Stout, v. Gyrodata, Inc.

Filing 29

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 1/23/2013. (kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00972-WJM-KMT
TERRY A. STOUT, an individual,
Plaintiff,
v.
GYRODATA, INC., a Texas corporation,
Defendant.
STIPULATED PROTECTIVE ORDER

Plaintiff Terry A. Stout, and Defendant Gyrodata, Inc., (sometimes referred to herein
individually as the “Party” or collectively as the “Parties”), through their respective counsel,
stipulate and 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
(hereinafter defined), and, as grounds therefore, state as follows:
1. The Parties to this action are in possession of relevant information which they
reasonably believe constitutes Confidential Information (as defined in Paragraph 2 below). The
Parties anticipate seeking disclosure of certain Confidential Information during discovery,
and that there will be questioning concerning Confidential Information in the course of
depositions. The Parties assert that 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 therefore request that the Court enter this Stipulated Protective Order for the
purpose of preventing the disclosure and use of Confidential Information except as set forth
herein.

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2. “Confidential Information” means any document, file, portions of files,
transcribed testimony, or response to a discovery request, including any extract, abstract,
chart, summary, note, email, electronic document or copy made there from - not made available
to the public - and designated by one of the Parties in the manner provided in Paragraph 3 below as
containing sensitive business, proprietary, personal and/or medical information, including but
not limited to financial information and business strategy information.
3. Where Confidential Information is produced, provided or otherwise
disclosed by a Party in response to any discovery request, it will be designated in the following
manner:
a.

By imprinting the word “Confidential” before the prefix of all bates

numbering on each page of any document produced;
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 the

opposing Parties’ counsel designating such portions as “Confidential” no later than ten (10)
business days after receipt of the transcribed testimony.
4. Any information designated by a Party as "Confidential" must first be
reviewed by a lawyer who will certify that the designation as confidential is based on a good faith
belief that the information is confidential or otherwise entitled to protection.
5.

All Confidential Information provided by a Party in response to a discovery request

or transcribed testimony shall be subject to the following restrictions:

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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 been signed.
6.

Individuals authorized to review Confidential Information pursuant to this

Protective Order shall hold Confidential Information in confidence and shall not divulge the
Confidential Information, either verbally or in writing, to any other person, entity or government
agency unless authorized to do so by court order.
7.

The Party’s counsel who discloses Confidential Information shall be

responsible for assuring 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 of Confidential Information.
8.

During the pendency of this action, opposing counsel may, upon court order or

agreement of the Parties, inspect the original affidavits maintained by counsel pursuant to
paragraph 7 above upon a showing of substantial need in order to establish the source of an
unauthorized disclosure of Confidential Information and that opposing counsel are unable
otherwise to 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 and conditions deemed appropriate by the Court.
9.

No copies of Confidential Information shall be made except by or on behalf

of counsel in this litigation and such copies shall be made and used solely for

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purposes of this litigation, except where Confidential Information is sought by third parties,
including governmental agencies, pursuant to valid legal process.
10.

During the pendency of this litigation, counsel shall retain custody of Confidential

Information, and copies made there from, pursuant to Paragraphs 5 and 6 above.
11.

If opposing counsel objects to the designation of certain information as

Confidential Information, he or she shall promptly inform the other parties’ counsel, in writing of
the specific grounds of objection to the designation. All counsel shall then, in good faith and on an
informal basis, attempt to resolve such dispute. If after such good faith attempt counsel are unable
to resolve their dispute, opposing counsel may move for a disclosure order consistent with this
order. Any motion for disclosure shall be filed within 14 days of receipt by counsel of a notice of
opposing counsel’s objection, and the information shall continue to have Confidential Information
status from the time it is produced until the ruling by the Court on the motion.
12.

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 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

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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)).
13.

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.
14.

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.
15.

Upon termination of this litigation, including any appeals, each Party’s counsel

shall destroy all Confidential Information provided subject to this Protective Order, and all
extracts, abstracts, charts, summaries, notes or copies made there from.
16.

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.

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DATED this 23rd day of January, 2013.
BY THE COURT:

United States District Court
Magistrate Kathleen M. Tafoya

STIPULATED AND AGREED BY:

s/ Leslie E. Miller
Leslie E. Miller, Esq. Todd
R. Seelman, Esq.
FORD & HARRISON LLP
1675 Broadway, Suite 2150
Denver, Colorado 80202-4679
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
[e-mail]
Attorneys for Defendant

s/ Bryan E. Kuhn
Bryan E. Kuhn, Esq.
Bryan E. Kuhn, Counselor at Law, P.C. 1660
Lincoln Street, Suite 2330
Denver, Colorado 80264
Attorneys for Plaintiff

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EXHIBIT A
AFFIDAVIT
STATE OF COLORADO
COUNTY OF

)
) ss.
)

1.
I have read the Protective Order in Terry A. Stout v. Gyrodata, Inc., Civil
Action No. 1:12-cv-00972-WJM-KMT, a copy of which is attached to this Affidavit.
2.
I have been informed by _________________________________________ , Esq.,
counsel for _______________________________________ , that the materials described in the list
attached to this Affidavit are Confidential Information as defined in the Protective Order.
3.
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.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.
(Signature)
(Print or Type Name)
Address:
Telephone No. ( ________ ) ______________

SUBSCRIBED AND SWORN to before me this _________day of
_________________ , 2013, by _____________________________________________
.
WITNESS my hand and official seal.
Notary Public
[SEAL]
My commission expires: _____________________

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