Molycorp Minerals, LLC v. HaloSource, Inc.

Filing 24

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 3/12/12. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:11-cv-03144-WYD-CBS
MOLYCORP MINERALS, LLC,
a Delaware corporation,
Plaintiff,
v.
HALOSOURCE, INC.,
a Washington corporation,
Defendant.
_____________________________________________________________________________
STIPULATED PROTECTIVE ORDER
_____________________________________________________________________________

Molycorp Minerals, LLC and HaloSource, Inc. (collectively the "Parties," and
individually a "Party") anticipate that discovery in this action will require the production of
documents, things, and testimony that may be or contain confidential, sensitive, or proprietary
information. In the interest of expediting discovery and limiting disputes regarding access to
such information, the Parties hereby stipulate and agree to the request for, and entry of, the
Protective Order set forth below.
Based on the stipulation of the Parties, and for good cause shown, IT IS HEREBY
ORDERED THAT:
1.

All documents, information, and items produced in the course of discovery,

including initial disclosures; responses to interrogatories and requests for admissions; production
and disclosure of documents, information, and items; and deposition testimony and exhibits,
whether produced by a party or nonparty, shall be subject to this Protective Order as set forth
below.

2.

Any information or materials produced by any Party or nonparty as part of

discovery in this action may be designated by such Party or nonparty (the "Designating Party")
as (1) "CONFIDENTIAL" or (2) "ATTORNEYS' EYES ONLY" ("Designated Material") under
the terms of this Protective Order.
3.

By designating something as Designated Material, counsel for the Designating

Party certifies under Rule 26(g) of the Federal Rules of Civil Procedure that to the best of
counsel's knowledge, information, and belief formed after a reasonable inquiry that the
designation is (a) consistent with the Federal Rules of Civil Procedure and warranted by existing
law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for
establishing new law; (b) not interposed for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation; and (c) not unreasonable.
4.

Subject to Paragraph 3 above, non-public information or materials may be

designated as CONFIDENTIAL if the Designating Party believes in good faith that such
information or materials must be protected against disclosure to third parties. Absent a specific
order by this Court, once designated as CONFIDENTIAL, such designated information shall be
used by the Parties solely in connection with this litigation, and not for any business,
competitive, or governmental purpose or function, and such information shall not be disclosed to
anyone except as provided herein.
5.

Subject to Paragraph 3 above, non-public information or materials may be

designated as ATTORNEYS' EYES ONLY if the Designating Party believes in good faith that
such materials comprise highly confidential information that likely would be of value to a
competitor or potential customer of the Designating Party possessing the information and that
therefore must be protected from disclosure. ATTORNEYS' EYES ONLY information may
include, without limitation, highly sensitive technical information, highly sensitive financial
information, marketing plans and forecasts, pricing and cost information, and customer names
and lists. Absent a specific order by this Court, once designated as ATTORNEYS' EYES
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ONLY, such designated information shall be used by the Parties solely in connection with this
litigation, and not for any business, competitive, or governmental purpose or function, and such
information shall not be disclosed to anyone except as provided herein.
6.

The

designation

of

information

or

material

as

CONFIDENTIAL

or

ATTORNEYS' EYES ONLY for purposes of this Protective Order shall be made in the
following manner by the Designating Party:
(a)

In the case of documents, exhibits, briefs, memoranda, interrogatory

responses, responses to requests for admission, or other materials (apart from depositions
or other pretrial or trial testimony): by affixing the words CONFIDENTIAL or
ATTORNEYS' EYES ONLY, as appropriate, to each page of any document containing
any confidential information or material at the time such documents are produced or such
information is disclosed, or as soon thereafter as the Designating Party becomes aware of
the confidential nature of the information or material disclosed and sought to be protected
hereunder; and
(b)

In the case of depositions or other pretrial or trial testimony, the parties

agree that they shall make a good faith effort to designate as Designated Material those
specific portions of a deposition transcript that contain Designated Material. The entire
transcript of a deposition shall be treated as ATTORNEYS' EYES ONLY until 30 days
after receipt of the deposition transcript by counsel for the witness, after which the
information revealed during the deposition shall cease to be treated as ATTORNEYS'
EYES ONLY unless, at the deposition and on the record, or in writing before the 30 days
have expired, the witness, counsel of the Designating Party designate those portions of
the deposition transcript (including exhibits) as "CONFIDENTIAL" or "ATTORNEYS'
EYES ONLY." In the case of non-party witnesses, any party or the non-party witness, or
his or her counsel, may designate information revealed as Designated Material either by a

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statement to such effect on the record in the course of the, deposition, or in writing
within 30 days of receipt of the deposition by the non-party witness' counsel.
Counsel for any Designating Party shall have the right to exclude from oral
depositions, other than the deponent, deponent's counsel, the reporter, and videographer
(if any), any person who is not authorized by this Order to receive documents or
information designated ''CONFIDENTIAL'' or ''ATTORNEYS' EYES ONLY." Such
right of exclusion shall be applicable only during periods of examination or testimony
directed to or constituting Designated Material of the Designating Party.
The Court Reporter may be asked to prepare CONFIDENTIAL, ATTORNEYS'
EYES ONLY, or non-confidential versions of the transcript, as appropriate. All video
and/or audio copies of depositions that have been stated to contain, in whole or in part,
Designated Material, shall be marked CONFIDENTIAL or ATTORNEYS' EYES ONLY
in their entirety depending on the highest level of Designated Material contained in the
deposition.
With regard to Designated Material designations made within thirty (30) days
after receipt of the deposition transcript of a deposition, counsel shall make such
designations by sending written notice to the Court Reporter, to counsel for the parties,
and to any other person known to have a copy of said transcript. The notice shall
reference this Order, identify the appropriate level of confidentiality, and identify the
pages and/or exhibits so designated. All copies of transcripts designated in this fashion
shall be marked with a notice indicating the appropriate level of confidentiality of the
material and shall be governed by the terms of this Order.
7.

Information or material designated as CONFIDENTIAL, or copies or extracts

therefrom and compilations and summaries thereof, may be disclosed, summarized, described,
characterized, or otherwise communicated or made available in whole or in part only to the
following persons:
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(a)

The Parties' outside counsel of record in this action and regular and

temporary employees of such counsel, as well as imaging or copy vendors retained by
outside counsel of record, to whom it is necessary that the information or material be
shown for the purposes of this litigation;
(b)

Up to no more than seven (7) employees of each Party whose identity will

be provided to the other Party at least seven (7) days prior to the disclosure, including inhouse counsel, whose assistance is needed by counsel for the purposes of this litigation
and subject and conditioned upon compliance with paragraph 11 below. Each Party may
request permission from the Producing Party to increase the number of employees who
may have access to CONFIDENTIAL information. The Parties agree to discuss the
request in good faith;
(c)

Consultants as defined in paragraph 9 below and pursuant to the

provisions of paragraphs 10 and 11below and subject and conditioned upon compliance
with paragraph 10 below;
(d)

The Court;

(e)

Court reporters employed in connection with this action;

(f)

Graphics or design services retained by counsel for a Party for purposes of

preparing demonstrative or other exhibits for deposition, trial, or other court proceedings
in this action, subject to and conditioned upon compliance with paragraph 11 below;
(g)

Non-technical jury or trial consulting services retained by counsel for a

Party, subject to and conditioned upon compliance with paragraph 11 below; and
(h)

Any other person only upon order of the Court or upon written consent of

the Party or nonparty producing the confidential information or material subject to and
conditioned upon requirements of paragraph 11.
8.

Information or material designated as ATTORNEYS' EYES ONLY, or copies or

extracts therefrom and compilations and summaries thereof, may be disclosed, summarized,
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described, characterized, or otherwise communicated or made available in whole or in part only
to the following persons:
(a)

Parties' outside counsel of record in this action and regular and temporary

employees of such counsel, as well as imaging or copy vendors retained by outside
counsel of record, to whom it is necessary that the information or material be shown for
the purposes of this litigation;
(b)

Consultants as defined in paragraph 9 below and pursuant to the

provisions of paragraphs 10 and 11 below and subject to and conditioned upon
compliance with paragraphs 10 and 11 below;
(c)

The Court;

(d)

Court reporters employed in connection with this action;

(e)

Graphics or design services retained by counsel for a Party for purposes of

preparing demonstrative or other exhibits for deposition, trial or other court proceedings
in this action, subject to and conditioned upon compliance with paragraph 11 below;
(f)

Non-technical jury or trial consulting services retained by counsel for a

Party, subject to and conditioned upon compliance with paragraphs 9 and 11 below; and
(g)

Any other person only upon order of the Court or upon written consent of

the Designating Party subject to and conditioned upon reliance with paragraph 11.
9.

For purposes of paragraphs 7(c) and 8(b) above, a "consultant" shall be defined as

a person who is neither an employee of a Party at the time of disclosure nor anticipated to
become an employee, and who is retained or employed as a bona fide consultant or expert for
purposes of this litigation, whether full or part time, by or at the direction of counsel for a Party.
10.

A party may disclose Designated Material to consultants, as specified in

paragraph 9, provided that the party identifies such consultants to all other parties no later than
ten (10) business days before disclosing such materials to such persons and no objection has
been made the other party. Additionally, the party seeking to disclose such materials shall secure
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from each such expert or consultant an Acknowledgement and Agreement to be Bound in the
form attached hereto as Exhibit A and shall deliver a copy of the Agreement forthwith to counsel
for the other party.
In the event that a dispute arises regarding disclosure to an expert or consultant, the
parties agree to discuss such objection and/or request and if they are unable to resolve such
dispute, the party who objects to the disclosure to the expert shall apply to the Court within
fourteen (14) days after the inability of the parties to agree, for resolution of that dispute.
Pending resolution of the dispute, no disclosure shall be made to the expert. If no application is
made by the party objecting to the proposed expert within fourteen (14) days after the inability of
the parties to agree, then disclosure may be made to the expert.
11.

All persons listed in Paragraphs 7(b), 7(c), 7(f), 7(g) and 7(h) above may be given

access to information or material designated as CONFIDENTIAL, provided that they first
confirm their understanding and agreement to abide by the terms of this Protective Order by
completing and signing a copy of the Acknowledgement and Agreement to be Bound in the form
attached hereto as Exhibit A. Similarly, all persons listed in Paragraphs 8(b) and 8(e)-(g) above
may be given access to information or material designated as ATTORNEYS' EYES ONLY
provided that they first confirm their understanding and agreement to abide by the terms of this
Protective Order by completing and signing a copy of the Acknowledgement and Agreement to
be Bound in the form attached hereto as Exhibit A.
12.

Any person may be examined as a witness at trial or during a deposition

concerning Designated Material when it appears that person had access to the information or
material prior to being examined or when the person is the Designating Party or its owner,
officer, director, shareholder, affiliate, employee, representative, or agent.
13.

The Parties must file documents containing Designated Material under seal in

accordance with Rule 7.2 of the Rules of Local Practice for the United States District Court for

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the District of Colorado and otherwise must comply with Rule 7.2, which will govern the Court's
treatment of Designated Material.
14.

A Party may challenge a Party's or nonparty's designation of information or

materials produced herein as CONFIDENTIAL or ATTORNEYS' EYES ONLY by serving a
written objection upon the Designating Party. Any such objection must be served no less than
45 days before the dispositive motion deadline.

The Designating Party shall notify the

challenging Party in writing of the bases for the asserted designation within 10 days after
receiving any written objection. The Parties and if applicable, the nonparty shall confer in good
faith as to the validity of the designation within 5 days after the challenging Party has received
the notice of the bases for the asserted designation. To the extent an agreement as to the
designation is not reached, the objecting Party shall first consult with the Court prior to filing an
Opposed Protective Order with the Court. If an agreement as to the designation is still not
reached after consulting with the Court, the objecting Party may make an appropriate application
to this Court after conferring with the Designating Party, requesting that specifically identified
documents, information, or deposition testimony be excluded from the provisions of this
Protective Order or downgraded in terms of the degree of protection provided. Until a dispute
over the asserted designation is finally resolved by the Parties, nonparty, or the Court, all Parties
and other persons shall treat the information or materials in question as designated as
CONFIDENTIAL or ATTORNEYS' EYES ONLY.
15.

The Parties designation of information or materials will be subject to the

certification requirements of Federal Rules of Civil Procedure 26(g).
16.

All Designated Material covered by this Protective Order shall be kept in secure

facilities.
17.

All counsel for the parties who have access to Designated Material under this

Protective Order acknowledge they are bound by this Order and submit to the jurisdiction of this
Court for purposes of enforcing this Order.
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18.

Entering into, agreeing to, or producing or receiving Designated Material, or

otherwise complying with the terms of this Protective Order shall not:
(a)

Operate as an admission by any Party that any particular Designated

Material by another party or a nonparty contains or reflects trade secrets, proprietary or
commercially sensitive information, or any other type of confidential information;
(b)

Operate as an admission by any Party that the restrictions and procedures

set forth herein constitute or do not constitute adequate protection for any particular
information deemed by any Party or nonparty to be CONFIDENTIAL or ATTORNEYS'
EYES ONLY;
(c)

Prejudice in any way the rights of any Party to object to the production of

documents or information it considers not subject to discovery;
(d)

Prejudice in any way the rights of any Party to object to the authenticity or

admissibility into evidence of any document, testimony, or other evidence subject to this
Protective Order;
(e)

Prejudice in any way the rights of any Party to seek a determination by the

Court whether any information or material should be subject to the terms of this
Protective Order;
(f)

Prejudice in any way the rights of any Party or nonparty to petition the

Court for a further protective order relating to any purportedly confidential information;
or
(g)

Prevent the Parties to this Protective Order from agreeing in writing or on

the record during a deposition or hearing in this action to alter or waive the provisions or
protections provided for herein with respect to any particular information or material.
19.

This Protective Order has no effect upon, and shall not apply to, a Party's use or

disclosure of its own confidential information for any purpose. Nothing contained herein shall
impose any restrictions on the use or disclosure by a Party of documents, information or material
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designated as CONFIDENTIAL or ATTORNEYS' EYES ONLY obtained lawfully by such
Party independently of any proceedings in this action, or which:
(a)

Was already known to such Party by lawful means prior to acquisition

from, or disclosure by, any other Party in this action;
(b)

Is or becomes publicly known through no fault or act of such Party; or

(c)

Is rightfully received by such Party from a third party which has authority

to provide such information or material and without restriction as to disclosure.
20.

If

a

Party

or

nonparty

inadvertently

produces

CONFIDENTIAL

or

ATTORNEYS' EYES ONLY information without marking it as such, it may be disclosed to
others until the disclosing Party or nonparty provides actual written notice to the receiving Party
or the receiving Party becomes aware of the disclosing Party's or nonparty's error; provided,
however, that the receiving Party is under such obligation only if it clearly appears from the face
of the document that it contains non-public, confidential, proprietary, commercially sensitive, or
trade secret information of the Party or nonparty. As soon as the disclosing Party or nonparty
notifies the receiving Party of the inadvertent production, the information will be treated as if it
had been timely designated under this Protective Order, and the receiving Party agrees to
endeavor in good faith to obtain all copies of the document, or notes or extracts thereto, which it
distributed or disclosed to persons not authorized to access such information by Paragraphs 7
or 8 above, as well as any copies made by such persons.
21.

Inadvertent disclosure of any document or other information covered by the

attorney-client privilege, work-product or other applicable privileges shall be subject to Federal
Rules of Civil Procedure 26(b)(5) and Federal Rules of Evidence 502.
22.

The terms of this Protective Order shall apply to all manner and means of

discovery, including entry onto land or premises, and inspection of books, records, documents,
and tangible things.

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23.

The terms of this Protective Order shall govern discovery and other pretrial and

trial proceedings in this action.
24.

Each Party is entitled to seek modification of this Protective Order by application

to the Court on notice to the other Party hereto for good cause.
25.

The Parties agree to be bound by the terms of this Protective Order pending its

entry by the Court, or pending the entry of an alternative thereto which is satisfactory to all
Parties, and any violation of its terms shall be subject to the same sanctions and penalties as if
the Protective Order had been entered by the Court.
26.

Except as otherwise provided in paragraph 25 below, within 60 days after the

conclusion of this action and any appeals arising therefrom, all originals and copies of
Designated Material, other than Designated Material in possession of the Court or Court
personnel, shall be destroyed and a written statement certifying destruction shall be sent to the
Designating Party. Alternatively, at the option of the Designating Party, and at its expense, a
Designating Party may request that all Designated Material it produced be returned for its own
disposition.
27.

After the conclusion of this action and any appeals arising therefrom, counsel for

any Party in receipt of Designated Material under the Protective Order may retain copies of any
Designated Material as counsel reasonably deems necessary to the proper maintenance of
counsel's files with respect to this action. Such copies shall not be disclosed to anyone outside of
counsel's law firm.
28.

If a subpoena, court order, discovery request, or other compulsory process is

received by a Party or its counsel requesting Designated Material received under this Protective
Order, the Party or counsel subject to the request shall object to the production of the Designated
Material based on the obligations of non-disclosure under this Protective Order and shall notify
the Designating Party so that the Designating Party may intervene and seek protection of its
Confidential Material.
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29.

In the event that any Designated Material is used in any court proceeding in this

action or any appeal therefrom, such information or material shall not lose its status as
CONFIDENTIAL or ATTORNEYS' EYES ONLY through such use. Counsel for the Parties
shall confer on such procedures as are necessary to protect the confidentiality of any documents,
information, and transcripts used in the course of any court proceedings, and shall incorporate
such procedures, as appropriate, in the pre-trial order.
Dated: March 12, 2012
s/ Todd P. Blakely
Todd P. Blakely
[e-mail]
Hiwot M. Covell
[e-mail]
Sheridan Ross P.C.
1560 Broadway, Suite 1200
Denver, CO 80202 5141
Telephone: [phone]
Facsimile: 303-863-0223
E-mail: [e-mail]

s/ John D. Denkenberger
John D. Denkenberger
[e-mail]
James W. Anable
[e-mail]
Christensen O'Connor Johnson Kindness PLLC
1420 Fifth Avenue, Suite 2800
Seattle, Washington 98101
Telephone: [phone]
Facsimile: 206.224.0779
E-mail: [e-mail]

ATTORNEYS FOR PLAINTIFF

Richard G. (Chip) Sander
[e-mail]
Sander, Ingebretsen & Wake, P.C.
1660 17th Street, Suite 450
Denver, CO 80202
Telephone: [phone]
Facsimile: 303/285-5301
ATTORNEYS FOR DEFENDANT

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DATED at Denver, Colorado, this 12th day ofMarch, 2012 March 2012.
BY THE COURT:

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

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

, of
, declare under penalty of perjury that I have read in

its entirety and understand the Protective Order that was issued by the United States District
Court for the District of Colorado in the case of Molycorp Minerals, LLC v. HaloSource, Inc.,
Case No. 11-cv-03144-WYD-CBS. I agree to comply with and to be bound by all the terms of
this Protective Order and I understand and acknowledge that failure to so comply could expose
me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not
disclose in any manner any information or item that is subject to this Protective Order to any
person or entity except in strict compliance with the provisions of this Order. I further agree to
submit to the jurisdiction of the United States District Court for the District of Colorado for the
purpose of enforcing the terms of this Protective Order, even if such enforcement proceedings
occur after termination of this action.

Signature:
Name:
Date:

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