Colorado Mills, LLC v. Philadelphia Indemnity Insurance Company

Filing 22

STIPULATED PROTECTIVE ORDER. By Magistrate Judge Michael E. Hegarty on 11/27/12. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No.: 12-cv-01830-CMA-MEH

COLORADO MILLS, LLC, a Colorado limited liability company,
Plaintiff,
v.
PHILADELPHIA INDEMNITY INSURANCE COMPANY, a Pennsylvania insurer,
Defendant.

STIPULATED PROTECTIVE ORDER

Upon a showing of good cause in support of the entry of a protective order to
protect the discovery and dissemination of confidential information or information which
will improperly annoy, embarrass, or oppress any party, witness, or person providing
discovery in this case, IT IS HEREBY ORDERED:
1.

In this proceeding, the parties shall be producing documents and disclosing

information that contain or may be deemed by a party as containing confidential business,
financial and other information.

This Stipulated Protective Order shall govern the

production, disclosure, maintenance, and use of all information or documents deemed
confidential by a party. This Stipulated Protective Order shall be applicable to: all
depositions (including exhibits); documents produced in response to discovery requests,
formal or otherwise, or related to initial disclosures; answers to interrogatories; responses
to requests for admissions; and all other discovery taken; as well as submissions to the
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Court; testimony given at trial, or during a hearing; and other materials or information
produced in this matter.
2.

As used in this Stipulated Protective Order, the term “document” shall

include any writings, drawings, graphs, charts, emails, photographs, sound recordings,
images, and other data or data compilations stored in any medium from which
information can be obtained. See Fed. R. Civ. P. 34(a)(1)(A). A draft or non-identical
copy is a separate document within the meaning of this term.
3.

Documents are designated as “Confidential” by placing or affixing on them

(in a manner that will not interfere with their legibility) the following or other appropriate
notice: “CONFIDENTIAL.”
4.

The following restrictions shall apply to documents that are designated

“Confidential” by a party or that contain confidential information, to any confidential
information, or to testimony containing, discussing, or referring to such information:
a.

If a party wishes for a document, or information contained in a

document, to be treated as confidential, the party shall mark the document
as “Confidential” as set forth above.
b.

Any document marked as “Confidential” shall be maintained by the

party receiving the document (the “nonproducing party”) in strictest
confidence at all times. Any such document shall not be disclosed or used
by the nonproducing party except for the purposes of the above-identified
litigation. Notwithstanding the preceding, such confidentiality shall not
apply to any document marked as Confidential if the nonproducing party
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obtains a determination by this Court that the document is not confidential
and does not contain Confidential information.
c.

Access to any document marked “Confidential” received by the

nonproducing party shall be restricted to the following persons:
(i)

attorneys actively working on the case;

(ii)

persons regularly employed or associated with the attorneys

actively working on the case whose assistance is required by said
attorneys in the preparation for trial, at trial, or at other proceedings
in this case;
(iii)

the parties, including designated representatives for Plaintiff

and/or Defendant;
(iv)

expert witnesses and consultants retained in connection with

this proceeding, to the extent such disclosure is necessary for
preparation, trial or other proceedings in this case;
(v)

this Court and any court personnel with a need to access any

such document;
(vi)

stenographic reporters who are engaged in proceedings

necessarily incident to the conduct of this action;
(vii)

witnesses in the course of deposition or trial testimony where

counsel has a reasonable and good faith belief that examination with
respect to the document is necessary in legitimate discovery or trial
purposes, and any person who is being prepared to testify where
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counsel has a reasonable and good faith belief that such person will
be a witness in this action and that his examination with respect to
the document is necessary in connection with such testimony; and
(viii) other persons by written agreement of all the parties.
5.

Prior to disclosing any Confidential information to any person listed in

paragraphs 4(c)(iv) and (vii)-(viii) above, counsel shall provide such person with a copy
of this Stipulated Protective Order and obtain from such person a written
acknowledgment (in the form attached hereto as Exhibit A) stating that he or she has read
this Stipulated Protective Order and agrees to be bound by its provisions. All such
acknowledgments shall be retained by counsel and shall be subject to in camera review by
this Court if good cause for review is demonstrated by opposing counsel. The parties
agree that should any person listed in paragraphs 4(c)(iv) and (vii)-(viii) above refuse to
sign an acknowledgment, counsel will not show any Confidential documents or share any
Confidential information with such person and will seek this Court’s involvement to
compel compliance with this Stipulated Protective Order.
6.

Any testimony in which Confidential information is likely to be referred to

or disclosed shall be subject to the following restrictions: (i) only persons who are
authorized by paragraph 4(c) of this Stipulated Protective Order to have access to
Confidential information shall be permitted to attend the proceeding in which such
testimony occurs; (ii) at any time in the proceeding, any party may declare that the
testimony being given is Confidential; (iii) if the testimony is declared Confidential, the
reporter or other person transcribing the testimony shall mark all copies of transcripts
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Confidential, and such transcript shall be treated as Confidential documents or documents
containing Confidential information pursuant to the terms of this Stipulated Protective
Order.
8.

Whenever a deposition involves the disclosure of Confidential information,

the deposition or portions thereof shall be designated as Confidential and shall be subject
to the provisions of this Stipulated Protective Order. Such designation shall be made on
the record during the deposition whenever possible, but a party may designate portions of
depositions as Confidential after transcription, provided written notice of the designation
is promptly given to all counsel of record within thirty (30) days after notice by the court
reporter of the completion of the transcript.
9.

In the event that a non-party or another party produces documents that a

party wishes to designate as Confidential, the party wishing to make that designation must
do so within fifteen (15) business days of receipt, and identify the Confidential
document(s) or Confidential Information by bates label or, where not bates labeled by
document title and page number(s). The non-designating parties shall thereafter mark the
document or information in the manner requested by the designating party and thereafter
treat the document in accordance with such marking. However, any use by the nondesignating party made before a post-production designation will not be a violation of this
Stipulated Protective Order, and the post-production designation will apply prospectively
only and will not apply to any disclosure made prior to the designation, so long as the
non-designating party notifies the designating party of the prior disclosure and explains
the reasonable steps taken by the non-designating party to retrieve materials it
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disseminated prior to the designation and to otherwise come into conformance with the
new designation.
10.

Production of any document or materials without a designation of

confidentiality or an incorrect designation will not be deemed to waive a later claim as its
proper designation nor will it prevent the producing party from designating said
documents or materials “Confidential” at a later date. However, any use by the receiving
party made before a post-production designation will not be a violation of this Stipulated
Protective Order, and the post-production designation will apply prospectively only and
will not apply to any disclosure made prior to the designation, so long as the nondesignating party notifies the designating party of the prior disclosure and explains the
reasonable steps taken by the non-designating party to retrieve materials it disseminated
prior to the designation and to otherwise come into conformance with the new
designation.
11.

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 within five (5) business days after the conclusion of that 10-business
day window requesting that this Court determine whether the disputed information should
be subject to the terms of this Stipulated Protective Order. Once such a motion is filed,
the disputed information shall be treated as Confidential under the terms of this Stipulated
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Protective Order until this Court rules on the motion. If the designating party fails to 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 Stipulated 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.
12.

At the conclusion of this case, unless other arrangements are agreed upon,

each document and all copies thereof which have been designated as Confidential shall be
returned to the party that designated it Confidential, or the parties may elect to destroy
Confidential documents. Where the parties agree to return Confidential documents, the
returning party shall provide all parties with an affidavit confirming that all Confidential
documents have been returned.

Where the parties agree to destroy Confidential

documents, the destroying party shall provide all parties with an affidavit confirming the
destruction of all Confidential documents.
13.

By agreeing to the entry of this Stipulated Protective Order, the parties

hereto adopt no position as to the confidentiality or admissibility of documents produced
subject to this Stipulated Protective Order.
14.

This Stipulated Protective Order may be modified by this Court at any time

for good cause shown following notice to all parties and an opportunity for them to be
heard.

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Dated: November

, 2012.

ALLEN & VELLONE, P.C.

By: s/ Antonio L. Converse
Patrick D. Vellone
Jordan Factor
Antonio L. Converse
1600 Stout Street, Suite 1100
Denver, Colorado 80202
Tel.: [phone]
[e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR COLORADO MILLS, LLC

Dated: November

, 2012.

HALL & EVANS, LLC
By:
s/ Lisa F. Mickley
John E. Bolmer II
Lisa F. Mickley
Erin K. Young
1125 17th Street, Suite 600
Denver, CO 80202
Tel.: [phone]
[e-mail]
[e-mail]
[e-mail]
ATTORNEYS FOR PHILADELPHIA INDEMNITY
INSURANCE COMPANY

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Dated: November

, 2012.

SEDGWICK LLP

By:
s/ Brian D. Harrison
Brian D. Harrison
Christina Y. Ahn
333 Bush Street, 30th Floor
San Francisco, CA 94104
Tel.: [phone]
[e-mail]
[e-mail]
ATTORNEYS FOR PHILADELPHIA INDEMNITY
INSURANCE COMPANY

Dated at Denver, Colorado, this 27th day of November, 2012.

BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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EXHIBIT A
I,

, declare that:
1.

My

address is
.

2.
My present occupation is
currently employed by
.

, and I am

3.
I have received a copy of the Stipulated Protective Order in this
Litigation, and have carefully read and understand its provisions.
4.
I will comply with all of the provisions of the Stipulated Protective
Order. I will hold in confidence, will not disclose to anyone other than those
persons specifically authorized by the Stipulated Protective Order and will not
copy or use for purposes other than for this lawsuit, any information designated
Confidential, which I receive in this Litigation, except to the extent that such
Confidential information shall no longer be deemed to be Confidential in
accordance with the Stipulated Protective Order.
5.
correct.

I declare under the penalty of perjury that the foregoing is true and

Executed:

Signature

Print Name

Dated

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