American Family Mutual Insurance Company et al v. Zurich American Insurance Company

Filing 79

PROTECTIVE ORDER. By Magistrate Judge Michael E. Hegarty on 4/16/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01223-REB-MEH
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, a Wisconsin corporation, as
Subrogee of Bison Ridge, LLC, and
BISON RIDGE, LLC, a Colorado limited liability company,
Plaintiffs,
v.
ZURICH AMERICAN INSURANCE COMPANY, an Illinois corporation, and
AMERICAN ZURICH INSURANCE COMPANY, an Illinois corporation,
Defendants.

PROTECTIVE ORDER

Michael E. Hegarty, United States Magistrate Judge.
This matter is before the Court on the motion of Plaintiffs American Family Mutual
Insurance Company and Bison Ridge, LLC (collectively, "Plaintiffs") for a protective order pursuant
to Fed.R.Civ.P. 26(c). The Court, being fully advised, orders as follows:
A.

That the Release of Claims agreements entered between the parties in the underlying state

court actions that are the subject of this declaratory judgment action, "Hartman" and "Lauro,"
contain information that is subject to disclosure and discovery in this action;
B.

That the Release of Claims agreements contain covenants of confidentiality that restrict the

disclosure of such information without the entry of a court order directing disclosure, under which
the parties are required to petition the Court to disclose the information under seal.
C.

That a Protective Order should be entered in this matter that will properly balance the

discovery rights of Defendants with the Plaintiffs' rights to protect its confidential and private
information without violation of the covenants of confidentiality, and it is therefore:

ORDERED, ADJUDGED AND DECREED:
1.

All production and disclosure of the Release of Claim agreements entered between

the parties in the underlying state court actions "Hartman" and "Lauro" and any information set forth
therein including the amounts, terms and circumstances of the settlements, during this litigation shall
be governed by this Order. All such materials and information provided pursuant to this Protective
Order shall be used solely and exclusively for the preparation for and conduct of this litigation, and
shall not, unless directed by an appropriate Court, be made available, disclosed, or disseminated in
any manner for any other purpose. Individuals authorized to review the information and materials
pursuant to this Protective Order shall hold the information and materials in confidence and shall
not divulge the information and materials, either verbally or in writing, to any person or entity not
otherwise authorized to receive the information under this Order unless authorized to do so by Court
order.
2.

"Confidential Information" means any information that is designated as confidential

by the supplying party, including but not limited to printed documents, computer disks or other
electronic media, information contained in documents or electronic media, testimony and exhibits
introduced in hearings or at trial, information revealed during depositions, and information revealed
in interrogatory answers that pertains to the Release of Claim agreements entered between the
parties in the underlying state court actions "Hartman" and "Lauro" and any information set forth
therein including the amounts, terms and circumstances of the settlements.
3.

All Confidential Information shall be clearly and prominently marked on every

single-page document, on at least the initial page or cover of a multi-page document (including
deposition transcripts), and in a prominent location on the exterior of any tangible object, by:
a.

Placing the designation "CONFIDENTIAL" on the Confidential Information; or

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b.

Overlaying language substantially similar to "PRODUCED SUBJECT TO A PROTECTIVE

ORDER" on the text of the Confidential Information; or
c.

Otherwise indicating on the face of the Confidential Information that it is subject to the terms

of a Protective Order.
4.

Any party objecting to the designation of any information as Confidential Information

shall clearly state the basis for the objection in a letter to counsel for the party making the
designation, and such letter must be received by counsel for the party making the designation no
later than one hundred twenty (30) days after the objecting party received the Confidential
Information to which it objects. If the parties are unable to resolve the objection, any party may
move the Court to do so. Until an objection to the designation of information has been resolved by
agreement of counsel or by order of the Court, the information shall be assumed to be properly
designated, and shall be subject to the terms of this Protective Order. The party making the
designation in question shall bear the burden of justifying that designation in any motion before the
Court to modify or strike the designation.
5.

The terms of this Protective Order may be modified only by further order of the

6.

Subject to the provisions of Paragraphs 7 and 8 below, Confidential Information may

Court.

be disclosed only to the following persons:
a.

The attorneys for each party actively engaged in this litigation and law clerks, paralegals,

office clerks, and secretaries working under their supervision;
b.

Directors, officers, and employees or former employees of American Family who are

assisting, or have involvement, in the defense of the lawsuit;
c.

Court personnel and/or court reporters who are actively engaged in connection with the

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preparation for and trial of this litigation;
d.

Expert witnesses retained for consultation or for testimony;

e.

Any witness with prior knowledge of the information to be disclosed.
7.

Prior to the disclosure of any Confidential Information to any person not covered by

Paragraphs 6(a) - (c) above, counsel for the party that has received such Confidential Information
shall first provide such person with a copy of this Order, and shall require such person to execute
the agreement attached as Exhibit 1 to this Order. Counsel for the party that has made Confidential
Information available to persons not covered by Paragraphs 6(a) - (c) above is required to send a
copy of the executed Exhibit 1 to counsel for the party that produced the Confidential Information,
within thirteen days of such third person's receipt of Confidential Information.
8.

The provisions of this Order with respect to Confidential Information shall not apply

to information which (a) was, is, or becomes public knowledge, through no violation of this Order;
(b) is acquired in good faith from a third party not subject to this Order, such third party being
lawfully in possession of such information and able to release it; (c) was possessed prior to receipt
of the material asserted to be confidential from a source able to provide it without a breach of
confidence; or (d) was or is discovered independently by the receiving party by means that do not
constitute a violation of this Order.
9.

This Order shall bind all parties to this litigation until all documents, electronic

media, or other tangible materials containing Confidential Information have been returned to the
producing party, or all persons who have received Confidential Information have certified the
destruction of such information, as detailed herein. Within thirty (30) days after the final
termination of this litigation, be it by trial, settlement, or otherwise, Defendants, and all other
persons who have received Confidential Information during the course of this litigation in

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accordance with Paragraphs 6 and 7 above, shall return to Plaintiffs all copies of such Confidential
Information provided to them during the course of this litigation and shall certify in writing that all
such documents have been returned; or else shall certify in writing that any documents or copies
thereof not so returned have been destroyed.
10.

If a document containing Confidential Information is so designated and marked as

a deposition exhibit, such exhibit shall, if filed, be filed under seal. If testimony concerning
Confidential Information is elicited at a deposition, hearing, or trial, counsel for any party may
request that a designated portion of the transcript be treated as Confidential Information. Such a
request shall be made by counsel in a reasonable manner or by making a suitable designation in the
record at the deposition, hearing, or trial. If such a request is made, such portion of the transcript
shall be so treated and filed under seal, if it is filed in the record.
11.

All documents containing Confidential Information filed with the Court in connection

with a motion or otherwise shall be filed under seal.
12.

The inadvertent or unintentional disclosure of Confidential Information, 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
therein or on the same or related subject matter, provided that the party asserting the claim of
confidentiality informs the opposing party of its claim within a reasonable time after learning of the
disclosure.
13.

Nothing contained in this Order, nor any action taken in compliance with it, shall (a)

operate as an admission by any party that any document or information is, or is not, either
confidential or admissible in evidence in this action, or (b) prejudice in any way the right of any
party to seek, by way of consent of all parties or by application to the Court, (i) to have information

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not covered by this Order treated as Confidential Information within the meaning of this Order, (ii)
additional protection for specific documents or information; or (iii) relief from the provisions of this
Order with respect to specific items or categories of documents or information.
14.

Nothing contained in this Order shall be construed as preventing counsel from

advising their respective clients as to counsel's opinions and conclusions so long as information
designated as Confidential Information is not disclosed to persons not properly authorized to receive
such information under this Order.
15.

This Stipulation and Order shall be construed in accordance with and governed by

the laws of the State of Colorado.
Dated and entered Denver, Colorado, this 16th of April, 2013.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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