Loftice v. Home Depot U.S.A., Inc.

Filing 18

Stipulated PROTECTIVE ORDER re: 17 , signed by Judge Richard P. Matsch on 12/22/2009. (rpmcd)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 09-cv-OO748-RPM CHARLES FRANK LOFfICE, Plaintiff, v. HOME DEPOT, U.S.A., INC., A Georgia Corporation, Defendant. STIPULATED PROTECllVE ORDER To adequatelyprotect material entitled to be kept confidential, expeditethe flow of discovery and facilitate the prompt resolution of disputesover confidentiality, it is HEREBY ORDERED that: 1. Documentsor information producedor provided by the parties during the course of discovery in the above matter may be designated "Confidential Information" so long as the as party who seeks confidentiality has a reasonable and good faith belief that such document or information is entitled to confidentiality underthe terms of this Order. 2. For purposesof this Order, "Confidential Information" meansany documentor information designatedas confidential in accordance with paragraph6 of this Order, or any aggregationof Confidential Information. The identification of an individual documentor categoryof documentsor information as Confidential Information may be challengedpursuantto paragraph9 of this Order. EXHIBIT A 3 For purposesof this Order, "Document" meansall written, recorded,or graphic material, in hard copy or electronic format, including but not limited to deposition transcriptsand exhibits, trial and hearing transcriptsand exhibits, pleadings,motions, affidavits, and briefs that may quote, summarize,or contain Confidential Information. 4. For purposesof this Order, "Producing Party" meansa party that produces Confidential Information or other information in connectionwith this litigation. s. For purposesof this Order, "Recipient" meansa namedparty in this litigation (or counselthereto and their agents)who receivesConfidential Information or other information in connectionwith the litigation. 6. A. The Producing Party may designateas Confidential Information any information it believesto be confidential, including, without limitation, (i) non-public information about a past, presentor potential employeeof Home Depot or a subsidiary, including personnelrecords,evaluations,compensation levels, databases, surveys,statistical analyses, analysesof personnelpractices,or other information incorporating or aggregating information pertaining to individuals, and (ii) trade secretsor other non-public proprietary, strategicor commercial information, data or researchof Home Depot or one or more of its subsidiaries. B. To designateConfidential Information on Documents,the ProducingParty shall place a legendor stampupon the Documentindicating such in a way that brings the designationto the attention of a reasonable examiner,or otherwiseputs the Recipient on reasonable notice that it contains Confidential Informa~ion. To designateConfidential Information in testimony (or in exhibits referredto therein), the Producing Party shall (a) make 2 an oral statementto that effect on the record, or (b) notify the Recipient in writing at any time up until twenty (20) days after receipt of the transcript. The Recipient of Confidential Information shall usethat information solely in connectionwith this litigation, and shall not discloseConfidential Information to any person except: a) the namedplaintiff; the Court and its officers (including court reporters); b) c) counselof recordin this actionand employees counselin this of action who have been actively engagedin the conductof this litigation; Home Depot's or its subsidiaries'or affiliates' in-housecounsel; experts or litigation consultants or litigation support services engagedby counsel to assist in this litigation, provided that these expert witnesses or litigation consultants or litigation support servicesexpresslyagreeto be bound by the terms of this Order and not to disclose Confidential Information except as permitted herein; fact witnessesproviding testimony by deposition or at any court proceedingin this casebut only in accordancewith the procedures set forth in paragraph8 of this Order. d) e) f) 8. The Recipient of Confidential Infonnation shall disclose such infonnation to personsset forth in paragraphs7(a), 7(e) or 7(f), of this.Order only under the conditions set forth below: a) Prior to disclosureof CoQfidentiaiInfoTn1ation persons to describedin paragraphs 7(a), 7(e) or 7(f), the Recipient shall advisethat personthat, pursuantto this Order, he or shemay not divulge such infoTn1ation any other individual. to b) Any person whoreceives Confidential Information pursuant to paragraph7(a),7(e)or 7(f), s~l execute Agreement the form s an in 3 annexedheretoas Exhibit A. Each original, executedAgreementshall be maintained in the files of the Recipient and shall be available for review by all counseland partiesupon reasonable notice. c) The Recipient who disclosesConfidential Information pursuantto paragraphs7(a), 7(e) or 7(f), shall maintain a list specifically identifying the personsto whom the information was disclosedand the Batesnumber and/or other meanssufficient to identify such information disclosed. In the event the Recipient disputesthe ProducingParty's designationof individual 9. documentsor a category of documentsor information as Confidential Information, the Recipient shall notify the Producing Party in writing of suchdispute. In an effort to settle such dispute without judicial intervention, the parties shall meetand confer to determinewhether the restrictions imposedby this Order are warrantedwith respectto suchdisputed inforn1ation. If resolution of the dispute cannot be reached,the Recipientmay apply to the Court for an appropriatedetermination. In connectionwith such an application, the Producing Party shall bearthe burden to show that the information is entitle4 to continuedprotection under the Federal Rules of Civil Procedureand applicable caselaw. Duting the pendencyof such disputeor application, and until the court may rule otherwise,the information designatedConfidential Information shall remain subjectto the designationsand restrictions of this Order. 10. Inadvertentfailure to designa~ Confidential Information shall not be construedas a waiver, in whole or in part, and may be correctedby the ProducingParty by written notification to the Recipient promptly upon discovery of the failure to designate. All information obtainedby a Recipient in discovery in this litigation, regardless of whether it is Confidential Information, shall be usedby the Recipient solely for the prosecutionor defenseof the claims in this litigation, and shall not be usedby the Recipient for 4 any business, commercial, competitive, personal,publicity, media purpose,exceptthat nothing herein shall precludeHome Depot (or a subsidiaryof it) from pursuing legal or other business action in discoveredinstancesof misconductas to its own employeesor ensuringthat its employeesare acting in accordance with the law. The partiesexpresslyagreeand understand that respondingto question(s)presentedby media regardingany information available in the public record, including any Confidential Infonnation that hasbecomepart of the public record, shall not constitute any violation of this Order. No Recipient or other personto whom Confidential Information is disclosedshall copy, transcribe,or otherwise reproducein written or any other form any part or portion of any Confidential Information except as necessary for purposesof the litigation. 12. Within fifteen businessdays after the conclusionof this litigation, by adjudication (including appeals)or otherwise,the Recipient shall return to the Producing Party all Confidential Information, all copies of such information, and any Documentsincorporating such information. Alternatively, at the requestof the Producing Party, the Recipient shall destroyall suchmaterialsand certify in writing that all suchmaterialshave beendestroyed,so long as the Recipient's legal counsel is not violating the Rules of ProfessionalConduct or Colorado state law by complying with such a request. 13. Confidential Information shall not be filed in the public record of this litigation, unlessthe Court determines,upon a requestby a Recipient,that the filing of such information in the public record of this action is appropriat~. Any Confidential Information that is filed with the Court, and any pleadings,motions, or other papersfiled with the Court containing such information, shall be filed in a sealedenvelopeaccompanied a requestthat the Court file and by 5 maintain the information under seal,unlesssuch Confidential Information hasbeendetermined by the Court to be properly filed in the public record of this civil action. Where possible,only the portions of filings containing Confidential Information shall be filed with the Court under seal 14. The restrictions set forth in this Order shall not apply to: a) information that was, is or becomespublic knowledge through its authorizedreleaseby a personor entity who rightfully obtainedand possesses such information during the normal courseof business,and not in violation of this Order; b) Home Depot (or its subs,diaries), with respectto its own information or information receivedor createdduring the normal courseof its own business. Whether information that becomesa matter of public record in any other mannermay still be subjectto protection as Confidential shall be d~terrninedaccordingto the standards and procedures forth in paragraphs through 13 of this Order. The owner of Confidential set 2 Infonnation shall be able to seekprotection of that information in accordance with paragraph6 of this Order even if it did not producethat information in discovery. 15. Nothing in this Order shall be deemedto be a limit or waiver of the attorney- client privilege, the work product privilege, or any other relevantprivilege. Further, inadvertent production of privileged infonnation shall not waive the privilege. Ifprivileged infonnation is inadvertentlyproduced,the Recipient agreesthat, upon requestfrom the Producing Party, it shall promptly return all copies of Documentsco~tainingthe privileged infonnation, deleteany versionsof the Documentscontaining the privileged information on any database computer or filing systemit maintains,and make no useof the privileged information. 6 16. Nothing in this Order shall prohibit any party from objecting to the production or disclosureof Confidential Infonnation solely on the groundsthat such infonnation is confidential or sensitive,or on any other grounds. Furthermore,nothing in this Order shall precludethe parties from objecting to the admissibility or useof Confidential Information. 17. Nothing in this Order shall precludeany Confidential Information from being usedas evidenceby either party in this civil action. Confidential Infonnation may be used during trial to the extent pennitted by FederalRules of Evidence. 18. In the event plaintiffs or their counselobtain information of Home Depot's (or its subsidiaries)from a third party that Home Depot believesis confidential, Home Depot may designatesuch information Confidential Information pursuantto this Order and it shall be treated as such in accordance with this Order. 19. If a Recipient disclosesConfidential Information in a mannernot authorized herein,the Recipient must immediately and in writing notify the Producing Party of all pertinent facts relating to such disclosureand, without prejudiceto other rights and remediesof the ProducingParty, make every effort to prevent further disclosureby the Recipient or by the personto whom the Recipient disclosedsuch information. 7 20. The Court shall retainjurisdiction, both before and after the entry of final judgment in this case,whether by settlementor adjudication,to construe,enforce, and amendthe provisions this Order. of BRYAN E. KUHN, COUNSELOR AT LAW, P.C. HALE FRIESEN, LLP s/Brvan Kuhn E. BryanE. Kuhn,Esq. 1660 Lincoln Street, 2330 Ste. Denver, Colorado80264 Telephone: (303)424-4286 . s/Steohen DeHoff M StephenM. DeHoff, Esq. 1660Wynkoop Street,Ste. 900 Denver, Colorado 80202 Telephone:(720) 904-0600 DeH0ffU A lTORNEYS FOR PLAINTIFF CHARLES FRANK A lTORNEYS FOR DEFENDANT HOME LOFrICE DEPOT USA, INC. SO ORDERED: t? s District ou u ge Dated11- t2.&1f. : 8 EXIDBITA AGREEMENT CONCERNING INFORMA nON COVERED BYA PROTECnVE ORDER ENTERED IN mE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO The undersignedhereby acknowledges that he/shehasreadthe Protective Order in CharlesFrank Loftice v. Home Depot U.S.A., Inc., Civil Action No. 09-cv-OO748-RPM, and understands terms, agreesto be bound by eachof thoseterms, and agreesto subject its himself/herselfpersonally to the jurisdiction of the United StatesDistrict Court for the District of Colorado for the purposeof enforcing its terms. Specifically, and without limitation upon such terms,the undersignedagreesnot to useor discloseany Confidential Information madeavailable to him/her other than in accordance with the Order. Dated: ,2009 By: (Type or print nameof individual) Of: Nameof Employer 9

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