JTS Choice Enterprises, Inc. v. E.I. Du Pont De Nemours and Company et al

Filing 454

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 11/19/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-CV-03143-WJM-KMT
JTS CHOICE ENTERPRISES, INC.
Plaintiff,
v.
E.I. DU PONT DE NEMOURS AND COMPANY et al

Defendant.

STIPULATION AND PROTECTIVE ORDER

WHEREAS, the following factors that outweigh any interests of potential
third parties to obtain access to discovery materials support a finding that “good cause”
exists for issuing a Protective Order: disclosure of trade secrets or other proprietary
business information contained in the discovery will violate the interest of the parties;
neither litigant is a public entity or official; and the sharing of the information between
litigants will promote fairness and efficiency;
WHEREAS, the parties stipulate and agree that the materials to be
produced and exchanged and the testimony to be given during the course of discovery
may contain confidential information consisting of data reflecting pricing, business
strategies, and trade secrets or other proprietary business information that could prove
harmful to the parties if disseminated or published;
Counsel for Plaintiffs in the above-referenced matter (“Plaintiffs”), counsel
for E.I. du Pont de Nemours and Company (“DuPont” or “Defendant”)),and counsel for

  DMEAST #15018155 v1

non-parties Metro Paint Supplies, Inc., (“Metro Paint”) and Automotive Coatings &
Equipment, LLC (“AC”) hereby submit this proposed stipulation and protective order
(“Protective Order”) in order to expedite the flow of discovery material, facilitate the
prompt resolution of disputes over confidentiality, adequately protect material entitled to
be kept confidential, and ensure that protection is afforded only to material so entitled.
Accordingly, it is hereby ORDERED by the Court that the following provisions shall
govern confidentiality in this proceeding:
1.

Confidential Material: Any party or nonparty producing documents

or things in this matter may designate as CONFIDENTIAL documents, pleadings,
deposition transcripts, answers to interrogatories, responses to requests for admissions,
exhibits and any other information produced, prepared, or discovered in the matter that
contain nonpublic purchase and/or sale data; trade secrets; proprietary commercial,
financial, technical, research, development, or business information; or any other
nonpublic or sensitive information for which a good faith claim of need of protection can
be made under the Federal Rules of Civil Procedure and/or applicable law.

2.

Highly Confidential Material: Any material that is CONFIDENTIAL

as described in paragraph 1 that a party or nonparty believes should generally not be
disclosed to a director, officer or employee of another party may be designated as
HIGHLY CONFIDENTIAL. The parties contemplate that HIGHLY CONFIDENTIAL
material shall include, inter alia, competitively sensitive financial data, manufacturing
information, product composition information, current and future business plans and
marketing plans and information.

  DMEAST #15018155 v2

3.

Attorney Review: Any material designated by a party as

CONFIDENTIAL or HIGHLY CONFIDENTIAL must first be reviewed by an attorney who
will certify that the designation as CONFIDENTIAL or HIGHLY CONFIDENTIAL is
based on a good faith belief that the information is entitled to protection.

4.

Identification of Materials: The parties shall designate

CONFIDENTIAL and HIGHLY CONFIDENTIAL materials as follows:

(a)

In the case of documents, interrogatory answers, responses

to requests to admit, and the information contained therein, designation shall be made
by announcing at the time of production and by placing or electronically affixing the
following legend on each page of such document prior to production: CONFIDENTIAL
or HIGHLY CONFIDENTIAL.
(b)

In the case of depositions, designation of the portion of the

transcript (including exhibits) that contains CONFIDENTIAL or HIGHLY
CONFIDENTIAL material shall be made by a statement to such effect on the record in
the course of the deposition or upon review of such transcript by counsel for the party or
nonparty to whose CONFIDENTIAL or HIGHLY CONFIDENTIAL material the deponent
has had access. Subject to paragraph (c) below, such review by counsel shall occur
within thirty (30) days after counsel’s receipt of the transcript. During such thirty (30)
day time period, the entire deposition transcript, including any exhibits, shall be deemed
HIGHLY CONFIDENTIAL. Counsel designating a transcript (or portion thereof)
CONFIDENTIAL or HIGHLY CONFIDENTIAL shall serve upon opposing counsel a list
of pages marked CONFIDENTIAL or HIGHLY CONFIDENTIAL. If no designation is
made within thirty (30) days after receipt of the transcript, or such other period if the

  DMEAST #15018155 v3

time to designate is shortened either by agreement of the parties or by Court order, the
transcript shall be considered not to contain any CONFIDENTIAL or HIGHLY
CONFIDENTIAL material.
(c)

A party may reasonably request that a deposition transcript

be shown to a witness prior to the designation of such transcript as CONFIDENTIAL or
HIGHLY CONFIDENTIAL, and consent to such a request shall not be unreasonably
withheld. In the event of a dispute as to such a request, the parties shall first try to
resolve such dispute in good faith on an informal basis. If the dispute cannot be
resolved within two (2) business days, the party making the request may seek
appropriate relief from the Court. The parties agree, subject to Court approval, that
such relief sought can be in the form of a telephone conference to be scheduled at the
Court’s earliest convenience with the objective of obtaining an immediate resolution of
the dispute.

(d)

Unless otherwise provided by Court order, if a deposition

transcript, or portion thereof, or other document is filed with the Court and if it contains
CONFIDENTIAL or HIGHLY CONFIDENTIAL material, the transcript or other document
shall be filed pursuant to D.C.COLO.LCivR 7.2 as a restricted document, subject to
Level 1 treatment. Any pleadings or briefs filed by the parties that quote the contents of
the transcript or other document shall also be filed in this manner.
5.

Use of Confidential or Highly Confidential Material: Any materials

designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL shall be used by the party
receiving the materials as a direct result of this litigation (the “Receiving Party”) solely
for the purpose of conducting this matter and not for any other purpose whatsoever.

  DMEAST #15018155 v4

Nothing in this Order shall be construed to control the use, dissemination, publication, or
disposition by a party or its counsel of documents or information (i) existing in the files of
that party or its counsel before the date of this Order, or (ii) received at any time by that
party or its counsel outside the course of the formal and informal discovery process in
this litigation.

6.

Treatment of Confidential Material: Materials or information

designated as CONFIDENTIAL may be disclosed by the Receiving Party only to the
following persons:

(a)

in-house counsel employed by the Receiving Party and in-

house legal support personnel employed in the in-house counsel’s office;
(b)

outside counsel at a law firm of record representing a named

party in this matter, including all paralegal assistants, secretaries, clerical staff, and/or
other employees of the law firm working under the supervision of such counsel;
(c)

court reporters, interpreters, translators, copy services and

database/coding services retained by and providing services for counsel described in
paragraph 6(b) above provided that such persons must execute an agreement to
maintain the confidentiality of any received materials in accordance with Exhibit A prior
to the receipt of such materials;
(d)

any expert or consultant, as well as all assistants,

stenographic, and clerical employees working under the supervision of such expert who
(i) is expressly retained by any attorney described in paragraph 6(b) to assist in
preparation of that action for trial, and (ii) is not a current employee of a party or
subsidiary or affiliate of a party; provided, however, that such disclosure is only to the

  DMEAST #15018155 v5

extent reasonably necessary to perform such work and provided that such persons
must execute an agreement to maintain the confidentiality of any received materials in
accordance with Exhibit A prior to the receipt of such materials;
(e)

a person who prepared, received, or reviewed the

CONFIDENTIAL material prior to its production in this matter;
(f)

any person whom counsel for a party believes, in good faith,

will assist a party in the preparation of the matter for trial, including a person who may
be called as a witness by a party at trial, or a person acting as a consultant in any trial
preparation, such as a mock juror and provided that such persons must execute an
agreement to maintain the confidentiality of any received materials in accordance with
Exhibit A prior to the receipt of such materials.
(g)

a current employee, officer, or Board member of the

(h)

the Court, including court personnel, pursuant to

producing party;

D.C.COLO.LCivR 7.2; and
(i)

such other persons as hereafter may be designated by

written stipulation of the parties filed with the Clerk of Court or by further Order of the
Court.
7.

Treatment of Highly Confidential Material: Materials or information

designated as HIGHLY CONFIDENTIAL may be disclosed by the Receiving Party to the
following persons:

  DMEAST #15018155 v6

(a)

outside counsel at a law firm of record representing a named

party in this matter, including all paralegal assistants, secretaries, clerical staff, and/or
other employees of the law firm working under the supervision of such counsel;
(b)

court reporters, interpreters, translators, copy services and

database/coding services retained by and providing services for counsel described in
paragraph 7(a) above provided that such persons must execute an agreement to
maintain the confidentiality of any received materials in accordance with Exhibit A prior
to the receipt of such materials;
(c)

any expert or consultant, as well as all assistants,

stenographic, and clerical employees working under the supervision of such expert who
(i) is expressly retained by any attorney described in paragraph 7(a) to assist in
preparation of that action for trial, and (ii) is not a current employee of a party or
subsidiary or affiliate of a party; provided, however, that such disclosure is only to the
extent reasonably necessary to perform such work and provided that such persons
must execute an agreement to maintain the confidentiality of any received materials in
accordance with Exhibit A prior to the receipt of such materials;
(d)

a person who prepared received, or reviewed the HIGHLY

CONFIDENTIAL material prior to its production in this matter;
(e)

the Court, including court personnel, pursuant to

D.C.COLO.LCivR 7.2;
(f)

in-house counsel employed by the Receiving Party and in-

house legal support personnel employed in the in-house counsel’s office; and

  DMEAST #15018155 v7

(g)

such other persons as hereafter may be designated by

written stipulation of the parties filed with the Clerk of Court or by further Order of the
Court.
8.

Disclosure of Confidential or Highly Confidential Material by

Receiving Party: The Receiving Party must, prior to disclosing such information to any

of the recipients permitted in paragraphs 6 and 7, other than the Court or counsel of
record, give notice of the confidential and proprietary nature of such materials to each
person to whom the Receiving Party intends to disclose such materials. In addition, the
Receiving Party must comply with the consent procedures for expert recipients outlined
in paragraph 9.

9.

Consent Procedures for Experts: Experts, consultants and their

staff described in paragraph 6(d) shall have access to CONFIDENTIAL material and
experts, consultants and their staff described in paragraph 7(c) shall have access to
HIGHLY CONFIDENTIAL material in accordance with the following procedures:

(a)

A Receiving Party wishing to disclose such material shall

require from persons described in 6(d), 6(f), and 7(c) and shall maintain in its files an
executed statement of compliance with this Order in the form attached hereto as Exhibit
A, provided that for any person described in paragraphs 6(d), 6(f) and 7(c) who is a
current employee of a company, other than the producing party, involved in the
development, manufacturing, marketing or sale of performance paints and coatings, the
party wishing to make the disclosure must provide the name and affiliation of such
person to the producing party for the producing party’s consent to the disclosure.
Counsel need not identify the materials intended to be disclosed. The producing party

  DMEAST #15018155 v8

shall have ten (10) business days (subject to paragraph 9(c)) to provide consent and
shall not unreasonably withhold consent. Any objection must be in writing and provide
the specific basis for the objection. If the parties cannot resolve the objection, the
producing party will have fifteen (15) business days after receiving notification within
which to file a motion with the court seeking a protective order. The burden of
demonstrating good cause shall lie with the producing party. A failure to object or file a
motion within the requisite time periods shall be deemed a waiver. No disclosure shall
be made until there is an agreement, a waiver, or a court order.
(b)

When a person described in paragraphs 6(d), 6(f), or 7(c) is

a consultant who, in one or both of the last two years, has spent more than half of his or
her working time consulting on commercial matters, research and development, or
regulatory issues for companies, other than the producing party, involved in, among
other things, the development, manufacturing, marketing or sale of performance paints
and coatings, before disclosure is made, the Receiving Party shall identify to the
producing party the companies for which the person has consulted over the last two
years and the subject matters on which the person consulted for that company, for the
producing party’s consent. The producing party shall have ten (10) business days
(subject to paragraph 9(c)) to provide consent and shall not unreasonably withhold
consent.
(c)

A Receiving Party may reasonably request a shortening of

the time period within which the consent sought pursuant to paragraphs 9(a) or 9(b) is
to be granted or denied, which request for a shortened time period shall not be
unreasonably denied by the producing party. In the event of a dispute as to a request

  DMEAST #15018155 v9

for a shortened time period, the parties shall first try to dispose of such dispute in good
faith on an informal basis. If the dispute cannot be resolved within two (2) business
days, the party requesting the shortened time period may request appropriate relief from
the Court. The parties agree, subject to Court approval, that such relief sought can be
in the form of a telephone conference to be scheduled at the Court’s earliest
convenience with the objective of obtaining an immediate resolution of the dispute.
(d)

Nothing herein constitutes a waiver of a party’s right under

Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure not to disclose the identification
of non-testifying consultants retained by the Receiving Party who do not receive
CONFIDENTIAL or HIGHLY CONFIDENTIAL material.
10.

The recipient of any CONFIDENTIAL or HIGHLY CONFIDENTIAL

material hereby agrees to subject himself/herself to the jurisdiction of this Court for the
purpose of any proceedings relating to the performance under, compliance with, or
violation of this Order.

11.

The recipient of any CONFIDENTIAL or HIGHLY CONFIDENTIAL

material that is provided under this Order shall maintain such information in a secure
and safe area and shall exercise the same standard of due and proper care with respect
to the storage, custody, use and/or dissemination of such information as is exercised by
the recipient with respect to its own proprietary information.

12.

Objections: A party may object to the designation of particular

CONFIDENTIAL or HIGHLY 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

  DMEAST #15018155

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 or HIGHLY
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 or HIGHLY 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 OR HIGHLY CONFIDENTIAL and shall not thereafter be treated as
CONFIDENTIAL OR HIGHLY CONFIDENTIAL in accordance with this Protective Order.
In connection with a motion filed under this provision, the party designating the
information as CONFIDENTIAL OR HIGHLY CONFIDENTIAL shall bear the burden of
establishing that good cause exists for the disputed information to be treated as
CONFIDENTIAL or HIGHLY CONFIDENTIAL.

13.

Privileges: Nothing in this Order shall preclude any party from

asserting the attorney-client, work product, or any other applicable privilege as to any
document or information. No use shall be made of any materials covered by Federal
Rule of Evidence 502 that were inadvertently or unintentionally produced, including
during depositions or at trial, nor shall they be shown to anyone subsequent to the
request to return them. Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure shall
govern the use and treatment of any materials covered by Rule 502, including
obligations of the Receiving Party to promptly return, sequester or destroy the materials.

  DMEAST #15018155

Nothing herein shall prevent the Receiving Party from challenging the privileged status
of any inadvertently or unintentionally produced documents.

14.

Inadvertent Disclosure of CONFIDENTIAL or HIGHLY

CONFIDENTIAL Information: The inadvertent or unintentional disclosure by the

producing party of CONFIDENTIAL or HIGHLY CONFIDENTIAL material, regardless of
whether the material was so designated at the time of disclosure, shall not be deemed a
waiver in whole or in part of a party’s claim of confidentiality, either as to the specific
information disclosed or as to any other information relating to the same or related
subject matter. Notification by the producing party of such inadvertent disclosure shall
constitute a designation with respect to all copies of the documents or other material
containing the information as CONFIDENTIAL or HIGHLY CONFIDENTIAL material,
respectively. Upon such notice, counsel for the parties shall cooperate to the extent
practicable in restoring the confidentiality of the CONFIDENTIAL or HIGHLY
CONFIDENTIAL material. If CONFIDENTIAL or HIGHLY CONFIDENTIAL material is
disclosed by a producing party subsequent to that producing party’s first discovery of an
inadvertent or unintentional disclosure, the provisions of this paragraph will not apply to
that subsequent inadvertent or unintentional disclosure.

15.

Unless otherwise provided by Court order, the Clerk of the Court

shall maintain as restricted documents subject to Level 1 treatment, pursuant to
D.C.COLO.LCivR 7.2, all documents and all transcripts of deposition testimony filed
with this Court in this matter by any party which are, in whole or part, designated as
CONFIDENTIAL or HIGHLY CONFIDENTIAL material, including all pleadings,
deposition transcripts, exhibits, discovery responses or memoranda purporting to

  DMEAST #15018155

contain or paraphrase such information. The filing person shall, pursuant to
D.C.COLO.LCivR 7.2, file such material as a restrict document subject to Level 1
treatment.

16.

Use in a Court Proceeding: In the event that any materials

designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL are used in any court
proceeding, said CONFIDENTIAL or HIGHLY CONFIDENTIAL materials shall not lose
their status as CONFIDENTIAL or HIGHLY CONFIDENTIAL through such use.
Counsel shall confer on such procedures as are necessary to protect the confidentiality
of any confidential documents or information used in any court proceedings no later
than five (5) days prior to such proceedings.

17.

The restrictions provided for herein shall not terminate upon the

completion of all appeals (if any) from the final judgment of this matter, but shall
continue until further order of this Court; provided, however, that this Order shall not be
construed: (i) to prevent any party or its counsel from making use of information which
was lawfully in its possession prior to the production of that information by the producing
party; (ii) to apply to information that appears in issued patents or printed publications, is
used in a court proceeding without being placed under seal in accordance with a Court
order, or otherwise becomes publicly known without fault of any party; or (iii) to apply to
information which any party or its counsel has, since production by the producing party,
lawfully obtained.

18.

Within sixty (60) days of the completion of all appeals (if any) from

the final judgment of this matter and upon the written request of the producing party, all
CONFIDENTIAL and HIGHLY CONFIDENTIAL material and all copies thereof shall

  DMEAST #15018155

either be returned to the party which produced them or be destroyed. If a party elects to
destroy copies of CONFIDENTIAL or HIGHLY CONFIDENTIAL material, the party shall
certify in writing that said documents have been destroyed within the sixty (60) day time
period. Notwithstanding the foregoing, outside counsel may retain an archival copy of
any pleading and/or attorney work product which contains CONFIDENTIAL or HIGHLY
CONFIDENTIAL material. Such archival documents shall be retained and treated in
accordance with the terms of this Order.

19.

This Order is binding on the parties in this matter including their

respective parents, subsidiaries, affiliates, attorneys, agents, and assigns.

20.

If any person utilizes or discloses documents or information

designated as CONFIDENTIAL in knowing violation of this Order, the person is subject
to injunctive relief and liable for all consequential damages and other reasonable
expenses, including attorneys’ fees, incurred as a result of the misconduct. If any
person utilizes or discloses documents or information designated as HIGHLY
CONFIDENTIAL in violation of this Order, the person is subject to injunctive relief and
liable for all consequential damages and other reasonable expenses, including
attorneys’ fees, incurred as a result of the misconduct.

21.

In the event any person subject to the terms of the Order is served

with a subpoena or request for production of CONFIDENTIAL or HIGHLY
CONFIDENTIAL material, it will give sufficient notice to the producing party to allow the
producing party a reasonable opportunity to intervene to oppose such production. In no
event shall the person receiving the subpoena or other process produce
CONFIDENTIAL or HIGHLY CONFIDENTIAL material of any producing party in

  DMEAST #15018155

response to the subpoena or other process unless and until such person has: (i)
received written authorization from counsel for the producing party to produce said
CONFIDENTIAL or HIGHLY CONFIDENTIAL material or (ii) been ordered to do so by a
court of competent jurisdiction.

22.

Any party who has designated a document or information as

CONFIDENTIAL or HIGHLY CONFIDENTIAL material may remove such document or
information from the scope of that protection by notifying all other counsel of its desire to
do so.

23.

In the event that a party seeks discovery from a non-party in this

suit, the non-party may invoke the terms of this Order with respect to any
CONFIDENTIAL or HIGHLY CONFIDENTIAL material provided to the parties by so
advising all parties to this suit in writing.

24.

This Order shall not prevent any party from applying to the Court for

relief therefrom, from applying to the Court for an order modifying or amending the
terms of this Order, from seeking further or additional protective orders, or from
agreeing between themselves to modification of this Order, in writing, subject to
approval of the Court.

  DMEAST #15018155

25.

This Order shall not bind the Court and nothing herein shall be

construed to prevent the Court from altering the terms of this Order sua sponte.

Dated this 19th day of November, 2013.

BY THE COURT:

__________________________
Kathleen M. Tafoya
United States Magistrate Judge

  DMEAST #15018155

STIPULATED AND AGREED TO:

/s/ Theodore W. Rosen
Theodore W. Rosen
THEODORE W. ROSEN, P.C.
3003 East Third Avenue, Suite 205C
Denver, Colorado 80206
Telephone: [phone]
Facsimile: [phone]
[e-mail]

/s/ David M. Stauss
Roger P. Thomasch
David M. Stauss
BALLARD SPAHR LLP
1225 17th Street, Suite 2300
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for Plaintiff JTS Choice
Enterprises, Inc.

Attorneys for Defendant E.I. Du Pont De
Nemours and Company

/s/ Meshach Y. Rhoades
Neil Arney
Meshach Y. Rhoades
KUTAK ROCK LLP
Suite 3100
1801 California Street
Denver, CO 80202
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for Non Parties Metro Paint
Supplies, Inc. and Automotive
Coatings & Equipment, LLC

  DMEAST #15018155

Exhibit A

STATEMENT AGREEING TO
CONFIDENTIAL TREATMENT OF MATERIALS

I,

, being duly sworn, state that:

(a) My present residential address is

(b) My present employer is
of my present employer is

and the address
.

(c) My present occupation or job description is

(d) I have received and carefully read the Protective Order dated
, 2013 and understand its provisions. Specifically, I
understand that I am obligated to hold in confidence and not to disclose the contents of
any document marked “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” to anyone other
than those persons identified in paragraphs six (6) or, seven (7) of the Protective Order.
I further understand that I am not to disclose to persons other than those persons
identified in paragraphs six (6) and/or seven (7) of the Protective Order any words,
substances, summaries, abstracts or indices of the confidential information, documents
or things disclosed to me. I will never use the information, directly or indirectly, in
competition with the disclosing party nor will I permit others to do so. In addition to the
foregoing, I understand that I must abide by all of the provisions of the Protective Order.

(e) At the termination of this action or at any time requested by counsel, I will destroy or
return to counsel for the party by whom am I employed or to counsel by whom I am
employed all documents and other materials, including notes, computer data,
summaries, abstracts, or any other materials including or reflecting confidential
information which have come into my possession, and will destroy or return all
documents or things I have prepared relating to or reflecting such information.

(f) understand that if I violate the provisions of this Protective Order, I will be subject to
sanctions or other remedies that may be imposed by the Court and potentially liable in a
civil action for damages. I consent to the exercise of personal jurisdiction by the United
States

  DMEAST #15018155

District Court for the District of Colorado with respect to any violations of this Protective
Order.

I declare under penalty of perjury of the laws of the United States that the foregoing is
true and correct.

/s/

SUBSCRIBED AND SWORN to before
me this
day of
,
.

Notary Public

My Commission Expires

  DMEAST #15018155