Berube v. Mike Ensminger, et al

Filing 20

Stipulation and PROTECTIVE ORDER re 17 , by Judge Richard P. Matsch on 6/5/2013. (rpmcd )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00950-RPM
KIMBERLY BERUBE,
Plaintiff,
vs.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF TELLER,
COLORADO;
SHERIFF MIKE ENSMINGER, in his official capacity as Sheriff of the County of Teller,
Colorado; and
NICKLOS PINELL,
Defendants.
_______________________________________________________________________
STIPULATION AND PROTECTIVE ORDER
_____________________________________________________________________
The parties, by and through their undersigned counsel, stipulate and move the Court
for a Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and
as grounds therefor state as follows:
1.

The parties anticipate seeking/disclosing confidential information contained

in Teller County personnel files during discovery. The parties also anticipate that there will
be questioning concerning confidential information in the course of depositions. The parties
assert that the disclosure of such information outside the scope of this litigation could result
in injury to the business and privacy interests of one or more of the parties. In order to
protect the confidentiality of this information, the parties have entered into this stipulation
and request the Court enter the within Protective Order for the purpose of preventing the
disclosure and use of such information except as set forth herein.

2.

“Confidential Information” means all documents produced from any Teller

County personnel files, as well as any document, file, portions of files, transcribed
testimony, or response to a discovery request, including any extract, abstract, chart,
summary, note, or copy made therefrom - not made available to the public - disclosed
pursuant to the disclosure or discovery duties created by the Federal Rules of Civil
Procedure and designated by one of the parties in the manner provided in paragraphs 7
and 8 below as CONFIDENTIAL.
3.

Information designated as CONFIDENTIAL shall first be reviewed by a lawyer

and the designation of information as CONFIDENTIAL must be based on a good faith belief
that the information is confidential, implicates common law or statutory privacy interests,
or is otherwise entitled to protection.
4.

Confidential Information shall not be disclosed or used for any purposes

outside of this litigation. Individuals authorized to review Confidential Information pursuant
to this Protective Order shall hold such information in confidence and shall not divulge such
information, either verbally or in writing, to any other person, entity, or government agency
unless authorized to do so by order of the Court.
5.

Confidential Information shall not, without the consent of the party producing

it or further order of the Court, be disclosed to anyone except:
(a)

attorneys actively working on this case;

(b)

persons regularly employed or associated with the attorneys actively

working on this case whose assistance is required by said attorneys in the litigation of this
case;
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(c)

the parties, including the parties’ employees, officers, and directors

actively participating in the litigation of this case;
(d)

expert witnesses and consultants retained in connection with this case,

to the extent such disclosure is necessary for the litigation of this case;
(e)

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

(f)

stenographic reporters who are engaged in proceedings necessarily

incident to the conduct of this case; and
(g)
6.

other persons by written agreement of the parties.

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 signed affidavit in the form attached to this Order as
Attachment A, stating that he or she has read this Protective Order, agrees to be bound
by its provisions, and submits to the jurisdiction of the Court for purposes of enforcing the
Protective Order. All such original affidavits 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.

When Confidential Information is produced, disclosed, or otherwise provided

by a party in response to any discovery request, it will be designated as Confidential
Information by imprinting or affixing the word CONFIDENTIAL on the first page or cover of
any document produced, or next to or above any response to a discovery request, in a
manner that will not interfere with the legibility of the document or response.
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8.

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 CONFIDENTIAL after transcription, provided written notice of the
designation is promptly given to all counsel of record within 30 days after notice by the
court reporter of the completion of the transcript.
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 request that the court determine whether the
disputed information should be subject to the terms of this Protective Order. If such 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. 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.
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10.

The termination of this action shall not relieve counsel or other persons

obligated hereunder from their responsibility to maintain the confidentiality of Confidential
Information pursuant to this Protective Order, and the Court shall retain continuing
jurisdiction to enforce the terms of this Protective Order.
11.

At the conclusion of this case, including any appeals, 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. If the
parties agree to destroy CONFIDENTIAL documents, the destroying party shall provide all
other parties with an affidavit confirming the destruction.
12.

The remedy for violations of this Protective Order shall be as follows:
(a)

For willful violation of the Protective Order, the remedy may include

sanctions as determined by the Court and private remedies for damages resulting from the
breach.
(b)

For non-willful violation of the Protective Order, the remedy is limited

to sanctions as determined by the Court.
13.

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.
WHEREFORE, upon a showing of good cause in support of the entry of a Protective
Order to protect the discovery and dissemination of Confidential Information in this case,

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IT IS ORDERED that the Stipulation of the parties is approved and made an Order
of the Court this 5th day of June, 2013.

BY THE COURT:
s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge

STIPULATED AND AGREED TO BY:

s/ R. Stephen Hall
JEWELL & HALL, LLC
Robert Stephen Hall, Esq.
Lowe Douglas Jewell, Esq.
3233 South Dexter Street
Denver, CO 80222
303-816-8588 (phone)
301-816-8566 (fax)
[e-mail] (e-mail)
[e-mail] (e-mail)
ATTORNEYS FOR PLAINTIFF

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s/ Andrew R. McLetchie
FOWLER, SCHIMBERG & FLANAGAN, P.C.
Andrew R. McLetchie, Esq.
Timothy Schimberg, Esq.
1640 Grant Street, Suite 300
Denver, CO 80203-1640
303-298-8603 (phone)
303-298-8748 (fax)
[e-mail] (e-mail)
[e-mail] (e-mail)
ATTORNEYS FOR DEFENDANT PINELL

s/ Sara L. Cook
VAUGHAN & DeMURO
Gordon L. Vaughan, Esq.
Sara Ludke Cook, Esq.
111 South Tejon Street, Suite 545
Colorado Springs, CO 80903
719-578-5500 (phone)
719-578-5504 (fax)
[e-mail] (e-mail)
ATTORNEYS FOR COUNTY DEFENDANTS

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