Arakawa v. Carestream Health, Inc.

Filing 14

Stipulated PROTECTIVE ORDER re 13 , by Judge Richard P. Matsch on 11/16/2011. (rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00653-RPM
JODY L. ARAKAWA,
Plaintiff,
v.
CARESTREAM HEALTH, INC.,
Defendant.
STIPULATED PROTECTIVE ORDER
Having reviewed the motion of Plaintiff Jody Arakawa (“Arakawa”) and Defendant
Carestream Health, Inc. (“Carestream”) (together, the “Parties”) for entry of stipulated
protective order, and concluding that there is good cause to grant the motion, under
Rule 26(c) of the Federal Rules of Civil Procedure, and being fully advised, orders as
follows:
1.

In this action, each of the Parties seek or will seek Confidential

Information and Highly Confidential Information (as defined in Paragraph 2 and 3)
through written discovery in this case and expect that there will be questioning
concerning such information in the course of depositions and other proceedings. The
Parties assert that 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, and/or the privacy interests of Carestream’s current or former employees,
customers or related entities. In addition, the public disclosure of some of the Highly

Confidential Information could cause irreparable harm to the financial and business
interests of Carestream and its customers. The Parties have agreed to the language of
this proposed Stipulated Protective Order (“Stipulated Protective Order”) to protect
those interests and request that the Court enter it for the purpose of preventing the
disclosure and use of Confidential and Highly Confidential Information except as set
forth below.
2.

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

as provided in Fed. R. Civ. P. 34(a). A draft or non-identical copy, whether it is a hard
copy or electronic copy, is a separate document within the meaning of this term.
3.

Nothing in this Stipulated Protective Order is intended, nor shall it

be construed, as a waiver or an admission that any documents or information are
admissible or contain confidential, proprietary business information, or trade secrets.
This Stipulated Protective Order is simply a procedural framework to facilitate the
discovery processes and provide protections concerning documents and information
exchanged between and among the parties and non-parties in this case.

No part of

this agreement shall be used in this action or any other action as evidence that any
party has waived or admitted to any claims solely by designating documents or
information as Confidential Information or Highly Confidential Information. “Confidential
Information” means any document, file, portion of any file, transcribed testimony, or
response to a discovery request, including any extract, abstract, chart, summary, note,
or copy made therefrom, that (a) is designated by one or more of the Parties in the

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manner provided in Paragraph 6 below, and (b) contains any personnel, trade secret,
research and development, customer, or other confidential or proprietary information
other than Highly Confidential Information described in Paragraph 4 below.
4.

“Highly Confidential Information” means any document, file, portion

of any file, transcribed testimony, or response to a discovery request, including any
extract, abstract, chart, summary, note, or copy made therefrom, (a) which is
designated by one or more of the Parties in the manner provided in Paragraph 7 below,
and (b) the existence or contents of which Plaintiff did not know during his tenure with
Carestream, and (c) which contains any personnel, medical, trade secret, research and
development, customer, or technological information concerning Carestream or
Carestream’s clients, or other confidential or proprietary information, including, but not
limited to:
a.

Carestream’s or its clients’ research, strategies, methods, training,
protocols, processes, procedures, and equipment (including but not
limited to the type, location, and use of such equipment);

b.

Carestream’ or its clients’ strategies, methods, training, protocols,
processes and procedures;

c.

Maps, plans, schematic drawings, representations or other
descriptions of the location or internal layout of Carestream’s
facilities, equipment, and financial and other assets; and

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d.

Carestream’s or its clients’ recruitment, screening, testing, hiring,
retention, assessment, pay, demographics, training, discipline or
termination of prospective or current employees or contractors.

5.

“Confidential Information” and “Highly Confidential Information,” as

used herein, means any information as described in Paragraphs 3 and 4 which is
designated by any Party as “Confidential” or “Highly Confidential,” whether it be a
document, information contained in a document, information revealed during a
deposition, information revealed in an interrogatory answer, response to requests for
admission, or response to request for documents, and other information disclosed
pursuant to the disclosure or discovery duties created by the Federal Rules of Civil
Procedure, or otherwise. In designating information as “Confidential Information” or
“Highly Confidential Information,” a Party will make such designations only as to that
information that the Party has reviewed and in good faith believes contains information
that is Confidential or Highly Confidential, as defined in Paragraphs 3 and 4 above.
6.

Where Confidential Information is produced, provided or otherwise

disclosed by either of the Parties in response to any discovery request, it will be
designated in the following manner:
a.

With respect to Confidential Information, by imprinting the words
“Confidential” on the first and every page of any document
produced, or for information produced in electronic form, by labeling

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the file, CD, or other medium of storage and transmittal with the
term “Confidential Information”;
b.

With respect to Confidential Information contained in a response to
an interrogatory, request for admission, or similar discovery
request, by imprinting the words “Confidential” next to or above any
response to a discovery request;

c.

With respect to transcribed testimony, by designating to opposing
counsel and the court reporter or other recorder during testimony
those portions of the testimony that are to be identified and sealed
in any transcript or record as “Confidential” and/or by giving written
notice to opposing counsel and the court reporter designating those
portions of the transcript or record that are “Confidential,” as
appropriate, no later than ten calendar days after receipt of the
transcribed testimony.

7.

All Confidential Information provided by either of the Parties 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; and

b.

It shall not be communicated or disclosed by counsel for either of
the Parties, or by the Parties themselves, in any manner, either
directly or indirectly, to anyone other than the Parties, their legal
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counsel, members of legal counsel’s staff, and the Court, under
seal as described in Paragraph 16. In addition, to the extent that
disclosure of Highly Confidential Information to a Party’s expert
witness is necessary to the work of the expert witness in this case,
the Highly Confidential Information may be disclosed to the expert
witness, but only after an Affidavit in the form of Exhibit A has been
signed by the recipient of the communication or disclosure.
8.

Where Highly Confidential Information is produced, provided or

otherwise disclosed by either of the Parties in response to any discovery request, it will
be designated in the following manner:
a.

With respect to Highly Confidential Information, by imprinting the
words “Highly Confidential” on the first and every page of any
document produced, or for information produced in electronic form,
by labeling the file, CD, or other medium of storage and transmittal
with the term “Highly Confidential Information”;

b.

With respect to Highly Confidential Information contained in a
response to an interrogatory, request for admission, or similar
discovery request, by imprinting the words “Highly Confidential”
next to or above any response to a discovery request;

c.

With respect to transcribed testimony, by designating to opposing
counsel and the court reporter or other recorder during testimony
those portions of the testimony that are to be identified and sealed
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in any transcript or record as “Highly Confidential” and/or by giving
written notice to opposing counsel and the court reporter
designating those portions of the transcript or record that are
“Highly Confidential,” as appropriate, no later than ten calendar
days after receipt of the transcribed testimony.
9.

All Highly Confidential Information provided by either of the Parties

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; and

b.

It shall not be communicated or disclosed by counsel for either of
the Parties, or by the Parties themselves, in any manner, either
directly or indirectly, to anyone other than the Parties, their’ legal
counsel, members of legal counsel’s staff, and the Court, under
seal as described in Paragraph 16, below. In addition, to the extent
that disclosure of Highly Confidential Information to a Party’s expert
witness is necessary to the work of the expert witness in this case,
the Highly Confidential Information may be disclosed to the expert
witness, but only after an Affidavit in the form of Exhibit A has been
signed by the recipient of the communication or disclosure.

10.

Individuals authorized to review Highly Confidential Information

pursuant to this Stipulated Protective Order shall hold such information in confidence
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and shall not divulge the Highly Confidential Information, either verbally or in writing, to
any other person, entity or government agency unless authorized to do so by court
order or as described in Paragraphs 7 and 9, and shall not use such information for any
purpose not necessary to the prosecution or defense of this case.
11.

Counsel for the non-designating Party shall be responsible for

assuring compliance with the terms of this Stipulated Protective Order with respect to
persons to whom Confidential Information or Highly Confidential Information is
disclosed, shall obtain and retain the original affidavits signed by qualified recipients of
Confidential Information or Highly Confidential Information, and shall maintain a list of all
persons to whom any Confidential Information or Highly Confidential Information is
disclosed and a description of the specific Confidential Information or Highly
Confidential Information disclosed to each such person.
12.

During the pendency of this action, a designating Party may, upon

court order or agreement of the Parties, inspect the list maintained by counsel for the
non-designating Party as described in Paragraph 11, upon a showing of substantial
need, in order to establish the source of an unauthorized disclosure of Confidential
Information or Highly Confidential Information. If counsel for the non-designating Party
disagrees with the designating Party's counsel’s showing of substantial need, then
counsel for the non-designating Party may seek an order requiring inspection under
terms and conditions deemed appropriate by the Court. Upon final resolution of this
action, counsel for the non-designating Party shall provide a copy of the list of

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disclosures to counsel for the designating Party and file a copy of the list under seal with
the Court.
13.

No copies of Confidential Information or Highly 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.
14.

During the pendency of this litigation, counsel shall retain custody

of Confidential Information or Highly Confidential Information, as well as any copies
made therefrom.
15.

If counsel for the non-designating Party objects to the designation

of certain information as Confidential Information or Highly Confidential Information, he
or she shall promptly inform the designating Party’s counsel in writing of the specific
grounds of objection to the designation. Designating counsel shall then within seven (7)
days provide in writing the specific grounds for having designated the information as
Highly Confidential Information. All counsel shall then, in good faith and on an informal
basis, attempt to resolve such dispute. If after such good faith attempt, counsel are
unable to resolve their dispute, the designating Party may move for a protective order to
maintain the Confidential Information or Highly Confidential status of the information.
Any motion for protective order shall be filed within fourteen (14) days of receipt by the
non-designating Party’s counsel of the designating counsel’s written grounds for the
designation of information as Confidential Information or Highly Confidential Information,
and the information shall continue to have Confidential Information or Highly

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Confidential Information status from the time it is produced until the ruling by the Court
on the motion.
16.

Any motion requesting leave to file or introduce documents under

seal shall comply with the requirements of D.C.COLO.LCivR 7.2 and 7.3 and
demonstrate that the Confidential Information or Highly 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)). Counsel for a Party submitting a motion to seal shall
not file Confidential Information or Highly Confidential Information or introduce it in a
court proceeding unless and until the Court grants the motion to seal. Submission of
any Confidential Information or Highly Confidential Information to the Court under seal
shall not otherwise relieve the Parties or their counsel of their obligations as described
in Paragraphs 5-10 above.
17.

The termination of this action shall not relieve counsel or other

persons obligated hereunder from their responsibility to maintain the confidentiality of
Confidential Information or Highly Confidential Information pursuant to this Stipulated
Protective Order, and the Court shall retain continuing jurisdiction to enforce the terms
of this Stipulated Protective Order.

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18.

By agreeing to the entry of this Stipulated Protective Order, the

Parties adopt no position as to the authenticity or admissibility of documents and/or
information produced subject to the Order.
19.

Within sixty (60) days of the termination of this litigation, including

any appeals, each Party’s counsel shall immediately return to the designating Party all
Confidential Information or Highly Confidential Information produced subject to this
Stipulated Protective Order, and all extracts, abstracts, charts, summaries, notes or
copies made therefrom. Counsel also shall provide the Court and the non-designating
Party with written verification that any of counsel's work product referencing Confidential
Information or Highly Confidential Information has been destroyed.
20.

Unless otherwise agreed to in writing by the Parties or ordered by the

Court, all proceedings involving or relating to documents or any other information shall
be subject to the provisions of this Stipulated Protective Order.
21.

The inadvertent or unintentional production of documents containing, or

other disclosure of, Confidential Information or Highly Confidential Information without
being designated as such at the time of the production or disclosure, shall not be
deemed a waiver in whole or in part of any Party’s claim of confidentiality, either as to
specific information discussed or as to any information relating thereto or on the same
or related subject matter. Documents unintentionally produced without designation as
Confidential Information or Highly Confidential Information may be retroactively
designated in the same manner and shall be treated appropriately from the date written

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notice of the designation is provided to the receiving Party. The production of
documents or other tangible things pursuant to a request for production shall not be
deemed a waiver of any right by the producing Party to object to admissibility of such
document at a later time.
Nothing in this Stipulated 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 or Highly Confidential Information shall be treated at trial.
This Stipulated Protective Order shall be binding upon any future Party(ies) to
this litigation.
DATED this 16th day of November, 2011.
BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge

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APPROVED:
s/Mark Berumen
__
Mark Berumen
BERUMEN LAW FIRM P.C.
1450 S. Havana, Suite 412
Aurora, CO 80012
Telephone: [phone]
Facsimile: 202.845.5358

s/ Christopher M. Leh
Christopher M. Leh
Kalisha Salome Chorba
LITTLER MENDELSON P.C.
1200 17th Street, Suite 1000
Denver, CO 80202-5835
Telephone: [phone]
Facsimile: 303.629.0200

ATTORNEY FOR PLAINTIFF
JODY ARAKAWA

ATTORNEYS FOR DEFENDANT
CARESTREAM HEALTH, INC.

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EXHIBIT A

STATE OF _______

)
) ss.
)

__________ COUNTY

___________________, swears or affirms and states under penalty of perjury:

1.

I have read the stipulated Stipulated Protective Order entered in JODY

ARAKAWA v. CARESTREAM HEALTH, INC., (Case No. 11-cv-00653-RPM), a copy of
which is attached to this Affidavit (the “Stipulated Protective Order”).
2.

I have been informed by ____________, Esq., counsel for ___________,

that the materials described in the list attached to this Affidavit are, as defined in the
Stipulated Protective Order as Highly Confidential Information.
3.
any

I promise that I have not and will not divulge, or undertake to divulge to

person

(including

but

not

limited

to

the

non-designating

Party

itself/himself/themselves) or recording device any Highly Confidential Information, as
the case may be, that is communicated or disclosed to me except as authorized in the
Stipulated Protective Order. I will not use the Highly Confidential Information for any
purpose other than this litigation and will otherwise comply with the terms of the
Stipulated Protective Order.

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4.

For the purposes of enforcing the terms of the Stipulated Protective Order,

I hereby submit myself to the personal jurisdiction of the court in the civil action
referenced above.
5.

I will abide by the terms of the Stipulated Protective Order in this case.

Executed this ___ day of _______, 20__

STATE OF _______
__________ COUNTY

)
) ss.
)

SUBSCRIBED AND SWORN TO before me this ____ day of ________ 20__, by
________________.
WITNESS MY HAND AND OFFICIAL SEAL.

Notary Public
My Commission Expires

_

__

Firmwide:104895417.1 057645.1008

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