Olson v. NE Colorado Cellular, Inc.
PROTECTIVE ORDER. By Magistrate Judge Michael E. Hegarty on 11/22/2011. (sah, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 11-cv-02364-REB-MEH
NE COLORADO CELLULAR, INC.,
The Court, upon joint motion of the Parties for entry of a Protective Order pursuant to Rule
26(c) of the Federal Rules of Civil Procedure concerning the treatment of Confidential Information
Entry of this Protective Order is proper to protect against the use or disclosure of
Confidential Information outside the scope of this litigation which could result in significant injury
to business or privacy interests of one or more of the Parties or of non-parties.
“Confidential Information” means any document, file, portions of files, transcribed
testimony, or response to a discovery request, including any extract, abstract, chart, summary, note,
or copy made therefrom - not made available to the public - and designated by one of the Parties in
the manner provided in paragraph 3 below as containing confidential personnel information,
confidential medical information, confidential financial information, information subject to
confidentiality obligations owed to third parties, or other confidential information. Any information
designated by a party as confidential must first be reviewed by a lawyer whose designation of the
information as confidential shall constitute the lawyer’s certification that the designation is based
on a good faith belief that the information is confidential or otherwise entitled to protection under
Fed. R. Civ. P. 26(c)(7).
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:
By imprinting the word “Confidential” on the first page or cover of any
By imprinting the word “Confidential” next to or above any response to a
discovery request; and
With respect to transcribed testimony by deposition or otherwise, by giving
written notice to opposing counsel designating such portions as “Confidential” no later than ten
calendar days after receipt of the transcribed testimony, or by placing an appropriate statement on
the record during a deposition.
All Confidential Information provided by a Party in response to a discovery request
or transcribed testimony shall be subject to the following restrictions:
It shall be used only for the purpose of this litigation and not for any business
or other purpose whatsoever;
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.
Individuals authorized to review Confidential Information pursuant to this Protective
Order shall include: (1) counsel for the parties and staff employed by counsel and assisting with the
litigation; (2) named parties, and representatives of the corporate defendant assisting with the
litigation; (3) expert witnesses retained by the parties; and (4) witnesses to whom Confidential
Information is disclosed for purposes of testimony at deposition or trial or preparation for such
testimony. All such qualified recipients 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.
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, and shall maintain a list of all persons to whom any
Confidential Information is disclosed.
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 6 above upon
a showing of substantial need in order to establish the source of an unauthorized disclosure of
Confidential Information and that opposing counsel are unable otherwise to 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 and conditions deemed appropriate
by the Court.
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
During the pendency of this litigation, counsel shall retain custody of Confidential
Information, and copies made therefrom pursuant to paragraph 8 above.
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, 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 the 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 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. The parties shall comply with D.C. Colo. LCivR
7.2 and 7.3.
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. A party wishing to file or use in court any information designated as
Confidential Information by the opposing party shall first confer with counsel for the designating
party. If the designating party refuses to allow the information to be filed except under seal, the
filing party shall file a motion requesting leave to file documents under seal pursuant to this
Protective Order, and it shall then be the burden of the designating party to demonstrate that the
Confidential Information at issue is entitled to protection.
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, and the Court shall retain continuing jurisdiction to enforce the
terms of this Protective Order.
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.
Upon termination of this litigation, including any appeals, each Party’s counsel shall,
if requested by the producing party, immediately either destroy or return to the producing party all
Confidential Information provided subject to this Protective Order, and all extracts, abstracts, charts,
summaries, notes or copies made therefrom. Upon request of the producing party, counsel shall also
provide to the producing party the list of individuals who have received Confidential Information
which counsel shall have maintained pursuant to paragraph 6 herein, and verification that any
Confidential Information has been destroyed or returned to the producing party.
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 22nd day of November, 2011, in Denver, Colorado.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
STATE OF COLORADO
___________________, swears or affirms and states under penalty of perjury:
I have read the Protective Order in Kandace Olson v. NE Colorado Cellular, Inc.,
Civil Action No. 2011-cv-02364-REB-MEH.
I have been informed by ________________, counsel for __________________,
that the materials described in the list attached to this Affidavit are Confidential Information as
defined in the Protective Order.
I promise that I have not and will not divulge, or undertake to divulge to any
person or recording device any Confidential Information shown or told to me except as
authorized in the Protective Order. I will not use the Confidential Information for any purpose
other than this litigation.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
I will abide by the terms of the Protective Order.
(Print or Type Name)
Telephone No.: (
SUBSCRIBED AND SWORN to before me this _____ day of _____________, 2011, by
WITNESS my hand and official seal.
[S E A L]
My Commission Expires:
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