The Home Loan Investment Company v. The St. Paul Mercury Insurance Company

Filing 33

STIPULATION and PROTECTIVE ORDER by Magistrate Judge Craig B. Shaffer on 10/17/13. (ccovi)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-02308-CMA-CBS
THE HOME LOAN INVESTMENT COMPANY, a Colorado corporation,
Plaintiff,
v.
THE ST. PAUL MERCURY INSURANCE COMPANY, d/b/a or a/k/a TRAVELERS, a
Connecticut corporation,
Defendant.

STIPULATION AND PROTECTIVE ORDER

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 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,
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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: confidential information, including, but not limited to, settlement
agreements and releases entered into by any Party with any person or entity not a party
to this lawsuit.
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:
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 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.

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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 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

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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.
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.

If any

Confidential Information is incorporated into a court filing or proceeding, the filing Party
will move in accordance with District of Colorado Local Civil Rule 7.2 for leave to file the
evidence with the Clerk of the Court under seal. Where possible, only portions of the
filings or proceedings with the Court containing Confidential Information shall be 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

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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.

In the event of an inadvertent disclosure of Confidential Information, or

privileged documents or information, by any Party to this agreement, the Parties agree
that the right to designate such materials as Confidential Information or to assert
privilege will not be waived where the producing party notifies the other party of the
inadvertent disclosure within a reasonable period of time following discovery of the
inadvertent disclosure. Upon notification of an inadvertent disclosure of Confidential
Information or privileged documents or information, the producing Party shall notify the
receiving Party of the inadvertent disclosure. Upon notification, the receiving Party shall
promptly return or destroy the requested privileged materials and any copies thereof.
15.

Upon termination of this litigation, including any appeals, unless other

arrangements are agreed upon, 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 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.
16.

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.

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17.

This 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 at Denver, Colorado, this 17th day of October, 2013.
___
BY THE COURT:
s/ Craig B. Shaffer
UNITED STATES DISTRICT COURT
STIPULATED AND AGREED TO:
APPROVED:
/s/ Nathan A. Schacht
Laurin D. Quiat
Cory M. Curtis
Nathan A. Schacht
BAKER & HOSTETLER LLP
303 East 17th Avenue, Suite 1100
Denver, Colorado 80203-1264
Telephone: [phone]
Attorneys for Plaintiff

/s/ Mary Byrne Fletcher
John M. Palmeri, #14252
Mary Byrne Fletcher, #42158
GORDON & REES LLP
555 Seventeenth Street, #3400
Denver, CO 80202
Telephone: [phone]
Attorneys for Defendant

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