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

Filing 49

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 3/9/2012. (kmtcd)

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, and
METRO PAINT SUPPLIES, INC.
Defendants.

PROTECTIVE ORDER REGARDING
CONFIDENTIAL NCS INFORMATION

WHEREAS the Court has considered the parties’ Joint Motion for Entry of Protective
Order Regarding Confidential NCS Information; and
WHEREAS the Parties have demonstrated good cause for the entry of a Protective Order;
and
WHEREAS the Court finds that a Protective Order will facilitate orderly and efficient
discovery without any adverse effect on the rights of any party, person, or entity;
IT IS HEREBY ORDERED that:
1.

Any NCS information designated by a party as CONFIDENTIAL (hereafter the

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

2.

Such CONFIDENTIAL NCS INFORMATION 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.

3.

A party may object to the designation of particular CONFIDENTIAL NCS

INFORMATION as being subject to the provisions of this Order 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 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.

4.

Individuals authorized to review the CONFIDENTIAL NCS INFORMATION

pursuant to this Protective Order shall hold the NCS Information in confidence and shall not
divulge the CONFIDENTIAL NCS INFORMATION, either verbally or in writing, to any other
person, entity or government agency unless authorized to do so by court order.
5.

The Party’s counsel who discloses the CONFIDENTIAL NCS INFORMATION

shall be responsible for assuring compliance with the terms of this Protective Order with respect
to persons to whom the CONFIDENTIAL NCS INFORMATION is disclosed and shall obtain
and retain the original affidavits signed by qualified recipients of the CONFIDENTIAL NCS
INFORMATION, and shall maintain a list of all persons to whom any the CONFIDENTIAL
NCS INFORMATION is disclosed.
6.

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 5 above
upon a showing of substantial need in order to establish the source of an unauthorized disclosure
of the CONFIDENTIAL NCS 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.
7.

No copies of the CONFIDENTIAL NCS 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.

8.

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

CONFIDENTIAL NCS INFORMATION, and copies made therefrom pursuant to paragraph 7
above.
9.

In the event a party files the CONFIDENTIAL NCS INFORMATION, or

on any portion thereof, with the Court in connection with any proceeding or motion, the
CONFIDENTIAL NCS INFORMATION 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 CONFIDENTIAL NCS INFORMATION
shall also be filed in this manner.
10.

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

hereunder from their responsibility to maintain the confidentiality of the CONFIDENTIAL NCS
INFORMATION pursuant to this Protective Order, and the Court shall retain continuing
jurisdiction to enforce the terms of this Protective Order.
11.

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.
12.

Upon termination of this litigation, including any appeals, each Party’s counsel

shall immediately return to the producing party all the CONFIDENTIAL NCS INFORMATION
provided subject to this Protective Order, and all extracts, abstracts, charts, summaries, notes or
copies made therefrom.

13.

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 the
CONFIDENTIAL NCS INFORMATION shall be treated at trial.

Dated at Denver, Colorado, this 9th day of March, 2012.

BY THE COURT:

UNITED STATES DISTRICT COURT

EXHIBIT A
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, and
METRO PAINT SUPPLIES, INC.
Defendants.

AFFIDAVIT

STATE OF COLORADO
COUNTY OF

)
)
)

ss.

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

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

2.
I have been informed by *, Esq., counsel for *, that the materials described in the
list attached to this Affidavit are the CONFIDENTIAL NCS INFORMATION as defined in the
Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge to any
person or recording device any the CONFIDENTIAL NCS INFORMATION show or told to me
except as authorized in the Protective Order. I will not use the CONFIDENTIAL NCS
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 *, 2012, by
_________________________.
WITNESS my hand and official seal.

Notary Public
[S E A L]
My Commission Expires:

CERTIFICATE OF SERVICE
I hereby certify that, on March 8, 2012, I electronically filed the foregoing
[PROPOSED] PROTECTIVE ORDER REGARDING CONFIDENTIAL NCS
INFORMATION with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following email addresses:
Katherine Allison White
Roger P. Thomasch
BALLARD SPAHR, LLP-DENVER
1225 Seventeenth Street, Suite 2300
Denver, Colorado 80202-5596
[e-mail]
[e-mail]
[phone]
[phone] (fax)
Walter Edwin Anderson
BALLARD SPAHR, LLP-PHILADELPHIA
1735 Market Street
51st Floor
Philadelphia, PA. 19103-7599
[e-mail]
[phone]
[phone] (fax)
ATTORNEYS FOR DEFENDANT E.I. DU PONT
DE NEMOURS AND COMPANY
Neil L. Arney
Meshach Y. Rhoades
1801 California Street, Suite 3100
Denver, Colorado 80202
Email: [e-mail]
[e-mail]
[phone]
ATTORNEYS FOR DEFENDANT METRO
PAINT SUPPLIES, INC.

s/ Revnée B. Lea