Dill v. United States of America et al

Filing 36

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 12/13/11. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00024-PAB-CBS
PATRICK W. DILL,
Plaintiff,
v.
TYSON FOODS, INC.,
Defendant.
STIPULATED PROTECTIVE ORDER
The Parties to this action, their counsel, and any other person who agrees in writing to
become bound by the terms of this Stipulated Protective Order (the “Order”), are bound by this
Order.
It appearing to the Court that this Order is necessary, appropriate, and will facilitate
discovery, and for good cause shown, and recognizing that the Parties to this action have
stipulated hereto, IT IS HEREBY ORDERED AS FOLLOWS:
1.

Introduction and Scope. This action may require the disclosure of confidential

and/or proprietary information (including, without limitation, Documents). This Order shall
protect against the disclosure of such information that should not be publicly available and shall
govern any designated record or information produced in this action, including all designated
motions and other papers submitted to the Court, all designated deposition testimony, all
designated testimony taken at a hearing or other proceeding, interrogatory answers, documents,
and other discovery materials, whether produced informally or in response to interrogatories,

requests for admissions, requests for production of documents, subpoenas, or other formal
methods of discovery.
2.

Definitions.
(a)

For purposes of this Order, CONFIDENTIAL INFORMATION means

any Document, electronically-stored information, and tangible thing, transcript of oral
testimony or recorded statement and where the content of such Document, electronic file,
thing, transcript or statement, is designated by any Party as confidential. In general,
CONFIDENTIAL INFORMATION includes and may be claimed with respect to
information that is confidential or proprietary in nature including, but not limited to, trade
secrets, non-public research and development, non-public customer lists and/or other
commercially sensitive information that has been kept confidential by the producing
Party, as well as any information that implicates a common-law or statutory privacy
interest such as personal identifying information, personnel information, medical and
financial information, or any other information that is otherwise entitled to protection
under FED.R.CIV.P. 26(c). By way of example and not limitation, CONFIDENTIAL
INFORMATION may be included in Documents, portions of Documents, electronic
files, transcripts, answers to interrogatories, briefs, summaries, notes, abstracts, motions,
drawings and any instrument, which comprises, embodies, or summarizes matter that any
Party considers confidential and desires not be made public.
(b)

For purposes of this Order, DOCUMENT shall mean and include, but not

be limited to: any electronically-stored data, documents, files, portions of files, programs,
emails, regardless of format, correspondence, memoranda, bulletins, circulars, catalogs,

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publications, or other printed matter, interoffice and/or intracorporate communications,
minutes, telegrams, letters, statements, cancelled checks, contracts, invoices, drafts,
maps, charts, books of accounts, work sheets, notes of conversations, journals, desk
diaries, appointment books, expense accounts, recordings, specifications, photographs,
motion pictures, videotapes, compilations from which information can be obtained and
translated as required through detection devices into reasonably usable form, sketches,
drawings, notes (including laboratory notebooks and records), blueprints, disclosures,
models, data, reports, work assignments, instructions, and other writings. A draft or nonidentical copy is a separate document within the meaning of this term.
3.

Designation of Information.
(a)

If any Party intends to produce Documents, things, or electronic

information that the producing Party deems to contain or include Confidential
Information that it wishes to be made subject to this Order, the producing Party shall
designate confidentiality by marking the Document or thing “CONFIDENTIAL” at the
time it is turned over to the receiving Party. Any copy made of such Document shall also
bear on its face the legend “CONFIDENTIAL.” Such designation shall be made only
upon the designating Party’s good faith and well-founded belief that the material
constitutes proprietary information, confidential personnel or personal information, trade
secrets, non-public research of development, non-public customer lists, or commercially
sensitive information, or any other information that is otherwise entitled to protection
under FED.R.CIV.P. 26(c). Any Confidential Information not reduced to documentary,
electronic, tangible, or physical form, or which cannot be easily stamped may be

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designated by providing written notice of such designation and the designation of any
storage media shall extend to the contents of such storage media.
(b)

In the event a Party inadvertently produces Confidential Information

without such legend, that Party shall promptly furnish written notice to the receiving
Party that the Confidential Information is designated CONFIDENTIAL under this Order
along with appropriately labeled copies of the Confidential Information. Notice given
within thirty days after discovery of the inadvertent disclosure shall be considered prompt
notice. To the extent such Document, thing or information may have been disclosed to
persons other than authorized persons described in this Order, the receiving Party shall
make every reasonable effort to retrieve the Document, thing, or information promptly
from such persons and to limit any further disclosure to unauthorized persons. Moreover,
such post-production designation of Confidential Information shall not under any
circumstances be deemed a waiver, in whole or in part, of the right to assert
confidentiality or of the protections of this Order, and shall not entitle the receiving Party
or its attorneys to disclose such information in violation of this Order.
(c)

If it is contemplated that one or both Parties will make available certain of

its Documents for inspection by another Party, which Documents may contain
confidential as well as nonconfidential material, materials provided for inspection by a
Party’s counsel need not be designated as Confidential Information until copies of the
materials are requested after inspection and selection by counsel. All Documents and
their contents made available for such inspection shall be assumed to be Confidential
Information at the time of inspection and shall be treated as such until the producing

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Party has had the opportunity to designate and mark selected furnished Documents as
CONFIDENTIAL pursuant to Paragraph 3(a), above. Making Confidential Information
available for inspection shall not constitute a waiver of any claim of confidentiality, or
privilege.
(d)

If, during the course of discovery in this action, the Parties hereto, or their

representatives, are authorized to inspect another Party’s facilities, processes, or products,
any Documents or things generated as a consequence of any such inspection by the
inspecting Party, subject to the other provisions of this Order, shall be deemed to
comprise or to be Confidential as designated by the Party whose facilities, etc. are being
inspected, and shall be treated as such.
(e)

Where Confidential Information is provided in response to a discovery

request, the responding Party’s response shall be designated as CONFIDENTIAL by
imprinting the legend “CONFIDENTIAL” next to or above the response to the discovery
request.
(f)

Whenever a deposition taken on behalf of any Party hereto involves a

disclosure of Confidential Information of another Party, the following procedure shall be
implemented:
(i)

During the deposition, counsel for the Party whose Confidential

Information is subject to disclosure may state that the testimony is Confidential
and advise all persons present that the information is subject to this Order. Only
those persons authorized to receive disclosures of such Confidential Information

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as provided Paragraph 6 hereof shall be permitted to listen to or read testimony so
designated.
(ii)

If a designation Confidential Information is not made during a

deposition, a Party may designate the deposition or parts thereof as Confidential
by written notice to the other Party and the court reporter within 30 days of the
mailing of the deposition transcript. All persons with copies of the deposition
transcript shall then mark their copies with the above legend. Until the 30-day
period has expired, all deposition testimony and transcripts shall be treated in
their entirety as Confidential Information covered by this Order.
(iii)

All deposition transcripts not previously designated shall be treated

as Confidential for a period of 30 days after receipt of the transcript, and the
transcript shall not be disclosed by a non-designating Party to persons other than
those persons named or approved in Paragraph 6 to review documents or
materials designated Confidential on behalf of that non-designating Party.
(iv)

Aside from professional translators and stenographic reporters, the

designating Party shall have the right to exclude the following persons from a
deposition before the taking of testimony which the designating Party designates
as subject to this Order, as to testimony and exhibits designated as Confidential:
all persons except the deponent and counsel for the deponent who agrees to be
bound by this Order, and any person authorized to receive disclosure under
Paragraph 6.

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4.

Documents Related to Confidential Information.

Confidential Information

designated CONFIDENTIAL shall include: (a) all copies, extracts, and complete or partial
summaries prepared from such information; (b) portions of deposition transcripts and exhibits
thereto which contain or reflect the content of any such information, copies, extracts, or
summaries of it; (c) portions of affidavits, briefs, memoranda, or any other writing filed with the
Court and exhibits thereto which contain or reflect the content of any such information, copies,
extracts, or summaries of it; (d) deposition testimony designated in accordance with Paragraph
3(f), infra; and (e) testimony taken at a hearing or other proceeding that is designated in
accordance with Paragraph 8, infra.
5.

Limit on Use of Confidential Information. Each Party and all persons bound by

the terms of this Order shall use any Confidential Information governed by this Order only for
the purpose of prosecution, defense, mediation, arbitration or settlement of this action; no Party
or other person shall use any Confidential Information governed by this Order for any business
or other purpose whatsoever. The Party’s counsel who discloses information designated as
CONFIDENTIAL shall be responsible for assuring compliance with the terms of this Order with
respect to persons to whom such Confidential Information is disclosed.
6.

Disclosure of Confidential Information. Except as otherwise provided by written

stipulation of the Parties, or by further order of the Court, Confidential Information designated as
CONFIDENTIAL shall only be disclosed by the receiving Party on a need-to-know basis (i.e.,
for the purposes set forth in Paragraph 5, infra) and only to:

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(a)

Attorneys who represent the receiving Party, including outside litigation

and in-house counsel and paralegals, and employees of such attorneys or law firms with
which such attorneys are associated, but only for purposes of this action;
(b)

Experts (whether acting as testifying experts or non-testifying consultants)

and their staff retained by the receiving Party for the purpose of providing advice, an
expert opinion and/or testifying at the trial at this action, and subject to Paragraph 7,
infra;
(c)

Non-parties specifically retained to assist the attorneys of record or a Party

in copying or computer coding of documents, organizing, filing, translating, converting,
storing or retrieving data, or designing programs for handling data connected with this
action, including the performance of such duties in relation to a computerized litigation
support system, but only for purposes of performing such services in connection with this
Action;
(d)

The Court (and any appellate court) and Court personnel – including, but

not limited to, court reporters, assistants and employees – as provided in Paragraph 10,
infra, as well as jurors and alternative jurors;
(e)

Stenographic reporters who are engaged in proceedings necessarily

incident to the conduct of this action;
(f)

Deponents, witnesses, and potential witnesses in this action, as provided in

Paragraph 12, infra;

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(g)

The Parties to this action, including officers, directors, employees, or other

designated representatives of a corporate Party, but only for purposes of litigating the
claims and/or defenses asserted in this action; and
(h)
7.

Other persons by written agreement of the Parties.

Identification of Experts. A Party desiring to disclose Confidential Information

designated as CONFIDENTIAL to outside experts (whether acting as testifying experts or nontestifying consultants) under Paragraph 5, supra, (“Disclosing Party”) shall first obtain from each
expert a signed undertaking in the form of Exhibit A hereto.
8.

Designation of Hearing Testimony or Argument.

With respect to testimony

elicited and exhibits marked during hearings and other proceedings, whenever counsel for any
Party deems that any question or line of questioning calls for the disclosure of Confidential
Information that should be kept Confidential, counsel may designate on the record prior to such
disclosure that it is CONFIDENTIAL. Whenever a matter designated as Confidential is to be
discussed in a hearing or other proceeding, any Party claiming such confidentiality may, with
permission of the Court only, exclude from the room any person who is not entitled under this
Order to receive information designated as CONFIDENTIAL.
9.

Disclosure to Author or Recipient. Except as provided elsewhere in this Order,

nothing herein shall prohibit counsel for a Party from disclosing any Document, whether
designated as CONFIDENTIAL, to any person whom the Document clearly identifies as the
author or a recipient of such Document and regardless of designation pursuant to this Order, but
only for the purposes set forth in Paragraph 5. The person viewing such Documents shall not be

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permitted to retain copies of any of the Documents, unless that person is authorized to do so
under other provisions of this Order.
10.

Designation of Documents Under Seal. In the event that any Documents that

have been designated CONFIDENTIAL INFORMATION are included with or the contents
thereof are in any way disclosed in any pleading, motion, deposition transcript, or other paper
filed with the clerk of the Court, such Documents and related materials shall be filed under seal
pursuant to the rules of this Court. Pursuant to D.C.COLO.LCivR 7.2, no material will be filed
under seal with the Court without the prior approval of the Court. Upon such order of the Court,
any information designated CONFIDENTIAL shall be filed and kept by the Court under seal and
shall be made available only to the Court and to persons authorized by this Order. The Party
filing any paper that reflects, contains, or includes any Confidential Information subject to this
Order shall file such paper in a sealed envelope, or other appropriately sealed container, which
indicates the title of the action, the Party filing the materials, the nature of the materials filed, and
the legend “CONFIDENTIAL – FILED UNDER SEAL PURSUANT TO PROTECTIVE
ORDER OF THIS COURT.” At the conclusion of this action, any materials filed with the Court
under seal shall be kept under seal or be returned to the Party filing it for disposition as provided
for in Paragraph 19, infra.
11.

Confidentiality of Party’s Own Documents.

No person may disclose any

Confidential Information, except as provided in this Order, but nothing herein shall affect the
right of a Party to disclose Confidential Information which it designated as CONFIDENTIAL to
its officers, directors, employees, consultant, or experts, or to any non-party, except as provided

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elsewhere in this Order. Such disclosure shall not waive the protections of this Order and shall
not entitle other Parties or their attorneys to disclose such information in violation of this Order.
12.

Preparation of Witness and Exhibit Designation. Any Party may use Confidential

Information designated as CONFIDENTIAL to interview or prepare any witness for purposes
outlined in paragraph 5. In addition, any Party may use any Confidential Information designated
as CONFIDENTIAL as an exhibit to a deposition, hearing, or other proceeding and examine any
witness who is not otherwise prohibited from viewing such material thereon, provided the exhibit
and related transcript pages receive the same type of confidentiality designation as the original
document.
13.

Other Protections; Challenge to Designation of Confidential Information. This

Order shall not preclude any Party from seeking and obtaining, on an appropriate showing, such
additional protection with respect to the confidentiality of Confidential Information, or other
discovery material as such Party may consider appropriate. No Party shall be precluded from:
(a) claiming that any information designated as Confidential Information is not entitled to the
protections of this Order; (b) applying to the Court for an order permitting a disclosure or use of
Confidential Information otherwise prohibited by this Order; or (c) applying for an order
modifying this Order in any respect. No Party shall be obligated to challenge the propriety of
any confidentiality designation, and failure to do so shall not preclude a subsequent attack on the
propriety of such designation.

In any event, the challenging Party shall preserve the

confidentiality of the Confidential Information that is the subject of the challenge until the Court
disposes of and/or rules on the matter.

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14.

Prior or Public Knowledge. The restrictions and obligations set forth herein

relating to Documents and things marked CONFIDENTIAL shall not apply to any information
which the Parties agree in writing, or if they are unable to agree, the Court determines: (a) was or
becomes public knowledge other than as a result of disclosure by the receiving Party; or (b) has
come or shall come into the receiving Party’s lawful possession independently of the producing
Party. Such restrictions and obligations shall not be deemed to prohibit discussions with any
Person about any documents or things marked CONFIDENTIAL if that person already had or
obtained lawful possession thereof other than pursuant to this Order. Nothing in this Order shall
affect or restrict use or disclosure of Documents or things obtained other than through discovery
pursuant to this Order.
15.

Trial. Prior to any trial in this action, the Parties shall attempt to agree on the

method and manner by which the confidentiality of any Confidential Information subject to this
Order will be preserved at trial. In the event agreement cannot be reached, a Court ruling shall
be obtained.
16.

Limitation of Protective Order. This Order does not preclude any Party from

seeking further relief or protective orders form the Court as may be appropriate under the Federal
Rules of Civil Procedure or other applicable law. Further, the receipt of any Document, thing, or
information designated as CONFIDENTIAL by a Party shall not be construed as agreement by
any other Party that any such Document, thing, or information is in fact Confidential, and shall
not operate as a waiver of any Party’s right to challenge any such designation as provided herein.
Any Party may object to the designation of particular Confidential Information by giving written
notice to the Party making the disputed designation. The written notice shall identify specific

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grounds for objection to the designation of information as CONFIDENTIAL. If, after making a
good faith effort to resolve the objection on an informal basis, the Parties are unable to resolve
the dispute within ten (10) calendar days, the recipient of the disputed information may apply to
the Court for an appropriate determination. In connection with a motion 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.

The

Confidential Information shall continue to maintain its status from the time it is produced until
the Court’s ruling on the Motion.
17.

Non-Party Information.

The terms of this Order shall be applicable to

Confidential Information obtained from a non-party, and such information produced in
connection with this action shall be protected by the provisions of this Order. Such a non-party
shall have: (a) the same right as a Party to designate any such information under this Order; and
(b) standing to enforce the terms of this Order with respect to disclosure and use of that nonparty’s designated information. In addition, if any such non-party is under an obligation of
confidentiality to a Party (“Obliging Party”), the Obliging Party may designate any such
information as CONFIDENTIAL. Any other Party (“Requesting Party”) obtaining any materials
from such a non-party shall provide immediate and simultaneous access to the information to the
Obliging Party. The Obliging Party shall have ten (10) calendar days to notify the Requesting
Party of the status of the materials. In the interim, any materials obtained from such a non-party
by the Receiving Party shall be treated by the Receiving Party as if designated
CONFIDENTIAL. The Obliging Party may request that the Receiving Party label and number
such materials according to the designation and provide a copy of the labeled and numbered

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materials to the Obliging Party. The Receiving Party may produce its set of non-party materials
to the Obliging Party and the Obliging Party will, within five (5) business days, label and number
the materials according to the designation and provide a copy of the labeled and numbered
materials to the Receiving Party. Any Party who receives from a non-party information that has
not been designated CONFIDENTIAL may itself designate the Confidential Information as
CONFIDENTIAL pursuant to the provisions of this Order.
18.

Compulsory Service from a Non-party. If a Party in possession of information

designated CONFIDENTIAL is served with a valid subpoena, document request, interrogatories
or other compulsory process from a non-party to this Order seeking production or other
disclosure of such designated information, such Party (“Subpoenaed Party”) shall, within five (5)
business days, give prompt written notice to counsel for the Party who designated the
information as CONFIDENTIAL (“Designating Party”) identifying the designated information
sought and enclosing a copy of the subpoena, request, interrogatory, or other compulsory
process. The Subpoenaed Party shall make timely objections to the production of the designated
information, including by referencing the existence of this Order, and the Designating Party may
intervene without opposition from the Subpoenaed Party to object to the production of the
designated information. Unless and until such objections are overruled by the Court, or the
Court otherwise orders production of the designated information, the Subpoenaed Party shall not
produce or divulge the contents of the designated information. Nothing herein shall be construed
as requiring the Subpoenaed Party, or any Party, to challenge or oppose any court order requiring
production of the designated information, or subject itself to the risk of sanctions or penalty
arising from non-compliance with any such legal process or court order.

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19.

Return of Designated Information. Upon final termination of this action, unless

otherwise agreed to in writing by an attorney of record for the designating Party, each Party shall
assemble and return all information designated as CONFIDENTIAL, including all copies
(whether in the possession of the Party, counsel, experts, or non-parties), extracts and summaries
thereof, to the Party from whom the such designated information was obtained, except that any
documents or copies which contain or constitute attorney work product may be retained by
counsel, or destroyed. In lieu thereof, the Parties may agree that all information designated as
CONFIDENTIAL will be destroyed by the Party in possession of such information.
20.

Waiver or Termination of Protective Order. No part of the restrictions imposed

by this Order may be waived or terminated, except by the written stipulation executed by counsel
of record for each designating Party, or by an order of the Court for good cause shown. The
restrictions provided for herein shall not terminate upon the conclusion of this action, but shall
continue until further order of this Court.
21.

Modification of Protective Order. This Order may be modified, and any matter

related to it may be resolved by (1) written stipulation of the Parties subject to approval of the
Court; or (2) order of the Court upon motion of one or more Party.
22.

Continuing Jurisdiction. This Order is ongoing and shall survive termination of

this lawsuit and for as long as any Party is in possession or control of Confidential Information
and/or material provided pursuant to this Order. This Court shall retain jurisdiction to enforce
this Order even after termination of this lawsuit.

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23.

Paragraph Captions. The title captions for each paragraph of this Order are for

convenience only, and are not intended to affect or alter the text of the paragraphs or the
substance of the Order.
PURSUANT TO STIPULATION, IT IS SO ORDERED

DONE this 13th day of December, 2011.

BY THE COURT:
s/Craig B. Shaffer
U.S. MAGISTRATE JUDGE

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STIPULATED AND AGREED TO BY:
Berumen Law Firm, P.C.

KUTAK ROCK LLP

By: s/ Hannah B. Ross
Hannah B. Ross
Berumen Law Firm, P.C.
1450 S. Havana Street, Suite 412
Aurora, CO 80012
Tele: [phone]
Fax: [phone]
email: [e-mail]
[e-mail]

By: s/ Mia K. Della Cava
Neil L. Arney
Mia K. Della Cava
1801 California Street, Suite 3100
Denver, CO 80202-2626
Tele: [phone]
Fax: [phone]
email: [e-mail]
[e-mail]

ATTORNEYS FOR PLAINTIFF
ATTORNEYS FOR DEFENDANT

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EXHIBIT “A”
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-CV-00024-PAB-CBS
PATRICK W. DILL,
Plaintiff,
v.
TYSON FOODS, INC.,
Defendant.

I agree to be bound by the Protective Order in the matter of PATRICK W. DILL V.
TYSON FOODS, INC., Civil Action No. 11-CV-00024-PAB-CBS in the United States District
Court for the District of Colorado, entered on the ___ day of ___________________________,
2011. I have read the Protective Order and understand and agree to its terms and conditions.
Dated this ___ day of ____________________________, 20___.

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