Palmer v. Alvarez & Associates, LLC
Filing
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Stipulated PROTECTIVE ORDER re 13 , by Judge Richard P. Matsch on 1/7/2013. (rpmcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 12-cv-02905-RPM
MARIELLA PALMER,
Plaintiff,
v.
ALVAREZ & ASSOCIATES, LLC,
Defendant.
STIPULATED PROTECTIVE ORDER
Upon consideration of the Stipulated Motion for Protective Order filed by Plaintiff
Mariella Palmer and Defendant Alvarez & Associates, LLC, and upon this Court’s finding
that good cause exists for the issuance of a Stipulated Protective Order, IT IS
ORDERED as follows:
1.
This Stipulated Protective Order (“Protective Order”) shall apply to all
information, documents, electronically-stored information, and other materials disclosed,
produced, exchanged, or otherwise disseminated in this case, including without
limitation, documents produced, answers to interrogatories, responses to requests for
admission, deposition testimony, and other information disclosed, produced, or
exchanged pursuant to procedures set forth in the Federal Rules of Civil Procedure.
2.
As used in this Protective Order, “document” is defined as provided in FED.
R. CIV. P. 34(a).
A draft or non-identical copy is a separate document within the
meaning of this term.
3.
As used in this Protective Order, “electronically-stored information” means
any type of information that can be stored electronically, and is intended to be broad
enough to cover all current types of electronically- and computer-based information.
4.
Information, documents, electronically-stored information, and/or other
materials designated as “CONFIDENTIAL” (collectively, “CONFIDENTIAL material” or
“CONFIDENTIAL information”) shall be information, documents, electronically-stored
information, and/or other materials that are confidential and meet the requirements set
forth in 5 U.S.C. § 552(b)(4) and (b)(6), such as: (a) personnel records of current or
former employees of Defendant; (b) any non-public personal information, including
credit or debit numbers, social security numbers, drivers’ license numbers, and bank or
financial account information or password information; (c) trade secrets and commercial
or financial information that is either privileged or confidential; (d) Protected Health
Information; (e) non-public studies or analyses by internal or outside experts or
consultants (excluding testifying experts in this case); and (f) any other material
qualifying for protection under Federal Rule of Civil Procedure 26(c).
5.
CONFIDENTIAL material shall not, without the consent of the party
designating it as CONFIDENTIAL (the “Designating Party”) or further Order of the Court,
be disclosed except that such information may be disclosed, solely for the purposes of
this case to: attorneys actively working on this case; persons regularly employed by or
associated with the attorneys actively working on the case whose assistance is required
by said attorneys in the preparation for trial, at trial, or at other proceedings in this case;
the parties, including representatives of Defendant; expert witnesses and consultants
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retained in connection with this proceeding, if any, to the extent such disclosure is
necessary for preparation, trial, or at other proceedings in this case; the Court and its
employees (“Court Personnel”); stenographic reporters who are engaged in proceedings
necessarily incident to the conduct of this action; or deponents, witnesses, or potential
witnesses; other persons by written agreement of the parties.
6.
CONFIDENTIAL information shall not be disclosed or used for any
purpose except for the preparation, trial, and appeal of this case.
7.
Information, documents, electronically-stored information, and/or other
materials are designated as CONFIDENTIAL by placing or affixing (in a manner that will
not interfere with their legibility) the following or other appropriate notice—
“CONFIDENTIAL”—on every page containing CONFIDENTIAL information. With the
exception of depositions, which are discussed below in Paragraph 9, information,
documents, electronically-stored information, and/or other materials unintentionally
produced without a “CONFIDENTIAL” designation or produced before the Stipulated
Protective Order is issued, may be retroactively designated in the same manner.
8.
Before any information is designated as “CONFIDENTIAL,” counsel of
record for the Designating Party must first review the information and make a
determination, in good faith, that the information, documents, electronically-stored
information, and/or other materials are confidential or otherwise are entitled to protection
pursuant to Paragraph 4 of this Protective Order and Fed. R. Civ. P. 26(c).
9.
Whenever a deposition involves the disclosure of CONFIDENTIAL
information, the deposition or portions thereof shall be designated as CONFIDENTIAL
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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 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.
A party may object to the designation of particular CONFIDENTIAL
information by giving written notice to the party designating the disputed information.
The written notice shall identify the 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 party designating the information as
CONFIDENTIAL to schedule a telephone conference with the Magistrate Judge within
twenty (20) days after the time the notice is received, asking the Magistrate Judge to
assist the parties’ disagreement over and resolution of whether the disputed information
should be subject to the terms of this Protective Order. If such a telephone conference is
scheduled, the disputed information shall be treated as CONFIDENTIAL under the
terms of this Protective Order until the parties resolve their dispute or the Court rules on
a motion. If the Designating Party fails to schedule a telephone conference within the
prescribed time or fails to make good-faith efforts to timely schedule such conference,
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 dispute under this provision, the party designating the information as
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CONFIDENTIAL shall bear the burden of establishing that good cause exists for the
disputed information to be treated as CONFIDENTIAL.
11.
This Protective Order shall not prohibit the use of CONFIDENTIAL
material in depositions; pleadings; motions; at trial; or in post-trial motions or
proceedings, provided that such uses are related to the prosecution or defense of this
case. Notwithstanding that CONFIDENTIAL material may be used, this Stipulated
Protective Order does not waive any right or obligation of any party to file a motion
under D.C.COLO.LCivR. 7.2 to restrict access to all or a portion of papers and
documents filed with the Court.
In addition, the parties agree to comply with
D.C.COLO.LCivR. 7.2 regarding procedures for restricting access to documents that are
marked “CONFIDENTIAL.”
12.
In the event that any CONFIDENTIAL material is used in any Court
proceeding in this action or any appeal from this action, counsel shall confer in good
faith on such procedures as are necessary to protect the confidentiality of any such
material used in the course of any court proceedings including, but not limited to,
requesting the Court to hear counsel with respect to such information in camera. No
party, other than the Designating Party, shall offer CONFIDENTIAL material into
evidence, or otherwise tender CONFIDENTIAL material to the Court in any court
proceeding, without first advising the Court and the Designating Party of its intent to do
so; notification is satisfied by provision of an exhibit list or copy of exhibits to be
proffered. At that point, the Designating Party may seek such protection from the Court
as it deems appropriate, including the exclusions of persons and witnesses from the
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Court and the sealing of the pertinent parts of the Court records.
The use of
CONFIDENTIAL material in any court proceeding shall not prejudice or limit in any way
the rights of any person to petition the Court for such further protective measures as
may be necessary to protect the confidentiality of such material.
13.
The provisions of this Order shall, absent written permission of a
Designating Party or further order of the Court, continue to be binding throughout and
after the termination of this action, including, without limitation, any appeals and any
entry of an order, judgment or decree finally disposing of all litigation. At the conclusion
of this case, unless other arrangements are agreed upon in writing, each document and
all copies thereof that have been designated as CONFIDENTIAL shall be returned to the
party that designated it CONFIDENTIAL, or the parties may elect to destroy
CONFIDENTIAL documents, except that counsel shall be permitted to retain court
filings, deposition transcripts, exhibits, and work product that contain CONFIDENTIAL
information or references thereto; provided that such counsel, and employees of such
counsel, shall not disclose such retained materials to any person or use such retained
materials for any purpose unrelated to this action except pursuant to court order or
written agreement with the Designating party. Where parties agree to destroy
CONFIDENTIAL documents, the destroying party shall provide all parties with an
affidavit confirming the destruction. Notwithstanding the provisions of this paragraph,
the parties, their counsel, and experts for a party shall not be required to return or to
destroy any CONFIDENTIAL information to the extent prohibited by law or to the extent
such CONFIDENTIAL information is (a) stored on media that is generally considered not
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reasonably accessible, such as disaster recovery backup tapes, or (b) only retrievable
through the use of specialized tools or techniques typically used by a forensic expert;
provided that to the extent any CONFIDENTIAL information is not returned or destroyed
due to the foregoing reasons, such CONFIDENTIAL information shall remain subject to
the confidential obligations of this Protective Order.
14.
If any person receiving and in the possession, custody, or control of
CONFIDENTIAL information is served with a subpoena, demand, or any other legal
process seeking discovery material containing CONFIDENTIAL information by one not a
party to this action, the receiving party shall give prompt written notice, by hand or
facsimile transmission within forty-eight (48) hours of its receipt of such subpoena,
demand or legal process, to the Designating Party, assuming the provision of such
notice is not forbidden by law or legal authorities. The Designating Party shall be solely
responsible for seeking any relief or protection from any subpoena demand or legal
process seeking the discovery material and shall also be solely responsible for its costs
and attorneys’ fees in any proceedings relating to such subpoena or legal process.
15.
This Protective Order, the production or receipt of CONFIDENTIAL
material, and/or compliance with the terms of this Order, shall not:
(a)
Prejudice in any way the rights of the parties to object on grounds of
privilege, relevance, or otherwise to the production of documents or other information
they consider not subject to discovery;
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(b)
Prejudice in any way the rights of any party to object to the
authenticity or admissibility into evidence of any document (or portion thereof),
testimony or other evidence subject to this Order;
(c)
Prejudice in any way the rights of a party to petition the Court for a
further protective order relating to any CONFIDENTIAL information the party asserts
requires or should be subject to other or further protection;
(d)
Prevent the parties to this Order from agreeing in writing, with the
consent of the Designating Party, to alter or waive the provisions or protections provided
for in this Order with respect to any particular CONFIDENTIAL information; or
(e)
Prejudice in any way the rights of a party to contest the designation
of any information as “CONFIDENTIAL.”
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.
ORDERED this 7th day of January, 2013.
BY THE COURT:
s/Richard P. Matsch
_____________________________________
THE HONORABLE RICHARD P. MATSCH
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AGREED AND APPROVED:
s/ Elwyn F. Schaefer
s/Darren E. Nadel
Scott F. Reese
795 West Birch Court, Suite 100
Louisville, CO 80027
303-665-4448
ATTORNEYS FOR DEFENDANT
ALVAREZ & ASSOCIATES, LLC
Elwyn F. Schaefer
Sara A. Green
Elwyn F. Schaefer, P.C.
1801 Broadway, Suite 550
Denver, CO 80202
303-825-1961
Darren E. Nadel
Kalisha Salome Chorba
LITTLER MENDELSON, P.C.
1900 Sixteenth Street
Suite 800
Denver, CO 80202
Telephone: 303.629.6200
ATTORNEYS FOR PLAINTIFF MARIELLA
PALMER
Firmwide:117104580.2 071882.1001
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