Gallegos et al v. City of Fort Lupton et al
Filing
29
STIPULATION AND PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 8/14/13. (cbssec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-1053-REB-CBS
C.G., a minor child, by his parents and next friends,
JASON GALLEGOS, for himself and C.G.,
JENNIFER YARBROUGH, for herself and C.G.,
Plaintiffs,
v.
THE CITY OF FORT LUPTON, COLORADO,
KEVIN HALLORAN, individually and in his official capacity as a Fort Lupton Police
Officer,
CRYSTAL SCHWARTZ, individually and in her official capacity as a Fort Lupton Police
Officer,
PAUL STIPE, individually and in his official capacity as a Fort Lupton Police Officer,
JOHN DOE, individually and in his official capacity as a Fort Lupton Police Officer,
WELD COUNTY RE-8 SCHOOL DISTRICT,
MARK PAYLER, individually and in his official capacity as Superintendent, Weld County
RE-8 School District,
NATIVITY MILLER, individually and in her official capacity as Principal of Butler
Elementary School,
STEPHANIE ANDERSON, individually and in her official capacity as Vice-Principal of
Butler Elementary School,
CANDACE KENSINGER, individually and in her official capacity as Principal of Fort
Lupton Middle School,
Defendants.
STIPULATION AND PROTECTIVE ORDER
______________________________________________________________________
Each party and each Counsel of Record stipulate and move the Court for a
Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure
concerning the treatment of Confidential Information (as hereinafter defined) and, as
grounds therefore, state as follows:
1.
In this action, at least one of the Parties has sought and/or may seek
Confidential Information (as defined in paragraph 2 below). The Parties also anticipate
seeking additional Confidential Information during discovery and that there will be
questioning concerning Confidential Information in the course of depositions.
The
Parties assert the disclosure of such information outside the scope of this litigation could
result in significant injury to one or more of the Parties’ business or privacy interests as
well the privacy interests of third parties who are not subject to this litigation. 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 Confidential
Information except as set forth herein.
2.
“Confidential Information” means any document, materials, videos and
information, including without limitation, 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 – and designated by one the
Parties in the manner provided in paragraph 3 below as containing Confidential
Information, including, but not limited to:
a.
Defendants’ personnel files;
b.
Any student files or information contained in student files1; and
c.
Confidential medical records.
The disclosure of student files and related confidential information requires
parental notification and may also require consent. Pursuant to the Family Education
2
Rights & Privacy Act (“FERPA”), “personal information shall only be transferred to a
third party on the condition that such party will not permit any other party to have access
to such information without the written consent of the parents of the student. If a third
party outside the educational agency or institution permits access to information in
violation of paragraph (2)(A), or fails to destroy information in violation of paragraph
(1)(F), the educational agency or institution shall be prohibited from permitting access to
information from education records to that third party for a period of not less than five
years.” 20 U.S.C. § 1232g(4)(B).
In addition, any information designated by a party as confidential will first be
reviewed by that party’s lawyer who will certify that the designation as confidential is
“based on a good faith belief that [the information] is confidential or otherwise entitled to
protection” under Fed.R.Civ.P. 26(c)(7). See Gillard v. Boulder Valley Sch. Dist., 196
F.R.D. 382, 386 (D. Colo. 2000).
3.
Where Confidential Information is produced, provided or otherwise
disclosed by the Parties in response to any discovery request, it will be designated in
the following manner:
a.
By imprinting the word “Confidential” on the first page or cover of
any document produced;
b.
By imprinting the word “Confidential” next to or above any response
to a discovery request;
1
Student records are confidential pursuant to FERPA, codified at 20 U.S.C. § 1232(g), and C.R.S. § 221-123.
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c.
With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” no later than ten calendar
days after receipt of the transcribed testimony; and
d.
testimony.
With respect to live testimony, by making a record at the time of the
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 thirty
(30) days after notice by the court reporter of the completion of the transcript.
4.
All Confidential Information provided by a Party in response to a discovery
request or transcribed testimony shall be subject to the following restrictions:
a.
It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;
b.
It shall not be communicated or disclosed by any Party’s counsel or
a Party in any manner, either directly or indirectly, to anyone except for purposes of this
case and unless an affidavit in the form of Exhibit A has been signed.
5.
Individuals authorized to review Confidential Information pursuant to this
Protective Order including, but not limited to, the Parties to this action, their undersigned
counsel, their undersigned counsel’s employees and agents, insurance representatives
and expert witnesses, shall hold Confidential Information in confidence and shall not
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divulge the Confidential Information, either verbally or in writing, to any other person,
entity or government agency unless authorized to do so by court order. The Parties
recognize that the available sanctions for the violation of the protective order include,
but are not limited to, the sanctions available under Fed.R.Civ.P. 37(b)(2)(A).
6.
By producing any Confidential Information or testifying on any matter later
designated as “Confidential,” no Party to this protective order waives any objection or
challenge to the admissibility of any such Confidential Information.
7.
The Party’s counsel who discloses Confidential Information shall be
responsible for assuring compliance with the terms of this Protective Order with respect
to persons to whom such Confidential Information is disclosed and shall obtain and
retain the original affidavits signed by qualified recipients on Confidential Information,
and shall maintain a list of all persons to whom any Confidential Information is
disclosed.
8.
During the pendency of this action, opposing counsel may inspect the list
maintained by counsel pursuant to paragraph 7 above upon a showing of substantial
need in order to establish the source of an unauthorized disclosure of Confidential
Information and that opposing counsel are unable to otherwise identify the source of the
disclosure. If counsel disagrees with opposing counsel’s showing of substantial need,
then counsel may seek a court order requiring inspection under terms deemed
appropriate by the Court.
9.
No copies of Confidential Information shall be made except by or on
behalf of counsel in this litigation for work product purposes, including for review by
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experts in this case. Any such copies shall be made and used solely for purposes of
this litigation.
10.
During pendency of this litigation, counsel shall retain custody of
Confidential Information and copies made therefrom pursuant to paragraph 9 above
11.
A Party may object to the designation of particular Confidential Information
by giving written notice to the attorney for 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 attorney for 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 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.
12.
The fact that information is marked Confidential under this Protective
Order will not automatically require that the information be subject to restricted access
status. In the event it is necessary for the Parties to file Confidential Information with
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the Court in connection with any proceeding or motion, the moving party shall confer
with the remaining parties regarding the need to restrict access to such information
under D.C.COLO.L.CivR 7.2. After such conferral, a party may file a motion under
D.C.COLO.LCivR 7.2(B) in the event that a party determines there are adequate
grounds for filing such a motion under D.C.COLO.L.CivR7.2.
13.
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 until termination of
this case.
14.
By agreeing to the entry of this Protective Order, the Parties adopt no
position as to the authenticity or admissibility of documents produced subject to it.
Neither the taking of any action in accordance with the provisions of this Protective
Order, nor the failure to object thereto, shall be construed as a waiver of any claim or
defense in this action.
15.
Upon termination of this litigation, including any appeals, each Party’s
counsel shall promptly return to the producing party all Confidential Information provided
subject to this Protective Order or the Parties may elect to destroy CONFIDENTIAL
documents.
Where the Parties agree to destroy CONFIDENTIAL documents, the
destroying party shall provide confirmation that all such information has been destroyed.
At that time, counsel shall provide opposing counsel with the list of individuals prepared
pursuant to paragraph 7 above.
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16.
Nothing in this Protective Order shall preclude any Party from filing a
motion seeking further or different protection from the Court under Rule 26(c) of the
Federal Rules of Civil Procedure, or from filing a motion with respect to the manner in
which Confidential Information shall be treated at trial.
17.
The Parties agree that in the event information or documentation is
inadvertently disclosed to an opposing party, any information or documentation so
disclosed shall be immediately returned to the producing party without any copies being
made or notes being taken regarding said information/documentation by those who
have received the inadvertent disclosure. Further, the parties agree that no recipient of
inadvertently
disclosed
information
or
documentation
shall
utilize
such
information/documentation or any fruits derived therefrom for the purposes of this
litigation and that the inadvertent disclosure of information or documentation shall not
constitute a waiver of any privilege that may otherwise apply.
18.
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 at Denver, Colorado, on August 14, 2013.
BY THE COURT:
s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge
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STIPULATED AND AGREED TO:
By s/ John Kenneth Pineau
John Kenneth Pineau
John Kenneth Pineau, P.C.
Grill Mansion
1435 Broadway
Boulder, Colorado 80203
Telephone: (303) 440-4444
Facsimile: (303) 449-2198
E-mail: johnpineau@yahoo.com
By s/ Ingrid J. DeFranco
Ingrid J. DeFranco
Law Office of Ingrid J. DeFranco
P.O. Box 128
Brighton, Colorado 80601-0128
Telephone: (303) 443-1749
Facsimile: (303) 558-4294
E-mail: Ingrid.defranco@gmail.com
Attorneys for Plaintiff
By s/ Gillian M. Fahlsing
Gillian M. Fahlsing
By s/ Courtney B. Kramer
Courtney B. Kramer
Senter Goldfarb & Rice, L.L.C.
1700 Broadway, Suite 1700
Denver, Colorado 80290
Telephone: (303) 320-0509
Facsimile: (303) 320-0210
E-mail: gfahlsing@sgrllc.com
ckramer@sgrllc.com
Attorneys for Defendant Paul Stipe
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By s/ Josh A. Marks
Josh A. Marks
By s/ Melanie B. Lewis
Melanie B. Lewis
Berg Hill Greenleaf & Ruscitti, L.L.P.
1712 S. Pearl Street
Boulder, Colorado 80302
Telephone: (303) 402-1600
Facsimile: (303) 402-1601
E-mail: jam@bhgrlaw.com
mbl@bhgrlaw.com
Attorneys for Defendants City of Fort Lupton,
Halloran and Schwartz
By s/ Michael W. Schreiner
Michael W. Schreiner
Caplan and Earnest, L.L.C.
1800 Broadway Street, Suite 200
Boulder, Colorado 80302
Telephone: (303) 443-8010
Facsimile: (303) 440-3967
E-mail: mschreiner@celaw.com
Attorneys for Defendants Weld County School District
RE-8, Mark Payler, Nativity Miller, Stephanie Anderson,
and Candace Kensigner
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AFFIDAVIT
STATE OF COLORADO
COUNTY OF
)
)ss
)
_____________________________, swears or affirms and states under penalty
of perjury:
1.
I have read the Protective Order in Jason Gallegos, et al. v. The City of
Fort Lupton, Colorado, et al., Civil Action No. 13-CV-1053-REB-CBS a copy of which is
attached to this Affidavit.
2.
I have been informed by ___________________________, Esq., counsel
for _______________________________, that the materials described in the list
attached to this Affidavit are Confidential Information as defined in the Protective Order.
3.
I promise that I have not and will not divulge or undertake to divulge to any
person or recording device any Confidential Information shown or told to me except as
authorized in the Protective Order. I will not use the Confidential Information for any
purpose other than this litigation.
4.
For the purpose of enforcing the terms of the Protective Order, I hereby
submit myself to the jurisdiction of the court in the civil action referenced above.
5.
I will abide by the terms of the Protective Order.
_________________________________________
(Signature)
_________________________________________
(Print or Type Name)
Address:
_________________________________________
_________________________________________
SUBSCRIBED AND SWORN to before me this ______________ day of
___________________________, 2013, by_______________________________.
WITNESS my hand and official seal.
_____________________________
Notary Public
My commission expires:________________
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00799514.DOC
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