Leonhart v. ITT Systems Corporation

Filing 27

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 9/13/11. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01207-LTB-CBS

SARRA LEONHART,
Plaintiff,
v.
ITT SYSTEMS CORPORATION,
Defendant.
STIPULATED PROTECTIVE ORDER

The parties and/or non-parties may possess trade secrets and other confidential
business, personal and/or technical information, which may be required to be disclosed
during the course of this litigation. The parties wish to limit disclosure and prevent the
use of such information for purposes other than the prosecution and defense of this
action. Further, the parties wish to facilitate the exchange of documents in a manner
that will allow sharing of the documents with party representatives without disclosing
confidential information. Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure,
and the stipulation and agreement of the parties to give effect thereto, the following
terms of a protective order regarding confidential information are hereby Ordered:
PROTECTIVE ORDER
1. Confidential Information.

The Court retains discretion whether to afford

confidential treatment to any document or information contained in any document
submitted to the Court. “Confidential Information,” for purposes of this Order, is defined
SPRINGS\783913.2

EXHIBIT A

as non-public information that is treated by the proprietor thereof as confidential
information and that involves or relates to (a) trade secrets or competitively sensitive
proprietary information, or (b) other confidential technical business, operational, or
personal information of a party or a third person whose information the party is under a
duty to maintain in confidence, including, but not limited to, personnel information
concerning third parties, and information concerning the employment or employment
history of some of Defendant’s current or former employees. “Confidential Information”
shall include all covered information in any form including documents and things
incorporating or reflecting Confidential Information including copies, summaries,
abstracts, notes, derivatives, electronic information, photographs, negatives, blow-ups,
exhibits, and similar things.

No item shall qualify to be protected as Confidential

Information after it has been disclosed in a printed publication or other public medium
available to the public or trade by reason of dissemination by one having the right to do
so, or is generally known throughout the trade and public, or is or comes to be known to
the receiving party through means not constituting breach of any proprietary or
confidential relationship or obligation or breach of this Order. However, until such time
as the Court rules on declassification pursuant to Paragraph 2, below, the designation
of Confidential Information as CONFIDENTIAL in accordance with Paragraph 3, below,
shall be honored by all persons receiving such information in accordance with this
Order.
2. Declassification. The restrictions upon and obligations accruing to persons
who become subject to this Order shall not apply to any information produced in
accordance with Paragraph 3, below, as to which the Count rules, or the parties agree,
is not to be treated as Confidential Information, as defined in Paragraph 1.

SPRINGS\783913.2

2

3. Designations. Any information produced, orally or written, in this litigation at
any time, either voluntarily or pursuant to court order, that is asserted in good faith by
the producing party or non-party to contain or constitute Confidential Information shall
be so designated by such producing party or non-party, as follows:
a.

A producing party or non-party, prior to or coincident with supplying

copies of documents and things requested by the inspecting party, shall designate such
copies as containing Confidential Information by clearly and prominently marking on
their face, including each designated page of a multi-page document, the legend
CONFIDENTIAL;
b.

If contained in a written response to a discovery request, such as

an interrogatory, the written response shall be designated CONFIDENTIAL;
c.

If Confidential Information is contained in deposition, hearing, or

other testimony, the transcript or portions thereof may be designated as containing
Confidential Information in accordance with this Order by so notifying the other parties
on the record, at the time of the testimony, or by notifying the other parties in writing,
within 30 days after receipt of the transcript by the producing party or non-party, of the
specific pages and lines of the transcript that contain such Confidential Information.
4. Submission to Court.

All transcripts (of hearings, depositions, or other

testimony), exhibits (including demonstrative exhibits), pleadings, discovery responses,
and documents or things marked CONFIDENTIAL that are filed with, or submitted to the
Court prior to trial, and any pleadings, memoranda, exhibits (including demonstrative
exhibits), affidavits, letters, documents, or things filed with, or submitted to the Court
prior to trial, or the confidential portions thereof, that reproduce, partially reproduce, or
paraphrase, information that has been designated CONFIDENTIAL shall be filed in

SPRINGS\783913.2

3

accordance with court procedures for filing under seal, along with an appropriate
motion, and shall not be available for public inspection pending the Court’s ruling on the
motion to file under seal.

Envelopes used to seal such documents shall carry the

caption, the above designation and any other notation required by the Court for
designation of confidential materials.
5. Restrictions on Disclosure of Confidential Documents.

Except with prior

written consent of the party producing the Confidential Information, and except as
provided elsewhere in this Order and subject to Paragraph 8, documents designated
CONFIDENTIAL under this Order and all information contained in them or derived from
them, may not be disclosed to any person other than:
a.

The parties, inside counsel, outside counsel for the parties, and the

partners, associates, and employees of such attorneys’ law firms or legal departments
who are working on this litigation;
b.

Secretaries, paralegal assistants, and all other employees of such

counsel who are assisting in the prosecution and/or defense of this lawsuit;
c.

Actual or potential deponents or witnesses in this action, if such

person had prior lawful access to such information;
d.

Outside consultants and experts retained for the purpose of

assisting counsel and the parties in the prosecution and/or defense of this lawsuit;
e.

Authors, addressees, and recipients of particular Confidential

Information solely to the extent that the disclosing party believes in good faith that the
person has previously had lawful access to the particular information disclosed or to be
disclosed;

SPRINGS\783913.2

4

f.

Persons whom counsel for the parties believe in good faith to have,

or have had, prior access to the particular Confidential Information, or who have been
participants in a communication that is the subject of the particular Confidential
Information and from whom verification of or other information about that access or
participation is sought, solely to the extent of disclosing such information to which they
have or may have had access or that is the subject of the communication in which they
have or may have participated; provided that, unless and until counsel confirms that any
such persons have or have had access or were participants, only as much of the
information may be disclosed as may be necessary to confirm the person’s access or
participation; and,
g.

The Court and its employees, the triers of fact, court reporters

transcribing testimony and notarizing officers.
“Disclosure” is intended to be interpreted broadly, and means copying (including
handwritten copies), exhibiting, showing, communicating, describing, allowing access
to, or otherwise releasing to any person the documents subject to this order or any or
these documents content, except as expressly authorized by this Order.
6. Further Restrictions on Access.

Confidential Information produced in

accordance with the provisions of Paragraphs 3 and 5, above, shall not be made
available to any person under Paragraph 5, above, unless he or she shall have first
executed an Undertaking in the form of Appendix 1 to this Order, except that a partner
of a law firm representing a party, upon notifying all attorneys and employees of the firm
working on this litigation of the terms of this Order, may sign a single Undertaking on
behalf of the firm and its employees.

SPRINGS\783913.2

Counsel for each party shall maintain a file

5

containing the original Undertakings executed by each individual from whom counsel
obtained such an Undertaking.
7. Use of Confidential Information.

All Confidential Information produced in

accordance with the provisions above shall be utilized solely and exclusively for
purposes of this action, including any appeals. Confidential Information may not be
used in connection with any other litigation, actual or contemplated, or for any other
purpose whatsoever, absent agreement by the parties or an order of this Court or of a
Court having jurisdiction over the producing party or person. Use for purposes of this
litigation shall include use in testimony and as exhibits at trial, in connection with
motions, depositions, witness preparation, and counsel pretrial investigations, subject to
the restrictions of this Order. A party or person may use his, her, or its own designated
Confidential Information for any purpose whatsoever.
8. Disputes as to Designations.
a.

Compliance with D.C. COLO. LCIVR 7.1(A). If a party to this Order

who receives any Confidential Information disagrees with respect to its designation as
Confidential Information, in full or in part, that party shall not file a Motion asking the
Court

to

resolve

the

dispute

without

first

satisfying

the

requirements

of

D.C.COLO.LCivR 7.1(A), which requires the moving party to certify that it “has
conferred or made reasonable good-faith efforts to confer with opposing counsel or a
pro se party to resolve the disputed matter.” More specifically, the party questioning the
validity of the opposing party’s designation of information as CONFIDENTIAL shall
notify the producing party or third person in writing, and they will thereupon confer as to
the designation and/or status of the subject information proffered within the context of
this Order, and in so conferring shall consider withdrawing all or part of the designation

SPRINGS\783913.2

6

or the practicality of redacting the confidential parts of such information. If the recipient
and producing party or non-party are unable to agree upon the designation and/or
status of the subject information, the parties shall schedule a telephone conference call
with Magistrate Judge Shaffer, at which Magistrate Judge Shaffer will mediate the
discovery dispute.

Only if mediation proves unsuccessful may the party disputing the

designation of information as Confidential Information raise the issue of the designation
or status for the Court, which shall consider the issue. The information shall remain
confidential in the manner designated unless and until the Court rules to the contrary.
In any disagreement over the designation of Confidential Information, the designating
party bears the burden of showing that the designated information is Confidential
Information within the scope of this Order. No party to this action shall be obligated to
challenge the propriety of any designation, and a failure to do so shall not preclude a
subsequent challenge on the propriety of such designation and shall not constitute an
admission that any information is in fact confidential.
b.

Deadlines.

Any motion directed to challenging the designation of

information as Confidential information shall be filed no later than 30 days before the
deadline for discovery.
9. No Waiver. Nothing in this Order or otherwise shall constitute a waiver of the
right of any party to object at trial as to the authenticity, competency, relevance or
admissibility of any information, or to the fact that any Confidential Information has been
so designated; nor shall this Order constitute a waiver of any party’s right to file a
motion in limine to preclude the trier of fact from being advised of such designation
during trial; nor shall this Order, or actions taken or not taken pursuant to it, constitute
an admission that materials designated as CONFIDENTIAL are or contain Confidential
Information as that term is defined in Paragraph 1 above.

SPRINGS\783913.2

7

10. Modification. The parties may, by stipulation, provide for exceptions to this
Order and any party may seek an order of this Court seeking relief from or otherwise
modifying or furthering this Protective Order upon good cause shown.
11. Deposition Transcripts. A copy of this Order (or, in lieu thereof, an oral
explanation, on the record, of its terms by counsel present at the deposition) shall be
presented to the court reporter upon the taking of any deposition in this action at or prior
to the time when any question is propounded involving Confidential Information.
Portions of the original deposition transcript designated as Confidential shall be
separately bound by the reporter, marked as provided in Paragraph 3 and on the first
page with the title of the Court and the title of the case and shall be delivered to the
attorneys representing the parties and deponent at the deposition. The failure of a court
reporter to comply with this provision shall not eliminate any previous designations of
testimony as Confidential Information made in accordance with this order. Designated
portions of copies of the deposition transcript shall be treated as Confidential
Information as provided by this Order. If deposition testimony requires the disclosure of
Confidential Information of a party, that portion of the deposition will be closed to all
persons except the deponent and those persons authorized to have access, the court
reporter, and the persons designated in Paragraph 5 of this Order as applicable to the
designated level of confidentiality.
12. Survival. This order shall survive the final termination of this action with
respect to any Confidential Information. Within thirty (30) days of termination of this
litigation, at the election of the producing party or non-party, the originals and all copies
of Confidential Information shall be destroyed with certification of such destruction
provided to counsel for the producing party or shall be returned to the counsel for the
party or non-party that produced such Confidential Information, except that counsel

SPRINGS\783913.2

8

shall be entitled to retain all pleadings, depositions, and discovery responses, as well as
exhibits thereto and work product containing such information. This Court shall retain
jurisdiction over this Order, the foregoing stipulation, and the parties hereto for the
purposes of enforcing this Order adjudicating claims of breaches thereof, and
administering damages and other remedies related to any breach of this Order.
13. Inadvertent Disclosures. Any item or information inadvertently furnished by
the producing party or non-party during the course of this litigation without a designation
of confidentiality may nevertheless subsequently be designated as Confidential
Information under this Order, but only under the conditions that counsel for the receiving
party (a) subsequently receive written notice from the producing party or non-party of
the inadvertence and the request to thereafter treat such information as Confidential,
and (b) has a reasonable opportunity to advise others to whom such information had
already been disclosed that such information should thereafter be so treated.

The

parties recognize there can be no retroactive treatment of a document as Confidential.
14. Violation. Any person executing or bound by an Undertaking in the form of
Appendix 1 to this Order shall promptly advise counsel representing the party by whom
they are employed or on whose behalf they have been retained if such person learns of
a violation of this Order. It is the responsibility of counsel who has been informed of a
violation of this Order to inform counsel for all other parties or third parties of such
violation. In addition, the person learning of a violation and counsel notified by that
person shall have a duty to take immediate action to mitigate and remedy any such
violation to the extent possible. Compliance with this specific provision will not exempt
any person, counsel, or party from sanction by the Court as a result of any violation of
this Order.

SPRINGS\783913.2

9

15.

Trial.

Prior to a public trial of this action, the parties may apply to the Court for

protection of Confidential Information at the trial. This Order does not prohibit the introduction of
Confidential Information at trial.
DATED at Denver, Colorado, this 13th day of September, 2011.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

APPROVED: September 1, 2011.
NORA V. KELLY, P.C.

SHERMAN & HOWARD L.L.C.

s/ Nora V. Kelly
Nora V. Kelly
1675 Broadway, Suite 2450
Denver, CO 80202
[phone]
[e-mail]

s/ Glenn H. Schlabs
Glenn H. Schlabs
90 South Cascade Avenue, Suite 1500
Colorado Springs, Colorado 80903
[phone]
[e-mail]

Counsel for Plaintiff

Elizabeth B. Chilcoat
633 Seventeenth St., Suite 3000
Denver, Colorado 80202
[phone]
[e-mail]
Counsel for Defendant

10

APPENDIX 1
I, _________________________, have read or been advised of the terms of the
Protective Order dated [DATE] that has been entered in the case captioned SARRA
LEONHART, Plaintiff v. ITT SYSTEMS CORPORATION, Civil Action No. 11-cv-01207LTB-CBS.
In

consideration

of

the

disclosure

to

me

of

information

designated

CONFIDENTIAL, as defined in the Protective Order, I agree to be bound by the terms of
the Protective Order.
I agree not to disclose or use any CONFIDENTIAL information disclosed to me
for purposes other than those permitted under the Protective Order.
I consent to the jurisdiction of the United States District Court, District of
Colorado, for the purposes of enforcement of the Protective Order.

______________________________
[Name]
[Address]

SPRINGS\783913.2

11