Kansas Wheat Alliance, Inc. et al v. Thunderbird Seed Conditioning LLC et al

Filing 50

STIPULATED PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 5/22/2013. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01171-MEH
KANSAS WHEAT ALLIANCE, INC., and
KANSAS STATE UNIVERSITY RESEARCH FOUNDATION,
Plaintiffs,
v.
THUNDERBIRD SEED CONDITIONING, LLC,
THUNDERBIRD COMMODITIES, LLC, and
JOHN DOES 1-50,
Defendants.

STIPULATED PROTECTIVE ORDER

Michael E. Hegarty, United States Magistrate Judge.
Plaintiffs Kansas Wheat Alliance, Inc. and Kansas State University Research Foundation
(hereinafter "Plaintiffs"), and Defendants Thunderbird Seed Conditioning, LLC and Thunderbird
Commodities LLC (hereinafter "Defendants") (collectively, the "Parties"), through their respective
counsel, hereby submit the following Stipulated Protective Order pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure and request that it be entered as an Order of the Court:
WHEREAS, the Parties possess information and material which is not in the public domain and is
confidential, proprietary, and/or financial information not subject to disclosure;
WHEREAS, information and documents which may be sought in discovery and which may be
exchanged between the Parties may include or incorporate such confidential, proprietary, and/or
financial information;
WHEREAS, the purpose of this Stipulated Protective Order is to facilitate the exchange of such
documentation with the consent of the parties while protecting the confidentiality of such

information;
WHEREAS, Rule 26(c) of the Federal Rules of Civil Procedure provides for the issuance of
protective orders limiting the disclosure of certain information in appropriate circumstances;
NOW, THEREFORE, it is hereby ORDERED that:
1.

Any document which contains confidential, proprietary, and/or financial information may

be designated "Confidential" by stamping the term "Confidential" clearly and conspicuously on the
face of each document containing such information. For a multi-page document, each page
containing confidential information shall be stamped separately. For the purposes of this Protective
Order, "document" shall mean every writing, graphic material, and record of every kind irrespective
of the medium on which such material is contained, including, but not limited to, written or
electronic correspondence, memoranda, audio tapes, video tapes, electronic or computerized data,
stenographic or hand written notes, publications, voice recordings, minutes or statistical
compilations, or any other recorded or graphic material in whatever form, including drafts and
reproductions.
2.

All documents and information designated "Confidential" shall be used solely for the

purposes of preparing for and conducting pre-trial, trial, and post-trial proceedings in this action, and
not for any other purpose, and such documents shall not be disclosed to any person or entity except
as provided herein.
3.

Documents marked or treated as "Confidential" or copies or extracts therefrom and the

information therein, may be given, shown, made available to, or communicated to only the
following:
(a)

Parties, including an officer, director, manager, or in-house counsel of a Party;

(b)

counsel of record for the Parties, together with other attorneys at the firm(s) of counsel of

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record, or an employee of such counsel to whom it is necessary that the material be shown for
purposes of this litigation;
(c)

other employees of a Party for the purpose of working directly on the litigation at the request

or at the direction of counsel;
(d)

third party consultants and independent experts to whom it is necessary that the material be

shown for purpose of assisting counsel in this litigation;
(e)

any witness or deponent in any deposition, hearing, or at trial in this litigation;

(f)

any court reporter or videographer employed or retained by a party for purposes of

transcribing and/or recording a deposition or inspection of premises; and
(g)

the Court and its personnel.

Information designated as "Confidential" may not be given, shown, made available to, or
communicated to any person other than those identified above without prior leave of Court or prior
written consent of the Party producing such confidential information.
4.

Any Party or nonparty wishing to come within the provisions of this Protective Order shall

designate the documents, materials, or portions thereof, which are considered confidential at the time
such documents are produced by marking them "Confidential" in accordance with Paragraph 1
hereof.
5.

For deposition testimony, the witness or counsel shall invoke the provisions of this Protective

Order by stating on the record during the deposition that testimony given at the deposition is
designated "Confidential," or by designating the deposition transcript or portions thereof as
"Confidential."

No person shall be present during portions of the depositions designated

"Confidential" unless such person is an authorized recipient of documents containing such
information under the terms of this Protective Order.

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6.

If a Party desires to give, show, make available, or communicate the contents of any

document marked "Confidential" to any person who is not specially authorized to have access to
such documents pursuant to Paragraph 3, the requesting Party shall disclose to the other Parties the
identity of the person to whom disclosure of the document is sought. The Parties shall then have
ten (10) days to negotiate the terms of disclosure to said person, and, if no agreement can be reached,
the requesting Party may apply to the Court on notice within fourteen (14) days thereafter for court
authorization to make such disclosure. If the Court permits such disclosure, said person may have
access to such "Confidential" information as is ordered by the Court, but only after first having read
and agreeing, in writing, to be bound by the terms of this Protective Order. During the pendency
of the motion, or if the motion is denied, the Party seeking disclosure will remain bound by the
Protective Order and agrees not to share "Confidential" information with said person to the extent
it is prohibited by this Protective Order.
7.

Documents, materials, information, interrogatory answers, and depositions stamped

"Confidential" when filed with pleadings or offered as evidence at any hearing or trial, shall be
delivered sealed to the Clerk of the Court.
8.

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

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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."
9.

The recipients of any item of information or document marked or designated as

"Confidential" will not use such information other than as is necessary to prosecute and/or defend
the claims asserted in this litigation, and will not disclose or discuss such information, in any manner
or form, written or oral, to or with any person other than to persons entitled to access such
information under Paragraph 3 above, unless and until the restrictions herein are modified to allow
such disclosure either by agreement of the Parties or by Order of this Court. However, nothing in
this paragraph shall be construed as restricting or prohibiting a Party's ability to conduct reasonable
investigation and discovery into the claims and defenses of all parties to the suit, including without
limitation the right to make contact with third parties whose identities may be revealed in documents
designated "Confidential," and to discuss and explore with such third parties their knowledge and
information surrounding transactions reflected on "Confidential" documents.
10.

Nothing in this Protective Order limits or precludes a Party to the Protective Order from

applying to the Court for relief from this Protective Order, or for such further or additional
confidentiality orders as the Court may deem appropriate, upon notice to all Parties.
11.

Counsel for the Parties to this Protective Order shall take reasonable precautions to prevent

the unauthorized or inadvertent disclosure of designated "Confidential" documents, materials, and
information.
12.

The provisions of this Protective Order shall apply to any "Confidential" or documents,

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materials, and information so designated by any Party to this Protective Order before entry of this
Protective Order.
13.

Nothing in this Protective Order shall prevent a Party from using "Confidential" documents,

materials, and information at trial, during a hearing, or the like. Provided however, at least five
court days prior to offering "Confidential" information into evidence at trial or at any hearing in
open court, the submitting Party shall give notice to all other Parties, which notice shall identify with
particularity the information the submitting Party intends to offer into evidence. Any affected Party,
non-party, designating party, or owner of the "Confidential" information may then apply for an order
that such evidence be received in camera or under other less public circumstances to prevent
unnecessary disclosure. A Party may use "Confidential" information solely for the purposes of
impeachment without providing such notice, however.
14.

If any non-party shall be called upon by subpoena or otherwise, to provide or produce

documents or information considered "Confidential" by such non-party, such non-party may elect
to be bound by the terms of this Protective Order by notifying counsel for all parties in writing.
Upon service of such notice, such non-party may designate documents and information as
"Confidential" information in the manner set forth in this Protective Order, and such non-party's
"Confidential" information shall be treated in the same manner as the "Confidential" information
of a Party to this Protective Order, including being subject to challenge under Paragraph 8 above.
15.

Upon termination of this litigation, the originals and all copies, whether exact copies or

compilations, digests or non-exact copies in any form, of designated "Confidential" documents,
materials, and information shall, upon request, be returned to the Party who produced such
documents, materials, and information, or may be disposed of in some other manner that is mutually
agreeable among the Parties. Notwithstanding this provision, counsel of record for each Party may

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retain archive copies of pleadings, motion papers, and written discovery responses that include
Confidential information.
16.

This Protective Order will remain in full force and effect unless modified by an order of this

Court or by the written stipulation of the parties filed with the Court. The termination of
proceedings in this action shall not thereafter relieve the Parties from the obligation of maintaining
the confidentiality of all documents, materials, and information designated as "Confidential" which
are received pursuant to this Stipulated Amended Protective Order.
Dated and entered at Denver, Colorado, this 22nd day of May, 2013.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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APPROVED AS TO FORM:

s/ Mark Murphey Henry
Mark Murphey Henry
Adam L. Hopkins
Henry Law Firm
P.O. Box 8850
Fayetteville, AR 72703
Tel: [phone]
Fax: [phone]

s/Raul Chacon, Jr.
Dana L. Eismeier
Raul Chacon, Jr.
BURNS, FIGA & WILL, P.C.
6400 S. Fiddler’s Green Circle, Suite 1000
Greenwood Village, CO 80111
Tel: [phone]
Fax: [phone]

[e-mail]
[e-mail]

[e-mail]
[e-mail]

Counsel for Plaintiffs Kansas Wheat Alliance,
Inc. and Kansas State University Research
Foundation

Attorneys for Defendants
Thunderbird Seed Conditioning, LLC,
And Thunderbird Commodities LLC

Darin J. Lang
Hall & Evans LLC
1125 Seventeenth Street, Suite 600
Denver, CO 80202
Tel: [phone]
Fax: [phone]
[e-mail]

Counsel for Plaintiffs Kansas Wheat Alliance,
Inc. and Kansas State University Research
Foundation

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