Shell v. Henderson et al

Filing 788

PROTECTIVE ORDER By Magistrate Judge Kathleen M. Tafoya on 8/16/12. (mjgsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya

Civil Action No. 09–cv–00309-MSK-KMT
SUZANNE SHELL,
Plaintiff,
v.
AMERICAN FAMILY RIGHTS ASSOCIATION,
LEONARD HENDERSON,
FAMILIES AT RISK DEFENSE ALLIANCE,
FRANCINE RENEE CYGAN,
MARK CYGAN,
ILLINOIS FAMILY ADVOCACY COALITION,
GEORGIA FAMILY RIGHTS, INC.,
NATIONAL ASSOCIATION OF FAMILY ADVOCATES,
CONNECTICUT DCF WATCH,
BRENDA SWALLOW,
RANDALL BLAIR, and
UNKNOWN DEFENDANTS DOE 1-15,
Defendants.

PROTECTIVE ORDER

This matter is before the court on Defendant American Family rights Association
(“AFRA”)’s “Status Report” concerning stipulated Protective Order [Doc. No. 732, filed July 20,
2012] and on “Plaintiff’s Notice to the Court regarding Defendant AFRA’s Status Report Doc
[732]” also concerning attempts to submit a stipulated Protective Order [Doc. No. 733, filed July
20, 2012]. The court heard oral argument regarding the form and contents of a Protective Order

for confidential materials at a hearing on August 15, 2012. Being fully advised the court finds
and holds as follows.
Rule 26(c) confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required. The trial court is in the best position to
weigh fairly the competing needs and interests of parties affected by discovery. Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 36 (1984). The unique character of the discovery process requires
that the trial court have substantial latitude to fashion protective orders. Id.
Upon a showing of good cause and as justice may require “to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense,” a court may, among
other things, enter a protective order specifying terms for the disclosure of materials and
designating the persons who may access the materials during the discovery process. Fed. R. Civ.
P. 26(c)(1). Blanket protective orders routinely are approved by courts in civil cases, frequently
on the stipulated request of the parties. Gillard v. Boulder Valley Sch. Dist. Re-2, 196 F.R.D.
382, 386 (D. Colo. 2000). The agreement of all parties is not required for the entry of a blanket
protective order, however, so long as certain conditions are met. Id. (citing Parkway Gallery
Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 121 F.R.D. 264, 268 (M.D.N.C.
1988)).
First, a party must make a threshold showing of good cause to believe that discovery will
involve confidential or protected information, which may be done on a generalized as opposed to
a document-by-document basis. Id. Moreover, even though a blanket protective order permits
all documents to be designated as confidential, a party must agree to invoke the designation only
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in good faith. Id. Also, after receiving documents, the opposing party has the right to contest
any documents it believes should not be designated as confidential. Id. And, finally, at this
stage, the party seeking the protection has the burden of proof to justify retaining the
confidentiality designation. Id. See also, Association Voice, Inc. v. AtHomeNet, Inc., No. 10-cv00109-CMA-MEH, 2010 WL 1258062, at *2(D. Colo. March 29, 2010).
The respective protective orders proposed by the two parties1 both generally meet the
requirements set forth in Gillard. The primary disputed element is the plaintiff’s request that the
Protective Order contain provisions for two-tiered confidentiality marking, thus including a
category of documents marked as “HIGHLY CONFIDENTIAL - ATTORNEY’S EYES
ONLY.”2 In addition to barring any litigant from seeing the relevant discovery, such a
designation would mean that the only attorney in the case could not consult with anyone at
AFRA about the marked documents. None of the pro se litigants, including Plaintiff herself,
would be able to see and/or use relevant documents so marked in prosecuting or defending their
cases. The only person who would be allowed to see documents so classified would be attorney
Slater - this is clearly an absurd result.
In determining the proper level of protection, the Court must balance the requesting
party’s need for discovery against the resisting party’s claimed harm that will result from

1

The three pro se individual defendants did not submit proposed protective orders, but
chose instead to rely on the form of protective order and arguments made by Defendant AFRA,
the only party in the case represented by an attorney.
2

This kind of designation, however, is plainly ludicrous on its face since the plaintiff
would be prohibited from seeing her own documents since she is not an attorney.
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disclosure. See Centurion Indus., Inc. v. Warren Steurer & Assocs., 665 F.2d 323, 325 (10th Cir.
1981).
This case does not involve technical or scientific invention. Instead it involves “a
collection of articles, papers, and documents, each written at a discrete time, each exploring a
discrete subject and each constitutes [sic] a stand-alone copyrightable work.” (Compl. [Doc. No.
1] ¶ 50.] The plaintiff alleges that the named defendants improperly obtained her protected
property “by engaging in long-term and pervasive program designed to induce the breach of
known obligations of authorized users of those trade secrets or to otherwise circumvent the
restrictions and terms I place on the legitimate acquisition and use of that property.” (Id. ¶ 71.)
The misappropriation about which Plaintiff complains took place in approximately 2002–2006.
(Id. ¶¶ 71-83.) Plaintiff complains that, “[b]y virtue of these publications and distributions, the
defendants did acquire, by unauthorized means, my trade secrets and proprietary information and
subsequently used it in their business operations and disseminated it widely.” (Id. ¶ 85.)
By her own admission, then, Plaintiff’s trade secrets have previously been in the
possession of the named defendants and have also been published in public forums. Confidential
Material generally includes “documents, information, and material that constitutes or reveals a
trade secret or other confidential research, development or commercial information that is
subject to protection under Fed. R. Civ. P. 26(c).” Qwest Corp. v. AT&T Corp., Case No. 05-cv00375-REB-BNB, 2006 WL 1684676, at *1 (D. Colo. June 14, 2006.). Generally, a producing
party should not designate as even Confidential “any material that constitutes information that is
publicly available at the time of disclosure.” Id. If there is allowed a category of documents
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designated as “Highly Confidential, ” that material should only include particularly sensitive
material that constitutes technical information regarding a party’s telecommunications and data
networks and information regarding products or services, financial information or plans, or
business plans. Id. Justification for not allowing a party to view highly confidential material can
only occur when the party clearly has not had previous access to the information; in other words,
the material is something the defendants don’t know about yet and which gives the plaintiff an
earned competitive advantage which could be lost if the defendant parties gained access to it.
There is nothing in this case to justify such a restrictive protective order, particularly in light of
three of the four defendants being unrepresented and the plaintiff herself appearing pro se.
Therefore, it is ORDERED
1.

This Protective Order shall apply to all documents, materials, and information,

including without limitation, documents produced, answers to interrogatories, responses to
requests for admission, deposition testimony, and other information disclosed pursuant to the
disclosure or discovery duties created by the Federal Rules of Civil Procedure.
2.

As used in this Protective Order, “document” is defined as provided in Fed. R.

Civ. P. 34(a). A draft or non-identical copy is a separate document within the meaning of this
term.
3.

Information designated “CONFIDENTIAL” shall be information that is

confidential and implicates common law and statutory privacy interests of any party, or
information alleged to contain or consist of trade secrets. CONFIDENTIAL information shall
not be disclosed or used for any purpose except the preparation and trial of this case.
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4.

CONFIDENTIAL documents, materials, and/or information (collectively

“CONFIDENTIAL information”) shall not, without the consent of the party producing it or
further Order of the Court, be disclosed except that such information may be disclosed to:
a. attorneys actively working on this case;
b. persons regularly employed or associated with the attorneys actively working
on the case whose assistance is required by said attorneys in the preparation for
trial, at trial, or at other proceedings in this case;
c. the parties, to the extent that the parties execute a statement indicating that
they agree to comply with the terms of this Protective Order, as outlined in
Paragraph 5 below;
d.

expert witnesses and consultants retained in connection with this proceeding, to
the extent such disclosure is necessary for preparation, trial or other proceedings
in this case;

e.

the Court and its employees (“Court Personnel”);

f.

stenographic reporters who are engaged in proceedings necessarily incident to the
conduct of this action;

g.

deponents, witnesses, or potential witnesses; and

h.

other persons by written agreement of the parties.

5.

Prior to disclosing any CONFIDENTIAL information to any person (BUT ONLY

THOSE LISTED IN PART FOUR ABOVE other than counsel, persons employed by counsel,
Court Personnel and stenographic reporters), such person shall be provided with a copy of this
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Protective Order and such person shall execute a written acknowledgment such as contained in
Exhibit A hereto stating that he or she has read this Protective Order and agrees to be bound by
its provisions. All such acknowledgments shall be retained by counsel or the pro se party
obtaining such acknowledgement, and shall be subject to in camera review by the Court if good
cause for review is demonstrated by another party.
6.

Documents may only be designated CONFIDENTIAL by a party who is directing

the confidentiality designation in good faith after review of the document in the sincere belief
that such documents meet the definition of CONFIDENTIAL. Documents are designated as
CONFIDENTIAL by placing or affixing on them (in a manner that will not interfere with their
legibility) the following or other appropriate notice: “CONFIDENTIAL.” To the extent the
documents are marked “CONFIDENTIAL” by the Plaintiff, the Plaintiff will indicate in the
marking to which Defendant the disclosure is being made. For instance, if the document is being
produced to Defendant John Doe, the imbedded marking would read, “CONFIDENTIAL JOHN DOE” or similar. The purpose of this provision is to be able to trace the origin of a
document marked CONFIDENTIAL in the unlikely event the document appears in a public or
unauthorized venue in direct violation of this Court Order.
7.

Whenever a deposition involves the disclosure of CONFIDENTIAL information,

the deposition or portions thereof shall be designated as CONFIDENTIAL and shall be subject
to the provisions of this Protective Order. Such designation shall be made on the record during
the deposition whenever possible, but a party may designate portions of depositions as
CONFIDENTIAL after transcription, provided written notice of the designation is promptly
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given to all counsel of record and pro se parties within thirty (30) days after notice by the court
reporter of the completion of the transcript.
8.

A party may object to the designation of particular CONFIDENTIAL information

by giving written notice to the party designating the disputed information. The written notice
shall identify the information to which the objection is made. The court expects the parties to
seriously consider, before filing an objection pursuant to this paragraph, whether there is a
sincere need to “de-designate” a given document and, if there is not such a need, to forego the
filing and consideration of useless motions to de-designate which unduly burden the court and
waste judicial resources without corresponding value to the litigants. If an objection is filed and
if the parties cannot resolve the objection within ten (10) business days after the time the notice
is received, it shall be the obligation of the party designating the information as
CONFIDENTIAL to file an appropriate motion requesting that the Court determine whether the
disputed information should be subject to the terms of this Protective Order. If such a motion is
timely filed, the disputed information shall be treated as CONFIDENTIAL under the terms of
this Protective Order until the Court rules on the motion. If the designating party fails to file
such a motion within the prescribed time, the disputed information shall lose its designation as
CONFIDENTIAL and shall not thereafter be treated as CONFIDENTIAL in accordance with
this Protective Order. In connection with a motion filed under this provision, the party
designating the information as CONFIDENTIAL shall bear the burden of establishing that good
cause exists for the disputed information to be treated as CONFIDENTIAL.

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9.

At the conclusion of this case (including the expiration of time for all appeals),

unless other arrangements are agreed upon or ordered by the court, each document and all copies
thereof which have been designated as CONFIDENTIAL shall be returned to the party that
designated it CONFIDENTIAL, or the parties may elect to destroy CONFIDENTIAL
documents. Where the parties agree to destroy CONFIDENTIAL documents, the destroying
party shall provide all parties with an affidavit confirming the destruction.
10.

If any party files with the Court any paper that has been properly designated as

“CONFIDENTIAL,” that party shall file the document under seal, and shall file a Motion to Seal
with the Court pursuant to D.C.COLO.L.CivR 7.2.
11.

This Protective Order may be modified by the Court at any time for good cause

shown following notice to all parties and an opportunity for them to be heard.
Dated this 16th day of August, 2012.

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EXHIBIT A
ACKNOWLEDGEMENT AND AGREEMENT TO PROTECTIVE ORDER REGARDING
CONFIDENTIAL MATERIALS PRODUCED IN SHELL v. AMERICAN FAMILY RIGHTS
ASSOCIATION, ET AL, CASE NO. 09-cv-309-MSK-KMT
I understand that certain documents and information produced during discovery in this case have
been designated “CONFIDENTIAL” and are subject to a Protective Order. In the event that such
Protected Materials are made available to me so that I can discharge essential functions, I hereby
certify as follows:
1.

I have read the Protective Order. I understand the Order and will abide by its terms.

2.
I will not disclose any Protected Material to any person not authorized by the Order to
receive disclosure nor will I use or disclose any Protected Material for any use other than the
conduct of this case.
3.
I understand that the unauthorized disclosure of Protected Material may constitute
contempt of court.
4.
I agree that the United States District Court for the District of Colorado has jurisdiction
to
enforce the terms of the Order, and I consent to the personal jurisdiction in that Court for
purposes of enforcement of the Order.

Signature: _________________________________

Printed Name: ______________________________

Date: _______________________________________

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