Thomsen v. Capital One, N.A.

Filing 19

PROTECTIVE ORDER. By Magistrate Judge Boyd N. Boland on 9/18/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-00997-MSK-BNB
ROSS THOMSEN,
Plaintiff,
v.
CAPITAL ONE, N.A.,
Defendant.

PROTECTIVE ORDER

This matter comes before the Court on the Parties’ Stipulated Motion for Entry of
Protective Order. The Court has reviewed that Motion. The Motion is meritorious and
acceptable. Therefore, IT IS ORDERED:
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.
2.

As used in this Protective Order, “document” is defined as provided in

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 and statutory privacy interests such as: (a) personnel
records of current or former employees of Defendant Capital One, N.A. (“Defendant”) to the
extent that such information implicates privacy interests and is not generally known to the
public; (b) proprietary business information of the Defendant; (c) information containing
industry trade secrets; and/or (d) information relating to Plaintiff concerning personal and
confidential matters not generally known to the public, such as, but not limited to, income
information, medical information, and information regarding contacting prospective employers.
4.

Documents designated as “CONFIDENTIAL” shall be first reviewed by a lawyer,

or a party should that party not be represented by a lawyer, who will certify that the designation
is based on a good faith belief that the information is confidential or otherwise entitled to
protection under Fed. R. Civ. P. 26(c)(1). Parties and attorneys designating documents as
“Confidential” will be representing that such documents contain information the disclosure of
which would implicate an important interest to be protected which outweighs the presumption of
public access and that they will be able to identify to the Court a clearly defined and serious
injury that would result if access is not restricted, as required by D.C.COLO.LCivR 7.2(B)(2) &
(3).
5.

CONFIDENTIAL documents, materials, and/or information (collectively

“CONFIDENTIAL information”) shall be used solely for the purpose of this action, and shall
not, without the consent of the party producing it, or further Order of the Court, be used,
transferred, disclosed or communicated in any way, except that such information may be
disclosed to:
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(a)

attorneys actively working on this case;

(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 in this case;
(c)

the parties, including designated representatives;

(d)

expert witnesses and consultants retained in connection with this proceeding, to

the extent such disclosure is necessary for preparation, trial or other proceedings in 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 action;
(g)

deponents, witnesses, or potential witnesses; and

(h)

other persons by written agreement of the parties.

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 an executed “Written Assurance” in the form attached hereto as Exhibit A. All such
written assurances 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 following or other appropriate notice:
“CONFIDENTIAL.”
8.

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In the event Electronically Stored Information (“ESI”) is disclosed or discovered

in the course of this litigation, including, but not limited to, ESI provided in a native format on
hard disks or other magnetic data storage disks, removable disks and/or drives, portions thereof,
or digital images of data storage disks or drives, such information may be designated as
CONFIDENTIAL in a written communication or in an electronic mail message to the nonproducing party.
9.

Any party who inadvertently fails to identify documents or information as

CONFIDENTIAL shall, promptly upon discovery of its oversight, provide written notice of the
error and substitute appropriately-designated documents. Any party receiving such improperlydesignated documents shall promptly retrieve such documents from persons not entitled to
receive those documents and, upon receipt of the substitute documents, shall return or destroy
the improperly-designated documents.
10.

Any party who inadvertently discloses documents that are privileged or otherwise

immune from discovery shall, promptly upon discovery of such inadvertent disclosure, so advise
the receiving party and request that the documents be returned. The receiving party shall return
such inadvertently produced documents, including all copies and copies the receiving party
provided to any other individual or entity, within 14 days of receiving such a written request.
11.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2. Any pleadings, exhibits or filings which contain CONFIDENTIAL
information, or testimony designated as CONFIDENTIAL, shall be filed with the Court in
accordance with D.C.COLO.LCivR 7.2 and the Court’s “Electronic Case Filing Procedures for
the District of Colorado.” A party seeking to file with the Court any Confidential material that
has been designated by the other party may request that the designating party provide the

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information required by D.C.COLO.LCivR 7.2(B) by notifying counsel for the designating party
(or Plaintiff if Plaintiff is not represented by counsel) in writing at least ten (10) business days
before the filing is to occur. If such a request is made, counsel for the designating party (or
Plaintiff if Plaintiff is not represented by counsel) shall, within five (5) business days, respond in
writing providing the information required by D.C.COLO.LCivR 7.2(B). If no such timely
request is made, the party seeking to file the Confidential materials must in good faith provide
the information required by D.C.COLO.LCivR 7.2(B). Prior to disclosure at trial or a hearing
regarding CONFIDENTIAL information, the parties may seek further protections against public
disclosure from the Court.
12.

Whenever a deposition involves the disclosure of CONFIDENTIAL information,

the portions thereof that involve the disclosure of CONFIDENTIAL information 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 thirty (30)
days after notice by the court reporter of the completion of the transcript. Transcript pages
containing CONFIDENTIAL information must be separately bound by the court reporter, who
must affix to the top of each such page the legend “CONFIDENTIAL,” as instructed by the party
or non-party offering or sponsoring the witness or presenting the testimony.
13.

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
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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 comply with the
Court’s procedures, which may include filing an appropriate motion requesting that the Court
determine whether the disputed information should be subject to the terms of this Protective
Order. The disputed information shall be treated as CONFIDENTIAL under the terms of this
Protective Order until the Court rules on the dispute. 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.
14.

At the conclusion of this case, 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. Where the parties agree to destroy CONFIDENTIAL documents,
the destroying party shall provide all parties with an affidavit confirming the destruction.
15.

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 September 18, 2013.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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EXHIBIT A
WRITTEN ASSURANCE
_________________________________________ declares that:
I reside at _______________________________________ in the City of
__________________, County of
, State of _____________. My
telephone number is __________________________________.
I am currently employed by ___________________________________, located
at _____________________________________________________, and my current job title is
____________________________________________________.
I have read and I understand the terms of the Protective Order dated
___________________, filed in Civil Action No. 1:13-cv-00997-MSK-BNB, Ross Thomsen v.
Capital One, N.A., pending in the United States District Court for the District of Colorado. I
agree to comply with and be bound by the provisions of the Protective Order. I understand that
any violation of the Protective Order may subject me to sanctions by the Court.
I shall not divulge any documents, or copies of documents, designated
“CONFIDENTIAL” obtained pursuant to such Protective Order, or the contents of such
documents, to any person other than those specifically authorized by the Protective Order. I
shall not copy or use such documents except for the purposes of this action and pursuant to the
terms of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this
action, I shall return to the attorney from whom I have received them, any documents in my
possession designated “CONFIDENTIAL,” and all copies, excerpts, summaries, notes, digests,
abstracts, and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the
District of Colorado for the purpose of enforcing or otherwise providing relief relating to the
Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on ______________________
(Date)

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___________________________
(Signature)