Coalition for Secular Government v. Gessler

Filing 24

Stipulation and PROTECTIVE ORDER, by Judge John L. Kane on 9/5/12. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 12-cv-1708-JLK
COALITION FOR SECULAR GOVERNMENT
Plaintiff,
v.
SCOTT GESSLER, in his official capacity as Colorado Secretary of State
Defendant.

STIPULATION AND PROTECTIVE ORDER
Kane, J.
Each Party and each Counsel of Record 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 (as hereinafter defined), and, as grounds therefor, state as follows:
1.

In this action, at least one of the Parties has sought and/or is seeking Confidential

Information (as defined in paragraph 2 below). The Parties also anticipate seeking additional
Confidential Information during discovery and that there will be questioning concerning
Confidential Information in the course of depositions. The Parties assert 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 have entered into this Stipulation and
request the Court enter the within Protective Order for the purpose of preventing the disclosure
and use of Confidential Information except as set forth herein.

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, or copy made therefrom - not made available to the public - and designated by
one of the Parties in the manner provided in paragraph 3 below as containing:
A. CONFIDENTIAL TAX AND FINANCIAL INFORMATION
1. Plaintiff’s application to the Internal Revenue Service for nonprofit status
2. Any documents from the Internal Revenue Service regarding Plaintiff’s
non-profit status
3. Form 990s submitted by the Plaintiff since 2008
4. Plaintiff’s tax returns since 2008
5. Fundraising letters issued by Plaintiff since 2008
6. Financial records reflecting Plaintiff’s income and expenditures since 2008.
7. Transmission e-mails for documents that are designated as confidential.
B. INFORMATION AFFECTING PLAINTIFF’S PRIVACY INTEREST
1. Documents pertaining to advocacy regarding “personhood” ballot questions in
Colorado since 2008. These documents include personal e-mail accounts of Dr. Diane
Hsieh and other officers and directors containing the words “amendment 48”,
“amendment 62”, “disclosure”, “filing report,” “policy paper,” “ballot issue,” or “ballot
question.” Transmission e-mails for documents that are designated as “confidential” shall
be deemed confidential
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:

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a.

By imprinting the word “Confidential” on the first page or cover 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
opposing counsel designating such portions as “Confidential” no later than
ten calendar days after receipt of the transcribed testimony.

4.

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

request or transcribed testimony shall be subject to the following restrictions:
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.

5.

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.
6.

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

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signed by qualified recipients of Confidential Information, and shall maintain a list of all persons
to whom any Confidential Information is disclosed.
7.

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

agreement of the parties inspect the list maintained by counsel pursuant to paragraph 6 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.
8.

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 purposes of this
litigation.
9.

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

Information, and copies made therefrom pursuant to paragraph 8 above.
10.

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, all 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
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.

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11.

Use of Confidential Information in Court Proceedings: 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 of the party 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
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)).
12.

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.
13.

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.
14.

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

shall immediately return to the producing party all Confidential Information provided subject to
this Protective Order, and all extracts, abstracts, charts, summaries, notes or copies made
therefrom. At that time, counsel shall also file under seal with this Court the list of individuals

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who have received Confidential Information which counsel shall have maintained pursuant to
paragraph 6 herein, and counsel shall provide the Court with verification that any of counsel's
work product referencing Confidential Information has been destroyed.
15.

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.
Dated at Denver, Colorado, this 5th day of September, 2012.
BY THE COURT:

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE
UNITED STATES DISTRICT COURT
STIPULATED AND AGREED TO:

Coalition for Secular Government

/s Allen Dickerson
Counsel

Scott Gessler

/s Maurice G. Knaizer
Counsel

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EXHIBIT A
AFFIDAVIT
STATE OF COLORADO
COUNTY OF

)
)

ss.
)

___________________, swears or affirms and states under penalty of perjury:
1.

I have read the Protective Order in *, 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.: (

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)

SUBSCRIBED AND SWORN to before me this * day of *, 2001, by
_________________________.
WITNESS my hand and official seal.

Notary Public
[S E A L]
My Commission Expires:

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