Mini Melts USA, Inc. et al v. Wren

Filing 30

STIPULATED PROTECTIVE ORDER. Approved by Magistrate Judge Craig B. Shaffer on 05/01/2012. (cbslc1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
MINI MELTS USA, Inc.
245 Asylum Street
Norwich, CT 06360

)
)
)
)
MINI MELTS, Inc.
)
245 Asylum Street
)
Norwich, CT 06360
)
)
Plaintiffs,
)
)
v.
)
)
KENDALL WREN
)
d/b/a COLORADO CONCESSIONS, LLC )
1008 Lochmore Place
)
Ft. Collins, CO 80524
)
)
Defendant.
)

Case No.: 11 CV 03213 PAB-CBS

STIPULATED PROTECTIVE ORDER

1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be
warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the
following Stipulated Protective Order. The parties acknowledge that this Order does not
confer blanket protections on all disclosures or responses to discovery and that the
protection it affords from public disclosure and use extends only to the limited
information or items that are entitled to confidential treatment under the applicable legal
principles.

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2.

DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under
Federal Rule of Civil Procedure 26(c).
2.3

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4

Designated House Counsel: House Counsel who seek access to

“CONFIDENTIAL” information in this matter.
2.5

Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.
2.6

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among
other things, testimony, transcripts, and tangible things), that are produced or generated
in disclosures or responses to discovery in this matter.
2.7

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this action, (2) is not a past or current employee
of a Party or of a Party’s competitor, and (3) at the time of retention, is not anticipated to
become an employee of a Party or of a Party’s competitor.

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2.8

House Counsel: attorneys who are employees of a party to this action.

House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.9

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
2.10

Outside Counsel of Record: attorneys who are not employees of a party to

this action but are retained to represent or advise a party to this action and have
appeared in this action on behalf of that party or are affiliated with a law firm which has
appeared on behalf of that party.
2.11

Party: any party to this action, including all of its officers, directors,

employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.12

Producing Party: a Party or Non-Party that produces Disclosure or

Discovery Material in this action.
2.13
services

Professional Vendors: persons or entities that provide litigation support

(e.g.,

photocopying,

videotaping,

translating,

preparing

exhibits

or

demonstrations, and organizing, storing, or retrieving data in any form or medium) and
their employees and subcontractors.
2.14

Protected Material: any Disclosure or Discovery Material that is

designated as “CONFIDENTIAL.”
2.15

Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party.

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3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

Material (as defined above), but also (1) any information copied or extracted from
Protected Material; and (2) all copies, excerpts, or compilations of Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the
following information: (a) any information that is in the public domain at the time of
disclosure to a Receiving Party or becomes part of the public domain after its disclosure
to a Receiving Party as a result of publication not involving a violation of this Order,
including becoming part of the public record through trial or otherwise; and (b) any
information known to the Receiving Party prior to the disclosure or obtained by the
Receiving Party after the disclosure from a source who obtained the information lawfully
and under no obligation of confidentiality to the Designating Party. Any use of Protected
Material at trial or any court proceeding shall be governed by a separate agreement or
order.
4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed

by this Order shall remain in effect until a Designating Party agrees otherwise in writing
or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)
dismissal of all claims and defenses in this action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, rehearings,
remands, trials, or reviews of this action, including the time limits for filing any motions
or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under this
Order must take care to limit any such designation to specific material that qualifies
under the appropriate standards. To the extent it is practical to do so, the Designating
Party must designate for protection only those parts of material, documents, items, or
oral or written communications that qualify – so that other portions of the material,
documents, items, or communications for which protection is not warranted are not
swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that
are shown to be clearly unjustified or that have been made for an improper purpose
(e.g., to unnecessarily encumber or retard the case development process or to impose
unnecessary expenses and burdens on other parties) expose the Designating Party to
sanctions. If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection at all or do not qualify for the level
of protection initially asserted, that Designating Party must promptly notify all other
parties that it is withdrawing the mistaken designation. Counsel have a duty to confer
as to any issues which arise.
5.2

Manner and Timing of Designations. Except as otherwise provided in this

Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
or ordered, Disclosure or Discovery Material that qualifies for protection under this
Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that the
Producing Party affix the legend “CONFIDENTIAL” to each page that contains protected
material. If only a portion or portions of the material on a page qualifies for protection,
the Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins) and must specify, for each portion, the level of
protection being asserted.
A Party or Non-Party that makes original documents or materials available for
inspection need not designate them for protection until after the inspecting Party has
indicated which material it would like copied and produced. After the inspecting Party
has identified the documents it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection under this Order.
Then, before producing the specified documents, the Producing Party must affix the
appropriate legend (“CONFIDENTIAL” to each page that contains Protected Material. If
only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins) and must specify, for each portion, the level of
protection being asserted.
(b) for testimony given in deposition or in other pretrial or trial proceedings, that
the Designating Party identify on the record, before the close of the deposition, hearing,
or other proceeding, all protected testimony and specify the level of protection being
asserted. When it is impractical to identify separately each portion of testimony that is
entitled to protection and it appears that substantial portions of the testimony may

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qualify for protection, the Designating Party may invoke on the record (before the
deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to
identify the specific portions of the testimony as to which protection is sought and to
specify the level of protection being asserted. Only those portions of the testimony that
are appropriately designated for protection within the 21 days shall be covered by the
provisions of this Stipulated Protective Order. Alternatively, a Designating Party may
specify, at the deposition or up to 21 days afterwards if that period is properly invoked,
that the entire transcript shall be treated as “CONFIDENTIAL.”
Parties shall give the other parties notice if they reasonably expect a deposition,
hearing or other proceeding to include Protected Material so that the other parties can
ensure that only authorized individuals who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a
document as an exhibit at a deposition shall not in any way affect its designation as
“CONFIDENTIAL.” Transcripts containing Protected Material shall have an obvious
legend on the title page that the transcript contains Protected Material, and the title
page shall be followed by a list of all pages (including line numbers as appropriate) that
have been designated as Protected Material and the level of protection being asserted
by the Designating Party. The Designating Party shall inform the court reporter of these
requirements. Any transcript that is prepared before the expiration of a 21-day period for
designation shall be treated during that period as if it had been designated
“CONFIDENTIAL” in its entirety unless otherwise agreed. After the expiration of that
period, the transcript shall be treated only as actually designated.

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(c) for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on the exterior
of the container or containers in which the information or item is stored the legend
“CONFIDENTIAL.” If only a portion or portions of the information or item warrant
protection, the Producing Party, to the extent practicable, shall identify the protected
portion(s) and specify the level of protection being asserted.
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive the
Designating Party’s right to secure protection under this Order for such material. Upon
timely correction of a designation, and written notice, the parties shall confer to agree
upon a remedy to assure that the material is treated in accordance with the provisions
of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

designation of confidentiality at any time. Unless a prompt challenge to a Designating
Party’s confidentiality designation is necessary to avoid foreseeable, substantial
unfairness, unnecessary economic burdens, or a significant disruption or delay of the
litigation, a Party does not waive its right to challenge a confidentiality designation by
electing not to mount a challenge promptly after the original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process by providing written notice of each designation it is challenging and
describing the basis for each challenge. To avoid ambiguity as to whether a challenge
has been made, the written notice must recite that the challenge to confidentiality is

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being made in accordance with this specific paragraph of the Protective Order. The
parties shall attempt to resolve each challenge in good faith and must begin the process
by conferring directly (in voice to voice dialogue; other forms of communication are not
sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
Party must explain the basis for its belief that the confidentiality designation was not
proper and must give the Designating Party an opportunity to review the designated
material, to reconsider the circumstances, and, if no change in designation is offered, to
explain the basis for the chosen designation. A Challenging Party may proceed to the
next stage of the challenge process only if it has engaged in this meet and confer
process first or establishes that the Designating Party is unwilling to participate in the
meet and confer process in a timely manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

court intervention, the Designating Party shall file and serve a motion to retain
confidentiality within 21 days of the initial notice of challenge or within 21 days of the
parties agreeing that the meet and confer process will not resolve their dispute. Each
such motion must be accompanied by a competent declaration affirming that the
movant has complied with the meet and confer requirements imposed in the preceding
paragraph. Failure by the Designating Party to make such a motion including the
required declaration within 21 days (or 14 days, if applicable) shall automatically waive
the confidentiality designation for each challenged designation. In addition, the
Challenging Party may file a motion challenging a confidentiality designation at any time
if there is good cause for doing so, including a challenge to the designation of a
deposition transcript or any portions thereof. Any motion brought pursuant to this

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provision must be accompanied by a competent declaration affirming that the movant
has complied with the meet and confer requirements imposed by the preceding
paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges and those made for an improper purpose (e.g.,
to harass or impose unnecessary expenses and burdens on other parties) may expose
the Challenging Party to sanctions. Unless the Designating Party has waived the
confidentiality designation by failing to file a motion to retain confidentiality as described
above, all parties shall continue to afford the material in question the level of protection
to which it is entitled under the Producing Party’s designation until the court rules on the
challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party
may disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure
is reasonably necessary for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) stenographic reporters who are engaged in their official capacity at any
hearing, deposition or other proceeding in this action;
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary (Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the court. Deposition transcripts shall be subject to the same requirement as
documents.
(f) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
7.3

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party
may disclose any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A;
(b) Optional as deemed appropriate in case-specific circumstances: Designated
House Counsel of the Receiving Party (1) who has no involvement in competitive
decision-making, (2) to whom disclosure is reasonably necessary for this litigation, (3)

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who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4)
as to whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;
(c) Experts and consultants of the Receiving Party who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants,

and

Professional Vendors to whom disclosure is reasonably necessary for this litigation and
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information; and
(g) Clients who have signed the Agreement.
7.4 Procedures for Approving or Objecting to Disclosure of “CONFIDENTIAL”
Information or Items to Designated House Counsel or Experts.
(a) Unless otherwise ordered by the court or agreed to in writing by the
Designating Party, a Party that seeks to disclose to Designated House Counsel any
information or item that has been designated “CONFIDENTIAL” pursuant to paragraph
7.3(b) first must make a written request to the Designating Party that (1) sets forth the
full name of the Designated House Counsel and the city and state of his or her
residence, and (2) describes the Designated House Counsel’s current and reasonably
foreseeable future primary job duties and responsibilities in sufficient detail to determine
if House Counsel is involved, or may become involved, in any competitive decisionmaking.

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(b) A Party that makes a request and provides the information specified in the
preceding respective paragraphs may disclose the subject Protected Material to the
identified Designated House Counsel or Expert unless, within 14 days of delivering the
request, the Party receives a written objection from the Designating Party. Any such
objection must set forth in detail the grounds on which it is based.
(c) A Party that receives a timely written objection must meet and confer with the
Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
agreement within seven days of the written objection. If no agreement is reached, the
Party seeking to make the disclosure to Designated House Counsel or the Expert may
file a motion seeking permission from the court to do so. Any such motion must describe
the circumstances with specificity, set forth in detail the reasons why the disclosure to
Designated House Counsel or the Expert is reasonably necessary, assess the risk of
harm that the disclosure would entail, and suggest any additional means that could be
used to reduce that risk. In addition, any such motion must be accompanied by a
competent declaration describing the parties’ efforts to resolve the matter by agreement
(i.e., the extent and the content of the meet and confer discussions) and setting forth the
reasons advanced by the Designating Party for its refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to Designated House
Counsel or the Expert shall bear the burden of proving that the risk of harm that the
disclosure would entail (under the safeguards proposed) outweighs the Receiving
Party’s need to disclose the Protected Material to its Designated House Counsel or
Expert.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

compels disclosure of any information or items designated in this action as
“CONFIDENTIAL” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include
a copy of the subpoena or court order; and
(b) promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena or order is
subject to this Protective Order. Such notification shall include a copy of this Stipulated
Protective Order. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material – and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this action to
disobey a lawful directive from another court.
9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
all unauthorized copies of the Protected Material, (c) inform the person or persons to
whom unauthorized disclosures were made of all the terms of this Order, and (d)
request such person or persons to execute the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A.

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10.

INADVERTENT PRODUCTION
PROTECTED MATERIAL

OF

PRIVILEGED

OR

OTHERWISE

When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
parties may incorporate their agreement in the stipulated protective order submitted to
the court.
11.

MISCELLANEOUS
11.1

Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the court in the future.
11.2

Right to Assert Other Objections. By stipulating to the entry of this

Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any ground
to use in evidence of any of the material covered by this Protective Order.
11.3

Filing Protected Material. Without written permission from the Designating

Party or a court order secured after appropriate notice to all interested persons, a Party
may not file in the public record in this action any Protected Material. Protected Material
may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. A sealing order will issue only upon a request
establishing that the Protected Material at issue is privileged, protectable as a trade
secret, or otherwise entitled to protection under the law. If a Receiving Party's request to
file Protected Material under seal is denied by the court, then the Receiving Party may
file the Protected Material in the public record unless otherwise instructed by the court.
11.4

When this litigation has been fully decided, including completion of all

possible appellate court procedures, any Confidential Information protected by this
Order shall be destroyed or preserved by counsel in a manner which is fully consistent
with the spirit of the Protective Order.

At the end of litigation, counsel will not be

required to return the material.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

/s/ M. James Zendejas
M. James Zendejas
121 E. Vermijo Avenue, Suite 200
Colorado Springs, CO 80903
[phone]
[e-mail]
Attorney for Defendant, Kendall Wren
d/b/a Colorado Concessions, LLC

/s/ Lawrence Brean
Lawrence Brean
208 Cobblestone Drive
Ardmore, PA 19003
[phone]
[e-mail]
Attorney for Plaintiff Mini Melts USA, Inc.

/s/ Robert G. Oake, Jr.
Robert G. Oake, Jr.
Texas State Bar No. 15154300
Oake Law Office
825 Market Street, Suite 250
Allen, Texas 75013
[phone]
[e-mail]
Attorney for Plaintiff Mini Melts, Inc.

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: __s/Craig B. Shaffer________________________________
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of
_________________________________________ [print or type full address], declare
under penalty of perjury that I have read in its entirety and understand the Stipulated
Protective Order that was issued by the United States District Court for the District of
Colorado on ________[date] in the case of MINI MELTS USA, Inc. and MINI MELTS,
Inc. v. KENDALL WREN d/b/a COLORADO CONCESSIONS, LLC; Case No.: 11 CV
03213 PAB-CBS. I agree to comply with and to be bound by all the terms of this
Stipulated 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 Stipulated 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 Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this
action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and
telephone number] as my Colorado agent for service of process in connection with this
action or any proceedings related to enforcement of this Stipulated Protective Order.
Date: _________________________________
City and State where sworn and signed: _________________________________

Printed name: ______________________________

Signature: __________________________________

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