Bituminous Casualty Corporation v. Hartford Casualty Insurance Company

Filing 172

STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT by Magistrate Judge Kristen L. Mix on 3/15/14. (lag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No: l2-CV-00043-WYD-KLM
B

ITUMINOUS CASUALTY CORPORATION, an Illinois corporation,

HARTFORD CASUALTY INSURANCE COMPANY, an Indiana corporation
Defendant.

STIPULATED PROTECTIVE ORDf,R AND
CONFIDENTIALITY AGREEMENT

Upon a showing of good cause in support of the entry of a protective order, under Fed. R.

Civ. P. 26(c), to protect the discovery and dissemination of confidential information
information which

will improperly annoy, embarrass, or oppress any party,

or

witness, or person

providing discovery in this case, IT IS ORDERED

1.

Confidential Information,

(a)

As used in this Protective Order, "CONFIDENTIAL" or CONFIDENTIAL

INFORMATION" shall mean the Jones

&

Keller Invoices in the Underlying Action,

the

Bituminous/Genex Settlement Agreement, and any related information, document, or thing that a

Party (the "Designating Party") furnishes in the course of this litigation and in good faith
designates as CONFIDENTIAL INFORMATION pursuant

purposes

of this Protective Order,

documents produced

to Sections l(b) to (d) below. For

by counsel for Bituminous, John

E.

Rodewald, in response to a subpoena will be considered as furnished by Bituminous, and any

such documents marked as "CONFIDENTIAL"

will be considered CONFIDENTIAL

INFORMATION under this Protective Order.

(b)

A Party may

designate its answers

admissions, any documents produced

subpoena duces tecum,

or

in

response

otherwise,

to interrogatories, responses to requests for
to a request for production of

documents,

or any other information provided by it

as

CONFIDENTIAL INFORMATION by stamping the word "CONFIDENTIAL" upon the first
page

of the document, taking care to avoid obscuring any text, before providing it to

the

opposing Party. Information marked CONFIDENTIAL shall not be utilized or disclosed by a
receiving Party (the "Recipient Party"), its agents, or its employees, except in accordance with
the terms of this Confidentiality Order.

(c)

In the case of CONFIDENTIAL INFORMATION in a non-paper medium, e.g.,

video or audio tape, computer discs, CD-ROMs, DVDs, etc., a Party may designate all
information therein as CONFIDENTIAL by affixing a legend stating the same to the outside of
the medium or container.

(d) To designate a portion of a deposition transcript

as CONFIDENTIAL,

a

Designating Party may either make a statement on the record to that effect or must, within thirty

(30) days after the deposition transcript is delivered to the Designated Party, provide to all
counsel written notice identifoing the specific pages of the deposition transcript that counsel for
the Designating Party in good faith believes to contain CONFIDENTIAL INFORMATION.

All

deposition transcripts shall be treated as CONFIDENTIAL INFORMATION until the expiration

of the thirty-day period. The portions so designated shall not be utilizOd or disclosed by the other
Party, its agents, or its employees, except in accordance with the terms of this Confidentiality
Order.

(e)

CONFIDENTIAL INFORMATION shall not be disclosed to any person other

than the following Qualified Person(s):

the attorneys for the Recipient Party in this litigation and paralegal and
clerical staff (whether employees or independent contractors) who are assisting in the litigation;

(ii)

the Recipient Party and officers, directors and/or employees of

the

Recipient Party, including those who have direct responsibility for assisting such counsel in the
preparation and trial of the action.

(iii)

court reporters, court officials, and the jury involved in this litigation;

(iv)

experts, consultants and investigators and their staff who are retained by a

Party for purposes relating to this litigation and who have agreed in writing to maintain the
confidentiality of the CONFIDENTIAL INFORMATION.

(v)

any other non-Party witnesses or deponents who agree on the record or in

writing to maintain the confidentiality of the CONFIDENTIAL INFORMATION'

CONFIDENTIAL INFORMATION received by any of the persons in the categories
listed above shall be used only for purposes of this litigation and for no other purposes, including

for any other litigation, whether on the same issues in this case or others, or for any business or
personal purpose. Nothing in this Protective Order shall prevent the Designating Party from any

use

of its own

confidential documents. CONFIDENTIAL INFORMATION may not be

disclosed to the persons described in category

(iv) and (v), above, unless the disclosing Party

determines in good faith that the disclosure is necessary for the purpose of developing testimony

of such witness or deponent. CONFIDENTIAL INFORMATION provided to a Receiving Party
shall be securely maintained in the offices of that Party's outside counsel. In addition, any
summary or copy of CONFIDENTIAL INFORMATION shall be subject to the terms of this

Protective Order to the same extent as the information or document of which summary or copy is
made, and must be clearly labeled as containing CONFIDENTIAL INFORMATION.

(0

CONFIDENTIAL INFORMATION may be copied or reproduced for the conduct

of this lawsuit. All such copies or reproductions shall be subject to the terms of this Protective
Order.

(g) If

the Court orders that access to or dissemination of CONFIDENTIAL

INFORMATION shall be made

to

persons

not included in paragraph 1(e) above,

such

CONFIDENTIAL INFORMATION shall be accessible to, or disseminated to such person only
after such person has agreed in writing to maintain the confidentiality of the CONFIDENTIAL

INFORMATION" unless the Court rules otherwise.

2.

No Waiver.

The disclosure

of CONFIDENTIAL INFORMATION

pursuant

to discovery or the

procedures set forth in this Protective Order shall not constitute a waiver of any privilege, trade
secret or any intellectual property, proprietary, or other rights to or in such information.

3.
If

Filine with the Court.

any document containing CONFIDENTIAL INFORM,+TION produced

in

this

litigation is to be filed as an exhibit to any court record or pleading, {r otherwise placed among

the court papers in this litigation, the Party filing the material sliall submit the document
containing CONFIDENTIAL INFORMATION as a Level

I

restricied document pursuant to

D.C.Colo.LCivR 7.2(e), and shall accompany such submission w4ith a Motion
pursuant to D.C.Colo.LCivR 7,2(c).

to

Restrict

4,

Application of this Confidentialifv 9rder.

(a)

This Protective Order shall apply to all discovery responses or papers, deposition

transcripts, summaries, notes, abstracts,

or other documents or information that comprise,

embody, or summarize any documents or information, in any form, produced in this litigation
that contain CONFIDENTIAL INFORMATION.

(b)

Nothing in this Protective Order shall affect the admissibility into evidence of

CONFIDENTIAL INFORMATION, or abridge the rights of any Party to seek judicial review or

to pursue other appropriate judicial action with respect to any ruling made by the
concerning the status

Court

of CONFIDENTIAL INFORMATION. Agreement to the terms of this

Protective Order is without prejudice to a Party's right to request that the Court rescind, modiff,
alter, or amend this Order with respect to specific documents or information.

(c)

Nothing in this Protective,Order or any Party's agreementthereto, shall waive or

affect any Party's right to challenge the admissibility into evidence

of CONFIDENTIAL

INFORMATION, or any other rights aParty has under the Federal Rules of Civil Procedure, the
Federal Rules of Evidence, any Order of this Court, or any other applioable legal authority.

5.
A

Confidentialitv Challenee.

Party may object to the designation of particular CONFIDENTIAL information by

giving written notice to the Designating Party. The written notice shall identify the information
to which the objection is made. If the Parties cannot resolve the dispute within ten (10) business
days after the time the notice is received, it shall b9 th-e obligation of the Designating Party

ff1rt=,.tal

# tkf l^; uS &'tcrv^1 Brc*Lru"

^"',tofr€

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

PA"
pS 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 toJil{such a 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 motionffinder this provision, the Designating
Party shall bearthe burden of establishingthat good cause exists forthe disputed information to
be treated as

6,

CONFIDENTIAL.
Confidential Information at Trial.

The designation of any information, documents, or things as CONFIDENTIAL pursuant

to this Protective Order shall not, in and of itself, raise any inference as to the confidentiality of
any information, documents, exhibits, or things marked for identification purposes or introduced

into evidence at the trial of this litigation. Nothing in this Protective Order, however, shall
preclude any Party from seeking confidential treatment from the Court with respect to such
information, documents, exhibits, or things or from raising any available objections, including

without limitation, objections concerning admissibility, materiality, and privilege. The Parties to
this Protective Order expressly reserve at this time a determination as to the manner in which
CONFIDENTIAL INFORMATION may be used in an evidentiary hearing or at
procedures or in camera treatment,

if any, shall

be determined in the

trial. Special

future. Nothing herein shall

be construed to alter or abridge the admissibility of evidence under the standards set forth in the
Federal Rules of Evidence.

V/4

7.

Specific Disclosure.

By joint agreement, the Parties, through their counsel, may agree to any specific
disclosure of CONFIDENTIAL INFORMATION in a particular circumstance without prejudice

to the

continued application

of the

Confidentiality Order regarding other uses

of

that

CONFIDENTIAL TNFORMATION.

8.

Modification.

This Protective Order mav be modified onlv bv Order of the Court.

9.

Return or Destruction of Confidential Information.

After final disposition of this case, whether by judgment, including appeals, settlement,

or otherwise, counsel of record for each of the Parties shall either return or destroy all
CONFIDENTIAL INFORMATION the Parties produced during this qase, and all copies of such

CONFIDENTIAL INFORMATION, within thirty (30) days

of jvritten

request from the

Designating Party, which notice shall be given within thirty (30) daysLafter said final disposition

of this case, except that counsel may retain one copy of

such CONFIDENTIAL

INFORMATION to maintain a complete file.
So Ordered this

fday of klarct^

,2014.

States Magistrate Judge Kristen L.

Mix

AGREED AND STIPULATED:

MONTGOMERY, KOLODNY,
AMATUZIO & DUSBABEK. LLP

THE MADDEN LAW FIRM

By: s/ Thomas H. Blomstrom
John R. Chase
Thomas H. Blomstrom

By: s/ John W. Mddden. III
John W. Madden, III
37a-nrh Sffeet, Suite 3500
Denver, Colorado 80202
Telephone: [phone] I

1775 Sherman Street,

2l't Floor

Denver, Colorado 80203
Telephone: [phone]

m add en

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0ther$ pdde

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tblorn strornt?)m kad l arv.coru

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and

and

KARBAL, COHEN, ECONOMOU,
SILK & DLINNE. LLC
JONES & KELLER. PC
By:

DanielA. Wartell
1999 Broadway, #3150

Denver, Colorado 80202
Telephone: [phone]
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warte

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ATTORNEYS FOR PLAINTIFF
BITUMINOUS CASUALTY
CORPORATION

By: s/ Kevin M, Lqueachi
Wayne S. Karbal
Kevin M. Lougachi
Christopher D. Bluc
150 South Wapker Drive, Suite 1700
Chicago, Illindis 60606
Telephone: 312-43 I -3700
ivkarbal(@karbal law.com
l<lou gach i @karhal law.com

ATTORNEYS FOR DEFENDANT
HARTFORD CASUALTY INSURANCE
COMPANY