Marshall v. Exelis Systems Corporation et al

Filing 41

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 8/9/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00545-CMA-KMT
RASHANNA MARSHALL,
Plaintiff,
v.
EXELIS SYSTEMS CORPORATION, and
LARRY LINDLOFF,
Defendants.

PROTECTIVE ORDER

This Order is entered pursuant to the agreement of counsel for Plaintiff, by and through
her counsel, Mari Newman, Darold W. Killmer, and Jessica Jones of KILLMER LANE &
NEWMAN, LLP, Defendant Exelis Systems Corporation, by and through their counsel, Glenn
Schlabs and Elizabeth Chilcoat of SHERMAN & HOWARD, LLC, and Defendant Larry
Lindloff, by and through his counsel, Ian Kalmanowitz. Pursuant to Rule 26(c) of the Federal
Rules of Civil Procedure concerning the treatment of Confidential Information (as hereinafter
defined), the Court finds as follows:
1.

This Protective Order shall apply to all documents, materials, and information,

including without limitation, documents produced, answers to interrogatories, responses to
requests for admission, deposition testimony, and other information disclosed pursuant to the
disclosure or discovery duties created by the Federal Rules of Civil Procedure and designated
as “CONFIDENTIAL” pursuant to the terms of this Protective Order.

SPRINGS/1037220.1

2.

As used in this Protective Order, the term “document” shall include, without

limitation, any electronic or hard copy emails, writings, drawings, graphs, charts, photographs,
phone records, and other data compilations from which information can be obtained. See Fed. R.
Civ. P. 34(a). A draft or non-identical copy is a separate document within the meaning of this
term.
3.

Information designated "CONFIDENTIAL" shall be information that is

confidential and implicates common law or statutory privacy interests of Exelis Systems
Corporation, Defendant Lindloff, Plaintiff, and/or current or former employees of Exelis Systems
Corporation. CONFIDENTIAL information shall not be disclosed or used for any purpose
except the preparation and trial (including any appeal) of this case.
4.

CONFIDENTIAL documents, materials, and/or information shall not, without the

consent of the party producing it and the consent of the party claiming confidentiality (if that
party is different from the producing party) or further Order of the Court, be disclosed or made
available in any way to any person other than:
(a)

attorneys actively working on this case;

(b)

persons regularly employed by 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;
(c)
Systems Corporation;

the parties, including designated representatives for Defendants Exelis
(d)

expert witnesses and consultants retained in

connection with this proceeding, to the extent such disclosure is necessary for depositions,
preparation, trial or other proceedings in this case;
(e)
SPRINGS/1037220.1

the Court and its employees (“Court Personnel”);

(f)

stenographic reporters who are engaged in proceedings necessarily

incident to the conduct of this action;
(g)

witnesses in the course of deposition or trial testimony where counsel has

a reasonable and good faith belief that examination with respect to the document is necessary in
legitimate discovery or trial purposes in this case, and any person who is being prepared to
testify where counsel has a reasonable and good faith belief that such person will be a witness in
this action and that his examination with respect to the document is necessary in connection with
such testimony; and
(h)
5.

other persons by agreement of all the parties.

Prior to disclosing any CONFIDENTIAL documents to individuals within 4(d),

4(g) and 4(h) listed above, counsel shall provide such person with a copy of this Protective Order
and obtain from such person an acknowledgment stating that he or she has read this Protective
Order and agrees to be bound by its provisions.
6.

Documents are designated as CONFIDENTIAL by placing or affixing on them

(in a manner that will not interfere with their legibility) the following or other appropriate notice:
“CONFIDENTIAL.” Any information designated by a party as CONFIDENTIAL must first be
reviewed by his or its attorney who will certify that the designation as CONFIDENTIAL is based
on a good faith belief that the information is CONFIDENTIAL or otherwise implicates common
law or statutory privacy interests.
7.

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
SPRINGS/1037220.1

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.
8.

Production of any document or materials without a designation of confidentiality,

or an incorrect designation, will not be deemed to waive a later claim as to its proper designation
nor will it prevent the producing party from designating said documents or material
"CONFIDENTIAL" at a later date.
9.

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 information as CONFIDENTIAL to file an appropriate
motion within thirty (30) days after the conclusion of the ten (10) business days requesting that
the Court determine whether the disputed information should be subject to the terms of this
Protective Order. If such a motion is not timely filed, the disputed information shall not be
treated as CONFIDENTIAL under the terms of this Protective Order. If a motion is timely filed,
the disputed information shall be treated as CONFIDENTIAL under the terms of this Protective
Order until the Court rules on the motion.

In connection with a motion filed 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.
10.

In the event it is necessary for the parties to file CONFIDENTIAL information

with the Court, the CONFIDENTIAL information shall be filed in accordance with the
SPRINGS/1037220.1

requirements of D.C.COLO.L.CivR 7.2, with an accompanying Motion to Restrict Access and a
designation of the level of restriction sought.
11.

By agreeing to the entry of this Protective Order, the Parties adopt no position as

to the authenticity or admissibility of any document produced subject to it. Neither the taking of
any action in accordance with the provisions of this Protective Order, nor the failure to object
thereto, shall be construed as a waiver of any claim or defense in this action.
12.

Nothing in this Protective Order shall preclude any Party from filing a motion

seeking further or different protection from the Court under Rule 26(c) of the Federal Rules of
Civil Procedure, or from filing a motion with respect to the manner in which CONFIDENTIAL
information shall be treated at trial.
13.

The terms of this Protective Order shall survive the termination of this action, and

all protections of this Protective Order shall remain in full effect in perpetuity.
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.
STIPULATED TO AND APPROVED AS TO FORM this ____ day of August 2013.
s/ Mari Newman
__________________________
Mari Newman
Darold W. Killmer
Jessica Jones
KILLMER, LANE & NEWMAN, LLP
1543 Champa Street, Suite 400
Denver, Colorado 80202
303-571-1000 (tele)
303-571-1001 (fax)
[e-mail]
[e-mail]
[e-mail]
Counsel for Plaintiff
SPRINGS/1037220.1

s/ Glenn H. Schlabs
________________________________
Glenn H. Schlabs
SHERMAN & HOWARD, L.L.C.
90 S. Cascade Ave., #1500
Colorado Springs, CO 80903
719-448-4018 (tele)
719-635-4576 (fax)
[e-mail]
Elizabeth B. Chilcoat
SHERMAN & HOWARD, L.L.C.
633 17th Street, Suite 3000
Denver, CO 80202
303-299-8194 (tele)

[e-mail]
Counsel for Defendants Exelis, Inc.

s/ Ian Kalmanowitz
________________________________
Ian Kalmanowitz
CORNISH & DELL'OLIO, P.C.
431 N. Cascade Ave., Ste. 1
Colorado Springs, CO 80903
[phone]
[phone] fax
[e-mail]
Counsel for Defendant Lindloff

DONE AND ORDERED this 9th day of August, 2013.

_________________________________
Kathleen M. Tafoya
United States Magistrate Judge

SPRINGS/1037220.1