Ivar et al v. Elk River Partners, LLC et al

Filing 79

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 2/8/10. (cbssec)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 09-cv-00453-CMA-CBS ALAN C. IVAR, an individual, DEBORAH L. IVAR, an individual, and CLIFFORD A. BERNSTEIN, an individual, Plaintiffs, v. ELK RIVER PARTNERS, LLC, a Georgia limited liability company, DMB REALTY LLC, a Delaware limited liability company, d/b/a Marabou Realty, JEFFREY TEMPLE, an individual, JOHN HILLENBRAND, an individual, and DOES 1-100, Defendants. STIPULATION AND PROTECTIVE ORDER Each Party and each Counsel of Record stipulate to a Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment of Confidential Information (as hereinafter defined), and as grounds therefor, state as follows: 1. In this action, at least one of the Parties has sought and/or is seeking Confidential

Information (as defined in paragraph 2 below). The Parties also anticipate seeking additional Confidential Information during discovery and that there will be questioning concerning Confidential Information in the course of depositions. The Parties assert the disclosure of such

information outside the scope of this litigation could result in significant injury to one or more of the Parties' business or privacy interests. The Parties have entered into this Stipulation and request the Court enter the within Protective Order for the purpose of preventing the disclosure and use of Confidential Information except as set forth herein. 2. " C o n f i d e n t i a l Information" means any document, file, portions of files,

t r a n s c r i b e d testimony, or response to a discovery request, including any extract, abstract, c h a r t , summary, note, or copy made­ not made available to the public ­ and designated b y one of the Parties in the manner provided in paragraph 3 below as containing c o n f i d e n t i a l financial, banking, proprietary, and/or personal information. 3. Wh e r e Confidential Information is produced, provided or otherwise

d i s c l o s e d by a Party in response to any discovery request, it will be designated in the f o l l o w i n g manner: a. B y imprinting the word "Confidential" on the first page or cover of a n y document produced; b. B y imprinting the word "Confidential" next to or above any response t o a discovery request; and c. Wi t h respect to transcribed testimony, by giving written notice to o p p o s i n g counsel designating such portions as "Confidential" no l a t e r than ten calendar days after receipt of the transcribed t e s t i mo n y . 4. A l l Confidential Information provided by a Party in response to a discovery

r e q u e s t or transcribed testimony shall be subject to the following restrictions: a. I t shall be used only for the purpose of this litigation and not for any
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b u s i n e s s or other purpose whatsoever; b. I t shall not be communicated or disclosed by any Party's counsel or a Party in any manner, either directly or indirectly, to anyone except f o r purposes of this case and unless an affidavit in the form of E x h i b i t A has been signed. 5. I n d i v i d u a l s authorized to review Confidential Information pursuant to this

P r o t e c t i v e Order shall hold Confidential Information in confidence and shall not divulge t h e Confidential Information, either verbally or in writing, to any other person, entity or g o v e r n me n t agency unless authorized to do so by court order. 6. T h e Party's counsel who discloses Confidential Information to an

i n d i v i d u a l authorized to review Confidential Information pursuant to this Protective O r d e r , shall advise such individual of the terms of the Protective Order, admonish each s u c h individual to abide by the terms of the Protective Order, shall obtain and retain the o r i g i n a l affidavits signed by authorized recipients of Confidential Information, and shall ma i n t a i n a list of all individuals to whom any Confidential Information is disclosed. 7. D u r i n g the pendency of this action, opposing counsel may upon court order

o r agreement of the parties inspect the list maintained by counsel pursuant to paragraph 6 a b o v e upon a showing of substantial need in order to establish the source of an u n a u t h o r i z e d disclosure of Confidential Information and that opposing counsel are unable o t h e r w i s e to identify the source of the disclosure. If counsel disagrees with opposing c o u n s e l ' s showing of substantial need, then counsel may seek a court order requiring i n s p e c t i o n under terms and conditions deemed appropriate by the Court. 8. N o copies of Confidential Information shall be made except by or on behalf
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o f counsel in this litigation and such copies shall be made and used solely for purposes of t h i s litigation. 9. D u r i n g the pendency of this litigation, counsel shall retain custody of

C o n f i d e n t i a l Information, and copies made, pursuant to paragraph 8 above. 10. I f opposing counsel objects to the designation of certain information as

C o n f i d e n t i a l Information, he or she shall promptly inform the other parties' counsel in w r i t i n g of the specific grounds of objection to the designation. All counsel shall then, in g o o d faith and on an informal basis, attempt to resolve such dispute. If after such good f a i t h attempt, all counsel are unable to resolve their dispute, opposing counsel may move f o r a disclosure order consistent with this order. Any motion for disclosure shall be filed w i t h i n 14 days of receipt by counsel of notice of opposing counsel's objection, and the i n f o r ma t i o n shall continue to have Confidential Information status from the time it is p r o d u c e d until the ruling by the Court on the motion. 11. A n y Party who inadvertently produces a document(s) protected by any

p r i v i l e g e or the work product doctrine or inadvertently fails to identify a document(s) as " C o n f i d e n t i a l " shall, promptly upon discovery of its oversight, provide written notice of t h e error to the Parties' counsel. Any Party, counsel, or authorized recipient of such i mp r o p e r l y produced or designated documents shall return the original and all copies, and p e r ma n e n t l y destroy any electronic copy of such document(s). If the document(s) is not p r i v i l e g e d , but should be classified as Confidential, such document(s) shall be returned to t h e producing Party for proper designation and marking. 12. I n the event Confidential Information is used in any court filing or

p r o c e e d i n g in this action, including but not limited to its use at trial, it shall not lose its
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c o n f i d e n t i a l status as between the parties through such use. Confidential Information and p l e a d i n g s or briefs quoting or discussing Confidential Information will not be accepted f o r filing "under seal" or otherwise kept out of the public record in this action, however, e x c e p t by court order issued upon motion of the party seeking to file the documents under s e a l . Any motion requesting leave to file documents under seal shall comply with the r e q u i r e me n t s of D.C.COLO.LCivR 7.3 and demonstrate that the Confidential Information a t issue is entitled to protection under the standards articulated in Nixon v. Warner C o m m u n i c a t i o n s , Inc., 435 U.S. 589, 598-602 (1978)(applied in United States v. Hickey, 7 6 7 F.2d 705, 708 (10 th Cir. 1985) and Crystal Grower's Corp. v. Dobbins, 616 F.2d 458, 4 6 1 (10 th Cir. 1980)). 13. T h e termination of this action shall not relieve counsel or other persons

o b l i g a t e d hereunder from their responsibility to maintain the confidentiality of C o n f i d e n t i a l Information pursuant to this Protective Order, and the Court shall retain c o n t i n u i n g jurisdiction to enforce the terms of this Protective Order. 14. B y agreeing to the entry of this Protective Order, the Parties adopt no

p o s i t i o n as to the authenticity or admissibility of documents produced subject to it. 15. U p o n termination of this litigation, including any appeals, each Party's

c o u n s e l shall immediately return to the producing party all Confidential Information p r o v i d e d subject to this Protective Order, and all extracts, abstracts, charts, summaries, n o t e s or copies made. At that time, counsel shall provide the Court and the Parties with v e r i f i c a t i o n that any of counsel's work product referencing Confidential Information has b e e n destroyed. 16. N o t h i n g in this Protective Order shall preclude any Party from filing a
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mo t i o n seeking further or different protection from the Court under Rule 26(c) of the F e d e r a l Rules of Civil Procedure, or from filing a motion with respect to the manner in w h i c h Confidential Information shall be treated at trial. D A T E D at Denver, Colorado, this 8 th day of February, 2010. B Y THE COURT:

s / C r a i g B. Shaffer Craig B. Shaffer U n i t e d States Magistrate Judge S T I P U L A T E D AND AGREED BY: D a t e d : January 29, 2010 N E W M E Y E R & DILLION, LLP s / Jay B. Freedman J a y B. Freedman 895 Dove Street, 5th Floor Newport Beach, CA 92660 Telephone: [phone] Fax: [phone] Email: [e-mail] ATTORNEYS FOR PLAINTIFFS/COUNTERDEFENDANTS L A N G D A L E VALLOTTON, LLP s / William Pope Langdale, III Wi l l i a m Pope Langdale , III P.O. Box 1547 1007 North Patterson Street Valdosta , GA 31601 Telephone: [phone] Fax: [phone] Email: [e-mail] ATTORNEYS FOR DEFENDANT ELK RIVER PARTNERS, LLC
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G R E E N B E R G TRAURIG, LLP s / Laura Sixkiller L a u r a Sixkiller J e f f r e y M. Lippa 1 2 0 0 17th Street, Suite 2400 D e n v e r , Colorado 80202 T e l e p h o n e : [phone] F a c s i mi l e : [phone] E ma i l : [e-mail] A T T O R N E Y S FOR DEFENDANTS DMB REALTY, LLC AND JOHN HILLENBRAND H O L L A N D & HART LLP s / Timothy M. Rastello T i m o t h y M. Rastello M a r k B. Wiletsky O n e Boulder Plaza 1 8 0 0 Broadway, Suite 300 B o u l d e r , CO 80302 Telephone: [phone] Fax: [phone] Email: t r a s t e l l o @ h o l l a n d h a r t . c o m mbw i l e t s k y @ h o l l a n d h a r t . c o m A T T O R N E Y S FOR DEFENDANTS ELK RIVER PARTNERS, LLC AND JEFFREY TEMPLE S M I T H DOLLAR PC s / Jon A. C. Vonder Haar J o n A.C. Vonder Haar 4 0 4 Mendocino Avenue, Second Floor Santa Rosa, CA 95401 T e l e p h o n e : 707.522.1100 Ext. 1112 F a x : 707.522.1101 E ma i l : [e-mail] ATTORNEYS FOR DEFENDANT/COUNTERCLAIMANT M&I BANK, FSB

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EXHIBIT A AFFIDAVIT S T A T E OF _____________ C O U N T Y OF ) ) ) ss.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ , swears or affirms and states under penalty of perjury: 1 . I have read the Protective Order in *, a copy of which is attached to this Affidavit. 2 . I have been informed by *, Esq., counsel for *, that the materials described in t h e list attached to this Affidavit are Confidential Information as defined in the Protective Order. 3 . I promise that I have not and will not divulge, or undertake to divulge to any p e r s o n or recording device any Confidential Information shown or told to me except as a u t h o r i z e d in the Protective Order. I will not use the Confidential Information for any p u r p o s e other than this litigation. 4 . F o r the purposes of enforcing the terms of the Protective Order, I hereby s u b mi t myself to the jurisdiction of the court in the civil action referenced above. 5 . I will abide by the terms of the Protective Order. (Signature) ( P r i n t or Type Name) Address: T e l e p h o n e No.: ( )

S U B S C R I B E D AND SWORN to before me this * day of *, 2010__, by _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ . WI T N E S S my hand and official seal. N o t a r y Public [S E A L] My Commission Expires:
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