Lawrence v. School District No. 1 in the City and County of Denver et al

Filing 43

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 2/27/2012. (kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action Number: 11-cv-2789-PAB-KMT
JUANETTA LAWRENCE,
Plaintiff,
v.
SCHOOL DISTRICT No. 1, IN THE CITY AND COUNTY OF DENVER,
a/k/a DENVER PUBLIC SCHOOLS,
BOARD OF EDUCATION OF SCHOOL DISTRICT No. 1, IN THE CITY
AND COUNTY OF DENVER, a/k/a DENVER BOARD OF EDUCATION,
and
ONE OR MORE JOHN DOES,
Defendants.

PROTECTIVE ORDER

Plaintiff has filed a motion requesting that the Court enter this 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.

Plaintiff anticipates that the Parties will seek Confidential Information during

discovery and that there will be questioning concerning Confidential Information in the course
of depositions and other proceedings in this action. Plaintiff asserts that 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. Plaintiff has requested that the Court issue this

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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, 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.
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.
5.

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

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

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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 (“Finders of Fact”);

h.

other persons by written agreement of the Parties.

7.

Prior to disclosing any Confidential Information, counsel shall provide such

person with a copy of this Protective Order and obtain from such person a written affidavit

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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. Persons described in Paragraphs 6(a), 6(e), 6(f) and (6g) of this
Protective Order shall not be required to execute an affidavit.
8.

The Party or Party’s counsel who discloses Confidential Information 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 affidavits and the list maintained by counsel pursuant to
paragraphs 7 and 8 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 or conditions deemed appropriate by the Court.
10.

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

counsel in this litigation for work product purposes, including for review by experts in this case
or for the attachment of copies of confidential documents to motions and submissions to the
Court by a Party in accordance with D.C.COLO.LCivR 7.2. Any such copies shall be made and
used solely for purposes of this litigation.

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11.

Except as elsewhere provided in this Protective Order, during the pendency of this

litigation, counsel shall retain custody of Confidential Information, and copies made therefrom
pursuant to paragraph 10 above.
12.

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.
13.

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.
14.

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

hereunder from their responsibility to maintain the confidentiality of Confidential Information

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pursuant to this Protective Order, and the Court shall retain continuing jurisdiction to enforce
the terms of this Protective Order, even after this action is terminated.
15.

Neither the taking of 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.
16.

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, 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.
17.

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.
18.

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

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time for good cause shown following notice to all Parties and an opportunity for them to be
heard.
19.

Nothing in this Protective Order shall relieve any Party of its obligation under

Fed.R.Civ.P. 26(b)(5) to prepare and provide a privilege log.
DATED this 27th day of February, 2012.
BY THE COURT:

____________________________________
Kathleen M. Tafoya
United States Magistrate Judge

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EXHIBIT A: AFFIDAVIT
STATE OF COLORADO
COUNTY OF _________

)
)ss
)

_____________________________, swears of affirms and states under penalty of
perjury:
1.

I have been informed by ___________________________, Esq., counsel for

_______________________________, that the categories of documents described in the list
attached to this Affidavit are Confidential Information as defined in the attached Protective
Order.
2.

I have read the attached Protective Order, understand its contents, and agree not to

make any disclosures of information, documents, tangible things, testimony, or other data
marked or identified and produced as Confidential Material in this litigation to any person who is
not permitted to have access under the Protective Order. I further agree to use information,
documents, tangible things, testimony, or other data identified and produced as Confidential
Information solely for purposes of this litigation.
3.

I will abide by the terms of the Protective Order.

4.

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.

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5.

For the purpose 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 agree that any
dispute concerning enforcement of this Agreement may be decided by the Magistrate Judge or
District Court Judge in the above referenced litigation.

_________________________________________________ (Signature)
_________________________________________________ (Print or Type Name)
Address:________________________________________________________________
Telephone No.: (_____) _____________________

SUBSCRIBED

AND

SWORN

to

before

me

this

______________

day

___________________________, 2010 by __________________________________.

WITNESS my hand and official seal.

[SEAL]

_____________________________
Notary Public

My commission expires:________________

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