Mayhew v. ServiceSource Network et al

Filing 17

STIPULATED PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 8/16/2011. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00836-WYD-MEH
MARYBETH S. MAYHEW,
Plaintiff,
v.
SERVICESOURCE NETWORK, and
SERVICESOURCE, INC.,
Defendant.
______________________________________________________________________
STIPULATED PROTECTIVE ORDER
______________________________________________________________________
PURSUANT TO Fed. R. Civ. P. 26(c), with the consent of the parties before the
Court, and to protect the confidentiality of certain information and documents, IT IS
ORDERED:
1.

Confidential documents, materials and information that the parties

produce in this case shall not be used, copied, or disclosed by the parties or their
representatives for any purpose other than the litigation of this case, which includes
discovery, preparation for trial and trial of this action, including any appeals and
retrials.
2.

This Stipulated Protective Order shall apply to all documents,

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, whether obtained through
discovery, by subpoena or by any other means, that are designated as

“CONFIDENTIAL” by one or more parties. As used in this Stipulated Protective
Order, “document” is defined as provided in Fed. R. Civ. P. 34. A draft or nonidentical copy is a separate document within the meaning of this term.
3.

“CONFIDENTIAL” documents, materials and information include,

without limitation, all documents, answers to interrogatories, responses to requests
for admissions, appropriate portions thereof or other responses to discovery
requests, which, if disclosed, would compromise the legitimate privacy interests of
any party, or that constitutes a trade secret or other confidential research,
development, or commercial information, including but not limited to:
a. Financial documents and information, including without limitation financial
statements (audited and unaudited), income statements, loan applications or
agreements, tax returns and supporting documents, profit and loss
statements, balance sheets, general journals or ledgers, accounts payable
and accounts receivable reports, business contracts/referrals, business
records, work papers, supporting/backup documentation, accounting reports,
business and/or financial plans and strategies, production log print-outs,
sales projections and information, sales, profits, profit margins, prices,
financial status, customer or client identities, prospective or potential
customer identities, contact information, customer contracts or agreements,
customer records, customer and employee surveys, marketing or advertising
plans or strategies, sales plans or strategies, business plans or strategies,
or business surveys, data and information relating to business acquisitions,
mergers, sales and purchases, confidential research, development, financial

and commercial information, confidential personal and financial information,
management plans, contracts with employees or customers, marketing and
sales information, diaries, journals, day-timers and personal calendars,
revenue projections, and all other information of a business nature or
regarding the financial condition and work performed by or for a corporate
party’s business;
b. Documents and information pertaining to a party’s physical, psychological or
mental status, tests, treatment or health, including without limitation medical
records, charts, reports, personal health information protected under HIPAA,
progress notes, interview notes, discharge summaries, operative reports,
itemized billing statements, emergency room reports, records of
consultations, psychological/psychiatric evaluations and notes, x-rays and all
other imagery records and reports, laboratory test results, pathology tissue
reports, and all diagnostic studies, whether in electronic data or other format;
c. Documents and information pertaining to a party’s insurance policies;
d. Employee and personnel files and records, including without limitation
performance appraisals and evaluations and other records of job
performance, records of disciplinary actions, records of performance or merit
awards, records of employee warnings and discipline, records of employee
wages, salaries, and bonuses, résumés, job applications, job postings, job
descriptions and qualifications, job interview selection procedures and notes,
all internal policies and procedures of a corporate party (including employee
handbooks, personnel policies and guidelines, and codes of conduct),

personal information, background check information and reports, agency
charge exhibits and investigative information, and records that are required
by law to be maintained with regard to employees;
e. Records, minutes, agendas, memoranda, notes and other documents
relating to board meetings, board committee meetings, or staff meetings; and
Documents and information that the United States Air Force considers
Controlled Unclassified Information, or which requires a security clearance
of any kind.
4.

A party shall mark or designate as “CONFIDENTIAL” all information

and documents that are confidential or propriety and that the party, in good faith,
maintains that the documents and/or information constitute confidential information
(hereinafter collectively referred to as “Confidential Information”).
5.

Documents are designated as confidential by placing or affixing on

them (in a manner that will not interfere with their legibility) the word
“CONFIDENTIAL,” or by designating them as “CONFIDENTIAL” in correspondence
from counsel for the party making the designation.
6.

Documents designated “CONFIDENTIAL” in accordance with this

Stipulated Protective Order, and the information contained therein, shall be used
solely for the purposes of this case, and may not be used as a basis for any other
action, claim, or protest without first obtaining permission of this Court or the
designating party. Confidential Information shall not, without the consent of the
party designating it, or further order of the Court, be disclosed to anyone, except that
such information may be disclosed to:

a. Attorneys who are actively working on this case;
b. Persons regularly employed or associated with the attorneys actively working
on the case whose assistance is required by said attorneys in preparation for
trial, at trial, or at other proceedings in this case;
c. The parties;
d. Expert witnesses and consultants retained in connection with this case, to the
extent such disclosure is necessary for preparation, trial, or other
proceedings in this case;
e. The Court in this case and its employees (“court personnel”);
f. Stenographic reporters or videographers who are engaged in proceedings
necessarily incident to the conduct of this case;
g. Deponents;
h. Witnesses and potential witnesses;
i.

Other persons by written agreement of the parties;

j. The Confidential Information’s author, addressee, or anyone who received
the information prior to this case being filed; and
k. Any person who is the subject of the Confidential Information.
7.

Prior to disclosing any Confidential Information to any person listed

above (other than counsel, persons employed by counsel, court personnel,
stenographic reporters, videographers, and the parties), a party shall provide such
person with a copy of this Stipulated Protective Order and obtain from such person
a signed acknowledgement in the form set forth in Exhibit A, attached hereto, prior
to the receipt of any confidential documents or information, stating that he or she

has read this Stipulated Protective Order and agrees to be bound by its provisions.
All such acknowledgements shall be retained by counsel until the conclusion of this
litigation or as may otherwise be ordered by the Court. The Court may direct
disclosing counsel to produce any such acknowledgement at any time upon a
showing of good cause, and all such acknowledgments shall be subject to in camera
review by the Court, upon a showing of good cause. No person who has received
Confidential Information after signing an acknowledgement shall photocopy or
otherwise reproduce or retain any facsimile, summary, or synopsis of any
Confidential Information other than for use solely for the purposes of this litigation.
8.

Documents designated as “CONFIDENTIAL”, which are sought to be filed

with the Court, should be filed in accordance with D.C.COLO.LCivR 7.2 and copies
of the papers or documents, in sealed envelopes, shall be filed in accordance with
D.C.COLO.LCivR 10.1L.
9.

Confidential Information disclosed during a deposition may be

designated as “CONFIDENTIAL” and shall be subject to the provisions of this Stipulated
Protective Order.

Such designation shall be made on the record during the

deposition, whenever possible, but a party may designate all or any portion of a
deposition as “CONFIDENTIAL” after transcription, provided written notice of the
designation is given promptly to all counsel of record within thirty (30) days after
notice by the court reporter of the completion of the transcript.
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 Stipulated
Protective Order. If such a motion is filed timely, the disputed information shall be
treated as confidential 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 be treated as confidential in accordance
with this Stipulated 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.
11.

Within 120 days of the conclusion of this case, unless other

arrangements are agreed upon, each document and all copies thereof that have
been designated as “CONFIDENTIAL” shall be returned to the designating party, or the
parties may elect to destroy “CONFIDENTIAL” documents; provided, however, that
counsel for each party may retain one copy of the confidential documents for the
sole purpose of maintaining a complete file, and all such retained documents will not
be released, disclosed, or utilized except upon express permission of this Court after
written notice to counsel for the party that designated the documents. Where the
parties agree to destroy Confidential Information, the destroying party shall provide
all parties with an affidavit confirming the destruction.

12.

The inadvertent production by any party of any document subject to

attorney-client privilege or work product immunity, or the inadvertent failure to
designate a document as “CONFIDENTIAL”, will not be deemed to constitute a waiver
of such privilege, immunity, rights, or any other privilege, immunity, or rights that
would otherwise attach to such information. Any party receiving inadvertently
produced information will forthwith, upon request, return the original and all copies
to the party producing such information.
13.

This Stipulated Protective Order may be modified by the Court at any

time for good cause shown following notice to all parties and an opportunity for them
to be heard.
14.

Unless otherwise agreed, in writing, by the parties or ordered by the

Court, all proceedings in this case that relate to Confidential Information shall be
subject to the provisions of this Stipulated Protective Order.
15.

Nothing herein shall prevent disclosure beyond the terms of this

Stipulated Protective Order if: (a) the party designating Confidential Information
consents in writing to such disclosure; or (b) such disclosure is otherwise required
by a lawful subpoena or order issued by a court of competent jurisdiction; or (c) this
Court, after notice to all affected parties, orders or permits such disclosure.
16.

Nothing contained in this Stipulated Protective Order shall affect the

right of any party to make objections or other responses permitted by the Federal
Rules of Civil Procedure, the Local Rules of Practice for the United States District
Court for the District of Colorado, or the civil practice standards of the presiding
judicial officer to any request for production of documents, interrogatory, request for

admission, or question at a deposition, except matters of confidentiality which this
Stipulated Protective Order has addressed. Nothing in this Stipulated Protective
Order shall constitute a ruling on any such claim.
17.

This Stipulated Protective Order is entered pursuant to Fed. R. Civ. P.

26(c). The protections afforded pursuant to this Stipulated Protective Order are
continuing. No Confidential Information shall be disclosed in violation of this
Stipulated Protective Order either during or after this litigation.
Agreed and stipulated this 12th day of August, 2011.

s/ Jeremy Cave
Jeremy Brandon Cave, Esq.
C. Jaye Mills, Esq.
Cave & Mills, Inc.
13791 East Rice Place
Aurora, CO 80015
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

s/ Shella B. Neba
Matthew J. Rita, Esq.
Shella B. Neba, Esq.
Ford & Harrison LLP
1675 Broadway, Suite 2150
Denver, CO 80202-4679
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Attorneys for Plaintiff
Marybeth S. Mayhew

Attorneys for Defendant
ServiceSource, Inc.

ENTERED AND ORDERED this 16th day of August, 2011, in Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

EXHIBIT A
The following declaration is made pursuant to 28 U.S.C. § 1746.
I, ________________________________, declare under penalty of perjury pursuant
to the laws of the United States of America that I am over eighteen years of age, that I have
personal knowledge of the following facts and can testify to them, and that the following
facts are true:
1.

My current address and phone number are:
Address: ________________________________________________________
Phone Number: ________________________________

2.

My current employment (if employed) or business information is:
Employer Name (if employed): _______________________________________
Business Name: __________________________________________________
Address: ________________________________________________________
Phone Number: __________________________________

3.

My current occupation or job description is: ______________________________
________________________________________________________________.

4.
I have received a copy of the attached Stipulated Protective Order in this case
(Marybeth S. Mayhew v. ServiceSource, Inc., Civil Action No. 11-cv-00836-WYD-MEH),
entered by the U.S. District Court for the District of Colorado.
5.
I have carefully read and understand the provisions of the attached Stipulated
Protective Order, will comply with all of its provisions, will hold in confidence and not
disclose to anyone not qualified under the Stipulated Protective Order any Confidential
Information, including without limitation all information and documents that have been
designated or marked as “CONFIDENTIAL”, and I will return all Confidential Information,
and copies thereof, along with all reports, correspondence, documents or things which I
have prepared relating thereto, to counsel for the party by whom I have been retained,
contacted, or deposed.
Signature:

____________________________________

Print Name: ______________________________________

Denver:19966.1

Date: ______________