Visual Merchandising, Inc. v. Creative New Leader, Inc.

Filing 46

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 6/19/2012. (kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00009-CMA-KMT
FUSION SPECIALTIES, INC.,
Plaintiff,
v.
CHINA NETWORK LEADER, INC., a California corporation, d/b/a CNL Mannequins
Defendant.

PROTECTIVE ORDER

Upon Joint Motion of Plaintiff Fusion Specialties, Inc. and Defendant China
Network Leader, Inc., for a Protective Order pursuant to Rule 26(c) of the Federal Rules
of Civil Procedure concerning the treatment of Protected Information (as hereinafter
defined), it is hereby ordered as follows:
1.

In this action, it is anticipated that one or more of the Parties will seek

Confidential Information or Attorneys Eyes’ Only Information (as defined in paragraph 2
below). The Court finds that the disclosure of such information (hereinafter collectively
described as “Protected Information”) outside the scope of this litigation could result in
significant injury to one or more of the Parties’ business or privacy interests. The Court
accordingly enters the within Protective Order for the purpose of preventing the
disclosure and use of Protected Information except as set forth herein.

2.

“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 provided in paragraph 3
below as containing:
a.

Trade secrets; and

b.

Confidential and proprietary financial or technical information not

available to the public, and the disclosure of which could cause significant injury to the
designating party.
“Attorneys Eyes’ Only 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 provided in paragraph 3
below, which contains particularly sensitive proprietary financial, technical, competitive
or customer information not available to the public, and the disclosure of which to the
opposing party could cause significant injury to the designating party. The designation
is reserved for only information that constitutes highly sensitive, proprietary financial,
technical or commercial competitive information that the Designating Party maintains as
highly confidential in its business.
Any information designated by a party as Confidential or Attorneys’ Eyes Only
must first be reviewed by a lawyer, who certifies in writing that the designation is based
on a good faith belief that the information meets the criteria set forth above. Each Party
or non-party that designates information or items for protection under this Order must

2

take care to limit any such designation to specific material that qualifies under the
appropriate standards. A Designating Party must take care to 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.
3.

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 counsel to whom it is reasonably necessary to disclose the
information for this litigation;
b.

the officers, directors, and employees (including in-house counsel)

of the receiving Party to whom disclosure is reasonably necessary for this litigation;
c.

experts of the receiving Party to whom disclosure is reasonably

necessary for this litigation and who have signed the “Agreement to Be Bound by
Protective Order” (Exhibit A);
d.

the Court and its personnel;

3

e.

court reporters and persons or entities that provide litigation support

services to whom disclosure is reasonably necessary for this litigation and who have
signed the “Agreement to Be Bound by Protective Order” (Exhibit A);
f.

during their depositions, hearings or trial, witnesses described in

paragraph 7, below;
g.

the author of the document or the original source of the information

and the addressee or recipient of the document; and
h.

any designated mediator, and his or her staff, who has signed the

“Agreement to Be Bound by Protective Order” (Exhibit A).
Unless otherwise ordered by the court or permitted in writing by the Designating
Party, a Receiving Party may disclose any information or item designated “Attorneys’
Eyes Only” only to persons described in sub-paragraphs a, c, d, e, f, g and h, above.
4.

Where Protected Information is produced, provided or otherwise disclosed

by a Party in response to any discovery request, it will be designated in the following
manner:
a.

By imprinting the words “Confidential” or “Attorneys’ Eyes’ Only” on

each page that contains Protected Information of any document produced;
b.

By imprinting the word “Confidential” or “Attorneys’ Eyes’ Only” next

to or above any response to a discovery request; and
c.

With respect to transcribed testimony, by giving written notice to

opposing counsel designating such portions as “Confidential” or “Attorneys’ Eyes’ Only”
no later than fourteen calendar days after receipt of the transcribed testimony.

4

5.

All Protected Information provided by a Party in response to a discovery

request or transcribed testimony 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 as set forth in paragraph 3.
6.

Individuals authorized to review Protected Information pursuant to this

Protective Order shall hold Protected Information in confidence and shall not divulge the
Protected Information, either verbally or in writing, to any other person, entity or
government agency unless authorized to do so by court order.
7.

Use of Designated Material at Depositions, Hearings or Trials.

Except as may be otherwise ordered by the Court, any person may be examined
as a witness at depositions, hearings or trial and may testify concerning all Designated
Material of which such person has prior knowledge. In addition to the foregoing:
a.

A present director, officer, employee, designated Rule 30(6)(b)

witness, and/or Outside Consultant of a Designating Party may be examined and may
testify concerning all Designated Material which has been produced by that party.
b.

A former director, officer, agent and/or employee of a Designating

Party may be interviewed, examined and may testify concerning all Designated Material
of which the examining party reasonably believes he or she has prior knowledge,
including any Designated Material that refers to matters of which the witness has

5

personal knowledge, which has been produced by that party and which pertains to the
period or periods of his or her employment; and
c.

Non-parties may be examined or testify concerning any document

containing Designated Material of a Designating Party which appears on its face or from
other documents or testimony to have been received from or communicated to the nonparty as a result of any contact or relationship with the Designating Party, or a
representative of such Designating Party.
Any person other than the witness, his or her attorney(s), and any person
qualified to receive Designated Material under this Order shall be excluded from the
portion of the examination concerning such information, unless the Designating Party
consents to persons other than qualified recipients being present at the examination. If
the witness is represented by an attorney who is not qualified under this Order to
receive such information, then prior to the examination, the attorney shall be requested
to provide a Agreement To Be Bound By Protective Order, in the form of Attachment A
hereto, that he or she will comply with the terms of this Order and maintain the
confidentiality of Designated Material disclosed during the course of the examination. In
the event that such attorney declines to sign such an Agreement To Be Bound By
Protective Order, prior to the examination, the parties, by their attorneys, shall jointly
seek a protective order from the Court prohibiting such attorney from disclosing such
Designated Material.
8.

The Party’s counsel who discloses Protected Information shall be

responsible for assuring compliance with the terms of this Protective Order with respect
to persons to whom such Protected Information is disclosed and shall obtain and retain

6

the original affidavits signed by qualified recipients of Protected Information, and shall
maintain a list of all persons to whom any Protected Information is disclosed.
9.

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 8 above upon a showing of substantial need in order to establish the source
of an unauthorized disclosure of Protected 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.
10.

No copies of Protected 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 but counsel may provide copies of Protected Information to persons
described in paragraphs 3(c), (d), (e) and (h) above.
11.

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

Protected Information, and copies made therefrom pursuant to paragraph 10, above.
12.

No Waiver of Privilege.

The inadvertent or unintentional production of documents (including physical
objects) shall not constitute a waiver of the attorney-client privilege or work product
immunity or any other applicable privilege or immunity from discovery if, within ten court
days after the Designating Party becomes aware of any inadvertent or unintentional
disclosure, the Designating Party designates any such documents as within the
attorney-client privilege or work product immunity or any other applicable privilege or
immunity and requests in writing return of such documents to the Designating Party and

7

provides in writing the factual bases for (a) the assertion of privilege or immunity, and
(b) the assertion that the production was inadvertent or unintentional. Upon request by
the Designating Party, the Receiving Party shall immediately return all copies of such
inadvertently produced document(s); and shall not use any inadvertently produced
material or information for any purpose unless and until the asserted privileges or
immunities have been successfully challenged or withdrawn. Nothing herein shall
prevent the Receiving Party from challenging the propriety or waiver of the attorneyclient privilege or work product immunity or other applicable privilege or immunity
designation with the Court.
13.

Inadvertent Failure To Designate.

An inadvertent failure to designate qualified information, documents or things as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” does not, standing alone, waive the
Designating Party’s right to secure protection under this Order for such material. Upon
discovery of an inadvertent failure to designate, as soon as reasonably possible a
Designating Party may notify the Receiving Party in writing that the material is to be
designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” with the factual basis
for the assertion of designation as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”.
Upon receipt of such notice, the Receiving Party must make reasonable efforts to
assure that the material is treated in accordance with the terms of this Order, subject to
the right to challenge the propriety of such designation(s). The Designating Party shall
provide substitute copies of documents bearing the confidentiality designation.
14.

If opposing counsel objects to the designation of certain information as

Protected Information, he or she shall promptly inform the other parties’ counsel in

8

writing of the specific grounds of objection to the designation. All counsel shall then, in
good faith and on an informal basis, attempt to resolve such dispute. If after such good
faith attempt, all counsel are unable to resolve their dispute, opposing counsel may
move for a disclosure order consistent with this order. Any motion for disclosure shall
be filed within 14 days of receipt by counsel of notice of opposing counsel's objection,
and the information shall continue to have Protected Information status from the time it
is produced until the ruling by the Court on the motion.
15.

Unauthorized Disclosure Of Designated Material.

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Designated Material to any person or in any circumstance not authorized under this
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 copies of the
Designated 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 “Agreement to Be Bound by Protective Order” that is attached
hereto as Exhibit A.
16.

Non-Party Use of This Protective Order
a.

A non-party producing information or material voluntarily or

pursuant to a subpoena or a court order may designate such material or information in
the same manner and shall receive the same level of protection under this Protective
Order as any party to this lawsuit.
b.

A non-party’s use of this Protective Order to protect its

“CONFIDENTIAL” information or “ATTORNEYS’ EYES ONLY” information does not

9

entitle that non-party access to “CONFIDENTIAL” information or “ATTORNEYS’ EYES
ONLY” information produced by any party in this case.
17.

In the event Protected Information is used in any court filing or proceeding

in this action, including but not limited to its use at trial, it shall not lose its confidential
status as between the parties through such use. In the event that a Receiving Party
intends to file or use Protected Information in or with a pleading, the Receiving Party
shall file any such document as a restricted document at Level 1 restriction pursuant to
D.C.COLO.LCivR 7.2D. It shall be the responsibility of the Designating Party, if it so
desires, to file a motion to restrict access pursuant to D.C.COLO.LCivR 7.2B.
18.

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

obligated hereunder from their responsibility to maintain the confidentiality of Protected
Information pursuant to this Protective Order, and the Court shall retain continuing
jurisdiction to enforce the terms of this Protective Order.
19.

Unless otherwise ordered or agreed in writing by the Designating Party,

within sixty calendar days after the final termination of this action, each Receiving Party
must destroy or return all Designated Material to the Designating Party. As used in this
Paragraph, “all Designated Material” includes all copies, abstracts, compilations,
summaries or any other form of reproducing or capturing any of the Designated
Material. The Receiving Party must submit a written confirmation of the return or
destruction to the Designating Party (and, if not the same person or entity, to the
Designating Party) by the 60-day deadline. Notwithstanding this provision, Counsel of
Record may retain an archival copy of all pleadings, motion papers, deposition
transcripts (including exhibits), transcripts of other proceedings (including exhibits),

10

expert reports (including exhibits), discovery requests and responses (including
exhibits), exhibits offered or introduced into evidence at trial, legal memoranda,
correspondence or attorney work product, even if such materials contain Designated
Material. Any such archival copies that contain or constitute Designated Material remain
subject to this Protective Order as set forth in ¶19, above.
20.

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 Protected Information shall be treated at trial.
DATED this 19th day of June, 2012.
BY THE COURT:

_______________________________
United States Magistrate Judge

11

EXHIBIT A
AFFIDAVIT
STATE OF COLORADO
COUNTY OF

)
)
)

ss.

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

I have read the Protective Order in Fusion Specialties, Inc. v. China

Network Leader, Inc., Civil Action No. 12-cv-00009-CMA-KMT, a copy of which is
attached to this Affidavit.
2.

I have been informed by _______________, Esq., counsel for

_________________________, that the materials described in the list attached to this
Affidavit are Protected 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 Protected Information shown or told to me except
as authorized in the Protective Order. I will not use the Protected 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:

12

Telephone No.: (

)

SUBSCRIBED AND SWORN to before me this _____ day of _____, 20__, by
_________________________.
WITNESS my hand and official seal.

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

13