Liberty Insurance Corporation v. BSH Home Appliance Corporation

Filing 18

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 3/29/12. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00359-CMA-CBS
LIBERTY INSURANCE CORPORATION,
a/s/o Robert S. MacLean,
Plaintiff,
v.
BSH HOME APPLIANCE CORPORATION,
Defendant.

STIPULATED PROTECTIVE ORDER

Before the Court is Defendant BSH Home Appliances Corporation (“BSH”) and
Plaintiff’s Liberty Insurance Corporation’s (“Liberty” or “Plaintiff”) Joint Motion for Entry
of Protective Order. To facilitate discovery by adequately protecting materials the
parties claim are confidential and proprietary and to avoid unnecessary discovery
disputes, it is hereby ORDERED that the Joint Motion for Entry of Protective Order is
granted.
It is further ORDERED:
1.

A party producing documents or serving written discovery responses that

the producing party contends contain trade secrets or other confidential research,
development, or commercial information (“Confidential Information”) shall mark such
documents, or a portion thereof, with the word “Confidential.”

2.

The designation of material as “Confidential” shall be made by placing or

affixing on the first page of the material or on each page of the material, in a manner
that will not interfere with the material’s legibility, the word “Confidential.”
3.

Confidential Information shall not be used or shown, disseminated, copied,

or in any way communicated, orally, in writing, or otherwise, by the parties, their
counsel, or any of their representatives, agents, expert witnesses, or consultants, to
anyone for any purpose whatsoever, other than as required by the parties and their
counsel for the preparation and trial of this action. Access to Confidential Information
shall be limited to those persons designated as “Qualified Persons” in paragraph 4
below.
4.

Confidential Information may be disclosed only to the following persons

(hereinafter referred to as “Qualified Persons”):
a.

the parties and their officers, directors, employees, and agents;

b.

counsel of record for the parties and employees and agents of such

counsel who are assisting such counsel in the preparation or trial of this action;
c.

experts and consultants retained by the parties whose assistance is

necessary for the litigation of this action; provided, however, that, before
disclosing any Confidential Information to any such expert or consultant, counsel
of record for the party intending to make that disclosure shall (i) obtain from the
expert or consultant a written statement, in the form of Exhibit A attached hereto,
signed by the expert or consultant, stating that, the person will maintain the
confidentiality of the information; and (ii) no disclosure of Confidential Information

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shall be made to any person who has not provided such a signed statement,
which statement shall be retained by counsel of record for the party making the
disclosure to the expert or consultant.
d.

the Court and the Court’s employees and staff in this case, in

accordance with the procedures regarding filing under seal as described herein;
d.

by Order of the Court; and

e.

any person expressly named and agreed to in writing by the

parties.
5.

Before being given access to Confidential Information, each Qualified

Person (other than counsel of record, the Court, and the officers, directors, employees,
and agents of the party that produced the Confidential Information) shall be advised of
the terms of this Order, shall be given a copy of this Order, and shall agree in writing, in
the form attached hereto as Exhibit A, to be bound by the terms of this Order and to be
subject to the jurisdiction of this Court for the purposes of any proceeding relating to the
performance under, compliance with, or violation of this Order. Counsel for each party
shall maintain a list of all Qualified Persons to whom they or their client have provided
any Confidential Information, and that list shall be available for inspection by the Court.
In addition, each of the parties and their attorneys expressly stipulates to be subject to
the personal jurisdiction of this Court for purposes of any proceeding brought by a party
to this action to enforce this Order.
6.

Use in Depositions. Confidential Information may be used at a deposition

if: (a) the counsel for the party using such material advises the witness of the terms of

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this Protective Order, provides a copy to the witness, and the witness agrees on the
record to maintain the confidentiality of the material; or (b) the witness executes an
Agreement attached as Exhibit A to this Protective Order. If the witness refuses to agree
to either be bound by the Protective Order on the record or to execute Exhibit A, then
the party seeking to use such Confidential Information and the party seeking to protect
the Confidential Information at that witness’ deposition will jointly request that the Court
enter an Order requiring the witness to comply with the terms of the Protective Order
before disclosing the material to the witness.
7.

If Confidential Information is used or marked as an exhibit in a deposition,

or if deposition questions, testimony, or colloquy discloses Confidential Information,
counsel for any party claiming confidentiality for the Confidential Information shall inform
the court reporter and counsel for the other parties of the claim of confidentiality either
contemporaneously on the record during the deposition or in writing within 30 days after
having received a copy of the deposition transcript. In addition, any other person
claiming that any information disclosed in the deposition is Confidential Information may
so inform the court reporter and counsel for all parties in the same manner and within
the same period. Each transcript and all testimony designated as Confidential shall be
treated as Confidential Information, pursuant to the terms of this Order, except as
otherwise agreed in writing by each party claiming confidentiality or as otherwise
ordered by the Court.
8.

Except to the extent otherwise permitted by this Order, every Qualified

Person provided copies of or access to Confidential Information pursuant to this Order

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shall keep all such materials and information, and any copies, notes, extracts,
summaries, or descriptions of such material, within their exclusive possession and
control, shall treat all such copies, notes, extracts, summaries, or descriptions of the
Confidential Information or any portion thereof as Confidential, shall take all necessary
and prudent measures to maintain the confidentiality of all such materials or information,
and shall not disseminate such Confidential Information.
9.

If any counsel of record distributes copies of material containing

Confidential Information to one or more Qualified Persons, all such materials, and all
copies, notes, extracts, summaries, or descriptions of such material, shall be returned to
that counsel of record or destroyed at the completion of the Qualified Person’s
consultation or representation in this case. If a Qualified Person destroys such material,
rather than returning it to that counsel of record, the Qualified Person shall promptly
provide to that counsel of record an affidavit stating that all materials containing
Confidential Information, and all copies, notes, extracts, summaries, or descriptions of
any such material, have been destroyed. Counsel of record shall, on request by
opposing counsel or the Court, execute an affidavit stating that to the best of counsel’s
knowledge all materials containing Confidential Information, and all copies, notes,
extracts, summaries, or descriptions of any such material, have been returned or
destroyed as required.
10.

Nothing in this Order shall prevent a party from using at trial or hearing, or

in connection with briefs or other papers filed with the Court, any Confidential
Information, except that any such use shall not expand the persons to whom such

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documents or information may be disclosed pursuant to this Order. Any Confidential
Information, including deposition transcripts, as well as briefs and other papers
containing or otherwise disclosing such information, that is filed with or otherwise
submitted to the Court shall be filed under seal. The party filing the document must
comply with the Court’s requirements for filing documents under seal. With respect to all
motions and pretrial proceedings, any party who intends to file or lodge Confidential
Information or portions thereof or information therefrom in support of or in connection
with such motion or proceeding shall cause them to be filed or lodged with the Court
under seal, and accompanied by a Motion to Seal, by filing them in an envelope or
container or electronically as permitted by the ECF Guidelines.
11.

Promptly after the termination of this action by entry of a final judgment or

order of dismissal, all materials containing Confidential Information shall be returned to
counsel for the party who produced those materials or shall be destroyed, with the
exception that counsel of record may retain one copy of each deposition transcript
designated as Confidential Information, subject to the ongoing confidentiality obligations
imposed herein.
12.

After the termination of this action by entry of a final judgment or order of

dismissal, the provisions of this Order shall continue to be binding. The terms of this
Order constitute, and shall be deemed to be, an enforceable agreement between the
parties (and their agents and attorneys, to the extent permitted by the applicable rules of
professional conduct), and the terms of this Order may be enforced by specific
performance in any court of competent jurisdiction.

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13.

This Order shall be binding on the parties, their attorneys, and the parties’

and their attorneys’ successors, executors, personal representatives, administrators,
heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents,
independent contractors, and other persons or organizations over whom or which the
parties have control.
14.

This Order does not constitute a waiver or limitation of any party’s right to

object to discovery on any ground, including the ground that information sought contains
trade secrets or other confidential research, development, or commercial information;
nor does it constitute an admission or representation by any party that any document or
information designated as Confidential is in fact a trade secret or contains confidential
research, development, or commercial information; nor does it constitute a waiver of
any party’s right to challenge the confidentiality of any redaction or designation.
15.

By producing documents for review and inspection, the parties do not

waive any objections to relevance for summary judgment or other purposes or to the
admissibility at trial of any such document or of any information contained in any such
document.
16.

This Order does not constitute a waiver or limitation of any party’s right to

withhold or redact information protected from disclosure by the attorney-client privilege
or other applicable privilege, the work-product doctrine, or any other protection, law, or
regulation, or to seek appropriate protective orders respecting documents asserted to
be subject to any such privilege, doctrine, protection, law, or regulation.

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17.

The entry of this Order shall be without prejudice to the rights of the

parties, or any one of them, or of any non-party, to assert or apply for additional or
different protection.
18.

Nothing in this Order shall limit any party’s right to disclose to any person,

or use for any purpose, its own information and documents.
19.

If a party inadvertently produces Confidential Information without the

required “Confidential” legend, the producing party shall, within ten (10) days of
discovering the inadvertent omission, inform the receiving party in writing of the
inadvertent omission and the specific material at issue. On receipt of such notice, the
receiving party shall treat the material identified in the notice as Confidential until (a) the
parties agree to non-confidential treatment of the subject material, or (b) the Court, on
motion of either party made within ten (10) days of the date of the written notice
regarding inadvertent omission, issues an order addressing the appropriate treatment of
the subject material. A party shall not be deemed to have waived any right to designate
material as “Confidential” by allowing inspection of such material prior to a designation
of such material as “Confidential” or by inadvertently failing to mark a document as
“Confidential” prior to its disclosure.
20.

The parties agree that the inadvertent production of any documents that

would be protected from disclosure pursuant to the attorney-client privilege, the work
product doctrine, or any other relevant privilege or doctrine shall not constitute a waiver
of the applicable privilege or doctrine. If any such document is inadvertently produced,
the recipient of the document agrees that, on request from the producing party, it will

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promptly return the document, destroy all copies (including copies on any electronic
database), and make no use or further disclosure of the information contained in the
document.
21.

If a party contends that any document has been erroneously or improperly

designated Confidential, it shall nevertheless treat the document as Confidential until
either (a) that party obtains from the designating party written permission to do
otherwise, or (b) this Court enters an order stating that the document shall not be
treated as Confidential Information.
22.

A party may challenge the designation of a document or other material as

Confidential only as follows:
a.

If a party believes that material designated by another as

Confidential has not been properly so designated or should be reclassified or
revealed to an individual not otherwise authorized to have access to that material
under this Order, that party (the “challenging party”) shall provide to the
designating party written notice of that disagreement, stating the reason(s) for the
challenge. The written notice shall identify the information to which the objection
is made and shall specify the basis for the objection. All objections must be made
in good faith. The designating party shall then have 10 days from receipt of the
written objection to respond to the challenging party and to arrange for a meet
and confer (the “Meet and Confer Period”). The challenging and designating
parties shall first try to dispose of such challenge in good faith on an informal
basis.

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b.

If neither the designation nor the objection is withdrawn during the

Meet and Confer Period, a party may file a motion to resolve the dispute. The
designating party bears the burden of establishing that the material is entitled to
protection as Confidential Information. Pending any Court ruling, the provisions of
this Protective Order shall apply and disclosure and use of the challenged
documents or information shall not be made except as provided under this
Protective Order.
23.

This Protective Order may be altered or amended by the Court on request

by either Party only with a showing of good cause.

DATED at Denver, Colorado, this 29th day of March 2012.
BY THE COURT:

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

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Approved and agreed to:
Dated: March 27, 2012
s/ Tod E. Fitzke
Tod E. Fitzke, Esq.
2260 S. Xanadu Way, Suite 290
Aurora, Colorado 80014-6511
Telephone: [phone]
Facsimile:
[phone]
Email:
[e-mail]

s/ Joel S. Neckers
Joel S. Neckers
Katherine C. Yarger
Wheeler Trigg O’Donnell LLP
1801 California Street, Suite 3600
Denver, Colorado 80202
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]

Attorneys for Plaintiff,
Liberty Insurance Corporation
a/s/o Robert S. MacLean

Attorneys for Defendant,
BSH Homes Appliances Corporation

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00359-CMA-CBS
LIBERTY INSURANCE CORPORATION,
a/s/o Robert S. MacLean,
Plaintiff,
v.
BSH HOME APPLIANCE CORPORATION,
Defendant.

EXHIBIT A: AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

I, ________________________________________, declare and agree as follows:
1.
My address is
______________________________________________________________________
______________________________________________________________________
2.
My present employer is ________________________________________
______________________________________________________________________
3.
My present occupation or job description is ________________________
______________________________________________________________________
4.
I acknowledge that I may receive information or material, or both,
designated as “Confidential” in accordance with the Protective Order (“Order”) regarding
treatment of Confidential Information entered by the Court in the lawsuit identified in the
above caption.
5.
I have received a copy of that Order and have read it. I am familiar with its
terms and conditions. I agree to comply with and to be bound by each of the terms and
conditions of that Order. In particular, I agree to hold in confidence, in accordance with
the requirements of the Order, any information and material disclosed to me pursuant to
that Order.

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6.
I understand that the Order has been issued by a court of competent
jurisdiction and is enforceable by the power of contempt. I understand fully that my
breach of the Order, or any of its terms, may result in sanctions by the Court, contempt
proceedings, or other proceedings to enforce the terms of the Order.
7.
I agree (a) to notify all stenographic, clerical, or other personnel who are
required to assist me in my assigned duties of the terms of the Order, (b) to provide
them with a copy of this declaration for their signature, and (c) to obtain and keep the
copy of this declaration after it has been properly signed.
8.
I agree that I will not show, disseminate, or in any way communicate,
orally, in writing, or otherwise, to anyone, or use or copy, for any purpose whatsoever,
other than as required for the preparation and trial of this action, any Confidential
Information provided to me in connection with this litigation, and I will not reveal any
Confidential Information to any person who is not a “Qualified Person” as defined in
paragraph 5 of the Order.
I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct and represents my understanding of my
agreement to be bound to the terms of the Protective Order.
Executed this ____ day of _____________, ______, at ____________________.

Signed:_______________________

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