Jewkes v. USAA Casualty Insurance Company

Filing 24

Stipulated PROTECTIVE ORDER re 23 , by Judge Richard P. Matsch on 7/29/2014. (jsmit)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-01673-RPM
DONNA D. JEWKES,
Plaintiff,
v.
USAA CASUALTY INSURANCE
COMPANY,
Defendant.

STIPULATED PROTECTIVE ORDER
To expedite the flow of discovery material, to facilitate the prompt resolution of
discovery disputes, and to protect the confidentiality of documents produced or information
disclosed, the production of which could harm a party’s competitive standing, Plaintiff Donna D.
Jewkes (“Plaintiff”) and Defendant USAA Casualty Insurance Company (“USAA”) stipulate as
follows:
The parties will follow the procedures set forth in this Stipulated Protective Order with
respect to disclosure of information, documents, or things in this litigation:
A.

Confidential Information

As used in this Stipulated Protective Order, “CONFIDENTIAL” or “CONFIDENTIAL
INFORMATION” shall mean any information, document, or thing that a party (the “Designating

Party”) furnishes in the course of this litigation and in good faith designates as CONFIDENTIAL
INFORMATION pursuant to Paragraphs A.1-4 below.
1.

A party may designate its answers to interrogatories, responses to requests

for admissions, any documents produced in response to a request for production of documents,
subpoena duces tecum, or otherwise, or any other information provided by it as
CONFIDENTIAL INFORMATION by stamping the word “CONFIDENTIAL” upon each page
of the document, taking care to avoid obscuring any text, before providing it to the opposing
party. Information marked CONFIDENTIAL shall not be utilized or disclosed by a receiving
party (the “Receiving Party”), its attorneys, its agents, or its employees, except in accordance
with the terms of this Stipulated Protective Order.
2.

In the case of CONFIDENTIAL INFORMATION in a non-paper medium

(e.g., video or audio tape, computer discs, CD-ROMs, DVDs, etc.), a party may designate all
information therein as CONFIDENTIAL by affixing a legend stating the same to the outside of
the medium or container.
3.

To designate a portion of a deposition transcript as CONFIDENTIAL, a

Designating Party may either make a statement on the record to that effect or, within twenty (20)
business days after the deposition transcript is delivered to the Designating Party, provide to all
counsel written notice identifying the specific pages of the deposition transcript that counsel for
the Designating Party in good faith believes to contain CONFIDENTIAL INFORMATION. All
deposition transcripts shall be treated as CONFIDENTIAL INFORMATION until the expiration
of the twenty-day period. The portions so designated shall not be utilized or disclosed by the
other party, its agents, or its employees, except in accordance with the terms of this Stipulated

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Protective Order. All parties shall mark their copies of the transcript by stamping the word
“CONFIDENTIAL” on every page so designated.
4.

Documents, testimony, evidence, and other matters may be deemed

CONFIDENTIAL INFORMATION if the substance of the documents, testimony, evidence, or
matter constitutes a trade secret or other confidential research, development, or commercial
information; or confidential medical or financial information of an individual.
5.

Documents, testimony, evidence, and other matters shall not be deemed

CONFIDENTIAL INFORMATION if the substance of the documents, testimony, evidence, or
matter:
a.

is, at the time of disclosure by the Designating Party, already in the

possession of the Receiving Party, was not acquired from the Designating Party, and has
previously been released or produced by the Designating Party without a “Confidential”
designation; or
b.

has been made available to the Receiving Party, other than through

the discovery process, by a third-party who obtained the same by legal means without any
obligation of confidence to the Designating Party.
B.

Disclosure and Use of Confidential Information
1.

CONFIDENTIAL INFORMATION shall not be disclosed to any persons

other than:
a.

the attorneys for the Receiving Party in this litigation and paralegal

and clerical staff (whether employees or independent contractors) who are assisting in the
litigation;

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b.

the Receiving Party and officers, directors and employees of the

Receiving Party who have direct responsibility for assisting such counsel in the preparation and
trial of the action;
c.

mediators, court reporters, court officials, and the jury involved in

d.

experts, consultants and investigators and their staff who are

this litigation;

retained by a party for purposes relating to this litigation and who have executed an Agreement
in the form attached as Exhibit A; and
e.

any other non-party witnesses or deponents who have executed an

Agreement attached as Exhibit A or who have been given a copy of and agree on the record to
abide by the Stipulated Protective Order.
Counsel for the Parties shall maintain the originals of signed Agreements for a period of
six (6) years from the date of the signing of the Agreement.
2.

CONFIDENTIAL INFORMATION received by any of the persons in the

categories listed above shall be used only for purposes of this litigation and for no other
purposes, including any other litigation, whether on the same issues in this case or others, or for
any business or personal purpose. Nothing in this Stipulated Protective Order shall prevent the
Designating Party from any use of its own CONFIDENTIAL INFORMATION.
CONFIDENTIAL INFORMATION may not be disclosed to the persons described in Paragraphs
B.1.d-e above, unless the party disclosing information to that person determines in good faith
that the disclosure is necessary for the purpose of developing testimony of such witness or
deponent.

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3.

Any summary or copy of CONFIDENTIAL INFORMATION shall be

subject to the terms of this Stipulated Protective Order to the same extent as the information or
document of which summary or copy is made, and must be clearly labeled as containing
CONFIDENTIAL INFORMATION.
4.

CONFIDENTIAL INFORMATION may be copied or reproduced only to

the extent reasonably necessary for the conduct of this lawsuit. All such copies or reproductions
shall be subject to the terms of this Stipulated Protective Order.
5.

If the Court orders that access to or dissemination of CONFIDENTIAL

INFORMATION shall be made to persons beyond those included in Paragraph B.1 above, such
CONFIDENTIAL INFORMATION shall only be accessible to, or disseminated to, such persons
after they have executed an Agreement in the form attached as Exhibit A, unless the Court rules
otherwise.
6.

Use in Depositions. Material designated as CONFIDENTIAL may be

used at a deposition if:
a.

the counsel for the party using such material advises the witness of

the terms of this Stipulated Protective Order, provides a copy to the witness, and the witness
agrees on the record to maintain the confidentiality of the material; or
b.

the witness executes an Agreement attached as Exhibit A to this

Stipulated Protective Order.
If the witness refuses to agree to either be bound by the Stipulated Protective Order on
the record or to execute Exhibit A, then the party seeking to use such CONFIDENTIAL

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INFORMATION at that witness’ deposition must obtain leave from the Court before disclosing
the material to the witness.
7.

Use in Briefs and as Exhibits. If any document containing

CONFIDENTIAL INFORMATION produced in this litigation is to be filed as an exhibit to any
court record or pleading, or otherwise placed among the court papers in this litigation, the party
filing the material shall submit the document containing CONFIDENTIAL INFORMATION in a
sealed envelope or container clearly marked “CONFIDENTIAL INFORMATION” and with a
statement substantially in the following form:
This envelope contains documents which are filed in this action by [name of
party] and which are confidential pursuant to a Stipulated Protective Order. This
envelope is to remain sealed and its contents disclosed only to the Judge or those
persons authorized to view its contents under the terms of the Stipulated
Protective Order.
C.

No Waiver

The disclosure of CONFIDENTIAL INFORMATION pursuant to discovery or the
procedures set forth in this Stipulated Protective Order shall not constitute a waiver of any trade
secret or any intellectual property, proprietary, or other rights to or in such information.
D.

Application of this Stipulated Protective Order

This Stipulated Protective Order shall apply to all discovery responses or papers,
deposition transcripts, summaries, notes, abstracts, or other documents or information that
comprise, embody, or summarize any documents or information, in any form, produced in this
litigation that contain CONFIDENTIAL INFORMATION. Nothing in this Stipulated Protective
Order shall affect the admissibility into evidence of CONFIDENTIAL INFORMATION, or
abridge the rights of any party to seek judicial review or to pursue other appropriate judicial

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action with respect to any ruling made by the Court concerning the status of CONFIDENTIAL
INFORMATION. Agreement to the terms of this Stipulated Protective Order is without
prejudice to a party’s right to request that the Court rescind, modify, alter, or amend this Order
with respect to specific documents or information.
E.

Confidentiality Challenge

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 and shall specify the basis for the
objection. All objections must be made in good faith. The designating party shall then have
twenty (20) days from receipt of the written objection to respond to the objecting party and to
arrange for a meet and confer. After any meet and confer, a party may file a motion to resolve
the dispute. The party asserting the CONFIDENTIAL designation will bear the burden of
proving such protection is warranted. Pending any court ruling, the provisions of this Stipulated
Protective Order shall apply and disclosure and use of the challenged documents or information
shall not be made except as provided under this Stipulated Protective Order.
F.

Confidential Information at Trial

The designation of any information, documents, or things as CONFIDENTIAL pursuant
to this Stipulated Protective Order shall not, in and of itself, raise any inference as to the
confidentiality of any information, documents, exhibits, or things marked for identification
purposes or introduced into evidence at the trial of this litigation. Nothing in this Stipulated
Protective Order, however, shall preclude any party from seeking confidential treatment from the
Court with respect to such information, documents, exhibits, or things or from raising any

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available objections, including without limitation objections concerning admissibility,
materiality, and privilege. The parties to this Stipulated Protective Order expressly reserve at
this time a determination as to the manner in which CONFIDENTIAL INFORMATION may be
used in an evidentiary hearing or at trial. The parties may request special procedures or in
camera treatment.
G.

Inadvertent Disclosure

If, due to inadvertence or mistake, a designation of CONFIDENTIAL INFORMATION
is not made at the time of disclosure, a party or third-party witness may designate documents or
information as such by serving notice of such designation on the parties in writing. Following
such designation, the terms of this Stipulated Protective Order shall apply and disclosure of the
CONFIDENTIAL INFORMATION following such designation shall be made only in
accordance with this Stipulated Protective Order. The disclosure of the CONFIDENTIAL
INFORMATION before such designation shall not be deemed a waiver of the designating
party’s right to preserve the alleged proprietary, confidentiality, or trade secret status of the
CONFIDENTIAL INFORMATION. The disclosure of the CONFIDENTIAL INFORMATION
before such designation also shall not be considered a violation or breach of the Stipulated
Protective Order, but nothing herein shall immunize a disclosure otherwise prohibited by law.
The parties agree that the inadvertent production of any documents that would be
protected from disclosure pursuant to the attorney-client privilege, the work product doctrine, or
any other relevant privilege or doctrine shall not constitute a waiver of the applicable privilege or
doctrine. If any such document is inadvertently produced, the recipient of the document agrees
that, upon request from the producing party, it will promptly return the document, destroy all

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copies (including copies on any electronic database), summaries, or other documents created or
generated from information contained in such copies, and make no use or further disclosure of
the information contained in the document.
H.

Specific Disclosure

By joint agreement, the parties, through their counsel, may agree to any specific
disclosure of CONFIDENTIAL INFORMATION in a particular circumstance without prejudice
to the continued application of this Stipulated Protective Order regarding other uses of that
CONFIDENTIAL INFORMATION. The Designating Party may refuse to agree to specific
disclosure of its CONFIDENTIAL INFORMATION.
I.

Modification

This Stipulated Protective Order may be modified only by Order of the Court or by
written agreement of the parties.
J.

Maintenance of Confidential Information

CONFIDENTIAL INFORMATION provided to a Receiving Party shall be securely
maintained in the offices of that party’s outside counsel. Any recipient of CONFIDENTIAL
INFORMATION shall maintain such information in a secure and safe area, and the recipient
shall exercise due and proper care with respect to the storage, custody, access and use of all such
information.
K.

Continuing Jurisdiction After Termination of Litigation

This Stipulated Protective Order, insofar as it restricts the communication and use of
CONFIDENTIAL INFORMATION, shall survive and continue to be binding after the
conclusion of this action, and the Court shall retain jurisdiction over these parties, every person

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who agrees to be bound by the terms of this Protective Order, and this matter for the purpose of
ensuring compliance with the Order and granting such other and further relief as may be
necessary.
L.

Return or Destruction of Confidential Information

After final disposition of this case, whether by judgment, including appeals, settlement,
or otherwise, counsel of record for each of the parties shall return all CONFIDENTIAL
INFORMATION the parties produced during this case, all copies of such CONFIDENTIAL
INFORMATION, and shall destroy all work product relating to CONFIDENTIAL
INFORMATION within (30) days of a written request from the Designating Party, which notice
shall be given within (30) days after said final disposition of this case.
After final disposition of this case, whether by judgment, including appeals, settlement,
or otherwise, counsel of record for the party disclosing CONFIDENTIAL INFORMATION to an
individual included within Paragraphs B.1.d-e shall provide written notice to that individual of
the final disposition of the case and shall ask that individual to execute an affidavit, attached as
Exhibit B, within thirty (30) business days following the final resolution of this action. In
response to such a request, individuals included under Paragraphs B.1.d-e shall execute an
affidavit, attached as Exhibit B, and shall return the executed affidavit to counsel as requested.

DATE: July 24, 2014
AGREED:

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Respectfully submitted,

Respectfully submitted,

s/ Robert D. Green
440 Louisiana Street, Suite 1930
Houston, Texas 77002
Telephone: [phone]
Facsimile: 713.654.2155
Email: [e-mail]

s/ Jessica G. Scott
John M. Vaught (#9531)
Jessica G. Scott (#37287)
Michael C. Song (#46754)
Wheeler Trigg O’Donnell LLP
370 Seventeenth Street, Suite 4500
Denver, CO 80202-5647
Telephone: [phone]
Facsimile: 303.244.1879
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant USAA Casualty
Insurance Company (USAA)

Attorney for Plaintiff

ORDER
The preceding Stipulated Protective Order is approved, ordered and entered this _____
day of ______________, 2014. This Stipulated 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: July 29, 2014
BY THE COURT:
s/Richard P. Matsch
_________________________________
Richard P. Matsch, Senior District Judge

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-01673-RPM
DONNA D. JEWKES,
Plaintiff,
v.
USAA CASUALTY INSURANCE
COMPANY,
Defendant.

AGREEMENT TO BE BOUND BY STIPULATED PROTECTIVE ORDER

The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________, 2014, in the above-captioned action and attached hereto, understands the
terms thereof, and agrees to be bound by its terms. The undersigned submits to the jurisdiction
of the United States District Court for the District of Colorado, in matters relating to the
Protective Order, and understands that the terms of the Protective Order obligate him/her to use
Confidential Information in accordance with the Protective Order solely for the purposes of the
above-captioned action, and not to disclose any such documents or information derived directly
therefrom to any other person, firm, or concern.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
A-1

Name:
Job Title:
Employer:
Business Address:

Date: _________________

___________________________
Signature

A-2

EXHIBIT B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-01673-RPM
DONNA D. JEWKES,
Plaintiff,
v.
USAA CASUALTY INSURANCE
COMPANY,
Defendant.

AFFIDAVIT REGARDING RETURN OF CONFIDENTIAL INFORMATION

STATE OF ______________ )
) ss.
COUNTY OF ____________)

I, _______________________________, being first duly sworn, depose and state as
follows:
1.

During the course of this civil action, I received Confidential Information, as that

term is defined in the Stipulated Protective Order entered by the Court dated _________, 2014,
from _________________________________.
2.

I certify that I have returned all Confidential Information produced by

__________________________to that party’s counsel of record in this action, that was produced
B-1

by that party and is in my possession, custody, or control. The return of such Confidential
Information includes, but is not limited to, any copies, extracts, summaries that have been
prepared by me, counsel representing me or my employer in this litigation, or experts or other
individuals acting on my or my employer’s behalf; copies maintained on electronic storage
devices, including but not limited to, computer databases, hard drives, floppy diskettes, and flash
drives; and the portions of all transcripts of depositions and testimony that contain or reference
Confidential Information.
3.

I certify that I have destroyed any work product that relates to any Confidential

Information produced by _________________________ in this case.
4.

Except in accordance with the above-referenced Stipulated Protective Order, I

have not either personally or through any representatives or entities retained or maintained any
other party’s Confidential Information, including but not limited to, any copies, extracts,
summaries that have been prepared by me, counsel representing me or my employer in this
litigation, or experts or other individuals acting on my or my employer’s behalf; copies
maintained on electronic storage devices, including but not limited to, computer databases, hard
drives, floppy diskettes, and flash drives; and the portions of all transcripts of depositions and
testimony that contain or reference Confidential Information.

B-2

I have sent the original of this affidavit, via e-mail and U.S. mail, to each party that has produced
Confidential Information to me during the pendency of this action, within thirty (30) business
days of the final resolution of this lawsuit.

___________________________________

The foregoing Affidavit was acknowledged, subscribed, and sworn to before me this
____ day of ________________, 201__, by _______________________________.

[SEAL]

__________________________________________
Notary Public
My Commission Expires:_________________

B-3