Macklin v. Banner et al

Filing 34

Stipulated PROTECTIVE ORDER by Judge Richard P. Matsch on 09/24/09. (jjh, )

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IN THE UNITED STATESDISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 09-CV -O609-RPM-MJW BRUCE MACKLIN, Plaintiff, v. HELEN D. BANNER; DONALD JAMES BANNER, ESQ.; ALBERT DA VID DEMICELL a/k/a BERT DEMICELL; and SOUTHERNCOLORADOLA WYERS, P.C., a Colorado Corporation,d/b/a BANNER & BOWER, P.C., Defendants. STIPULATED PROTECTIVE ORDER Upon the stipulation of counselfor the parties,the following ProtectiveOrder is entered pursuantto Rule 26(c) of the Federal Rules of Civil Procedureconcerning the treatment of Confidential Information (ashereinafterdefined): 1 In this action, at leastone of the Partieshassoughtand/oris seekingConfidential Information (as defined in paragraph2 below). The Partiesalso anticipate seekingadditional Confidential Infonnation during discovery and that there will be questioning concerning Confidential Information in the courseof depositions. The Partiesassertthe disclosureof such information outsidethe scopeof this litigation could result in significant injury to one or more of the Partiesbusiness privacy interests. or 2. "Confidential Information" means any document. file, portions of files, transcribedtestimony,or response a discoveryrequest,including any extract, abstract,chart, to summary,note, or copy madetherefrom- not madeavailableto the public - and designated by one of the Parties in the manner provided in paragraph 3 below as containing personal infonnation. 3. Where Confidential lnforDlation is produced,provided or otherwisedisclosedby a Party in response any discoveryrequest,it will be designated the following manner: to in a. By imprinting the word "Confidential" on the first page or cover of any documentproduced,or, in the caseof information provided in disk form, imprinting the word "Confidential" on the disk; b. By imprinting the word "Confidential" next to or aboveany response a to discoveryrequest;and c. With respect to transcribed testimony. by giving written notice to opposingcounseldesignatingsuchportions as "Confidential" no later than ten calendardaysafter receiptof the transcribed testimony. 4. All Confidential Information provided by a Party in responseto a discovery requestor transcribed testimonyshall be subjectto the following restrictions: a. It shall be used only for the purposeof this litigation and not for any business otherpurposewhatsoever; or b. It shall not be communicated disclosedby any Party's counseloror a or Party in any manner, either directly or indirectly, to anyone except for 2 purposes this caseand unlessan affidavit in the fonn of Exhibit A has of beensigned. s, Individuals authorized to review Confidential Information pursuant to this Protective Order shall hold Confidential Infonnation in confidenceand shall not divulge the Confidential Infonnation, either verbally or in writing, to any other person,entity or government agencyunlessauthorizedto do so by court order. 6. The Party's counselwho disclosesConfidential Information shall be responsible for assuringcompliancewith the terms of this ProtectiveOrder with respectto personsto whom such Confidential Information is disclosed and shall obtain and retain the original affidavits signedby qualified recipientsof Confidential Information,and shall maintain a list of all persons to whom any Confidential Information is disclosed. 7. During the pendencyof this action, opposingcounsel may upon court order or agreement the parties inspect the list maintainedby counselpursuantto paragraph6 above of upon a showing of substantial needin order to establishthe sourceof an unauthorized disclosure of Confidential Infonnation and that opposing counsel are unable otherwise to identify the with opposingcounsel's showing of substantial sourceof the disclosure. If counseldisagrees need, then counsel may seek a court order requiring inspection under terms and conditions deemed appropriate the Court. by 8. No copies or Confidential Information shall be made except by or on behalf of counsel in this litigation and such copies shall be made and used solely for purposesof this litigation. 3 9. During the pendencyof this litigation, counselshall retain custodyof Confidential Information,and copiesmadetherefrompursuantto paragraph above. 8 10. If opposing counsel objects to the designation of certain infonnation as Confidential Information,he or sheshall promptly inform the other parties' counselin writing of the specific groundsof objectionto the designation. All counselshall then, in good faith and on an infonnal basis,attemptto resolve such dispute. If after such good faith attempt,all counsel are unableto resolvetheir dispute,opposingcounselmay move for a disclosureorder consistent with this order. Any motion for disclosureshall be filed within 14 daysof receipt by counselof notice of opposingcounsel'sobjection, and the infomlation shall continueto have Confidential Information statusfrom the time it is produceduntil the ruling by the Court on the motion. 11 Use of ConfidentialInformation in Court Proceedings. In the event Confidential Infomlation is used in any court filing or proceedingin this action, including but not limited to its use at trial, it shall not lose its confidential status as betweenthe partiesthrough suchuse. Confidentiallnfonnation and pleadingsor briefs quoting or discussingConfidential Information will not be acceptedfor filing "under seal" or otherwise kept out of the public recordin this action,however,exceptby court order issuedupon motion of the party seeking to file the documentsunder seal. Any motion requesting leave to file documents under seal shall comply with the requirements of D.C.COLO.LCivR 7.3 and demonstratethat the Confidential Information at issue is entitled to protection under the standards articulatedin Nixon v. Warner Communications. Inc. 435 U.S. 589, 598-602 (1978) (appliedin UnitedStatesv. Hickey, 767 F.2d 705,708(lOthCir 1985)and Crystal Grower's Corp v. Dobbins,616 F.2d 458, 461 (10thCir. 1980. 4 12. The termination or this action shall not relieve counselorother personsobligated hereunderfrom their responsibility to maintain the confidentiality of Confidential Information pursuantto this ProtectiveOrder,and the Court shall retain continuingjurisdiction to enforcethe termsof this ProtectiveOrder. 13. By agreeingto the entry of this ProtectiveOrder, the Partiesadopt no position as to the authenticityor admissibility of documents producedsubjectto it. 14. Upon tennination of this litigation, including any appeals,each Party's counsel shall immediatelyreturn to the producingparty all Confidential Information provided subjectto this Protective Order, and all extracts, abstracts,charts, summaries,notes or copies made therefrom.At that time, counselshall also file under sealwith this Court the list of individuals who have received Confidential Information which counselshall have maintainedpursuantto paragraph6 herein, and counselshall provide the Court with verification that any of counsel's work productreferencingConfidentialInformation hasbeendestroyed. 15. Nothing in this Protective Order shall preclude any Party from filing a motion seekingfurther or different protection from the Court under Rule 26(c) of the FederalRules of Civil Procedure,or from filing a motion with respect to the manner in which Confidential Information shall be treated at trial. ,Datedat Denver,Colorado,thi~1 day of September 2009. BY THE COURT: ~ I P. MATSCH,SE:NIOR JUDGE UNITED STATESDISTRICT COURT s STIPULATED AND AGREED TO: s/RossW. Pulkrabek RossW. Pulkrabek,counselfor Plaintiff s/JoseQJ. BroneskY h Joseph Bronesky,Counselfor Defendant J. Helen Banner s/James Helfrich S. JamesS. Helfrich, counselfor Defendant Albert David Demicell s/William H. ReMine. III William H. ReMine, III, counselfor Defendants Southern Colorado Lawyersand Donald James Banner 6 IN THE UNITED STATES DISTRICT COURT FOR mE DISTRICT OF COLORADO Civil Action No. 09-CV -O609-RPM-MJW BRUCE MACKLIN, Plaintiff, v. HELEN D. BANNER; DONALD JAMES BANNER, ESQ.; ALBERT DA VID DEMICELL a/k/a BERT DEMICELL; and SOUTHERN COLORADOLA WYERS, P.C., a Colorado Corporation,d/b/a BANNER & BOWER, P.C., Defendants. AFFIDAVIT REGARDING PROTECTIVE ORDER STATE OF COLORADO 55. COUNTY OF , swearsor affirms and states underpenaltyof perjury: 1. I havereadthe ProtectiveOrder in the above-captioned action, a copy of which is attached this Affidavit. to I havebeeninformed by Esq.,counselfor *, that the materialsdescribedin the list attached this Affidavit are Confidential to Information asdefinedin the ProtectiveOrder. 2. 3. I promise that I have not and will not divulge, or undertaketo divulge to any person or recording device any Confidential Information shown or told to me except as authorizedin the ProtectiveOrder. I will not use the Confidential Information for any purpose otherthan this litigation. 4. For the purposesof enforcing the tenns of the ProtectiveOrder, I hereby submit myself to thejurisdiction of the court in the civil action referenced above. 5. I will abideby the termsof the ProtectiveOrder. 7

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