First Descents, Inc. v. Eddie Bauer Licensing Services LLC et al

Filing 34

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02051-RBJ-MEH
FIRST DESCENTS, INC., a Colorado non-profit corporation,
Plaintiff,
v.
EDDIE BAUER LICENSING SERVICES LLC, a Delaware limited liability company, and
EDDIE BAUER LLC, a Delaware limited liability company,
Defendants.

STIPULATED PROTECTIVE ORDER

Michael E. Hegarty, United States Magistrate Judge.
Plaintiff First Descents, Inc. ("First Descents") and Defendants Eddie Bauer Licensing
Services, LLC and Eddie Bauer LLC (collectively, "Eddie Bauer") anticipate that documents,
testimony, or information containing or reflecting confidential, proprietary, trade secret, and/or
commercially sensitive information are likely to be disclosed or produced during the course of
discovery in this litigation and request that the Court enter this Order setting forth the conditions for
treating, obtaining, and using such information. The parties have stipulated to the terms of this
Order.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court hereby enters the
following Protective Order Regarding the Confidentiality of Discovery Materials (the "Protective
Order"):
WHEREFORE, IT IS HEREBY STIPULATED AND ORDERED:
1.

This Protective Order shall apply to all information, documents, testimony, or other things

subject to discovery in this action that contains proprietary, confidential, trade secret, or

commercially sensitive information, as well as any copies, excerpts, summaries, derivations or
compilations of any of the foregoing contained in any pleadings, reports, discovery responses,
correspondence, documents or things (collectively, "Discovery Material"), including any
information, documents, testimony, or other things designated either "CONFIDENTIAL" or
"ATTORNEYS' EYES ONLY" under this Protective Order. As used herein, "Producing Party" shall
refer to any party, including the parties to this action as well as non-parties, who disclose and/or
produce any Discovery Material in this action. "Receiving Party" shall refer to any party that
receives Discovery Material from a Producing Party.
2.

In the absence of written permission from the Producing Party, Discovery Material

designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY: (a) shall be protected from
disclosure as specified herein, unless (i) the Producing Party states otherwise in writing, or (ii) a
party obtains an order of the Court declaring that all or certain portions of such Discovery Material
are not, in fact, protected or should be subject to an alternative designation; and (b) shall be used
only for purposes of this litigation.
3.

The Producing Party may designate documents or other tangible Discovery Materials by

placing the following legend or similar legend on the document or thing: "CONFIDENTIAL" or
"ATTORNEYS' EYES ONLY." Notwithstanding anything to the contrary in this Protective Order,
when the Producing Party is a non-party, any party to this action may designate (as appropriate
under the provisions of this Protective Order) any and all Discovery Materials produced by the
non-party that include such designating party's confidential information, by sending a letter to all
parties and the producing non-party notifying them of the party's designations.
4.

Written discovery may be designated by placing, as appropriate, either "CONFIDENTIAL"

or "ATTORNEYS' EYES ONLY" on every page of the written material prior to production. In the

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event that original documents are produced for inspection, the Producing Party may produce the
documents on a temporary ATTORNEYS' EYES ONLY basis so long as such documents are
redesignated by placing the appropriate legend on the documents in the copying process.
5.

Parties or testifying persons may designate depositions (or any portions thereof) and other

testimony as CONFIDENTIAL or ATTORNEYS' EYES ONLY by so indicating on the record at
the time the testimony is given. All testimony designated under this Protective Order during a
deposition shall be deemed ATTORNEYS' EYES ONLY until seven calendar days after counsel for
the testifying person receives a final copy of the transcript, at which time all designations made
during the deposition are waived unless counsel for the testifying person has informed all other
counsel, in writing, of the portions of the transcript that are designated either CONFIDENTIAL or
ATTORNEYS' EYES ONLY pursuant to this Protective Order.
6.

A Producing Party may designate Discovery Material as CONFIDENTIAL if it comprises,

includes or reflects non-public, confidential, proprietary, and/or commercially sensitive information
that is within one or more of the following categories: trade secrets, processes, operations, research,
know-how, apparatus, customer lists, amount or source of any income, profits, losses, or
expenditures, technical or developmental information, or non-public information concerning the
production, marketing, services, sales, shipments, purchases, pricing or transfers of the producing
party, or other information the disclosure of which (i) is likely to have the effect of harming the
competitive position of the producing party or (ii) would violate an obligation of confidentiality to
a third person, including a court. Discovery Material designated as CONFIDENTIAL may be
disclosed only to the following:
(a)

the attorneys for the respective firms representing the parties, who have appearances entered

in this case and any attorneys working on this action at their direction ("Outside Attorneys"), as well

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as any paralegals and clerical employees of such Outside Attorneys and any copy or other clerical
litigation support services working at the direction of any of such Outside Attorneys, paralegals, or
clerical employees;
(b)

in-house counsel for each party who are directly responsible for this action, and any

paralegals and clerical employees of such in-house counsel;
(c)

no more than two regular full- or part-time officers or employees of the receiving party

authorized by such party to review such information for purposes of assisting outside counsel or
in-house counsel in the litigation; provided, however, that (i) all such persons have signed the
acknowledgement and form annexed hereto as Exhibit A agreeing to be bound by the terms of this
Protective Order; (ii) the receiving party will supply the producing party with any and all
acknowledgements forms signed pursuant to this paragraph within two business days of their
execution;
(d)

any person not employed by a party, and who is expressly retained by an attorney described

in either Paragraph 6(a) or 6(b) to assist in preparation of this action for trial as a consulting or
testimonial expert, with disclosure only to the extent necessary to perform such work; provided,
however, that (i) such person has signed the acknowledgement form annexed hereto as Exhibit A
agreeing to be bound by the terms of this Protective Order, and (ii) no unresolved objections to such
disclosure exist after proper notice has been given to all parties as set forth in Paragraph 8(b) below;
(e)

court reporters, stenographers and videographers retained to record testimony taken in this

action;
(f)

the Court, jury, and court personnel;

(g)

graphics, translation, design, and/or trial consulting services, including mock jurors, retained

by a party provided, however, that all such persons have signed the acknowledgement form annexed

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hereto as Exhibit A agreeing to be bound by the terms of this Protective Order; and
(h)

any other person with the prior written consent of the Producing Party

7.

A Producing Party may designate Discovery Materials at the time of disclosure as

ATTORNEYS' EYES ONLY if, notwithstanding any overlap with the materials identified in
Paragraph 6, the Producing Party in good faith believes the materials to be extremely confidential
and/or sensitive in nature and reasonably believes that their disclosure is likely to cause economic
harm to the Producing Party. The Parties agree that the ATTORNEYS' EYES ONLY designation
may be used with any of the following categories of information: non-public financial data
(including but not limited to pricing, sales, revenue, cost of sales and profits) of any party or its
affiliates, proprietary market research, current or projected business, marketing, or strategic
materials or plans, technical information regarding current and future products, personal information
regarding any of the party's customers, consumers or donors, and any other trade secret or highly
sensitive technical information. Discovery Material designated as ATTORNEYS' EYES ONLY
may be disclosed only to the following:
(a)

the Outside Attorneys, any paralegals and clerical employees of such Outside Attorneys, and

any copy or other clerical litigation support services working at the direction of any of such Outside
Attorneys, paralegals, or clerical employees;
(b)

in-house counsel for each party who are directly responsible for this action, and any

paralegals and clerical employees of such in-house counsel;
(c)

in the case of First Descents, Brad Ludden and Kelly Malin, two designated corporate

officers who have direct responsibilities relating to this action; provided, however, (i) Mr. Ludden
and Ms. Malin will only have access to those ATTORNEYS' EYES ONLY documents and
information produced by defendants that are essential for their evaluation of any potential settlement

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of this matter (which documents and information will not include any of defendants' prospective
business, marketing or strategic plans); (ii) Mr. Ludden and Ms. Malin will sign the
acknowledgement form annexed hereto as Exhibit A agreeing to be bound by the terms of this
Protective Order; and (iii) First Descents' outside counsel will maintain a log that (A) identifies the
particular ATTORNEYS' EYES ONLY documents by Bates-number and/or deposition testimony
by page number or information disclosed to Mr. Ludden and/or Ms. Malin; (B) identifies the manner
in which such documents or information were disclosed (e.g., by mail, by fax); and (C) the date on
which such disclosure first occurred;
(d)

any person not employed by a party, and who is expressly retained by an attorney described

in either Paragraph 6(a) or 6(b) to assist in preparation of this action for trial as a consulting or
testimonial expert, with disclosure only to the extent necessary to perform such work; provided,
however, that: (i) such person has signed the acknowledgement form annexed hereto as Exhibit A
agreeing to be bound by the terms of this Protective Order, and (ii) no unresolved objections to such
disclosure exist after proper notice has been given to all parties as set forth in Paragraph 8(b) below;
(e)

court reporters, stenographers and videographers retained to record testimony taken in this

action;
(f)

the Court, jury, and court personnel;

(g)

graphics, translation, design, and/or trial consulting services including mock jurors, retained

by a Party; provided, however, that all such persons have signed the acknowledgement form
annexed hereto as Exhibit A agreeing to be bound by the terms of this Protective Order; and
(h)

any other person with the prior written consent of the Producing Party,

8.

All persons receiving CONFIDENTIAL and/or ATTORNEYS' EYES ONLY Discovery

Material are enjoined from disclosing it to any person, except in conformance with this Protective

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Order. Each individual who receives any CONFIDENTIAL or ATTORNEYS' EYES ONLY
Discovery Material hereby agrees to be subject to the jurisdiction of this Court for the purpose of
any proceedings relating to the performance under, compliance with, or violation of this Protective
Order.
(a)

Counsel who makes CONFIDENTIAL or ATTORNEYS' EYES ONLY Discovery Material

available to persons set forth in Paragraphs 6 and/or 7 above shall be responsible for limiting
distribution thereof to those persons authorized under this Protective Order and for cautioning such
persons as to their obligations under this Protective Order. All copies of such disclosed Discovery
Material shall be subject to the same restrictions imposed herein on original materials. Any person
having access to such Discovery Material whose participation in this litigation has been terminated
or otherwise concluded shall return or destroy all such Discovery Material as soon as practicably
possible thereafter to the Receiving Party's counsel of record, but in no event longer than thirty (30)
days after the termination or conclusion of the participation.
(b)

Before disclosure of any Discovery Material designated CONFIDENTIAL or ATTORNEYS'

EYES ONLY to a person described in Paragraphs 6(d) or 7(d) of this Protective Order, counsel for
the Receiving Party shall take the following steps:
(i)

provide a copy of this Protective Order to such person, who shall sign the acknowledgement

form annexed hereto as Exhibit A; and
(ii)

notify all counsel of record in writing, at least three (3) calendar days before any such

disclosure, of the intent to disclose CONFIDENTIAL and/or ATTORNEYS' EYES ONLY
Discovery Material to such person, provide a copy of the acknowledgement form signed by the
person, identify the person's title, job responsibilities and affiliation(s) with the Receiving Party, and,
if the person is a consulting or testimonial expert described in Paragraphs 6(d) and/or 7(d), provide

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a copy of the person's most recent curriculum vitae, which shall include an identification of all of
the person's past and present employment and/or consulting relationships for the last four (4) years;
(iii)

in the event any party objects to the disclosure of CONFIDENTIAL or ATTORNEYS' EYES

ONLY Discovery Material to such person, such party's counsel shall notify counsel for the
Receiving Party in writing of the party's objection(s) to such disclosure prior to the date on which
the disclosure is intended to be made. Should the party intending to make the disclosure disagree
with the basis for the objection(s), the parties must first attempt to resolve the objection(s)
informally. If the informal efforts do not resolve the dispute within two (2) business days, the party
objecting to the disclosure may, after that two (2) business-day period has passed, file a motion
requesting a protective order. Pending a ruling by the Court upon any such objection(s), the
Discovery Material shall not be disclosed to the person objected to by the objecting party.
(c)

Counsel disclosing any Discovery Materials to a person required to execute a copy of the

acknowledgement form annexed hereto as Exhibit A shall maintain the original(s) of such form(s).
9.

To the extent that any CONFIDENTIAL or ATTORNEYS' EYES ONLY Discovery

Material is used in any court proceeding in this Litigation, including depositions, such Discovery
Material shall remain subject to the provisions of this Protective Order, along with the transcript
pages of any testimony reflecting such Discovery Material. If this case proceeds to a public trial, this
Court will determine which, if any, Discovery Material designated as either CONFIDENTIAL or
ATTORNEYS' EYES ONLY shall become part of the public record in this proceeding.
10.

The parties agree to be bound by the terms of this Protective Order with respect to any third

party that produces confidential Discovery Material pursuant to this Protective Order. A party that
seeks production of Discovery Material from a third party shall provide a copy of this Protective
Order to the third party with the request for production of Discovery Material, so that the third party

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is aware of, and may take advantage of, the protections afforded by this Protective Order.
11.

The recipients of CONFIDENTIAL and/or ATTORNEYS' EYES ONLY Discovery Material

provided under this Protective Order, and all material that derives therefrom, shall maintain such
materials in a safe and secure area, and all reasonable precautions shall be taken with respect to the
storage, custody, use and/or dissemination of such materials.

Any CONFIDENTIAL or

ATTORNEYS' EYES ONLY Discovery Material that is copied, reproduced, summarized, or
abstracted shall be subject to the terms of this Protective Order.
12.

CONFIDENTIAL and ATTORNEYS' EYES ONLY Discovery Material may be used or

submitted to the Court in connection with any filing or proceeding in this litigation pursuant to the
procedures and restrictions set forth in D.C.COLO.LCivR 7.2 of the United States District Court
for the District of Colorado. The Court may, in its discretion, re-designate as the Court deems
appropriate any materials filed under seal by a party or third party pursuant to this paragraph.
13.

Discovery Material shall not be deemed CONFIDENTIAL or ATTORNEYS' EYES ONLY,

regardless of its designation, if it falls into any of the following categories of information,
documents, and/or things:
(a)

available to the public at the time of its production hereunder;

(b)

available to the public after the time of its production through no unauthorized act, failure

to act, or violation of this Order by the Receiving Party, its, his or her counsel, representatives or
experts;
(c)

known to the Receiving Party or shown to have been independently developed by the

Receiving Party prior to its production herein or without use or benefit of the Discovery Material;
(d)

obtained outside of this action by the Receiving Party from the Producing Party without

having been designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY; provided, however,

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that this provision does not negate any pre-existing obligation of confidentiality;
(e) obtained by the Receiving Party from a non-party having the right to disclose the same; or
(f) previously produced, disclosed and/or provided by the Producing Party to the Receiving Party
or a non-party without an obligation of confidentiality and not by inadvertence or mistake.
14.

Upon giving written notice, any party may apply to remove the restrictions set forth herein

on Discovery Material designated CONFIDENTIAL or ATTORNEYS' EYES ONLY, based upon
a showing that such Discovery Material falls into one of the categories specified in Paragraph 13 of
this Protective Order. Before any such application to remove restrictions on Discovery Material,
the parties shall follow the steps set forth in Paragraph 19 (a) through 19(c) below.
15.

The inadvertent production of Discovery Material subject to the attorney-client privilege

and/or the work-product doctrine will not waive the protections of the applicable attorney client
privilege and/or work-product doctrine. Upon a request from a party that has inadvertently produced
Discovery Material that it believes should be subject to the attorney-client or work-product doctrine,
each party receiving said Discovery Material shall immediately return it and all copies to the
Producing Party. Notwithstanding the foregoing, this Paragraph shall not prevent the Receiving
Party from preparing a record for its, his or her own use containing the date, author, addresses, and
topic of such Discovery Material and such other information as is reasonably necessary to identify
the Discovery Material and describe its nature to the Court in any motion to compel production of
the Discovery Material.
16.

The inadvertent failure by a Producing Party to designate Discovery Material as

CONFIDENTIAL or ATTORNEYS' EYES ONLY shall not waive any such designation, provided
that the Producing Party notifies all Receiving Parties that such Discovery Material is
CONFIDENTIAL or ATTORNEYS' EYES ONLY within five (5) calendar days from when the

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failure to designate first becomes known to the Producing Party. A Receiving Party shall not be in
breach of this Order for any use of such Discovery Material before the Receiving Party receives
notice of the inadvertent failure to designate. Once a Receiving Party has received notice of the
inadvertent failure to designate pursuant to this provision, the Receiving Party shall treat such
Discovery Material at the appropriately designated level pursuant to the terms of this Protective
Order.

If, before the Producing Party notifies a Receiving Party of such designation of

already-produced Discovery Material, the Receiving Party discloses such Discovery Material in a
manner or to any person or entity, inconsistent with the subsequent designation, that Receiving Party
shall notify the Producing Party within three (3) calendar days of receiving such notice.
17.

In the event of a disclosure of any Discovery Material designated CONFIDENTIAL or

ATTORNEYS' EYES ONLY to a person or persons not authorized to receive such disclosure under
this Protective Order, the party responsible for having made such disclosure, and each party with
knowledge thereof, shall immediately notify counsel for the relevant Producing Party and provide
to such counsel all known relevant information concerning the nature and circumstances of the
disclosure. The counsel for the party responsible for having made such disclosure shall also
promptly take all reasonable measures to retrieve the improperly disclosed Discovery Material and
to ensure that no further or greater unauthorized disclosure and/or use thereof is made.
18.

Not later than ninety (90) days after the final disposition of this litigation, (including after

appeals, if any), each party shall return all CONFIDENTIAL and ATTORNEYS' EYES ONLY
Discovery Material to counsel for the relevant Producing Party or, in alternative, destroy such
Discovery Material. All parties that have received any such Discovery Material shall certify in
writing that all such CONFIDENTIAL and ATTORNEYS' EYES ONLY Discovery Material has
been returned or destroyed. Notwithstanding the provisions for return or destruction of Discovery

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Material, Outside Counsel may retain pleadings, expert reports, depositions, deposition exhibits, trial
exhibits, motions and attachments to motions, and attorney and consultant work product for archival
purposes.
19.

Any Discovery Material produced prior to entry of this Protective Order shall be

retroactively designated by notice in writing of the designated class of each Discovery Material by
Bates number within twenty (20) days of entry of this Order. Furthermore, a Receiving Party may
at any time request that the Producing Party cancel or modify the designation with respect to any
Discovery Material. A party shall not be obligated to challenge the propriety of any designation of
Discovery Material as CONFIDENTIAL or ATTORNEYS' EYES ONLY at the time the Discovery
Material is received, and a failure to do so shall not preclude a subsequent challenge thereto. Such
a challenge shall be written, shall be served on counsel for the Producing Party, and shall identify
particularly the documents or information that the Receiving Party contends should be differently
designated and the grounds for the objection. Thereafter, further protection of such material shall
be resolved in accordance with the following procedures:
(a)

The objecting party shall have the burden of conferring in person, in writing (including by

email), or by telephone with the Producing Party claiming protection (as well as any other interested
party) in a good faith effort to resolve the dispute. The designating party shall have the burden of
justifying the disputed designation;
(b)

Failing agreement, the objecting party may bring a motion to the Court for a ruling that the

Discovery Material in question is not entitled to the status and protection of the Producing Party's
designation;
(c)

Notwithstanding any challenge to a designation, the Discovery Material in question that has

been designated CONFIDENTIAL or ATTORNEYS' EYES ONLY shall continue to be treated as

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such under this Protective Order until one of the following occurs:
(i)

the party who designated the Discovery Material in question as CONFIDENTIAL or

ATTORNEYS' EYES ONLY withdraws such designation in writing (including by email); or
(ii)

the Court rules that the Discovery Material in question is not entitled to the designation.

20.

If Discovery Material sought by a Receiving Party is subject to a confidentiality obligation

of the Producing Party to a third party, and such obligation is not satisfied by the terms of this
Protective Order, the Producing Party shall promptly request permission from such third party to
produce the requested Discovery Material and shall provide a copy of this Protective Order to the
third party. If the third party does not consent to production of the requested Discovery Material,
the Receiving Party may make a motion to the Court for an order modifying the terms of this
Protective Order specifically with respect to the requested Discovery Material.
21.

This Protective Order is entered without prejudice to the right of any party to seek further

or additional protection of any Discovery Material or to modify this Protective Order in any way.
Nothing in this Protective Order shall be deemed to bar any Producing Party from seeking such
additional protection, including, without limitation, an order that certain matter not be produced at
all.
22.

If, at any time, Discovery Material becomes subject to a subpoena by any court or arbitral,

administrative, or legislative body, the person to whom the subpoena or other request is directed
shall immediately give written notice thereof to every party who has produced such Discovery
Material and to its, his or her counsel and shall provide each such party with an opportunity to object
to the production of confidential materials. If a Producing Party does not move for a protective
order within ten (10) days of the date written notice is given, the party to whom the referenced
subpoena is directed may produce such Discovery Material in response thereto.

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23.

Nothing in this Protective Order shall preclude any party to this lawsuit or any attorneys for

any party to this lawsuit from (a) showing Discovery Material designated as CONFIDENTIAL or
ATTORNEYS' EYES ONLY to any individual who either prepared the Discovery Material or
received or reviewed it prior to the filing of this action; or (b) disclosing or using, in any manner or
for any purpose, its, his or her own Discovery Material, regardless of designation. Notwithstanding
any designation of Discovery Material by a Producing Party under this Protective Order, any witness
may be shown at a deposition and examined on any Discovery Material produced by the witness'
current employer or that the witness authored or previously received. The witness, if a former
employee, may also be shown at a deposition and examined regarding any Discovery Material for
which: (a) specific documentary or testimonial evidence indicates that (i) the Discovery Material
was previously communicated to, or received from, the witness, or (ii) the witness was involved in
the specific matters addressed in the Discovery Material; or (b) the Producing Party of the Discovery
Material agrees to such use.
24.

The parties agree that the terms of this Protective Order shall survive and remain in effect

after the termination of the above-captioned matter.
25.

This Protective Order shall be binding upon the parties hereto, their counsel, and their

successors, executors, personal representatives, administrators, heirs, legal representatives, assigns,
subsidiaries, divisions, employees, agents, retained consultants and experts, and any persons or
organizations over which they have direct control.
26.

Execution of this Protective Order shall not constitute a waiver of the right of any party to

claim in this action or otherwise that any Discovery Material, or any portion thereof: is privileged,
otherwise non-discoverable, or not admissible in evidence in this action or any other proceeding.
27.

Notwithstanding anything to the contrary above, nothing in this Protective Order shall be

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construed to change the burdens of proof or legal standards applicable in disputes regarding whether
particular Discovery Material is confidential, proprietary, trade secret or commercially sensitive;
which level of confidentiality is appropriate; and whether disclosure should be restricted, and if so,
what restrictions should apply.
Dated and entered at Denver, Colorado, this 22nd day of November, 2011.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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APPROVED:

s/ Gayle L. Strong
Gayle L. Strong
Amy L. Kramer
GREENBERG TRAURIG, LLP
1200 17th Street, Suite 2400
Denver, CO 80202
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

ATTORNEYS FOR PLAINTIFF

s/ Kevin A. Russell
Sean M. Berkowitz
Kevin A. Russell
Matthew W. Walch
Sue K. Paik
LATHAM & WATKINS LLP
233 S. Wacker Drive, Suite 5800
Chicago, IL 60606
Tel: [phone]
Fax: [phone]
[e-mail] [e-mail]
[e-mail]
[e-mail]
Cliff Stricklin
Andrew B. Mohraz
HOLME ROBERTS & OWEN LLP
1700 Lincoln Street, Suite 4100
Denver, CO 80203-4541
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

ATTORNEYS FOR DEFENDANT

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