006 Page 5 of 8
6

12. Nothing in this Order shall prevent disclosure of any Confidential Material by the

Producing Party to any employee or officer of the Producing Party or to any person no longer

affiliated with the Producing Party, who either authored, in whole or in part, or received the

Confidential Material prior to the initiation of this Action.

13. Within sixty (60) days of the termination of this Action, all Confidential Material

supplied by any Producing Party, including all copies, extracts and summaries thereof, shall be

returned to the Producing Party or shall be certified to have been destroyed. Notwithstanding the

foregoing, counsel may retain an archival copy of any pleading and/or attorney work product that

contains Confidential Material. Such archival documents shall be retained and treated in accordance

with the terms of this Agreed Confidentiality Order.

14. A party’s compliance with the terms of this Order shall not operate as an admission

that any particular document is or is not: (a) confidential; (b) privileged; (c) relevant; (d) material

to any issue or otherwise discoverable; (e) authentic; or (f) admissible in evidence at trial.

15. The terms of this Agreed Confidentiality Order shall survive and remain in full force

and effect through the course of and after the final termination of this Action. The Court shall retain

jurisdiction to resolve any dispute concerning the use of Confidential Material that is disclosed

hereunder.

16. Each partymay execute this Agreed Confidentiality Order separately by counterpart.

DONE this 12th day of December, 2006.

 /s/ W. Keith Watkins 

UNITED STATES DISTRICT JUDGE

Case 2:06-cv-00695-WKW-CSC Document 29 Filed 12/12/2006 Page 6 of 8
7

WE ASK FOR THIS:

/s Vincent R. FitzPatrick, Jr. 

/s James W. Davis 

VINCENT R. FITZPATRICK, JR. TROY KING (KIN047)

HEATHER K. MCDEVITT Attorney General

STEPHANIE COHEN J. CLAYTON CRENSHAW (CRE007)

Bar Numbers (SDNY): Assistant Attorney General

VF2907; HM9973; SM7006 JAMES W. DAVIS (DAV103)

Counsel for Plaintiff Assistant Attorney General

Counsel for Defendants

White & Case LLP Office of the Attorney General

1155 Avenue of the Americas 11 South Union Street

New York, NY 10036 Montgomery, AL 36130

Telephone: (212) 819-8200 Telephone: (334) 242-7300

Facsimile: (212) 354-8113 Facsimile: (334) 353-8440

vfitzpatrick@whitecase.com ccrenshaw@ago.state.al.us

hmcdevitt@whitecase.com jimdavis@ago.state.al.us

stephcohen@whitecase.com

/s Randall S. Susskind 

RANDALL S. SUSSKIND (SUS002)

CATHLEEN I. PRICE (PRI056)

Counsel for Plaintiff

Equal Justice Initiative of Alabama

122 Commerce Street

Montgomery, AL 36104

Telephone: (334) 269-1803

Facsimile: (334) 269-1806

rsusskind@eji.org

cprice@eji.org

Case 2:06-cv-00695-WKW-CSC Document 29 Filed 12/12/2006 Page 7 of 8
IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

WILLIE MCNAIR, )

)

Plaintiff/Counter-Defendant, )

)

v. ) Case No. 2:06-cv-695-WKW

)

RICHARD ALLEN, et al., )

)

Defendants/Counter-Plaintiffs. )

____________________________________

)

JAMES CALLAHAN, )

)

Plaintiff/Counter-Defendant, )

)

v. ) Case No. 2:06-cv-919-WKW

)

RICHARD ALLEN, et al., )

)

Defendants/Counter-Plaintiffs. )

EXHIBIT A

I hereby certify my understanding that material designated “Confidential Material” is being

provided to me pursuant to the terms and restrictions of the “Agreed Confidentiality Order.” I

have read and understand the terms of the Order and agree to be bound by it, and submit to the

jurisdiction of the United States District Court for the Middle District of Alabama for the

purposes of enforcement of the Order.

Date: ___________________ Signature:__________________________________

Case 2:06-cv-00695-WKW-CSC Document 29 Filed 12/12/2006 Page 8 of 8