FILED
JAN 3 0 2020
IN THE UNITED STATES DISTRICT COURT PETER A. MOORE JR CLER
us DISTRICT co' ., K
FOR THE EASTERN DISTRICT OF NORTH CAROLINA BY f., CS: URT,DEfpN5LK
20-SO-l
IN RE: )
APPOINTMENT OF NORTH )
CAROLINA PRISONER LEGAL ) ORDER
SERVICES, INC. IN STATE PRISONER )
CIVIL RIGHTS CASES )
This Standing Order is hereby entered to reflect an agreement this court has reached with
North Carolina Prisoner Legal Services, Inc. (hereinafter "NCPLS") in state prisoner civil rights
cases. This order applies only to civil rights actions filed by North Carolina state prisoners against
current and former employees of the North Carolina Department of Public Safety, Division of Adult
Correction (hereinafter "DPS"). This Standing Order supersedes the court's prior standing order
regarding Appointment ofNorth Carolina Prisoner Legal Services, Inc. in State Prisoner Civil Rights
Cases, Standing Order 17-SO-03.
The court hereby ORDERS as follows:
1. NCPLS shall maintain an email inbox for the court's use in serving NCPLS with
appointment orders·and other related filings.
2. When the court has reviewed a state prisoner's civil rights complaint pursuant to 28
U.S.C. § 1915A, identified any cognizable claim(s), and directed the clerk to maintain management
of the action, the clerk shall send a copy of the order to the plaintiff, together with a notice to the
plaintiff and form response (attached to this order as Form A) by which the plaintiff can indicate if
he/she consents to the appointment ofNCPLS by the court to conduct discovery on his/her behalf.
If the plaintiff accepts appointment ofN CPLS for the purpose of conducting discovery, the court will
appoint NCPLS for this purpose in a scheduling order setting a period for discovery after
defendant( s) have been served and answered the complaint. The period of discovery shall not be less
than 120 days, unless otherwise ordered by the court, and the discovery period will be extended only
upon a strong showing of diligence and good cause.
3. Upon appointment by the court, and within 60 days of entry of the initial scheduling order
governing discovery, N CPLS will serve discovery requests on counsel for defendant( s). During the
discovery period, all contact seeking discovery from DPS employees shall be made to the Public
Safety Section of the Attorney General's Office. Documents and materials covered by these
provisions may appropriately include but are not limited to grievance forms, use-of-force reports,
incident reports, disciplinary reports, inmate medical records, photographs and/or video footage of
any alleged incident and/or any injuries incurred, complete PREA reports if the complaint alleges
sexual assault, and personnel records including records of pre-disciplinary conferences, letters of
reprimand, and unsatisfactory TAP entries, where those records describe disciplinary action taken
against the named defendants related to the allegations in the prisoner's complaint. NCPLS will
collect discovery responses, review them, and conduct any follow-up as necessary.
4. NCPLS and DPS agree that discovery shall be subject to a Consent Protective Order
(attached to this order as Form B) to govern the disclosure of confidential information. The Consent
Protective Order is deemed entered in all cases subject to this Standing Order.
5. Upon conclusion of the discovery period, NCPLS will file with the court a Response to
Discovery Order (attached to this order as Form C). The Response will indicate that a) NCPLS will
provide representation; b) N CPLS will not provide representation; or c) the plaintiff has declined any
further assistance by NCPLS. Unless the Response indicates that NCPLS will provide
representation, the clerk shall terminate NCPLS' s representation on the docket without the need for
NCPLS to file a motion to withdraw.
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6. IfNCPLS provides representation to the plaintiff, NCPLS may request that the court order
an additional discovery period that will include time for depositions of parties and witnesses and
designations of expert witnesses prior to the deadline for dispositive motions.
7. IfNCPLS declines representation or the plaintiff rejects NCPLS's further representation
following the period of discovery, NCPLS will provide the plaintiff with a packet of discovery
materials, subject to the terms of the Consent Protective Order, and with advice regarding legal
issues in the case before terminating representation.
8. In its discretion, the court may appoint NCPLS for limited purposes in other phases of a
state prisoner's civil rights case, including: identifying defendant( s), filing a response to a dispositive
motion, representing the plaintiff in a court-hosted settlement conference, representing the plaintiff
in a trial or other hearing, and executing on a judgment. However, before appointing NCPLS to
represent the plaintiff for trial, the court will provide NCPLS with notice and opportunity to accept
or decline such appointment. If NCPLS is unable to accept any other appointment for any reason,
including a lack of resources or a conflict of interest, NCPLS shall file a motion to withdraw within
14 days of the date of appointment informing the court why it is unable to provide representation.
SO ORDERED. This J0day of January 2020.
~~stitttttl;~
Chief United States District Judge
3
FORMA
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5: -CT-- - -
)
)
Plaintiff )
)
v. ) NOTICE TO PLAINTIFF
)
)
)
Defendant(s), )
The court has directed the clerk to maintain management of this action, and the
defendant(s) is/are in the process of being served with the complaint. -You are hereby notified that
North Carolina Prisoner Legal Services, Inc. ("NCPLS") 1 is available to assist you in conducting
discovery if ordered to do so by the court at the appropriate time. If you accept NCPLS's
assistance, NCPLS will be appointed when a scheduling order is entered and will serve discovery
requests on defendant(s) on your behalf, collect the discovery responses, and provide you with a
set of materials and legal advice pertaining to your case. Additionally, NCPLS will report whether
it is willing to represent you in this action beyond the discovery period.
You are not required to accept any assistance by NCPLS, and you can decide now that you
do not want NCPLS to conduct discovery on your behalf or to represent you. However, there is
no general right to court-appointed counsel in civil cases, and counsel is only appointed in
exceptional cases.
1 NCPLS is a non-profit legal services firm, contracted with the Office of Indigent Defense Services (IDS) to assist it
in providing inmates who are in the custody of the N01th Carolina Department of Public Safety, Division of Adult
Correction with their constitutional right of meaningful access to the comts.
FORMA
Please fill out the enclosed form indicating whether you want NCPLS to assist you in
conducting discovery, and return it to:
Clerk, United States District Court
Post Office Box 25670
Raleigh, North Carolina 27611
You should sign, date, and return this form within twenty-one (21) days. Your failure to return
this form by that deadline may be construed as a rejection ofNCPLS's assistance, and the court
might not order NCPLS to conduct discovery on your behalf.
FORMA
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5: -CT-
)
)
Plaintiff )
)
V. ) PLAINTIFF'S RESPONSE TO NOTICE
)
)
)
Defendant(s), )
I have read the "Notice to Plaintiff" informing me of NCPLS's availability to assist me
with conducting discovery if ordered to do so by the court at the appropriate time. I understand
that ifI accept NCPLS's assistance, upon entry of the initial scheduling order governing discovery,
NCPLS will serve discovery requests on defendant(s) on my behalf, collect the discovery
responses, provide me with a set of materials and legal advice pertaining to my case, and report to
the court whether it is willing to represent me in this action beyond the discovery period. I fmiher
understand that there is no general right to court-appointed counsel in civil cases, and it is highly
unlikely that the cou1i will appoint other counsel for me.
Accordingly, I hereby
ACCEPT the assistance of NCPLS during the discovery period and agree to allow
NCPLS to conduct discovery on my behalf if ordered to do so by the court.
_ _ REJECT the assistance ofNCPLS, including any legal representation in my case.
Date Plaintiffs Signature
Plaintiffs Printed Name
FORMB
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CONSENT PROTECTIVE ORDER
GOVERNING CASES SUBJECT
TO STANDING ORDER 20-SO-l
Defendant(s), through counsel, and with the consent ofcounsel for Plaintiff, appearing for
the limited purpose of conducting written discovery, agree to entry of a Protective Order which
will control the production and dissemination of confidential documents, material, and information
("Confidential Information").
The Court finds that during the course of this litigation, Defendants obtained and will
continue to obtain and disclose to Plaintiff or the Court, information and documents from the North
Carolina Department of Public Safety ("the Department") that are deemed confidential under
federal and state law, including, N.C.G.S. §§ 126-22(3) and -24, § 122C-52, § 132-1.7, § 148-74
and -76; Goble v. Bounds, 13 N.C. App. 579,581, 186 S.E.2d 638,639, aff'd, 281 N.C. 307, 188
S.E.2d 347 (1972); Paine v. Baker, 595 F.2d 197, 200 (4th Cir. 1979), cert. denied,444 U.S. 925
.,..
(1979); 42 U.S.C. § 1320d et seq.; and 45 C.F.R. §§ 160-164.
In light of the confidential nature of much of the information which will be produced in
this litigation, a Protective Order is necessary to authorize the release of such confidential
information and to ensure that such confidential information is not disclosed or used for any
purpose except in connection with this litigation .
.THEREFORE, the court ORDERS as follows:
1. Scope of the Order. This Order applies to all information produced during written
discovery, including anr discovery exchanged prior to the entry of this Order.
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2. Use of Confidential Information. All Confidential Information, as defined in this
Order, shall be used solely in the prosecution or defense of this action, and shall not be used or
disclosed by any person for any other purpose.
3. Disclosure. "Disclose" or "disclosure" means to provide, impart, transmit, transfer,
• I
convey, publish, or otherwise make available.
4. Confidential Information. "Confidential Information" consists of "General
Confidential Information" and "Attorneys' Eyes Only Confidential Information," which are
defined as follows:
A. "General Confidential Information" refers to and includes:
i. Information and documents contained in "personnel files", as that phrase is
defined in N.C.G.S. § 126-22;
ii. Information, documents, and related materials collected, created, and
maintained by the Department pursuant to N.C.G.S. § 148-74, -76, -
118.5; and§ 122C-52
iii. "Protected health information" as that phrase is defined in 45 C.F.R. §
160.103;
iv. Other information that is potentially embarrassing or invasive of the privacy
of a person not a party to this litigation and therefore an appropriate subject
of a protective order under Rule 26(c)(l) of the Rules of Civil Procedure.
B. "Attorneys' Eyes Only Confidential Information" means:
1. "Personally Identifiable Information", as that phrase is defined in 45 C.F.R.
§ 75 .2, of current or former employees and contractors of the Department,
such as but not limited to date of birth, social security numbers, home
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addresses and telephone numbers, insurance records or designations, medical
and/or disability information, and other purely private information;
ii. The personal financial records, telephone records, and e-mail records of
current or former employees and contractors of the Department; and
iii. Other non-public information as provided in N.C.G.S. § 132-1.7, which
includes specific security information or detailed plans, patterns, or practices
associated with prison operations, such as certain investigations, security
designations, staffing patterns and logs, schematic or other drawings and
diagrams, and other sensitive security information.
5. Disclosure of General Confidential Information. General Confidential Information
shall not be disclosed to anyone except:
A. The court and its personnel;
B. The parties to this action;
C. Counsel for the parties to this action and employees of said counsel;
D. Experts or consultants specifically retained by the parties or their attorneys to
assist them in the preparation of this case or to serve as expert witnesses at the
trial of this action, but only after execution of a Confidentiality Agreement as
provided in Paragraph 8; and
E. Court reporters or videographers engaged to record depositions, hearings, or the
trial in this action.
6. Disclosure of Attorneys' Eyes Only Confidential Information. Attorneys' Eyes
Only Confidential Information shall not be disclosed to anyone except:
A. The court and its personnel;
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B. Counsel for the parties to this action and employees of said counsel;
C. Experts or consultants specifically retained by the parties or their attorneys to
assist them in the preparation of this case or to serve as expert witnesses at the
trial of this action, but only after execution of a Confidentiality Agreement as
provided in Paragraph 8; and
D. Court reporters or videographers engaged to record depositions, hearings, or the
trial in this action.
7. Withdrawal of Plaintiffs Counsel. In the event that counsel for Plaintiff
withdraws from representation and Plaintiff proceeds pro se, any Attorneys' Eyes Only
Confidential Information disclosed to counsel for Plaintiff may thereafter be disclosed to Plaintiff
only upon the following conditions:
A. Plaintiff must sign a Confidentiality Agreement, a copy of which is attached
hereto as Exhibit A; and
B. Prior to disclosing any Attorneys' Eyes· Only Confidential Information to
Plaintiff, Counsel for Plaintiff agrees in writing to copy any documents marked
as . Attorneys' Eyes Only Confidential Information onto red paper before
providing said material to Plaintiff.
If, after the conclusion of this litigation, Department officials, discover red papers marked as
Attorneys' Eyes Only Confidential Information, those officials are authorized to seize the
documents and return them to the Department.
8. Confidentiality Agreements. Before Confidential Information or Attorneys' Eyes
Only Confidential Information is disclosed to any person described in Paragraphs 5(d), 6(c), or 7,
of this Order, counsel for the party disclosing the information shall inform the person to whom the
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disclosure is to be made that Confidential Information shall be used only for the purpose of the
prosecution or defense of this action, and shall obtain from the person to whom the disclosure is
to be made a signed a copy of the Confidentiality Agreement attached hereto as Exhibit A. Counsel
for the party disclosing the Confidential Information to said person shall maintain the original
Confidentiality Agreement and need not produce it except by agreement of the parties or upon
order of the court.
9. Designation of Confidential Information. Information shall be designated as
Confidential Information in the following manner:
A. In the case of information reduced to paper form, the designation shall be made
by I placing the appropriate legend, "CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER" for General Confidential Information or
"CONFIDENTIAL-ATTORNEYS' EYES ONLY" for Attorneys' Eyes Only
Confidential Information, on each page containing such information or by such
other means as agreed to by the parties. The party disclosing the information
shall designate the documents as confidential at or before the time of disclosure.
A party may make the designation with respect to information disclosed by
another party by a writing directed to the producing party's counsel. The
producing party's counsel shall then be responsible for labeling the designated
information as provided herein, or otherwise agreed to by the parties.
B. Information on a computer disk, flash-drive, or other medium that has not been
reduced to paper form shall be designated as Confidential Information by
informing counsel for the parties to this action in writing that the computer disk,
flash-drive, or other medium contains such Confidential Information and,
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FORMB
where applicable, specifying by Bates or other page number the particular
information being designated or by such other means as agreed to by the parties.
To the extent practicable, such physical medium should also be labeled using
the appropriate marking. Any party receiving Confidential Information
designated under this Paragraph shall then be responsible for appropriately
labeling any printed version(s) of such information that it creates.
C. In the case of deposition testimony, any party may designate information
disclosed during a deposition as Confidential Information by either identifying
on the record at the deposition the information that is to be treated as
Confidential Information or; marking the portions of the deposition transcript
to be designated as Confidential Information within 21 days after receipt of the
transcript. When the deponent and the attending parties do not agree to waive
the reading, correcting, and signing of the transcript, all information disclosed
during a deposition shall be treated as Attorneys' Eyes Only Confidential
Information before the expiration of the 21-day period unless otherwise agreed
by the parties and the deponent. If any deposition testimony or any document
or information used during the course of a deposition is designated as
Confidential Information, each page of the deposition transcript containing such
information shall be labeled with the appropriate legend specified in Paragraph
9(A), and the first page of the deposition transcript shall be labeled in a manner
that makes it readily apparent that the transcript contains Confidential
Information.
D. Any other information that is not reduced to physical form or cannot be
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conveniently labeled shall be designated as Confidential Information by serving
a written notification of such designation on counsel for the other parties. The
notice shall, where applicable, specify by Bates or other page number the
particular information being designated.
10. Disputes over Designations. If any party objects to the designation of any
information as Confidential Information, counsel for the objecting party and counsel for the
(
designating party shall attempt to resolve the disagreement on an informal basis. If the objection
is not so resolved, the objecting party may move the court for appropriate relief. The information
in question shall continue to be treated as confidential in accordance with the disputed designation
unless and until the court issues a final ruling that the information does not qualify for such a
designation. The non-filing by the objecting party of a motion for relief shall not be deemed an
admission that the information in question qualifies for the disputed designation.
11. Inadvertent Disclosure of Confidential Infonnation. Inadvertent disclosure of
Confidential Information, without identifying the same as confidential, shall not be deemed a
waiver of confidentiality with regard to similar or related information nor shall it be deemed a
waiver ofconfidentiality with regard to the information inadvertently disclosed if promptly called
to the attention of counsel for each receiving party.
12. Filing of Confidential Information Under Seal. Before filing a document
containing any Confidential Information, the filing party must confer with the other parties about
how the document should be filed. If the filing party decides that the document should be sealed,
the filing party shall file the document along with a motion to seal and supporting memorandum
showing that the document may properly be sealed. A motion to seal may be filed without a
supporting memorandum only if the filing party can cite a statute or rule (federal, local or standing
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order) that requires the filing to be sealed. Absent such authority, the filing party must submit a
supporting memorandum that specifies: (i) the exact document or item, or portions thereof, for
which filing under seal is requested; (ii) how such request to seal overcomes the common law or.
the First Amendment presumption to access; (iii) the specific qualities of the material at issue
which justify sealing such material, taking into account the balance of competing interest in access;
(iv) the reasons why alternatives to sealing are inadequate; and (v) whether there is consent to the
motion. If a party other than the filing party seeks to have the document sealed, the filing party
shall file the document as a proposed sealed document. Instead of a motion to seal and supporting
memorandum, the filing party shall file contemporaneously with the document a notice stating
that, pursuant to this Paragraph, any party seeking the sealing of the document must within 7 days
file a motion to seal and supporting memorandum as provided in Local Civil Rule 79 .2 or the
document will be unsealed by the Clerk without further order of the court.
13. Authors/Recipients. Except as specifically provided herein, this Order shall not
limit use by a party of its own Confidential Information, nor shall this Order limit the ability of a
party to disclose any document to its author or to anyone identified on the face of the document as
a recipient.
14. Return of Confidential Information. Following the conclusion of this action,
including any appeals, the Department may request in writing its return by any other party. Within
60 days after service of such a request, any party that received the Confidential Information shall
either return it to counsel for the Department or destroy it, at the election of the receiving party;
provided that the information shall not be destroyed if otherwise ordered by the court or a motion
for relief from this Paragraph is pending. If a receiving party elects to destroy the Confidential
Information rather than returning it to the Department, counsel for the receiving party shall provide
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to the Department by the 60-day deadline a signed certification that the Confidential Information
has been destroyed. This Paragraph shall not be construed to require the return or destruction of
any regularly maintained litigation files held by the attorneys of record for each party as archival
records or other attorney work-product created for any party. Any Confidential Information, or
portions or excerpts thereof, which are not returned or destroyed pursuant to this Paragraph shall
remain subject to the terms of this Order. The return of trial exhibits by the court shall be governed
by Local Civil Rules 6.1 or 79 .1.
15. Admissibility of Information. Neither the terms of this Order nor the disclosure or
designation as confidential of any information pursuant to it shall be deemed to establish or vitiate.
the admissibility under the Federal Rules of Evidence of any information subject to this Order.
16. Confidential Employee Information. Pursuant to N.C.G.S. § 126-24(4), this Order
specifically authorizes the disclosure of confidential portions of the personnel files maintained by
the Department of current or former employees in accordance with the terms of this Order.
17. Modification. This Order is without prejudice to the right of any party or witness
to seek modification or amendment of the Order by motion to the court, or to seek and obtain
additional protection with respect to Confidential Information as such party may consider
appropriate.
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EXHIBIT A
CONFIDENTIALITY AGREEMENT
I, _ _ _ _ _ _ _ _ _ _ _ have read and am familiar with the terms of the Consent
Order governing the Confidential Information in the case of
--------------
Civil Action No. 5: -CT-___-_, in the Eastern 'District of North Carolina, Western
Division. I agree to the following:
1. To abide by all the terms of said Order and not to reveal or otherwise communicate
any of the information disclosed to me pursuant thereto to anyone except in accordance with the
terms of said Order.
2. To make use of any information obtained, whether in documentary or other form,
pursuant to that Order other than for purposes of this litigation.
3. Upon written request, to return to counsel ofrecord or to destroy not later than 60
days after notification of the termination of this litigation any and all documents in my possession
containing information which is the subject of said Order (whether such information is in the form
of notes, memoranda, reports, or other written communications or documents prepared by any
person at any time containing information covered by the terms of said Order).
4. To submit myself to the jurisdiction of the foregoing Court, including its contempt
power, for enforcement of said Order.
This the _ _ day of _ _ _ _ _ _ _ _ _ , 20_.
PRINTED NAME
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FORMC
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:- -CT-- - -
)
)
Plaintiff )
)
V. ) NCPLS RESPONSE TO
) DISCOVERY ORDER
)
)
Defendant(s), )
In response to the court's order and pursuant to Standing Order 20-SO-l, I have
assisted the plaintiff with conducting discovery and provided legal advice in this case. As a
result of my review of the discovery:
- a) North Carolina Prisoner Legal Services, Inc. ("NCPLS") will provide
representation to plaintiff in this action.
b) NCPLS will not provide further representation to plaintiff in this action.
c) The plaintiff has declined any further assistance by NCPLS following the
discovery period.
Staff Attorney
North Carolina Prisoner Legal Services, Inc.
Post Office Box 25397
Raleigh, North Carolina 27611
(919) 856-2200
FORMC
CERTIFICATE OF SERVICE
I certify that on DATE, I electronically filed the foregoing document with the Clerk of
Court using the CM/ECF system and mailed the foregoing documents via USPS, postage
prepaid, to the following:
Respectfully submitted,
Staff Attorney
North Carolina Prisoner Legal Services, Inc.
Post Office Box 25397
Raleigh, North Carolina 27611
(919) 856-2200
