LaRiviere et al v. Home Depot U.S.A., Inc.

Filing 13

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY signed by Magistrate Judge Craig B. Shaffer on 7/2/12. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01435-REB-CBS
DAVID LaRIVIERE and
LAURA LaRIVIERE,
as Guardians and Next Friends of O.L., a minor
Plaintiffs,
v.
HOME DEPOT U.S.A., INC.,
Defendant.

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY
Came on to be considered the Agreed Motion for Entry of Protective Order and, the
Court having considered the evidence, the pleadings, and the arguments of counsel, and being of
the opinion that the Agreed Motion is well-taken, will hereby approve same.
IT IS THEREFORE ORDERED that this Protective Order of Confidentiality is hereby
entered and shall apply to discovery materials produced by the parties in the above-captioned
case as hereinafter set forth.
DISCOVERY MATERIALS COVERED BY THIS
PROTECTIVE ORDER OF CONFIDENTIALITY
1.

Application of this Protective Order. As specifically provided for herein, this

Protective Order shall apply to and govern the treatment and disposition of all discovery
materials exchanged between the parties, and between the parties and third persons in this action.
The term “Discovery Materials” includes all documents produced by or to any party in this
action: responses to interrogatories, document requests, and requests for admission; deposition
testimony and transcripts of depositions; notes or information derived from any such materials;
AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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and any material produced, served, or made by, for, or on behalf of any party or third party in the
above-captioned matter which are designated as “Confidential” under the terms of this Agreed
Order. The term “Document” means all written, recorded, or graphic material, including but not
limited to papers, books, memoranda, typed or hand-written notes, notations, work papers,
contracts, agreements, ledgers, journals, financial statements, audits, statistical records, lists,
tabulations, computer print-outs, data processing input and output, and all other records kept by
electronic, photographic, mechanical, or other means.
2.

Use of Confidential Documents.

Documents and Discovery Materials

designated Confidential under the terms of this Agreed Order shall be used only for the purpose
of preparing for and conducting the adversary proceedings and trial in the above-captioned
matter and not for any other purpose, and shall not be provided for viewing, examination,
copying, or other inspection by whatever means to anyone not a “Qualified Person” under
Paragraph 7 of this Agreed Order, unless the parties specifically agree otherwise in writing, or
this Court specifically orders distribution to individuals not “Qualified Persons” under Paragraph
7 of this Agreed Order.
DESIGNATION OF MATERIALS AND INFORMATION AS CONFIDENTIAL
3.

Confidential Materials and Information. Discovery Materials shall be treated

as Confidential only if, with respect to documents, the party producing a document physically
stamps (or otherwise indicates) the word “Confidential” on the documents or if any party serves
a separate written statement upon all other parties that an individual document or group of
documents shall be designated as “Confidential.” The word “Confidential” shall be stamped (or
otherwise indicated, in such a manner as will not render illegible the document or any part
thereof), on each page as to which such Confidential status is claimed, unless the document

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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cannot be page-stamped because of its format. If it becomes necessary for any party to include
confidential information in an answer to an interrogatory, a document request or a request for
admission, the pages containing such answers shall be marked prominently as “Confidential.”
All information so designated as Confidential shall be treated as Confidential in accordance with
the terms of this Protective Order. Until and unless so designated, neither Documents nor
Pleadings shall be given “Confidential” protection as provided by this Agreed Order.
4.

Deposition Testimony. Testimony given during deposition (hereinafter referred

to as “Testimony”) may be designated as Confidential on the record when given, or thereafter by
written notice to all counsel of the page and lines of the transcript so designated more
specifically described in sections 4 (a) and (b) below. All testimony given during depositions or
portions thereof which discuss documents or materials previously designated as Confidential
shall be treated as Confidential from the moment a deposition begins until sixty days after the
deponent has received the transcript of the deposition. Such testimony shall automatically
become declassified, and shall no longer be considered as Confidential, sixty days after the
deponent has received the transcript unless one or both of the following has occurred:
a.

During the course of the deposition, counsel for any party has stated on the

record that the deposition testimony, or portions thereof, is to be considered as “Confidential.”
In such case the court reporter shall transcribe the page so designated in a separate volume
marked “Confidential”; or
b.

Counsel for any party has marked, by page and line, any portion of the

transcript of a deposition (whether a transcript of an oral deposition, a videotape oral deposition,
or deposition on written questions) as “Confidential” within sixty days of receipt of the transcript
and has informed all other counsel of record of such designation.

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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5.

Good Faith Designation.

No party shall designate any document or other

Discovery Material as “Confidential” unless the party has a good faith belief that disclosure of
the Discovery Material will reveal a trade secret, private or proprietary information, or other
commercial information which, if disclosed, could be harmful to the party or a third party, or
subject such party or third party to competitive misuse, or contains private information relating
to customer(s) or employee(s), or may otherwise be protected under federal or state law.
6.

Challenge of Confidential Designation. A party may object to any designation

by the producing party that Documents or Testimony are “Confidential” by giving written notice
to the party designating the disputed information.

The written notice shall identify the

Documents or Testimony 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 Documents or Testimony “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 with the prescribed
time, the disputed Documents or Testimony shall lose its designation as “Confidential” and shall
not thereafter be treated as “Confidential” in accordance with the terms of this Protective Order.
In connection with a motion filed under this provision, the party designating the Documents or
Testimony as “Confidential” shall bear the burden of establishing that good cause exists for the
disputed information to be treated as “Confidential.”

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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DISCLOSURE OF MATERIAL CLASSIFIED AS CONFIDENTIAL
7.

Qualified Persons to Whom Disclosure is Permitted. Any Discovery Materials

classified as Confidential under the terms of this Protective Order, or extracts or summaries
therefrom, may be disclosed only to the following individuals, hereinafter referred to as
“Qualified Persons:”
a.

The parties, and any directors, officers, agents, or employees of the parties

if reasonably necessary to assist in the litigation of their claims or defenses;
b.

Counsel for the parties and any employees of counsel, including

paralegals, secretaries, and other such employees of counsel and photocopy operators employed
by the receiving party or by an independent contractor hired to make photocopies, if reasonably
necessary to assist counsel in the litigation of their clients’ claims or defenses;
c.

Court reporters, their staff and typists, to the extent necessary to transcribe

official proceedings (including depositions) of this Court;
d.

The Court and the trier of fact, and

e.

Upon request, to a governmental agency with authority over the matter.

With the exception of persons described in subparagraphs (c) (d) and (e) of this
paragraph, each person who is given access to Confidential Discovery Materials is bound, by the
agreement of their counsel, to the terms and conditions of this Protective Order. It shall be the
responsibility of each party’s counsel to ensure that Qualified Person who are permitted access to
Confidential Documents be informed of the terms of this Protective Order.
8.

Disclosure to Non-Qualifying Persons.

A party seeking to disclose any

Discovery Materials which the opposing party has designated “Confidential,” to a person who is
not a “Qualified Person” under Paragraph 7 shall serve notice on all counsel of the Non-

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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Qualified person’s name and the document identification number(s) of the Document or the
transcript page and line number(s) of the Testimony which the party seeks to disclose to the NonQualifying Person, and the reason such persons(s) need to review the Confidential material
(hereinafter referred to as “Notice of Request to Disclose to Non-Qualified Person”). Such
person shall be sufficiently identified so as to allow opposing counsel to know why such person
does not qualify under other provisions of this Order. Counsel for the designating party shall
have ten (10) business days from the receipt of said Notice of Request to Disclose to NonQualified Person to object to such disclosure before disclosure is made. Upon timely objection,
such disclosure shall not be made. If the parties cannot resolve their dispute on an informal
basis, the party desiring disclosure shall bear the burden of moving for resolution of the dispute
by the Court. Such failure to seek a protective order by the producing party does not constitute a
waiver as to Non-Qualified Person not noticed under the Notice of Request to Disclose to NonQualified Person, and only operates to allow the noticed Non-Qualified Person to view those
Documents or Testimony which are the subject of the Notice of Request to Disclose to NonQualified Person. In the event that such Non-Qualified Person is granted access to Documents
and Testimony either by Notice of Request to Disclose to Non-Qualified Person or by agreement
of the parties, the person must, before viewing the Documents and Testimony, be provided a
copy of this Agreed Order and execute a non-disclosure statement in the form attached hereto as
Exhibit "A."
9.

Disclosure to Experts. Notwithstanding the foregoing, Confidential Discovery

Materials may be disclosed to any bona fide outside expert, if reasonably necessary to assist such
outside expert in assisting in the litigation of this action, provided that:

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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a.

The outside expert has been retained to assist counsel in the preparation of

this action for trial;
b.

The outside expert and all employees of such expert be given a copy of

this Agreed Order; and
c.

The outside expert and all employees of such outside expert who will view

such materials have signed a non-disclosure statement in the form attached hereto as Exhibit "A."
10.

Disclosure to Witnesses. Notwithstanding the foregoing, any party and their

counsel may disclose Confidential materials to a witness and to his or her respective counsel
during a witness interview or in questioning a witness during a deposition and may mark such
materials as exhibits to such deposition provided that:
a.

Material designated as Confidential shall not be attached to any copies of

deposition transcripts provided to a non-party witness;
b.

Any material designated as Confidential shall not be disclosed to a witness

unless the party disclosing such materials to the witness believes in good faith that such witness
has specific information regarding the material or events reflected in the material or that the
material would refresh the recollection of the witness regarding the material or events as to
which the witness has specific information;
c.

Prior to disclosure, the witness (if not employed at that time by Home

Depot U.S.A., Inc.), shall sign a non-disclosure statement in the form attached hereto as Exhibit
"A."
11.

Written Log.

Counsel for the parties shall maintain, with respect to any

materials designated by another party as Confidential, a written log which includes: (1) the
names of all persons or entities to whom or which such materials (including any copies, extracts

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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or summaries) have been disclosed or provided, and the date on which each such disclosure was
made; (2) the date such person or entity signed a non-disclosure statement in the form attached
hereto as Exhibit "A;" and (3) a copy of such non-disclosure statement. Said log shall be
available for inspection by the designating party’s counsel upon good cause shown. Information
pertaining to “Qualified Persons,” as defined in Paragraph 7, does not have to be maintained in
the written log.
12.

Disclosure in Documents Filed with the Court.

The filing of Documents

designated Confidential shall be controlled by D.C.Colo.L.Civ.R. 7.2.
13.

Use of Confidential Materials at Trial. If a party anticipates that Documents

designated by the other party as Confidential will be presented at trial as evidence, the party
anticipating such use shall provide counsel for the other party reasonable advance notice of such
anticipation, thus giving the other party the opportunity before the trial to seek a ruling from the
Court as to how the issue of the confidentiality of the Documents shall be handled at trial, and
the parties shall obey any ruling made by the Court regarding the use of Confidential materials at
trial.
PROTECTION OF CLASSIFIED MATERIAL
14.

Document Storage.

Counsel for the parties to whom material classified as

Confidential has been produced shall employ reasonable measures, consistent with this Agreed
Protective Order, to control access to all Confidential materials, the duplication of such
materials, and access to such copies.
15.

Return of Copies and Notes. Upon the conclusion of this lawsuit, by final

judgment, settlement or dismissal, all Discovery Materials designated as Confidential pursuant to
this Protective Order, along with any extracts, summaries, descriptions, or copies of the same

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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(with the exception of attorney work product) whether in hard copy or stored in an electronic
magnetic medium, shall be returned to the producing party within 30 days upon request by the
producing party, except that counsel for the parties may retain copies of court filings containing
Confidential Discovery Materials provided that such will be held for their internal use only,
subject to the continuing obligations imposed by this Agreed Order. Counsel shall additionally
provide a copy of the document log concurrent with the return of all confidential documents.
Each party to this action shall promptly supply each other party with an original Affidavit of
compliance with this paragraph, executed by the party. All persons who have been privy to
Confidential Documents shall be under a continuing duty not to reveal such information for so
long as such information is not otherwise available to the public.
16.

Future Document Production. This Protective Order shall not be deemed to

limit or waive any party’s right to resist discovery with respect to material which it may claim to
be privileged or otherwise protected or protectable under Federal Rules of Civil Procedure or
other state or federal law, nor preclude any party at any time from seeking and obtaining from
the court additional protection pursuant to Rule 26(c) or other state or federal law; including any
order that material shall not be produced at all.
17.

Continuing Effect. The provisions of this Protective Order shall continue with

respect to any Discovery Material classified as Confidential, and shall survive the entry of final
judgment herein, until and unless the producing party expressly authorizes, in writing, the
disclosure of such material, or the material has been declared declassified by the producing party
or the Court.
18.

Use of Confidential Information by Producing Party. Nothing contained in

this Order shall preclude any party from using its own Confidential documents or information in

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any manner it sees fit, or from revealing such Confidential documents or information to
whomever it chooses, without prior consent of any other party or of this Court. Nothing in this
Order shall bar or otherwise restrict any attorney herein from rendering advice to his or her client
with respect to this litigation, and in the course thereof, referring or relying upon his or her
examination of confidential material.
19.

Non-Party Discovery Materials. Any non-party from whom discovery is sought

may obtain the protection of this Agreed Order by obtaining the written agreement of the party
seeking discovery that the provisions of this Agreed Order shall apply to the documents and
information produced by such non-party.
20.

Non-Waiver. This Protective Order shall not be deemed a waiver of:
a.

Any party’s right to object to discovery on the basis that additional

protection is required with respect to specific discovery, or from seeking and obtaining, on
appropriate showing, additional protection with respect to the confidentiality of documents or
other discovery material or relief from this Protective Order with respect to particular material
designated hereunder or herein as confidential, or from providing by stipulation exceptions to
this Order;
b.

Any party’s right to seek an order compelling discovery with respect to

any discovery request; or
c.

Any party’s right at any proceeding herein to object to the relevance,

admissibility or discoverability of any evidence on any ground or to seek further orders setting
the conditions under which any such evidence may be received into evidence.

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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21.

Disputes. If any dispute arises concerning disclosure of Confidential Discovery

Materials which the parties cannot resolve informally, then the party desiring disclosure must
bear the burden of moving for resolution of the dispute by the Court.
22.

Breaches. If counsel for either party believes in good faith that Confidential

Discovery Materials have been disclosed in violation of this Protective Order or any nondisclosure statement, and if the identity of the violator cannot be determined, then the Court may
conduct an in-camera inspection for the purpose of determining the identity of any expert or
other person who may have committed such violation, and may determine, from testimony or
affidavits signed under penalty of perjury, whether a violation occurred. If the Court finds that a
violation occurred, then it may order disclosure of the identity of the person who committed the
violation, to permit the party whose Confidential Discovery Materials were disclosed to pursue
any legal and equitable relief to which it may be entitled as a result of the violation.
DATED at Denver, Colorado, this 2nd day of July, 2012.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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APPROVED AND AGREED:

/S/ Chad Hemmat
By: Chad Hemmat
Attorney for Plaintiffs

6/29/12
Date

/S/ Arthur K. Smith
By: Arthur K. Smith
Attorney for Defendant
.

6/29/12
Date

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01435-REB-CBS
DAVID LaRIVIERE and
LAURA LaRIVIERE,
as Guardians and Next Friends of O.L., a minor
Plaintiffs,
v.
HOME DEPOT U.S.A., INC.,
Defendant.

STATEMENT
1.

I have read, am familiar with, and agree to be bound by the terms of the Agreed

Protective Order of Confidentiality, entered by the above-named Court on and pertaining to the
above-captioned case.
2.

I agree that any court having jurisdiction over the above referenced matter may

enforce over my person the terms of the above-referenced protective order and I hereby waive
any objections to the Court’s ability over my person to enforce the terms of the above-referenced
order.
3.

I understand that if I violate the terms of the above-referenced order, I can be held

in contempt of court.
4.

I agree only to make such copies or notes concerning Discovery Materials marked

or designated “confidential” as are reasonably necessary to enable me to provide my assistance
in this litigation. If any such copies or notes still exist upon completion of this litigation, I will
return them as provided in the Protective Order.

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5.

I will not reveal the contents of Discovery Materials to any person or entity other

than those persons to whom disclosure is authorized under the terms of the above-referenced
order.
6.

I will not use Confidential Discovery Materials for business or competitive

purposes, or for any purpose other than the prosecution or defense of this action, unless
otherwise authorized by a subsequent order of the Court.
DATED this

day of

, 2012.

Signature

Printed Name

Address

Phone Number

AGREED PROTECTIVE ORDER OF CONFIDENTIALITY

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