General Steel Domestic Sales, LLC v. Chumley et al

Filing 68

ORDER granting 59 Motion and Protective Order. By Magistrate Judge Kathleen M. Tafoya on 8/12/2013.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 13–cv–00769–MSK–KMT

GENERAL STEEL DOMESTIC SALES, LLC, d/b/a GENERAL STEEL CORPORATION, a
Colorado limited liability company,
Plaintiff,
v.
ETHAN DANIEL CHUMLEY, individually,
ATLANTIC BUILDING SYSTEMS, LLC, a Delaware corporation, doing business as
ARMSTRONG STEEL CORPORATION,
PRQ INTERNET KOMMANDITBOLAG (LIMITED PARTNERSHIP) doing business as PRQ
INET KB, and
GOTTFRID SWARTHOLM, individually,
Defendants.
______________________________________________________________________________
ORDER ON MOTION and
PROTECTIVE ORDER
______________________________________________________________________________
This matter comes before the court on “Plaintiff’s Motion for Protective Order” [Doc.
No. 59]. The motion is GRANTED in part and the following Protective Order is hereby entered.
IT IS HEREBY ORDERED:
1.

This Order governs any information designated by a party as containing

“confidential information” or “confidential – attorneys’ eyes only.” The form of information
protected includes, but is not limited to, documents and things, responses and requests to
produce documents or other things, deposition testimony and exhibits, interrogatory answers,
and all copies, extracts, summaries, compilations, designations and portions thereof.

2.

Any information produced that a party or subpoenaed party reasonably and in

good faith believes contains confidential information may be so designated by labeling the first
page of the document “confidential.” Any information produced that a party or subpoenaed party
reasonably and in good faith believes contains confidential information would provide a
competitive advantage to another party may be so designated by labeling the first page of the
document “confidential – attorneys’ eyes only.” If a subpoenaed party does not designate any
document or thing that a Party reasonably believes should be entitled to Confidential or
Confidential-Attorney’s Eyes only protections, such Party may make any such designation
within 10 days of the production of any such document or thing by the subpoenaed party. For all
other documents and things, the designation of confidentiality shall be made at the time of the
production of the documents or things if they were produced after the entry of this Order. The
designation may be made within 30 days of the entry of this Order for any other documents. For
deposition testimony, the designation of confidentiality shall either be made on the record of the
deposition, or within ten business days after receipt of the deposition transcript. For interrogatory
answers, the designation of confidentiality shall be made at the time of the answer to the
interrogatory is submitted. However each party retains the right to subsequently redesignate
documents and to require such documents to be treated in accordance with such designations
thereafter. Such disclosures shall not result in the waiver of any associated privilege.
3.

Resolution of disputes regarding designation. If a Party takes issue with the

designation of Confidential or Attorneys’ Eyes Only, that party shall inform the other in writing,
and the parties shall make a good faith effort to resolve the dispute. If the parties cannot resolve
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the dispute regarding designation of confidentiality, the disputing party may request relief from
the court ten business days after providing the disclosing party written notice confirming its
belief that the good faith efforts to resolve the disagreement have failed. The burden of
establishing that the document is entitled to protection is on the disclosing party. The challenged
designation shall remain in effect until changed by order of the court or agreement of the parties.
4.

A.

Access to Confidential Information. Access to information marked

Confidential shall be limited to the following “Qualified Persons”:
i.

The Parties, including the officers, partners, in-house counsel and
management employees of the parties or related entities which share
common control or employees with the parties, unless the information is
designated “Confidential Attorney’s eyes only”.

ii.

The parties’ independent third party attorneys, including any litigation
assistant or paralegal employed by and assisting such counsel, and
stenographic, secretarial or clerical personnel employed by and assisting
such legal counsel in this action; Before any such person is permitted
access to any of the confidential information, such person shall be
informed of the existence and contents of this Protective Order execute
such acknowledgment in the form of Exhibit A attached hereto;

iii.

Persons who are directly and actively assisting trial counsel in the
preparation of this action, including parties assisting in electronic
discovery and mediators. Before any such person is permitted access to
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any of the confidential information, such person shall be informed of the
existence and content of this Protective Order and execute such
acknowledgment in the form of Exhibit A attached hereto;
iv.

any court reporter or typist recording or transcribing testimony given in
this action and the court and court personnel;

v.

Experts and consultants retained in this matter by the attorneys in so far as
the attorneys may deem it necessary for the preparation or trial of this
matter. Prior to any expert or consultant being permitted access to any of
the confidential information, each such expert or consultant shall first
execute a declaration agreeing to be bound by the terms of this Protective
Order in the form of Exhibit A attached hereto.

vi.

Any witness that a Party reasonably believes needs to review the
information in order to prepare for or provide testimony in this matter.
Prior to any witness being permitted access to any of the confidential
information, each witness shall first execute a declaration agreeing to be
bound by the terms of this Protective Order in the form of Exhibit A
attached hereto.

B.

Access to Confidential – Attorneys’ Eyes Only Information. Information

or documents designated as “confidential – attorneys eyes’ only may be disclosed only to
counsel for the parties, experts employed by the Parties in this matter, (and who are not Party
employees), and not to any other person designated as a “qualified-person” under Section 4(A).
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5.

A.

Use of Designated Information. Confidential and Confidential –

Attorneys’ Eyes Only information disclosed pursuant to this protective Order shall be used only
for purposes of the above captioned matter and shall be protected from any unauthorized or
unrelated use, or any use which results or attempts to result in a competitive advantage in the
marketplace. Any deposition, upon any inquiry with regard to the content of a document marked
“confidential” or “confidential-attorneys’ eyes only”, or when counsel for a party deems that the
answer to a question shall result in the disclosure of confidential information, counsel for that
party may request that all persons other than the reporter, counsel and individuals herein
authorized leave the deposition room during the confidential portion of the deposition. All
information designated as “confidential” or “confidential-attorneys’ eyes only” information
which is filed or lodged with the court shall be filed in accordance with D.C.COLO.LCivR. 7.1
and 7.2. The parties agree not to oppose any Motion to Seal filed in accordance with this section.
Any objections to such Motion may be made in accordance with D.C.COLO.LCivR. 7.2(C).
B.

Protection of confidential attorneys’ eyes only material by in-house

counsel. Plaintiff’s representation by in-house counsel creates a conflict which requires that, as
to any material produced by Defendants which is marked as “confidential-attorneys’ eyes only,”
Plaintiff’s counsel create and maintain a separate area of storage – either electronic or physical –
which is not accessible by any person except named in-house counsel. This can be accomplished,
for instance, by the use of uniquely password-protected and/or encrypted computer folders which
are not visible without proper authentication or by the use of a locked storage area or container
which is not accessible without a specific key or combination known only to counsel or by the
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use of separate computer storage devices (i.e., ‘stick’ drives or disks) which are maintained in a
locked physical storage container as described herein. Professional standards of conduct for inhouse counsel, as well as all other counsel, require that counsel compartmentalize knowledge
gained from “confidential attorneys’ eyes only” discovery materials from other discovery and
that such knowledge not be revealed to any unauthorized person, and specifically not to any
employee or agent of any party company, without court order.
6.

No Waiver. Other than specified herein, the taking of or the failure to take any

action to enforce the provisions of this Protective Order, or the failure to object to any
designation or any such action or omission, shall not constitute a waiver of any right to seek and
obtain protection or relief.
7.

Termination of Litigation. Within thirty days of the final disposition of this

matter, whether by judgment and exhaustion of all appeals, or by settlement, the attorneys of
record shall destroy or return to the disclosing party or its attorney the confidential information
in their possession, custody or control or in the possession, custody or control of their staff,
experts and constituents, and shall destroy all notes, memoranda or other documents which
contain excerpts from any of the confidential information, except that counsel may retain one
copy of such notices, memoranda or other documents for their files, and shall deliver to the
disclosing party or its attorney written confirmation that there has been compliance with the
terms of this paragraph or that there has not been compliance and the reason for such
noncompliance, upon receipt of which the disclosing party may make application to the court for
such further order as may be appropriate.
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8.

Acceptance and Inadvertent Disclosure. Acceptance by a party or its attorney of

information disclosed under designation as protected shall not constitute an admission that the
information is, in fact, entitled to protection. Inadvertent disclosure of information which the
disclosing party intended to designate as protected shall not constitute waiver of any right to
claim the information as protected upon discovery of the error.
9.

In the event that any party hereto claims that any provision of the Protective

Order has been violated, such party may move this Court, upon proper notice, for appropriate
sanctions and/or other relief.
10.

Nothing in this Protective Order shall be construed as limiting or negating the

right of any party hereto to bring a motion to compel discovery in this action or as limiting or
negating the right of any party to object to any discovery such party otherwise believes in good
faith to be improper.
11.

This Protective Order shall not preclude any party from using or disclosing any

documents or materials created or maintained by that party for any lawful purpose.
12.

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.
Dated this 12th day of August, 2013.

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