Wortham et al v. City and County of Denver, The et al

Filing 21

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 7/5/11. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00773-MSK-CBS
ASHFORD WORTHAM, and
CORNELIUS CAMPBELL,
Plaintiffs,
v.
THE CITY AND COUNTY OF DENVER,
Sergeant PERRY SPEELMAN, in his individual and official capacities,
Officer JESSE CAMPION, in his individual and official capacities, and
Officer TAB DAVIS, in his individual and official capacities,
Defendants.
______________________________________________________________________________
PROTECTIVE ORDER
______________________________________________________________________________
Each party and each Counsel of Record have stipulated and moved 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, therefore:
IT IS ORDERED:
1.

In this action, at least one of the Parties has sought and/or is seeking Confidential

Information (as defined in paragraph 2 below). The Parties also anticipate seeking additional
Confidential Information during discovery and that there will be questioning concerning
Confidential Information in the course of depositions. 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.

“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 there from – not made available to the public – and designated by
one of the Parties in the manner provided in paragraph 3 below as containing Confidential
Information. Confidential Information does not include oral communications about
Confidential Information by a Party’s counsel and counsel’s representatives.
3.

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. During the course of a deposition, by verbally designating testimony to be
“Confidential” and subject to the Protective Order; and
d. 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.
4.

Information designated as “Confidential” must first be reviewed by the attorney

for the designating party who must have a good faith belief that the information is
”Confidential” or otherwise entitled to protection under Fed. R. Civ. P. 26(c).
5.

All Confidential Information provided by a Party in response to a discovery

request or transcribed testimony shall be subject to the following restrictions:

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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 a Declaration pursuant to 28 U.S.C. section 1746 in the form of
Exhibit A has been signed. However, Party’s counsel and counsel’s
representative may make oral communications about Confidential Information
without a Declaration.
6.

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 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 retain the original Declarations signed by
qualified recipients of Confidential Information and 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 6 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

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source of the disclosure. If a Party disagrees with the other party’s showing of substantial need,
then a party 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 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.
10.

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. If such a motion is timely filed, the disputed information
shall be treated as Confidential Information 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 Information 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 Information.

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11.

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.
12.

The termination of this action shall not relieve counsel or any party 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, even after this action is terminated.
13.

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

to the authenticity or admissibility of documents 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.
14.

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

shall dispose of Confidential Information in accordance with their internal destruction policy.
In any event, all Confidential Information shall be destroyed no later than seven (7) years after
the termination of this litigation, including appeals.
15.

This Order shall also act as a qualified protective order pursuant to 45 C.F.R.

§ 164.512 (e) regarding any Party’s medical records..
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.

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DATED this 5th day of July, 2011.

BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
U.S. Magistrate Judge

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DECLARATION PURSUANT TO 28 U.S.C SECTION 1746

1.
I have read the Protective Order in Civil Action No. 11-cv-00773-MSK-CBS, a
copy of which is attached to this Declaration.
2.
I have been informed by ___________________________, Esq., counsel for
_______________________________, that the materials described in the list attached to this
Declaration 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.

I declare under penalty of perjury that the foregoing is true and correct. Executed on
____________________________
(date)
_________________________________________
(Signature)
_________________________________________
(Print or Type Name)
Address:
_________________________________________
_________________________________________
Telephone No.: (_____) _____________________

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