Ayon v. Kent Denver School et al
STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 4/10/13. (cbssec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Case No. 12-cv-02546-WJM-CBS
KENT DENVER SCHOOL, and
STIPULATED PROTECTIVE ORDER
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
Accordingly, the parties hereby stipulate to and petition the court to enter the following
Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket
protections on all disclosures or responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items that are entitled to
confidential treatment under the applicable legal principles.
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
“CONFIDENTIAL” Information or Items: information (regardless of how it is
generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
of Civil Procedure 26(c).
Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
well as their support staff).
Designating Party: a Party or Non-Party that designates information or items that
it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” Items that have
previously been disclosed may be marked “CONFIDENTIAL” after they are disclosed and all
copies of the item are then deemed marked “CONFIDENTIAL.”
Disclosure or Discovery Material: all items or information, regardless of the
medium or manner in which it is generated, stored, or maintained (including, among other
things, testimony, transcripts, and tangible things), that are produced or generated in
disclosures or responses to discovery in this matter.
Expert: a person with specialized knowledge or experience in a matter pertinent
to the litigation who has been retained by a Party or its counsel to serve as an expert witness or
as a consultant in this action.
House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
Non-Party: any natural person, partnership, corporation, association, or other
legal entity not named as a Party to this action.
Outside Counsel of Record: attorneys who are not employees of a party to this
action but are retained to represent or advise a party to this action and have appeared in this
action on behalf of that party or are affiliated with a law firm which has appeared on behalf of
Party: any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
Professional Vendors: persons or entities that provide litigation support services
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees and
Protected Material: any Disclosure or Discovery Material that is designated as
Receiving Party: a Party that receives Disclosure or Discovery Material from a
The protections conferred by this Stipulation and Order cover not only Protected Material
(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a
Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party
as a result of publication not involving a violation of this Order, including becoming part of the
public record through trial or otherwise; and (b) any information known to the Receiving Party
prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
obtained the information lawfully and under no obligation of confidentiality to the Designating
Party. Any use of Protected Material at trial shall be governed by a separate agreement or
Even after final disposition of this litigation, the confidentiality obligations imposed by this
Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
and defenses in this action, with or without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time pursuant to
DESIGNATING PROTECTED MATERIAL
Exercise of Restraint and Care in Designating Material for Protection. Each Party
or Non-Party that designates information or items for protection under this Order must take care
to limit any such designation to specific material that qualifies under the appropriate standards.
The Designating Party must designate for protection only those parts of material, documents,
items, or oral or written communications that qualify – so that other portions of the material,
documents, items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
unnecessarily encumber or retard the case development process or to impose unnecessary
expenses and burdens on other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it designated
for protection do not qualify for protection, that Designating Party must promptly notify all other
Parties that it is withdrawing the mistaken designation.
Manner and Timing of Designations. Except as otherwise provided in this Order
(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
designated before the material is disclosed or produced. Material may be designated after it is
produced by producing a new copy of the material marked confidential. Such post-production
designation shall have the effect of designating all previously produced non-designated copies
of the material as confidential.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a
portion or portions of the material on a page qualifies for protection, the Producing Party also
must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
A Party or Non-Party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which
material it would like copied and produced. During the inspection and before the designation, all
of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the
inspecting Party has identified the documents it wants copied and produced, the Producing
Party must determine which documents, or portions thereof, qualify for protection under this
Order. Then, before producing the specified documents, the Producing Party must affix the
“CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or
portions of the material on a page qualifies for protection, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
Designating Party identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony.
(c) for information produced in some form other than documentary and for any other
tangible items, that the Producing Party affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend “CONFIDENTIAL.”
If only a portion or portions of the information or item warrant protection, the Producing Party, to
the extent practicable, shall identify the protected portion(s).
Inadvertent Failures to Designate. A failure to designate qualified information or
items does not, standing alone, waive the Designating Party’s right to secure protection under
this Order for such material. Upon correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the provisions of this
CHALLENGING CONFIDENTIALITY DESIGNATIONS
Timing of Challenges. Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
Meet and Confer. The Challenging Party shall initiate the dispute resolution
process by providing written notice of each designation it is challenging and describing the basis
for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
notice must recite that the challenge to confidentiality is being made in accordance with this
specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge
in good faith and must begin the process by conferring directly (in voice to voice dialogue; other
forms of communication are not sufficient) within 14 days of the date of service of notice. In
conferring, the Challenging Party must explain the basis for its belief that the confidentiality
designation was not proper and must give the Designating Party an opportunity to review the
designated material, to reconsider the circumstances, and, if no change in designation is
offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the
next stage of the challenge process only if it has engaged in this meet and confer process first
or establishes that the Designating Party is unwilling to participate in the meet and confer
process in a timely manner.
Judicial Intervention. If the Parties cannot resolve a challenge without court
intervention, the Designating Party shall file and serve a motion to retain confidentiality within 21
days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and
confer process will not resolve their dispute, whichever is earlier. Failure by the Designating
Party to make such a motion including the required declaration within 21 days (or 14 days, if
applicable) shall automatically waive the confidentiality designation for each challenged
designation. In addition, the Challenging Party may file a motion challenging a confidentiality
designation at any time if there is good cause for doing so, including a challenge to the
designation of a deposition transcript or any portions thereof.
The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. Unless the Designating Party has waived the confidentiality designation by failing to file a
motion to retain confidentiality as described above, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the Producing Party’s
designation until the court rules on the challenge.
ACCESS TO AND USE OF PROTECTED MATERIAL
Basic Principles. A Receiving Party may use Protected Material that is disclosed
or produced by another Party or by a Non-Party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
disclosed only to the categories of persons and under the conditions described in this Order.
When the litigation has been terminated, a Receiving Party must comply with the provisions of
section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner that ensures that access is limited to the persons authorized under this
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
by the court or permitted in writing by the Designating Party, a Receiving Party may disclose
any information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
the information for this litigation and who have signed the “Acknowledgment and Agreement to
Be Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the Receiving
Party to whom disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
reasonably necessary for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably
necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected Material must
be separately bound by the court reporter and may not be disclosed to anyone except as
permitted under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian or
other person who otherwise possessed or knew the information.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
If a Party is served with a subpoena or a court order issued in other litigation that
compels disclosure of any information or items designated in this action as “CONFIDENTIAL,”
that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include a copy
of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue in the
other litigation that some or all of the material covered by the subpoena or order is subject to
this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
“CONFIDENTIAL” before a determination by the court from which the subpoena or order issued,
unless the Party has obtained the Designating Party’s permission. The Designating Party shall
bear the burden and expense of seeking protection in that court of its confidential material – and
nothing in these provisions should be construed as authorizing or encouraging a Receiving
Party in this action to disobey a lawful directive from another court.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
(a) The terms of this Order are applicable to information produced by a Non-Party in this
action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
connection with this litigation is protected by the remedies and relief provided by this Order.
Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
(b) In the event that a Party is required, by a valid discovery request, to produce a NonParty’s confidential information in its possession, and the Party is subject to an agreement with
the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality agreement with a
promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
make the information requested available for inspection by the
(c) If the Non-Party fails to object or seek a protective order from this court within 14
days of receiving the notice and accompanying information, the Receiving Party may produce
the Non-Party’s confidential information responsive to the discovery request. If the Non-Party
timely seeks a protective order, the Receiving Party shall not produce any information in its
possession or control that is subject to the confidentiality agreement with the Non-Party before a
determination by the court.1 Absent a court order to the contrary, the Non-Party shall bear the
burden and expense of seeking protection in this court of its Protected Material.
(d) In the event that a Party requests to obtain documents in the possession of a NonParty through a Fed.R.Civ.P. 45 subpoena, the non-requesting Party may, prior to the date and
time for production stated in the subpoena, serve written notice on the requesting Party that it
seeks an opportunity to review, and if appropriate, designate responsive documents as
“CONFIDENTIAL” under the terms herein. In such instances, the subpoenaing Party agrees to
provide copies of all documents received from the Non-Party under the subpoena to the nonrequesting party within two business days of receipt from the Non-Party. Thereafter, the nonrequesting Party shall be entitled to make designations that produced documents are
“CONFIDENTIAL” in accordance with the terms herein.
If any Non-Party documents have been received pursuant to a Fed.R.Civ.P. 45
subpoena by a Party prior to the entry of this order, upon entry of this order and request of the
non-requesting Party, the subpoenaing Party agrees to provide copies of all documents
received from the Non-Party under the subpoena to the non-requesting Party within two
business days of the request for copies. Thereafter, the non-requesting Party shall be entitled to
make designations that produced documents are “CONFIDENTIAL” in accordance with the
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective
The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of
a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.
Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
When a Producing Party gives notice to Receiving Parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). Pursuant to
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the
effect of disclosure of a communication or information covered by the attorney-client privilege or
work product protection, the parties may incorporate their agreement in the stipulated protective
order submitted to the court.
Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by the court in the future.
Right to Assert Other Objections. By stipulating to the entry of this Protective
Order no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly,
no Party waives any right to object on any ground to use in evidence of any of the material
covered by this Protective Order.
Filing Protected Material. Without written permission from the Designating Party
or a court order secured after appropriate notice to all interested persons, a Party may not file in
the public record in this action any Protected Material unless it is filed as a restricted document
pursuant to D.C.COLO.LCivR 7.2. If a Receiving Party's request to file Protected Material as a
restricted document is denied by the Court, the Receiving Party may file the information in the
public record pursuant to the civil rules unless otherwise instructed by the court.
Within 60 days after the final disposition of this action, as defined in paragraph 4, each
Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings,
motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
deposition and trial exhibits, expert reports, attorney work product, and consultant and expert
work product, even if such materials contain Protected Material. Any such archival copies that
contain or constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
s/ Alexander N. Hood
Attorney for Plaintiff
s/ Martin D. Beier
Attorney for Defendants
PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED at Denver, Colorado, on April 10, 2013.
BY THE COURT:
s/Craig B. Shaffer
United States Magistrate Judge
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________ [print or
type full address], declare under penalty of perjury that I have read in its entirety and understand
the Stipulated Protective Order that was issued by the United States District Court for the
District of Colorado on [date] in the case of Traci Ayon v. Kent Denver School and Jerry Walker,
case number 12-cv-02546-WJM in the United States District Court for the District of Colorado.
I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to this Stipulated Protective Order to any person or entity
except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the District of
Colorado for the purpose of enforcing the terms of this Stipulated Protective Order, even if such
enforcement proceedings occur after termination of this action.
City and State where sworn and signed: _________________________________
Printed name: ______________________________
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