Rose v. Hartford Life and Accident Insurance Company, The

Filing 26

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 11/19/12. (cbssec)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-2905-WJM-CBS
BARBARA ROSE,
Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, and
JOHN AND JANE DOES NUMBER 1-10,
Defendants.
______________________________________________________________________________
STIPULATED PROTECTIVE ORDER
______________________________________________________________________________
THIS STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE
ORDER is made between and among the parties to the above-captioned action on the date so
indicated below.
WHEREAS, discovery, including but not limited to interrogatories, document requests,
requests for admission and depositions, in the above-captioned action will involve the production
of information that the producing parties assert is confidential, personal, sensitive, proprietary,
trade secret, commercial, financial and/or business information;
WHEREAS, the parties agree to the terms herein, and to stipulate to the entry of an Order
concerning confidential and otherwise sensitive business or proprietary information, and to
facilitate the preservation of such confidential material, the parties agree to adhere to the terms
herein regardless of whether the Court enters this Stipulated Confidentiality And Protective
Order (“Order”) as an order of the Court.

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED as follows:
1. Scope
This Order includes in its scope any documents, electronically stored information, or
other information produced, or disclosed in the above-captioned litigation (“Action”), whether
pursuant to formal or informal discovery requests, correspondence, motions not filed with the
court, by subpoena, or through testimony; including all documents and tangible things as defined
in the Federal Rules of Civil Procedure, or any applicable local rules; and to all such information
produced or disclosed by non-parties to this Action pursuant to subpoena and/or deposition
notice (“Litigation Material”). “Action” shall also include any litigation, action, proceeding or
supplemental proceeding in any jurisdiction brought to enforce any judgment entered in this
Action or any settlement agreement among or between any of the parties hereto.
2. Use of Litigation Material
All Litigation Material, disclosed or obtained by or from any person, whether or not a
party, in response to any discovery method authorized or permitted by the Federal Rules of Civil
Procedure or disclosed through the sealed filing of papers with the Court, shall be used for no
purpose other than the prosecution and/or defense of this Action absent further Order of the
Court. Nothing in this Order shall be construed to limit, condition or otherwise restrict in any
way each Party’s use of its own Confidential Information. Such disclosure by the producing
Party shall not waive the protections of this Order and shall not entitle other parties, non-parties
or their attorneys to use or disclose such information in violation of the Order.

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3.

Confidential Information

Each party or a non-party in its sole discretion may designate as “Confidential” under the
terms of this Order any: (i) Litigation Material such party or non-party produces in this Action;
or (ii) Litigation Material produced by any non-party consisting of information concerning one
or more parties (“Confidential Information”). Litigation Material may be designated as
“Confidential” before or after it has been produced or disclosed.
4.

Designation of Litigation Material as Confidential
a.

Litigation Materials containing Confidential Information shall be so

designated by marking the respective pages of the document and where appropriate, the
entire document, with the legend “CONFIDENTIAL”. In the event a party produces
Litigation Material that it deems to be Confidential Information without designating it as
such, the producing party may, by written notice delivered to the receiving party,
designate the information Confidential and upon receipt of such notice, every receiving
party shall mark the Litigation Material “CONFIDENTIAL” and shall treat it thereafter
as Confidential and subject to this Order.
b.

Documents made available for inspection in response to a request for

production need not be marked “CONFIDENTIAL” prior to inspection. However, the
producing party following an inspection can mark those documents designated for
copying that contain Confidential Information as “CONFIDENTIAL”.
c.

All portions of deposition transcripts shall be treated as Confidential

Information if designated as such on the record by counsel for any party hereto, or by
counsel for any non-party testifying pursuant to subpoena.
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d.

The Confidential Information designation shall apply to any copies or

other reproductions, excerpts, summaries, abstracts or other documents that paraphrase,
excerpt, or contain Confidential Information. Any such material shall also be clearly
designated as containing Confidential Information and shall be subject to all other
applicable protections and provisions of this Order.
5.

Contesting Confidential Designation

Any Party who contests the designation of any Litigation Material as Confidential shall
provide written notice to opposing counsel of their objection within thirty (30) days of receipt or
notice of designation of the Litigation Materials as Confidential, and the parties shall use their
best efforts to resolve any objection informally. If the parties are unable to resolve their dispute,
the Party who contests the designation of materials as Confidential can file an objection with the
Court within (45) days of receipt or notice of designation of the Litigation Materials as
Confidential if written notice was provided within 30 days, and the matter shall be briefed
according to local rules. In any challenge to the designation of the materials as Confidential, the
burden of proof shall be on the Party seeking protection.
Designation of materials as Confidential shall not operate as an admission by any party
receiving the materials that the information is or is not: (a) confidential; (b) privileged; (c)
relevant; or (d) admissible in evidence at trial.
6.

Access to Confidential Information

Counsel for Plaintiff shall be governed by the following restrictions in its use of the
Confidential Information produced to it and as to the information derived therefrom:

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a.

Such Confidential Information may not be disclosed except as is necessary

for the purpose of, and solely in connection with, litigating this case. For that purpose
only, Counsel for Plaintiff may disclose such information to the Court and its employees,
court reporters, independent expert witnesses or potential expert witnesses retained by
Counsel for Plaintiff, and such other persons as may be agreed upon by the parties in the
future, said agreement to be in writing signed by Counsel for all parties.
b.

Before disclosure of Confidential Information to any person as permitted by the

preceding paragraph (other than the Court and its employees), such person shall read a
copy of this Stipulation and sign an Agreement To Respect Confidential Information
attached hereto as Appendix “A” (the “Agreement”). Counsel for Plaintiff shall maintain
a copy of all Agreements signed by such persons and shall furnish copies to Counsel for
Hartford upon its request. No Confidential Information shall be disclosed to any person
who refuses or has failed to sign the Agreement. In the event any person who has signed
an Agreement refuses to comply therewith or fails to adhere to the terms thereof, Counsel
for Plaintiff shall make no further disclosure to such person and shall immediately notify
Counsel for Hartford in writing.
c.

Confidential Information may be copies and summaries, digests or abstracts may

be made, but all such copies, digests, abstracts and summaries shall be considered
Confidential and shall be subject to the provisions of this Stipulation.
7.

Use of Confidential Information at Hearings, Trial, and Depositions

Confidential Information may be referred to in documents filed with the Court such as
briefs, memoranda, or other submissions, or made exhibits to documents filed with the Court or
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at trial, provided that any such briefs, memoranda, exhibits or submissions incorporating or
referencing such Confidential Information, shall bear the statement “Confidential - Document
Subject to Stipulated Confidentiality Agreement and Protective Order” on the first page of the
brief, memorandum, exhibit or submission. Any brief, memorandum, exhibit or submission
being filed with the court shall be filed under seal endorsed with the case caption, the word
“CONFIDENTIAL” and a statement substantially in the following form:
“This is sealed pursuant to order of the Court and contains Confidential
Information filed in this case by [name of party or non-party] and is not to be opened nor
the contents thereof to be displayed or revealed except by order of the Court or pursuant
to stipulation of the parties to this action. Violation thereof may be regarded as contempt
of Court.”
In the event that any Confidential Information is used in any court proceeding prior to or
at trial, it shall not lose its confidential status through such use.
8.

References in Open Court

Confidential Information may be used by Counsel for Plaintiff in connection with any hearing or
trial.
9.

Notice of Unauthorized Disclosure

If Confidential Information is disclosed to or comes into the possession of any person
other than in the manner authorized by this Order, the Party who improperly disclosed the
information must immediately inform the producing party of all pertinent facts relating to such
disclosure and shall make every effort to retrieve the improperly disclosed information and
prevent disclosure by each unauthorized person who received such information.

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10.

Response to Third-Party Discovery

In the event that any court requires the disclosure of Confidential Information, the party
from whom disclosure is sought shall give immediate written notice to the parties that produced
or designated the Litigation Material as Confidential to enable said party to take protective
actions as it may deem necessary. In the event a party believes that disclosure is otherwise
required by law, it shall give at least 30 days written notice to the parties that produced or
designated the Litigation Material as Confidential prior to disclosure.
11.

Return of Confidential Information

Within 30 days of the conclusion of this Action, the parties agree to return all
Confidential Information (including electronically produced materials) and copies thereof to the
producing party, or certify in writing that they have destroyed all Confidential Information
(including electronically produced materials) and all copies thereof. The provisions of this Order
restricting communication, treatment and use of Confidential Information, shall continue to be
binding after the termination of this Action.
12.

Legal Action and Remedies

Counsel for Plaintiff acknowledges it may be subject to sanctions for breach of this
Confidentiality Agreement and agrees to reimburse Hartford for all reasonable attorneys’ fees
and costs incurred as a result of a successful action initiated by Hartford seeking sanctions for
breach of this Confidentiality Stipulation. Counsel for Plaintiff also agrees to reimburse Hartford
for all reasonable attorneys’ fees and costs incurred as a result of any successful action initiated
by Hartford to enforce this Confidentiality Stipulation. Nothing in this Confidentiality

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Stipulation limits Hartford’s right to pursue other legal or equitable remedies available to it
resulting from a breach of this Confidentiality Stipulation.
13.

Purpose of Stipulation and Order

This Order is entered for the purposes o providing appropriate confidentiality protections and
facilitating the production of documents and information without involving the Court
unnecessarily in the process. Nothing in this Order nor the production of any information or
document under the terms of the Order nor any proceedings pursuant to this Order shall be
deemed: (a) to have the effect of an admission or waiver by either party; or (b) to alter the
confidentiality or non-confidentiality of any document or information; or (c) to alter any existing
obligation of any party or the absence thereof.
14.

Court Retains Jurisdiction

After the conclusion of this litigation, the provisions of this Order shall continue to be binding
and this Court shall retain jurisdiction over all persons who have access to confidential
information produced pursuant to this Order for the purpose of enforcement of this Order,
including any appropriate sanctions for violations.
15.

Non-termination of Order

This Order shall remain in effect for the duration of the Litigation unless terminated by
stipulation executed by Counsel of record for the parties or by order of the Court. The provisions
of this Order, insofar as they restrict the communication, treatment and use of Confidential
Information, shall continue to be binding after the termination of this action unless the Court
orders otherwise.

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16.

Modification Permitted

Nothing in this Order shall prevent any Party from seeking modification of this Order.
17.

Non-waiver

Nothing in this Order shall prevent any Party from objecting to discovery that the Party
believes to be otherwise improper.
18.

Counterparts

This Order may be executed in counterparts, each of which shall constitute one and the
same agreement.
DATED at Denver, Colorado, on November 19, 2012.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

STIPULATED AND AGREED BY:
s/James N. Thomaidis
Keith D. Lapuyade
James N. Thomaidis
Godfrey & Lapuyade, P.C.
9557 South Kingston Court
Englewood, Colorado 80112
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
ATTORNEYS FOR PLAINTIFF BARBARA ROSE

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s/ Jack M. Englert, Jr.
Jack M. Englert, Jr.
Steven T. Collis
Holland & Hart LLP
6380 South Fiddlers Green Circle, #500
Greenwood Village, CO 80111
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
ATTORNEYS FOR DEFENDANT HARTFORD

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APPENDIX “A”
AGREEMENT TO RESPECT CONFIDENTIAL INFORMATION
I have read and understand the Confidentiality Stipulation in the case of Rose v. Hartford
Life & Acc. Ins. Co., et al. pending in the District of Colorado, a copy of which Stipulation has
been delivered to me to keep with my copy of this Agreement. I agree to be bound by all the
terms of the Confidentiality Stipulation and hereby agree not to use or disclose the Confidential
Information to be disclosed to me except for purposes of this litigation as set forth in the
Confidentiality Stipulation. I further agree and attest to my understanding that breach of this
Agreement is directly actionable by the party which designated the Confidential Information
which is disclosed, and that in the event I fail to abide by the terms of the Stipulation, I may be
subject to sanctions.
____________________________
Signature
____________________________
Name (Printed)
____________________________
Street Address
____________________________
City State
Zip
____________________________
Occupation or Business

5679623_1.DOCX

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