Country Mutual Insurance Company v. Rocky Mountain Construction Company, LLC et al

Filing 113

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 7/16/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 12-CV-00453-REB-KMT
COUNTRY MUTUAL INSURANCE COMPANY, an Illinois corporation
Plaintiff,
v.
ROCKY MOUNTAIN CONSTRUCTION COMPANY, LLC, a Colorado Limited Liability
Company,
and
ANTHONY J. FLORES,
FORTINO FLORES,
DAVID AND BRENDA STILES
Defendants / Counter-Claimants / Third-Party Plaintiffs
v.
JOSHUA HARTMAN and BRANDON AVERY,
Third-Party Defendants.
______________________________________________________________________________
STIPULATED PROTECTIVE ORDER
______________________________________________________________________________
Upon a showing of good cause in support of the entry of a protective order to protect the
discovery and dissemination of confidential information, IT IS ORDERED that:
1.

Until further order of this Court or by stipulation of parties, all discovery in the

above matter shall be subject to this Stipulated Protective Order (“Protective Order”).
2.

All material which any party produces or discloses, the contents of which said

party wishes subject to this Order, may be designated as “CONFIDENTIAL” by that party and is
subject to this Order.

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3.

In designating information as CONFIDENTIAL, the designating party’s attorney

is certifying that he or she has reviewed the information and is designating the information as
CONFIDENTIAL based upon a good faith belief that the information is otherwise entitled to
protection.
4.

CONFIDENTIAL information as used herein shall mean any information

disclosed in this proceeding, whether disclosed in a document, in an interrogatory answer, in
deposition or other testimony, admissions or other material produced or disclosed by the parties
in response to any discovery request made during the course of the proceedings, which refers to,
relates to, or arises from: (1) Plaintiff COUNTRY Mutual Insurance Company’s confidential,
financial, and/or proprietary company information; (2) Defendants Rocky Mountain
Construction Company, Fortino Flores, Denise Flores, or Anthony Flores’ personal identifying
or financial information; (3) confidential settlement agreements entered into in the Underlying
Lawsuit, styled Stiles v. Rocky Mountain Construction Company, LLC, et.al., Larimer Country
District Court Case No. 10CV949, and (4) information regarding Third Party Defendants Josh
Hartman or Brandon Avery’s personal identifying or financial information. CONFIDENTIAL
information shall also mean information that any party designates as CONFIDENTIAL
irrespective by whom produced, which constitutes proprietary technical information, trade
secrets, financial and/or insurance information, operational information, business plans,
personnel information, confidential policy documents and other information that is otherwise not
publicly known.
5.

All material submitted in these proceedings, either voluntarily or pursuant to an

order of the Court, must be clearly marked by the producing party as “CONFIDENTIAL” to be
subject to this Order.

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6.

In the event that the producing party elects to produce files and records for

inspection, and any other party desires to inspect them, no marking need be made by the
producing party in advance of initial inspection. For purposes of the initial inspection, all
material produced shall be considered as marked “CONFIDENTIAL.”

Thereafter, upon

selection of specified documents by the party inspecting the documents, the producing party shall
mark copies of the documents it wishes to designate as CONFIDENTIAL at the time the copies
are produced to the inspecting party.
7.

With respect to depositions, the parties or any one of them will have the right to

request that the depositions be deemed CONFIDENTIAL.

Depositions or portions thereof

requested to be designated CONFIDENTIAL shall be so marked and the transcripts thereof so
treated.
8.

No information designated as CONFIDENTIAL shall be disclosed to anyone

other than parties and persons designated herein and shall be handled in the manner set forth
below, and in any event, shall not be used for any purpose other than for the purposes of the
above captioned litigation, unless and until such designation is removed either by agreement of
counsel for the parties or by an order of the Court.
9.

All material designated CONFIDENTIAL shall, in the absence of written

permission from the producing party or an order of the Court, be disclosed by the receiving party
to only the following, subject to Paragraph 10 of this Order:
a.

The receiving party and the employees of the parties whose assistance is

needed by counsel for the purposes of this litigation;
b.

The receiving party’s own counsel and its associates, law clerks,

paralegals, secretaries, office personnel and outside clerical services engaged by counsel, such as

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copying and courier services;
c.

Qualified persons taking testimony involving such information and

necessary stenographic and clerical personnel thereof;
d.

The Court, pursuant to Paragraph 12;

e.

Insurers, reinsurers, regulators or auditors of any party, if any;

f.

Subject to Paragraph 10 of this Order, technical experts, consultants and

their staff who are consulted by counsel of record; and
g.

Subject to Paragraph 10 of this Order, any other person of whom

testimony is to be taken in this proceeding, whether at trial or by deposition, except that such
person may only be shown CONFIDENTIAL items during testimony and in preparation
therefore.
10.

Material designated CONFIDENTIAL shall not be disclosed to any persons

designated in Paragraphs 9.f. or 9.g. unless they have first read this Order and have agreed in
writing via Exhibit A to this Order to be bound by the terms hereof, not to disclose any
information designated CONFIDENTIAL to anyone other than another person specified in
Paragraph 9 who has read this Order and agreed to be bound hereby, and to utilize information
designated CONFIDENTIAL solely for the purpose of these proceedings.
11.

All material designated CONFIDENTIAL by any party, and all reproductions and

summaries thereof and memoranda relating thereto, shall be retained by the other parties in the
custody of counsel of record, except as may be temporarily released to deponents or to experts
(e.g., for the purpose of preparing for deposition or trial, for the purpose of reading and signing
their depositions or for preparing an expert report).
12.

If a party intends to use any material designated CONFIDENTIAL pursuant to

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this Order at trial or hearing or in connection with any Court filing for any purpose, the party’s
attorneys must:
a.

Consult with the party who produced the CONFIDENTIAL material prior

to such trial, hearing or filing to secure an agreement as to the proper redaction of the
CONFIDENTIAL information so as to preserve its confidentiality and file the document with the
agreed upon redactions;
b.

If an agreement as to the redaction of any CONFIDENTIAL information

cannot be reached prior to any filing, file the document containing CONFIDENTIAL
information as a restricted document with an accompanying motion to restrict access pursuant to
District Court of Colorado Local Civil Rule 7.2.
c.

If an agreement as to the redaction of any CONFIDENTIAL information

cannot be reached prior to any trial or hearing, the party may request that the trial or hearing be
conducted in camera, or such other relief as may be appropriate.
13.

Upon termination of these proceedings, each party which is subject to this Order

shall assemble and return to the other parties all items designated CONFIDENTIAL, including
all copies of such materials which may have been made, but not including copies containing
notes or other attorney’s work product, which may have been placed thereon by counsel for the
other parties. All copies containing notes or other attorney’s work product shall be destroyed.
Receipt of material returned by a party shall be acknowledged in writing.
14.

A party may object to the designation of particular CONFIDENTIAL information

by giving written notice to the party designating the disputed information within thirty (30) days
of the designation or of the entry of this Protective Order, whichever is later. The written notice
shall identify the information to which the objection is made. If the parties cannot resolve the

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objection within ten (10) business days after the time the notice is received, it shall be the
obligation of the party designating the information 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. If the designating party fails to file 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
motion filed under this provision, the party designating the information as CONFIDENTIAL
shall bear the burden of establishing that good cause exists for the disputed information to be
treated as CONFIDENTIAL.
15.

The inadvertent or unintended disclosure of CONFIDENTIAL information by a

party, regardless of whether the information was so designated at the time of disclosure shall not
be deemed a waiver, in whole or in part, of a party’s claim of confidentiality, either as to the
specific information disclosed or as to any other information relating thereto or on the same or
related subject matter.

In the event of an inadvertent or unintended disclosure of

CONFIDENTIAL information by a party, the party seeking to designate such information as
CONFIDENTIAL may give written notice to the party or parties to whom such
CONFIDENTIAL information was inadvertently disclosed to advise of its desire to so designate.
If the party to whom the CONFIDENTIAL information was inadvertently disclosed agrees to
designate the information CONFIDENTIAL, it shall be subject to this Protective Order as if it
were originally designated as such upon production and counsel will use best efforts to affix the
designation CONFIDENTIAL on all copies of the material and retrieve any copies of materials

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disclosed to persons not entitled to see such materials under the terms of this Order. If the party
to whom the CONFIDENTIAL information was inadvertently disclosed objects to the
designation, the party seeking to designate such information as CONFIDENTIAL shall file an
appropriate motion requested that the court determine whether the disputed information should
be subject to the terms of this Protective Order.
16.

If the party wishes to disclose any material designated as CONFIDENTIAL to

any persons not enumerated in Paragraph 9, said party may seek written permission from the
producing party or, upon motion and contradictory hearing, judicial relief from the provisions of
this Order. Nothing contained herein shall be deemed to alter the rules ordinarily governing a
judicial determination regarding whether a Protective Order is warranted.
17.

This Order shall continue in force until dissolved, and as may be modified by the

Court as provided herein.
Dated this 16th day of July, 2013.

_________________________________________
UNITED STATES MAGISTRATE JUDGE

Stipulated by:
s/Mark Nelson
Mark Nelson, No. 27095
Eric B. Ballou, No. 40163
The Nelson Law Firm, LLC
1740 High Street
Denver, CO 80218
[phone]
[phone] facsimile
[e-mail]

s/William J. Kelly III
William J. Kelly III, No. 38749
Chanda M. Feldkamp, No. 44260
Kelly, Stacy & Rita LLC
1401 Seventeenth Street, Suite 925
Denver, Colorado 80202
[phone]
[phone] facsimile
[e-mail]
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[e-mail]
Attorneys for Plaintiff Country Mutual
Insurance Company

Attorneys for Defendants David and Brenda
Stiles, Rocky Mountain Construction
Company, LLC, Anthony J. Flores, and
Fortino Flores
s/John E. Taylor
John E. Taylor, No. 13110
Dickinson, Prud’Homme, Adams
& Ingram, LLP
730 17th Street, Suite 730
Denver, CO 80202
[phone]
[phone] facsimile
[e-mail]
Attorneys for Third Party Defendants Joshua
Hartman and Brandon Avery

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Exhibit A to Stipulated Protective Order
STATE OF
COUNTY OF

)
) ss.
)

I, ____________________________________________, being first duly sworn, state
that:
1.
I have received a copy of the Stipulated Protective Order in case of Country
Mutual Insurance Company v. Rocky Mountain Construction Company, LLC, et.al., United
States District Court for the District of Colorado case number 1:12-CV-00453-REB-KMT.
2.
I understand that I can be held in contempt of court for violating the terms of the
Stipulated Protective Order and I submit to the jurisdiction of the United States District Court for
the District of Colorado for purposes of enforcement of the Stipulated Protective Order.
3.
I have carefully read and understand the provisions of the Stipulated Protective
Order, and I will comply with all of its provisions.

____________________________________

Subscribed and sworn to before me this _______ day of ________________, 20___.

________________________________________________
Notary Public, _________________________ County, State of
[seal]

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