Ritchie v. Chartis Claims, Inc. et al

Filing 24

ORDER and Stipulation Regarding Confidentiality by Magistrate Judge Kathleen M. Tafoya on 2/6/14. (sgrim) Modified on 2/6/2014 to reflect actual title of document. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-CV-01387-WYD-KMT
ROBERT RITCHIE,
Plaintiff
v.
CHARTIS CLAIMS, INC., d/b/a AIG CASUALTY COMPANY, and
COMMERCE AND INDUSTRY INSURANCE COMPANY
Defendants

ORDER AND STIPULATION REGARDING CONFIDENTIALITY

During the course of discovery, the parties may exchange information, to include
documents and testimony containing proprietary and sensitive business, financial,
commercial or other technical information, the uncontrolled release of which would
cause the producing party and/or certain non-parties competitive harm. In order to
facilitate this discovery while protecting the producing party’s proprietary interests, as
well as the proprietary and commercial interests of non-parties, it is hereby ORDERED:
I.
A.

The parties recognize that discovery in this matter may call for the

production of materials containing confidential and proprietary business, financial,
technical and other commercially sensitive information, including sensitive business,
financial, technical, and commercially sensitive information relating to non-parties, and
that the producing party has a protected proprietary and property interest in those

materials, or otherwise has an interest in preventing the dissemination of information
about non-parties.
B.

If the producing party has a good faith factual and legal basis for asserting

a privilege or exemption from public disclosure, the producing party may designate as
“CONFIDENTIAL” the portion of any produced material it considers subject to its claim
of privilege or exemption in accordance with Section I.F, below, relying on the terms of
this Stipulation Regarding Confidentiality (“Stipulation Regarding Confidentiality”) in
producing that information.

Such “CONFIDENTIAL” designation shall make the

designated portions of those produced materials and all copies, prints, summaries,
translations, or other reproductions of such material subject to this Stipulation
Regarding Confidentiality. This Stipulation Regarding Confidentiality also shall apply to
the specific pages and lines from oral depositions as well as any discovery responses,
designated as “CONFIDENTIAL” by the producing party in accordance with Section I.G,
below.
C.

When used in this Agreed Stipulation Regarding Confidentiality, the word

“CONFIDENTIAL” means designated financial, competitive, research, development,
business, and other technical or other commercially sensitive information of the
producing party and/or such information relating to non-parties.
D.

When used in this Stipulation Regarding Confidentiality, the term

“CONFIDENTIAL MATERIAL” means all designated written materials, computer
documents, specifications, responses to Interrogatories, Requests for Production,
Requests For Admission, or other written discovery referencing confidential material,
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deposition transcripts, information which the producing party in good faith regards as a
trade secret under Colo. Rev. Stat. 7-73-101, pricing information, or other confidential
research, development, or commercial information, personnel information, personnel
files, contractual information or information which implicates the privacy interests of the
producing party or any third party and all other designated tangible items which disclose
“CONFIDENTIAL” information, whether produced in hard-copy, on CD-ROMs or DVDs,
or any other media.
E.

The burden of proving the confidential nature of designated information is

on the producing party. Prior to designating any material as “CONFIDENTIAL” and
subject to this Stipulation Regarding Confidentiality, the producing party must make a
bona fide determination that the material is, in fact, confidential as defined above, the
dissemination of which would significantly damage the producing party’s competitive
position or impact the competitive interests of non-parties.
F.

To designate a portion of any document or other printed material as

“CONFIDENTIAL,” the producing party shall mark the designated pages of the material
with the word “CONFIDENTIAL” in a manner that does not obscure, or impair the
legibility of any information contained within the material, but makes it difficult to remove
the designation. In order to designate a computer database, disc, compact disc, drive,
or other electronically recorded material as “CONFIDENTIAL,” the producing party shall
mark

the

disc,

case

or

envelope

containing

the

material

with

the

word

“CONFIDENTIAL.” Documents printed from such electronic media shall be marked the
same as documents originally produced on paper.
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G.

In the case of a deposition or oral examination, counsel for the producing

party may, during the deposition, designate on the record that testimony involving
“CONFIDENTIAL MATERIAL” be held as “CONFIDENTIAL,” and the entire deposition
transcript will be treated as “CONFIDENTIAL” until counsel for the producing party
receives a transcript of the deposition and designates specific page and line portions of
the testimony. In the event the producing party’s counsel during the deposition does not
designate on the record that testimony involving “CONFIDENTIAL MATERIAL” be held
as “CONFIDENTIAL,” the producing party does not waive its right to designate the
deposition testimony or any parts thereof as “CONFIDENTIAL” upon receipt of the
deposition transcript. After receipt of the final deposition transcript, the producing party
shall identify by page and line the portion of the material that the producing party
intends to designate as “CONFIDENTIAL” in a written letter served to all counsel of
record within fourteen (14) days after the producing party’s receipt of the written
deposition transcript from the court reporter.

Only the portions of the deposition

transcript designated by the producing party during this time period shall remain
“CONFIDENTIAL.”

Any party challenging the “CONFIDENTIAL” designations of the

deposition transcripts shall inform the producing party of those specific challenges in
writing within 20 days of receiving the designations. The producing party shall have 20
days from receipt of the written challenges to move for an appropriate order regarding
the confidentiality of all or portions of the transcript. The parties stipulate that the court
reporter or videographer for any such depositions, who will be given a copy of this
Stipulation Regarding Confidentiality, and will execute an acknowledgement thereof,
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shall not disclose to anyone (other than the COVERED PERSONS as defined in
Section I.H below) any deposition testimony or exhibits in this lawsuit.
H.

When used in this Stipulation Regarding Confidentiality, the term

“COVERED PERSONS” includes only the following: (1) the Court and all Court
personnel; (2) the named parties in this litigation; (3) retained counsel for all parties in
this litigation, including members of counsel’s legal or support staff (e.g., in-house
investigators, secretaries, legal assistants, paralegals, and law clerks), to the extent
reasonably necessary for such persons to render assistance in this litigation; (4) nonattorney experts retained or consulted by counsel for any party to assist in the
preparation, prosecution, or evaluation of this litigation,; and (5) witnesses, deponents,
potential witnesses , representatives for defendant entities, and the jury in this case.
II.
This Stipulation Regarding Confidentiality is to facilitate the exchange of records
and information in discovery. It governs disclosures to third persons or disclosure of
records for discovery motions and discovery proceedings. Nothing in this Stipulation
Regarding Confidentiality shall be deemed to preclude any party’s right to oppose
discovery on grounds not addressed under the terms of this Stipulation Regarding
Confidentiality, or to object on any ground to the admission of any CONFIDENTIAL
MATERIAL into evidence at trial.
III.
Absent

a

further

order

of

the

Court,

those

documents

marked

as

“CONFIDENTIAL MATERIAL,” as described in Sections I.F and I.G, shall not be used
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for any purpose other than the prosecution or defense of this captioned action, and shall
not be shown, disseminated or disclosed in any manner to anyone other than
COVERED PERSONS as defined in Section I.H without the prior written agreement of
the producing party or by order of the Court after due notice to the producing party.
IV.
Before

showing

or

divulging

any

“CONFIDENTIAL

MATERIAL”

or

“CONFIDENTIAL” information to any COVERED PERSON other than the Court and
Court personnel, counsel shall first obtain from each such person a signed “WRITTEN
ASSURANCE” in the form attached hereto as Exhibit “A.” Counsel shall maintain a list
of all such recipients of “CONFIDENTIAL MATERIAL” to whom this paragraph applies
and the original of every “WRITTEN ASSURANCE” required pursuant to this paragraph.
All “WRITTEN ASSURANCE” forms retained by counsel shall be subject to an in
camera review by the Court if good cause for review is demonstrated.
V.
A.

If any “CONFIDENTIAL MATERIAL” is filed with this Court, including any

pleading incorporating “CONFIDENTIAL MATERIAL,” the portion of such filing
containing “CONFIDENTIAL MATERIAL” shall be filed in a sealed envelope on which
the following legend shall prominently appear:
Robert S. Ritchie v. Chartis Claims, Inc., et. al
U.S. District Court for the District of Colorado
Civil Action No. 13-cv-01387-WYD-KMT
CONFIDENTIAL - This envelope contains documents or other
material filed by the parties in this matter. It shall not be opened nor
the contents thereof displayed or revealed except by the Order of
this Court.
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Such filing shall be made in accordance with the provisions of D.C.Colo.LCivR 7.2. The
filing party shall identify the confidential business, financial, proprietary, and/or
commercially sensitive interests of the party or non-parties sought to be protected and
request that the Court restrict public access to CONFIDENTIAL MATERIAL to “Level 1
Access” (limited to the parties and the Court) pursuant to D.C.Colo.LCivR 7.2 B.5.
B.

“CONFIDENTIAL MATERIAL” may be introduced into evidence, if

otherwise admissible, provided that it may only be done so during a hearing, deposition,
or trial when counsel for the producing party is present, and subject to the producing
party’s right to seek in-camera treatment of such documents. Further, the Court may
take such steps as it deems reasonably necessary to preserve the confidentiality of the
documents or information.
C.
trial

All writings submitted to or filed with the Court in connection with any pre-

proceeding

that

contain,

set

forth,

summarize

or

otherwise

disclose

“CONFIDENTIAL MATERIAL” shall be filed under motion to restrict public access
pursuant to D.C.Colo.LCivR 7.2 and in accordance with Section V.A, and such
documents shall not be publicly available, except by further order of this Court.
D.

If any party or person who has obtained “CONFIDENTIAL MATERIAL”

under the terms of this Stipulation Regarding Confidentiality receives a subpoena or
other legal process commanding the production of any such “CONFIDENTIAL
MATERIAL” (the “Subpoena”), such party or person shall promptly notify counsel for the
producing party of the service of the Subpoena. The producing party shall take any
necessary legal action, including filing a Motion to Quash,
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regarding any such

“CONFIDENTIAL MATERIAL” and

the person receiving the Subpoena shall not

produce any “CONFIDENTIAL MATERIAL” in response to the Subpoena without either
the prior written consent of counsel for the producing party, or an order of a court of
competent jurisdiction.
VI.
Certain parties anticipate producing large volumes of materials in discovery in
this matter, including collections of materials in the form of paper or electronic
documents, increasing the likelihood that information protected from discovery by
certain privileges or immunities, or “CONFIDENTIAL MATERIAL” not marked as such,
may be produced inadvertently. Therefore, the following provisions shall apply to the
production of information in this case:
A.

Inadvertent production of documents subject to the work-product doctrine,

the attorney-client privilege, the trade secret and proprietary business information
privilege, or other legal privilege, rule or doctrine protecting information from discovery
shall not constitute a waiver of the immunity or privilege either for the inadvertently
produced document or its subject matter (so-called “subject matter waiver”), provided
that the producing party shall notify the receiving party in writing of such inadvertent
production as described in Sec.VI., B.
B.

If reasonably prompt notification is made, such inadvertently produced

documents and all copies thereof, as well as all notes or other work product reflecting
the contents of such materials, shall be returned to the producing party or destroyed,
and such returned material shall be deleted from any litigation-support file or database.

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No use shall be made of such inadvertently produced documents during discovery or at
trial nor shall they be disclosed to anyone who was not given access to them before the
request to return and destroy them.
C.

If any party contends that the notification of inadvertent production was not

“reasonably prompt,” it shall notify the producing party in writing, and will make no
further use of such documents pending a resolution of their status by the Court. It shall
be the burden of the producing party to move for a protective order regarding the
inadvertent production, and to demonstrate both that the production was inadvertent,
that reasonable diligence was exercised to identify the inadvertently produced
information, and that notification was made with reasonable promptness after
discovering the inadvertent production.
D.

The party returning or destroying such documents may move the Court for

an order compelling production of the material..
E.

Inadvertent failure to designate produced materials as CONFIDENTIAL

pursuant to the terms of Section I above shall not constitute a waiver of the right to
designate such materials CONFIDENTIAL provided that the producing party shall notify
the receiving party of such inadvertent failure to designate within 10 (ten) days upon
becoming aware of the inadvertent failure to designate.
F.

If notification is made within 10 (ten) days following production of such

failure to designate, such inadvertently non-designated documents and all copies
thereof, shall be returned to the producing party or destroyed and such material shall be
deleted from any litigation-support file or database. No use shall be made of such non9

designated

documents

during

discovery

or

at

trial

without

the

appropriate

“CONFIDENTIAL” markings, nor shall they be disclosed to anyone who was not given
access to them before the request to return or destroy.
G.

Any inadvertently produced document or documents provided to the Court

pursuant to this Section VI shall not be considered a “court record” as defined in
Colorado Chief Justice Directive 05-01 § 3.10(a) and (b).
VII.
A.

Within 90 days after the final disposition of this lawsuit, by settlement, trial

or appeal, counsel for the parties shall deliver to counsel for the producing party all
CONFIDENTIAL MATERIAL including any copies (except those determined by the
Court or agreed by the parties not to be CONFIDENTIAL) which have been
disseminated to any COVERED PERSONS or the parties may elect to destroy such
CONFIDENTIAL MATERIAL.

Deposition transcripts need not be returned if all

CONFIDENTIAL portions have been destroyed or obliterated.
B.

It is the responsibility of any party receiving “CONFIDENTIAL MATERIAL”

to obtain all copies of that material provided by that party to “COVERED PERSONS,” as
defined in Paragraph I.H above, and to return that “CONFIDENTIAL MATERIAL” to the
producing party, or the parties may elect to destroy CONFIDENTIAL MATERIALS.
Where a party elects to destroy CONFIDENTIAL MATERIAL, the destroying party shall
provide all parties with notice confirming the destruction.

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VIII.
In the event counsel for any party, in good faith, disputes the designation of any
document as “CONFIDENTIAL,” he or she shall notify counsel for the producing party in
writing. The producing party shall seasonably apply to the Court for a determination
that the document is or is not protected pursuant to this Stipulation Regarding
Confidentiality. Until a final determination by the Court, any disputed document will be
treated as CONFIDENTIAL MATERIAL pursuant to this Stipulation Regarding
Confidentiality. Nothing in this Stipulation Regarding Confidentiality shall be construed
to alter or shift the burdens of production and persuasion (“the burden of proof”) as they
apply to the assertion of privileges or exemptions from public disclosure or any claim or
affirmative defense in this matter.
IX.
A.

This Stipulation Regarding Confidentiality shall not preclude the parties

from exercising any rights or raising any objections otherwise available to them under
the rules of discovery and evidence. Nothing contained in this Stipulation Regarding
Confidentiality shall in any manner change, alter or modify any of the rights of the
producing party or any other party under any other orders issued by any other courts
concerning the protection of CONFIDENTIAL MATERIALS and CONFIDENTIAL
information. Nothing in this Stipulation Regarding Confidentiality shall limit the rights of
parties to apply for further Stipulation Regarding Confidentialitys or for modification of
the terms of this Stipulation Regarding Confidentiality.

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B.

This Stipulation Regarding Confidentiality may not be waived, modified,

abandoned or terminated, in whole or in part, except by an instrument in writing signed
by the parties, or by Order of the issuing Court. If any provision of this Stipulation
Regarding Confidentiality shall be held invalid for any reason whatsoever, the remaining
provisions shall not be affected thereby.
C.

This Stipulation Regarding Confidentiality shall be binding upon the parties

hereto, their attorneys, and upon the parties’ and their attorneys’ successors, executors,
personal

representatives,

administrators,

heirs,

legal

representatives,

assigns,

subsidiaries, divisions, employees, agents, independent contractors, or other persons or
organizations over which they have control.
X.
At the conclusion of this lawsuit, the Court shall retain jurisdiction of this lawsuit
for the enforcement of this Stipulation Regarding Confidentiality.

____________________________________
Kathleen M. Tafoya
United States Magistrate Judge

Dated: February 6, 2014

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EXHIBIT “A”
LIMITED SPECIAL APPEARANCE AND AGREEMENT FOR
ACCESS TO CONFIDENTIAL MATERIAL
I hereby acknowledge and affirm that I have read the terms and conditions of the
Stipulation Regarding Confidentiality dated _____________ and agreed to by the parties
(“Stipulation Regarding Confidentiality”) in the action titled Robert Ritchie v. Chartis Claims, Inc.,
et. al, U.S. District Court for the District of Colorado, Civil Action No. 13-CV-01387-WYD-KMT. I
understand the terms of the Stipulation Regarding Confidentiality and under oath consent to be
bound by such terms as a condition to being provided access to the CONFIDENTIAL
MATERIALS furnished by the parties in this action. Further, by executing this Agreement, I
hereby consent to the jurisdiction of the above-captioned Court or any Court of competent
jurisdiction for the special and limited purpose of enforcing the terms of the Stipulation
Regarding Confidentiality.

DATED:________________________________

_______________________________________
Name

_______________________________________
Firm
_______________________________________
Address
_______________________________________
Telephone Number

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