Cleary v. Boeing Company Employee Health and Welfare Benefit Plan (Plan 503), The et al

Filing 102

Stipulated Protective Order Re: Confidentiality. by Magistrate Judge Boyd N. Boland on 9/4/12. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-CV-00403-WJM-BNB
JAY CLEARY,
Plaintiff,
v.
THE BOEING COMPANY EMPLOYEE HEALTH AND WELFARE BENEFIT PLAN (PLAN
503);
UNITED LAUNCH ALLIANCE WELFARE BENEFITS PLAN FOR HERITAGE BOEING
EMPLOYEES; and
UNITED LAUNCH ALLIANCE ADMINISTRATIVE COMMITTEE;
Defendants.
______________________________________________________________________________
STIPULATED PROTECTIVE ORDER RE: CONFIDENTIALITY
______________________________________________________________________________
In this action (the “Litigation”) the parties expect the disclosure of Confidential
Information (as defined in paragraph 1 below). The disclosure of such Confidential Information
outside of this Litigation could result in significant injury to one or more of the parties’ business
or privacy interests. Accordingly, pursuant to F.R.C.P. 26(c) and by agreement of the
undersigned counsel, the parties hereby provide for the designation of information, documents,
and other things as Confidential Information subject to this Protective Order.
IT IS HEREBY ORDERED that:
1.

“Confidential Information” means any document, file, portion of file, transcribed
testimony, medical record, or response to a discovery response, including any portion,
abstract, chart, summary, note or copy made there from-not made available to the public

and designated by one of the parties in the manner provided in paragraph 2 below,
produced by any party to the Litigation whether voluntary or through formal discovery,
which consists of any confidential financial or medical information or information which
is proprietary or confidential in nature.
2.

Whenever a party to this Litigation designates any document, discovery response,
deposition testimony or any other information furnished by that party (the Producing
Party) to any other party (the Receiving Party), that information (Designated
Information), as Confidential Information, it will be kept as discussed below. Any
designation shall be made only upon the Producing Party’s good faith belief that the
material constitutes proprietary information, confidential personnel information,
confidential medical information, confidential financial information trade secrets or
deemed confidential for other bona fide reasons. Information shall be designated as
Confidential Information by:
a.

imprinting the word “confidential” on the first page or cover of any document
produced; or

b.

imprinting the word “confidential” next to or above any response to request for
discovery; or

c.

designating any transcribed, videotaped, or otherwise recorded testimony by
giving written notice to opposing counsel that such portions are “confidential” no
later than thirty (30) calendar days after receipt of the transcribed testimony.

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3.

Whenever a deposition involves the disclosure of Confidential Information, the
deposition or portion thereof shall be designated as containing Confidential Information
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 of depositions as containing “Confidential Information” after transcription,
provided written notice of the designation is promptly given to all counsel of record
within (30) days after notice by the court reporter of the completion of the transcript.

4.

All Confidential Information 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 may be disclosed only to “Qualified Persons,” as that term is defined in
Paragraph (c) below. All Qualified Persons receiving Confidential Information
shall be bound by the terms of this Stipulated Protective Order.

c.

Confidential Information may be disclosed to or made available by counsel of
record for the Receiving Party only to Qualified Persons. For the purpose of this
Agreement, the term “Qualified Persons” means:
i.

This Court (and any appellate court), including court personnel, jurors and
alternate jurors;

ii.

court reporters;

iii.

inside and outside counsel to the named parties to the Litigation, associate
attorneys, paralegals, clerical, secretarial, and other staff employed by
such counsel, or copy service personnel responsible for copying
documents or materials in connection with the Litigation, who such
counsel shall determine have a need for access to such information.

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iv.

the parties or the officers, employees, or principals of a party, who are
actually assisting counsel in the consideration or prosecution of the
claims, or the defense thereof, asserted in the Litigation.

v.

persons identified in a document designated as “Confidential” as an author
of the document in part or in whole, or persons to whom a copy of such
document was sent prior to its production in the Litigation;

vi.

anticipated and actual deponents and anticipated and actual trial fact
witnesses other than the named parties to the Litigation; and

vii.

independent outside experts, advisors or consultants (other than
employees, officers, or directors of any party) retained by counsel of
record in the Litigation for the sole purpose of the Litigation.

Prior to any disclosure of Confidential Information to any Qualified Person defined in
paragraphs c(iv), c(vi) and c(vii), counsel of record for the party proposing to make such
disclosure shall ensure that a copy of this Stipulated Protective Order has been delivered
to such person, and shall obtain that person’s written agreement to be bound by the terms
of this Stipulated Protective Order and consent to the Court’s jurisdiction for purposes of
enforcing this Stipulated Protective Order. The requirements of obtaining such written
agreement may be satisfied by obtaining the signature of any such person on a copy of
Exhibit A to this Stipulated Protective Order, after having had such person read this
Stipulated Protective Order and having explained the contents to such person.
5.

This Order shall not expend or limit the rights of any party to demand additional
information during the course of discovery on any grounds. Subject to the Producing
Party seeking relief from the Court as provided in paragraph 7, this Protective Order shall

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not inhibit the dissemination or use of any designated information if that information has
been or is obtained by the Receiving Party from public sources, or from sources other
than the Producing Party under circumstances that place no restriction on the use or
disclosure of the information by the Receiving Party.
6.

Use of Confidential Information in any proceeding related to the Litigation will not cause
such information to lose its designation as Confidential Information, and the parties shall
take all steps reasonably required to protect such confidentiality against misuse. Pending
resolution of the matter, an item designated Confidential under this Protective Order shall
be treated in accordance with its designated status as such.

7.

If the Receiving Party objects to the designation of certain information as Confidential
Information, he or she shall inform the other party’s counsel in writing of the specific
grounds of objection to the designation. The written notice shall identify the information
to which the objection is made. All counsel shall attempt to resolve the dispute in good
faith. If the parties cannot resolve the objection within ten (10) business days after the
time the notice is received, the party designating the information as confidential will file
an appropriate motion requesting that the Court determine whether the disputed
information should be subject to the terms of this Stipulated Protective Order. If such a
motion is timely filed, the disputed information shall be treated as Confidential
Information under the terms of this Stipulated 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
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be treated as confidential in accordance with this Stipulated Protective Order. If a motion
is filed under this provision, the party designating the information as Confidential
Information shall bear the burden of establishing that good cause exists for treating the
disputed information as Confidential Information under this Stipulated Protective Order
the disputed information to be treated as confidential.
8.

In the event it is necessary for the parties to file Confidential Information with the Court
in connection with any proceeding or motion, the parties will first confer about the
necessity of filing such information, whether other methods can be used to protect the
information from public disclosure, and whether the Confidential Information shall be
filed under seal. This includes any pleadings or briefs filed by the parties that either
quote or discuss the contents of Confidential Information.

9.

Any request to restrict access to materials filed with the court must comply with the
requirements of D.C.COLO.LCivR 7.2. Following conferral about the disclosure of
Confidential Information, should the parties not agree to measures to keep such
Confidential Information confidential, the parties agree not to file the document, but
instead to provide it to the court for in camera review.

10.

If any party inadvertently discloses or produces information subject to a claim of
confidentiality, attorney-client privilege or work product protection (“Inadvertently
Disclosed Information”), the disclosure or production of the Inadvertently Disclosed
Information shall not constitute or be deemed a waiver or forfeiture of any claim of
confidentiality, privilege or work product protection that the Producing Party would
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otherwise be entitled to assert with respect to the Inadvertently Disclosed Information
and its subject matter. If a party discloses Inadvertently Disclosed Information, the party
making the claim may notify any party that received the information of the claim and the
basis for it. After being notified, a party must promptly return, sequester, or destroy the
specified information and any copies it has; must not use or disclose the information until
the claim is resolved; must take reasonable steps to retrieve the information if the party
disclosed it before being notified. Either the party claiming the inadvertent disclosure or
the receiving party may resend the information to court under seal for a determination of
the claim within thirty (30) days of its notice. If the notifying party does not present the
information to the court under seal for determination within thirty (30) days the claim is
waived. The Producing Party must preserve the information until the claim is resolved.
3.

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 Stipulated Protective Order, and this Court shall retain
continuing jurisdiction to enforce the terms of this Stipulated Protective Order.

4.

By agreeing to the entry of this Stipulated Protective Order, the Parties adopt no position
as to the authenticity or admissibility of documents produced subject to it.

5.

By entering into this Stipulation, the parties do not agree that any documents designated
“Confidential” may be used as trial exhibits with or without such designation. The parties
reserve this issue for resolution by the Court at a later date.

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6.

Upon termination of this Litigation, including any appeals, each party’s counsel shall
immediately destroy or return to the producing party all Confidential Information
provided subject to this Protective Order, and all extracts, abstracts, charts, summaries, or
copies made there from.

7.

Nothing in this Protective Order shall preclude any party from filing a motion seeking
further or different protection from the Court under F.R.C.P. Rule 26, or from filing a
motion with respect to the manner in which Confidential Information shall be treated at
trial.

8.

The parties and any other person subject to the terms of this Stipulated Protective Order
agree that this Court shall have and retain jurisdiction over it and after this Litigation is
terminated for the purpose of enforcing this Order.

9.

The parties to this Stipulated Protective Order may change its terms by mutual agreement
in writing subject to approval by the Court.
Dated September 4, 2012.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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Stipulated and Agreed to by:
KENNEDY CHILDS P.C.
s/ Alison Sorkin
_________________________
Dean McConnell Esq., #18917
Alison C. Sorkin, Esq. #41674
633 17th Street, Suite 2200
Denver, CO 80202
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant United Launch
Alliance Welfare Benefits Plan for Heritage
Boeing Employees; and United Launch
Alliance Administrative Committee

s/ Brian A. Murphy
_________________________
Brian A. Murphy, Esq.
P.O. Box 271048
Louisville, Colorado 80027
[e-mail]
Attorney for Plaintiff

s/ Franz Hardy
_________________________
Franz Hardy, Esq.
Ross Allen Hoogerhyde, Esq.
Gordon & Rees, LLP-Denver
555 17th Street, Suite 3400
Denver, CO 80202
[e-mail]
[e-mail]
Attorneys for Defendant The Boeing
Company Employee Health and Welfare
Benefit Plan (Plan 503);
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EXHIBIT A
ACKNOWLEDGMENT OF RECEIPT OF CONFIDENTIALITY STIPULATION
I acknowledge that I have received a copy of the Stipulated Protective Order dated
__________________, 2012 in Civil Action No. 11-CV-00403-WJM-BNB, Jay Cleary v. the
Boeing Company Employee Health and Welfare Benefit Plan (Plan 503); United Launch
Alliance Welfare Benefits Plan for Heritage Boeing Employees; and United Launch Alliance
Administrative Committee. I have read that Confidentiality Stipulation, I understand it, and I
agree abide by its terms as they relate to me.
I further acknowledge that, under the terms of that Confidentiality Stipulation, I am not
to disclose any Confidential Information that has been provided to me in this action, and that I
am not to use any such Confidential Information for any purpose other than for this civil action.
I understand that if I violate any term of that Confidentiality Stipulation, I may be subject to
sanctions by the court.

DATED this _______ day of _________________, 20 ___
BY:

____________________________________
(Printed Name)
____________________________________
(Signature)

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