Waggoner v. Safeway, Inc.

Filing 29

PROTECTIVE ORDER, by Judge John L. Kane on 11/30/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02879-JLK
CHRISTINA WAGGONER,
Plaintiff,
vs.
SAFEWAY INC.,
Defendant.
PROTECTIVE ORDER
Kane, J.
Upon consideration of the parties Motion for Entry of Stipulated Protective Order, I find
sufficient cause exists under F.R.C.P26(c) for the issuance of a Protective Order. I decline,
however, to adopt the terms of the parties’ proposed protective order and instead ORDER as
follows:
1.

In this action, at least one of the Parties has sought and/or is seeking Confidential

Information (as defined in paragraph 2 below).

The Parties also anticipate seeking additional

Confidential Information during discovery and that there will be questioning concerning Confidential
Information in the course of depositions. 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.
2.

"Confidential Information" means any document1, 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 being Confidential.

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As used in this Protective Order, “document” is defined as provided in F.R.C.P. 34(a).

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 (in a manner that will not interfere with content’s legibility) the
word "Confidential" on the first page or cover of any document produced;

b.

By imprinting (in a manner that will not interfere with content’s legibility) 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 calendar
days after receipt of the transcribed testimony.

4.

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.

5.

Individuals authorized to review Confidential Information pursuant to this Protective

Order 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.
6.

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.
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7.

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.
8.

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 litigation.
9.

During the pendency of this litigation, counsel shall retain custody of Confidential

Information, and copies made therefrom pursuant to paragraph 8 above.
10.

If opposing counsel objects to the designation of certain information as Confidential

Information, he or she shall promptly inform the other parties' counsel in writing of the specific grounds
of objection to the designation. All counsel shall then, in good faith and on an informal basis, attempt to
resolve such dispute. If after such good faith attempt, all counsel are unable to resolve their dispute,
opposing counsel may move for a disclosure order consistent with this order. Any motion for disclosure
shall be filed within 14 days of receipt by counsel of notice of opposing counsel's objection, and the
information shall continue to have Confidential Information status from the time it is produced until the
ruling by the Court on the motion.
11.

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 a sealed
envelope with the following statement typed conspicuously thereon:
CONFIDENTIAL
This document is filed under seal. Unless otherwise ordered by the Court, it shall
not be reproduced for, or shown to, persons other than those entitled to have access
to such documents under the Protective Order entered on * in Civil Action No. *.
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Any pleadings or briefs filed by the parties that either quote or discuss the contents of information
designated as Confidential Information shall also be filed in sealed form.
12.

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.
13.

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.
14.

Upon termination 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, and all extracts, abstracts, charts, summaries, notes or copies made therefrom. Alternatively, the
Parties may jointly elect to destroy Confidential Information.

Where the Parties agree to destroy

Confidential Information, the destroying Party shall provide all Parties with an affidavit confirming the
destruction. At the time of either return or destruction, counsel shall also file under seal with this Court
the list of individuals who have received Confidential Information which counsel shall have maintained
pursuant to paragraph 6 herein, and counsel shall provide the Court with verification that any of counsel's
work product referencing Confidential Information has been destroyed.
15.

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 at Denver, Colorado, this 30th day of November, 2012.
BY THE COURT:

/s/John L. Kane______________
SENIOR U.S. DISTRICT JUDGE

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STIPULATED AND AGREED TO:

______________________________
Party
Counsel

______________________________

______________________________
Party
Counsel

______________________________

______________________________
Party
Counsel

______________________________

EXHIBIT A
AFFIDAVIT

[case caption here]

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

I have read the Protective Order in *, a copy of which is attached to this Affidavit.

2.
I have been informed by *, Esq., counsel for *, that the materials described in the list
attached to this Affidavit are Confidential Information as defined in the Protective Order.
3.

I promise that I have not and will not divulge, or under-

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take to divulge to any person or recording device any Confidential Information show 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.
4.
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.
5.

I will abide by the terms of the Protective Order.
_______________________________
(Signature)
_______________________________
(Print or Type Name)
Address:
_______________________________
_______________________________
Telephone No.: (____)__________

SUBSCRIBED AND SWORN to before me this * day of *, ****, by
_______________________________.
WITNESS my hand and official seal.
_______________________________
Notary Public

[S E A L]
My Commission Expires:__________

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