Romero v. Dayton-Hudson Corporation

Filing 22

STIPULATED PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 11/22/11. (jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01362-WYD-MEH
FLORENCE M. ROMERO,
Plaintiff,
v.
DAYTON-HUDSON CORPORATION, a Minnesota corporation, a/k/a TARGET
CORPORATION, a/k/a TARGET STORES,
Defendant.

STIPULATED PROTECTIVE ORDER

IT IS HEREBY STIPULATED AND AGREED, by the undersigned attorneys for the
respective parties, with regard to material(s) disclosed in the course of the above-captioned lawsuit
(“Lawsuit”) which constitute or contain medical records, financial records, employment records,
social security numbers, military records, educational records, proprietary information, trade secrets
or other confidential research, development or commercial information of the parties, including but
not limited to information regarding the placement and viewing angles and directions of Target’s
security cameras,

and the information contained in said records (“CONFIDENTIAL

INFORMATION”), the parties will follow the procedures set forth in this Stipulated Protective
Order (“Protective Order”) with respect to disclosure of information, documents or things in this
Lawsuit, as follows:
1.

Confidential Information.
a)

As used in this Protective Order, “CONFIDENTIAL” or “CONFIDENTIAL

INFORMATION” shall mean any information, document, or thing that a party (the “Designating

Party”) furnishes in this Lawsuit and in good faith designates as CONFIDENTIAL INFORMATION
pursuant to Sections 1(b) - 1(d) below. Additionally, as used in this Protective Order, "document"
is defined as provided in Fed. R. Civ. P. 34(a). A draft or non-identical copy is a separate document
within the meaning of this term.
b)

A party may designate its disclosures, answers to interrogatories, responses to

requests for admissions, any documents produced in response to a request for production of
documents, subpoena duces tecum, or otherwise, or any other information provided by it as
CONFIDENTIAL INFORMATION by stamping the word “CONFIDENTIAL” upon the first page
of the document, taking care to avoid obscuring any text, before providing it to the opposing party.
Information marked CONFIDENTIAL shall not be utilized or disclosed by a receiving party (the
“Recipient Party”), its agents, or its employees, except in accordance with the terms of this
Protective Order.
c)

In the case of CONFIDENTIAL INFORMATION in a non-paper medium, e.g., video

or audio tape, computer discs, CD-ROMs, DVDs, etc., a party may designate all information therein
as CONFIDENTIAL by affixing a label stating the same to the outside of the medium, such as the
CD-ROM or DVD, or container.
d)

To designate a portion of a deposition transcript as CONFIDENTIAL, a Designating

Party may either make a statement on the record to that effect or must, within thirty (30) days after
the deposition transcript is delivered to the Designated Party, provide to all counsel written notice
identifying the specific pages and lines of testimony of the deposition transcript that counsel for the
Designating Party in good faith believes to contain CONFIDENTIAL INFORMATION. All
deposition transcripts shall be treated as CONFIDENTIAL INFORMATION until the expiration of
the thirty-day period. The portions so designated shall not be utilized or disclosed by the other

party, its agents, or its employees, except in accordance with the terms of this Protective Order. All
parties shall mark their copies of the transcript by stamping the word “CONFIDENTIAL” upon
every page so designated.
e)

Documents, testimony, evidence, and other matters shall not be deemed

CONFIDENTIAL INFORMATION if the substance of the documents, testimony, evidence, or
matter:
i.)

does not constitute medical records or information, financial records or

information, employment records or information, social security numbers, military or educational
records or information;
ii.)

does not constitute proprietary information, a trade secret or other confidential

research, development, or commercial information, as defined or described by Fed. R. Civ. P.
26(c)(7);
iii.)

is, at the time of disclosure by the Designating Party, already in the possession

of the Recipient Party, was obtained by legal means and not in violation of any Protective Order
protecting such document or information, and was not acquired from the Designating Party; or
iv.)

has been made available to the Recipient Party, other than through the

discovery process, by a third party who obtained the same by legal means without any obligation
of confidence to the Designating Party.
f)

CONFIDENTIAL INFORMATION shall not be disclosed to any person other than:
i.)

the attorneys for the Recipient Party in this Lawsuit, paralegal and clerical

staff who are assisting in the Lawsuit;
ii.)

the Recipient Party and officers, directors, and/or employees of the Recipient

Party who have direct responsibility for assisting such counsel in the preparation and trial of the

action;
iii.)

court reporters, court officials, and the jury involved in this Lawsuit;

iv.)

experts, consultants and investigators and their staff who are retained by a

party for purposes of relating to this Lawsuit and who have executed a Confidentiality Agreement
in the form attached as Exhibit A; and
v.)

any other non-party witnesses or deponents who have executed a

Confidentiality Agreement in the form attached as Exhibit A, or deponents who agree on the record
to maintain the confidentiality of the material.
CONFIDENTIAL INFORMATION received by any of the persons in the categories
listed above shall be used only for purposes of this Lawsuit and for no other purposes, including for
any other Lawsuit, whether on the same issues in this case or others, or for any business or personal
purpose. Nothing in this Protective Order shall prevent the Designating Party from any use of its
own confidential documents. CONFIDENTIAL INFORMATION may not be disclosed to the
persons described in category (iv) and (v), above, unless the disclosing party determines in good
faith that the disclosure is necessary for the purpose of developing testimony of such witness or
deponent. CONFIDENTIAL INFORMATION provided to a receiving party shall be securely
maintained in the offices of that party’s counsel. Any recipient of CONFIDENTIAL
INFORMATION shall sign a non-disclosure statement in the form attached hereto as Exhibit “A”,
and shall maintain such information in a secure and safe area carefully delineated and designated
confidential, and the recipient shall exercise due and proper care with respect to the storage, custody,
access and use of all such information. In addition, any summary or copy of CONFIDENTIAL
INFORMATION shall be subject to the terms of this Protective Order to the same extent as the
information or document of which summary or copy is made, and must be clearly labeled as

containing CONFIDENTIAL INFORMATION.
g)

CONFIDENTIAL INFORMATION may be copied or reproduced only to the extent

reasonably necessary for the conduct of this Lawsuit. All such copies or reproductions shall be
subject to the terms of this Protective Order.
h)

If the Court orders that access to or dissemination of CONFIDENTIAL

INFORMATION shall be made to persons not included in paragraph 1(f) above, such
CONFIDENTIAL INFORMATION shall be accessible to, or disseminated to, such person after they
have executed a Protective Order in the form attached as Exhibit A, unless the Court rules otherwise.
2.

Non-Waiver.

This Protective Order shall not be deemed a waiver of:
a)

any party’s right to object to discovery on the basis that additional protection is

required with respect to specific discovery, or from seeking and obtaining, on appropriate showing,
additional protection with respect to the confidentiality of documents or other discovery material
or relief from this Protective Order with respect to particular material designated hereunder or herein
as confidential, or from providing by stipulation exceptions to this Order;
b)

any party’s right to seek an order compelling discovery with respect to any discovery

request; or
c)

any party’s right at any proceeding herein to object to the relevance, admissibility or

discoverability of any evidence on any ground or to seek further orders setting the conditions under
which any such evidence may be received into evidence.
d)

Protected documents or things, if otherwise admissible and properly disclosed, may be

marked and used as trial exhibits by either party, subject to the terms and conditions, if any, as imposed
by the court.

e)

The plaintiff’s production of confidential material pursuant to this protective order or

by the utilization of release authorizations executed by the plaintiff shall not be interpreted as a waiver
of privacy or confidentiality of the material or information produced by the plaintiff in this case.
3.

Use in Depositions.
Material designated as CONFIDENTIAL may be used at a deposition if (a) counsel for the

party using such material advises the witness of the terms of this Protective Order and the witness
agrees on the record to maintain the confidentiality of the material; or (b) the witness executes the
Confidentiality Agreement in the form of Exhibit A. If the witness declines to execute the
Confidentiality Agreement or otherwise maintain the confidentiality of the material, the party
seeking to use such CONFIDENTIAL INFORMATION must obtain agreement of Designating Party
or leave from the Court before disclosing the material to the witness.
Whenever a deposition involves the disclosure of CONFIDENTIAL information, the
deposition or portions thereof shall be designated as CONFIDENTIAL and shall be subject to the
provisions of this Protective Order. Such designation shall be made on the record during the
deposition whenever possible, but a party may designate portions of depositions as
CONFIDENTIAL after transcription, provided written notice of the designation is promptly given
to all counsel of record within thirty (30) days after notice by the court reporter of the completion
of the transcript.
4.

Use in Brief and as Exhibits.
If any document containing CONFIDENTIAL INFORMATION produced in this Lawsuit

is to be filed as an exhibit to any court record or pleading, or otherwise placed among the court
papers in this Lawsuit, the party filing the material shall submit the document containing
CONFIDENTIAL INFORMATION under seal in accordance with D.C.COLO.L.CivR 7.3 in a

sealed envelope bearing the caption of the case and the legend, “Filed Under Seal,” subject to the
Court procedures.
5.

Application of this Confidentiality Order.
a)

This Protective Order shall apply to all disclosure documents, discovery responses

or papers, deposition transcripts, summaries, notes, abstracts, or other documents or information that
comprise, embody, or summarize any documents or information, in any form, produced in this
Lawsuit that contain CONFIDENTIAL INFORMATION.
b)

Nothing in this Protective Order shall affect the admissibility into evidence of

CONFIDENTIAL INFORMATION, or abridge the rights of any party to seek judicial review or to
pursue other appropriate judicial action with respect to any ruling made by the Court concerning the
status of CONFIDENTIAL INFORMATION. Agreement to the terms of this Protective Order is
without prejudice to a party’s right to request that the Court rescind, modify, alter, or amend this
Order with respect to specific documents or information.
6.

Confidentiality Challenge.
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 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 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.
7.

Confidential Information at Trial.
If a party anticipates that Documents designated by the other party as Confidential will be

presented at trial as evidence, the party anticipating such use shall provide counsel for the other
party reasonable advance notice of such anticipation, thus giving the other party the opportunity
before the trial to seek a ruling from the Court as to how the issue of the confidentiality of the
Documents shall be handled at trial, and the parties shall obey any ruling made by the Court
regarding the use of Confidential materials at trial.
8.

Specific Disclosure.
By joint agreement, the parties, through their counsel, may agree to any specific disclosure

of CONFIDENTIAL INFORMATION in a particular circumstance without prejudice to the
continued application of the Protective Order regarding other uses of that CONFIDENTIAL
INFORMATION.
9.

Subpoena.
Any person who receives Confidential Information under this Order from another person or

Party, and who is served with a subpoena for any such information, shall give counsel for the parties
seven (7) days’ notice (or reasonable notice if the time for compliance with the Subpoena is less than
seven (7) days) before producing any such material.
10.

Modification.
This Protective Order may be modified only by stipulation of the parties or by Order of the

Court.
11.

Non-Parties.
A non-party who produces any information, documents or things in this Lawsuit that it

wishes to be treated as CONFIDENTIAL may become a party to the Protective Order, by signing
a copy of it and giving prompt notice to all other parties in this case, but doing so shall not entitle
the non-party to have access to discovery materials or CONFIDENTIAL INFORMATION of a
party. A non-party may also designate as CONFIDENTIAL any information, documents, or things
produced by that third-party in this Lawsuit pursuant to the terms of this Protective Order.
12.

Document Storage.
Counsel for the parties to whom material classified as Confidential has been produced shall

employ reasonable measures, consistent with this Agreed Protective Order, to control access to all
Confidential materials, the duplication of such materials, and access to such copies.
13.

Return or Destruction of Confidential Information.
After final disposition of this case, whether by judgment, including appeals, settlement, or

otherwise, counsel of record for each of the parties shall either return or destroy all
CONFIDENTIAL INFORMATION, along with any extracts, summaries, descriptions, or copies of
the same (with the exception of attorney work product) whether in hard copy or stored in an
electronic magnetic medium, the parties produced during this case, and all copies of such
CONFIDENTIAL INFORMATION, within thirty (30) days of final disposition of this Lawsuit,
except that counsel for the parties may retain copies of court filings containing said
CONFIDENTIAL INFORMATION provided that such will be held for their internal use only,
subject to the continuing obligations imposed by this Agreed Order. If so, said CONFIDENTIAL
INFORMATION remains CONFIDENTIAL and strictly subject to the terms of this Protective

Order.
Each party to this action shall promptly supply each other party with an original Affidavit
of compliance with this paragraph, executed by the party. All persons who have been privy to
CONFIDENTIAL INFORMATION shall be under a continuing duty not to reveal such information
for so long as such information is not otherwise available to the public.
14.

Disputes.
If any dispute arises concerning disclosure of CONFIDENTIAL INFORMATION which the

parties cannot resolve informally, then the party desiring disclosure must bear the burden of moving
for resolution of the dispute by the Court.
Dated this 22nd day of November, 2011, in Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge
AGREED & STIPULATED

___________________________________
Mickey W. Smith, Reg. No. 6789
701 N. Grand Ave., Ste. A
Pueblo, CO 81003
[phone]
ATTORNEY FOR PLAINTIFF
MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.P.

_____________________________________
By: John R. Chase, Reg. No. 30820
Kimberly A. Smiley, Reg. No. 31383

1775 Sherman St., 21st Floor
Denver, CO 80203
Telephone: [phone]
ATTORNEYS FOR DEFENDANT

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01362-WYD-MEH
FLORENCE M. ROMERO,
Plaintiff,
v.
DAYTON-HUDSON CORPORATION, a Minnesota corporation, a/k/a TARGET
CORPORATION, a/k/a TARGET STORES,
Defendant.

STATEMENT

1.

I have read, am familiar with, and agree to be bound by the terms of the Agreed

Protective Order of Confidentiality, entered by the above-named Court on and pertaining to the
above-captioned case.
2.

I agree that any court having jurisdiction over the above referenced matter may

enforce over my person the terms of the above-referenced protective order and I hereby waive any
objections to the Court’s ability over my person to enforce the terms of the above-referenced order.
3.

I understand that if I violate the terms of the above-referenced order, I can be held

in contempt of court.
4.

I agree only to make such copies or notes concerning CONFIDENTIAL

INFORMATION marked or designated “confidential” as are reasonably necessary to enable me to
provide my assistance in this litigation. If any such copies or notes still exist upon completion of
this litigation, I will return them as provided in the Protective Order.

5.

I will not reveal the contents of CONFIDENTIAL INFORMATION to any person

or entity other than those persons to whom disclosure is authorized under the terms of the abovereferenced order.
6.

I will not use CONFIDENTIAL INFORMATION for business or competitive

purposes, or for any purpose other than the prosecution or defense of this action, unless otherwise
authorized by a subsequent order of the Court.
DATED this

day of

, 2010.

Signature

Printed Name

Address

Phone Number