Ouzts v. On-Site Marketing, Inc.

Filing 21

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 5/20/13. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Case No. 13-cv-00164-WYD-CBS
SUSAN OUZTS,
Plaintiff,
v.
ON-SITE MARKETING, INC.,
Defendant.
PROTECTIVE ORDER
Upon consideration of the Unopposed Motion for Protective Order filed by Defendant
On-Site Marketing, Inc. (“Defendant” or “On-Site”), and upon this Court’s finding that good
cause exists for the issuance of a Stipulated Protective Order, IT IS ORDERED as follows:
1.

This Stipulated Protective Order (“Protective Order”) shall apply to all

information, documents, electronically-stored information, and other materials disclosed,
produced, exchanged, or otherwise disseminated in this case, including without limitation,
documents produced, answers to interrogatories, responses to requests for admission, deposition
testimony, and other information disclosed, produced, or exchanged pursuant to procedures set
forth in the Federal Rules of Civil Procedure.
2.

As used in this Protective Order, “document” is defined as provided in Fed. R.

Civ. P. 34(a). A draft or non-identical copy is a separate document within the meaning of this
term.

3.

As used in this Protective Order, “electronically-stored information” means any

type of information that can be stored electronically, and is intended to be broad enough to cover
all current types of electronically- and computer-based information.
4.
designated

Information, documents, electronically-stored information, and/or other materials
as

“CONFIDENTIAL”

(collectively,

“CONFIDENTIAL

material”

or

“CONFIDENTIAL information”) shall be information, documents, electronically-stored
information, and/or other materials that are confidential and meet the requirements set forth in
5 U.S.C. § 552(b)(4) and (b)(6), such as: (a) personnel records of current or former employees of
Defendant; (b) any non-public personal information, including credit or debit numbers, social
security numbers, drivers’ license numbers, and bank or financial account information or
password information; (c) trade secrets and commercial or financial information that is either
privileged or confidential; (d) Protected Health Information; (e) non-public studies or analyses
by internal or outside experts or consultants (excluding testifying experts in this case); and
(f) any other material qualifying for protection under Federal Rule of Civil Procedure 26(c).
This listing of examples of CONFIDENTIAL material does not waive any party’s right to
contest the designation of such materials as CONFIDENTIAL.
5.

CONFIDENTIAL material shall not, without the consent of the party designating

it as CONFIDENTIAL (the “Designating Party”) or further Order of the Court, be disclosed
except that such information may be disclosed, solely for the purposes of this case to: attorneys
actively working on this case; persons regularly employed by or associated with the attorneys
actively working on the case whose assistance is required by said attorneys in the preparation for
trial, at trial, or at other proceedings in this case; the parties, including representatives of
Defendant; expert witnesses and consultants retained in connection with this proceeding, if any,

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to the extent such disclosure is necessary for preparation, trial, or at other proceedings in this
case; the Court and its employees (“Court Personnel”); stenographic reporters who are engaged
in proceedings necessarily incident to the conduct of this action; or deponents, witnesses, or
potential witnesses; other persons by written agreement of the parties.
6.

CONFIDENTIAL information shall not be disclosed or used for any purpose

except for the preparation, trial, and appeal of this case.
7.

Information, documents, electronically-stored information, and/or other materials

are designated as CONFIDENTIAL by placing or affixing (in a manner that will not interfere
with their legibility) the following or other appropriate notice—“CONFIDENTIAL”—on every
page containing CONFIDENTIAL information. With the exception of depositions, which are
discussed below in Paragraph 9, information, documents, electronically-stored information,
and/or other materials unintentionally produced without a “CONFIDENTIAL” designation or
produced before the Stipulated Protective Order is issued, may be retroactively designated in the
same manner.
8.

Before any information is designated as “CONFIDENTIAL,” counsel of record

for the Designating Party must first review the information and make a determination, in good
faith, that the information, documents, electronically-stored information, and/or other materials
are confidential or otherwise are entitled to protection pursuant to Paragraph 4 of this Protective
Order and Fed. R. Civ. P. 26(c).
9.

Whenever a deposition involves the disclosure of CONFIDENTIAL information,

the deposition or portions thereof shall be designated as CONFIDENTIAL and shall be subject to
the provisions of this Protective Order. Such designation shall be made on the record during the
deposition whenever possible, but a party may designate portions of depositions as

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CONFIDENTIAL after transcription, provided written notice of the designation is promptly
given to all counsel of record within thirty (30) days after notice by the court reporter of the
completion of the transcript.
10.

A party may object to the designation of particular CONFIDENTIAL information

at any time 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 schedule a
telephone conference with the Magistrate Judge within fifteen (15) days after the time the notice
is received, asking the Magistrate Judge to assist the parties’ disagreement over and resolution of
whether the disputed information should be subject to the terms of this Protective Order. If such
a telephone conference is scheduled, the disputed information shall be treated as
CONFIDENTIAL under the terms of this Protective Order until the parties resolve their dispute
or the Court rules on a motion. If the Designating Party fails to schedule a telephone conference
within the prescribed time or fails to make good-faith efforts to timely schedule such conference,
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
dispute 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.
11.

This Protective Order shall not prohibit the use of CONFIDENTIAL material in

depositions; pleadings; motions; at trial; or in post-trial motions or proceedings, provided that
such uses are related to the prosecution or defense of this case. Notwithstanding that

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CONFIDENTIAL material may be used, this Stipulated Protective Order does not waive any
right or obligation of any party to file a motion under D.C.COLO.LCivR. 7.2 to restrict access to
all or a portion of papers and documents filed with the Court. In addition, the parties agree to
comply with D.C.COLO.LCivR. 7.2 regarding procedures for restricting access to documents
that are marked “CONFIDENTIAL.”
12.

In the event that any CONFIDENTIAL material is used in any Court proceeding

in this action or any appeal from this action, counsel shall confer in good faith on such
procedures as are necessary to protect the confidentiality of any such material used in the course
of any court proceedings including, but not limited to, requesting the Court to hear counsel with
respect to such information in camera. No party, other than the Designating Party, shall offer
CONFIDENTIAL material into evidence, or otherwise tender CONFIDENTIAL material to the
Court in any court proceeding, without first advising the Court and the Designating Party of its
intent to do so; notification is satisfied by provision of an exhibit list or copy of exhibits to be
proffered. At that point, the Designating Party may seek such protection from the Court as it
deems appropriate, including the exclusions of persons and witnesses from the Court and the
sealing of the pertinent parts of the Court records. The use of CONFIDENTIAL material in any
court proceeding shall not prejudice or limit in any way the rights of any person to petition the
Court for such further protective measures as may be necessary to protect the confidentiality of
such material.
13.

The provisions of this Order shall, absent written permission of a Designating

Party or further order of the Court, continue to be binding throughout and after the termination of
this action, including, without limitation, any appeals and any entry of an order, judgment or
decree finally disposing of all litigation.

At the conclusion of this case, unless other

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arrangements are agreed upon in writing, each document and all copies thereof that have been
designated as CONFIDENTIAL shall be destroyed, except that counsel shall be permitted to
retain court filings, deposition transcripts, exhibits, and work product that contain
CONFIDENTIAL information or references thereto; provided that such counsel, and employees
of such counsel, shall not disclose such retained materials to any person or use such retained
materials for any purpose unrelated to this action except pursuant to court order or written
agreement with the Designating party. The destroying party shall provide all parties with an
affidavit confirming the destruction.

Notwithstanding the provisions of this paragraph, the

parties, their counsel, and experts for a party shall not be required to return or to destroy any
CONFIDENTIAL information to the extent prohibited by law or to the extent such
CONFIDENTIAL information is (a) stored on media that is generally considered not reasonably
accessible, such as disaster recovery backup tapes, or (b) only retrievable through the use of
specialized tools or techniques typically used by a forensic expert; provided that to the extent any
CONFIDENTIAL information is not returned or destroyed due to the foregoing reasons, such
CONFIDENTIAL information shall remain subject to the confidential obligations of this
Protective Order.
14.

If any person receiving and in the possession, custody, or control of

CONFIDENTIAL information is served with a subpoena, demand, or any other legal process
seeking discovery material containing CONFIDENTIAL information by one not a party to this
action, the receiving party shall give prompt written notice, by hand or facsimile transmission
within forty-eight (48) hours of its receipt of such subpoena, demand or legal process, to the
Designating Party, assuming the provision of such notice is not forbidden by law or legal
authorities. The Designating Party shall be solely responsible for seeking any relief or protection

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from any subpoena demand or legal process seeking the discovery material and shall also be
solely responsible for its costs and attorneys’ fees in any proceedings relating to such subpoena
or legal process.
15.

This Protective Order, the production or receipt of CONFIDENTIAL material,

and/or compliance with the terms of this Order, shall not:
a.

Prejudice in any way the rights of the parties to object on grounds of

privilege, relevance, or otherwise to the production of documents or other information they
consider not subject to discovery;
b.

Prejudice in any way the rights of any party to object to the authenticity or

admissibility into evidence of any document (or portion thereof), testimony or other evidence
subject to this Order;
c.

Prejudice in any way the rights of a party to petition the Court for a further

protective order relating to any CONFIDENTIAL information the party asserts requires or
should be subject to other or further protection;
d.

Prevent the parties to this Order from agreeing in writing, with the consent

of the Designating Party, to alter or waive the provisions or protections provided for in this Order
with respect to any particular CONFIDENTIAL information; or
e.

Prejudice in any way the rights of a party to contest the designation of any

information as “CONFIDENTIAL.”
14.

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.

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DATED at Denver, Colorado, on May 20, 2013.
BY THE COURT:

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

AGREED AND APPROVED:

s/ Anna Holland Edwards
Erica T. Grossman
Anna Holland Edwards
Holland, Holland Edwards & Grossman, P.C.
1437 High Street
Denver, CO 80218

s/ Margaret Parnell Hogan
Margaret Parnell Hogan
Katherine R. Hinde
LITTLER MENDELSON, P.C.
1900 Sixteenth Street
Suite 800
Denver, CO 80202
Telephone: [phone]

ATTORNEYS FOR PLAINTIFF

ATTORNEYS FOR DEFENDANT ON-SITE
MARKETING, INC.

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