Fraser v. Avaya Inc. et al

Filing 97

PROTECTIVE ORDER re 96 , by Judge Richard P. Matsch on 4/15/2013. (rpmcd )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:10-cv-00800-RPM
ROBERT FRASER,
Plaintiff,
v.
AVAYA INC., a Delaware corporation, and
THE AVAYA INC. SICKNESS AND
ACCIDENT DISABILITY PLAN,
Defendants.
______________________________________________________________________________
PROTECTIVE ORDER
______________________________________________________________________________
Plaintiff Robert Fraser and Defendants Avaya Inc. and The Avaya Inc. Sickness and
Accident Disability Plan (collectively all three referred to as the “Parties” or each individually as a
“Party”) are bound by the terms of this Protective Order.
This Protective Order is designed to preserve the confidentiality of certain testimony given
by witnesses in this case and certain information contained in documents produced pursuant to the
terms of this Protective Order. Documents deemed to be “confidential” shall be so designated in
accordance with this Protective Order. Similarly, all corresponding testimony given by witnesses will
be so designated.
To expedite the flow of discovery material, facilitate the prompt resolution of disputes over
confidentiality, and adequately protect material entitled to be kept confidential, it is, by agreement of
the Parties and pursuant to the Court’s authority under the Federal Rules of Civil Procedure, IT IS
HEREBY ORDERED that:
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 or produced pursuant to the
disclosure or discovery duties created by Federal Rules of Civil Procedure.
2. As used in this Protective Order, “document” is defined as provided in Fed. R. Civ.
Proc. 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 the privacy interests of Plaintiff, either or both Defendants, or third
parties and/or information contained in confidential business records, personnel records,
documents, materials and communications. CONFIDENTIAL information shall not be disclosed
or used for any purpose except the preparation and trial of this case.
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 who are 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;

(c)

the Parties, including human resources and management employees
employed by Defendant Avaya Inc. who are actively working on the defense
of the case;

(d)

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

(e)

the Court in this case and its employees (“Court Personnel”);

(f)

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

(g)

deponents, witnesses or potential witnesses; and

(h)

other persons by written agreement of the Parties.
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5. Prior to disclosing any CONFIDENTIAL information to any person listed above
(other than counsel; persons employed by counsel; the Parties, including human resources and
management employees employed by Defendant Avaya Inc. who are managing the defense of the
case; Court Personnel; and stenographic reporters), the disclosing Party shall provide such person
with a copy of this Protective Order and obtain from such person a written acknowledgment stating
that he or she has read this Protective Order and agrees to be bound by its provisions. Such written
acknowledgment shall be in the form as provided in Exhibit A to this Protective Order, attached
hereto and incorporated herein. All such acknowledgments shall be retained by counsel and shall be
subject to in camera review by the Court if good cause for review is demonstrated by opposing
counsel.
6. Documents are designated as CONFIDENTIAL by placing or affixing on them (in a
manner that will not interfere with their legibility) the term “CONFIDENTIAL” or by designating
them as “CONFIDENTIAL” in correspondence from counsel to the Party producing documents.
In addition, any medical records and any financial or tax records for Plaintiff that either Defendant
obtains as a result of Plaintiff’s disclosure of any such records or as a result of a release or
authorization form signed by Plaintiff shall be deemed “CONFIDENTIAL INFORMATION,”
whether or not Plaintiff or any other person has stamped the word “Confidential” on those records
or has designated them as “CONFIDENTIAL” in a written communication or in an electronic mail
message to the non-producing party.
7. In the event Electronically Stored Information (“ESI”) is disclosed or discovered in
the course of this litigation, including, but not limited to, ESI provided in a native format on hard
disks or other magnetic data storage disks, removable disks and/or drives, portions thereof, or
digital images of data storage disks or drives, such information may be designated as “Confidential”
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in a written communication or in an electronic mail message to the nonproducing party as set forth
in Paragraph 6 above.
8. 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 given
to all counsel of record within thirty (30) days after notice by the court reporter of the completion of
the transcript.
9. 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 and the specific basis for such objection. 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 continue to 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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10. Any pleadings, motions or other documents, or portions thereof, containing
CONFIDENTIAL information that are filed with the Court, as well as any exhibits containing
CONFIDENTIAL information that are attached to any pleadings, motions or other documents that
are filed with the Court, shall be labeled “CONFIDENTIAL” and filed as a restricted document in
accordance with D.C.COLO.LCivR 7.2.D.
11. At the conclusion of this case, unless other arrangements are agreed upon, each
document and all copies thereof which have been designated as CONFIDENTIAL shall be
returned to the Party that designated it CONFIDENTIAL within forty-five (45) days of conclusion
of the action, or the Parties may elect to destroy CONFIDENTIAL documents; provided, however,
that counsel for each Party may retain one copy of the CONFIDENTIAL documents for the sole
purpose of maintaining a complete file, and all such retained documents will not be released,
disclosed, or utilized except upon express permission of this Court after written notice to counsel
for the Party that produced the documents. Where the Parties agree to destroy CONFIDENTIAL
documents, the destroying Party shall provide all Parties with an affidavit confirming the destruction
within forty-five (45) days after conclusion of the action.
12. 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.
IT IS SO ORDERED this 15th day of April, 2013.
BY THE COURT:
s/Richard P. Matsch
___________________________
Richard P. Matsch, Senior Judge

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EXHIBIT A
WRITTEN ACKNOWLEDGEMENT TO PROTECTIVE ORDER
The undersigned hereby acknowledges that he/she has carefully and completely read the
Protective Order in the pending litigation among Robert Fraser, Avaya Inc. and The Avaya Inc.
Sickness and Accident Disability Plan; that he/she is one of the persons contemplated in Paragraph
4 of the Protective Order; and that he/she fully understands and agrees to abide by the obligations
and confidences set forth in the Protective Order. The undersigned consents to the jurisdiction of
the United States District Court for the District of Colorado for purposes of enforcing this
Protective Order.
Date: ________________________
_________________________________
Signature
________________________________
Title or Position
________________________________
Printed Name

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