Pioneer Centres Holding Company Employee Stock Ownership Plan and Trust, The v. Alerus Financial, N.A. et al

Filing 75

PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 3/8/13. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-CV-02547-MSK-BNB
THE PIONEER CENTRES HOLDING COMPANY
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
AND IT’S TRUSTEES, MATTHEW BREWER,
ROBERT JENSEN AND SUSAN DUKES,
Plaintiffs,
v.
ALERUS FINANCIAL, N.A. and
BERENBAUM WEINSHIENK, P.C.,
Defendants.
______________________________________________________________________________
PROPOSED PROTECTIVE ORDER AGREEMENT
______________________________________________________________________________
Upon a showing of good cause in support of the entry of a protective order to protect the
discovery and dissemination of confidential information as permitted by Rule 26(c) of the
Federal Rules of Civil Procedure, it is ORDERED:
1. This Protective Order shall apply to all documents, materials, and information,
including, without limitation, documents heretofore or hereafter produced, answers to
interrogatories, responses to requests for admission, deposition testimony, and other
information disclosed pursuant to the disclosure or discovery duties created by the
Federal Rules of Civil Procedure, which the producing or disclosing party designates
as “CONFIDENTIAL” pursuant to the terms of this Order. The party designating
information as CONFIDENTIAL shall be referred to as the “Designating Party.” The
party receiving information designated as CONFIDENTIAL shall be referred to as
the “Receiving Party.”

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2. As used in this Protective Order, "document" is defined as provided in F.R.C.P. 34(a).
A draft or non-identical copy is a separate document within the meaning of this term.
3. Information designated CONFIDENTIAL shall be information, materials and/or
information (collectively “CONFIDENTIAL information”) that the Designating Party
believes in good faith is confidential and contains: (i) proprietary information, trade
secrets, or other confidential research, development, or commercial information, (ii)
nonpublic information of a personal or private nature, including financial
information for any person (including information which implicates common law
and/or statutory privacy interests of the Plan or its current or former beneficiaries or
participants). Extracts and summaries of CONFIDENTIAL information, and
information derived from CONFIDENTIAL information, shall be treated as
CONFIDENTIAL information.
4. CONFIDENTIAL information obtained by a Receiving Party from a Designating
Party shall not be disclosed or used for any purpose except the preparation (including
pleadings and hearings during litigation), trial and appeal of this case. No party has
proposed that any court proceedings be closed to the public. CONFIDENTIAL
information shall not, without the consent of the Designating Party, or further Order
of the Court, be disclosed except as provided in this Protective Order.
CONFIDENTIAL information may be disclosed to:
a. attorneys actively working on this case;
b. persons regularly employed or associated with the attorneys actively working
on the case whose assistance is required by said attorneys in the preparation
for trial or at other proceedings in this case;
c. the parties, including agents or employees of the parties or their insurers who
are needed for preparation, trial, appeal or other proceedings in this case;

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d. expert witnesses and consultants retained in connection with this proceeding,
to the extent such disclosure is necessary for preparation, trial, appeal or other
proceedings in this case;
e. the Court and its employees ("Court Personnel");
f. stenographic reporters who are engaged in proceedings necessarily incident to
the conduct of this action;
g. deponents, witnesses, or potential witnesses; and

h. other persons by written agreement of the parties.

5. Prior to disclosing any CONFIDENTIAL information to any person listed or
described in Paragraphs 4. d., g. and h. above, counsel shall provide such person with
a copy of this Protective Order and obtain from such person a written
acknowledgment stating that he or she has read this Protective Order and agrees to be
bound by its provisions. All such acknowledgments shall be retained by counsel and
shall be subject to in camera review by the Court if good cause for review is
demonstrated by opposing counsel.
6. A Receiving Party may disclose CONFIDENTIAL information in response to a
lawful summons or subpoena, provided that prior to responding to such a summons or
subpoena, a copy thereof shall be provided to counsel for the Designating Party as
soon as practicable after service, so that the Designating Party may have an
opportunity to seek a protective order or other appropriate order.
7. Documents shall be designated as CONFIDENTIAL by placing or affixing on them
(in a manner that will not interfere with their legibility) the word
"CONFIDENTIAL."

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8. Third parties producing documents in the course of this action may also designate
documents as CONFIDENTIAL subject to the same protections and constraints as the
parties to the action. A copy of this Protective Order shall be served along with any
subpoena served in connection with this action. All documents produced by such
third parties that are not marked CONFIDENTIAL shall be treated as
CONFIDENTIAL for a period of 14 days from the date of their production, and
during that period any party may designate such documents as CONFIDENTIAL
pursuant to the terms of this Protective Order.
9. Whenever a deposition involves the disclosure or use of CONFIDENTIAL
information, the deposition or portions thereof shall be designated by the Designating
Party as CONFIDENTIAL and shall be subject to the provisions of this Protective
Order. Such designation shall be made on the record during the deposition whenever
possible, but a Designating Party may designate portions of depositions as
CONFIDENTIAL after transcription, provided written notice of the designation is
promptly given to all counsel of record within thirty (30) days after notice by the
court reporter of the completion of the transcript.
10. No presumption, implication, inference or indication shall arise from the fact that a
document has been designated as CONFIDENTIAL information. Specifically, but
without limitation, the fact that the document has been designated as
CONFIDENTIAL shall not show in any way that the document is subject to any
privilege or that the document is the property of any particular person or entity.
11. A party may object to the designation of particular CONFIDENTIAL information by
giving written notice to the Designating Party. The written notice shall identify the

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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 Designating Party to file an appropriate motion requesting that
the Court determine whether the disputed information should be subject to the terms
of this Protective Order no later than fifteen (15) business days after the time the
notice is received. 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 Designating Party shall bear the burden of establishing that good cause
exists for the disputed information to be treated as CONFIDENTIAL.
12. 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 shall not be filed under “restricted access” 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 restricted access. Any motion requesting
leave to file documents under restricted access 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

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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)).
13. At the conclusion of this case, including any appeal, and unless other arrangements
are agreed upon in writing, each document and all copies thereof which have been
designated as CONFIDENTIAL shall be returned to the Designating Party, or the
parties may elect to destroy CONFIDENTIAL documents. Where the parties agree to
destroy CONFIDENTIAL documents, the destroying party shall provide all parties
with an affidavit or declaration pursuant to 28 U.S.C. § 1746 confirming the
destruction.
14. The inadvertent disclosure or production of any information or document that is
subject to an objection on the basis of attorney-client privilege or work product
protection, or deemed CONFIDENTIAL under this Protective Order, will not be
deemed a waiver of a party’s claim to its privileged or protected nature or estop that
party from designating the information or document as CONFIDENTIAL. Any party
receiving any such information or document shall return it upon request from the
producing party within five (5) business days of the request, regardless of whether the
receiving party agrees with the claim of confidentiality or privilege.
15. Nothing in the Order shall require production of any documents or information to the
extent that the production is prohibited by law.

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16. 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 March 8, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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