Armstead v. Day et al
Filing
21
STIPULATION AND PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 5/9/2011. (erv, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-cv-02783-CMA-KMT
PAMELA ARMSTEAD,
Plaintiff,
v.
KIM DAY,
DONALD WOOD
DENVER DEPARTMENT OF AVIATION
CITY AND COUNTY OF DENVER,
And
ONE OR MORE JOHN DOES,
Defendants.
STIPULATION AND PROTECTIVE ORDER
Plaintiff Pamela Armstead and all Defendants (hereinafter referred to as “Party”
or “Parties”), by and through their respective counsel, stipulate and respectfully move the
Court for a Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil
Procedure concerning the treatment of Confidential Information (as hereinafter defined)
as follows:
1.
The Parties anticipate seeking Confidential Information during discovery
and that there will be questioning concerning Confidential Information in the course of
depositions and other proceedings in this action. 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 respectfully request that the Court issue this Protective Order for the
purpose of preventing the disclosure and use of Confidential Information except as set
forth herein.
2.
“Confidential Information” means any document, file, portions of files,
transcribed testimony, or response to a discovery request, including any extract, abstract,
chart, summary, note, or copy made therefrom that contains information that is
confidential and implicates common law and/or statutory privilege interests and
designated by one of the Parties in the manner provided in paragraph 4 below as
containing Confidential Information, including, but not limited to:
a. the Parties’ and/or their representatives’ personnel files;
b. the Parties’ medical records;
c. investigation files, if any;
d. witness statements, if any;
e. the Parties’ and/or their representatives tax and/or financial records; and
f. any documents containing information relating to third Parties.
3.
Where Confidential Information is produced, provided or otherwise
disclosed by a Party in response to any discovery request, it will be designated in the
following manner:
a. By imprinting the word “Confidential” on the first page or cover of any
document produced;
b. By imprinting the word “Confidential” next to or above any response to a
discovery request; and
c. With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” no later than
ten (10) calendar days after receipt of the transcribed testimony.
4.
Any information designated by a Party as Confidential Information
subject to this Protective Order will first be reviewed by an attorney for the Party who
will confirm that the designation as Confidential is based upon a good faith belief that
the information is confidential or otherwise entitled to protection.
5.
All Confidential Information provided by a Party in response to a
discovery request or transcribed testimony shall be subject to the following restrictions:
a. It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;
b. It shall not be communicated or disclosed by any Party’s counsel or a
Party in any manner, either directly or indirectly, to anyone except for
purposes of this case and unless an affidavit in the form of Exhibit A has
been signed.
6.
Confidential Information, without the consent of the Party producing it or
further Order of the Court, shall not be disclosed except that such information may be
disclosed to:
a.
attorneys actively working on this case, and persons regularly employed
by 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 in this case;
b.
expert witnesses and consultants retained in connection with this
proceeding, to the extent such disclosure is necessary for preparation, trial or
other proceedings in this case;
c.
the Parties and designated representatives for the entity Defendants;
d.
deponents during their depositions;
e.
the Court and its employees (“Court Personnel”);
f.
stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action;
g.
members of a jury or other finder(s) of fact (“Finders of Fact”);
h.
other persons by written agreement of the Parties.
7.
Prior to disclosing any Confidential Information, including disclosure to
any pro se Defendant, counsel for the Party disclosing shall provide such person with a
copy of this Protective Order and obtain from such person a written affidavit stating that
he or she has read this Protective Order and agrees to be bound by its provisions. The
affidavit form is attached hereto as Attachment A. All such affidavits 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. If a person, including a pro se Defendant,
refuses to execute the affidavit form attached hereto, then counsel for the Parties may
confer with each other in order to attempt to informally resolve any such refusal.
8.
The Party or Party’s counsel who discloses Confidential Information shall
be responsible for ensuring compliance with the terms of this Protective Order with
respect to persons to whom such Confidential Information is disclosed and shall obtain
and retain the original affidavits signed by qualified recipients on Confidential
Information, and shall maintain a list of all persons to whom any Confidential
Information is disclosed.
9.
During the pendency of this action, opposing counsel may upon court
order or agreement of the Parties inspect the list maintained by counsel pursuant to
paragraph 7 above upon showing of substantial need in order to establish the source of
an unauthorized disclosure of Confidential Information and that opposing counsel are
unable to otherwise identify the source of the disclosure. If counsel disagrees with
opposing counsel’s showing of substantial need, then counsel may seek a court order
requiring inspection under terms conditions deemed appropriate by the Court.
10.
No copies of Confidential Information shall be made except by or on
behalf of counsel in this litigation for work product purposes, including for review by
experts in this case or for the attachment of copies of confidential documents to motions
and submissions to the court by a Party in accordance with D.C.COLO.LCivR 7.2. Any
such copies shall be made and used solely for purposes of this litigation.
11.
Except as elsewhere provided in this Stipulation and Protective Order,
during the pendency of this litigation, counsel shall retain custody of Confidential
Information, and copies made therefrom pursuant to paragraph 10 above.
12.
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. If the
Parties cannot resolve the objection within ten (10) business days after the time the
notice is received, or longer if the Parties mutually agree to a longer time to discuss any
pending dispute, 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
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 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.
13.
In the event it is necessary for the Parties to file Confidential Information
with the Court in connection with any proceeding or motion, the Confidential
Information shall be filed in accordance with the requirements of D.C.COLO.LCivR 7.2.
14.
The termination of this action shall not relieve counsel or other persons
obligated hereunder from their responsibility to maintain the confidentiality of
Confidential Information pursuant to this Protective Order, and the Court shall retain
continuing jurisdiction to enforce the terms of this Protective Order, even after this
action is terminated.
15.
By agreeing to the entry of this Protective Order, the Parties adopt no
position as to the authenticity or admissibility of documents produced subject to it.
Neither the taking of any action in accordance with the provisions of this Protective
Order, nor the failure to object thereto, shall be construed as a waiver of any claim or
defense in this action.
16.
The Parties agree that in the event information or documentation is
inadvertently disclosed to an opposing Party, any information or documentation so
disclosed shall be immediately returned to the producing Party without any copies being
made or notes being take regarding said information/documentation by those who have
received the inadvertent disclosure.
inadvertently
disclosed
Further, the Parties agree that no recipient of
information
or
documentation
shall
utilize
such
information/documentation or any fruits derived therefrom for the purpose of this
litigation and that the inadvertent disclosure of information or documentation shall not
constitute a waiver of any privilege that may otherwise apply.
17.
The Parties agree that the terms and conditions in this Protective Order
survive the termination of this litigation. Upon conclusion of this litigation, including
any appeals, each Party’s counsel shall immediately return to the producing Party all
Confidential Information provided subject to this Protective Order or dispose of it in a
confidential manner.
18.
Nothing in this Protective Order shall preclude any Party from filing a
motion seeking further or different protection from the Court under Rule 26(c) of the
Federal Rules of Civil Procedure, or from filing a motion with respect to the manner in
which Confidential Information shall be treated at trial. 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.
19.
Nothing in this Stipulation and Protective Order shall relieve any Party of
its obligation under Fed.R.Civ.P. 26(b)(5) to prepare and provide a privilege log.
Dated this 9th day of May, 2011.
STIPULATED AND AGREED TO:
/s/ Anne T. Sulton
Anne T. Sulton
Sulton Law Offices
Mailing Address:
Post Office Box 371335
Milwaukee, Wisconsin 53237
Telephone: (360) 870-6000
Email: annesulton@gmail.com
Attorney for Plaintiff
/s/ Franklin A. Nachman
Franklin A. Nachman, Esq.
Denver City Attorney’s Office
201 W. Colfax Ave., Dept. 1108
Denver, CO 80202-5332
Telephone: (720) 913-3100
Email: Franklin.Nachman@denvergov.org
Attorneys for Defendants
EXHIBIT A: AFFIDAVIT
STATE OF COLORADO
COUNTY OF _________
)
)ss
)
_____________________________, swears of affirms and states under penalty of
perjury:
1.
I have been informed by ___________________________, Esq., counsel
for _______________________________, that the categories of documents described in
the list attached to this Affidavit are Confidential Information as defined in the attached
Protective Order.
2.
I have read the attached Stipulated Protective Order, understand its
contents, and agree not to make any disclosures of information, documents, tangible
things, testimony, or other data marked or identified and produced as Confidential
Material in this litigation to any person who is not permitted to have access under the
Protective Order.
I further agree to use information, documents, tangible things,
testimony, or other data identified and produced as Confidential Information solely for
purposes of this litigation.
3.
I will abide by the terms of the Protective Order.
4.
I promise that I have not and will not divulge, or undertake to divulge to
any person or recording device any Confidential Information shown or told to me except
as authorized in the Protective Order. I will not use the Confidential Information for any
purpose other than this litigation.
5.
For the purpose of enforcing the terms of the Protective Order, I hereby
submit myself to the jurisdiction of the court in the civil action referenced above. I agree
that any dispute concerning enforcement of this Agreement may be decided by the
Magistrate Judge or District Court Judge in the above referenced litigation.
_________________________________________________ (Signature)
_________________________________________________ (Print or Type Name)
Address:________________________________________________________________
Telephone No.: (_____) _____________________
SUBSCRIBED AND SWORN to before me this ______________ day of
___________________________, 2011 by __________________________________.
WITNESS my hand and official seal.
[SEAL]
_____________________________
Notary Public
My commission expires:________________
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