24 Hour Fitness USA, Inc. v. Estey

Filing 21

Stipulated PROTECTIVE ORDER by Judge R. Brooke Jackson on 8/6/2012. (ervsl, ) (Modified on 8/7/2012 This was filed in the wrong case and it is NOT a part of this case. It is a docketing error) (ervsl, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CIVIL ACTION NO. 1:11-cv-03021-RBJ
REGINA FARMER,
Plaintiff,
v.
AMREST d/b/a APPLEBEE’S,
a Delaware corporation,
Defendant.

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STIPULATED PROTECTIVE ORDER
The Parties, Regina Farmer, Plaintiff, and AmRest, LLC (hereinafter, “AmRest”),
Defendant, by and through their respective counsel, stipulate and move the Court for a
Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure
concerning the treatment of Confidential Information.

The Parties therefore jointly

request the Court to enter the following Protective Order for the purpose of preventing
disclosure and use of Confidential Information, except as set forth herein.

1.

The term “Confidential Information” means any document, 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 set forth herein as
Confidential on the basis that it contains: (1) social security numbers; (2) the name of an
individual known to be a minor; (3) financial account numbers; (4) medical information;
(5) information that is not known to the public respecting the business of AmRest, LLC
or any of its subsidiaries and/or parent companies, such as non-public information
relating to research and development, customers, suppliers, business plans, and strategies,
to the extent such information complies with the restrictions of D.C.COLO.L.Civ.R 7.2;
or (6) trade secrets (i.e., information, including a formula, pattern, compilation, program,
device, method, technique, or process, that derives independent economic value, actual or
potential, from not being generally known to or readily ascertainable through appropriate
means by other persons who might obtain economic value from its disclosure or use, and
is the subject of efforts that are reasonable under the circumstances to maintain its
secrecy).
2.

Information designated “Confidential Information” may be disclosed only

to the following persons:
a.

The Court and its officers, any court reporters who transcribe
testimony at hearings, trial, or depositions, and any trial jurors;

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b.

Attorneys and persons regularly employed or associated with the
attorneys actively working on the case whose assistance is required
by said attorneys in the preparation for trial, or at other proceedings
in this case;

c.

Any in-house counsel for the Parties who has responsibility for this
litigation;

d.

Plaintiff and any representative of AmRest who provides direct
assistance to outside counsel of record or who makes strategic
decisions concerning this litigation;

e.

Third-party consultants or experts consulted by outside counsel of
record pursuant to the procedure set forth in Paragraph 6;

f.

Anticipated witnesses at deposition or trial who were involved in
creating the Confidential Information or who received or reviewed
the Confidential Information in the course of their employment, who
counsel in good faith determines must review the Confidential
Information in order to be prepared to testify truthfully at deposition
or trial;

g.

Such representatives of Monitor Liability Managers, LLC as are
necessary to evaluate Plaintiff’s claims for the purposes of defense
strategy and/or settlement;

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h.

Any other person entitled to receive the Confidential Information by
Court order or by written stipulation of the parties; and,

i.

Any other person who counsel of record determines has a legitimate
reason to review such information as part of this litigation.

Prior to receiving any Confidential Information, any person within sub-part (d), (e), (f),
(g), (h), or (i) must be provided a copy of this Stipulated Protective Order and agree to be
bound by its terms by executing a copy of an agreement to that effect substantially in the
form of Exhibit A. Counsel obtaining such agreements shall retain them. During the
pendency of this action, opposing counsel may, upon court order or agreement of the
Parties, inspect a list maintained by counsel of those who have executed such agreements
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.
3.

Information designated “Confidential” may be disclosed only to the persons

listed in sub-parts (a) through (i) of Paragraph 3.
4.

A receiving Party or any person who has agreed to be bound by the

Stipulated Protective Order shall maintain all information designated Confidential
Information in confidence, and shall use such information solely for purposes of this

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litigation or any appeals therefrom. Confidential Information shall not be disclosed or
revealed to anyone not authorized by this Stipulated Protective Order to receive such
material.
5.

To designate a document or object as Confidential Information, the

designating Party shall affix a label or electronic mark upon the document or object that
reads “Confidential Information” or may send a list of documents to opposing counsel
which indicates, by bates stamp label or otherwise, the documents to be considered as
“Confidential Information.” A Party may correct an inadvertent omission of such a label
or designation within thirty (30) days of production by notifying the receiving Party in
writing of same.
6.

To designate testimony as Confidential Information the designating Party

may make a statement on the record at any time during the deposition or testimony. In
addition, even in the absence of a statement on the record, any deposition testimony
concerning a document designated Confidential Information shall be deemed
Confidential Information. The court reporter shall separately transcribe any portion of a
deposition or testimony so designated and shall mark each such page of the transcript
with the word “CONFIDENTIAL.” A Party may also make such a designation within
thirty (30) days of receiving a copy of the transcript of such testimony, by stating in
writing the pages and line numbers of Confidential Information. The receiving Party will
maintain a copy of such designation together with each copy of the transcript. During the

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interim thirty-day period after receipt of a transcript, the Parties will treat all transcripts
as confidential.
7.

If a Party requires the inclusion of Confidential Information in any pretrial

motion filed with the Court, the Party shall: (a) where practical, such as in the case of
personnel information pertaining to third parties, file a coded list containing the true
names of third parties and codes or identifiers corresponding to each true name under seal
with the Court and in the motion or brief refer to third parties by code or identifier and
redact true names from exhibits (e.g., Mary Zimmerman = Ms. A); or, (b) reference in the
motion an exhibit containing the Confidential Information and file the exhibit under seal.
The Parties further agree to:
a. Redact confidential Information from exhibits to be filed with the
Court where the redacted information is not required by the court to
rule on the motion (e.g., Social Security numbers);
b. File exhibits under seal only when redaction of information from the
exhibit would make it difficult or impossible for the Court to
understand the significance of the Exhibit; and
c. Provide proposed redacted exhibits to counsel for the opposing party
72 hours before filing redacted copies with the Court. Counsel for
the opposing party may further redact such proposed exhibits, by
marking further redaction and returning the further redacted copy to

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the filing attorney. Thereafter the filing attorney may either file the
further redacted copy as the exhibit or file the exhibit under seal.
8.

The parties intend by adoption of the procedures set forth in paragraph 8,

above, to preserve the confidentiality of information, to avoid filing motions under seal
and to comply with D.C.Colo. LCivR 7.2. The purpose of the foregoing procedure is to
avoid where possible litigating the confidentiality of documents under the procedures
described in paragraph 11 below where redacted documents can be used as exhibits.
9.

Any other person joined in this action via counterclaim, cross-claim, or

third party claim shall become a “Party” within the meaning of this Protective Order.
10.

A party may object to the designation of particular 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 within ten (10) business days after the time the notice
is received, it shall be the obligation of the party designating material 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. In connection with a motion
filed under this provision, applicable law shall apply regarding which Party is to bear the
burden of establishing whether the disputed information is to be treated as Confidential.

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11.

A receiving Party is not prohibited from disclosing or using any otherwise

Confidential Information if that information:
a.

Constitutes or becomes public knowledge;

b.

Was acquired by the receiving party from a third party having the
right to disclose such information; or

12.

Nothing in this Stipulated Protective Order is intended to or shall be

deemed to restrict or limit a Party’s use or disclosure of its own Confidential Information.
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.

Outside counsel of record and each individual who executes Exhibit A shall

ensure that all materials designated Confidential Information are maintained in such a
manner as to prevent disclosure except in accordance with the terms of this Stipulated
Protective Order.
15.

Within thirty (30) days after the conclusion of trial and appeal or any other

termination of this litigation, all Confidential Information in paper form shall be returned
to the designating Party’s lead counsel or destroyed by. Counsel recognize their
obligations to use their best efforts to supervise the destruction of confidential
information at the conclusion of the litigation and recognize that to the extent that
Confidential Information remains available to Counsel in electronic form or otherwise, it
should not be transmitted, reproduced or disclosed to third parties.

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16.

In the event a person bound by this Protective Order is subpoenaed or

served with legal process by a third party to produce or otherwise disclose another Party’s
Confidential Information, that person shall give prompt written notice to the designating
Party, which to the extent possible shall give the designating Party enough time to object
to the subpoena or legal process before production is required.
17.

The terms of this Stipulated Protective Order shall survive the final

disposition of this litigation. The Court shall retain jurisdiction to construe, enforce, or
amend the provisions of this Stipulated Protective Order.
18.

This Stipulated Protective Order may be modified in writing by Court order

or by agreement of the Parties. The Parties are entitled to seek modification of this
Stipulated Protective Order by motion.
19.

This Protective Order is not intended to affect the trial of the action. A

Party seeking to maintain the confidentiality of any information or document at trial must
move for appropriate relief before trial.
IT IS SO ORDERED this 6th day of August, 2012.

R. Brooke Jackson
United States District Judge

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APPROVED BY:
s/ Donna Dell’Olio
Donna Dell’Olio
Cornish & Dell’Olio
431 N. Cascade Ave., Ste. 1
Colorado Springs, CO 80903
Tel: [phone]
[e-mail]
Attorney for Plaintiff

s/ Alisa P. Cleek
Alisa P. Cleek
John D. Bennett
Elarbee, Thompson, Sapp & Wilson LLP
800 International Tower
229 Peachtree Street, NE
Atlanta, Georgia 30303
Tel: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CIVIL ACTION NO. 1:11-cv-03021-RBJ
REGINA FARMER,
Plaintiff,
v.
AMREST d/b/a APPLEBEE’S,
a Delaware corporation,
Defendant.

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AGREEMENT TO TERMS OF PROTECTIVE ORDER

I, _______________________________, having reviewed this Stipulated
Protective Order entered by the Court, agree to be bound by its terms and to submit to the
jurisdiction of the Court for purposes of enforcing this Order.
Dated: _________________

(Signature)

(Print or Type Name)

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