Giroux v. Heartland Technology Partners, LLC

Filing 31

PROTECTIVE ORDER by Judge R. Brooke Jackson on 09/18/13. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 13-cv-00939-RBJ
LARRY GIROUX,
Plaintiff and Counterclaim Defendant,
v.
HEARTLAND TECHNOLOGY PARTNERS, LLC,
Defendant, Counterclaim Plaintiff and Third Party Plaintiff,
v.
GIROUX GROUP, LLC,
Third Party Defendant.

PROTECTIVE ORDER

Upon a showing of good cause in support of the entry of a protective order to
protect the discovery and dissemination of confidential information or information that
one or more parties claim constitutes confidential information, IT IS SO ORDERED
THAT:
1. This Protective Order shall apply to all documents, materials, and information,
including

without

limitation,

documents

produced,

answers

given

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.

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2. As used in this Protective Order, DOCUMENT means a writing, as defined in
F.R.E. 1001(a), and also described in F.R.C.P. 34(a)(1)(A), and shall also include
without limitation, all written or graphic material of every kind and description
however produced or reproduced. and includes the original or a copy of
handwriting, typewriting, printing, photostating, photographing, and every other
means of recording upon any tangible thing and form of communicating or
representation, including letters, words, pictures, sounds, or symbols, or
combinations of them. The word DOCUMENT is to be construed as broadly as
the law including the Federal Rules of Civil Procedure allow and includes without
limitation, books, records, statements, invoices, contracts, appraisals, purchase
orders, work orders, change orders, accounts letters, telegrams, notes,
memoranda, reports, summaries, diaries, payroll records, logs, work sheets,
facsimile transmissions, information capable of retrieval and stored upon
computer data disks including hard drives, jump drives, letters, emails,
photographs, audio and video tapes.
3. A draft or non-identical copy is a separate document within the meaning of this
term.
4. Information designated “CONFIDENTIAL” shall be information that implicates the
privacy interests of Plaintiff, Defendant or Third Party Defendant and/or
information contained in confidential business records and communications.
CONFIDENTIAL information shall not be disclosed or used for any purpose
except in settlement, pretrial discovery, at the trial or in preparation for trial, or for
any appeals of this action.

Giroux v. Heartland Technology Partners, LLC
United States District Court for Colorado, Civil Action No. 13-cv-00939-RBJ
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5. CONFIDENTIAL

documents,

materials,

and/or

information

(collectively

“CONFIDENTIAL information”) shall not, without the consent of the party
producing it or further Order of the Court, be disclosed except that such
information may be disclosed, unless subject to another rule of non-disclosure
such as F.R.E. 408, as follows to:
(a) attorneys who are actively working on this case and persons employed in
the firms of such attorneys;
(b) persons regularly employed 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;
(c) the parties;
(d) expert witnesses and consultants retained in connection with this
proceeding, to the extent such disclosure is necessary for preparation,
trial, or other proceedings herein;
(e) the Court in this case and its employees, as well as any jurors seated, or
as necessary for any appeals of this action;
(f) stenographic or other court reporters who are engaged in proceedings
necessarily incident to the conduct of this case;
(g) deponents, during the course of a deposition (or otherwise pursuant to
clause (h)); and;
(h) fact witnesses whom the disclosing attorney reasonably believe have
firsthand knowledge relating to the CONFIDENTIAL Information, such as
by having been involved in preparation of the document containing the

Giroux v. Heartland Technology Partners, LLC
United States District Court for Colorado, Civil Action No. 13-cv-00939-RBJ
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CONFIDENTIAL Information, having been a recipient of such document,
having supplied the CONFIDENTIAL Information contained in such
document, or being the subject of such document;

(i) to a party or court issuing a valid subpoena in another action, provided
that the subpoenaed party first provides notice to counsel of record of the
party claiming confidentiality within 24 hours of service of the subpoena.
Included with the notice shall be a copy of the subpoena;
6. Prior to disclosing any CONFIDENTIAL information to any person listed above
(other than counsel, persons employed by counsel, Court Personnel and
stenographic reporters), counsel shall provide such person with a copy of this
Protective Order and obtain from such person a written acknowledgment stating
that he or she has read this Protective Order and agrees to be bound by its
provisions. All such acknowledgments shall be retained by counsel and shall be
subject to in camera review by the Court if good cause for review is
demonstrated by opposing counsel.
7. Documents are designated as CONFIDENTIAL by placing or affixing on them (in
a manner that will not interfere with their legibility) the term “CONFIDENTIAL,” or
by designating them as “CONFIDENTIAL” in correspondence from counsel to the
party producing documents. The first method is to be used whenever possible
when the party producing the documents is also the party which designates them
CONFIDENTIAL.

Any information designated by a party as CONFIDENTIAL

must first be reviewed by a lawyer and the designation as CONFIDENTIAL must

Giroux v. Heartland Technology Partners, LLC
United States District Court for Colorado, Civil Action No. 13-cv-00939-RBJ
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be based on a good faith belief that the information is confidential or otherwise
entitled to protection under Fed. R. Civ. P. 26(c)(1)(G).

8. Producing or receiving materials or otherwise complying with the terms of this
Protective Order shall not:
(a) operate as an admission by any party that any particular discovery
material

contains or reflects any CONFIDENTIAL information or a trade

secret under applicable law;
(b) prejudice in any way the rights of any party to object to the production of
documents it considers not subject to discovery or otherwise protected
from or limited in discovery on the basis of privilege or otherwise;
(c) prejudice in any way the rights of a party to seek a Court determination
regarding whether particular discovery materials should be produced; or
(d) prejudice in any way the rights of a party to apply to the Court for any
additional protection with respect to the confidentiality of information as
that party may consider appropriate.
9. Whenever a deposition involves the disclosure of CONFIDENTIAL information,
the portions of the deposition containing such information shall be designated on
the record 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 all or any portion of
depositions as CONFIDENTIAL after transcription, provided written notice of the

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United States District Court for Colorado, Civil Action No. 13-cv-00939-RBJ
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designation is given promptly 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
by giving written notice to the party designating the disputed information. The
written notice shall identify the information to which the objection is made and the
legal and factual basis for the objection. 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 requesting that the Court
determine whether the disputed information should be subject to the terms of this
Protective Order. If such a motion is filed timely, the disputed information shall be
treated as CONFIDENTIAL under the terms of this Protective Order until the
Court rules on the motion. If the designating party fails to file such a motion within
the prescribed time, 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 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.
11. In the event any Party desires to file a motion, pleading, document, brief,
memorandum, or any other paper with this Court which discloses any
CONFIDENTIAL Information, or the substance thereof, then the intent to file such
motion, pleading, document, brief, memorandum, or other paper (or, if

Giroux v. Heartland Technology Partners, LLC
United States District Court for Colorado, Civil Action No. 13-cv-00939-RBJ
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appropriate, the confidential portion thereof) shall be disclosed to the non-filing
party claiming confidentiality at least 24 hours prior to the proposed filing. The
parties shall then work in good faith to reach an agreement which addresses or
eliminates the need to file the motion, pleading, document, brief, memorandum,
or other paper or the need to disclose the purported Confidential information.
Any conference or failure to confer as required by this order shall be included in a
statement in the filing.
12. At the conclusion of this case, including any appeals or the expiration of time for
initiating an appeal, unless other arrangements are agreed upon, each document
and all copies thereof which have been designated as CONFIDENTIAL shall be
returned to the party that designated it CONFIDENTIAL, or the parties may elect
to destroy CONFIDENTIAL documents; provided, however, that counsel for each
party may retain one copy of the CONFIDENTIAL documents for the sole
purpose of maintaining a complete file, and all such retained documents will not
be released, disclosed, or utilized except upon express permission of this Court
after written notice to counsel for the party that produced the documents. Where
the parties agree to destroy CONFIDENTIAL documents, the destroying party
shall provide all parties with an affidavit confirming the destruction.
13. This Stipulated Protective Order may be modified by written agreement of the
parties or by the Court at any time for good cause shown following notice to all
parties and an opportunity for them to be heard.
14. The foregoing Stipulated Protective Order is APPROVED and made an ORDER
of this Court.

Giroux v. Heartland Technology Partners, LLC
United States District Court for Colorado, Civil Action No. 13-cv-00939-RBJ
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DATED this 18th day of September, 2013.
BY THE COURT:

________________________
Hon. R. Brooke Jackson,
United States District Court Judge