First American Mortgage, Inc. v. First Home Builders of Florida et al

Filing 239

Stipulated PROTECTIVE ORDER Regarding Confidential Information, by Judge R. Brooke Jackson on 12/5/11. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 10-cv-00824-RBJ-MEH
FIRST AMERICAN MORTGAGE, INC.,
Plaintiff,
v.
FIRST HOME BUILDERS OF FLORIDA;
K. HOVNANIAN FIRST HOMES, LLC;
FIRST HOME TITLE;
BUILDERS MORTGAGE COMPANY, LLC;
FIRST MORTGAGE LENDERS OF FLORIDA, LLC;
D’ALESSANDRO & WOODYARD, INC.;
GATES, D’ALESSANDRO & WOODYARD, INC.;
PATRICK LOGUE, an individual; and
JAMES SUBLETT, an individual.
Defendants.
STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
THIS COURT is advised that the parties in this action have sought and may in
the future seek discovery of information and documents that the disclosing party deems
to constitute, contain or reveal “Confidential Information,” as that term is defined herein
below.

Therefore, in order to facilitate and expedite the discovery of Confidential

Information, the parties and their respective counsel have agreed that such discovery
will be subject to this Stipulated Protective Order (“Order”), hereby entered pursuant to
Fed. R. Civ. P. 26(c).
IT IS HEREBY AGREED AND ORDERED:
1.

190941

Definitions. The following definitions shall apply:

(a)

The word “Litigation” means the above-captioned case.

(b)

“Discoverable Matter” means all information, documents and other
tangible things that are discoverable in the Litigation, in any form or
format, including, but not limited to, interrogatory answers; requests
to admit and responses thereto; documents and tangible things
produced in this Litigation by any party, whether pursuant to the
Federal Rules of Civil Procedure, subpoena or by agreement;
deposition testimony, transcripts thereof and exhibits thereto; and
any quotation from, description of, or summary of any of the
foregoing.

(c)

“Confidential Information” means all Discoverable Matter that meets
the following criteria:
(i)

The Discoverable Matter constitutes, contains or reveals any
personal identifying information as defined in Colo. Rev.
Stat. § 13-21-122(2) and as also referenced in the GrammLeach-Bliley Act of 1999 as “Non-public Personal
Information” or “NPI,” information entitled to protection under
Fed. R. Civ. P. 26(c)(7), the Uniform Trade Secrets Act,
Colo. Rev. Stat. 7-74-101, et seq., or otherwise provided by
law;

(ii)

The party designating the Discoverable Matter as
confidential (the “Designating Party”) believes in good faith
that the Discoverable Matter merits protection under Fed. R.
Civ. P. 26(c); and

(iii)

The Discoverable Matter is designated as confidential
pursuant to Paragraph 2, below.

Notwithstanding this Paragraph 1(c), the confidentiality provisions of this
Order do not apply to Confidential Information already in the possession of
any non-Designating Party, unless obtained pursuant to a prior
confidentiality agreement or protective order issued by a court of
competent jurisdiction.
(d)

“Qualified Person” means and refers to:
(i)

The parties;

(ii)

Each party’s respective undersigned counsel of record in the
Litigation, and associate attorneys, paralegals, and clerical

-2-

employees associated with them who have a need to know
the Confidential Information;
(iii)

(iv)
2.

Any expert witness or consultant retained by any party in the
Litigation, or any fact witness, who signs Exhibit “A” attached
hereto and incorporated herein, which signed Exhibit “A”
shall be retained by counsel of the party that causes the
execution of Exhibit “A” until a date two years following
termination of the Litigation as described in Paragraph 7,
below; and
The Court, and law clerks, secretaries and clerical
employees associated with the Judge.

Designating Confidential Information.

The Designating Party may

designate Discoverable Matter as confidential by placing the word “CONFIDENTIAL” or
words of similar import on all pages and tangible things constituting, containing or
revealing Confidential Information; and by such other reasonable means as the parties
may agree or as the Court may order.

To the extent documents are produced

electronically, a Party may also mark a disc or other media containing Confidential
Information as "Confidential." The stamp shall not cover or obscure any portion of the
text or contents of the document and in the case of ESI shall not impede word searches.
In the case of deposition or hearing testimony, such designation shall be made by
identifying by reference to page and line those portions of the transcript to be
designated as Confidential Information, within thirty (30) days of counsel’s receipt of the
transcript. Non-documentary material shall be designated as Confidential Information
by some suitable and conspicuous means, given the form of the particular embodiment.
Any failure to designate Discoverable Matter as confidential at the time of, or promptly
after, production may be cured by a subsequent designation within a reasonable period

-3-

of time. All Discoverable Matter designated as confidential shall be subject to this Order
unless and until the Designating Party otherwise agrees or the Court otherwise orders.
3.

Use of Confidential Information. Each Qualified Person given access to

any Confidential Information shall maintain the Confidential Information in strict
confidence and shall not disclose the Confidential Information to any other person, firm
or enterprise, except another Qualified Person or as otherwise permitted in this Order,
and shall not use any Confidential Information for his, her or its own purposes or for any
purpose other than proper use of the Confidential Information in this Litigation, subject
to this Order.
4.

Filing Confidential Information. All Confidential Information filed with the

Court, and all pleadings, motions, or other papers filed with the Court disclosing any
Confidential Information, shall be filed under seal and kept under seal until further order
of the Court. Where possible, only those portions of papers filed with the Court that
contain, constitute or reveal Confidential Information shall be filed under seal. Any
document designated as confidential that is filed with the Court for any purpose shall be
filed in a sealed envelope or container marked on the outside with the title of the action
and identification of each document within the envelope or container, and a statement
substantially in the following form:

-4-

CONFIDENTIAL
INFORMATION
–
SUBJECT
TO
PROTECTIVE ORDER: This envelope (or container)
containing the above-identified papers filed by (name of
party), is not to be opened nor the contents thereof displayed
or revealed except by Court Order or by agreement of the
parties.
5.

Court Proceedings. Confidential Information may be offered in evidence

at trial or any court hearing. Any party may move the Court for an Order that the
evidence be received in camera or subject to other conditions to prevent unnecessary
disclosure. Discoverable Matter designated as confidential shall not lose its status as
Confidential Information because it is used in any court proceeding herein, unless the
confidential status of such Confidential Information is expressly waived by the
Designating Party, or upon order of the Court.
6.

Contested Designations.

Any party may challenge the designation of

Confidential Information. A party shall not be obligated to challenge the propriety of a
designation of Confidential Information at the time of the designation, and a failure to do
so shall not preclude a subsequent challenge thereto. The designation of a document
or information as confidential shall not create any presumption with regard to the actual
confidentiality of such document or information, nor shall it affect the burden of proof
necessary for obtaining a protective order pursuant to Fed. R. Civ. P. 26(c).

The

disputed material shall continue to be treated as Confidential Information until any
motion challenging the confidential designation is determined.
7.

Termination of the Litigation. Upon the termination of the Litigation in any

manner, including, but not limited to, a final judgment after appeal (if any) or by a
settlement, each Qualified Person shall upon request return all Confidential Information
-5-

to the Designating Party or the Designating Party’s counsel, along with all copies
thereof in his, her, or its possession, custody or control, and shall certify in writing that
all such Confidential Information and copies have been returned. As an alternative,
each Qualified Person may destroy all Confidential Information, and all copies and/or
summaries of Confidential Information, including notes or other memoranda or writings
regarding the contents of such Confidential Information. Each Qualified Person shall
thereupon provide the Designating Party’s counsel with a written certification that, to the
best of his, her, or its knowledge and information, all such Confidential Information has
been destroyed.

However, the foregoing obligations shall not extend (i) to any

Confidential Information embodied in materials protected by any applicable privilege or
the work product doctrine; and (ii) to the extent contained within depositions, pleadings,
and other court filings, so long as the retaining party adheres to its confidentiality
obligations set forth herein in the same manner as was required herein prior to
termination of this Litigation. Counsel for each party in this Litigation may also retain
one copy of any and all items constituting Confidential Information for purposes of any
possible future dispute over alleged violation of this Order or over any agreement,
decision, decree or order of judgment disposing of all or part of the Litigation.
8.

Effect of Order. Neither the taking of any action in accordance with the

provisions of this Order, nor the failure to object thereto, shall be construed as a waiver
of any claim or defense in the Litigation. The entry of this Order shall not be construed
as a waiver of any right to object to the furnishing of information in response to
discovery and, except as expressly provided, shall not relieve any party of the obligation

-6-

of producing information in the course of discovery. This Order shall not prevent any of
the parties from applying to the Court for relief herefrom or from other Orders, or from
agreeing between or among themselves to a modification of this Order, subject to the
approval of the Court.
9.

Permitted Disclosures.

Nothing shall prevent disclosures beyond the

terms of this Order by the Designating Party or if the Designating Party consents to
such disclosure. Nothing in this Order shall be deemed to restrict in any manner the
use by any party or its counsel of any information independently obtained or in its own
documents and materials. Further, nothing in this Order shall prohibit a party or its
counsel from disclosing a document that includes Confidential Information to the person
whom the document or material identifies as an author, addressee, or recipient of such
a document. Nothing in this Order shall prevent any party to this action from disclosing
or producing any documents containing Confidential Information or information
designated as CONFIDENTIAL, pursuant to a subpoena or other lawful process.
10.

Jurisdiction of Court. Each Qualified Person agrees that this Court shall

have, and shall retain after this action is terminated, jurisdiction over it and them for the
purpose of enforcing this Order.
11.

Breach.

Any breach of the provisions of this Order may subject the

breaching party to an injunction, damages, or such other sanctions which, in the
discretion of the Court, are necessary to ensure compliance with this Order, as within or
authorized by any statute, rule or inherent power of the Court, or as otherwise provided
by law.

-7-

12.

Relation to Fed.R.Civ.P. 26.

Nothing contained herein is intended to

broaden the scope of information that would be entitled to protection under Fed. R. Civ.
P. 26(c)(7).
13.

Effective Date. This Order is binding on the parties immediately upon

execution by their respective counsel below. Entry of this Order is not a precondition of
the enforceability of the terms set forth above.
SO ORDERED on this 5th day of December, 2011.
BY THE COURT:

________________________________
R. Brooke Jackson
United States District Judge

-8-

SO STIPULATED on this 2nd day of December, 2011.
BIEGING SHAPIRO & BARBER LLP

FOSTER GRAHAM MILSTEIN &
CALISHER LLP

By: /s/ Steven T. Mulligan
Steven T. Mulligan, No. 19901
4582 S. Ulster Street Parkway, Suite 1650
Denver, CO 80237
Telephone: [phone]
Fax: [phone]

By: /s/ Michael G. Milstein
Michael G. Milstein, No. 23833
Stephen A. Fermelia
Laura M. Martinez
621 Seventeenth Street, 19th Floor
Denver, CO 80293
Telephone: [phone]
Fax: [phone]

Attorneys for First American Mortgage,
Inc.
FAEGRE & BENSON LLP

Attorneys for First Home Title
REILLY POZNER LLP

By: /s/ Nadia G. Malik
Marie E. Williams
Nadia G. Malik
1700 Lincoln Street, Suite 3200
Denver, CO 80203
Telephone: [phone]
Fax: [phone]

By: /s/ Katherine Roush
Katherine C. Modesitt
Katherine Roush
511 Sixteenth Street, Suite 700
Denver, CO 80202
Telephone: [phone]
Fax: [phone]

Attorneys for Builders Mortgage Company,
LLC

Attorneys for
Patrick Logue, James
Sublett and First Home Builders of Florida

-9-

BILZIN SUMBERG BAENA PRICE &
AXELROD LLP

By: /s/ Melissa C. Pallet-Vasquez
Robert W. Turken
Melissa C. Pallet-Vasquez
200 South Biscayne Blvd. Suite 2500
Miami, FL 33131-5340
Telephone: [phone]
Fax: [phone]
HOROWITZ & BURNETT, P.C.

By: /s/ Kevin S. Neiman
Robert M. Horowitz
Kevin S. Neiman
1600 Lincoln Street, Suite 1900
Denver, CO 80264
Telephone: [phone]
Fax: [phone]
Attorneys for K. Hovnanian First Homes,
LLC and First Mortgage Lenders of
Florida, LLC

- 10 -

EXHIBIT “A”
ACKNOWLEDGEMENT OF CONFIDENTIALITY

I, ____________________________, agree as follows:
I have read the Stipulated Protective Order ("Order") entered in First American
Mortgage, Inc. v. First Home Builders of Florida, et al., Case No. 10-CV-00824, pending
in the United States District Court for the District of Colorado, a copy of which is
annexed hereto.
1.

I understand and agree to comply with all terms of the Order.

2.
I promise that any Confidential Information provided to me under the
Order will be used by me only in connection with the Litigation. I further promise that I
will not disclose any Confidential Information provided to me under the Order except as
set forth in the Order.
3.
I promise that I will return, at the request of such counsel, all Confidential
Information to counsel who provided me with the Confidential Information.
4.
I further promise and understand that I may be subject to sanctions
imposed by the Court and to a claim for damages if I fail to abide by and comply with all
of the terms of the Order.
NAME: _______________________________________________________________
EMPLOYER: ___________________________________________________________
OCCUPATION: ________________________________________________________
BUSINESS ADDRESS: __________________________________________________
BUSINESS TELEPHONE NUMBER: _______________________________________
DATED: ______________________________________________________________

________________________________
(signature)
- 11 -