Richmond v. Greene et al

Filing 131

STIPULATION AND PROTECTIVE ORDER by Judge R. Brooke Jackson on 9/4/12. (lag) Modified on 9/4/2012 to note this was erroneously docketed in this case and will be docketed in the correct case (lag).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-00959-RBJ
RONALD TAYLOR, an individual
Plaintiff,
v.
J R MOTORS COMPANY SOUTH, d/b/a GO TOYOTA,
a Colorado limited liability company,
Defendant.

STIPULATION AND PROTECTIVE ORDER

Plaintiff, RONALD TAYLOR, and Defendant J R MOTORS COMPANY SOUTH
d/b/a GO TOYOTA (Plaintiff and Defendant are sometimes referred to individually as
the “Party” or collectively as the "Parties"), through their respective counsel, stipulate
and move the Court for a Protective Order pursuant to Rule 26(c) of the Federal Rules
of Civil Procedure concerning the treatment of Confidential Information (hereinafter
defined), and, as grounds therefore, state as follows:
1.

In this action, the Parties are in possession of relevant information which

they reasonably believe constitutes Confidential Information (as defined in paragraph 2
below). The Parties also anticipate seeking additional Confidential Information during
discovery and that there will be questioning concerning Confidential Information in the
course of depositions. The Parties assert the disclosure of such information outside the
scope of this litigation could result in significant injury to one or more of the Parties’

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business or privacy interests. The Parties have entered into this Stipulation and request
the Court enter this Protective Order for the purpose of preventing the disclosure and
use of Confidential Information except as set forth herein.
2.

“Confidential Information” means any document, file, portions of files,

transcribed testimony, or response to a discovery request, including any extract,
abstract, chart, summary, note, email, electronic document or copy made there from not made available to the public - and designated by one of the Parties in the manner
provided in Paragraph 3 below as containing (a) personal or financial information
relating to a non-party; (b) financial information not publicly filed with any federal or state
regulatory authority or otherwise publicly available; (c) trade secret information as
defined under state or federal law; and (d) pricing, design, licensing, or other
competitive information not otherwise publicly available.
"Rule 26(c) confers broad discretion on the trial court to decide when a protective
order is appropriate and what degree of protection is required." Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984).

A narrowly-tailored protective order - as

identified here - is an appropriate measure to guard against the public disclosure
of non-public information. See, Regan-Touhy v. Wagreens Co., 526 F.3d 641, 648
(10th Cir. 2008); Tara Woods Ltd. Partnership v. Fannie Mae, 265 F.R.D. 561, 568-69
(D. Colo. 2010); Martinez v. Social Sec. Admin., 2007 WL 4573749 at *4, *4n.12 (D.
Colo. 2007).
3.

Where Confidential Information is produced, provided or otherwise

disclosed by a Party in response to any discovery request, it will be designated in the
following manner:

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a.

By imprinting the word “Confidential” on the pages of any document

b.

By imprinting the word “Confidential” next to or above any

produced;

response to a discovery request; and
c.

With respect to transcribed testimony, by giving written notice to the

opposing Parties' counsel designating such portions as “Confidential” no later than ten
business days after receipt of the transcribed testimony.
4.

All Confidential Information provided by a Party in response to a discovery

request or transcribed testimony shall be subject to the following restrictions:
a.

It shall be used only for the purpose of this litigation and not for any

business or other purpose whatsoever;
b.

It shall not be communicated or disclosed by any Party’s counsel or

a Party in any manner, either directly or indirectly, to anyone except for purposes of this
case and unless an affidavit in the form of Exhibit A has been signed.
5.

Individuals authorized to review Confidential Information pursuant to this

Protective Order shall hold Confidential Information in confidence and shall not divulge
the Confidential Information, either verbally or in writing, to any other person, entity or
government agency unless authorized to do so by court order.
6.

The Party’s counsel who discloses Confidential Information shall be

responsible for assuring compliance with the terms of this Protective Order with respect
to persons to whom such Confidential Information is disclosed and shall obtain and
retain the original affidavits signed by qualified recipients of Confidential Information.
7.

During the pendency of this action, opposing counsel may inspect the

original affidavits maintained by counsel pursuant to paragraph 6 above.
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8.

No copies of Confidential Information shall be made except by or on

behalf of counsel in this litigation and such copies shall be made and used solely for
purposes of this litigation.
9.

During the pendency of this litigation, counsel shall retain custody of

Confidential Information, and copies made there from pursuant to paragraph 8 above.
10.

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. Further, a party may request that information otherwise
considered to be confidential be distributed or disclosed under certain specified
conditions. If the parties cannot resolve the objection or the request to
disseminate identified information within ten (10) business days after the time the
notice or request 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 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 not to be disseminated
outside 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

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establishing that good cause exists for the disputed information to be treated as
Confidential Information.
11.

Use of Confidential Information in Court Proceedings:

In the event

Confidential Information is used in any court filing or proceeding in this action, including
but not limited to its use at trial, it shall not lose its confidential status as between the
parties through such use. Confidential Information and pleadings or briefs quoting or
discussing Confidential Information will not be accepted for filing under restriction or
otherwise kept out of the public record in this action, however, except by court order
issued upon the motion to file the documents under restriction or upon any motion for
disclosure order. Any motion requesting leave to file documents under restriction shall
comply with the requirements of D.C.COLO.LCivR 7.2 and demonstrate that the
Confidential Information at issue is entitled to protection under the standards articulated
in Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-602 (1978) (applied in
United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) and Crystal Grower’s Corp.
v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)).
12.
persons

The termination of this action shall not relieve counsel or other
obligated

hereunder

from

their

responsibility

to

maintain

the

confidentiality of Confidential Information pursuant to this Protective Order.
13.

By agreeing to the entry of this Protective Order, the Parties adopt no

position as to the authenticity or admissibility of documents produced subject to it.
14.

Upon termination of this litigation, including any appeals, each Party’s

counsel shall immediately return to the producing counsel all Confidential Information
provided subject to this Protective Order, and all extracts, abstracts, charts, summaries,

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notes or copies made there from. At that time, counsel shall also file under seal with
this Court the list of individuals who have received Confidential Information which
counsel shall have maintained pursuant to paragraph 6 herein.
15.

Nothing in this Protective Order shall preclude any Party from filing a

motion seeking further or different protection from the Court under Rule 26(c) of the
Federal Rules of Civil Procedure, or from filing a motion with respect to the manner in
which Confidential Information shall be treated at trial.
DATED this 4th day of September, 2012.

BY THE COURT:

_______________________________
United States District Court
Judge R. Brooke Jackson

STIPULATED AND AGREED BY:

s/ Tanya E. Milligan
Tanya E. Milligan, Esq.
John K. Shunk, Esq.
Messner & Reeves, LLC
1430 Wynkoop Street, Ste. 300
Denver, CO 80202
Attorneys for Defendant

s/___Diane Vaksdal Smith__________
Diane Vaksdal Smith
Burg Simpson Eldredge Hersh & Jardine,
P.C.
40 Inverness Drive, E.
Englewood, CO 80112
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Attorney for Plaintiff
EXHIBIT A
AFFIDAVIT
STATE OF _______________
COUNTY OF ____________

)
)
)

__________________, swears or affirms and states under penalty of perjury:
1.
I have read the Stipulation and Protective Order entered in Ronald
Taylor v. J R Motors Company South d/b/a Go Toyota, Civil Action No. 1:12-cv-00959RBJ (the "Litigation"), a copy of which is attached to this Affidavit.
2.
I have been informed by ____________________, counsel for
_________________________________, that the materials designated as Confidential
contain Confidential Information as defined by the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge to
any person or recording device any Confidential Information show or told to me except
as authorized in the Protective Order. I will not use the Confidential Information for any
purpose other than for this Litigation.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby
submit myself to the jurisdiction of the Court in the Litigation.
5.

I will abide by the terms of the Protective Order.
_____________________
(Signature)
_____________________
(Print or Type)
_____________________
_____________________
Address
_____________________
Telephone Number

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