Steak n Shake Enterprises, Inc. v. Globex Company, LLC et al.

Filing 77

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 2/24/14. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01751-RM-CBS
STEAK N SHAKE ENTERPRISES, INC.,
and STEAK N SHAKE, LLC,
Plaintiffs and Counterclaim
Defendants,
v.
GLOBEX COMPANY, LLC,
SPRINGFIELD DOWNS, LLC,
CHRISTOPHER BAERNS,
LARRY BAERNS,
KATHRYN BAERNS, and
CONTROL LLC,
Defendants and Counterclaimants.

STIPULATED CONFIDENTIALITY AGREEMENT/PROTECTIVE ORDER
This Stipulated Confidentiality Agreement/Protective Order (“Agreement”) is
entered into as between Steak n Shake Enterprises, Inc. and Steak n Shake, LLC
(collectively, “Plaintiffs”) and Globex Company, LLC, Springfield Downs, LLC,
Christopher Baerns, Larry Baerns, Kathryn Baerns and Control, LLC (collectively,
“Defendants”), by and through their respective counsel.
It is hereby stipulated and agreed, by and among the parties hereto, through their
respective counsel, that the following conditions shall govern the production or
disclosure of all materials produced or adduced in the course of discovery, including
initial disclosures, responses to discovery requests, deposition testimony and exhibits,

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documents produced, and information derived directly therefrom claimed to be
Confidential Information as defined below.
1.

“Confidential

Information”

means

any

proprietary

or

confidential

documentation and information containing personal or sensitive information of the
supplying party that the party providing the documentation and information designates
as “Confidential” or “Attorneys’ Eyes Only” in connection with this action that falls within
one or more of the following categories: (a) information that reveals trade secrets; (b)
research, technical, commercial or financial information that the party has maintained as
confidential; (c) personal identity information; (d) income tax returns (including attached
schedules and forms such as W-2 forms); (e) personnel or employment records of nonparties; (f) documents that reveal commercial, financial, or personal identity information
about the parties’ customers, franchisees, or persons who are not parties to the case; or
(g) other proprietary, confidential or sensitive information. Information or documents that
are available to the public may not be designated as Confidential Information.
2.

In designating information or items as Confidential Information, the

producing party shall make such designation only as to that information that it in good
faith believes to be Confidential Information.
3.

Further certain Confidential Information produced or disclosed may be

deemed so highly confidential, sensitive or proprietary to the business practices of a
party or third party that even otherwise restricted disclosure of such information or
documents could cause significant business harm or hardship to the producing or
revealing party or third party. Those general categories include: (a) proprietary data, or

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business, financial or commercial information, the disclosure of which to business
personnel is likely to cause harm to the competitive or financial position of the producing
or revealing party or third party; (b) any information, document, or thing that qualifies as
a trade secret under applicable state or federal law; and (c) nonpublic information
relating to products, businesses or services in development, business and marketing
plans, or business and marketing plans in development.

Specific examples of this

information include, but are not limited to, confidential information regarding Plaintiffs’
trade secrets related to pricing and promotions, including pricing and promotional
schedules, plans, or strategies.

Such highly confidential, sensitive information or

documents may be marked as “Attorneys’ Eyes Only” prior to production or disclosure,
and shall be protected from any disclosure except as permitted by this Agreement.
4.

The parties shall designate Confidential Information by marking any

documents containing such information with the words “Confidential” or “Attorneys’ Eyes
Only” at the time the document is produced or disclosed, or by notifying the other party
in writing that such classification pertains to specific documents. An inadvertent failure
to designate a document as Confidential Information at the time of production or
disclosure does not, standing alone, waive the right to so designate the document;
provided, however, that a failure to serve a timely Notice of Designation of deposition
testimony as required by paragraph 6(a) of this Agreement, even if inadvertent, waives
any protection for deposition testimony.

If a party designates a document as

Confidential Information after it was initially produced, the receiving party, on notification
of the designation, must make a reasonable effort to assure that the document is

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treated in accordance with the provisions of this Agreement. No party shall be found to
have violated this Agreement for failing to maintain the confidentiality of material during
a time when that material has not been designated Confidential Information, even where
the failure to so designate was inadvertent and where the material is subsequently
designated Confidential Information.
5.

Confidential Information may be disclosed as follows:
(a)

Any information designated as “Confidential” may be disclosed

solely to the following persons:
(i)

The parties to this lawsuit and/or their employees but only to
the extent counsel determines in good faith that the
employee’s assistance is reasonably necessary to the
conduct of the litigation in which the information is disclosed;

(ii)

Counsel of record in this action, and the attorneys and
employees in the respective law firms of such counsel who
have responsibility for the action;

(iii)

Consultants and experts, including outside technical
consultants, investigators, or experts and their support staff,
who are assisting counsel and to whom it is necessary to
disclose Confidential Information for the purpose of assisting
in, or consulting with respect to, the matters at issue in this
action, provided, however, that (1) such person is not
regularly engaged in any activity that places him or her in
competition with the products or services provided by the
producing party; and (2) such person has signed a Consent
to be Bound, attached hereto as Exhibit 1, prior to viewing or
hearing any such Confidential Information. Counsel shall
retain all original executed Consent to be Bound forms for
their respective party. Consultants and experts do not need
to be disclosed to the other party under this section provided
that they meet the qualifications set forth in this section.

(iv)

The Court and its personnel and court reporters, as to whom
it is necessary to disclose the Confidential Information for the
purpose of adducing testimony in this action;
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(v)
(vi)

(b)

The author or recipient of the document; and
Any other person as to whom the producing party agrees to
in writing.

Any information designated as “Attorneys’ Eyes Only” shall be

restricted to the persons and entities identified in paragraph 5(a)(ii), (iii), (iv), (v), and
(vi), as set forth therein.
6.

In the case of depositions:
(a)

Unless all parties agree on the record at the time the deposition

testimony is taken, all deposition testimony taken in this case shall be treated as
Confidential Information until the expiration of the following: No later than fourteen (14)
days after the transcript is delivered to any party or the witness, and in no event later
than thirty (30) days after the testimony was given. Within this time period, a party may
serve a Notice of Designation to the court reporter and all parties of record as to specific
portions of the testimony that are designated Confidential Information, and thereafter
only those portions identified in the Notice of Designation shall be protected by the
terms of this Agreement. The failure to serve a timely Notice of Designation shall waive
any designation of testimony taken in that deposition as Confidential Information, unless
otherwise ordered by the Court. If during a deposition counsel for any party believes
that a question or answer constitutes “Attorneys’ Eyes Only” information, counsel may
designate such portions of the transcript as “Attorneys’ Eyes Only” on the record at the
deposition and may request that the specific pages which include such “Attorneys’ Eyes
Only” information be included in a separate sealed portion of the transcript. When

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“Attorneys’ Eyes Only” testimony is elicited during a deposition, persons not entitled to
receive such information under the terms of this Agreement shall be excluded from the
deposition.
(b)

A party may, in a deposition in this action, show a witness any

“Confidential” or “Attorneys’ Eyes Only” information that the witness is reasonably
believed to have previously authored, received or seen. Witnesses shall not retain a
copy of documents containing Confidential Information, except witnesses may receive a
copy of all exhibits marked at their depositions in connection with review of the
transcripts. Pages of transcribed deposition testimony or exhibits to depositions that are
designated as Confidential Information pursuant to the process set out in this
Agreement must be separately bound by the court reporter and may not be disclosed to
anyone except as permitted under this Agreement.
7.

Persons having knowledge of Confidential Information by virtue of their

participation in this action shall use that Confidential Information for purposes of this
action only and not for any other purpose, and shall not disclose such Confidential
Information to any person or entity. However, nothing shall prevent disclosure beyond
the terms of this Agreement if a party is legally obligated to disclose such information by
court order. Nothing in this Agreement shall prevent any producing party from itself
voluntarily disclosing its own Confidential Information to any person, except as
otherwise required by law, by court order, or otherwise as required by law or lawful
regulations.

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8.

Any party that is served with a subpoena or other notice compelling the

production of any Confidential Information is obligated within twenty-four (24) hours to
advise, in writing, all other parties to this Agreement of such subpoena or other notice.
Except as otherwise required by law, the party served with the subpoena or other notice
shall not produce the Confidential Information until the later of ten (10) business days
after advising the other parties to this Agreement, in writing, of the subpoena or other
notice, or (b) resolution of any application for court relief made with respect to that
subpoena or notice. Such writing must be sent by facsimile and overnight mail to the
following:
If to Plaintiffs:

If to Defendants:

Fredric A. Cohen, Esq.
Cheng Cohen, LLC
311 N. Aberdeen Street, Ste. 400
Chicago, IL 60607
Telephone: [phone]; Fax: [phone]
[e-mail]

Robert Salkowski, Esq.
Zarco Einhorn Salkowski & Brito, P.A.
100 Southeast 2nd Street
Suite 2700
Miami, Florida 33131
Telephone: [phone]; Fax: [phone]
[e-mail]

The party or parties to this Agreement that produced the Confidential Information
may object to the production of the Confidential Information in response to the
subpoena or other notice.
9.

The parties shall take reasonable and necessary steps to maintain the

security of any Confidential Information designated as “Confidential” or “Attorneys’ Eyes

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Only” and will limit access to the Confidential Information only to those persons listed in
paragraph 5 of this Agreement, provided, however, that nothing in this Agreement shall
restrict the ability of any producing party, including his/her employees, partners, agents,
attorneys, or any third party not subject to this Agreement to whom the producing party
may disclose Confidential Information, to use Confidential Information which the
producing party has supplied in this action, except as otherwise required by law.
10.

The inadvertent or unintentional disclosure of privileged or Confidential

Information by the producing party shall not be deemed as a waiver, in whole or in part,
of the producing party’s claim of privilege or confidentiality, either as to the specified
information disclosed or as to any other information relating thereto. Upon receiving
notice from the producing party that materials have been inadvertently produced, they
shall be promptly returned to the producing party.
11.

Except as agreed in writing by counsel of record for the parties, to the

extent that any Confidential Information is quoted, attached to any pleading, motion,
memoranda, appendix or other filing in connection with this action, admitted into
evidence or referenced in sufficient detail to disclose Confidential Information, the same
shall be maintained and shall be designated and treated as Confidential Information
subject to this Agreement and such Confidential Information must be filed under seal in
compliance with D.C.COLO.LCivR 7.2.
12.

If Confidential Information is used during the trial of this action or during

depositions, such Confidential Information shall not lose its confidential status through
such use, and counsel shall exercise their best efforts and take all steps reasonably

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required to protect the confidentiality of the Confidential Information, except as provided
in paragraph 14 herein.
13.

Nothing herein shall prevent any of the parties from objecting to discovery

that they believe to be otherwise improper or shall be construed to affect in any manner
the admissibility at the hearing of any document, testimony or other evidence. Nothing
herein shall restrict the use of any evidence at the trial of this action, whether or not it
contains information designated as Confidential.
14.

Upon the conclusion of this action, at the written request of the producing

party, all Confidential Information and any and all copies thereof, shall be destroyed,
deleted from all electronic and digital storage media and servers, or returned within sixty
(60) days to such producing party, in accordance with the producing party’s request. At
the written request of the producing party, any person or entity having custody or control
of recordings, notes, photographs, memoranda, summaries or other writings, and all
copies thereof, relating to or containing Confidential Information shall deliver to the
producing party a certification that reasonable efforts have been made to assure that all
such Confidential Information, any copies thereof, any and all records, notes,
memoranda, photographs, summaries, or other writings regarding the Confidential
Information (except for attorney work-product) have been destroyed, deleted in the case
of digital and electronic information, or delivered in accordance with the terms of this
Agreement. Notwithstanding the above requirements to return or destroy documents,
counsel may retain for its files one full set of copies of pleadings, affidavits, briefs and
memoranda filed in this action, including those filed under seal; one set of transcripts of

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all depositions (with exhibits) taken, and all of its own work product generated in
connection with this action. Insofar as this Agreement restricts the use of Confidential
Information, this Agreement shall continue to be binding after the conclusion of this
action.
15.

In the event that any party to this action disagrees with the designation by

the producing party of any information as Confidential Information, a party shall not be
obligated to challenge the propriety of the confidentiality designation at the time made,
and failure to do so shall not preclude a subsequent challenge thereof. The objecting
party shall attempt first to resolve such dispute in good faith with the producing party. If
the dispute cannot be resolved amongst the parties, the party objecting to the
confidentiality designation may seek appropriate relief from the Court. Until the Court
rules on the challenge, all parties shall continue to treat the materials as Confidential
Information under the terms of this Agreement.
16.

The parties acknowledge and agree that an intentional violation of this

Agreement by any party hereto may not be fully compensable by money damages, and
therefore, violations of this Agreement shall be enforceable by specific performance
and/or injunctive relief.
17.

Nothing in this Agreement shall foreclose or limit any of the parties from

opposing the production of any documents, the taking of any testimony, or the discovery
of any information.
18.

The terms of this Agreement may be amended or modified by written

agreement of the parties and order of the Court.

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19.

This Agreement shall take effect when entered by the Court and shall be

binding upon all counsel of record and their law firms, the parties, and persons made
subject to this Agreement by its terms.

DATED at Denver, Colorado, on February 24, 2014.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

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APPROVED:
/s/ Marlén Cortez Morris
Fredric A. Cohen (IL #6198606)
Scott C. Walton (IL #6281534)
Marlén Cortez Morris (IL #6291488)
CHENG COHEN LLC
311 N. Aberdeen Street, Ste. 400
Chicago, IL 60607
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]

/s/ Robert Salkowski
Robert Zarco (FL #502138)
Robert Salkowski (FL #903124)
Alaina Siminovsky (FL #70644)
ZARCO EINHORN SALKOWSKI & BRITO, P.A.
Miami Tower
100 Southeast 2nd Street, Suite 2700
Miami, FL 33131
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

-and-

-and-

/s/ Kimberly B. Still
Kimberly B. Still (#42338)
WHEELER TRIGG O’DONNELL LLP
370 Seventeenth Street, Suite 4500
Denver, CO 80202-5647
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]

Scott Kannady (#29995)
David J. Meretta (#44409)
BROWN & KANNADY, LLC
2000 S. Colorado Blvd., Suite 2-610
Denver, CO 80222
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]

Attorneys for Plaintiffs
Attorneys for Defendants

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01751-RM-CBS
STEAK N SHAKE ENTERPRISES, INC.,
and STEAK N SHAKE, LLC,
Plaintiffs and Counterclaim
Defendants,
v.
GLOBEX COMPANY, LLC,
SPRINGFIELD DOWNS, LLC,
CHRISTOPHER BAERNS,
LARRY BAERNS,
KATHRYN BAERNS, and
CONTROL LLC,
Defendants and Counterclaimants.

CONSENT TO BE BOUND BY
CONFIDENTIALITY AGREEMENT/PROTECTIVE ORDER
The undersigned hereby certifies that she or he has read the Confidentiality
Agreement/Protective Order in this action and agrees to be bound by it and that he or
she voluntarily submits to the personal jurisdiction of the United States District Court for
the District of Colorado for purposes of the enforcement of the above-specified
Confidentiality Agreement/Protective Order and the imposition of any sanctions for
contempt thereof by the undersigned.

Date: _________________

____________________________________
Signature
Name: _______________________________________
Company: ____________________________________
Address: _____________________________________

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