Gomez et al v. Allstate Property and Casualty Company

Filing 31

STIPULATED PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 1/24/13. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00921-CMA-BNB
EMILIANO GOMEZ, and
TAMMI GOMEZ,
Plaintiffs,
v.
ALLSTATE PROPERTY AND CASUALTY COMPANY,
Defendant.

STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIAL
AND/OR PROPRIETARY INFORMATION

In order to safeguard any confidential or proprietary information involved in this case,
and to ensure that no matters revealed during the discovery process are disclosed to non-parties,
except pursuant to the terms of this Protective Order,
IT IS HEREBY ORDERED that a Protective Order be entered on the following terms:
1.

The discovery served in this litigation may require the disclosure of materials that

contain confidential and/or proprietary information. All materials which disclose the contents or
substance of such information, including documents produced or exchanged in the course of this
litigation, pleadings, motions, interrogatory answers, other discovery responses and testimony
given in depositions, shall be deemed “Protected Material” pursuant to the terms of this Order.
2.

Protected Material shall be used solely for the purposes of this litigation and not

for any other litigation and not for any business or other purposes whatsoever. Protected

Material shall not be revealed, disclosed or made available for inspection and copying to any
person, except under the terms of this Protective Order or as required to be disclosed by law or
Court order. Protected Material may be designated “CONFIDENTIAL.”
3.

As used in this Protective Order, the “producing party” means any party who

either produces Protected Material or asserts a confidentiality interest in information produced
by another in this action.
4.

The producing party may designate Protected Material as “CONFIDENTIAL” by

marking the material with the words “CONFIDENTIAL.”
5.

No person other than:
(a)

the parties to this case;

(b)

counsel of record who have entered an appearance in this case (which
shall be deemed to include other attorneys from the law firm of counsel of
record, counsel’s legal assistants, secretaries and other employees);

(c)

attorneys assisting counsel of record with this litigation who have not
entered an appearance in this case;

(d)

any person (and his or her counsel) from whom testimony under oath is
taken at a deposition, trial or other evidentiary hearing in connection with
this case;

(e)

court personnel and court reporters; and

(f)

consultants or experts retained or consulted by any party in connection
with this case and persons working directly under their supervision shall
be permitted to have access to any Protected Material designated as
“CONFIDENTIAL” under the terms of this Protective Order without the

prior written consent of the producing party or their counsel or by order of
the Court; provided that prior to showing any confidential document or
disclosing any material designated as “CONFIDENTIAL” to any person
identified in categories (c), (d), and (f) above, counsel shall first require
such person to execute a Confidentiality Agreement in the form attached
as Exhibit “A.”
6.

If counsel for either party believes it is necessary in preparation of the case to

reveal Protected Material to persons who are not otherwise entitled to see such information in
accord with Paragraph 6 of this Protective Order, then counsel who wishes to disclose such
Protected Material shall first seek the consent of the opposing counsel. If such consent is
granted, then counsel wishing to use such information shall ensure that those individuals to
whom Protected Material is disclosed are first made aware of the provisions of this Protective
Order and agree to be bound by its terms by executing a Confidentiality Agreement in the form
attached hereto as Exhibit “A”. If such consent is not given, the party seeking to disclose the
information may seek resolution from this Court, with notice to all affected parties, and shall
bear the burden of establishing the need to disclose material beyond the terms of this Protective
Order.
7.

Signed Confidentiality Agreements shall be retained by counsel for the party who

wishes to make a disclosure of Confidential Information until further order of the Court.
8.

During a deposition in this litigation, any party’s counsel may designate on the

record that a specified part of the testimony and/or any document is “CONFIDENTIAL”
Protected Material and subject to the provisions of this Protective Order. If testimony given
during a deposition is designated as Protected Material, counsel that made such designation may

request that all persons, other than the court reporter, counsel, the witness, and any other person
who is permitted to review such information pursuant to the terms of the Protective Order, leave
the deposition room during the confidential portion of the deposition. Within thirty days after
receipt of the transcript, counsel for any party may specifically designate those portions of the
deposition and exhibits as Protected Material by notifying all parties, in writing, of the specific
pages and lines of the transcript or exhibits which contain “CONFIDENTIAL” and Protected
Material. Parties shall attach a copy of such written statement to the face of the transcript and
each copy thereof in their possession, custody or control. Within thirty days after receipt of the
transcript, counsel for any party may specifically designate those portions of the deposition and
exhibits as Protected Material by notifying all parties, in writing, of the specific pages and lines
of the transcript or exhibits which contain “CONFIDENTIAL” and Protected Material. Parties
shall attach a copy of such written statement to the face of the transcript and each copy thereof in
their possession, custody or control.
9.

Nothing shall prevent disclosure beyond the terms of this Order if the party

designating the information as Protected Material consents in writing to such disclosure, or if the
Court, after notice to all affected parties, orders such disclosure.
10.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2. The Clerk of this Court is directed to maintain under seal all documents
and all transcripts of deposition testimony filed with this Court in this litigation by any party to
this action which are, in whole or in part, designated as Protected Material, including all
pleadings, deposition transcripts, trial transcripts, exhibits, discovery responses, or memoranda
purporting to reproduce or paraphrase such information. The Protected Material shall be filed in
sealed envelopes or other appropriately sealed containers which shall be endorsed with the title

of this action, an indication of the nature of the contents of such sealed envelopes or other
containers, the word “CONFIDENTIAL” and a statement in substantially the following form:
This envelope contains documents which were filed in this case by (name of party
or name of deponent) and is not to be opened or the contents thereof displayed or
revealed except by Order of this Court.
11.

In the event that a party wishes to use, refer to, or characterize any Protected

Material in any affidavits, briefs, memoranda of law, or other papers filed in Court in this
litigation, such Protected Material contained therein shall be filed and maintained under seal by
the Court. The producing party may move the Court to establish such further conditions and
safeguards as may be necessary to protect against disclosure of Protected Material in open court.
12.

Insofar as the provisions of this Protective Order restrict the use or

communication of any document or information produced hereunder, this Protective Order shall
continue to be binding after the conclusion of this litigation, except that a party may seek the
written permission of the producing party or further order of this Court with respect to
dissolution or modification of this Protective Order, and the Court shall retain jurisdiction of all
parties bound hereby for the purposes of this Protective Order.
13.

Parties designating information as “CONFIDENTIAL” under the terms of this

Protective Order shall do so in good faith, and the opposing party’s failure to challenge the
propriety of such designation immediately shall not preclude a subsequent challenge thereto. 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, 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”. In the event that any party to
this litigation seeks to challenge any confidentiality designation or otherwise seeks to challenge
any other action taken by another party in applying the terms of this Protective Order, then
counsel for the parties shall first try to dispose of such dispute in good faith on an informal basis.
If no agreement is reached, the producing party shall promptly seek resolution of the dispute
from this Court and shall bear the burden of establishing the confidentiality of the material
involved. The other party shall agree to treat the disclosed information as either
“CONFIDENTIAL” per the designation pending further order of the Court.
14.

This Protective Order shall not constitute a waiver by the parties of any objection

which might be raised as to the admissibility of any evidentiary materials. This Protective Order
shall be without prejudice to the rights of any party to oppose production of any information for
lack of relevance or for any other ground.
15.

This Protective Order shall not be construed to prevent any party from using its

own Protected Material in any manner it chooses, or to prevent the introduction of any Protected

Material into evidence at any trial of this case (subject to any objections as provided by
Paragraph 14).
16.

In the event that a party is requested or required (by oral questions,

interrogatories, requests for information or documents in legal proceedings, subpoena, civil
investigative demand or other similar process) to disclose any of the Protected Material received
pursuant to this Order, such party promptly shall provide counsel of record for the producing
party with written notice of the receipt of any such request or requirement so that the producing
party may seek a protective order or other appropriate remedy and/or waive compliance with the
provisions of this Order. If the person seeking to maintain confidentiality does not move for a
protective order within the time allowed for the discovery sought by such process (or within such
time as a court may direct or as may be agreed upon by the producing party and the person
issuing such process) or give written notice of such motion to the person issuing such process
and the person to whom the process is directed, the person to whom the process is directed may
commence production in response thereto on the date designated for such production. Provided
however, that in the event a protective order is not obtained and the person to whom the process
is directed responds to the requested production, such person may disclose only that portion of
the Protected Material which such person is required by law to disclose. In the event that a party
seeking to maintain the confidentiality of Protected Material does move for a protective order
within the time allowed for the discovery sought by such process, the person to whom the
process is directed shall cooperate with the moving party’s efforts to obtain a protective order by
acknowledging that they either stipulated to the entry of this Order or executed an
Acknowledgment pursuant to the terms thereof, that the requested documents have been

designated as confidential by the producing party and that they came into that person’s
possession subject to this Protective Order.
17.

If Protected Material is inadvertently disclosed or produced without designation

as “CONFIDENTIAL” the producing party’s inadvertent production of such material shall not
be deemed a waiver of, or estoppel as to, any claim of confidentiality under this Order which the
producing party would otherwise be entitled, provided the producing party notifies the other
parties of such inadvertent disclosure within thirty (30) days after discovery of the inadvertent
production. The other party shall agree to treat the disclosed information as either
“CONFIDENTIAL” per the designation and shall also promptly take all reasonable measures to
ensure that no further unauthorized disclosure or use of such confidential information, or
information contained therein, is made.
18.

If discovery is sought from third parties in connection with this litigation, and this

discovery would require a third party to disclose and/or produce Protected Material, that third
party may gain the protections of this Protective Order through a written agreement by that third
party to produce documents or information pursuant to this Order and to be bound by it. Under
such agreement, the parties to this litigation will be bound by this Order with respect to all
Protected Material produced by that third party.
19.

On final determination of this litigation, including all appeals, each party or other

person subject to the terms hereof shall, at the request of the producing party, destroy all
materials and documents constituting Confidential Information or all copies, summaries and
abstracts thereof, and all other materials, memoranda or documents embodying data concerning
said materials and documents constituting Confidential Information and certify such destruction
by letter to the producing party or non-party within thirty (30) days of receiving the request of

the producing party. The Court will have continuing jurisdiction to enforce this Order through
this litigation and following its conclusion. The parties agree that any such enforcement
proceedings will, subject to the schedule and approval of the Court, be determined on an
expedited basis.
Dated January 24, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
AGREED AND STIPULATED this __________day of _____________, 2012.

_______________________________
Michael P. Cross, #38294
Ogborn, Summerlin & Ogborn, LLC

_________________________________
Richard A. Orona, #35299
HARRIS, KARSTAEDT, JAMISON & POWERS, P.C

ATTORNEYS FOR PLAINTIFFS

ATTORNEYS FOR DEFENDANT

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00921-CMA-BNB
EXHIBIT A
UNDERTAKING
STATE OF COLORADO
COUNTY OF

)
) ss
)

I,
1.

, being first duly sworn, state that:
My address is
.

2.

My present occupation or job description is
.

3.
I have received a copy of the Stipulated Protective Order signed by District Court
Judge
on
in the case of
Emiliano Gomez, et al. v. Allstate Property and Casualty Company.
4.
I have carefully read and understand the provisions of the Stipulated Protective Order,
will comply with all of its provisions, will hold in confidence and not disclose to anyone not
qualified under the Stipulated Protective Order any designated Protected Document or any
summaries, abstracts or indices of any Protected Document disclosed to me, and will return all
Protected Documents and summaries, abstracts or indices thereof, and copies thereof, which come
into my possession, and documents or things which I have prepared relating thereto, to counsel for
the party by whom I am retained.
________________________________________
Subscribed and sworn to before me this

day of ________, 2013, by
.

Witness my hand and official seal.
My commission expires:

.

_________________________________________
Notary Public
Dated this ________ day of ________, 2013.