IN THE UNITED STATES DISTRICT COURT FOR 

THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 

WILLIE MCNAIR * 

 * 

Plaintiff/Counter-Defendant * 

 * 

v. * Case No. 2:06-cv-695-WKW-SRW 

 * 

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 28 Filed 12/05/2006 Page 1 of 7
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 

Case 2:06-cv-00695-WKW-CSC Document 28 Filed 12/05/2006 Page 2 of 7
3 

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 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 28 Filed 12/05/2006 Page 3 of 7
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 demand shall give prompt written notice to counsel for the Producing 

Case 2:06-cv-00695-WKW-CSC Document 28 Filed 12/05/2006 Page 4 of 7
5 

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 28 Filed 12/05/2006 Page 5 of 7
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 party may execute this Agreed Confidentiality Order separately by 

counterpart. 

ENTER: ___/___/____ 

JUDGE: ________________________________ 

WILLIAM KEITH WATKINS 

UNITED STATES DISTRICT JUDGE 

Case 2:06-cv-00695-WKW-CSC Document 28 Filed 12/05/2006 Page 6 of 7
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 28 Filed 12/05/2006 Page 7 of 7
UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 

WILLIE MCNAIR * 

 * 

Plaintiff/Counter-Defendant * 

 * 

v. * Case No. 2:06-cv-695-WKW-SRW 

 * 

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 28-2 Filed 12/05/2006 Page 1 of 1