Kerner v. City and County of Denver
Filing
63
PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 5/7/2012. (kmtcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Case No. 11-cv-00256-MSK-KMT
MARIAN G. KERNER, and
JACOBO GONZALES, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
CITY AND COUNTY of DENVER, a municipal corporation.
Defendant.
STIPULATED PROTECTIVE ORDER
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 therefore, state as follows:
1.
In this action, it is anticipated that both Parties will seek Confidential Information
(as defined in paragraph 3 below). The parties also anticipate that they will seek additional
information that the opposing party(ies) may deem to be Confidential Information during all
aspects of discovery. 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.
2.
The parties have entered into this Stipulation and request that the Court enter the
within Protective Order for the purpose of preventing the disclosure and use of Confidential
Information except as set forth herein. Any information designated by a party as Confidential
must be reviewed by counsel who will certify that the designation as Confidential is based on a
good faith belief that the information is confidential or otherwise entitled to protection under
Fed. R. Civ. P. 26(c)(7).
3.
“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 available to the public - 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.
Records of Black and Hispanic employees who participated n the
Defendnat’s Career Counseling Centerand who participated in the
AccuPlacer Test for counseling purposes on or after March 8, 2007.
b.
The personnel, records or other confidential records of the Plaintiffs,
Marian Kerner and Jacobo Gonzales.
c.
The Plaintiffs, Marian Kerner and Jacobo Gonzales’ employment, tax
and/or financial records;
4.
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;
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.
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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.
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.
7.
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.
8.
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
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need, then counsel may seek a court order requiring inspection under terms and conditions
deemed appropriate by the Court.
9.
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.
10.
During the pendency of this litigation, counsel shall retain custody of
Confidential Information, and copies made therefrom pursuant to paragraph 9 above.
11.
A party may object to the designation of particular Confidential Information by
giving written notice to the party designating the disputed information. If the parties cannot
resolve the objection it shall be the obligation of the party designating the information as
confidential to file an appropriate motion within ten (10) business days after the time the notice
is received, 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 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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12.
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)).
13.
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.
14.
By agreeing to the entry of this Protective Order, the parties have adopted no
position as to the authenticity or admissibility of documents produced subject to the Protective
Order. 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.
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15.
The parties have agreed that the terms and conditions in this Protective Order
survive the termination of this litigation. Upon conclusion of this litigation, any party in
possession of Confidential Information will destroy or ensure that it is stored in a manner which
ensures compliance with the terms and conditions of this Protective Order.
16.
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 this 7th day of May, 2012.
BY THE COURT:
___________________________
United States Magistrate Judge
STIPULATED AND AGREED TO:
s/ Kenneth A. Padilla
Counsel for Plaintiff
s/ Franklin Nachman
Counsel for Defendant
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AFFIDAVIT
STATE OF COLORADO
COUNTY OF
)
)ss
)
_____________________________, swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in Kerner v. City and County of Denver, Civil
Action No. 11-cv-00256-MSK-KMT, 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 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.
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 __________________, 201__ by
__________________________________.
WITNESS my hand and official seal.
_____________________________
Notary Public
My commission expires:________________
EXHIBIT A
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