Miller International, Inc. v. Sidran, Inc. et al

Filing 33

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 5/30/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00387-REB-KMT
MILLER INTERNATIONAL, INC., a Colorado corporation,
Plaintiff,
v.
SIDRAN, INC., a Texas corporation; and
TREVOR BRAZILE, an individual;
Defendants.

AGREED PROTECTIVE ORDER

Whereas pretrial discovery in this action shall necessarily involve the disclosure
of trade secrets or confidential research, development, or commercial information of all
parties and of non-parties from whom discovery may be sought;
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, subject to the
approval of the Court, the following Stipulated Protective Order (“Order”) shall govern
the exchange of confidential information in this case:
1.

Scope of Protection

1.1

This Order shall govern any record of information, designated pursuant to

¶ 3 of this Order, produced in this action, including all designated deposition testimony,
all designated testimony taken at a hearing or other proceeding, all designated
interrogatory answers, documents and other discovery materials, whether produced
informally or in response to interrogatories, requests for admissions, requests for
production of documents or other formal method of discovery.
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1.2

This Order shall also govern any designated record of information

produced in this action pursuant to required disclosures under any federal procedural
rule or United States District Court for the District of Colorado Local Rule or judge’s
individual practice or order, and any supplementary disclosures thereto.
2.

Definitions

2.1

“Confidential”

information,

as

used

herein,

means

any

type

or

classification of information, so designated, that is nonpublic, proprietary, commercially
or otherwise sensitive, or that falls within the term “trade secret.”
3.

Designations

3.1

Each party may designate as CONFIDENTIAL any information furnished

to the other party during discovery that is believed to contain Confidential information.
3.2

A designation of any information as CONFIDENTIAL - OUTSIDE

COUNSEL ONLY shall only be made if the designating party has a reasonable, goodfaith belief that (a) such information contains Confidential information as defined herein,
and (b) disclosure of such information without restriction would be detrimental to that
party in the conduct of its business and cause cognizable harm.
3.3

Any party may designate any item as CONFIDENTIAL - OUTSIDE

COUNSEL ONLY by placing or affixing to such item, in a manner that will not interfere
with the legibility thereof, a notice identifying the item as CONFIDENTIAL - OUTSIDE
COUNSEL ONLY.
4.

Limit on Use and Disclosure of Designated Information

4.1

Each party and all persons bound by the terms of this Order shall only use

any information or document designated CONFIDENTIAL - OUTSIDE COUNSEL ONLY
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in connection with the prosecution or defense of this action, and not for any other
purpose, including, but not limited to, use in any business or commercial enterprise,
except as permitted by this Order or by prior written agreement with counsel for the
producing party. Except as provided for in this Order, no party or other person shall
disclose or release any information or document governed by this Order to any person
not authorized pursuant to this Order to receive such information or document.
4.2

It is, however, understood that counsel for a party may give advice and

opinions to his or her client based on his or her evaluation of designated
CONFIDENTIAL - OUTSIDE COUNSEL ONLY information received by the party,
provided that such rendering of advice and opinions shall not reveal the content of such
information, except as permitted by this Order or by prior written agreement with
counsel for the producing party.
4.3

The attorneys of record for the parties and other persons receiving

information governed by this Order shall exercise reasonable care to ensure that the
information and documents governed by this Order are (a) used only for the purposes
specified herein, and (b) disclosed only to authorized persons.
5.

Disclosure of Information Designated CONFIDENTIAL - OUTSIDE
COUNSEL ONLY

Except as provided in ¶¶ 7, 14, 15, and 16, documents or information designated
CONFIDENTIAL - OUTSIDE COUNSEL ONLY may be disclosed by the recipient to the
following persons:

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(a)

outside counsel for the parties, including other lawyers in their firms

and their authorized secretarial, clerical and legal assistant staff who are actively
engaged in assisting such counsel with the prosecution or defense of this action;
(b)

in-house counsel who either have responsibility for making

decisions dealing directly with the litigation of this action or who are assisting outside
counsel in preparation for proceedings in this action;
(c)

consultants or experts and their staff, retained by the parties or their

attorneys solely for purposes of this action, who first agree to be bound by the terms of
this Order by executing a Confidentiality Undertaking in accordance with ¶ 7;
(d)

personal counsel authorized to practice law retained by a named

party to this action to provide general advice to and consultation with the named party to
this action;
(e)

the Court and Court personnel;

(f)

court reporters, videographers, and their respective staffs employed

in connection with this action;
(g)

non-parties specifically retained to assist counsel of record with

copying and computer services necessary for document handling, and other litigation
support personnel (e.g., graphic designers and animators, database entry personnel);
and
(h)
6.

any insurance company indemnifying a named party to this action.

Request to Disclose Designated Information

Any party may at any time request permission to disclose documents or
information designated as CONFIDENTIAL - OUTSIDE COUNSEL ONLY other than as
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permitted by this Order by serving a written request upon counsel for the producing
party. Such request shall specifically identify the information sought to be disclosed, the
manner in which it is to be disclosed, and the person to whom it is to be disclosed. The
producing party shall thereafter respond to the request in writing within five (5) business
days of receipt of the written request.

A failure to respond within such time shall

constitute a refusal. If the requested permission is withheld, the parties shall negotiate
in good faith concerning the request. Where consent has been withheld and the party
and the producing party are subsequently unable to agree on the terms and conditions
of disclosure, the matter may be submitted to the Court for resolution by the party
requesting disclosure.

The party requesting disclosure shall have the burden of

persuading the Court that disclosure is appropriate under applicable rules. Disclosure
shall not be made until the Court has ruled on that relief or the parties otherwise
mutually agree in writing.
7.

Agreement of Confidentiality

In no event shall any information designated CONFIDENTIAL - OUTSIDE
COUNSEL ONLY be disclosed to any person authorized pursuant to ¶¶ 5(c) until such
person has executed a written Confidentiality Undertaking (in the form set forth in
Exhibit A hereto) acknowledging and agreeing to be bound by the terms of this Order.
Counsel for the party seeking to disclose material designated under this Order to any
such person pursuant to this paragraph shall be responsible for retaining the executed
originals of all such Confidentiality Undertakings.

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8.

Related Documents

The restrictions contained herein on the use of information designated
CONFIDENTIAL - OUTSIDE COUNSEL ONLY shall apply to any and all (a) portions of
documents, copies, extracts, and complete or partial summaries prepared from or
containing such information; (b) portions of deposition transcripts and exhibits thereto
which contain or reflect the content of any such documents, copies, extracts, or
summaries; (c) portions of briefs, memoranda or any other papers filed with the Court
and exhibits thereto which contain or reflect the content of any such documents, copies,
extracts, or summaries; and/or (d) deposition testimony designated in accordance with ¶
10.
9.

Designation of Deposition Transcripts

9.1

Any and all portions of deposition transcripts containing CONFIDENTIAL -

OUTSIDE COUNSEL ONLY information may be designated as such either on the
record during the deposition or by providing, within twenty-one (21) days following
receipt of the official transcripts of the deposition to the reporter and all counsel of
record, written notice of the specific pages and lines that contain Confidential
information.
9.2

All deposition transcripts not previously designated shall be deemed to be

and treated as CONFIDENTIAL - OUTSIDE COUNSEL ONLY for a period of twentyone (21) days after receipt of the official transcript of the deposition, and the transcript
shall not be disclosed during such time by a non-designating party to persons other than
those persons named or approved according to ¶ 5.

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9.3

The designating party shall have the right, before the taking of testimony

which the designating party designates as CONFIDENTIAL - OUTSIDE COUNSEL
ONLY and subject to this Protective Order, to exclude from portions of a deposition all
persons other than those persons previously qualified to receive such information
pursuant to ¶ 5.
10.

Designation of Hearing Testimony or Argument

With respect to testimony elicited during hearings and other proceedings,
whenever counsel for any party deems that any question or line of questioning calls for
the disclosure of information designated as CONFIDENTIAL - OUTSIDE COUNSEL
ONLY, counsel may designate on the record prior to such disclosure that the disclosure
is subject to confidentiality restrictions.

Whenever CONFIDENTIAL - OUTSIDE

COUNSEL ONLY information is to be discussed in a hearing or other proceeding, any
party claiming such confidentiality may ask the Court to have excluded from the hearing
or other proceeding any person who is not entitled under this Order to receive
information so designated.
11.

Other Protections

11.1

Any party may mark any document or thing containing CONFIDENTIAL -

OUTSIDE COUNSEL ONLY information as an exhibit to a deposition, hearing or other
proceeding and examine the witness based on document, provided that the witness is
qualified under the terms of this Order to have access to such designated materials.
12.

Challenges to Confidentiality

12.1

This Order shall not preclude any party from seeking and obtaining, on an

appropriate showing, such additional protection with respect to the confidentiality of
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documents or other discovery materials as that party may consider appropriate. Nor
shall any party be precluded from: (a) claiming that any matter designated hereunder is
not entitled to the protections of this Order; (b) applying to the Court for an Order
permitting the disclosure or use of information or documents otherwise prohibited by this
Order; or (c) applying for a further Protective Order modifying this Order in any respect.
No party shall be obligated to challenge the propriety of any designation, and failure to
do so shall not preclude a subsequent challenge to the propriety of such designation.
12.2

On any challenge to the designation of any information, the burden of

proof shall lie with the producing party to establish that the information is, in fact,
CONFIDENTIAL - OUTSIDE COUNSEL ONLY information.

If a party seeks

declassification or removal of particular items from a designation on the ground that
such designation is not necessary to protect the interests of the party that designated
the information, the following procedure shall be utilized:
(a)

The party seeking such declassification or removal shall give

counsel of record for the other party written notice thereof by mail or by personal
delivery specifying the designated information as to which such removal is
sought and the reasons for the request; and
(b)

If, after conferring, the parties cannot reach agreement concerning

the matter within ten (10) business days after the delivery and receipt of the
notice, then the party designating the challenged documents as CONFIDENTIAL
– OUTSIDE COUNSEL ONLY has ten (10) business days to move for a
protective order. If the designating party does not move for a protective order
within the allotted time, the challenged documents will no longer be considered
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CONFIDENTIAL – OUTSIDE COUNSEL ONLY and will no longer be protected
by the provisions of this Protective Order.
13.

Inadvertent Failure to Designate or Inadvertent Disclosure

13.1

A producing party or non-party that inadvertently fails to designate an item

pursuant to this Order at the time of production may, within thirty (30) days of production
of such an item, make a designation pursuant to this Order by serving notice thereof in
writing, accompanied by substitute copies of each item, appropriately designated.
Those individuals who reviewed the documents or information prior to the notice of misdesignation or failure to designate by the producing party shall return to counsel of
record or destroy all copies of the mis-designated documents and shall honor, to the
extent reasonably practicable, the provisions of this Order with respect to the use and
disclosure of confidential information in the mis-designated documents.
13.2

Inadvertent production of documents subject to work-product immunity,

attorney-client privilege, common interest/joint defense privilege, or other privilege shall
not constitute a waiver of the immunity or privilege, provided that the disclosing party
shall notify the receiving party of such inadvertent production as soon as practicable
after the first time the disclosing party learns of the inadvertent production.

Such

inadvertently produced documents (and all copies, if any) shall be returned to the
disclosing party, or destroyed and their destruction certified to the disclosing party,
within three (3) business days after receiving the request or by a deadline agreed upon
by the parties. No use shall be made of such documents by the receiving party unless
the receiving party successfully challenges the claims privilege on grounds other than

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the inadvertent disclosure. If the parties are unable to agree as to the application of any
claim of privilege or immunity, either party may petition the Court for resolution.
13.3

Nothing in this Order shall preclude either party from petitioning the Court

for return of later-discovered, inadvertently produced work-product immunity, attorneyclient privilege, common interest/joint defense privilege, or other privileged documents.
14.

Disclosure to Author or Recipient

Notwithstanding any other provisions of this Order, nothing herein shall prohibit
counsel or a party from disclosing a document containing CONFIDENTIAL - OUTSIDE
COUNSEL ONLY information to any person who appears from the face of the document
to have drafted, prepared, executed, or received the document.
15.

Confidentiality of a Party’s Own Documents

Nothing herein shall affect the right of the designating party to disclose to its
officers, directors, employees, attorneys, consultants or experts, or to any other person,
its own information. Such disclosure shall not waive the protections of this Order and
shall not entitle other parties or their attorneys to disclose such information in violation
of it, unless by such disclosure of the designating party the information becomes public
knowledge.

Similarly, this Order shall not preclude a party from showing its own

information to its officers, directors, employees, attorneys, consultants or experts, or to
any other person, even if this information has been filed under seal by the opposing
party.

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16.

Prior or Public Knowledge

The restrictions contained in this Order shall not apply to information that is or
was available to the public prior to disclosure or that is or was legitimately and
independently acquired from a source not subject to this Order.
17.

Destruction or Return of Designated Information

Within sixty (60) days following final termination of this action, unless otherwise
agreed to in writing by an attorney of record for the designating party, each party shall
destroy and certify destruction of, or assemble and return, all materials containing
information designated as CONFIDENTIAL - OUTSIDE COUNSEL ONLY, including all
copies, extracts and summaries thereof, to the party from whom the designated material
was obtained, except (a) any documents or copies which contain, constitute or reflect
attorney work product or attorney-client privilege communications, and (b) archive
copies of pleadings, motion papers, deposition transcripts, correspondence, expert
reports and written discovery responses, which may be retained by counsel subject to a
continuing obligation to protect all such material pursuant to this Order.
18.

Privilege Logs

Pursuant to Fed. R. Civ. P. 26(b)(5)(A), any party that withholds documents or
ESI based upon work-product immunity, attorney-client privilege, or common
interest/joint defense privilege shall identify such documents and/or ESI in a privilege
log. This provision does not apply to documents or ESI generated after the filing of the
Complaint.

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19.

Waiver or Termination of Order

No part of the restrictions imposed by this Order may be waived or terminated,
except by written stipulation executed by counsel of record for each designating party,
or by an Order of the Court for good cause shown. The restrictions provided for herein
shall not terminate upon the conclusion of this action, but shall continue until further
Order of this Court.
20.

Modification of Order; Prior Agreements

This Order may be modified, and any matter related to it may be resolved, by
written stipulation of the parties without further Order of the Court.

This Order

supersedes any agreements between the parties regarding the confidentiality of
particular information entered into before the date of this Order.

It is so ORDERED, dated this 30th day of May, 2013.
BY THE COURT:

United States Magistrate Judge

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The parties, through counsel, stipulate to the entry of the foregoing Order:

APPROVED:

By:
s/ Patricia Y. Ho
Robert R. Brunelli
[e-mail]
Sabrina C. Stavish
[e-mail]
Patricia Y. Ho
[e-mail]
SHERIDAN ROSS P.C.
1560 Broadway, Suite 1200
Denver, CO 80202-5141
Telephone: [phone]
Facsimile: 303/863-0223
[e-mail]

By:
s/ Jane Bendle Lucero
James B. Powers, Esq.
[e-mail]
Jane Bendle Lucero, Esq.
[e-mail]
HARRIS, KARSTAEDT, JAMISON & POWERS,
P.C.
10333 E. Dry Creek Road, Suite 300
Englewood, Colorado 80112
Phone: [phone]
Fax:
720-875-9141
ATTORNEYS
FOR
DEFENDANT
SIDRAN, INC.

ATTORNEYS FOR PLAINTIFF

By:
s/ Robyn Berger Averbach
Robyn Berger Averbach
[e-mail]
Lewis, Brisbois, Bisgaard & Smith, LLP
825 Logan Street
Denver, CO 80203
Direct Dial: 720-292-2007
Main:
303-861-7760
Fax:
303-861-7767
ATTORNEYS
FOR
DEFENDANT
TREVOR BRAZILE

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CERTIFICATE OF SERVICE
I hereby certify that on May 30, 2013, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system which will send notification of such filing to all
counsel of record.

s/ Lori R. Brown
Lori R. Brown
Assistant to Robert R. Brunelli/Todd P. Blakely
SHERIDAN ROSS P.C.
1560 Broadway, Suite 1200
Denver, CO 80202-5141
Telephone: [phone]
Facsimile:
303-863-0223
Email:
[e-mail]
[e-mail]

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Exhibit A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00387-REB-KMT
MILLER INTERNATIONAL, INC., a Colorado corporation,
Plaintiff,
v.
SIDRAN, INC., a Texas corporation; and
TREVOR BRAZILE, an individual;
Defendants.

DECLARATION AND CONFIDENTIALITY UNDERTAKING
I certify that I have received and read the Protective Order in this action and that I
fully understand the terms of this Order. I recognize that I am bound by the terms of this
Order, and I agree to comply with those terms. I hereby consent to the personal
jurisdiction of the United States District Court for the District of Colorado for any
proceedings involving the enforcement of this Order. I declare under penalty of perjury
under the laws of the United States of America that this Declaration and Confidentiality
Undertaking is true and correct.
EXECUTED this ____ day of __________, 201_.
[Name]
[Signature]
[Present Employer or Other Business
Affiliation]
[Business Address]

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