Green et al v. Drake Beam Morin, Inc.
Filing
37
PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 8/29/11. (cbssec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01063-REB-CBS
JOHN GREEN and ELIZABETH ENRIGHT,
individually and on behalf of others similarly situated,
Plaintiffs,
v.
DRAKE BEAM MORIN, INC.,
Defendant.
STIPULATED PROTECTIVE ORDER
This matter comes before the Court on the parties’ Stipulated Motion for Entry of
Protective Order. The Court has reviewed that Motion and finds it meritorious and
acceptable. Therefore, IT IS ORDERED:
1.
DEFINITIONS
(a)
“Confidential Information” means and includes any information,
testimony, document or thing that contains confidential or proprietary information,
including, but not limited to, medical records or other “protected health information”
within the meaning of the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”) and its implementing regulations; information about Defendant’s customers,
vendors, employees, applicants for employment, information systems, and operations;
and financial information, including, but not limited to, tax returns, financial statements,
bank records and billing records, that was not previously available to the opposing party
and is produced in this action. Confidential Information may include, without limitation,
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information and documents produced pursuant to Rule 26, F.R.C.P; testimony adduced
at depositions upon oral examination pursuant to Rule 30, F.R.C.P.; written responses
to interrogatories pursuant to Rule 33, F.R.C.P.; documents produced pursuant to
Rule 34, F.R.C.P.; answers to requests for admission pursuant to Rule 36, F.R.C.P.;
and testimony, documents and things provided pursuant to Rule 45, F.R.C.P.
Confidential Information also may include confidential information owned by a third
party, so long as such information otherwise qualifies as Confidential Information
hereunder.
(b)
“Providing Party” means any party to this action or any third party,
expert or consultant who produces or provides any information, testimony, document or
thing pursuant to formal or informal discovery in this action.
(c)
“Receiving Party” means any party to this action or any third party,
expert or consultant who receives any information, testimony, document or thing in the
course of formal or informal discovery in this action.
(d)
“Counsel” means a party’s attorney of record if the party is
represented, or a party itself if the party is unrepresented.
2.
DESIGNATION OF CONFIDENTIAL INFORMATION
(a)
Documents and things. Each Providing Party shall label, mark or
otherwise identify, in writing, information, documents and things that their counsel
considers in good faith to contain Confidential Information or to be otherwise entitled to
protection under Rule 26(c), F.R.C.P., or other applicable law, with the legend
“Confidential – Subject to Protective Order.”
Before designating any information,
documents or things as Confidential Information, a party’s counsel must review the
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information and determine that the designation is based on the counsel’s good faith
belief that the information is confidential or otherwise entitled to protection under Fed. R.
Civ. P. 26(c)(1).
(b)
Depositions. During or after depositions upon oral examination, if
counsel for any party believes that a question or answer of any deponent (whether
party, third-party, expert or otherwise) constitutes Confidential Information, counsel shall
request that the specific pages that include such Confidential Information be included in
a separate sealed portion of the transcript. The reporter shall include on the cover page
of each sealed portion the legend: “This transcript portion contains information subject
to a Protective Order and shall be used only in accordance therewith.” When testimony
designated as Confidential Information is being given during a deposition, all persons
except those who are entitled to receive such Confidential Information under the terms
of this Order shall be excluded from the deposition room.
(c)
Inadvertent failure to designate.
Any Providing Party who
inadvertently fails to designate any information, testimony, document or thing as
Confidential Information may correct such failure by giving written notice of the same to
the Receiving Parties. Upon such written notification, the corrected materials shall only
be deemed Confidential Information prospectively. Substitute copies of the corrected
information, testimony, document or thing, appropriately marked “Confidential –
Subject to Protective Order,” shall be given to all Receiving Parties as soon as they
become available.
Within ten (10) days of receipt of the substitute copies, the
Receiving Parties shall either return the previously unmarked items to the Providing
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Party, or destroy such items and notify counsel for the Providing Party of such
destruction.
3.
DESIGNATED
MATERIALS
PRESUMED
CONFIDENTIAL.
All
information, testimony, documents and things designated by a Providing Party as
Confidential Information shall be treated in all respects as though they in fact constitute
or contain confidential information, unless and until the Court rules otherwise or the
Providing Party agrees otherwise.
4.
RESTRICTIONS ON DISCLOSURE AND ACCESS.
(a)
Except as provided below, all Receiving Parties with respect to any
particular Confidential Information shall take reasonable steps to ensure that no persons
obtain such Confidential Information and that no persons have access to such
Confidential Information, except:
(i)
The named Plaintiffs and Defendant, including employees of
Defendant who have a specific need to know the Confidential Information in order to
conduct this action;
(ii)
The attorneys of record for any party, and all other attorneys
and support personnel in the law firms of record in this action who must have access to
the Confidential Information in connection with this action;
(iii)
The Court and those employed by the Court, in which event
such information shall be filed under seal (and kept under seal until further order of the
Court);
(iv)
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Court reporters employed by any party in this action; and
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(v)
Independent
experts,
including
non-testifying
experts,
consultants, or translators for the parties, including their support personnel, whose
advice and consultation are being used or will be used by such party in connection with
this action.
(b)
In addition to the above, a Receiving Party may disclose
Confidential Information to an opt-in plaintiff or a non-party if such individual is referred
to or referenced in the Confidential Information, or counsel in good faith believes such
individual may have knowledge of relevant facts, or of facts that may lead to the
discovery of admissible evidence, relating to the Confidential Information, or if such
individual will be a witness at trial in this matter and disclosure of Confidential
Information is necessary for preparation and completeness of that person’s testimony.
(c)
Counsel for a party disclosing or allowing access to Confidential
Information under this paragraph shall advise the person receiving such Confidential
Information (other than the persons identified in Paragraph 4(a)(iii)) of the terms of this
Protective Order.
Before disclosing any Confidential Information to any person
identified in Paragraph 4(a)(iv) or (v), or Paragraph 4(b), counsel for the party disclosing
or allowing access to such Confidential Information shall, in addition to advising the
person receiving such Confidential Information of the terms of this Protective Order,
provide the person with a copy of this Protective Order and shall obtain the person’s
written acknowledgement, in the form attached hereto as Exhibit A, to abide by the
terms of this Protective Order.
(d)
This Protective Order shall not be deemed to limit or restrict any
Providing Party's disclosure or use of its own Confidential Information.
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5.
RESTRICTIONS ON USE. The parties have stipulated that every person
who obtains Confidential Information is prohibited from using or disclosing Confidential
Information for any purpose whatsoever, except as necessary to assist in the conduct of
this litigation.
6.
RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION AT
CONCLUSION OF LITIGATION. The parties agree and stipulate that they will either
return to the Providing Party or destroy any and all Confidential Information upon the
conclusion of this litigation or any appeal, including any paper or electronic copies of
such documents.
7.
OBJECTIONS PRESERVED.
Nothing in this Protective Order shall
require the disclosure of information, testimony, documents or things that are otherwise
not subject to discovery, are privileged or constitute attorney work product. Nothing in
this Protective Order shall prejudice any objections that any party might have regarding
the production of any information, testimony, documents or things.
Nothing in this
Protective Order shall be construed as an agreement that any Confidential Information
shall be excluded from evidence in this action.
8.
MECHANISM FOR CHALLENGING DESIGNATION.
Any 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 Information to file an
appropriate motion requesting that the Court determine whether the disputed
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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 Information 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
Information shall bear the burden of establishing that good cause exists for the disputed
information to be treated as Confidential Information. In addition, any party, and any
third party with a legally cognizable interest in this Protective Order, may apply to the
Court at any time for a modification of this Protective Order for good cause shown. Any
person may move the Court for additional protective orders with respect to any
information, testimony, document or thing, in accordance with Rule 26 of the Federal
Rules of Civil Procedure.
9.
PARTIES’ CLAIMS AND DEFENSES. Neither a party’s designation of
documents or testimony as confidential under this Protective Order nor a party’s failure
to make or object to such designation shall be admissible in evidence, as a party
admission or otherwise, to prove any fact relevant to any claim or defense asserted in
this action.
10.
SURVIVAL. The restrictions on use of Confidential Information set forth in
this Protective Order shall survive the conclusion of this litigation.
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DATED at Denver, Colorado, this 29th day of AugustAugust, 2011.
BY THE COURT:
s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge
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ACKNOWLEDGMENT
I hereby acknowledge that I have been advised of the terms of the Protective
Order entered in John Green and Elizabeth Enright, individually and on behalf of others
similarly situated, v. Drake Beam Morin, Inc., Civil Action No. 11-cv-01063-REB-CBS
pending in the United States District Court for the District of Colorado, have been
provided with a copy of said Protective Order, have read and understand said Protective
Order, agree to be bound by and to comply with the terms of said Protective Order, and
agree to submit to the jurisdiction of the United States District Court for the District of
Colorado for the purpose of enforcement of said Protective Order.
Dated: _______________________________
_____________________________________
Printed Name:__________________________
Relationship to Lawsuit:__________________
Address:______________________________
_____________________________________
_____________________________________
Telephone:____________________________
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