Gocha v. National Railroad Passenger Corporation

Filing 39

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 5/17/2013. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03143-RPM-CBS
RICHARD L. GOCHA.
Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION (d/b/a AMTRAK),
Defendant.

STIPULATED PROTECTIVE ORDER

Upon the parties’ Stipulated Motion for Protective Order (Dkt. # 36 filed 5/13/2013),
IT IS ORDERED:
1.

In this action, at least one of the Parties has sought and/or is seeking Confidential

Information (as defined in Paragraph 2). The Parties also anticipate seeking additional
Confidential Information during discovery and expect that there will be questioning concerning
such information in the course of depositions. The Parties agree and assert that the disclosure of
confidential information outside the scope of this litigation could result in significant injury to
one or more of the Parties’ business or privacy interests, and/or the privacy interests of National
Railroad Passenger Corporation’s (“Amtrak’s”) current or former employees. The Parties have
entered into this Protective Order and request that the Court enter this Protective Order for the
purpose of preventing the disclosure and use of Confidential Information except as set forth
herein.

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2.

Confidential Information means any document, file, portions of files, transcribed

testimony or response to a discovery request (including any extract, abstract, chart, summary or
note) containing information that could be construed as confidential, proprietary and/or private in
nature and entitled to protection from disclosure pursuant to Fed. R. Civ. P. 26(c) or by law.
Confidential Information may include the following categories of documents and information
among others: (a) information that reveals trade secrets; (b) research, technical, commercial or
financial information that the party has maintained as confidential; (c) medical information
concerning any individual; (d) personal identity information, such as social security numbers; or
(e) personnel or employment records of a person who is not a party to the case. Information or
documents that are available to the public may not be designated as Confidential Information.
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 or identifying in the response that it is subject to this Protective Order; and
c.

With respect to transcribed testimony, by either stating on the record

during the deposition/hearing that the testimony is “Confidential” and subject to the protective
order or giving written notice to opposing counsel designating such portions as “Confidential” no
later than ten calendar days after receipt of the transcribed testimony.

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d.

With respect to electronically stored information, by labeling each

document or file produced as “Confidential” as a component of their Bates number designations.
4.

Any information designated by a Party as Confidential Information subject to this

Protective Order will first be reviewed by an attorney for the Party who will confirm that the
designation as confidential is based upon a good faith belief that the information is confidential
or otherwise entitled to protection.
5.

Access to Confidential Information so designated as Confidential shall be limited

to the Parties, as well as to the Court, any jury, or other trier or determiner of fact, mediators who
have been mutually agreed upon by the Parties, counsel for the Parties (including paralegal,
clerical, and secretarial staff employed by such counsel), court reporters employed in this action,
and to the “qualified persons” defined as follows:
a.

experts or consultants (together with their clerical staff) retained by such
counsel to assist in the prosecution, defense, or settlement of this action;

b.

vendors, such as copy and discovery database vendors, retained by such
counsel to assist in the prosecution, defense, or settlement of this action;

c.

witnesses at any deposition or other proceeding in this action;

d.

any other person as to whom the Parties agree in writing.

The individuals and entities described in sub-parts (a) – (d), above, shall have access to
Confidential Information only after being informed of the provisions of this Protective Order and
only after agreeing in writing to be bound by its terms by signing an agreement in the form of
“Attachment A” to this Protective Order.

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6.

Individuals and entities permitted access under Paragraph 5, above, to

Confidential Information, or parts thereof, designated Confidential, are hereby ordered: (i) not to
show, convey or reproduce any documents so designated, or parts thereof, or copies thereof, or
any matter contained therein, or any extracts or summaries thereof, to any individual or to any
entity who would not otherwise have access to said information or documents under the
provisions of this Protective Order unless authorized to do so by Court order; and (ii) not to
otherwise use Confidential Information for any purpose other than the prosecution, defense,
discovery, mediation or settlement of this action.
7.

If a Party or other person bound by this Order is served with a subpoena or order

in other litigation that would compel disclosure of any Confidential Information, they must
notify, in writing, the Party that designated the Confidential Information within three business
days of receiving the subpoena or order. The notification must include a copy of the subpoena or
order. The person or entity served with a subpoena or order must also immediately inform in
writing the party who caused the subpoena or order to issue that some or all of the material
covered is subject to this Order. The Party who designated the document as Confidential
Information shall bear the burden and expense of seeking protection, and nothing in this Order
should be construed as authorizing or encouraging a party to disobey a lawful directive from
another court.
8.

In the event it is necessary for the Parties to file Confidential Information with the

Court in connection with any proceeding or motion, the Confidential Information shall be filed in
accordance with the requirements of D.C.COLO.LCivR 7.2. Submission of any Confidential

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Information to the Court under seal shall not otherwise relieve the Parties or their counsel of their
obligations as described in this Protective Order.
9.

If a deponent refuses to agree to the nondisclosure provisions of this Protective

Order, disclosure of the Confidential Information during the deposition shall not constitute a
waiver of confidentiality. Under such circumstances the witnesses shall have the opportunity to
sign the original deposition transcript in the presence of the court reporter and no copy of the
transcript or exhibits shall be given to the deponent.
10.

The production of information subject to any privilege or work product immunity

inadvertently, unintentionally, or without the consent of the Party to whom the privilege or
immunity applies or the inadvertent failure to designate information as Confidential, will not be
deemed to constitute a waiver of such privilege, immunity, rights, or any other privilege,
immunity, or rights that would otherwise attach to such information. Any Party receiving
inadvertently produced information will forthwith, upon request, return the original and all
copies to the Party producing such information.
11.

The Parties may designate any portion of a deposition or other discovery response

as Confidential if the subject matter is deemed in good faith to be confidential or proprietary,
including as described in Paragraph 2, above. Materials so designated shall be subject to the
same confidentiality and notice requirements as documents designated pursuant to the above
paragraphs and shall be filed under seal. The entire deposition or other discovery response may
be filed under seal for the convenience of the Parties, but only the designated portions shall be
deemed subject to the above confidentiality and notice requirements.

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12.

Nothing in this Protective Order shall be construed as limiting the Parties’ rights

to object to the disclosure of Confidential Information at the trial in this matter, or in discovery
or litigation of this matter.
13.

This Protective Order shall not be construed as a waiver of any right to object to

the authenticity, admissibility or confidentiality of any evidence at trial nor shall it be construed
as a waiver of any right to object to the furnishing of information in response to discovery.
14.

This Protective Order is made without prejudice to the Parties’ rights to designate

as Confidential any additional documents or information that may be requested in the future.
However, any such document or information will be so designated as Confidential.
15.

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 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 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 party designating the information as confidential shall bear the burden of
establishing that good cause exists for the disputed information to be treated as confidential.

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16.

In the event any person or Party shall violate or threaten to violate any term of this

Protective Order, the Parties agree that either Party may immediately apply to obtain injunctive
relief against any such person or Party violating or threatening to violate any terms of this
Protective Order, and in the event either Party shall do so, the responding person or Party subject
to the provisions of this Protective Order shall not employ as a defense thereto the claim that
either Party possesses an adequate remedy at law.
17.

The terms of this Protective Order shall survive the final termination of this action

and shall be binding on the Parties thereafter.
18.

The termination of this action shall not relieve counsel or other persons obligated

hereunder from their responsibility to maintain the confidentiality of Confidential Information
under this Protective Order, and the Court shall retain continuing jurisdiction to enforce the
terms of this Protective Order.
19.

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 or dispose of it in a confidential manner.
20.

Nothing in this Protective Order shall preclude any Party from filing a motion

seeking further or different protection from the Court under Rule 26 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.
21.

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.
This Protective Order shall be binding upon any future party to this litigation.

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August 25, 2012
17 May 2013
Dated: _____________________

BY THE COURT:

s/ ____________________________
United States Judge
Craig B. Shaffer 
United States Magistrate Judge 

DATED: this 13th day of May, 2013

Respectfully Submitted,

ROBINSON & ASSOCIATES LAW
OFFICES LLC

MORGAN, LEWIS & BOCKIUS LLP

By: _Jennifer C. Robinson_______________

By: __Ross H. Friedman________________

Jennifer C. Robinson
Robinson & Associates Law Offices, LLC
7900 E. Union Avenue, #1100
Denver, CO 80237
Tel: [phone]
jrobinson@raemploymentgroup

Ross H. Friedman
Emily A. Glunz
MORGAN, LEWIS & BOCKIUS LLP
77 W. Wacker Drive, 5th Floor
Chicago, IL 60601
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Attorneys for Richard L. Gocha

Attorneys for National Railroad Passenger
Corporation

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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03143-RPM-CBS
RICHARD L. GOCHA.
Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION (d/b/a AMTRAK),
Defendant.
____________________________________________________________________________
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

______________________, swears or affirms under penalty of perjury:
1.
I have read the Protective Order in Gocha v. National Railroad Passenger
Corporation and understand the terms thereof.
2.
I promise that I have not and will not divulge or undertake to divulge to any
person or recording devise 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.
3.
For the purpose of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
4.

I will abide by the terms of the Stipulation and Protective Order.
Signature: ____________________________________
Print Name: ____________________________________
Address: ____________________________________
____________________________________
____________________________________
Telephone: (____)_______________________________

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