Ironstone Condominiums Association at Stroh Ranch Owners Association, Inc. v. Peerless Indemnity Insurance Company
Filing
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PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 8/9/13. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12cv3160-CMA-KMT
IRONSTONE CONDOMINIUMS ASSOCIATION AT
STROH RANCH OWNERS ASSOCIATION, INC.,
a/k/a IRONSTONE CONDOMINIUM ASSOCIATION
AT STROH RANCH, a Colorado nonprofit corporation,
Plaintiff,
v.
PEERLESS INDEMNITY INSURANCE COMPANY,
an Illinois corporation,
Defendant.
STIPULATED PROTECTIVE ORDER
Plaintiff Ironstone Condominiums Association at Stroh Ranch Owners Association, Inc.
a/k/a Ironstone Condominium Association at Stroh Ranch (“Plaintiff”) and Defendant Peerless
Indemnity Insurance Company ("Defendant" or "Peerless"), by and through their undersigned
counsel of record, and pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, hereby
enter into this Stipulated Protective Order with respect to documents disclosed by Plaintiff or
Defendant and bates labeled as ______, as follows:
I.
Confidential Information.
(a)
As used in this Stipulated Protective Order, "CONFIDENTIAL" or
"CONFIDENTIAL INFORMATION" shall mean proprietary or other
confidential information, documents, or things, that Plaintiff or Defendant (the
"Designating Party") furnishes in the course of this litigation and in good faith
designates as CONFIDENTIAL INFORMATION pursuant to Sections 1(b) to (c)
below. “CONFIDENTIAL INFORMATION” does not include any and all
disclosed or discoverable information as it pertains to the 2006 claim made by
Plaintiff; any and all disclosed or discoverable documents from third parties
including, but not limited to, communications to or from Bill McLoughlin and/or
Public Adjusters of Colorado; and any and all repair estimates, invoices, and/or
bids or other information relating to the repair and/or replacement of certain
components to the subject property. This agreement does not waive any properly
asserted attorney client privilege. To the extent that a document contains
confidential and non-confidential information, if that document is disclosed to a
third party under this agreement, the party that disclosed the document may
request that confidential information be redacted. If there is a dispute, the dispute
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will be resolved pursuant to Section VI of this agreement. The party who
discloses the document has the burden of redacting the document.
(b)
A party may designate any proprietary documents produced in response to
Plaintiff’s interrogatories or requests or production of documents as
CONFIDENTIAL INFORMATION by stamping the word "CONFIDENTIAL"
upon the first page of the document, taking care to avoid obscuring any text,
before providing it to the opposing party. Notwithstanding the foregoing,
Plaintiff has already provided documents from Plaintiff during the interim of
negotiating this agreement that may be considered confidential Plaintiff may
designate any previously disclosed documents as confidential. Any such
designations for previously disclosed documents shall be made by August 15,
2013. Defendant is not agreeing that any such documents are confidential and,
just like all other such designations hereunder, the designations may be
challenged. Information marked CONFIDENTIAL shall not be utilized or
disclosed by a receiving party (the "Recipient Party"), its agents, or its employees,
except in accordance with the terms of this Stipulated Protective Order.
(c)
In the case of CONFIDENTIAL INFORMATION in a non-paper medium, e.g.,
video or audio tape, computer discs, CD-ROMs, DVDs, etc., a party may
designate all information therein as CONFIDENTIAL by affixing a legend stating
the same to the outside of the medium or container.
(d)
Inadvertent production of any information, document, transcript, or thing without
a designation of CONFIDENTIAL shall not, in and of itself, be deemed a waiver
of any party's claim of confidentiality as to such matter. If any information,
document, transcript, or thing claimed to be CONFIDENTIAL is inadvertently
produced without that designation, the producing party shall notify the Recipient
Party within a reasonable time. All parties shall use their best efforts to protect
the confidentiality of that information. Upon receipt of notice that
CONFIDENTIAL INFORMATION was produced inadvertently without an
appropriate initial designation of confidentiality, the Recipient Party shall
thereafter (1) treat such information as CONFIDENTIAL INFORMATION
pursuant to the terms of this Stipulated Protective Order, and (2) shall use its best
efforts to retrieve such materials or correct the effects of any use or disclosure of
such CONFIDENTIAL INFORMATION based upon the earlier mistaken view
that such materials were not confidential.
(e)
CONFIDENTIAL INFORMATION shall not be disclosed to any persons other
than:
i.
the attorneys for the Recipient Party in this litigation and paralegal
and clerical staff (whether employees or independent contractors)
who are assisting in the litigation;
ii.
officers, directors and/or employees of the Recipient Party who
have direct responsibility for assisting such counsel in the
preparation and trial of the action;
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iii.
court reporters, court officials, and the jury involved in this
litigation;
iv.
experts, consultants and investigators and their staff who are
retained by a party for purposes relating to this litigation and who
have executed a Confidentiality Agreement (attached herewith as
Exhibit A) in conformity with this Stipulated Protective Order; and
v.
any other non-party witnesses or deponents who have executed a
Confidentiality Agreement in (attached herewith as Exhibit A),
conformity with this Stipulated Protective Order, or deponents who
agree on the record to maintain the confidentiality of the material.
vi.
CONFIDENTIAL INFORMATION received by any of the
persons in the categories listed above shall be used only for
purposes of this litigation and for no other purposes, including for
any other litigation, whether on the same issues in this case or
others, or for any business or personal purpose. Nothing in this
Stipulated Protective Order shall prevent the Designating Party
from any use of its own confidential documents.
vii.
CONFIDENTIAL INFORMATION may not be disclosed to the
persons described in category (iv) and (v), above, unless the
disclosing party determines in good faith that the disclosure is
necessary for the purpose of developing testimony of such witness
or deponent. CONFIDENTIAL INFORMATION provided to a
receiving party shall be securely maintained in the offices of that
party's outside counsel. Any recipient of CONFIDENTIAL
INFORMATION shall maintain such information in a secure and
safe manner are carefully delineated and designated confidential,
and the recipient shall exercise due and proper care with respect to
the storage, custody, access and use of all such information. In
addition, any summary or copy of CONFIDENTIAL
INFORMATION shall be subject to the terms of this
Confidentiality Order to the same extent as the information or
document of which summary or copy is made, and must be clearly
labeled as containing CONFIDENTIAL INFORMATION.
(f)
CONFIDENTIAL INFORMATION may be copied or reproduced only to the
extent reasonably necessary for the conduct of this lawsuit. All such copies or
reproductions shall be subject to the terms of this Stipulated Protective Order.
(g)
If the Court orders that access to or dissemination of CONFIDENTIAL
INFORMATION shall be made to persons not included in paragraph 1(e) above,
such CONFIDENTIAL INFORMATION shall only be accessible to, or
disseminated to, such persons after they have executed a Confidentiality
Agreement (attached herewith as Exhibit A) in conformity with this Stipulated
Protective Order, unless the Court rules otherwise.
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II.
No Waiver.
The disclosure of CONFIDENTIAL INFORMATION pursuant to discovery or the
procedures set froth in this Stipulated Protective Order shall not constitute a waiver of
any trade secret or any intellectual property, proprietary, privilege or other rights to or in
such information.
III.
Use in Depositions.
Material designated as CONFIDENTIAL may be used at a deposition if: (a) the counsel
for the party using such material advises the witness of the terms of this Stipulated
Protective Order and the witness agrees on the record to maintain the confidentiality of
the material; or (b) the witness executes a Confidentiality Agreement (attached herewith
as Exhibit A) in conformity with this Stipulated Protective Order. If the witness declines
to execute the Confidentiality Agreement or otherwise maintain the confidentiality of the
material, the party seeking to use such CONFIDENTIAL INFORMATION must obtain
leave from the Court before disclosing the material to the witness.
IV.
Use in Briefs and as Exhibits
Any discovery materials designated under this Stipulated Protective Order as
CONFIDENTIAL which are filed with the court for any purpose shall be filed in
conformance with the Federal Rules of Civil Procedure.
V.
Application of the Stipulated Protective Order.
(a)
(b)
VI.
This Stipulated Protective Order shall apply to all pleadings, deposition
transcripts, discovery papers, briefs, summaries, notes, abstracts, or other
documents or information that comprise, embody, summarize, discuss, or quote
from any documents or information, in any form, produced in this litigation that
contain CONFIDENTIAL INFORMATION.
Nothing in this Stipulated Protective Order shall affect the admissibility into
evidence of CONFIDENTIAL INFORMATION, or abridge the rights of any
party to seek judicial review or to pursue other appropriate judicial action with
respect to any ruling made by the Court concerning the status of
CONFIDENTIAL INFORMATION. Agreement to the terms of this Stipulated
Protective Order is without prejudice to a party's right to request that the Court
rescind, modify, alter, or amend this Order with respect to specific documents or
information.
Confidentiality Challenge.
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 object 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 seeking the designation of the information as
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CONFIDENTIAL to file an appropriate motion requesting that the Court determine
whether the disputed information should be subject to the terms of this Stipulated
Protective Order. The disputed information shall be treated as CONFIDENTIAL under
the terms of this Stipulated Protective Order until the Court rules on the motion.
VII.
Confidential Information at Trial.
The designation of any information, documents, or things as CONFIDENTIAL pursuant
to this Stipulated Protective Order shall not, in and of itself, raise any inference as to the
confidentiality of any information, documents, exhibits, or things marked for
identification purposes or introduced into evidence at the trial of this litigation. Nothing
in this Stipulated Protective Order, however, shall preclude any party from seeking
confidential treatment from the Court with respect to such information, documents,
exhibits, or things or from raising any available objections, including without limitation,
objections concerning admissibility, materiality, and privilege. The parties to this
Stipulated Protective Order expressly reserve at this time a determination as to the
manner in which CONFIDENTIAL INFORMATION may be used in an evidentiary
hearing or at trial. Special procedures or in camera treatment, if any, shall be determined
in the future.
VIII. Specific Disclosure.
By joint agreement, the parties, through their counsel, may agree to any specific
disclosure of CONFIDENTIAL INFORMATION in a particular circumstance without
prejudice to the continued application of this Stipulated Protective Order regarding other
uses of that CONFIDENTIAL INFORMATION.
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 a sealed envelope with the following statement typed
conspicuously thereon:
Confidential – Subject to Protective Order. This document is filed under seal. Unless
otherwise ordered by the Court, it shall not be reproduced for, nor shown to, persons
other than those entitled to have access to such documents under the Stipulated Protective
Order entered on _________, in Stroh Ranch Owners Association, Inc. a/k/a Ironstone
Condominium Association at Stroh Ranch v. Peerless Indemnity Insurance Company,
Civil Action No. 2012CV3160-CMA-KMT, in the United States District Court for the
District of Colorado.
IX.
Modification.
This Stipulated Protective Order may be modified only by Order of the Court.
X.
Return or Destruction of Confidential Information.
After final disposition of this case, whether by judgment, including appeals, settlement,
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or otherwise, counsel of record for each of the parties shall either return or destroy all
CONFIDENTIAL INFORMATION the parties produced during the case, and all copies
of such CONFIDENTIAL INFORMATION.
Dated this 6th day of August, 2013.
ANDERSON & HUGHES P.C.
ROTHGERBER JOHNSON & LYONS LLP
s/M. Stuart Anderson
M. Stuart Anderson, Esq.
7385 W. Highway 50
Salida, CO 81201
stuart@anderson-hugheslaw.com
Attorney for Plaintiff
s/Troy R. Olsen
Brian J. Spano, Esq.
Troy R. Olsen, Esq.
Lyndsay K. Arundel, Esq.
1200 17th Street, Suite 3000
Denver, CO 80202
bspano@rothgerber.com
tolsen@rothergerber.com
larundel@rothgerber.com
Attorneys for Defendant
Peerless Indemnity Insurance Company
SO ORDERED BY THE COURT:
________________________
United States Magistrate Judge
Date: August 9, 2013
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