Rhode v. Regis University

Filing 15

MINUTE ORDER granting 13 Stipulated Motion for Entry of Protective Order by Magistrate Judge Michael E. Hegarty on 1/25/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02933-CMA-MEH
JAMES M. RHODE,
Plaintiff,
v.
REGIS UNIVERSITY,
Defendant.

PROTECTIVE ORDER

Michael E. Hegarty, United States Magistrate Judge.
This matter comes before the Court on the parties' Stipulated Motion for Entry of Protective
Order. The Court has reviewed that Motion and finds it meritorious and acceptable. Therefore, IT
IS ORDERED:
1.

DEFINITIONS

(a)

"Confidential Information" means and includes any information, testimony, document or

thing that contains confidential or proprietary information, including, but not limited to, medical
records or other "protected health information" within the meaning of the Health Insurance
Portability and Accountability Act of 1996 ("HIPAA") and its implementing regulations;
information about Defendant's students, vendors, employees, applicants for employment, and
operations; and financial information, including, but not limited to, tax returns, financial statements,
bank records and billing records, that was not previously available to the opposing party and is
produced in this action. Confidential Information may include, without limitation, information and
documents produced pursuant to Fed. R. Civ. P. 26; testimony adduced at depositions upon oral
examination pursuant to Fed. R. Civ. P. 30; written responses to interrogatories pursuant to Fed. R.

Civ. P. 33; documents produced pursuant to Fed. R. Civ. P. 34; answers to requests for admission
pursuant to Fed. R. Civ. P. 36; and testimony, documents and things provided pursuant to Fed. R.
Civ. P. 45. Confidential Information also may include confidential information owned by a third
party, so long as such information otherwise qualifies as Confidential Information hereunder.
(b)

"Providing Party" means any party to this action or any third party, expert or consultant who

produces or provides any information, testimony, document or thing pursuant to formal or informal
discovery in this action.
(c)

"Receiving Party" means any party to this action or any third party, expert or consultant who

receives any information, testimony, document or thing in the course of formal or informal discovery
in this action.
(d)

"Counsel" means a party's attorney of record if the party is represented, or a party itself if

the party is unrepresented.
2.

DESIGNATION OF CONFIDENTIAL INFORMATION

(a)

Documents and things. Each Providing Party shall label, mark or otherwise identify, in

writing, information, documents and things that their counsel considers in good faith to contain
Confidential Information or to be otherwise entitled to protection under Fed. R. Civ. P. 26(c), or
other applicable law, with the legend "Confidential - Subject to Protective Order." Before
designating any information, documents or things as Confidential Information, a party's counsel
must review the information and determine that the designation is based on the counsel's good faith
belief that the information is confidential or otherwise entitled to protection under Fed. R. Civ. P.
26(c)(7).
(b)

Depositions. During or after depositions upon oral examination, if counsel for any party

believes that a question or answer of any deponent (whether party, third-party, expert or otherwise)

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constitutes Confidential Information, counsel shall request that the specific pages that include such
Confidential Information be included in a separate sealed portion of the transcript. The reporter
shall include on the cover page of each sealed portion the legend: "This transcript portion contains
information subject to a Protective Order and shall be used only in accordance therewith." When
testimony designated as Confidential Information is being given during a deposition, all persons
except those who are entitled to receive such Confidential Information under the terms of this Order
shall be excluded from the deposition room.
(c)

Inadvertent failure to designate. Any Providing Party who inadvertently fails to designate

any information, testimony, document or thing as Confidential Information may correct such failure
by giving written notice of the same to the Receiving Parties. Upon such written notification, the
corrected materials shall only be deemed Confidential Information prospectively. Substitute copies
of the corrected information, testimony, document or thing, appropriately marked "Confidential Subject to Protective Order," shall be given to all Receiving Parties as soon as they become
available. Within ten (10) days of receipt of the substitute copies, the Receiving Parties shall either
return the previously unmarked items to the Providing Party, or destroy such items and notify
counsel for the Providing Party of such destruction.
3.

DESIGNATED MATERIALS PRESUMED CONFIDENTIAL.

All information, testimony, documents and things designated by a Providing Party as Confidential
Information shall be treated in all respects as though they in fact constitute or contain confidential
information, unless and until the Court rules otherwise or the Providing Party agrees otherwise.
4.

RESTRICTIONS ON DISCLOSURE AND ACCESS.

(a)

Except as provided below, all Receiving Parties with respect to any particular Confidential

Information shall take reasonable steps to ensure that no persons obtain such Confidential

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Information and that no persons have access to such Confidential Information, except:
(i)

The Receiving Party, in the case of Plaintiff, and employees of the Receiving Party, in the

case of Defendant, who have a specific need to know the Confidential Information in order to
conduct this action;
(ii)

The attorneys of record for the Receiving Party, and all other attorneys and support personnel

in the law firms of record in this action who must have access to the Confidential Information in
connection with this action;
(iii)

The Court and those employed by the Court, in which event such information shall be filed

under seal pursuant to D.C.Colo.LCivR 7.2 (and kept under seal until further order of the Court);
(iv)

Court reporters employed by any party in this action; and

(v)

Independent experts, consultants or translators for the parties, including their support

personnel, whose advice and consultation are being used or will be used by such Receiving Party
in connection with this action.
(b)

In addition to the above, a Receiving Party may disclose Confidential Information to a

non-party if the non-party is referred to or referenced in the Confidential Information, or counsel in
good faith believes the non-party may have knowledge of relevant facts, or of facts that may lead
to the discovery of admissible evidence, relating to the Confidential Information, or if the non-party
will be a witness at trial in this matter and disclosure of Confidential Information is necessary for
preparation and completeness of that person's testimony.
(c)

Counsel for a party disclosing or allowing access to Confidential Information under this

paragraph shall advise the person receiving such Confidential Information (other than the persons
identified in Paragraph 4(a)(iii)) of the terms of this Protective Order. Before disclosing any
Confidential Information to any person identified in Paragraph 4(a)(iv) or (v), or Paragraph 4(b),

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counsel for the party disclosing or allowing access to such Confidential Information shall, in
addition to advising the person receiving such Confidential Information of the terms of this
Protective Order, provide the person with a copy of this Protective Order and shall obtain the
person's written acknowledgement, in the form attached hereto as Exhibit A, to abide by the terms
of this Protective Order.
(d)

This Protective Order shall not be deemed to limit or restrict any Providing Party's disclosure

or use of its own Confidential Information.
5.

RESTRICTIONS ON USE.

The parties have stipulated that every person who obtains Confidential Information is prohibited
from using or disclosing Confidential Information for any purpose whatsoever, except as necessary
to assist in the conduct of this litigation.
6.

RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION AT

CONCLUSION OF LITIGATION.
The parties agree and stipulate that they will either return to the Providing Party or destroy any and
all Confidential Information upon the conclusion of this litigation, including any paper or electronic
copies of such documents.
7.

OBJECTIONS PRESERVED.

Nothing in this Protective Order shall require the disclosure of information, testimony, documents
or things that are otherwise not subject to discovery, are privileged or constitute attorney work
product. Nothing in this Protective Order shall prejudice any objections that any party might have
regarding the production of any information, testimony, documents or things. Nothing in this
Protective Order shall be construed as an agreement that any Confidential Information shall be
excluded from evidence in this action.

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8.

MECHANISM FOR CHALLENGING DESIGNATION.

Any 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 Information to file an appropriate motion requesting that
the Court determine whether the disputed information should be subject to the terms of this
Protective Order. If such a motion is timely filed, the disputed information shall be treated as
Confidential Information 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 Information and shall not thereafter be treated
as Confidential Information in accordance with this Protective Order. In connection with a motion
filed under this provision, the party designating the information as Confidential Information shall
bear the burden of establishing that good cause exists for the disputed information to be treated as
Confidential Information. In addition, any party, and any third party with a legally cognizable
interest in this Protective Order, may apply to the Court at any time for a modification of this
Protective Order for good cause shown. Any person may move the Court for additional protective
orders with respect to any information, testimony, document or thing, in accordance with
Fed.R.Civ.P. 26.
9.

PARTIES' CLAIMS AND DEFENSES.

Neither a party's designation of documents or testimony as confidential under this Protective Order
nor a party's failure to make or object to such designation shall be admissible in evidence, as a party
admission or otherwise, to prove any fact relevant to any claim or defense asserted in this action.

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10.

SURVIVAL.

The restrictions on use of Confidential Information set forth in this Protective Order shall survive
the conclusion of this litigation.
Dated and entered at Denver, Colorado, this 25th day of January, 2013.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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