Bolsa Resources, Inc. v. AGC Resource, Inc. et al

Filing 89

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 8/16/2011. (kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01293-MSK-KMT
BOLSA RESOURCES, INC., an Arizona corporation,
Plaintiff,
v.
AGC RESOURCE, INC., a Nevada corporation,
ALPACA RESOURCES, INC., an Ontario, Canada corporation,
INTERNATIONAL AMERICAN RESOURCE, INC., a Colorado corporation,
MARTIN RESOURCES, INC., a Colorado corporation,
SALZBURG HOLDINGS, LLC, a Colorado limited liability company,
DAVID STAFFORD JOHNSON, a Colorado resident,
STEPHEN B. DOPPLER, a Colorado resident,
FREDERIK W. WARNAARS, a Colorado resident,
ADAM SZWERAS, an Ontario, Canada resident,
YANNIS BANKS, an Ontario, Canada resident,
FOUNDATION MARKETS, INC., an Ontario, Canada corporation,
ARIZONA-ALPACA RESOURCE CORP., a Nevada corporation,
SOGC RESOURCE CORP., a Nevada corporation,
JNS MINERAL HOLDING CORP., a Nevada corporation, and
JEREMY GOLDMAN, an Ontario, Canada resident,
Defendants.
______________________________________________________________________
PROTECTIVE ORDER
______________________________________________________________________
Pursuant to the Stipulated Motion of the Plaintiff and Defendants (collectively, the
“Parties”), the Court hereby Orders as follows:
1. The “Litigation” shall mean the above-captioned case, Bolsa Resources,
Inc. v. AGC Resource, Inc. et al, Case No. 11-CV-01293-MSK-KMT, United States
District Court for the District of Colorado.
2. “Documents” or “information” shall mean and include any document
(whether in hard copy or electronic form), records, responses to discovery, tangible
articles or things, whether documentary or oral, and other information provided,
served, disclosed, filed, or produced, whether voluntarily or through discovery or
other means, in connection with this Litigation.
3. “Producing Party” shall mean any Party, person or entity who provides,
serves, discloses, files, or produces any nonpublic documents or information in
connection with this Litigation.
4. The Parties agree that, in conjunction with the discovery proceedings in
this Litigation, the Parties may designate any document, thing, material, testimony, or

other information derived therefrom (hereinafter collectively referred to as
“information”) as “CONFIDENTIAL” under the terms of this Confidentiality
Protective Order (hereinafter “Order”) which shall not be published to third parties
except as permitted by, and in accordance with, the provisions of this Order.
Confidential information is information which has not been made public and which
contains trade secret, proprietary, safety and/or sensitive business or personal
information.
5. CONFIDENTIAL documents shall be so designated by marking or
stamping copies of the document produced to a Party with the legend
“CONFIDENTIAL.” Marking or stamping the legend “CONFIDENTIAL” on the
cover of any multi-page document shall designate all pages of the document as
CONFIDENTIAL, unless otherwise indicated by the Producing Party.
6. Testimony taken at a deposition may be designated as CONFIDENTIAL
by any Party making a statement to that effect on the record at the deposition.
Deposition testimony directly related to a document previously marked
CONFIDENTIAL shall be automatically designated as confidential testimony.
Arrangements may be made with the court reporter taking and transcribing such
deposition to separately bind such portions of the transcript and deposition exhibits
containing information designated as CONFIDENTIAL, and to label such portions
appropriately. Counsel for the Parties may also agree that an entire deposition
transcript shall be designated CONFIDENTIAL. In the alternative, counsel for the
Parties may agree to designate a deposition or portions thereof as CONFIDENTIAL
within ten (10) days of receipt of the transcript.
7. CONFIDENTIAL information shall be maintained in strict confidence by
the Parties who receive such information, shall be used solely for the purposes of this
Litigation, and shall not be disclosed to any person except:
(a)
The United States District Court for the District of Colorado (the “Court”) and
persons assisting the Court or assisting in the Litigation process (including, but not limited to,
Court personnel, court reporters, stenographic reporters, videographers and electronic filing
personnel);
(b)
The attorneys of record in this Litigation and their co-shareholders, co-directors,
partners, employees, and associates who are assisting in the Litigation (collectively hereafter
referred to as “Outside Counsel”);
(c)
A Party, or an officer, director, employee or member of a Party, or officer,
director or member of a parent company, affiliate or subsidiary of a Party, deemed necessary by
counsel to aid in the prosecution, defense, and/or settlement of this Litigation;

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(d)
Subject to the terms of Paragraph 11 below, third party witnesses, including
former employees or members of the Parties, as may reasonably be necessary in preparation for
deposition, hearing or trial testimony;
(e)
Subject to the terms of Paragraph 11 below, experts or consultants and their staff,
and litigation support personnel and their staff, retained by the Parties and/or Outside Counsel in
this Litigation;
(f)
Support vendors or contractors retained by Outside Counsel for functions directly
related to this Litigation, such as copying, document management, and graphic design; and
(g)
Any other person, provided that the Receiving Party has given written notice to
the Producing Party of an intent to disclose specified CONFIDENTIAL information to said
person, who shall be identified by name, address, phone number and relationship, if any, to the
Receiving Party, and the Producing Party has not provided a written objection to the disclosure
within ten calendar days of delivery of the notification. Before any person may receive
disclosure pursuant to this subparagraph, he or she must comply with the requirements of
paragraph 11 below.
8. If a witness is providing or is provided CONFIDENTIAL information
during a deposition, counsel for the Producing Party may request that all persons
other than the witness and persons entitled by this Order to have access to the
CONFIDENTIAL information leave the deposition room during that portion of the
deposition. Failure of any person to comply with such a request will constitute
sufficient justification for the witness to refuse to answer the question, or for the
Producing Party to demand that CONFIDENTIAL information not be provided to the
witness, pending resolution of the issue.
9. All designations of information as CONFIDENTIAL by the Producing
Party must be made in good faith. All Parties reserve the right to challenge the
designation of information as CONFIDENTIAL. In the event of such a challenge,
the Challenging Party shall promptly inform counsel for the other parties in writing of
the specific grounds for the challenge, and counsel shall then, in good faith, on an
informal basis, attempt to resolve such dispute. If that attempt is not successful, the
Challenging Party may file, within 14 days of informing the Producing Party of the
Challenge, a motion to have such designation removed or modified, and the
Challenging Party shall have the burden of establishing the inappropriateness of the
CONFIDENTIAL designation. The information to which the challenge is directed
shall continue to have CONFIDENTIAL status until the Court rules otherwise on the
motion.
10. While protected by this Order, any information designated
CONFIDENTIAL shall be held in strict confidence by each person to whom it is
disclosed; shall be used solely for the purposes of this Litigation; and shall not be

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used for any other purpose, including, without limitation, any business or competitive
purpose.
11. With respect to outside experts and third parties, including third party
witnesses, to become an authorized expert or third party entitled to access to
CONFIDENTIAL information, the expert or individual must be provided with a copy
of this Order and must sign an affidavit in the form set forth as Exhibit A hereto,
acknowledging that he/she has carefully and completely read, understands, and agrees
to be bound by this Order. The affidavit shall be retained by the Party on whose
behalf such affidavit is signed.
12. Notwithstanding any other provision herein, nothing shall prevent a Party
from revealing CONFIDENTIAL information to a person who created or previously
received (as an addressee or by way of copy) such information.
13. The inadvertent production of any information without it being properly
marked or otherwise designated shall not be deemed to waive any claim of
confidentiality with respect to such information. If a Producing Party, through
inadvertence, produces any CONFIDENTIAL information without marking or
designating it as such in accordance with the provisions of this Order, the Producing
Party may, promptly on discovery, furnish a substitute copy properly marked along
with written notice to all Parties (or written notice alone as to non-documentary
information) that such information is deemed CONFIDENTIAL and should be
treated as such in accordance with the provisions of this Order. Each receiving
person must treat such information as CONFIDENTIAL in accordance with the
notice from the date such notice is received, subject to paragraph 9 above. Disclosure
of such CONFIDENTIAL information prior to the receipt of such notice, if known,
shall be reported to the Producing Party and shall not be deemed a violation of this
Order.
14. A copy of this Order shall be shown to each attorney acting as counsel for
a Party and to each person to whom CONFIDENTIAL information will be disclosed.
15. Nothing in this Order shall be construed as an admission or agreement that
any specific information is or is not CONFIDENTIAL, subject to discovery, relevant,
or admissible in evidence in any future proceeding.
16. If CONFIDENTIAL information is contained in any brief or other paper
to be filed in Court by a Party, the CONFIDENTIAL information will be redacted
from such brief or other paper and shall be appropriately marked and filed
electronically so as not to be available to anyone but the other parties or the Court, or
separately filed in a sealed envelope. The envelope shall set forth on its face the case
caption, the title of the paper, a notation that the paper is filed under seal, and the title
and date of the Court Order authorizing the paper to be filed under seal. Upon or
before tendering such CONFIDENTIAL information to the Court for filing, the Party
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shall file a motion with the Court to obtain leave to file it under seal. If such leave is
not obtained, then the Party desiring to file the CONFIDENTIAL information shall
confer in good faith with the Party or third party who originally produced the
CONFIDENTIAL information to determine how such information otherwise may be
provided to the Court. If the Court ultimately refuses to allow such information to be
filed under seal, then it may be filed not under seal but in such form and manner as
may honor, to the extent reasonably possible, the desire of the original Producing
Party to keep the information CONFIDENTIAL. In such case, any applicable filing
deadline will be deemed met by the filing of the motion for leave to file under seal
referred to above.
17. This Order shall not be construed to prevent any Party from making use of
or disclosing information that was lawfully obtained by a Party independent of
discovery in this Litigation, whether or not such material is also obtained through
discovery in this Litigation, or from using or disclosing its own CONFIDENTIAL
information as it deems appropriate.
18. If either Party becomes required by law, regulation, or order of a court or
governmental entity to disclose any CONFIDENTIAL information that has been
produced to it under the terms of this Order, such Party will reasonably notify the
other Parties, in writing, so that the original Producing Party has an opportunity to
prevent or restrict such disclosure.
The Party required to disclose any
CONFIDENTIAL information shall use commercially reasonable efforts to maintain
the confidentiality of such CONFIDENTIAL information and shall cooperate with
the Party that originally produced the information in its efforts to obtain a protective
order or other protection limiting disclosure; however, the Party required to disclose
the information shall not be required to seek a protective order or other protection
against disclosure in lieu of, or in the absence of, efforts by the Producing Party to do
so.
19. No Party shall object to the production of any CONFIDENTIAL
information sought by any other Party from any government agencies solely on the
grounds that such information is CONFIDENTIAL.
20. Upon termination of this Litigation, either by settlement or other action,
any Party and its counsel that obtained CONFIDENTIAL information through
discovery shall either destroy the CONFIDENTIAL information or return such
CONFIDENTIAL information to the Producing Party. Outside Counsel may retain
one copy of pleadings; motions; deposition transcripts; exhibits submitted with such
documents; and trial, hearing or other exhibits filed or otherwise submitted to the
Court that contain CONFIDENTIAL information solely for archival purposes and the
restrictions of this Order shall apply to Outside Counsel for as long as they hold such
archival documents. If a Party chooses to destroy information under this Order rather
than return such information to the Producing Party, the Party destroying the
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information shall inform the Producing Party’s attorney(s) of record in writing that
such CONFIDENTIAL information has been destroyed.
21. The obligation to treat all information designated as CONFIDENTIAL in
accordance with the terms of this Order and not to disclose such CONFIDENTIAL
information shall survive any settlement or other termination of this Litigation.
22. The inadvertent production of any information during discovery in this
action shall be without prejudice to any claim that such information is subject to the
attorney-client privilege or is protected from discovery as attorney work product. No
Party shall be held to have waived any rights by such inadvertent production. Upon
notification of inadvertent production, the receiving Party shall not use or divulge the
contents of such information unless subsequently agreed to by the Producing Party or
permitted by the Court. Any such inadvertently produced information shall be
returned by the receiving Party within three business days of any written request
therefore. The receiving Party retains the right to challenge the information as having
been inadvertently produced or, if inadvertently produced, as protected from
discovery on grounds of privilege or work product.
23. The Parties may seek modification of this Order by the Court at any time,
by stipulation or for good cause.
24. If on motion by a Party it is found by the Court that any party, or one or
more principals of a party, wrongfully discloses or makes use of Confidential
Information contrary to this Order, said party shall pay to the damaged party the
liquidated damage sum of $15,000 for each such disclosure or use as specifically
determined by the Court. Any such payment shall be made by the wrongfully
disclosing party within 30 days of the Court’s order finding wrongful disclosure or
use. “Disclosure” means the dissemination to third parties not covered by this Order
for financial gain or business advantage. Any Disclosures made in pursuit of a single
business or financial opportunity shall be treated as a single occurrence even if the
“occurrence” consists of disclosures to multiple individuals or entities or multiple
documents.

Dated this 16th day of August, 2011

_________________________
United States Magistrate Judge

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AFFIDAVIT

STATE OF ______________ )
)
COUNTY OF ___________ )

ss.

_____________________________________________, swears or affirms and states
under penalty of perjury:
1.
I have carefully and completely read and understand the terms of the Protective
Order in Bolsa Resources, Inc. v. AGC Resource, Inc. et al, Case No. 11-CV-01293-MSK-KMT,
United States District Court for the District of Colorado, a copy of which is attached to this
Affidavit.
2.
I promise that I 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 Confidentiality Protective Order. I will not use the CONFIDENTIAL information for any
purpose other than this litigation.
3.

I agree to be bound by the terms of the Protective Order.

4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.

______________________________
(Signature)
______________________________
(Print or Type Name)
Address:
______________________________
______________________________
Telephone No.: (___)____________
SUBSCRIBED AND SWORN to before me this _______ day of ______________, 2011
by _________________________________.
[Seal]

______________________________
Notary Public
My Commission Expires: ________

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