Rowe v. United Airlines, Inc.

Filing 39

PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 10/17/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Case No. 13-CV-00055-CMA-BNB
MINGYI ROWE,
Plaintiff,
v.
UNITED AIR LINES, INC.,
Defendant.

JOINT STIPULATED PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

Upon stipulation by and between Plaintiff Ming-yi Rowe (“Plaintiff”) and Defendant United
Air Lines, Inc. (“Defendant”), in order to facilitate the discovery process, prevent competitive harm
or disadvantage, and in recognition of the proprietary and sensitive information that may subject to
discovery in this case, the parties, through their respective counsel, move for the entry of a
Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure:
It is hereby ADJUDGED AND ORDERED as follows:
1.

Plaintiff has asked Defendant to produce certain information and documents that

Defendant holds as confidential. In light of this, this Order allows the designation of certain
documents and information which are responsive to the Plaintiff’s discovery requests as Confidential
Information, and thus controlled by the terms of this Order. “Confidential Information” for the
purposes of this Order includes, but is not limited to, information designated as “CONFIDENTIAL”

by the producing party that falls within one or more of the following categories: (a) information
prohibited from disclosure by statute; (b) information that reveals trade secrets; (c) research,
technical, commercial or financial information that the party has maintained as confidential;
(d) medical information concerning any individual; (e) personal identity information (including but
not limited to social security numbers, addresses, dates of birth and phone numbers); (f) financial
information, income tax returns (including attached schedules and forms), W-2 forms and 1099
forms; or (g) personnel or employment records (including but not limited to formal and informal
performance evaluations, documents relating to or referring to discipline, internal investigations, pay
or benefits information, home addresses, telephone numbers or other personal contact information,
and dependent identities) of individuals not party to this action. Information or documents that are
available to the public may not be designated as Confidential Information.
2.

Defendant, prior to producing responsive documents, shall mark “Confidential” on

any document containing information that Defendant designates as Confidential Information. Such
marking may appear anywhere on the face of each page a relevant document, but shall not cover any
of the document’s original characters or symbols.
3.

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 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 in accordance with this
Protective Order.

In connection with a motion filed under this provision, the party

designating the Confidential Information shall bear the burden of establishing that good cause
exists for the disputed information to be treated as Confidential Information.
Plaintiff may object to the designation of a document or other information as Confidential
Information by contacting in writing counsel for the Defendant. If no agreement can be reached
between the parties, Plaintiff may seek a ruling from the Court that the document or other
information should not be treated as Confidential Information. Until the parties reach an agreement
or until the Court enters an order changing the designation, the document and/or information shall
be protected in accordance with this Joint Stipulated Confidentiality Order.
4.

Neither the Plaintiff nor counsel for the Plaintiff nor any person to whom they may

be permitted to disclose any Confidential Information under the terms of this Order, will discuss
with or disclose to any person the Confidential Information produced by the Defendant, or permit
any person to examine or copy that Confidential Information except as provided in Paragraphs 5 and
7 of this Order; nor may Plaintiff, counsel for Plaintiff, or any person to whom they may be
permitted to provide any Confidential Information under the terms of this Order disseminate any
copies of Confidential Information produced by the Defendant to any person (other than employees
of counsel and witnesses, court reporters, or other court officials, in each case during depositions
or at trial), except as provided in Paragraphs 5 and 7 of this Order.
5.

Counsel for the Plaintiff may disclose the Confidential Information produced by the

Defendant subject to the provisions of this Paragraph and Paragraph 9. Any person to whom

Plaintiff or Plaintiff’s counsel is permitted to make disclosures under the provisions of this Order
shall be bound by the confidentiality and nondisclosure provisions of the Order.
a.

Counsel for Plaintiff may disclose the Confidential Information to their respective

employees;
b.

Counsel for Plaintiff may disclose the Confidential Information to persons as may

be subsequently required by this Court;
c.

Counsel for Plaintiff may disclose the Confidential Information to court reporters or

other court officials involved in this litigation, only with respect to those persons’ role in this
litigation;
d.

Counsel for Plaintiff may disclose the Confidential Information as exhibits during

deposition or trial in this litigation to deponents or witnesses. Such deponents or witnesses will not
be permitted to retain copies of Confidential Information that may have been designated as
deposition or trial exhibits, nor may they retain or copy portions of the transcript of their deposition
containing Confidential Information not provided by them;
e.

In the event that Plaintiff or her counsel retain any consulting or other expert in

connection with this action, counsel for that party may, to the extent necessary for this litigation and
only for use in this litigation, disclose to such persons the Confidential Information produced by the
Defendant (and/or provide copies of the Confidential Information) only after such expert is given
a copy of this Order by counsel and agrees in writing that he or she shall not discuss with, disclose
to, or disseminate copies to any person, including but not limited to any competitor of the Defendant,
the Confidential Information or permit anyone to examine or copy the Confidential Information or
use the Confidential Information except as provided in Paragraph 9 of this Order. Such agreements
shall be signed and dated by each such person, as well as notarized, and shall be in the form of the

attached Acknowledgement. Plaintiff’s failure to obtain such written agreement from any consulting
or other expert in advance of disclosure shall be a violation of this Order. Counsel for Plaintiff shall
provide a copy of any such written agreement to the Defendant’s counsel upon the entry of judgment
by this Court or dismissal of this case, which ever may occur first.
6.

Defendant may, after its counsel receives a deposition transcript, promptly designate

pages of the transcript as Confidential Information.
7.

Plaintiff’s (or Plaintiff’s counsel’s) disclosure of Confidential Information produced

by the Defendant to persons other than those named in Paragraph 5 of this Order shall be permitted
only by written permission of the Defendant’s counsel or by further Order of this Court.
8.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2. Except as specified in this Paragraph, if Plaintiff determines that
Confidential Information produced by Defendant should be used or presented as evidence in
connection with any pre-trial motion or proceeding in this case, then Plaintiff’s counsel shall notify
counsel for the Defendant. If an agreement concerning the use of such Confidential Information
cannot be reached between the parties, then counsel for the Plaintiff shall follow the Court’s
procedures for seeking leave to file any such Confidential Information with the Court under seal.

9.

The Confidential Information shall be used by Plaintiff, Plaintiff’s counsel, and any

other person to whom it may be disclosed under the terms of this Order, for the sole purpose of this
action. Plaintiff’s counsel shall remain responsible for all copies of the Confidential Information
disclosed to them. Upon the conclusion of this action, Plaintiff’s counsel shall return the
Confidential Information to counsel for the Defendant.
10.

Confidential Information may be offered at trial in this litigation, subject to

objections as to admissibility or privilege, in accordance with procedures the parties may
subsequently agree upon or procedures this Court may subsequently require.
11.

An inadvertent or unintentional disclosure or failure to designate a document as

Confidential Information does not, standing alone, waive the right to so designate the document;
provided, however, that a failure to serve a timely Notice of Designation of deposition testimony
as required by this Order, even if inadvertent, waives any protection for deposition testimony. If a
party designates a document as Confidential Information after it was initially produced, the receiving
party, on notification of the designation, must make a reasonable effort to assure that the document
is treated in accordance with the provisions of this Order. No party shall be found to have violated
this Order for failing to maintain the confidentiality of material during a time when that material has
not been designated Confidential Information, even where the failure to so designate was inadvertent
and where the material is subsequently designated Confidential Information.
12.

Unless otherwise agreed or ordered, this Order shall remain in force after dismissal

or entry of final judgment not subject to further appeal.
13.

Within sixty-three days after dismissal or entry of final judgment not subject to

further appeal, all Confidential Information and documents marked “CONFIDENTIAL” under this
Order, including copies, shall be destroyed or returned to the producing party unless: (1) the
document has been offered into evidence or filed without restriction as to disclosure; (2) the parties
agree to destruction to the extent practicable in lieu of return; or (3) as to documents bearing the
notations, summations, or other mental impressions of the receiving party, that party elects to
destroy the documents and certifies to the producing party that it has done so. Notwithstanding the
above requirements to return or destroy documents, counsel may retain attorney work product,
including an index that refers or relates to designated Confidential Information so long as that work

product does not duplicate verbatim substantial portions of Confidential Information, and one
complete set of all documents filed with the Court including those filed under seal. Any retained
Confidential Information shall continue to be protected under this Order. An attorney may use his
or her work product in subsequent litigation provided that its use does not disclose or use
Confidential Information.
14.

This Joint Stipulated Confidentiality Order shall not prejudice the rights of the parties

to agree at any time in writing to modify, amend, or supplement this Order concerning the terms and
conditions of disclosure, maintenance, return, or any other provision.
15.

The Court directs compliance with the Clawback Agreement attached hereto as

Exhibit A-1. The Clawback Agreement is incorporated herein and is enforceable as part of this
order. Furthermore, the disclosure of privileged information in this proceeding does not constitute
a waiver of attorney-client privilege in any other state or federal proceeding.
Dated October 17, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

We stipulate to the entry of this order:
FOR PLAINTIFF:

FOR DEFENDANT:

_/s/_Gary D. Abrams (with permission)

/s/ Amanda E. Inskeep___________
Paul E. Bateman
Amanda E. Inskeep
LITTLER MENDELSON, P.C.
A Professional Corporation
321 North Clark Street
Suite 1000
Chicago, IL 60654
Telephone: [phone]

Gary D. Abrams
GARY D. ABRAMS AND ASSOCIATES,
LTD.
55 West Monroe Street
Suite 1200
Chicago, Illinois 60603

Erin Webber
LITTLER MENDELSON, P.C.
1900 Sixteenth Street, Suite 800
Denver, CO 80202
Telephone: [phone]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Case No. 13-CV-00055-CMA-BNB
MINGYI ROWE,
Plaintiff,
v.
UNITED AIR LINES, INC.,
Defendant.
I, ______________________, hereby declare that I have read the foregoing Joint Stipulated
Protective Order of this Court and agree to be bound by the terms of the same. I further
understand and acknowledge that, by my execution of this Acknowledgment, I agree that I am
subject to the jurisdiction of this Court for purposes of enforcement of the terms of the foregoing
Joint Stipulated Protective Order and I consent to the same.
_________________________
Signature
Date: ____________________
COUNTY OF ___________________
STATE OF _____________________

)
) TO WIT
)

Subscribed and sworn before me, a notary public in and for the above jurisdiction, this _____
day of __________________ 20___.

___________________________
Notary Public
My commission expires: ___________________.
EXHIBIT A-1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Case No. 13-CV-00055-CMA-BNB
MINGYI ROWE,
Plaintiff,
v.
UNITED AIR LINES, INC.,
Defendant.

NON-WAIVER RULE 502 “CLAWBACK” AGREEMENT
THIS NON-WAIVER "CLAWBACK" AGREEMENT (this “Agreement”) is made and
entered into by and among Ming-yi Rowe ( “Plaintiff”), and United Air Lines, Inc. (“Defendant”
or “United”).
WHEREAS, the Parties have agreed to produce all documents deemed discoverable under
the Federal Rules of Civil Procedure, that are responsive to each other’s discovery requests and not
privileged or otherwise exempted from discovery under the Federal Rules of Evidence, Federal
Rules of Civil Procedure, or other applicable source of law,
WHEREAS, some documents produced in this matter may contain attorney-client privileged
communications or other information protected as “privileged” and not subject to discovery under
the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or other applicable source of
law (“Privileged Material”);
WHEREAS, some of the produced documents in this matter may contain protected attorney
work-product material prepared or compiled in anticipation of litigation and not subject to discovery

under the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or other applicable
source of law (“Work-Product Material”);
WHEREAS, the Parties acknowledge that, despite each Party’s best efforts to conduct a
thorough pre-production review of all documents, some Work Product Material and Privileged
Material (together "Protected Material”) may be inadvertently disclosed to the other Party during
the course of this litigation;
WHEREAS, the parties wish to avail themselves of the full protection available under
Federal Rules of Procedure and Evidence, including Federal Rule of Civil Procedure 26(b)(5)(B),
and Rule 502, Federal Rules of Evidence.
WHEREAS, the undersigned Parties desire to establish a mechanism to avoid waiver of
privilege or any other applicable protective evidentiary doctrine as a result of the inadvertent
disclosure of Protected Material, and keep the disclosed Protected Material confidential to the
maximum extent possible.
NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by the Parties that
the following clauses of this Agreement shall govern the disclosure of Protected Material in this
action.
NON-WAIVER OF PRIVILEGE OR OTHER PROTECTIVE DOCTRINE
BY INADVERTENT DISCLOSURE
1. The inadvertent disclosure of any document which is subject to a legitimate claim that
the document should have been withheld from disclosure as Protected Material shall NOT waive any
privilege or other applicable protective doctrine for document or for the subject matter of the
inadvertently disclosed information, if the Producing Party, upon becoming aware of the disclosure,
promptly requests its return. The inadvertent disclosure shall also not estop that party or the privilege

holder from designating the information or document as attorney-client privileged or subject to the
work product doctrine or any level of confidentiality at a later date.
2. In order to be entitled to this protection, there shall be no requirement for the producing
party to prove that it took reasonable steps to prevent disclosure, including, without limitation, proof
that its efforts to review for privileged or confidential information or documents were reasonable.
3. Except in the event that the Requesting Party disputes the claim, any document that the
Producing Party deems to contain inadvertently disclosed Protected Material shall be, upon written
request, promptly returned to the Producing Party or destroyed at the Producing Party’s option. This
includes all copies, electronic or otherwise, of any such information. In the event that the Producing
Party requests destruction, the Requesting Party shall provide written certification of compliance
within thirty (30) days of such written request.
4. In the event that the Requesting Party disputes the Producing Party’s claim as to the
protected nature of the inadvertently disclosed material, a single set of copies may be sequestered
and retained by and under the control of Requesting Party for the sole purpose of seeking court
determination of the issue pursuant to Federal Rule of Civil Procedure 26(b)(5)(B). The Producing
Party may promptly present the information to the court under seal for a determination of the claim.
If the Requesting Party disclosed the information before being notified, it must take reasonable steps
to retrieve it. The Producing Party must preserve the information until the claim is resolved.
5. Any such Protected Material inadvertently disclosed by the Producing Party to the
Requesting Party pursuant to this Agreement, shall be and remain the property of the Producing
Party.

6. The Parties wish to avail themselves of the full protection provided under Rule 502,
Federal Rules of Evidence, and this Agreement and hereby stipulate to the entry of a court order
under Rule 502(d) and (e).
7. Any Protected Material disclosed in this litigation is to be considered confidential and
proprietary to the Producing Party and the Requesting Party shall hold the same in confidence and
shall not use or disclose the Protected Material except as specified under this Agreement, the Agreed
Protective Order, or specific orders of the court pertaining to the Protected Material. The Parties
shall limit the disclosure of all Protected Material only to those persons with a need to know the
information for purposes of supporting their position under this Agreement pursuant to the Agreed
Protective Order. Moreover, the Protected Material will not be disclosed, published or otherwise
revealed to any other Party in this litigation except with the specific prior written authorization of
the Producing Party.
8. If Protected Material is disclosed through inadvertence or otherwise to any person not
authorized under this Agreement or the Agreed Protective Order, the Party causing such disclosure
shall inform the person receiving the Protected Material that the information is covered by this
Agreement and/or the Agreed Protective Order, make its best efforts to retrieve the Protected
Material, and promptly inform the Producing Party of the disclosure.
GENERAL PROVISIONS
9. This Agreement terminates and supersedes all prior understandings or agreements on the
subject matter hereof, except for the Agreed Protective Order.
11. Upon signature by the Parties’ attorneys below, this Agreement shall be binding on the
Parties hereto effective upon execution regardless of whether or when the court enters an Order
approving and directing compliance therewith.

12. Nothing herein shall prevent any Party from applying to the court for a modification of
this Agreement should the moving Party believe the Agreement, as originally agreed upon, is
hampering its efforts to prepare for trial; or from applying to the court for further or additional
protective Agreements; or from an Agreement between the Parties to any modification of this
Agreement, subject to the approval of the court.
13. This Agreement shall survive the final termination of this case regarding any retained
documents or contents thereof.
AGREED TO:

s/ Amanda E. Inskeep
s/ Gary D. Abrams (with permission)______
Paul E. Bateman
Amanda E. Inskeep
LITTLER MENDELSON, P.C.
A Professional Corporation
321 North Clark Street
Suite 1000
Chicago, IL 60654
Telephone: [phone]
Erin Webber
LITTLER MENDELSON, P.C.
1900 Sixteenth Street, Suite 800
Denver, CO 80202
Telephone: [phone]
ATTORNEYS FOR DEFENDANT
UNITED AIR LINES, INC.

Gary D. Abrams
GARY D. ABRAMS AND ASSOCIATES, LTD.
55 West Monroe Street
Suite 1200
Chicago, Illinois 60603
ATTORNEY FOR PLAINTIFF
MING-YI ROWE