Solarin v. Martinez
STIPULATION AND PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 7/25/12. ORDERED that parties MUST fully comply with all provisions of D.C.ColoL.CivR. 7.2, specifically those provisions dealing with filing documents under seal. (cbssec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00659-CMA-CBS
FREDERICK O. SOLARIN,
DAVID MARTINEZ, in his individual capacity, and
JOHN DOE, in his individual capacity,
STIPULATION AND PROTECTIVE ORDER
The parties, by and through their respective counsel, stipulate and respectfully
move the Court for a Protective Order pursuant to Rule 26(c) of the Federal Rules of
Civil Procedure concerning the treatment of Confidential Information (as hereinafter
defined) as follows:
The Parties anticipate seeking Confidential Information during discovery
and that there will be questioning concerning Confidential Information in the course of
depositions and other proceedings in this action. The Parties assert the disclosure of
such information outside the scope of this litigation could result in significant injury to
one or more of the Parties’ business or privacy interests. The Parties have entered into
this Stipulation and respectfully request that the Court issue this Protective Order for
the purpose of preventing the disclosure and use of Confidential Information except as
set forth herein.
“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 that contains information that is
confidential and implicates common law and/or statutory privilege interests, statutory
privacy interests, and/or designated by one of the Parties in the manner provided in
paragraph 4 below as containing Confidential Information, including, but not limited to:
a. the Parties’ and/or their representatives tax and/or financial records; and
b. any documents containing confidential information relating to third parties.
Where Confidential Information is produced, provided or otherwise
disclosed by a Party in response to any discovery request, it will be designated in the
a. By imprinting the word “Confidential” on the first page or cover of any
b. By imprinting the word “Confidential” 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” no later than ten (10)
calendar days after receipt of the transcribed testimony.
Any information designated by a Party as Confidential Information subject
to this Protective Order will first be reviewed by an attorney for the Party who will
confirm that the designation as Confidential is based upon a good faith belief that the
information is confidential or otherwise entitled to protection.
All Confidential 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 unless an affidavit in the form of Exhibit A has
Confidential Information, without the consent of the party producing it or
further Order of the Court, shall not be disclosed except that such information may be
attorneys actively working on this case, and persons regularly employed
by or associated with the attorneys actively working on the case whose
assistance is required by said attorneys in the preparation for trial, at trial, or at
other proceedings in this case;
expert witnesses and consultants retained in connection with this
proceeding, to the extent such disclosure is necessary for preparation, trial or
other proceedings in this case;
the parties and designated representatives for the entity Defendants;
deponents, witnesses, or potential witnesses;
the Court and its employees (“Court Personnel”);
stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action;
members of a jury or other finder(s) of fact (“Finders of Fact”);
other persons by written agreement of the parties.
Prior to disclosing any Confidential Information, counsel shall provide such
person with a copy of this Protective Order and obtain from such person a written
affidavit stating that he or she has read this Protective Order and agrees to be bound
by its provisions. The affidavit form is attached hereto as Attachment A. All such
affidavits shall be retained by counsel and shall be subject to in camera review by the
Court if good cause for review is demonstrated by opposing counsel. If a person
refuses to execute the affidavit form attached hereto then counsel for the parties may
confer with each other in order to attempt to informally resolve any such refusal.
Persons described in Paragraphs 6(a), 6(e), 6(f) and (6g) of this Protective Order shall
not be required to execute an affidavit.
The Party or Party’s counsel who discloses Confidential Information shall
be responsible for ensuring compliance with the terms of this Protective Order with
respect to persons to whom such Confidential Information is disclosed and shall obtain
and retain the original affidavits signed by qualified recipients on Confidential
Information, and shall maintain a list of all persons to whom any Confidential
Information is disclosed.
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 7 above upon showing of substantial need in order to establish the source of
an unauthorized disclosure of Confidential Information and that opposing counsel are
unable to otherwise 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 conditions deemed appropriate by the Court.
No copies of Confidential Information shall be made except by or on
behalf of counsel in this litigation for work product purposes, including for review by
experts in this case or for the attachment of copies of confidential documents to
motions and submissions to the court by a party in accordance with D.C.COLO.LCivR
7.2. Any such copies shall be made and used solely for purposes of this litigation.
Except as elsewhere provided in this Stipulation and Protective Order,
during the pendency of this litigation, counsel shall retain custody of Confidential
Information, and copies made therefrom pursuant to paragraph 10 above.
A party may object to the designation of particular Confidential Information
by giving written notice to the party designating the disputed information. The written
notice shall identify the information to which the objection is made. If the parties cannot
resolve the objection within ten (10) business days after the time the notice is received,
or longer if the parties mutually agree to a longer time to discuss any pending dispute, 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 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
Use of Confidential Information in Court Proceedings: In the event
Confidential 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. Confidential Information and pleadings or briefs quoting or
discussing Confidential Information will not be accepted for filing “under seal” or
otherwise kept out of the public record in this action, however, except by court order
issued upon motion of the party seeking to file the documents under seal. Any motion
requesting leave to file documents under seal shall comply with the requirements of
D.C.COLO.LCivR 7.2 and demonstrate that the Confidential Information at issue is
entitled to protection under the standards articulated in Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598-602 (1978) (applied in United States v.
Hickey, 767 F.2d 705, 708 (10th Cir. 1985) and Crystal Grower’s Corp. v. Dobbins, 616
F.2d 458, 461 (10th Cir. 1980)).
The termination of this action shall not relieve counsel or other persons
obligated hereunder from their responsibility to maintain the confidentiality of
Confidential Information pursuant to this Protective Order, and the Court shall retain
continuing jurisdiction to enforce the terms of this Protective Order, even after this
action is terminated.
By agreeing to the entry of this Protective Order, the Parties adopt no
position as to the authenticity or admissibility of documents produced subject to it.
Neither the taking of any action in accordance with the provisions of this Protective
Order, nor the failure to object thereto, shall be construed as a waiver of any claim or
defense in this action.
The parties agree that in the event information or documentation is
inadvertently disclosed to an opposing party, any information or documentation so
disclosed shall be immediately returned to the producing party without any copies being
made or notes being taken regarding said information/documentation by those who
have received the inadvertent disclosure. Further, the parties agree that no recipient of
information/documentation or any fruits derived therefrom for the purpose of this
litigation and that the inadvertent disclosure of information or documentation shall not
constitute a waiver of any privilege that may otherwise apply.
The Parties agree that the terms and conditions in this Protective Order
survive the termination of this litigation. Upon conclusion of this litigation, including any
appeals, each Party’s counsel shall immediately return to the producing party all
Confidential Information provided subject to this Protective Order or, at the option of the
receiving party, certify that all copies have been destroyed.
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 Confidential Information shall be treated at trial. This Protective Order may be
modified by the Court at any time for good cause shown following notice to all parties
and an opportunity for them to be heard.
Nothing in this Stipulation and Protective Order shall relieve any party of
its obligation under Fed.R.Civ.P. 26(b)(5) to prepare and provide a privilege log.
DATED this 25th day of July, 2012.
BY THE COURT:
s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge
STIPULATED AND AGREED TO:
By: s/ John Scanlan
Circle Law - The Scanlan Law Offices
1726 Champa Street, 3E
Denver, Colorado 80202
Telephone: (303) 881-4109
Facsimile: (303) 308-0194
Attorney for Plaintiff
By: s/ Joseph Rivera
Office of the Denver City Attorney
201 West Colfax Ave., Dept. 1108
Denver, Colorado 80202
Telephone: (720) 913-3100
Facsimile: (720) 913-3190
Attorney for Defendant
EXHIBIT A: AFFIDAVIT
STATE OF COLORADO
COUNTY OF _________ )
____________________________, swears of affirms and states under penalty
I have been informed by ___________________________, Esq., counsel
for _______________________________, that the categories of documents described
in the list attached to this Affidavit are Confidential Information as defined in the
attached Protective Order.
I have read the attached Stipulated Protective Order in Scott v. City and
County of Denver, Civil Action No. 12-cv-00053-MSK-BNB, understand its contents, and
agree not to make any disclosures of information, documents, tangible things,
testimony, or other data marked or identified and produced as Confidential Material in
this litigation to any person who is not permitted to have access under the Protective
Order. I further agree to use information, documents, tangible things, testimony, or
other data identified and produced as Confidential Information solely for purposes of this
I will abide by the terms of the Protective Order.
I promise that I have not and will not divulge, or undertake to divulge to
any person or recording device any Confidential Information shown or told to me except
as authorized in the Protective Order. I will not use the Confidential Information for any
purpose other than this litigation.
For the purpose of enforcing the terms of the Protective Order, I hereby
submit myself to the jurisdiction of the court in the civil action referenced above. I agree
that any dispute concerning enforcement of this Agreement may be decided by the
Magistrate Judge or District Court Judge in the above referenced litigation.
_________________________________________________ (Print or Type Name)
Telephone No.: (_____) _____________________
___________________________, 2012 by __________________________________.
WITNESS my hand and official seal.
My commission expires: __________________
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