Ventura, Inc. et al v. Sharkansky LLP et al

Filing 63

PROTECTIVE ORDER. by Magistrate Judge Kathleen M. Tafoya on 11/4/2013. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01486-RBJ-KMT
VENTURA, INC.; JOHN R. BUTLER;
KEITH WEGEN; JJJ FOUNDATION, INC.;
and TRIANGLE RIVER 401 LLC,
Plaintiffs,
vs.
SHARKANSKY LLP; SCOTT ESTABROOKS;
TOBIN & ASSOCIATES, P.C.; RICHARD J.
TOBIN; HOLLAND & KNIGHT LLP; and
RICHARD J. HINDLIAN,
Defendants.

STIPULATED PROTECTIVE ORDER
Upon consideration of the parties’ Unopposed Motion for Entry of Stipulated Protective
Order, and it appearing to the Court that sufficient cause exists under F.R.C.P. 26(c) for the
issuance of a Protective Order, it is ORDERED as follows:
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
jurisdictional discovery conducted as a result of the Court’s October 2, 2013 order. Should the
case proceed beyond jurisdictional discovery to broader general discovery, the parties envision
amending this Protective Order.

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.

Documents, materials, and/or information designated “CONFIDENTIAL”

(collectively, “CONFIDENTIAL information”) shall be information that is confidential and
implicates common law and statutory privacy interests of Plaintiffs or Defendants, and
confidential and proprietary business information. CONFIDENTIAL information shall not be
disclosed or used for any purpose except for the preparation and trial of this case.
4.

CONFIDENTIAL information shall not, without the consent of the party

producing it or further Order of the Court, be disclosed except that such information may be
disclosed to:
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;

D.

expert witnesses and consultants retained in connection with this case, to the
extent such disclosure is necessary for preparation for trial, at trial, or at 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;

-2-

G.

deponents, witnesses, or potential witnesses; and

H.

other persons by written agreement of the parties.

5.

The terms and provisions of this Protective Order will equally apply to persons

identified in paragraph 4(A)-(H) in relationship to the civil action presently pending in the
Superior Court of Suffolk County, Massachusetts, styled Richard H. Sgarzi, et al. v. Sharkansky
LLP, et al.
6.

Prior to disclosing any CONFIDENTIAL information to any person listed above

in 4.C., 4.D., 4.G., or 4.H. (and paragraph 5 which incorporates these provisions, counsel shall
provide such person with a copy of this Protective Order and obtain from such person a written
acknowledgment in the form attached hereto as Exhibit A, stating that such person has read and
agrees to be bound by this Protective Order. All such acknowledgments 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.

Prior to designating any information as CONFIDENTIAL under this Protective

Order, counsel for the producing party shall review the information to be disclosed and designate
the information it believes in good-faith is CONFIDENTIAL or otherwise entitled to protection.
9.

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

-3-

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.
10.

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 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.
11.

An inadvertent failure to designate documents and information as “Confidential”

shall not constitute a waiver of a claim of confidentiality and shall be corrected by prompt
supplemental written notice designating the documents and information as “Confidential.” The
Designating Party and Party receiving the information shall confer regarding the most efficient

-4-

method for marking the documents and information with the “Confidential” stamp, with the
Designating Party to reproduce the documents and information with the appropriate stamp if the
Parties are unable to reach agreement. A written notice shall identify with specificity the
information or documents that contain Confidential information. In addition, the Party receiving
the Confidential information shall use its best efforts to immediately retrieve any inadvertently
disclosed Confidential information from any persons to whom it gave Confidential information
and who is not otherwise entitled to see the Confidential information. Any dispute regarding
corrected designations that the Parties are unable to resolve shall be brought before the Court, but
all corrected designations shall be binding upon the Parties unless and until the Court orders
otherwise.
12.

An inadvertent production of information, documents, or tangible things that

should or could have been withheld subject to a claim of attorney-client privilege or workproduct immunity shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
any claims of privilege or work-product immunity. In such an event, pursuant to Colorado Rules
of Professional Conduct 4.4(b) and (c) and Colorado Ethics Opinion 108, all Parties shall destroy
immediately (or return to the produced Party’s counsel) all copies of this document and withdraw
this document from any use in the above referenced lawsuit. Any Party discovering the
inadvertent or mistaken produced shall notify all other Parties, in writing, within five (5)
business days of learning of the inadvertent or mistaken production and shall request or facilitate
the return of all information for which an inadvertent or mistaken production is made. Within
ten (10) business days after receiving a written request to do so, the receiving Party of those
documents shall return to the producing Party any documents or tangible items that the

-5-

producing Party represents are covered by a claim of attorney-client privilege or work-product
immunity and were inadvertently or mistakenly produced. The receiving Party shall also destroy
extra copies or summaries of, or notes relating to, any inadvertently or mistakenly produced
information and shall certify its compliance with these requirements in a letter accompanying the
return of any inadvertently or mistakenly produced information. Any dispute regarding
corrected designations or appropriateness of documents or information subject to this
“clawback” provision that the Parties are unable to resolve shall be brought before the Court, but
all corrected designations and “clawbacks” shall be binding upon the Parties unless and until the
Court orders otherwise.
13.

At the conclusion of this case, unless other arrangements are agreed upon in

writing, 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.

-6-

14.

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.
15.

Dated: November 4, 2013

BY THE COURT:

_____________________________________
UNITED STATES MAGISTRATE JUDGE
Kathleen M. Tafoya

-7-

EXHIBIT A
UNDERTAKING
STATE OF
COUNTY OF

)
) ss.
)

I, _________________________, being first duly sworn, state that:
1.
My address is ______________________________________________________
_____________________________________________________________________________.
2.
My present employer is ______________________________________________, and
the address of my employer is__________________________________________________.
3.
My present occupation or job description is ______________________________
_____________________________________________________________________________.
4.
I have received a copy of the Stipulated Protective Order in this case (Civil Action No.
13-cv-01486), signed by the United States District Court, District of Colorado.
5.
I have carefully read and understand the provisions of the Stipulated Protective Order,
will comply with all of its provisions, will hold in confidence and not disclose to anyone not
qualified under the Stipulated Protective Order any designated information or any words,
substances, summaries, abstracts or indices of designated information disclosed to me, and will
return all designated information and summaries, abstracts or indices thereof, and copies thereof,
which come into my possession, and documents or things which I have prepared relating thereto,
to counsel for the Party by whom I am retained.
____________________________________
NAME:

Subscribed and sworn to before me this ____ day of ___________, 2013, by
___________________________, notary public.
Witness my hand and official seal.
__________________________________
Notary Public
My commission expires:______________

6486577_3

-8-