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. ) 

JOINT MOTION FOR AMENDED AGREED CONFIDENTIALITY ORDER

PLEASE TAKE NOTICE that Plaintiffs and Defendants in the above-titled action, by 

their attorneys, jointly move this Court for entry of an Amended Confidentiality Order. In 

support of this Motion, the parties state the following: 

1. Undersigned counsel for Defendants and undersigned co-counsel White & Case 

LLP for Plaintiff Willie McNair have recently litigated similar actions in the Middle District of 

Alabama, Jones v. Allen, No. 2:06-cv-986-MHT-TFM (M.D. Ala. filed Nov. 1, 2006) before the 

Honorable Myron H. Thompson, and Grayson v. Allen, No. 2:06-cv-01032-WKW-CSC (M.D. 

Ala. filed Nov. 17, 2006) before the Honorable W. Keith Watkins. 

Case 2:06-cv-00695-WKW-CSC Document 71 Filed 06/25/2007 Page 1 of 4
2 

2. The parties in the Jones and Grayson actions were subject to an Agreed 

Confidentiality Order similar to the one entered by this Court on December 12, 2006, which 

provides, inter alia, for the filing of documents designated as confidential under seal. 

3. Given the number of documents and pleadings to be filed under seal in Jones, the 

Clerk’s office conferred with Judge Thompson and suggested alternative means for filing under 

seal by e-mail, as detailed in the attached Proposed Amended Confidentiality Order, to expedite 

the filing of sealed documents. 

4. In brief, the procedures call for filing documents under seal by e-mail addressed 

to EFile_Transcript@almd.uscourts.gov, including the case number and name in the subject line, 

as well as an explanation that the documents included in the e-mail are confidential and should 

be filed under seal. The parties are to attach all documents that they wish to file to the e-mail 

with proper electronic signatures and appropriate certificates of service, and may “serve” others 

in the action by copying them on the e-mail. The Clerk’s office then prints the documents and 

immediately places them under seal; their entry is noted on the electronic docket but access to 

them cannot be obtained via that electronic docket. 

5. These alternative procedures for filing under seal were adopted in both the Jones

and Grayson actions. 

6. The parties in this action wish to conform to the procedures created by the Clerk’s 

office for filing documents under seal in the present action in order to expedite the process of 

filing under seal. 

7. Nothing in this motion is intended to prevent a party from using conventional 

means to file under seal. 

Case 2:06-cv-00695-WKW-CSC Document 71 Filed 06/25/2007 Page 2 of 4
3 

WHEREFORE, the parties move this Court for entry of the attached Proposed Amended 

Agreed Confidentiality Order and for such other and further relief as the Court deems 

appropriate. 

Respectfully submitted, 

Date: June 25, 2007 

 /s/ Heather K. McDevitt /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 Willie McNair Assistant Attorney General 

 JASPER B. ROBERTS, JR. 

White & Case LLP Assistant Attorney General 

1155 Avenue of the Americas COREY L. MAZE 

New York, NY 10036 Assistant Attorney General 

Telephone: (212) 819-8200 Counsel for Defendants 

Facsimile: (212) 354-8113 

vfitzpatrick@whitecase.com Office of the Attorney General 

hmcdevitt@whitecase.com 11 South Union Street 

stephcohen@whitecase.com Montgomery, AL 36130 

 Telephone: (334) 242-7300 

 Facsimile: (334) 353-8440 

 - and - ccrenshaw@ago.state.al.us

 jimdavis@ago.state.al.us

RANDALL S. SUSSKIND (SUS002) jroberts@ago.state.al.us 

CATHLEEN I. PRICE (PRI056) cmaze@ago.state.al.us

Counsel for Plaintiffs Willie McNair 

and James Callahan 

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 71 Filed 06/25/2007 Page 3 of 4
4 

CERTIFICATE OF SERVICE

 I certify that on June 25, 2007, a copy of the foregoing was filed electronically with the 

Clerk of the Court using the CM/ECF system which will send notification of such filing to the 

following: J. Clayton Crenshaw, James W. Davis, Jasper B. Roberts, Jr. and Corey L. Maze. 

_/s/ Stephanie Cohen ___________ 

Stephanie Cohen 

Bar Number (SDNY): SM7006 

Counsel for Plaintiff 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

Telephone: (212) 819-8200 

Facsimile: (212) 354-8113 

stephcohen@whitecase.com

Case 2:06-cv-00695-WKW-CSC Document 71 Filed 06/25/2007 Page 4 of 4
 1 

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. ) 

PROPOSED AMENDED AGREED CONFIDENTIALITY ORDER

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

stipulated to the entry of this Amended Agreed Confidentiality Order, subject to the approval of 

the Court, as set forth below: 

1. This Amended 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”). 

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 1 of 10
 2 

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 7, provided such 

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

with provisions of this Amended 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 Amended 

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 Amended Agreed Confidentiality Order until expiration of such fifteen 

(15) day period. The court reporter shall be instructed to mark each designated page as 

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 2 of 10
 3 

“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 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 Amended 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 

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 3 of 10
 4 

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. 

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 Amended 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), 

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 4 of 10
 5 

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 Amended 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 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 an Amended 

Agreed Confidentiality Order entered by the Court in this Action. 

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 5 of 10
 6 

This envelope shall neither be opened nor the contents revealed 

except by Order of the Court. 

10. To expedite the filing of sealed documents with the court in this litigation, and in 

light of the "e-file" system's inability to directly accept sealed documents, parties may file sealed 

documents in this case via e-mail. In the event a party wishes to do so, such pleading or 

document containing Confidential Material shall be sent via e-mail to EFile_Transcript 

@almd.uscourts.gov. Any party utilizing this method shall include the case number, case name 

and the words “Confidential – Filed Under Seal” in the subject line of the e-mail. Such party 

shall electronically "attach" to this e-mail any document(s) it wishes to file, in Adobe Acrobat 

pdf file type and formatted as if such document was directly e-filed. Such party shall also 

include with any such email a proper electronic signature (i.e. /s/ John Doe) and appropriate 

certificate of service. Such party may also "serve" this document on other Allen parties by 

carbon copying them on any such email. After a party sends any such email to the e-mail 

address provided, the party shall notify the court of such action by calling (334) 954-3600. The 

caller shall ask for Charlene Campbell, and if Ms. Campbell is not available (and in lieu of 

leaving a message on Ms. Campbell's voicemail), shall ask for Debbie Yates, and then Yvonne 

Goodloe. Any party utilizing this method shall send any such email and call the court by 3:30 

p.m. Central Time in order for any attached document to be considered filed on that day. Should 

a party require more time, it shall notify the court by calling the above number as soon as it 

learns of such requirement. It is within the court's discretion to determine whether any document 

filed by this method after 3:30 p.m. Central Time will be considered filed on that day. The 

clerks of the court will forward to the judges any documents filed by this method, and will 

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 6 of 10
 7 

docket any attached documents as sealed documents. A brief and basic entry will subsequently 

appear on the public record, but the documents will be sealed from viewing. Any party utilizing 

this method will receive a notice of electronic filing ("NEF") indicating that the document was 

filed, but will be unable to access the document. The NEF will serve as a party's receipt and 

"proof" of electronic filing. Any party utilizing this method shall not send the clerk's office a 

follow-up paper document. 

11. 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. 

12. 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. 

13. 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. 

14. 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 

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 7 of 10
 8 

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 Amended Agreed Confidentiality Order. 

15. 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. 

16. The terms of this Amended 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. 

17. Each party may execute this Amended Agreed Confidentiality Order separately 

by 

counterpart. 

DONE this __ day of _________ 2007 

_________________________________ 

UNITED STATES DISTRICT JUDGE 

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 8 of 10
 9 

VINCENT R. FITZPATRICK, JR. 

HEATHER K. MCDEVITT 

STEPHANIE COHEN 

Bar Numbers (SDNY): VF2907; HM9973; 

SM7006 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

Telephone: (212) 819-8200 

Facsimile: (212) 354-8113 

vfitzpatrick@whitecase.com

hmcdevitt@whitecase.com

stephcohen@whitecase.com

Attorneys for Plaintiff Willie McNair 

 - and - 

RANDALL S. SUSSKIND (SUS 002) 

CATHLEEN I. PRICE (PRI056) 

Equal Justice Initiative of Alabama 

122 Commerce Street 

Montgomery, AL 36104 

T: 334/269-1803 

F: 334/269-1806 

rsusskind@eji.org

cprice@eji.org

Attorneys for Plaintiffs Willie McNair and 

James Callahan 

By _/s/ Heather K. McDevitt_________

TROY KING (KIN047) 

Attorney General 

J. CLAYTON CRENSHAW (CRE007) 

Assistant Attorney General 

JAMES W. DAVIS (DAV103) 

Assistant Attorney General 

JASPER B. ROBERTS, JR. 

Assistant Attorney General 

COREY L. MAZE 

Assistant Attorney General 

Office of the Attorney General 

11 South Union Street 

Montgomery, AL 36130 

T: 334/242-7300 

F: 334/353-8440 

ccrenshaw@ago.state.al.us

jimdavis@ago.state.al.us 

jroberts@ago.state.al.us 

Attorneys for Defendants 

By __/s/ James W. Davis_________

Case 2:06-cv-00695-WKW-CSC Document 71-2 Filed 06/25/2007 Page 9 of 10
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 “Amended 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 71-2 Filed 06/25/2007 Page 10 of 10