Western Convenience Stores, Inc. et al v. Suncor Energy (U.S.A.) Inc.

Filing 49

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 3/12/12. (cbssec)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 11-cv-01611-MSK-CBS
WESTERN CONVENIENCE STORES, INC., a Colorado corporation;
WESTERN TRUCK ONE, LLC, a Colorado limited liability company,
Plaintiffs,
v.
SUNCOR ENERGY (U.S.A.) INC., a Delaware corporation,
Defendant.

PROTECTIVE ORDER

Pursuant to the stipulation of plaintiffs Western Convenience Stores, Inc. (“WCS”) and
Western Truck One, LLC (“WTO”), and defendant Suncor Energy (U.S.A.) Inc. (“Suncor” and,
together with WCS and WTO, collectively the “Parties” and each individually a “Party”), the
Court enters this Protective Order (“Protective Order”).
It is hereby ORDERED as follows:
1.

This Protective Order shall be applicable to and govern all depositions, documents,

information or things produced or provided by a Party or third party in connection with this
litigation (“Discovery Material”) that the Disclosing Party designates as “Confidential
Information” or “Highly Confidential Information.”
2.

Any Party to this action or any non-party may designate any Discovery Material

produced by it as “Confidential Information” or “Highly Confidential Information.” Any nonparty making such designations shall execute the Declaration of Compliance with this Protective
Order attached as Exhibit A (“Declaration of Compliance”). Any person or entity designating

Discovery Material as “Confidential Information” or “Highly Confidential Information” shall be
referred to the “Designating Party.” Any person or entity receiving Discovery Material
designated as “Confidential Information” or “Highly Confidential Information” shall be referred
to as the “Receiving Party.” Counsel for any Party may designate any Discovery Material as
“Confidential Information” or “Highly Confidential Information” only if he/she has a basis for
doing so consistent with Fed.R.Civ.P. 26(g). For purposes of this Protective Order,
“Confidential Information” is confidential or proprietary information of a Party or third party,
including information the disclosure of which would cause competitive or business injury to the
Designating Party or which would give a competitor or a customer a competitive advantage over
other competitors or customers of the Designating Party. “Confidential Information” shall not
mean information that is a matter of public record or publicly available.
3.

For purposes of this Protective Order, “Highly Confidential Information” affords a

higher level of protection for Discovery Material and is to be used only for extremely sensitive
information, the disclosure of which may cause substantial competitive or business injury to the
Designating Party or which would give a competitor or a customer a competitive advantage over
other competitors or customers of the Designating Party. “Highly Confidential Information”
shall not mean information that is merely confidential or information that is a matter of public
record or publicly available
4.

“Confidential Information” or “Highly Confidential Information” shall not be

disclosed except as permitted by this Protective Order.
5.

Discovery Material that a Designating Party contends constitutes “Confidential

Information” or “Highly Confidential Information” shall be so designated as follows:
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a.

At the time of production, Discovery Material shall be designated

“Confidential Information” or “Highly Confidential Information” by stamping or labeling the
same on each page of the document containing such information. For information produced in
electronic format, the compact disk, digital video disk, or other medium containing the
information shall be stamped or labeled with the appropriate label. If not all of the information
contained on the medium is “Confidential Information” or “Highly Confidential Information,”
the Designating Party shall provide notice to the Receiving Party with a sufficiently definite
description of the information contained on the medium that is designated as “Confidential
Information” or “Highly Confidential Information.”
b.

Discovery Material produced by a non-party may be designated

“Confidential Information” or “Highly Confidential Information” as provided in subparagraph
(a), above, or by providing written notice, at the time the Material is produced, of the Bates
numbers or other sufficiently definite description of the pages or information to be designated.
c.

Deposition testimony shall be designated “Confidential Information” or

“Highly Confidential Information” at the deposition or by written notice within fifteen (15)
business days after receiving a final copy of the deposition transcript from the Court reporter. In
either case, counsel for the Designating Party shall direct that the legend “Confidential
Information” or “Highly Confidential Information” be affixed to the specific pages of the
deposition and that the front page of the transcript state that it contains “Confidential
Information” or “Highly Confidential Information” subject to this Protective Order, a copy of
which shall be included with the transcript. Counsel shall treat the deposition transcripts as
“Highly Confidential Information” until the fifteen-day period for the designation has expired.
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The Parties may modify this procedure for any particular deposition through agreement on the
record at such deposition.
6.

The inadvertent failure to designate Discovery Material as “Confidential

Information” or “Highly Confidential Information” shall not constitute a waiver and may be
corrected by giving written notice within five (5) business days after discovery of the omission.
All costs incurred in connection with correcting the omission or retrieving Discovery Material
shall be borne by the Designating Party.
7.

“Confidential Information” or “Highly Confidential Information” shall be

(a) disclosed only as permitted in this Protective Order and (b) be used solely for purposes of
preparation for trial, trial of and/or appeal from this action and for no other purpose, including,
without limitation, any business or commercial purpose or for any litigation or proceeding other
than this action. These prohibitions on the use or disclosure of “Confidential Information” and
“Highly Confidential Information” shall survive the termination of this action.
8.

Counsel for a Receiving Party may disclose “Confidential Information” and/or any

information derived from such “Confidential Information” only to the following persons:
a.

Counsel’s partners, associates, contract attorneys, paralegals, in-house jury

consultants or other litigation support, in-house graphics personnel, secretarial staff, clerical, and
other regular or temporary employees working on this case, and outside consultants and vendors
(including trial consultants, jury consultants, and service vendors such as outside copy services,
outside litigation support services, translations services or graphics, design, or document
handling services/consultants retained in connection with this action), provided that no
“Confidential Information” shall be disclosed to any outside consultants and vendors or
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temporary employees of Counsel, except for copy services, until such person has executed the
Declaration of Compliance;
b.

The Parties and officers, directors, owners, shareholders, principals or

employees of the Parties assisting counsel for the purposes of this action but only after they have
executed the Declaration of Compliance;
c.

Persons preparing to or testifying at deposition or trial but only if they have

a genuine need to know the “Confidential Information” or there is a genuine need to question
them about the “Confidential Information” and, in both cases, after they have executed the
Declaration of Compliance;
d.

Retained experts and consultants, subject to the provisions of Paragraph 11,

below, but only to the extent necessary for them to prepare a written opinion, to prepare to
testify, or to assist Counsel in the prosecution or defense of this action, and after they have
signed a Declaration of Compliance;
e.

Court personnel and other persons by order of the Court or written

agreement of the Designating Party.
9.

Except as provided in subparagraphs (d) and (e), below, Counsel for a Receiving

Party may NOT disclose “Highly Confidential Information” and/or any information derived
from such Information to the officers, directors, owners, shareholders, principals or
employees (except and not including in-house counsel) of the Receiving Party (“Excluded
Persons”) but may make disclosure only to the following persons under the following conditions:
a.

Except for the Excluded Persons, the same people identified in paragraph

8(a), (d) and (e), above, and under the same conditions;
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b.

For each Party, no more than three in-house counsel working on this action,

as well as their staff, provided the staff person is not involved in, or does not work for persons
involved in, marketing or pricing decisions;
c.

Persons who have already seen the “Highly Confidential Information;”

d.

Excluded Persons preparing to testify or testifying at deposition or trial but

only if Counsel for the Receiving Party has been advised in writing by Counsel for the
Designating Party at least 48 hours in advance that the Excluded Person may be questioned about
certain “Highly Confidential Information,” which is identified by Bates number and to which
disclosure is limited and only after the Excluded Person has executed the Declaration of
Compliance;
e.

Excluded Persons if Counsel for the Receiving Party has a good faith belief

that disclosure of certain “Highly Confidential Information,” specifically identified by Bates
number and by providing copies thereof to the Designating Party, is necessary for the defense or
prosecution of this case and only if the Designating Party agrees in writing that disclosure may
be made or, if there is no agreement, then by order of the Court, with the Party seeking
disclosure bearing the burden of proof that disclosure is necessary. Disclosure is limited to the
“Highly Confidential Information” so identified.
10.

Any person to whom disclosure of “Confidential Information” or “Highly

Confidential Information” may not be made shall be excluded from a deposition while such
information is being disclosed.
a.

Any Receiving Party wishing to use “Confidential Information” or

“Highly Confidential Information” at the deposition of a third-party witness must give the
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Designating Party at least 48 hours written notice, providing a list of the documents to be used by
Bates number and copies thereof. The third-party deponent must execute the Declaration of
Compliance before being shown “Confidential Information” or “Highly Confidential
Information.” If the third-party deponent refuses to sign the Declaration of Compliance, counsel
for the Party seeking to depose the witness may not disclose the “Confidential Information” or
“Highly Confidential Information,” but may seek the intervention of the Court, either at the time
or subsequently.
11.

“Confidential Information” or “Highly Confidential Information” shall be provided

to retained experts and/or consultants as set forth in paragraphs 8(d) and 9(a), provided that such
expert or consultant is not currently, or has not been for two years from the date of this
Protective Order, a competitor of the Designating Party, or an owner, partner, director, officer,
employee or other affiliate of such competitor. However, no disclosure shall be made until the
following procedure has been fulfilled. At least five (5) business days before a Receiving Party
discloses “Confidential Information” or “Highly Confidential Information” to an expert or
consultant, counsel must first identify the expert in writing to counsel for the Designating Party
and provide a copy of the expert or consultant’s resume, which shall contain information
sufficient for determining whether the expert or consultant is or has been a competitor of the
Designating Party or is or has been affiliated with such. Should the Designating Party object to
the disclosure, it shall provide written notice within five (5) business days setting forth the
reasons for its objection. If no objection is made, then disclosure may occur. If there is an
objection and the Parties cannot resolve the issue, the Party objecting to disclosure of the
“Confidential Information” or “Highly Confidential Information” shall file a motion with the
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court, not to exceed seven (7) double-spaced pages, and the Party identifying the expert shall file
a response, not to exceed seven (7) double-spaced pages, with a reply, not to exceed five (5)
double-spaced pages permitted.
12.

This Protective Order does not apply to or limit the Parties’ use of their own

“Confidential Information” or “Highly Confidential Information.”
13.

“Confidential Information” or “Highly Confidential Information,” and documents

containing the same (regardless of who made the designation), shall not be filed with the Court,
except by filing the document or Information as a “restricted document” and filing a Motion to
Restrict Access pursuant to D.C. Colo.Civ. R 7.2.
14.

Pursuant to F.R.E. 502(d), the inadvertent production of any Discovery Material

shall be without prejudice to any claim that such Discovery Material is privileged or protected
from discovery under the attorney-client privilege, the work product immunity or other
applicable privilege or immunity. If a claim of inadvertent production is made with respect to
information then in the custody of another Party or non-party, such Party or non-party shall
promptly return the subject materials and all copies and notes thereof, and the receiving Party or
non-party shall not use such information for any purpose, expect as provided by Fed. R. Civ. P.
26(b)(5)(B). Nothing in this paragraph precludes the Receiving Party from filing a motion to
compel challenging the claim of privilege or immunity.
15.

A Receiving Party that wants to challenge a “Confidential Information” or “Highly

Confidential Information” designation must do so no later than 50 days before the discovery cutoff (or if the disclosure is made within 50 days of the discovery cut-off, then thirty days after the
disclosure) and must (a) first meet and confer with the Designating Party and explain the basis
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for the challenge and (b) give the Designating Party an opportunity to explain the basis for the
designation and a reasonable opportunity (not to exceed three (3) business days) to change the
designation.
a.

Thereafter, the Receiving Party may file a motion with the Court in which it

identifies the challenged material and sets forth the basis for the challenge. The burden of proof
on any such challenge shall be on the Designating Party. Until the Court rules on the challenge,
all Parties and non-parties shall continue to afford the material in question the level of protection
to which it is entitled under the Designating Party’s designation.
16.

Except as expressly addressed by this Protective Order, the rights of the Parties are

not affected or modified. The terms of this Protective Order may be modified or changed only
upon a showing of good cause and/or agreement of the Parties.
17.

This Protective Order shall be binding on any new parties to this action.

18.

Within thirty (30) days after receiving notice of the entry of an order, judgment, or

decree finally disposing of this action, including the exhaustion of all permissible appeals, all
persons and entities having received “Confidential Information” or “Highly Confidential
Information” shall either make a good faith effort to return such material and all copies thereof
(including summaries and excerpts) to counsel for the Designating Party or destroy all such
“Confidential Information” or “Highly Confidential Information” and copies thereof (including
summaries and excerpts) and certify that fact to counsel for the Designating Party. Outside
counsel for the Parties shall be entitled to retain all filings, court papers, deposition and trial
transcripts, deposition and trial exhibits, and attorney work product except that all “Confidential
Information” or “Highly Confidential Information” contained therein shall be removed and
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destroyed. This Court shall have continuing jurisdiction to enforce the terms of this Protective
Order.
19.

If before this action is concluded as provided in paragraph 18, above, a Receiving

Party is subpoenaed in or served with any other legal process seeking disclosure of
“Confidential” or “Highly Confidential Information” by someone other than a Party, the Party
receiving the process shall (a) advise the person seeking disclosure that the material is subject to
this Protective Order and may not be disclosed, (b) provide such person with a copy of the
Protective Order, and (c) promptly notify the Designating Party and the Court. No disclosure of
the “Confidential” or “Highly Confidential Information” may be made without order of this
Court or agreement of the Designating Party.
DATED at Denver, Colorado, this 12th day of March 2012.
BY THE COURT:

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

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EXHIBIT A
DECLARATION OF COMPLIANCE
I,

[print or type full name], of ________________________ [print or type full

address], declare under penalty of perjury that I have read in its entirety and understand the
Protective Order that was issued by the United States District Court for the District of Colorado
on November ___, 2011 in the case of Western Convenience Stores, Inc., et al. v. Suncor Energy
(U.S.A) Inc. I agree to comply with and to be bound by all the terms of the Protective Order, and
I understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to the Protective Order to any person or entity except in
strict compliance with the provisions of the Order.
I further agree to submit to the jurisdiction of the United States District Court for the
District of Colorado for the purpose of enforcing the terms of this Stipulated Protective Order,
even if such enforcement proceedings occur after termination of this action. I hereby appoint
________________________ [print or type full name] of
_________________________________________________________ [print or type full address
and telephone number] as my Colorado agent for service of process in connection with this
action or any proceedings related to enforcement of this Stipulated Protective Order.
Date:
City and State where sworn and signed: _____________________________________
Printed name: __________________________________
Signature:

__________________________________
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