Roosevelt-Hennix v. City of Florence, The et al

Filing 11

Stipulation and PROTECTIVE ORDER, by Judge Richard P. Matsch on 7/7/2011. (rpmcd )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00353-RPM
LARA ROOSEVELT-HENNIX,
Plaintiff,
v.
THE CITY OF FLORENCE, a municipal corporation;
OFFICER SHANE PRICKETT, in his individual and official capacities; and
OFFICER JAMES BARR, in his individual and official capacities,
Defendant.

STIPULATION AND PROTECTIVE ORDER

Each Party, through undersigned counsel, stipulates and moves the Court for
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.
Confidential

In this action, at least one of the Parties has sought and/or may seek
Information,

including

Protected

Health

Information.

“Confidential

Information” and “Protected Health Information” are defined in paragraphs 7, 8 and 9
below.
2.

The Parties anticipate that some of the Confidential Information may, but

not necessarily would, lead to questioning concerning Confidential Information and
Protected Health Information in the course of depositions.

3.

The Parties assert the disclosure of Confidential Information and

Protected Health Information could result in significant injury to one or more of the
Parties’ business or privacy interests, the patient(s) identified in the protected health
records, and/or violation of the Health Insurance Portability and Accountability Act of
1996 (“HIPAA”).
4.

The Parties have entered into this Stipulation and request the Court enter

the within Protective Order for the purpose of preventing the disclosure of Confidential
Information and Protected Health Information to any person or entity not subject to this
litigation and prohibiting the Parties from using the Confidential Information and
Protected Health Information for any purpose other than this litigation, except as set
forth herein.
5.

The Parties agree that this Stipulation and Protective Order does not

constitute a waiver by any party as to whether any Confidential Information or Protective
Health Information is discoverable, but rather is a mechanism by which Confidential
Information and Protected Health Information that is disclosed is prevented from being
used for any purpose outside of this litigation by any Party.
6.

This Protective Order shall apply to all documents, files or portions of files,

materials, and information, including without limitation, documents produced, answers
to interrogatories, responses to requests for admission, deposition testimony, and other
information disclosed pursuant to the disclosure or discovery duties created by the
Federal Rules of Civil Procedure and designated as “Confidential” pursuant to the
terms of this Protective Order.

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7.

“Confidential Information,” including but not limited to “Protected Health

Information,” means any document, record, files or portions of files, material,
electronically stored information, transcribed testimony, or responses to discovery
requests, 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 paragraphs 11, 12 and 13 below as containing Confidential
Information and/or Protected Health Information.
8.

“Confidential Information” includes, but is not limited to, information that is

confidential and implicates common law and statutory privacy interests of the Plaintiffs
and the Defendants in this matter, including current and former employees of the City
and County of Denver. See e.g.; COLO. REV. STAT. § 13-90-107(1)(d) (physician-patient
privilege); Alcon v. Spicer, 113 P.3d 735 (Colo. 2005); Weil v. Dillon Co., Inc., 109 P.3d
127 (Colo. 2005); COLO. REV. STAT. § 24-72-204(3)(a)(II)(A) (concerning disclosure of
personnel records); Everitt v. Brezzel, 750 F. Supp. 1063 (D. Colo. 1990); Martinelli v.
District Court in and for the City and County of Denver, 612 P.2d 1083 (Colo. 1980).
“Confidential Information” includes, but is not limited to:
a.

Medical records and/or “Protected Health Information”;

b.

the Parties and/or their representatives’ personnel/employment files;

c.

internal affairs investigation files;

d.

educational and training files;

e.

personal financial, tax and identification information of the Parties;

f.

witness statements; and

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g.
9.

other documents related to Plaintiffs’ claims in this action.
“Protected Health Information” includes, but is not limited to, a patient’s

name, address, birth date, admission date, discharge date, date of death, telephone
number, fax number, e-mail address, social security number, medical records number,
insurance plan information, account number, certificate/license number, vehicle
identifier and license number, device identifier and serial number, URL, IP address
number, biometric identifier including voice and finger prints, photographs, and any
other unique identifying number, characteristic or code.
10.

As used in this Protective Order, “document” is defined as provided in

Fed.R.Civ.P. 34(a). A draft or non-identical copy is a separate document within the
meaning of this term.
11.

Documents containing “Confidential Information,” including “Protected

Health Information,” are designated as CONFIDENTIAL by placing or affixing on them
(in a manner that will not interfere with their legibility) the following or other appropriate
notice: “CONFIDENTIAL.”

Any information designated a Party as “CONFIDENTIAL”

will first be reviewed by that Party’s attorney.

In designating any material as

“CONFIDENTIAL,” the designating Party’s attorney is certifying that the designation 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).
12.

Responses to discovery requests are designated as CONFIDENTIAL by

imprinting the word “CONFIDENTIAL” next to or above the response.

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13.

Whenever a deposition involves the disclosure of CONFIDENTIAL

Information, the deposition or potions thereof shall be designated as CONFIDENTIAL
and shall be subject to the provisions of this Protective Order. Such designation shall
be made on the record during the deposition whenever possible, but a Party may
designate portions or depositions as CONFIDENTIAL after transcription, provided
written notice of the designation is promptly given to all counsel of record within thirty
(30) days after notice by the court reporter of the completion of the transcript.
Admissibility of the designated Confidential Information will be reserved for and
addressed at trial.
14.

Individuals authorized to review CONFIDENTIAL Information pursuant to

this Protective Order including, but not limited to, the Parties to this action and their
undersigned counsel, 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.
CONFIDENTIAL Information shall not be disclosed, revealed, leaked to the media
(inadvertently or otherwise), or used for any purpose except the preparation and trial of
this case.

CONFIDENTIAL Information shall not be communicated 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 such person is directly associated in prosecuting or
defending this case or is a witness, deponent, expert or other individual involved and
has signed an affidavit in the form of Exhibit A. These restrictions shall be strictly
construed.

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15.

CONFIDENTIAL Information may be disclosed to the following, provided

that these persons comply with the terms of this Protective Order, and are not involved
with or connected to the media:
a.

attorneys actively working on this case and their support staff;

b.

the Parties and designated representatives for the entity Defendants and
their respective employees and agents;

c.

expert witnesses and consultants retained in connection with this
proceeding and their staffs, to the extent such disclosure is necessary for
preparation, trial or other proceedings in this case;

d.

stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action;

e.

deponents; and

f.

other persons by written agreement of the Parties.

The Parties, their attorneys and support staff, and stenographic reporters shall not be
required to complete an affidavit as set forth in paragraph 14.
16.

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.

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17.

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 16 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.

To the extent that such a challenge arises prior to the Parties’ expert

disclosures, the names of the experts to whom documents were sent will not need to
be disclosed, unless the Court orders such disclosures, and then the names will be
disclosed to the Court only, in camera.
18.

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. Any such copies shall be made and used solely for purposes of
this litigation.
19.

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, 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

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within thirty (30) days of the aforementioned notice. 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.
20.

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.LCiv.R 7.2.
21.

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 terms and
requirements of this Protective Order shall survive the termination of this action.
22.

Upon termination of this litigation, including any appeals, each Party’s

counsel shall be responsible for retrieving any and all copies which they have caused
to be made of CONFIDENTIAL Information and either destroying such copies or
returning such copies to the producing party.

Counsel may retain a single set of

CONFIDENTIAL Information records for a period of time no more than three years from

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the conclusion of the litigation, at which time the CONFIDENTIAL Information records
shall either be returned or destroyed.
23.

By agreeing to the entry of this Protective Order, the Parties adopt no

position as to the authenticity or admissibility of document 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.
24.

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.
25.

This Protective Order may be modified by the Court at any time for good

cause shown following notice to all Parties and the opportunity for them to be heard.

SO ORDERED this 7th day of July, 2011.

BY THE COURT:
s/Richard P. Matsch
United States Senior District Judge
Richard P. Matsch

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STIPULATED AND AGREED TO:

s/Dan Rector
L. Dan Rector, Attorney at Law
217 E. Fillmore Street
Colorado Springs, Colorado 80907
Telephone: [phone]
FAX: [phone]
Email: [e-mail]
Attorney for Plaintiff

s/Sarah E. McCutcheon
Sarah E. McCutcheon
SENTER GOLDFARB & RICE, L.L.C.
1700 Broadway, Suite 1700
Denver, Colorado 80290
Telephone: [phone]
FAX: [phone]
Email: [e-mail]
Attorney for Defendants

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AFFIDAVIT
STATE OF
COUNTY OF

)
)ss
)

_____________________________, swears or affirms and states under penalty of
perjury:
1.
I have read the Stipulation and Protective Order in Hennix v. City of Florence, et.
al., Civil Action No. 11-cv-00353-RPM, 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 Stipulation and 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 Stipulation and 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 Stipulation and 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 Stipulation and 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.
_____________________________
Notary Public
My commission expires:________________
[SEAL]

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