Continental Materials Corporation v. Affiliated FM Insurance Company

Filing 20

STIPULATION AND PROTECTIVE ORDER by Judge John L. Kane on 07/06/2011. (wjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 10-cv-02900-JLK
CONTINENTAL MATERIALS CORPORATION,
Plaintiff,
v.
AFFILIATED FM INSURANCE COMPANY,
Defendant.
STIPULATION AND PROTECTIVE ORDER
Kane, J.
Each Party and each Counsel of Record stipulate and 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), and, as grounds therefor, state as follows:
1.

In this action, at least one of the Parties has sought and/or is seeking

Confidential Information (as defined in paragraph 2 below). The Parties also anticipate seeking
additional Confidential Information during discovery and that there will be questioning
concerning Confidential Information in the course of depositions. 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 request the Court enter the within 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 - not made available to the public - and designated by one
of the Parties in the manner provided in paragraph 3 below as containing: the Parties’ personal,
confidential, private, completely sensitive, business, and/or financial information.
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 calendar
days after receipt of the transcribed testimony.

d.
4.

By letter designating Record(s) by Bates number as “Confidential.”

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.

However, with regard to third parties, who are not under the Parties’
control, the Parties will make a good faith effort to obtain such third
parties’ compliance with the above-described provisions, but if despite the
Parties’ good faith efforts, the third parties will not comply with the
above-described provisions then such refusal will not necessarily preclude
the Parties from questioning such third party witnesses about Confidential
Information at depositions, hearings, or trial in this case.

Further,

Affiliated FM shall be permitted to produce to any entity regulating or
reinsuring it any information related to the presentation and the adjustment
of the claim as Affiliated FM is required to maintain by statute or
regulation.
5.

Individuals authorized to review Confidential Information pursuant to this

Protective Order shall hold Confidential Information in confidence and shall not divulge the
Confidential Information, either verbally or in writing, to any other person, entity or government
agency unless authorized to do so by court order.
6.

The Party’s counsel who discloses Confidential Information shall be responsible

for assuring 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 of Confidential Information, and shall maintain a list of all persons to
whom any Confidential Information is disclosed.
7.

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 6 above

upon a showing of substantial need in order to establish the source of an unauthorized disclosure
of Confidential Information and that opposing counsel are unable otherwise to 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 and conditions deemed appropriate
by the Court.
8.

No copies of 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 purposes of this
litigation.
9.

During the pendency of this litigation, counsel shall retain custody of

Confidential Information, and copies made therefrom pursuant to paragraph 8 above.
10.

If opposing counsel objects to the designation of certain information as

Confidential Information, he or she shall promptly inform the other parties’ counsel in writing of
the specific grounds of objection to the designation. All counsel shall then, in good faith and on
an informal basis, attempt to resolve such dispute. If after such good faith attempt, all counsel are
unable to resolve their dispute, opposing counsel may move for a disclosure order consistent with
this order. Any motion for disclosure shall be filed within 14 days of receipt by counsel of notice
of opposing counsel's objection, and the information shall continue to have Confidential
Information status from the time it is produced until the ruling by the Court on the motion.
11.

Use of Confidential Information in Court Proceedings: In the event

Confidential Information is used in any court filing or proceeding in this action, including but not
limited to its use at trial, it shall not lose its confidential status as between the parties through
such use. Confidential Information and pleadings or briefs quoting or discussing Confidential

Information will not be accepted for filing “under seal” or otherwise kept out of the public record
in this action, however, except by court order issued upon motion of the party seeking to file the
documents under seal. Any motion requesting leave to file documents under seal shall comply
with the requirements of D.C.COLO.LCivR 7.2 and demonstrate that the Confidential
Information at issue is entitled to protection under the standards articulated in Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598-602 (1978)(applied in United States v. Hickey, 767 F.2d
705, 708 (10th Cir. 1985) and Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir.
1980)).
12.

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.
13.

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.
14.

Upon termination 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, and all extracts, abstracts, charts, summaries, notes or copies made
therefrom, with the following exceptions: (1) Affiliated FM may keep copies of documents
utilized for purposes of adjustment of the loss to comply with statutory and regulatory
requirements; and (2) each Party’s respective counsel and the Assigned Attorneys may retain one
complete and unredacted set of pleadings and papers filed with the Court or served upon the
other Party solely for reference by attorneys in the event of, and only in the event of, further

proceedings or litigation in this Action, or a dispute over the use of Confidential Information
subject to the terms of this Order. At that time, counsel shall also file under seal with this Court
the list of individuals who have received Confidential Information which counsel shall have
maintained pursuant to paragraph 6 herein, and counsel shall provide the Court with verification
that any of counsel's work product referencing Confidential Information has been destroyed.
15.

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.

Dated: July 6, 2011

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Judge

STIPULATED AND AGREED TO:
L. Norton Cutler
L. Norton Cutler
PERKINS COIE LLP
1899 Wynkoop Street, Suite 700
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Matthew S. Mersfelder
Matthew S. Mersfelder
Russell E. Yates
YATES LAW FIRM, LLC
1900 Wazee Street, Suite 203
Denver, CO 80202
Phone: [phone]
Fax: [phone]
[e-mail]

Attorney for Plaintiff
Attorney for Defendant

EXHIBIT A
AFFIDAVIT
STATE OF COLORADO
COUNTY OF

)
)
)

ss.

, swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in _______________________, a copy of which
is attached to this Affidavit.
2.
I have been informed by ________________________, Esq., counsel for
_______________________________, that the materials described in the list attached to this Affidavit
are Confidential Information as defined in the Protective Order.
3.
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.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby
submit myself to the jurisdiction of the court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.

(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.
My Commission Expires:
Notary Public
SEAL