Fisher Sand and Gravel Co. v. Kirkland Construction, LLP

Filing 48

CONFIDENTIALITY AND PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 12/10/2013. (mehcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-CV-00066-MSK-MEH
THE UNITED STATES OF AMERICA for the use and benefit of FISHER SAND AND
GRAVEL CO. d/b/a ARIZONA DRILLING and BLASTING, a North Dakota corporation,
and
FISHER SAND AND GRAVEL CO. d/b/a ARIZONA DRILLING and BLASTING, a North
Dakota corporation,
Plaintiffs,
v.
KIRKLAND CONSTRUCTION, LLLP, a Colorado company,
and
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, a Connecticut
corporation
Defendants.

CONFIDENTIALITY AND PROTECTIVE ORDER

THIS MATTER, having come before the Court upon the parties’ Joint Motion for
Entry of Confidentiality and Protective Order and the Court being fully advised,
HEREBY ORDERS that to preserve and maintain the confidentiality of documents and
information produced in this lawsuit, the parties’ Confidentiality and Protective
Agreement below is hereby entered as an Order of the Court.
Fisher Sand and Gravel Co. d/b/a Arizona Drilling and Blasting (“Arizona
Drilling”), Kirkland Construction, LLLP (“Kirkland”), and Travelers Casualty and Surety

Company of America (“Travelers”) (collectively, the “Parties,” and each individually, the
“Party”) hereby agree to the following Confidentiality and Protective Order.
A.

Scope

This Order includes in its scope any documents, electronically stored information,
or other information that has been or will be produced or disclosed in the Lawsuit
whether pursuant to formal or informal discovery requests and/or subpoenas, in
correspondence, or through testimony, as well as any documents, electronically stored
information, or other information that has been or will be produced or disclosed by nonparties to this Lawsuit pursuant to subpoena and/or deposition notice (“Discovery
Material”).
B.

Disclosure of Confidential Information

All Confidential Information (as defined herein) shall not be disclosed to any
person except in accordance with the terms hereof.
C.

Confidential Information

Any Party or non-party who produces documents may designate as Confidential
Information any Discovery Material that it in good faith believes would reveal trade
secrets, confidential, and/or proprietary information (“Confidential Information”). A Party
or non-party designating Discovery Material as Confidential Information shall place a
stamp indicating the designation on such material at the time such material is disclosed
or produced. Parties will have until thirty (30) days after the entry of this Order to
designate as Confidential Information Discovery Material that was produced prior to the
entry of this Order, which they shall do by sending copies of such previously disclosed

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documents to the other Party with a stamp indicating such designation. Parties may
also designate Discovery Material as Confidential Information that is produced by nonparties within twenty-one-(21) days of such production by sending copies of such
documents to the other Party with a stamp indicating such designation.
D.

Disclosure of Discovery Material

A Party may only disclosure Confidential Information to “Qualified Persons.” As
used herein, “Qualified Persons” means and includes:
1.

The

Parties’

directors,

officers,

employees,

former

employees,

representatives and agents in connection with (and for the sole purpose of
facilitating) the prosecution, defense, or supervision of this Lawsuit;
2.

The Parties’ outside or in-house auditors in connection with the
prosecution, defense, or supervision of this Lawsuit;

3.

Regulatory authorities upon formal demand, or to satisfy legal or
regulatory requirements, provided that written notice is given to the Party
or non-party designating such material as Confidential Information at least
five (5) days prior to disclosure to the regulatory authorities, or as soon as
practicable if disclosure is required by regulatory authorities if less than
five (5) days;

4.

Counsel of record for the respective Parties in this action and the
employees of said counsel;

5.

Experts and consultants (including independent experts) who are
employed, retained, or otherwise consulted by counsel or a Party for the

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purpose of analyzing data, conducting studies, or providing opinions to
assist, in any way, in this action, provided that the Confidential Information
disclosed to such experts and consultants shall be limited to information
and material the experts or consultants reasonably need to review in their
roles as experts or consultants;
6.

Any potential or actual witness (and any counsel for or other
representative of any such witness), provided that counsel herein
reasonably believes the witness has relevant knowledge about the
creation, distribution, or maintenance of the particular Confidential
Information to be disclosed, or about the facts contained therein;

7.

The authors and identified recipients of such Confidential Information;

8.

The Court and Court personnel;

9.

Court reporters, typists, videographers, interpreters and/or translators who
record, transcribe or translate any testimony in this Lawsuit; and

10.

Commercial photocopying or litigation support services firms.

E.

Qualified Persons to be Bound

Before granting access to or disclosure of any Confidential Information to any
expert or consultants (described in Paragraph D.5 above) or any potential or actual
witness (described in Paragraph D.6 above), the Party disclosing such information shall
advise the Qualified Person that the information is Confidential Information and can be
used only in the manner authorized by this Order.

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F.

Disclosure to Court

In the event a Party wishes to use any Confidential Information in any affidavits,
briefs, memoranda of law, or other papers filed in Court in this litigation, such
Confidential Information, used therein shall be filed with restricted access to the Parties
and the Court in accordance with United States District Court – District of Colorado
Electronic Case Filing Procedures (“ECF”) rule 6.1.
G.

Notice of Unauthorized Disclosure

If Confidential Information is disclosed to or comes into the possession of any
person other than in the manner authorized by this Order, the Party who improperly
disclosed the information must immediately inform the producing Party of all pertinent
facts relating to such disclosure and shall make every effort to retrieve the improperly
disclosed information and prevent disclosure by each unauthorized person who
received such information.
H.

Non-Termination of Order

The agreements embodied herein, insofar as they restrict the communication,
treatment and use of Confidential Information, shall survive the termination of this
Lawsuit and continue in full force and effect for the duration of the Lawsuit unless
terminated by stipulation executed by Counsel of record for the Parties or by order of
any Court of competent jurisdiction.
I.

Modification Permitted

Nothing in this Order shall prevent any Party from seeking modification of this
Order.

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J.

Non-Waiver and Challenge of Designation of Discovery Material as
Confidential Information

Nothing in this Order shall prevent any Party from objecting to discovery that the
Party believes to be otherwise improper or from challenging a Party’s designation of
Discovery Material as Confidential Information. A Party may object to the designation of
Discovery Material as Confidential Information by giving written notice to the Party
designating the disputed Discovery Material. The written notice shall identify the
Discovery Material 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 Discovery Material 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 Confidentiality and Protective
Agreement. If such a motion is timely filed, the disputed Discovery Material shall be
treated as Confidential Information under the terms of this Agreement until the Court
rules on the motion. If the designating Party fails to file such a motion within the
prescribed time, the disputed Discovery Material shall lose its designation as
Confidential Information and shall not thereafter be treated as Confidential Information
in accordance with this Agreement.

In connection with a motion filed under this

provision, the party designating the Discovery Material as Confidential Information shall
bear the burden of establishing that good cause exists for the disputed information to be
treated as Confidential Information.

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K.

Breach of the Confidentiality Agreement

Breach of this Confidentiality Agreement may result in irreparable injury for which
monetary damages are an inadequate remedy and, therefore, the Parties agree to the
issuance by the Court of appropriate injunctive or other equitable relief with respect to
such breach.
L.

Counterparts

This Order may be executed in counterparts, each of which shall constitute one
and the same agreement.
SO AGREED AND STIPULATED:
s/William J. Garehime______
Troy Rackham, Esq.
William Garehime, Esq.
Fennemore Craig, P.C.
1700 Lincoln St., Ste. 2900
Denver, CO 80203
Telephone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

s/Jason P. Kane__________
Richard P. Ranson, Esq.
Jason P. Kane, Esq.
Ranson & Kane, P.C.
3475 Briargate Blvd., Suite 201
Colorado Springs, CO 80920
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Kevin J. Bonner
Fennemore Craig, P.C.
2394 East Camelback Road, Suite 600
Phoenix, AZ 85016
Telephone: [phone]
Fax: [phone]
[e-mail]

Attorneys for Kirkland Construction, LLLP
and Travelers Casualty and Surety
Company of America

Attorneys for Fisher Sand and Gravel Co.
d/b/a/ Arizona Drilling and Blasting

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Dated at Denver, Colorado, this 10th day of December, 2013.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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