Tomson, et al v. American Zurich Insurance Company

Filing 36

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 1/14/2013. (kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-01964-REB-KMT
O. JAY TOMSON,
TIMOTHY A. KROCHUK,
J. READING WILSON JR.,
KYLE HECKMAN,
KENT A. JONES, and
FBHC HOLDING COMPANY,
Plaintiffs,
v.
AMERICAN ZURICH INSURANCE COMPANY,
Defendant.

STIPULATED PROTECTIVE ORDER

Plaintiffs O. Jay Tomson, Timothy A. Krochuk, J. Reading Wilson Jr., Kyle
Heckman, Kent A. Jones, and FBHC Holding Company and Defendant American Zurich
Insurance Company (each a “Party” and collectively the “Parties”) hereby stipulate and
agree, pursuant to Federal Rule of Civil Procedure 26(c), to entry by the Court of the
following Stipulated Protective Order (“Protective Order”).
UPON THE STIPULATION AND AGREEMENT OF THE PARTIES, IT IS
HEREBY ORDERED:
1.
information,

This Protective Order shall apply to all documents, materials, and
including

without

limitation,

documents

produced,

answers

to

interrogatories, responses to requests for admission, deposition testimony, and other

information disclosed pursuant to the disclosures or discovery obligations under the
Federal Rules of Civil Procedure and designated by any Party as “Confidential” in the
manner set forth in paragraph 3 (“Confidential Material”).
2.

As used in this Protective Order, “document” is defined as provided in

Federal Rule of Civil Procedure 34(a)(1)(A). A draft or non-identical copy is a separate
document within the meaning of this term.
3.

A Party may designate as “CONFIDENTIAL” any documents, materials, or

information that such Party’s counsel has determined, in good faith, to constitute
(a) proprietary, confidential, or trade secret information, or (b) nonpublic information that
will improperly annoy, embarrass, or oppress any Party, witness, or person providing
discovery in this case. The terms of this Protective Order govern all aspects of the
procedures to be followed in making or challenging such designations and the terms,
conditions, and restrictions on the use of Confidential Material.
4.

In the event any documents, deposition testimony, information, or other

material is sought in this litigation from any person or entity not a Party (“Nonparty”),
such Nonparty shall have the same rights and obligations as the Parties regarding the
designation of documents, materials, or information as CONFIDENTIAL, including the
obligations imposed by this Protective Order in the event that a challenge is raised
against a Nonparty’s designation of documents, materials, or information as
CONFIDENTIAL.

The use of Confidential Material produced by a Nonparty to the

Parties shall be governed in all respects by this Protective Order.

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5.

Except as set forth in this Protective Order, Confidential Material shall not,

without the consent of the Party producing it or further order of the Court, be disclosed
except that Confidential Material may be disclosed to:
a.

counsel of record for the Parties and their respective partners,

associates, paralegals, and clerical personnel;
b.

persons retained by the Parties and their counsel to assist in the

prosecution or defense of this case (including consultants, expert consultants,
witnesses, and third-party vendors and their employees) to the extent such
disclosure is necessary for preparation, trial, or other proceedings in this case;
c.

stenographic reporters who are engaged in proceedings, such as

depositions, necessarily incident to the conduct of this case;
d.

persons reasonably believed to have authored, received, or been

aware of the Confidential Material or who are employees of the Party that
produced or designated the Confidential Material, provided such persons are not
given a copy of any such Confidential Material to retain;
e.

the Court and its employees (“Court Personnel”), provided that

such materials are marked “CONFIDENTIAL” pursuant to this Protective Order
and

filed

as

a

document

restricted

by

court

order

pursuant

to

D.C.Colo.L.Civ.R. 7.2;
f.

the Parties, including the Parties’ respective officers, directors, and

employees, but only to the extent that such disclosure is reasonably necessary
for preparation of the case; and

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g.
6.

other persons by written agreement of the Parties.

Prior to disclosing any Confidential Material to any of the persons listed in

paragraph 5 (other than the persons listed in subparagraphs (a), (c), and (e)), counsel
shall provide such person with a copy of this Protective Order and obtain from such
person a written acknowledgement, in the form of the Affidavit attached as Exhibit A to
this Protective Order, stating that he or she has read this Protective Order and agrees to
be bound by its provisions. Copies of the executed Affidavits are to be provided to
opposing counsel upon request during the pendency of the case and upon a request
made no later than 60 days after the conclusion of this litigation, whether by final
judgment or settlement.
7.

Confidential Materials 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.” This designation should be placed on
every page of any document containing information to be treated as Confidential
Material.
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 Protective Order. Any Party wishing to
designate deposition testimony as Confidential Material must either:
a.

In

advance

of

disclosure,

state

that

the

testimony

is

CONFIDENTIAL and advise all persons present that the information is subject to
this Protective Order. The testimony designated as CONFIDENTIAL must be

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separately transcribed and marked with the legend described in paragraph 7.
Only those persons designated in paragraph 5, who have complied with
paragraph 6, if applicable, may view, listen to, or read this testimony; or
b.

If a designation of Confidential Material is not made in advance of

disclosure at a deposition, such designation may be made within 20 days
following the date the Party or Nonparty seeking to designate Confidential
Material receives the deposition transcript, by providing written notice of
designation to all Parties. All persons with copies of the designated portions of
the deposition transcript shall then mark their copies with the legend described in
paragraph 5.

Until the 20-day period for post-deposition designation of

Confidential Material has expired, all deposition testimony and transcripts shall
be treated as Confidential Material.
9.

Any person obtaining access to Confidential Material, or the information in

those materials of another Party, may use the information and Confidential Materials
only for the purposes of this case and for no other purpose.
10.

Within 90 days of the conclusion of this case by final judgment or

settlement, unless other arrangements are agreed upon, all Confidential Materials shall
be returned to the Party that designated the documents, materials, or information as
CONFIDENTIAL, or the Parties may elect to destroy Confidential Materials.

If the

Parties agree to destroy Confidential Materials, the destroying Party shall provide all
Parties with an affidavit confirming destruction.

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11.

Confidential Materials and the information in them may be used in any

court proceeding in this case, including depositions, hearings, and trial, subject to the
Federal Rules of Evidence, the Federal Rules of Civil Procedure, and any other
applicable law. Such Confidential Materials and the information in them shall not lose
their confidential status through such use, and the Parties shall take reasonable steps to
protect the confidentiality of Confidential Materials and the information in them.
12.

Nothing in this Protective Order shall require production of information that

any Party contends is protected from disclosure by the attorney-client privilege or the
work product immunity. If information subject to a claim of attorney-client privilege or
work product immunity is nevertheless inadvertently produced, such production shall in
no way prejudice or otherwise constitute a waiver of, or estoppel as to any claim of
privilege or work product immunity for such information. If a Party has inadvertently
produced information subject to a claim of immunity or privilege, the Party receiving the
information shall promptly return the information upon its discovery of the inadvertent
production, or when the claim of inadvertent production is made. If a Party disagrees
with a claim of inadvertent production, the Party, after returning such information, may
challenge the designation of the information or document as Confidential Material
pursuant to the procedure set forth in paragraph 15.
13.

By production of any Confidential Material or providing testimony pursuant

to this Protective Order, the Parties do not waive, but rather expressly reserve any and
all legal rights, obligations, privileges, or immunities applicable to such Confidential
Material and any corresponding testimony or information. Nothing contained in this

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Protective Order shall affect the rights, if any, of the Parties to make any other type of
objection, claim, or other response to any discovery request, subpoena, or any question
at deposition, nor shall this Protective Order be construed as a waiver by the Parties of
any legally cognizable privilege to withhold any document or information, or of any right
to which the Parties may have to assert such privilege at any stage of these
proceedings.
14.

For good cause shown, a Party may at any time seek modification or

termination of this Protective Order, first by seeking to obtain the consent of every other
Party to such modification or termination, and then, absent consent, by motion to this
Court. No Party shall seek any modification or termination of this Protective Order
without providing the other Parties a minimum of 10 days written notice.
15.

A Party may challenge another Party’s or Nonparty’s designation of

information or documents as Confidential Material as follows: (1) a Party may object to
another Party’s or Nonparty’s designation of Confidential Material by giving written
notice to the Party or Nonparty designating the disputed Confidential Material; the
written notice shall identify the disputed information and the basis for the objection; (2) if
the Party or Nonparty producing the disputed Confidential Material and the objecting
Party cannot resolve the objection within 10 business days after the notice of objection
is received, the Party or Nonparty designating the information as Confidential Material
shall have the obligation to file an appropriate motion requesting that the Court
determine whether the disputed information should be subject to the terms of this
Protective Order; (3) in connection with a motion filed under this provision, the Party or

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Nonparty designating the information as Confidential Material shall bear the burden of
establishing good cause exists for the disputed information to be treated as Confidential
Material; (4) if such a motion is timely filed, the disputed information shall be treated as
Confidential Material until the Court rules on the motion; and (5) if the designating Party
or Nonparty does not file such a motion within 10 business days, the disputed
information shall lose its designation as Confidential Material and shall not thereafter be
treated as Confidential Material subject to this Protective Order.
16.

Nothing in this Protective Order constitutes a finding or admission that any

Confidential Material is in fact confidential, proprietary, or otherwise not subject to
disclosure.
17.

The terms of this Protective Order, as and if modified, shall survive and

remain in effect after the termination or settlement of this case.
DONE this 14th day of January, 2013.
BY THE COURT:

_____________________________________
United States Magistrate Judge

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The foregoing Stipulated Protective Order is stipulated and agreed to by the
parties’ undersigned counsel:
Respectfully submitted this 14th day of January, 2013.
APPROVED:
s/ Edward T. Schroeder
Hilary D. Wells
Edward T. Schroeder
ROTHGERBER JOHNSON & LYONS LLP
One Tabor Center, Suite 3000
1200 17th St.
Denver, CO 80202-5855
[phone]
[e-mail]
[e-mail]

s/ Angela Probasco
Tory M. Bishop
Angela Probasco
KUTAK ROCK LLP
1650 Farnam Street
Omaha, NE 68102
[phone]
[e-mail]
[e-mail]
and

ATTORNEYS FOR PLAINTIFFS
O. Jay Tomson, Timothy A. Krochuk, J.
Reading Wilson, Jr., Kyle Heckman, Kent A.
Jones, and FBHC Holding Company

Kelly S. Kilgore
1801 California Street, Suite 3100
Denver, CO 80202
[phone]
[e-mail]
ATTORNEYS FOR DEFENDANT
American Zurich Insurance Company

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-01964-REB-KMT
O. JAY TOMSON, TIMOTHY A. KROCHUK,
J. READING WILSON JR.,
KYLE HECKMAN,
KENT A. JONES, and
FBHC HOLDING COMPANY,
Plaintiffs,
v.
AMERICAN ZURICH INSURANCE COMPANY,
Defendant.

EXHIBIT A TO PROTECTIVE ORDER – CONFIDENTIALITY AGREEMENT

I,_________________, the undersigned, being duly sworn, hereby
acknowledges that I have read the Protective Order issued by the Court in the above
captioned civil action and I understand the terms and conditions of such Protective
Order governing the restricted use of information and materials obtained from the
Parties and provided to me for the sole purposes of the above captioned action, and
hereby agree to keep all such information and materials strictly and absolutely
confidential, and in all other respects to be bound by the terms of the Protective Order.
My current address and telephone number is:
___________________________________
___________________________________
________________________________
___________________________________
Signature
STATE of ________________________)
)ss.
COUNTY of ______________________)

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The foregoing Confidentiality Agreement was sworn and acknowledged to before
me by on this ______ day of __________________, 2013.
Witness my hand and official seal.
________________________________
Notary Public

My commission expires:____________

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