Carnes v. Comcast of Colorado, IX, LLC
Filing
22
PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 5/17/13. (sgrim)
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 1:13-cv-00112-REB-KMT
LISA CARNES,
Plaintiff,
v.
COMCAST OF COLORADO IX, LLC, a
Delaware Limited Liability Company,
Defendant.
STIPULATED PROTECTIVE ORDER
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 customers, vendors, personnel 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
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action.
Confidential
Information
may
include,
without
limitation,
information and documents produced pursuant to F.R.C.P. 26; testimony
adduced at depositions upon oral examination pursuant to F.R.C.P. 30;
written responses to interrogatories pursuant to F.R.C.P. 33; documents
produced pursuant to F.R.C.P. 34; answers to requests for admission
pursuant to F.R.C.P. 36; and testimony, documents and things provided
pursuant to F.R.C.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.
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 F.R.C.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 certify that
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the Confidential designation is based on the counsel’s good faith belief
that the information is confidential or otherwise entitled to protection under
F.R.C.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) 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
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become available. Within ten (10) days of receipt of the substitute copies,
the Receiving Parties shall return the previously unmarked items to the
Providing Party.
3. DESIGNATED MATERIALS PRESUMED CONFIDENTIAL.
(a)
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 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;
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(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;
(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 nonparty 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)(i),
(ii), (iv) or (v), or Paragraph 4(b), counsel for the party disclosing or
allowing access to such Confidential Information shall, in addition to
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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.
(a)
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.
(a)
The parties agree and stipulate that upon conclusion of the litigation the
receiving attorney will instruct his/her client to return to the attorney all
Confidential Information which may have been received by the client
during the litigation. The receiving attorney may retain a single electronic
copy of Confidential Information in order to fulfill his/her duties under Rule
1.16A, Rules of Professional Conduct. The attorney’s retained copy will
be maintained in the same secure manner as other client files held by the
receiving attorney. All other copies will either be returned to the Providing
Party or destroyed by the receiving attorney.
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7. OBJECTIONS PRESERVED.
(a)
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.
8. MECHANISM FOR CHALLENGING DESIGNATION.
(a)
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
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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 Rule 26 of the Federal
Rules of Civil Procedure.
9. PARTIES’ CLAIMS AND DEFENSES.
(a)
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.
(a)
The restrictions on use of Confidential Information set forth in this
Protective Order shall survive the conclusion of this litigation.
ORDERED this 17th day of May, 2013.
BY THE COURT:
U.S. Magistrate Judge
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ACKNOWLEDGEMENT
I hereby acknowledge that I have been advised of the terms of the Protective
Order entered in Lisa Carnes v. Comcast of Colorado IX, LLC, Civil Action No. 1:13-cv00112-REB-KMT, pending in the United States District Court for the District of Colorado,
have been provided with a copy of said Protective Order, have read and understand
said Protective Order, agree to be bound by and to comply with the terms of said
Protective Order, and agree to submit to the jurisdiction of the United States District
Court for the District of Colorado for the purpose of enforcement of said Protective
Order.
Dated: _______________________________
_____________________________________
Printed Name:__________________________
Relationship to Lawsuit:__________________
Address:______________________________
_____________________________________
_____________________________________
Telephone:____________________________
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