Scherr v. Comcast Cable Communications Management, LLC
Filing
16
STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 8/2/13. (cbssec)
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 1:13-cv-01189-WYD-CBS
DAVID SCHERR,
Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS MANAGEMENT, LLC, a Delaware limited
liability company,
Defendant.
STIPULATED PROTECTIVE ORDER
This matter comes before the Court on the parties’ Stipulated Motion for Entry of
Protective Order. The Court has reviewed that Motion and finds it meritorious and acceptable.
Therefore, IT IS ORDERED:
1. DEFINITIONS
(a)
“Confidential Information” means and includes any information, testimony,
document or thing that contains confidential or proprietary information, including,
but not limited to, medical records or other “protected health information” within
the meaning of the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”) and its implementing regulations; information about Defendant’s
customers, vendors, personnel and operations; and financial information,
including, but not limited to, tax returns, financial statements, bank records and
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billing records, that was not previously available to the opposing party and is
produced in this action.
Confidential Information may include, without
limitation, information and documents produced pursuant to F.R.C.P. 26;
testimony adduced at depositions upon oral examination pursuant to F.R.C.P. 30;
written responses to interrogatories pursuant to F.R.C.P. 33; documents produced
pursuant to F.R.C.P. 34; answers to requests for admission pursuant to F.R.C.P.
36; and testimony, documents and things provided pursuant to F.R.C.P. 45.
Confidential Information also may include confidential information owned by a
third party, so long as such information otherwise qualifies as Confidential
Information hereunder.
(b)
“Providing Party” means any party to this action or any third party, expert or
consultant who produces or provides any information, testimony, document or
thing pursuant to formal or informal discovery in this action.
(c)
“Receiving Party” means any party to this action or any third party, expert or
consultant who receives any information, testimony, document or thing in the
course of formal or informal discovery in this action.
2. DESIGNATION OF CONFIDENTIAL INFORMATION
(a)
Documents and things. Each Providing Party shall label, mark or otherwise
identify, in writing, information, documents and things that their counsel
considers in good faith to contain Confidential Information or to be otherwise
entitled to protection under F.R.C.P. 26(c), or other applicable law, with the
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legend “Confidential – Subject to Protective Order.” Before designating any
information, documents or things as Confidential Information, a party’s counsel
must review the information and determine that the Confidential designation is
based on the counsel’s good faith belief that the information is confidential or
otherwise entitled to protection under F.R.C.P. 26(c)(7).
(b)
Depositions. During or after depositions upon oral examination, if counsel for
any party believes that a question or answer of any deponent (whether party,
third-party, expert or otherwise) constitutes Confidential Information, counsel
shall request that the specific pages that include such Confidential Information be
included in a separate sealed portion of the transcript. The reporter shall include
on the cover page of each sealed portion the legend: “This transcript portion
contains information subject to a Protective Order and shall be used only in
accordance therewith.” When testimony designated as Confidential Information
is being given during a deposition, all persons except those who are entitled to
receive such Confidential Information under the terms of this Order shall be
excluded from the deposition room.
(c)
Inadvertent failure to designate. Any Providing Party who inadvertently fails to
designate any information, testimony, document or thing as Confidential
Information may correct such failure by giving written notice of the same to the
Receiving Parties. Upon such written notification, the corrected materials shall
only be deemed Confidential Information prospectively. Substitute copies of the
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corrected information, testimony, document or thing, appropriately marked
“Confidential – Subject to Protective Order,” shall be given to all Receiving
Parties as soon as they become available. Within ten (10) days of receipt of the
substitute copies, the Receiving Parties shall return the previously unmarked
items to the Providing Party.
3.
DESIGNATED
MATERIALS
PRESUMED
CONFIDENTIAL.
All
information, testimony, documents and things designated by a Providing Party as Confidential
Information shall be treated in all respects as though they in fact constitute or contain
confidential information, unless and until the Court rules otherwise or the Providing Party agrees
otherwise.
4.
RESTRICTIONS ON DISCLOSURE AND ACCESS.
(a)
Except as provided below, all Receiving Parties with respect to any particular
Confidential Information shall take reasonable steps to ensure that no persons
obtain such Confidential Information and that no persons have access to such
Confidential Information, except:
(i)
The Receiving Party, in the case of Plaintiff, and employees of the
Receiving Party, in the case of Defendant, who have a specific need to
know the Confidential Information in order to conduct this action;
(ii)
The attorneys of record for the Receiving Party, and all other attorneys
and support personnel in the law firms of record in this action who must
have access to the Confidential Information in connection with this action;
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(iii)
The Court and those employed by the Court, in which event such
information shall be filed under seal pursuant to D.C.COLO.LCivR 7.2;
(iv)
Court reporters employed by any party in this action; and
(v)
Independent experts, consultants or translators for the parties, including
their support personnel, whose advice and consultation are being used or
will be used by such Receiving Party in connection with this action.
(b)
In addition to the above, a Receiving Party may disclose Confidential Information
to a non-party if the non-party is referred to or referenced in the Confidential
Information, or counsel in good faith believes the non-party may have knowledge
of relevant facts, or of facts that may lead to the discovery of admissible evidence,
relating to the Confidential Information, or if the non-party will be a witness at
trial in this matter and disclosure of Confidential Information is necessary for
preparation and completeness of that person’s testimony.
(c)
Counsel for a party disclosing or allowing access to Confidential Information
under this paragraph shall advise the person receiving such Confidential
Information (other than the persons identified in Paragraph 4(a)(iii)) of the terms
of this Protective Order. Before disclosing any Confidential Information to any
person identified in Paragraph 4(a)(i), (ii), (iv) or (v), or Paragraph 4(b), counsel
for the party disclosing or allowing access to such Confidential Information shall,
in addition to advising the person receiving such Confidential Information of the
terms of this Protective Order, provide the person with a copy of this Protective
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Order and shall obtain the person’s written acknowledgement, in the form
attached hereto as Exhibit A, to abide by the terms of this Protective Order.
(d)
This Protective Order shall not be deemed to limit or restrict any Providing Party's
disclosure or use of its own Confidential Information.
5.
RESTRICTIONS ON USE. The parties have stipulated that every person who
obtains Confidential Information is prohibited from using or disclosing Confidential Information
for any purpose whatsoever, except as necessary to assist in the conduct of this litigation.
6.
USE OF CONFIDENTIAL INFORMATION IN COURT PROCEEDINGS:
In the event Confidential Information is used in any court filing or proceeding in this action,
including but not limited to its use at trial, it shall not lose its confidential status as between the
parties through such use. Confidential Information and pleadings or briefs quoting or discussing
Confidential Information will not be accepted for filing “under seal” or otherwise kept out of the
public record in this action, however, except by court order issued upon motion of the party
seeking to file the documents under seal. Any motion requesting leave to file documents under
seal shall comply with the requirements of D.C.COLO.LCivR 7.2.
7.
RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION AT
CONCLUSION OF LITIGATION. The parties agree and stipulate that upon conclusion of the
litigation the receiving attorney will instruct his/her client to return to the attorney all
Confidential Information which may have been received by the client during the litigation. The
receiving attorney may retain a single electronic copy of Confidential Information in order to
fulfill his/her duties under Rule 1.16A, Rules of Professional Conduct. The attorney’s retained
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copy will be maintained in the same secure manner as other client files held by the receiving
attorney. All other copies will either be returned to the Providing Party or destroyed by the
receiving attorney.
8.
OBJECTIONS PRESERVED. Nothing in this Protective Order shall require
the disclosure of information, testimony, documents or things that are otherwise not subject to
discovery, are privileged or constitute attorney work product. Nothing in this Protective Order
shall prejudice any objections that any party might have regarding the production of any
information, testimony, documents or things. Nothing in this Protective Order shall be construed
as an agreement that any Confidential Information shall be excluded from evidence in this
action. 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.
9.
MECHANISM FOR CHALLENGING DESIGNATION.
Any 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 Information 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
Information 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
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shall lose its designation as Confidential Information and shall not thereafter be treated as
Confidential Information in accordance with this Protective Order. In connection with a motion
filed under this provision, the party designating the information as Confidential Information shall
bear the burden of establishing that good cause exists for the disputed information to be treated
as Confidential Information. In addition, any party, and any third party with a legally cognizable
interest in this Protective Order, may apply to the Court at any time for a modification of this
Protective Order for good cause shown.
Any person may move the Court for additional
protective orders with respect to any information, testimony, document or thing, in accordance
with Rule 26 of the Federal Rules of Civil Procedure.
10.
PARTIES’ CLAIMS AND DEFENSES.
Neither a party’s designation of
documents or testimony as confidential under this Protective Order nor a party’s failure to make
or object to such designation shall be admissible in evidence, as a party admission or otherwise,
to prove any fact relevant to any claim or defense asserted in this action.
11.
SURVIVAL. The restrictions on use of Confidential Information set forth in this
Protective Order shall survive the conclusion of this litigation.
12.
MODIFICATION. 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.
2nd
August
ORDERED this ______ day of ____________, 2013.
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BY THE COURT:
s/Craig B. Shaffer
U.S. District Judge
Magistrate
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ACKNOWLEDGEMENT
I hereby acknowledge that I have been advised of the terms of the Protective Order
entered in David Scherr v. Comcast Cable Communications Management, LLC, Civil Action
No. 1:13-cv-01189-WYD-CBS, pending in the United States District Court for the District of
Colorado, have been provided with a copy of said Protective Order, have read and understand
said Protective Order, agree to be bound by and to comply with the terms of said Protective
Order, and agree to submit to the jurisdiction of the United States District Court for the District
of Colorado for the purpose of enforcement of said Protective Order.
Dated: _______________________________
_____________________________________
Printed Name:__________________________
Relationship to Lawsuit:__________________
Address:______________________________
_____________________________________
_____________________________________
Telephone:____________________________
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