Conlon v. City and County of Denver

Filing 18

STIPULATED PROTECTIVE ORDER, by Magistrate Judge Craig B. Shaffer on 12/2/11. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-002039-RBJ-CBS
BRANDON J. CONLON,
Plaintiff,
v.
CITY AND COUNTY OF DENVER, Colorado, Acting by and through its Board of Water
Commissioners, a municipal corporation of the State of Colorado,
Defendant.

STIPULATION AND PROTECTIVE ORDER

The parties, by and through their respective counsel, stipulate and respectfully 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 (as hereinafter defined) as follows:
1.

The Parties anticipate seeking Confidential Information during discovery and that

there will be questioning concerning Confidential Information in the course of depositions and
other proceedings in this action. 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’
business or privacy interests. The Parties have entered into this Stipulation and respectfully
request that the Court issue 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,

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summary, note, or copy made therefrom that contains information that is confidential and
implicates common law and/or statutory privilege interests and designated by one of the Parties
in the manner provided in paragraph 4 below as containing Confidential Information, including,
but not limited to:
a. the Parties’ and/or their representatives’ personnel files;
b. investigation files, if any;
c. witness statements, if any;
d. the Parties’ and/or their representatives tax and/or financial records; and
e. any documents containing information relating to third parties.
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:
a. By imprinting the word “Confidential” on the first page or cover of any document
produced;
b. By imprinting the word “Confidential” next to or above any response to a
discovery request; and
c. With respect to transcribed testimony, by giving written notice to opposing
counsel designating such portions as “Confidential” no later than ten (10)
calendar days after receipt of the transcribed testimony.
4.

Any information designated by a Party as Confidential Information subject to this

Protective Order will first be reviewed by an attorney for the Party who will confirm that the
designation as Confidential is based upon a good faith belief that the information is confidential
or otherwise entitled to protection.

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5.

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.
6.

Confidential Information, without the consent of the party producing it or further

Order of the Court, shall not be disclosed except that such information may be disclosed to:
a.

attorneys actively working on this case, and persons regularly employed by or

associated with the attorneys actively working on the case whose assistance is required
by said attorneys in the preparation for trial, at trial, or at other proceedings in this case;
b.

expert witnesses and consultants retained in connection with this proceeding, to

the extent such disclosure is necessary for preparation, trial or other proceedings in this
case;
c.

the parties and designated representatives for the entity Defendants;

d.

deponents, witnesses, or potential witnesses;

e.

the Court and its employees (“Court Personnel”);

f.

stenographic reporters who are engaged in proceedings necessarily incident to the

conduct of this action;
g.

members of a jury or other finder(s) of fact;

h.

other persons by written agreement of the parties.

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7.

Prior to disclosing any Confidential Information to persons other than those

described in paragraph 6 of this Order, counsel shall provide such person with a copy of this
Protective Order and obtain from such person a written affidavit stating that he or she has read
this Protective Order and agrees to be bound by its provisions. The affidavit form is attached
hereto as Attachment A. All such affidavits shall be retained by counsel and shall be subject to
in camera review by the Court if good cause for review is demonstrated by opposing counsel. If
a person refuses to execute the affidavit form attached hereto then counsel for the parties may
confer with each other in order to attempt to informally resolve any such refusal.
8.

The Party or Party’s counsel who discloses Confidential Information shall be

responsible for ensuring 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 on Confidential Information, and shall maintain
a list of all persons to whom any Confidential Information is disclosed.
9.

During the pendency of this action, opposing counsel may upon court order or

agreement of the Parties inspect the list maintained by counsel pursuant to paragraph 7 above
upon showing of substantial need in order to establish the source of an unauthorized disclosure
of Confidential Information and that opposing counsel are unable to otherwise identify the
source of the disclosure. If counsel disagrees with opposing counsel’s showing of substantial
need, then counsel may seek a court order requiring inspection under terms conditions deemed
appropriate by the Court.
10.

Except as elsewhere provided in this Stipulation and Protective Order, during the

pendency of this litigation, counsel shall retain custody of Confidential Information.

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11.

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, or longer if the
parties mutually agree to a longer time to discuss any pending dispute, 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 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.
12.

In the event it is necessary for the Parties to file Confidential Information with the

Court in connection with any proceeding or motion, the Confidential Information shall be filed
in accordance with the requirements of D.C.COLO.LCivR 7.2.
13.

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

hereunder from their responsibility to maintain the confidentiality of Confidential Information
pursuant to this Protective Order.
14.

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. Neither the taking of

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any action in accordance with the provisions of this Protective Order, nor the failure to object
thereto, shall be construed as a waiver of any claim or defense in this action.
15.

The parties agree that in the event information or documentation is inadvertently

disclosed to an opposing party, any information or documentation so disclosed shall be
immediately returned to the producing party without any copies being made or notes being
taken regarding said information/documentation by those who have received the inadvertent
disclosure. Further, the parties agree that no recipient of inadvertently disclosed information or
documentation shall utilize such information/documentation or any fruits derived therefrom for
the purpose of this litigation and that the inadvertent disclosure of information or documentation
shall not constitute a waiver of any privilege that may otherwise apply.
16.

The Parties agree that the terms and conditions in this Protective Order survive

the termination of this litigation. Upon conclusion of this litigation, including any appeals, each
Party’s counsel shall immediately return to the producing party all Confidential Information
provided subject to this Protective Order or dispose of it in a confidential manner.
17.

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. This Protective Order may be modified by the Court at any
time for good cause shown following notice to all parties and an opportunity for them to be
heard.
18.

Nothing in this Stipulation and Protective Order shall relieve any party of its

obligation under Fed.R.Civ.P. 26(b)(5) to prepare and provide a privilege log.

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DATED this 2nd day of December, 2011.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge

STIPULATED AND AGREED TO:

s/ Marc Stanley
Marc Stanley
Marc D. Stanley
P.O. Box 462648
Aurora, CO 80046
[phone]
Fax: [phone]
e-mail: [e-mail]
Counsel for Plaintiff

s/ Gail Rosenschein
Gail Rosenschein
Denver Water
1600 West 12th Avenue
Denver, CO 80204
Telephone: [phone]
Fax: [phone]
e-mail: [e-mail]
Counsel for Defendant

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