Tian v. Newmont International Services Limited
Filing
16
Stipulation and PROTECTIVE ORDER, by Judge John L. Kane on 4/16/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 12-cv-02515-JLK
FANG TIAN
Plaintiff,
v.
NEWMONT INTERNATIONAL SERVICES LIMITED, a Delaware company
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 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: personnel, medical, business,
financial or proprietary information of the parties.
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 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.
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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.
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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.
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.
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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
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 16th day of April, 2013.
BY THE COURT:
s/John L. Kane
JOHN L. KANE, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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STIPULATED AND AGREED TO:
s/ Elwyn F. Schaefer
Elwyn F. Schaefer
Elwyn F. Schaefer, P.C.
1801 Broadway, Suite 550
Denver, CO 80202
Telephone: (303) 825-1961
E-mail: Elwyn.Schaefer@qwestoffice.net
s/ Tatiana Taylor
Tatiana Taylor
TAYLOR LAW FIRM
355 South Teller Street, Ste. 200
Lakewood, CO 80226
Telephone: (303) 275-3476
E-mail: Tatiana@TaylorLawFirmLLC.com
Attorneys for Plaintiff
s/ Elizabeth I. Kiovsky
Elizabeth I. Kiovsky
KIOVSKY DUWALDT LLC
2820 Welton Street
Denver, CO 80205
Telephone: (303) 320-8301
E-mail: Beth@kdemploymentlaw.com
Attorneys for Defendant
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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 Fang Tian v. Newmont International Services Limited,
Civil Action No. 12-cv-02515-JLK, 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.: (
7
)
SUBSCRIBED AND SWORN to before me this
by _________________________.
day of
WITNESS my hand and official seal.
Notary Public
[S E A L]
My Commission Expires:
8
, 2013,
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