XeDAR v. Rakestraw

Filing 20

PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 11/16/12. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-CV-01907-CMA-BNB
XEDAR CORPORATION, Plaintiff,
v.
DON RAKESTRAW, Defendant.

STIPULATED PROTECTIVE ORDER

The parties hereto, by and through their respective counsel, enter into have submitted
the following Stipulated Protective Order. , and as grounds therefore state as follows: Good
cause having been shown,
IT IS ORDERED:
1.

In the course of this litigation, it is anticipated that the parties will request access

to information in which the parties or other individuals have some form of privacy interest,
confidentiality interest, trade secret interest or privilege. The entry of this Protective Order is
necessary to protect such information. Accordingly, the parties have agreed to this Stipulated
Protective Order and request that the Court enter this Stipulated Protective Order to prevent the
unnecessary disclosure of confidential information except as set forth herein.
2.

In this Protective Order, “Document” means a writing, as defined in F.R.E. 1001

and includes the original or a copy of handwriting, typewriting, printing, photostating,

photographing, and every other means of recording upon any tangible thing and form of
communicating or representation, including letters, words, pictures, sounds, or symbols, or
combinations of them. A draft or non-identical copy is a separate document within the meaning of
this term. Documents may include without limitation, answers to interrogatories, responses to
requests for production, responses to requests for admission, depositions, and other information
disclosed pursuant to the disclosure or discovery rules.
3.

Either party may designate a Document as confidential provided that the party has

some form of privacy interest, confidentiality interest or trade secret interest in the Document, or
the Document contains privileged information, provided however that if a party had possession
of the Document, or a copy thereof, prior to and independent of its production in this case the
Document shall not be subject to this Protective Order. If any document is designated as
confidential, then each page of such document shall be marked “confidential” by the party
designating it as such. Deposition transcripts or portions thereof may also be designated
confidential. Such designation shall be made on the record during the deposition whenever
possible, but a party may designate a deposition transcript or portions thereof as confidential by
providing written notice of the designation to all counsel of record within thirty days after notice
by the court reporter of the completion of the transcript.
4.

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 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.
Any party may object to a designation of a Document as confidential by giving written notice to
the party designating the disputed document. For Documents disclosed after the date this
Protective Order is signed by the Court, such written objection must be made within ten business
days of the receipt of the disputed Document.

For Documents disclosed before the date this

Protective Order is signed by the Court, such written objection must be made within ten business
days of the date of the Court’s entry of this Order.

The written objection shall identify the

disputed Documents and the basis for the dispute. If the parties cannot resolve the written
objection it shall be the obligation of the objecting party to file an appropriate motion requesting
that the Court determine whether the disputed Document should be subject to the terms of this
Protective Order. Such motion must be filed within fifteen business days after the mailing of a
written objection to any confidentiality designation. If no such motion is timely filed, the
Document shall remain confidential and any objection to the designation is waived. If such a
motion is timely filed, the disputed Document shall be treated as confidential under the terms of
this Protective Order until the Court rules on the motion. In connection with a motion filed

under this provision, the party designating the Document as confidential shall bear the burden of
establishing the basis for that designation.
5.

Any material designated confidential shall be used solely for the purposes of this

action, and shall not, without the consent of the party producing it or further order of the Court, be
made available or disclosed to persons other than “qualified persons.” “Qualified person” as used
herein means:
a.
b.

Attorneys actively working on this case and persons regularly employed
or associated with the attorneys actively working on the case;

c.

Potential or retained expert witnesses and consultants, to the extent such
disclosure is necessary for preparation, trial or other proceedings in this
case;

d.

Court officials involved in this action, including the Court and its staff,
court reporters, persons operating video recording equipment at
depositions, and any Special Master or Referee appointed by the Court;

e.

Actual or potential deposition witnesses or trial witnesses in this action;
and

f.

6.

The parties and officers, directors or employees of a party;

Other individuals per the agreement of the parties.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2. If a Document is designated confidential and is submitted to the Court,
it shall be submitted under seal.
7.

Any qualified person provided with confidential documents shall be informed of

this Stipulated Protective Order and shall be subject to its terms.

8.

If information designated confidential pursuant to this Order is disclosed to any

person other than in the manner authorized by this Order, the party responsible for that
disclosure must immediately bring all pertinent facts relating to such disclosure to the attention
of all interested parties, without prejudice to other rights and remedies of the designating party,
and shall make every effort to prevent further improper disclosure.
9.

At the conclusion of this litigation (including any final appeal), upon request the

parties shall return each Document and all copies thereof which have been designated
confidential to the party who designated the Document confidential, or the parties may mutually
agree to destroy Documents that have been designated confidential. Where the parties agree to
destroy Documents that have been designated confidential, the destroying party shall provide all
parties with confirmation of the destruction. Nothing in this paragraph, however, shall be
construed as prohibiting the attorneys for any party from maintaining a complete file regarding
the litigation, including copies of Documents that have been designated confidential. Further, if
a party had a Document or a copy thereof in his, her, or its possession prior to the
commencement of the litigation, and that Document was later designated confidential by another
party, nothing in this paragraph shall be construed as prohibiting the party who had the
Document or copies thereof in his possession prior to this litigation from retaining the Document
or copies thereof that were in his possession prior to this litigation after the conclusion of this
litigation.
10.

This Protective Order shall bind the parties and their attorneys as soon as it is signed

by attorneys for all of the parties, and it shall be submitted to the Court to be made an Order of the

Court. The Protective Order may be modified by the Court at any time for good cause shown
following notice to all parties and an opportunity for them to be heard.
Dated November 16, 2012.

BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

POLSINELLI SHUGHART PC

CROSBY & HIGGINS, LLP

S/Philip W. Bledsoe
Philip W. Bledsoe, Atty No. 33606

S/Todd A. Higgins

Bennett L. Cohen, Atty No. 26511

Todd A. Higgins, Esq.

1515 Wynkoop Street, Ste. 600

350 Broadway, Suite 300

Denver, CO 80202

New York, NY 10013

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Attorneys for Don Rakestraw
Attorneys for XeDAR