Brown et al v. Wells Fargo Bank National Association
Filing
58
PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 11/21/2011. (kmtcd)
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Judge Philip A. Brimmer
Case No. 11-CV-517-WYD-KMT
MISTY BROWN and
MITCHEL BROWN,
Plaintiffs,
v.
ROBERT ALAN BROWN and
WELLS FARGO BANK, NATIONAL
ASSOCIATION
Defendant.
STIPULATION AND PROTECTIVE ORDER
Plaintiffs, Misty Brown and Mitchel Brown (collectively “Plaintiffs”), Defendant Robert
Alan Brown (“Brown”) and Defendant, Wells Fargo Bank, N.A. (“Wells Fargo”), by and
through their respective undersigned counsel, submit this Stipulation and Protective Order
(Stipulation), as follows:
STIPULATED PROTECTIVE ORDER
1.
This Protective Order shall apply to any information, document, or thing subject
to discovery in this action that may contain trade secrets, non-public information, or other
confidential or proprietary business or financial information (“Confidential Information”).
2.
Confidential Information owned or controlled by a party, or owned or controlled
by a third party providing discovery in this action under this Stipulation, may be designated as
“Confidential.” Such information, document, or thing may include, without limitation, testimony
adduced at depositions upon oral examination pursuant to F.R.C.P. 30; written responses to
interrogatories pursuant to F.R.C.P. 33; documents produced pursuant to F.R.C.P. 26 or F.R.C.P.
34; answers to requests for admissions pursuant to F.R.C.P. 36; testimony, documents, or things
provided pursuant to F.R.C.P. 45; and any data, reports, opinions, or conclusions derived
therefrom; and all information, documents, and things relating in any way to the substance of the
foregoing, including but not limited to copies, summaries, or abstracts of the foregoing.
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CONFIDENTIAL INFORMATION
3.
The parties may designate as “Confidential” certain documents and information
relating to this case, including, but not limited to the following: (a) financial information; (b)
loan application information and related documentation; (c) loan servicing files; (d) various
policies and procedures of banking, insurance, or mortgage lending entities, (e) customer
information, including identity, account information, credit history, transaction history, or claims
history, background check information and investigative information; (f) government or other
reports provided under the expectation of confidentiality; and (g) contracts containing
confidentiality provisions.
4.
A party or third party producing Confidential Information in this case (“Providing
Party”) may identify and protect such information by labeling or marking documents or things
“CONFIDENTIAL.”
5.
In the case of depositions upon oral examination, if counsel for a party or third
party believes that questions or answers include Confidential Information, counsel shall so state
on the record and shall request that all or a portion of the deposition transcript be designated as
Confidential, and that it be maintained in a separate, sealed, and appropriately marked envelope.
The reporter, who shall first have agreed to abide by the terms of this Stipulation pursuant to
Paragraphs 7 and 8 below, shall include on the cover page of each sealed transcript, or portion
thereof, the following: “This transcript, or portions thereof, contains information subject to a
Protective Order and shall be used only in accordance therewith.” When testimony designated as
Confidential is elicited during a deposition, persons not entitled to receive such information
under the terms of this Stipulation shall be excluded from the deposition.
6.
Confidential Information shall be treated in accordance with this Stipulation
unless and until the Court rules to the contrary or the Providing Party agrees otherwise, or except
as provided in Paragraph 14 of this Order.
7.
Unless and until the Court rules or the Providing Party otherwise agrees, access to
or disclosure of Confidential Information shall be limited to:
(a)
The Court and its employees, with such information filed under seal (and
kept under seal until further Order of the Court);
(b)
The attorneys for the party or parties in this litigation to whom such
documents are produced, including outside trial counsel as well as in-house counsel, and the
employees and office support staff of such attorneys;
(c)
The parties, or designated employees or representatives of the parties
testifying at deposition, either individually or pursuant to F.R.C.P. 30(b)(6);
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(d)
Independent experts or consultants for a party or under serious
consideration for such engagement (together with their personnel) whose advice and consultation
are being or will be used by such party in connection with this litigation;
(e)
Court reporters in connection with this litigation; and
(f)
Third party deponents, during the course of a deposition.
8.
Counsel desiring to disclose Confidential Information to any person to whom
disclosure of Confidential Information is permitted pursuant to Paragraph 7(d) through 7(f)
above shall obtain from each such person prior to the disclosure of any Confidential Information
a signed undertaking in the form attached as Exhibit A. Counsel shall prepare and maintain an
accurate and complete listing of all Confidential Information disclosed to the identified person
throughout the case, identifying each item individually.
9.
With regard to persons to whom disclosure of Confidential Information is
permitted pursuant to Paragraph 7(b) and 7(c) above, counsel shall first obtain from each person
a signed undertaking in the form attached as Exhibit A. In lieu of a document-by-document
listing of the Confidential Information intended for disclosure to the identified person, a general
statement shall be provided indicating that, as a result of the person’s status, it is anticipated this
person will be provided with all Confidential Information adduced in this case.
10.
With regard to persons to whom disclosure of Confidential Information is
permitted pursuant to Paragraph 7(e) and 7(f), the signed copy of the undertaking in the form
attached as Exhibit A shall be provided to all counsel immediately before the deposition and
shall become part of the transcript and record of the proceedings.
11.
With regard to persons to whom disclosure of Confidential Information is
permitted pursuant to Paragraph 7(d) who are testifying experts pursuant to F.R.C.P. 26(a)(2), a
signed copy of the undertaking in the form attached as Exhibit A, together with the itemized
listing of the Confidential Information disclosed to the identified person shall be provided with
the expert disclosure for each such expert. The required listing shall be supplemented and
provided to all counsel if further Confidential Information is provided to the testifying expert at
any time subsequent to the expert disclosures.
12.
Nothing in this Stipulation shall require disclosure of information protected by the
attorney-client privilege or work-product doctrine. However, this Stipulation shall not preclude
any party from contesting the applicability of the privilege or doctrine.
13.
The acceptance by a party of Confidential Information shall not constitute an
admission or concession that, or permit an inference that, the Confidential Information is, in fact,
confidential. This Stipulation shall not prevent a party from moving for an Order that any
Confidential Information is not, in fact, confidential.
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14.
This Stipulation shall not prevent a party or third party from applying to the Court
for relief or from applying to the Court for further or additional protective orders.
15.
Confidential Information may be used by the receiving party or any other
permitted recipient only in connection with this litigation. The restrictions on use of
Confidential Information as set forth in this Stipulation shall survive the conclusion of this
litigation. After the conclusion of this litigation, the Court shall retain jurisdiction for the
purpose of enforcing this Stipulation.
16.
Notwithstanding the provisions of Paragraphs 7 and 8 above, no later than ten
(10) days following the conclusion of this litigation, including appeal, counsel providing
Confidential Information to any person to whom the disclosure of Confidential Information is
permitted pursuant to this Stipulation shall provide to all other counsel copies of all executed
undertakings in the form attached as Exhibit A secured in this action from each and every person
to whom disclosure of Confidential Information was made, together with a copy of the required
listing of all Confidential Information provided to that party.
17.
No later than thirty (30) days following the conclusion of this litigation, including
any appeal, a Providing Party must give written notice to any party receiving Confidential
Information whether copies of all documents containing Confidential Information must be
destroyed, with a certification of such destruction being delivered to the Providing Party.
18.
All persons to whom Confidential Information is provided subject to this
Stipulation and who are bound by this Stipulation through the execution of the undertaking in the
form attached as Exhibit A shall comply with all directives of the Providing Party with regard to
return or destruction of the Confidential Information in their possession within ten (10) days after
receiving such written notice and in either event shall not retain in their possession Confidential
Information of any kind.
19.
Restrictions and obligations relating to Confidential Information shall not apply to
any information which the parties agree, or the Court rules:
(a)
was or becomes public knowledge other than as a result of disclosure by
the receiving party; or
(b)
has or shall come into the receiving party’s legitimate possession
independently of the Providing Party.
20.
Such restrictions and obligations shall not be deemed to prohibit discussions with
any person of any Confidential Information if the parties agree in writing or the Court rules that
said person has already obtained possession thereof legitimately.
21.
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
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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 Information to file an
appropriate motion, within five (5) business days requesting that the Court determine whether the
disputed information should be subject to the terms of this Stipulation.
If such a motion is timely filed, the disputed information shall be treated as Confidential
Information under the terms of this Stipulation 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 Information and shall not be treated as
Confidential Information in accordance with this Stipulation.
The fact that information may come within the definition of Confidential Information set
forth in Paragraph 1 above shall not preclude the Court from determining that the information
shall not be subject to this Stipulation. In connection with a motion filed under this provision,
the party designating the information as Confidential Information shall bear the burden of
persuading the Court that the contested documents and/or information should remain subject to
this Stipulation.
22.
This Stipulation shall not affect or govern the use or admissibility of Confidential
Information at trial. Each party hereto shall be responsible for requesting appropriate relief from
the Court regarding trial testimony and exhibits, including but not limited to further protective
orders, trial management order provisions, motions in limine and/or objections.
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IT IS SO STIPULATED.
Dated:
November 21, 2011.
SCOTT R. LARSON, P.C.
s/_________________________________
Scott R. Larson, Reg. No. 9439
1888 Sherman Street, Suite 415
Denver, CO 80203
Telephone: (303) 861-0920
srlpc@aol.com
Counsel for Plaintiffs
BROWN, BERARDINI &
DUNNING, P.C.
ROGER EATON
s/_________________________________
Brian J. Berardini, Reg. No. 10406
2000 S. Colorado Blvd.
Tower Two, Suite 700
Denver, CO 80222
Telephone (303) 329-3363
bberardini@bbdfirm.com
Counsel for Defendant Wells Fargo Bank,
N.A.
s/_________________________________
Roger Eaton, Reg. No: 29547
31 Tennis Cr. NW
Albuquerque, NM 87120
Telephone: (505) 264-9116
Roger2eaton@gmail.com
Counsel for Defendant Robert Alan Brown
GOOD CAUSE APPEARING THEREFOR, IT IS SO ORDERED.
DONE AND ENTERED THIS 21st DAY OF November, 2011.
BY THE COURT:
_____________________________
U.S. Magistrate Judge
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EXHIBIT A
PERSONAL UNDERTAKING REGARDING PROTECTIVE ORDER
I, ___________________________ declare:
1.
My address is ________________________________________.
occupation is ________________________________.
My present
2.
I have received a copy of the Stipulation and Protective Order (“Stipulation”)
issued in the matter of Misty Brown and Mitchel Brown v. Robert Alan Brown and Wells Fargo
Bank, N.A., U.S. District Court, Civil Action No. 11-cv-517-WYD-KMT. I have carefully read
and understand the provisions of the Stipulation.
3.
I will comply with all of the provisions of the Stipulation. I will hold in
confidence, will not disclose to anyone other than those persons specifically authorized by the
Stipulation, and will not copy or use except for purposes of this litigation, any information
designated as “CONFIDENTIAL” which I receive in this litigation, except to the extent that such
Confidential Information is or becomes public information in accordance with the Stipulation.
4.
I will comply with Paragraph 13 of the Stipulation regarding the return or
destruction of all Confidential Information in my possession following the conclusion of this
litigation.
5.
I declare under penalty of perjury that the foregoing is true and correct and that
this document is executed this ______ day of _____________, ______, at _________________.
__________________________________________
Signature
__________________________________________
Print Name
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