Upshaw v. Transmontaigne Services, Inc.

Filing 16

PROTECTIVE ORDER: by Magistrate Judge Boyd N. Boland on 1/17/12. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 11-CV-02301-WYD-BNB
VANESSSA UPSHAW,
Plaintiff
v.
TRANSMONTAIGNE SERVICES, INC., a Delaware corporation,
Defendant.

STIPULATED PROTECTIVE ORDER

Upon consideration of the stipulation of Plaintiff Vanessa Upshaw ("Plaintiff") and
Defendant TransMontaigne Services Inc. ("Defendant") as reflected by their signatures hereto,
for a Protective Order concerning certain information and documents provided during the course
of this litigation, which the parties claim constitute commercially sensitive and confidential
information according to current law, and it appearing to the Court that sufficient cause exists for
the issuance of a Protective Order, it is
ORDERED as follows:
1.

Any documents produced or exchanged by any of the parties to this action, or any of their

attorneys, and any information contained in responses to interrogatories or in any other
discovery, including but not limited to deposition testimony and deposition exhibits, which a
party in good faith believes contain confidential information, commercially valuable or sensitive
business information, trade secrets, or confidential personnel information, may be designated as
confidential, and all documents and information so designated and all copies thereof (hereinafter

referred to collectively as "the Confidential Information"), shall be treated as confidential and
shall not be disclosed except as provided in this Order; PROVIDED, however, that counsel for
the party designating information as confidential may, in writing and without Court approval,
agree to release any of the Confidential Information from the requirements of this Order.
2.

Information produced during the course of this Action within the scope of Paragraph 1

above, may be designated by the producing party (“Designating Party”) as containing
Confidential Information by conspicuously placing on each page the legend:
CONFIDENTIAL/Subject to Protective Order
Upshaw v. TransMontaigne
11-CV-02301-WYD-BNB
Such designation shall be placed on the page so that it will not interfere with the legibility of
material on the page. If and to the extent that such information is entered as an Exhibit at a
hearing or trial relating to this action, a clean copy of the document without the legend may be
substituted for admission into evidence.
3.

Any party wishing to challenge the designation of any document as confidential by the

other 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 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.

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.
4.

Neither the Confidential Information nor its contents shall be disclosed to any other

person without the agreement of the party designating information as confidential, except that
counsel may, without further agreement, disclose the Confidential Information or its contents to
the following persons for use solely in connection with this action under the following
conditions:
a.

attorneys and legal assistants, whether employees or independent

contractors, of counsel's firms and to any other employee of counsel's firms who shall handle the
Confidential Information under normal office procedure;
b.

any person the attorneys in good faith believe will or may be requested or

required to testify as a witness at deposition or trial ("Potential Witness"), provided that such
Potential Witnesses shall be shown only Confidential Information that relates to issues of which
counsel reasonably believes the Potential Witness has some prior knowledge, and only such
Confidential Information as counsel deems reasonably necessary to allow for the full and fair
exploration and presentation of information possessed by the Potential Witness;
c.
d.

the parties;

e.
any; and

experts or consultants retained by the parties with respect to this action;

the Court and its employees (“Court Personnel”), and members of a jury if

f.

any court reporters present in their official capacity at any hearing,

deposition or other proceeding in this action.
5.

Prior to disclosing any Confidential Information to any person listed above (other than

the parties, counsel, persons employed by counsel, Court Personnel, members of a jury, if any,
and court reporters), counsel shall provide such person with a copy of this Protective Order and
obtain from such person a written acknowledgment in the form attached hereto as Exhibit A
stating that he or she has read this Protective Order and agrees to be bound by its provisions,
including consent to the jurisdiction of this Court. This provision shall not apply when a party is
to be deposed using Confidential Information that it produced. All such acknowledgments 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.
6.

Neither the Confidential Information nor its contents shall be used or disclosed to any

person for any purpose beyond this action.
7.

The party receiving confidential information, regardless of the format in which that

information is produced, shall, within 30 days of the termination of litigation (including
termination of any appeals), provide a listing of all of confidential information provided by the
Disclosing Party, including those provided to expert witnesses and computer files containing
confidential information, and provide a certification that 1) such information will be removed
from all computers and copies of such information will be maintained by the receiving party’s
attorney under seal; 2) such sealed confidential information shall not be unsealed without first
giving the Disclosing Party ten (10) days prior written notice indicating the reason for unsealing
the information and an opportunity for the Disclosing Party to seek an appropriate Court order

regarding the unsealing, use or disclosure of the Confidential Information; and 3) indicating that
such confidential information shall be destroyed at the end of seven (7) years, or as otherwise
provided for by the receiving party’s attorney’s record retention and client file destruction
policy, whichever is earlier. In no case shall such sealed information leave the receiving party’s
attorney’s possession, or be given directly to the party as a part the attorney’s file. At the time of
destructions or deletion of the confidential information maintained under seal, all such
confidential information shall be destroyed, including the deletion of any computer files
containing confidential information, wherever they exist. Within 30 days of the destruction of
the confidential information contained under seal, the receiving party shall certify in writing to
the producing party that all confidential information, regardless or format or location, has been
destroyed.
8.

The provisions of this order shall not limit the parties' ability to make full use of

otherwise admissible Confidential Information at any stage of this litigation as necessary,
including but not limited to, attachments to pleadings, exhibits to depositions or at trial. Any
request to restrict access to documents or materials filed with the court must comply with
the requirements of D.C.COLO.LCivR 7.2. If either party submits Confidential Information
to the Court as an attachment to pleadings, motions, depositions or to any other document filed
with the Court, such submission shall be made under seal and opened only by order of the Court.
9.

The confidentiality provisions of this Order shall survive any settlement, judgment or

other disposition or conclusion of this action, and all appeals there from, and this Court shall
retain continuing jurisdiction in order to enforce the terms of this Order.

10.

Any party may at any time and for any reason seek modification of this Protective Order.

This Protective Order can be modified only by written agreement of the parties or by order of
this Court. Each party reserves the right to object to any party's motion or request to modify this
Protective Order.

Dated January 17, 2012.

BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

Stipulated by:

ELWYN F. SCHAEFER AND

LATHROP & GAGE LLP

ASSOCIATES, P.C.
s/ Denise D. Riley
s/ Elwyn F. Schaefer

Elwyn F. Schaefer
1801 Broadway, Ste. 550
Denver, Colorado 80202
Telephone: [phone]
Facsimile: 303 825 5460
Email:
[e-mail]
Counsel for Plaintiff Vanessa Upshaw

Denise D. Riley, No. 33944
Maxwell N. Shaffer, No. 42500
950 17th Street, Ste. 2400
Denver, Colorado 80202
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
Counsel for Defendant TransMontaigne Services,
Inc.

EXHBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 11-CV-02301-WYD-BNB
VANESSSA UPSHAW,
Plaintiff
v.
TRANSMONTAIGNE SERVICES, INC., a Delaware corporation,
Defendant.

ACKNOWLEDGMENT OF PROTECTIVE ORDER
_____________________________________________________________________________
I, ____________________________________, declare as follows:
1.

My address is _________________________________________________________.

2.

My present employer is _________________________________________________.

3.

My present job position is _______________________________________________.

4.

Pursuant to the Protective Order entered by the Court in this case (“Order”), I hereby

acknowledge that I may receive information designated under the Order, and I certify my
understanding that such information is provided to me pursuant to the terms and restrictions of that
Order.
5.

I further state that I have been given a copy of, and have read the Order, that I am familiar

with its terms, and I agree to comply with and to be bound by each of its terms, and that I agree to
hold in confidence any information disclosed to me pursuant to the terms of the Order and to use
such information solely for the purpose of this action.

6.

To assure compliance with the Order, I hereby submit myself to the jurisdiction of the United

State Court for the District of Colorado and any other Court having personal jurisdiction over me
for the limited purpose of any proceedings relating to the performance under, compliance with, or
violation of the Order.
7.

I understand that I am to retain all of the material that I receive which has been designated

under the Order in a manner consistent with the Order and that all such materials are to remain in
my custody until I have completed my testimony or assigned duties in this matter. I further
understand that, upon the completion of my testimony or assigned duties in this matter all materials
are to be returned to the counsel or party by whom I have been provided such materials or they are
to be destroyed. I also understand that any materials, memoranda, work notes, or other documents
derived from documents designated under the Order are to be delivered to the counsel or party by
whom I have been provided are to be destroyed. Such delivery or destruction shall not relieve me
from any of the continuing obligations imposed upon me by the Order. I further agree to notify any
clerical personnel who are required to assist me of the terms of the Order.
I declare under penalty of perjury under the law of the United States of America that the
foregoing is true and correct.

Signed at ________________________________ on this ____ day of_______________, 2012.