ACE American Insurance Company v. Dish Network, LLC

Filing 73

STIPULATED PROTECTIVE ORDER. By Magistrate Judge Michael E. Hegarty on 2/2/2015. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 13-cv-00560-REB-MEH
ACE AMERICAN INSURANCE COMPANY,
Plaintiff,
v.
DISH NETWORK, LLC,
Defendant.
STIPULATED PROTECTIVE ORDER

Based upon the Stipulation and Joint Motion for Protective Order (# 65, filed
January 29, 2015) of the parties, and the Court being duly advised;
IT IS HEREBY ORDERED:
1. Scope. This Confidentiality and Protective Order ("'Protective Order") shall
govern discovery in this action and shall be applicable to all information provided,
produced or obtained, whether formally or informally, in the course of discovery in this
action, including, without limitation, information provided, produced or obtained in or
through any depositions, interrogatory response, response to a request for admission,
and any document or thing provided or made available for inspection and/or copying
(collectively “document, thing or testimony”). As used herein, the term "document" shall
include all forms of information delineated in Fed. R. Civ. P. 34(a). Nothing contained in

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this Protective Order shall be construed to require production of Protected Information
which is privileged or otherwise protected from discovery.
2. Protected Information. Any person or entity, whether a party or a nonparty,
and whether acting on its own or through counsel (hereafter "person"), which is
participating in discovery in this action may designate any document, thing or testimony
CONFIDENTIAL, thereby causing it to be “Protected Information,” so long as such
person reasonably believes that such document, thing or testimony contains or
discloses, respectively, information justifying a CONFIDENTIAL designation.
CONFIDENTIAL information is:
(a) Proprietary information or specifications;
(b) Trade secrets; and
(c) Proprietary business and financial information and any other information, the
public disclosure of which is likely to have the effect of causing substantial harm to the
competitive position of the person from which the information is obtained, or causing
substantial harm resulting from the disclosure of confidential information.
3. Procedure For Designating Documents. Any person desiring to subject the
information contained or disclosed in any document (including, without limitation, any
document responsive to a Rule 34 request or to a Rule 45 subpoena, answers to
interrogatories and responses to requests for admission) delivered to or served on any
party to the confidentiality provisions of this Protective Order must designate such
document CONFIDENTIAL in the manner provided herein, unless the parties agree to
an alternative procedure. Any document delivered to or served on any party may be
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designated CONFIDENTIAL by affixing the legend "CONFIDENTIAL” to every page of
the document. All correspondence, legal memoranda, motion papers, pleadings and
other written material which quote or disclose the substance of any Protected
Information shall also be treated as such in accordance with the provisions of this
Protective Order, and such documents shall be marked in accordance with this
paragraph.
4. Inadvertent Failure To Designate. If a party, through inadvertence, produces
any CONFIDENTIAL information without labeling or marking or otherwise designating it
as such in accordance with the provisions of this Protective Order, the designating party
may give written notice to the receiving party that the document or thing produced is
deemed Protected Information and should be treated as such in accordance with the
provisions of this Protective Order. The receiving party must treat such documents and
things as Protected Information from the date such notice is received. Disclosure of
such Protected Information, prior to the receipt of such notice, to persons not authorized
to receive Protected Information shall not be deemed a violation of this Protective
Order.
5. Procedure For Designating Deposition Testimony. If any person believes
that Protected Information belonging to it has been or may be disclosed in the course of
any deposition (whether through any question, answer, colloquy and/or exhibit), then
such person may designate the deposition, portion thereof, or exhibit as
CONFIDENTIAL by (a) stating on the record of the deposition that such deposition,
portion thereof, or exhibit is CONFIDENTIAL, or by (b) stating in a writing served on
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counsel for the other party, or in the case of testimony given by a third party pursuant to
a subpoena, up to thirty (30) days after receipt of such deposition transcript by the
designating person that such deposition, portion thereof, or exhibit is CONFIDENTIAL.
Where a claim of confidentiality is made at any deposition, all persons in attendance
who, by virtue of the terms of this Protective Order, do not have access to such
Protected Information shall be excluded from attendance at the portion or portions of the
deposition at which such Protected Information will be or might be disclosed. If any of
the depositions, portions thereof, or exhibits are designated as CONFIDENTIAL, then all
originals, copies and synopses thereof, shall be marked in accordance with this
Protective Order.
6. Restrictions on Use and Disclosure of Protected Information. All
Protected Information obtained on behalf of a party from any person through discovery
in this lawsuit, and any summaries, abstracts, or indices thereof, shall be used by the
persons who receive such information ("Recipients") solely for the preparation and trial
of this lawsuit (including appeals) and for no other purpose whatsoever. Unless
otherwise authorized by the designating person or ordered by this Court, Recipients
shall not make Protected Information public, shall not use Protected Information in any
other civil action, and shall not disclose or divulge Protected Information to anyone
except as permitted in this Protective Order.
7. Permitted Disclosure of Confidential Information. Any information which
has been designated as Protected Information in accordance with this Protective Order
may be disclosed to:
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(a) Attorneys of the law firms which are then of record for the party requesting the
Protected Information;
(b) Any outside expert or consultant for each party;
(c) Employees, officers, agents and/or directors of each party;
(d) Persons or entities to whom a party in this action has a contractual, legal or
regulatory obligation to provide CONFIDENTIAL information, including reinsurers,
reinsurance intermediaries, retrocessionaires, regulators, retrocessionary accountants
and auditors of any party to this action;
(e) Law clerks, paralegals, stenographic, support and clerical employees of the
persons identified in subsections 7(a)-(d) hereof whose functions require them to have
access to the Protected Information;
(f) The officers, directors, or employees of the party producing the Protected
Information or of the person designating the Protected Information;
(g) Deponents, witnesses and former employees, provided that such individuals
shall not be allowed to retain Protected Information, but may inspect it as necessary for
purposes of preparation for examination;
(h) With respect to any particular document designated as Protected
Information, any person who is named on the face of such document as having been its
author or one of its recipients, or who appears from other documents or testimony to
have been a recipient of such document;

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(i) The Court before which this case is pending, including court personnel who
are authorized by the Judges and the Magistrate Judges of this District to review such
information;
(j) Any stenographer, videographer or court reporter present in his or her official
capacity at any hearing, deposition, or other proceeding in this case; and
(k) Any person authorized in writing by the party designating Protected
Information to receive that Protected Information from the party requesting the
Protected Information.
8. Filing Under Seal. In the event Confidential Information is used in any court
filing or proceeding in this action, including but not limited to its use at trial, it shall not
lose its confidential status as between the Parties through such use. Confidential
Information and pleadings or briefs quoting or discussing Confidential Information will
not be accepted for filing “under seal” or otherwise kept out of the public record in this
action, however, except by court order issued upon motion of the Party seeking to file
the documents under seal. Any motion requesting leave to file documents under seal
shall comply with the requirements of D.C. COLO.LCivR 7.2 and demonstrate that the
Confidential Information at issue is entitled to protection under the standards articulated
in Nixon v. Warner Communications, Inc., supra, Crystal Grower’s Corp. v. Dobbins,
supra, and Mann v. Boatright, supra.
9. Disclosure at Trial. Disclosure of Protected Information at trial shall
otherwise be governed by further order of the Court.

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10. Designation Not Conclusive. The designation of any document, thing or
testimony as CONFIDENTIAL is intended solely to facilitate preparation for trial, and the
treatment of any document, thing or testimony designated as such shall not be
construed as an admission or an agreement that the designated document, thing or
testimony contains or discloses any trade secret or confidential information in
contemplation of law. No person shall be obligated to challenge the propriety of any
such designation, and any failure to do so shall not preclude a subsequent attack on the
propriety of any CONFIDENTIAL designation.
11. Relief Available. In the event the party receiving Protected Information
disagrees with the Confidential designation of that information, the receiving party shall
notify the designating party in writing, reasonably identifying Protected Information to
which the objection is made. The designating party must then immediately contact the
receiving party and arrange to meet and confer with the receiving party within ten (10)
court days from the receipt of the objection, at which conference counsel for the parties
shall endeavor in good faith to resolve their dispute on an informal basis before
presenting the matter to the Court for resolution. In the event the designating party fails
to contact the receiving party and to meet and confer within ten (10) days from the
receipt of the objection, the information designated as CONFIDENTIAL shall no longer
be considered Protected Information. In the event the parties are unable to resolve their
dispute on an informal basis, the designating party shall file a motion with the Court
within ten (10) court days of the informal resolution conference, seeking to preserve the
confidentiality of any such information and must make the showing required by Federal
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Rule of Civil Procedure 26, D.C. COLO.LCivR 7.2, Nixon v. Warner Communications,
Inc., supra, Crystal Grower’s Corp. v. Dobbins, supra, and Mann v. Boatright, supra., in
order to maintain the confidentiality of the information at issue. The designating party
must further assess whether redaction is a viable alternative to complete nondisclosure. In the event the designating party fails to file a motion to maintain the
confidentiality of any such information within ten (10) days from the informal resolution
conference, the information at issue designated as CONFIDENTIAL shall no longer be
considered Protected Information. Any party hereto may seek relief from, or
modification of, this Protective Order, and may challenge the designation of any
document, thing or testimony as CONFIDENTIAL.
12. Procedure Upon Termination of Action. Within sixty (60) days of the final
determination of this action, including all appeals, and unless otherwise agreed to in
writing by counsel, each party shall (a) return to the designating party any original
documents and things constituting Protected Information produced by the designating
party, and (b) either certify in writing that the remaining copies of such documents and
things have been destroyed, will be retained as Protected Information and destroyed in
the normal course of business, or return them to the designating party, such election to
be made by the receiving party. Notwithstanding the foregoing, (a) the attorneys of
record for each party may retain all pleadings, briefs, memoranda, motions, and other
documents containing their work product which refer to or incorporate Protected
Information and will continue to be bound by the terms of this Protective Order with
respect to all such retained information, and (b) any insurance company party or person
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may retain all Protected Information received and all pleadings, briefs, memoranda,
motions, and other documents containing work product which refer to or incorporate
Protected Information for so long as is necessary to comply with applicable regulatory
record retention requirements, and will continue to be bound by the terms of this
Protective Order with respect to all such retained information.
13. Privileged Information. Nothing contained in this Protective Order shall be
construed to require production of Protected Information which is privileged or otherwise
protected from discovery. If a party, through inadvertence, produces any document or
information that it believes is immune from discovery pursuant to the attorney-client
privilege and/or the work product privilege, such production shall not be deemed a
waiver of a privilege, and the producing party may give written notice to the receiving
party that the document or information produced is deemed privileged and that return of
the document or information is requested. Upon receipt of such written notice, the
receiving party shall immediately gather the original and all copies of the document or
information of which the receiving party is aware and shall immediately return the
original and all such copies to the producing party. The return of the document(s)
and/or information to the producing party shall not preclude the receiving party from
later moving the Court to compel production of the returned documents and/or
information.
14. Transmission of Protected Information. Nothing in this Protective Order
shall prohibit the transmission or communication of Protected Information by hand
delivery; face-to-face conference; in sealed envelopes or containers via the mails or an
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established freight, delivery or messenger service; or by telephone, telegram, facsimile
or other electronic transmission system if under the circumstances, there is no
reasonable likelihood that the transmission will be intercepted and misused.
15. No Restriction On Use Of Party’s Own Documents and Documents
Obtained From Other Sources. Nothing in this Protective Order shall prevent any
party from using or disclosing its own documents, or from the use or disclosure of any
non-privileged document or information which such party may have acquired outside of
the discovery process in this action. Nothing in this Confidentiality Order restricts or
limits the use or disclosure of Protected Information by the producing party of such
material or by any receiving party who obtains identical material from outside the
discovery process in this Action.
16. Procedure for Compulsory Process. If a party in possession of Protected
Information obtained from a producing party in this Action receives a subpoena or other
form of compulsory process from a non-party to this Action seeking production or other
disclosure of such information, it shall immediately give written notice to the appropriate
producing party, specifying the information sought and enclosing a copy of the
subpoena or other form of compulsory process, and shall proceed in a good faith
manner consistent with affording the producing party the opportunity to timely object,
intervene or otherwise have its interests heard and protected with respect to such
subpoena or process.
17. Reservation of Rights. Nothing contained in this Protective Order shall
constitute: (a) an agreement by the Parties to produce any documents or supply any
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information or testimony in discovery not otherwise agreed upon, or required by Rules
of Court or by Court Order; (b) a waiver by any person or Party of any right to object to
or seek a further protective order with respect to any discovery request in this or in any
other action; (c) a waiver of any claim of attorney-client privilege, work product
immunity, joint defense privilege, or any other applicable privilege, immunity or
protection with regard to any testimony, documents or information; (d) a waiver by any
Party of its right to apply to the Court for an order designed to preserve the
confidentiality of its Protected Information at trial; or (e) an admission that any particular
document is or is not admissible into evidence in this case.
Dated at Denver, Colorado this 2nd day of February, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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