Hach Company v. In-Situ, Inc.

Filing 71

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 11/4/14. ORDERED that Plaintiff's 70 Joint MOTION for Protective Order is GRANTED. FURTHER ORDERED that when filing documents under seal parties MUST fully comply with the requirements of D.C.ColoL.CivR. 7.2 and D.C.COLO. ECF. PROC. 5.1. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02201-MSK-CBS
HACH COMPANY,
Plaintiff,
v.
IN-SITU, INC.,
Defendant.
STIPULATED PROTECTIVE ORDER
Plaintiff Hach Company and defendant In-Situ, Inc. (individually, a “Party” and
collectively, the “Parties”) anticipate that discovery in this action will require the
production of documents, things, and testimony that may contain confidential, sensitive,
or proprietary information. In the interests of expediting discovery and limiting disputes
regarding access to that information, the Parties stipulate and agree to the request for,
and entry of, the Protective Order set forth below.
Based on the stipulation of the Parties, and for good cause shown, IT IS
HEREBY ORDERED THAT:
1.

All documents, information, and items produced in the course of

discovery, including initial disclosures; responses to interrogatories and requests for
admissions; production and disclosure of documents, information, and items; and
deposition testimony and exhibits, whether produced by a Party or nonparty; shall be
subject to this Protective Order as set forth below.

2.

Any information or materials produced by any Party or nonparty as part of

discovery in this action may be designated by such Party or nonparty (the “Designating
Party”) as (a) “CONFIDENTIAL” or (b) “ATTORNEYS’ EYES ONLY” (together,
“Designated Material”) under the terms of this Protective Order.
3.

By designating something as Designated Material, counsel for the

Designating Party certifies under Rule 26(g) of the Federal Rules of Civil Procedure that
to the best of counsel’s knowledge, information, and belief formed after a reasonable
inquiry that the designation is: (a) consistent with the Federal Rules of Civil Procedure
and warranted by existing law or by a nonfrivolous argument for extending, modifying,
or reversing existing law, or for establishing new law; (b) not interposed for any
improper purpose, such as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation; and (c) not unreasonable.
4.

Subject to Paragraph 3 above, information or materials may be designated

as CONFIDENTIAL if the Designating Party believes in good faith that such information
or materials must be protected against disclosure to third parties. Absent a specific
order by this Court, once designated as CONFIDENTIAL, the Parties shall use that
designated information solely in connection with this litigation, and not for any business,
competitive, or governmental purpose or function. This information shall not be
disclosed to anyone except as provided in this Protective Order.
5.

Subject to Paragraph 3 above, information or materials may be designated

as ATTORNEYS’ EYES ONLY if the Designating Party believes in good faith that such
materials comprise highly confidential information that likely would be of value to a

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competitor or potential customer of the Designating Party possessing the information
and that therefore must be protected from disclosure. ATTORNEYS’ EYES ONLY
information may include, without limitation, highly sensitive technical information, highly
sensitive financial information, marketing plans and forecasts, pricing and cost
information, and customer names and lists. Absent a specific order by this Court, once
designated as ATTORNEYS’ EYES ONLY, the Parties shall use that designated
information solely in connection with this litigation, and not for any business,
competitive, or governmental purpose or function, and such information shall not be
disclosed to anyone except as provided in this Protective Order.
6.

The designation of information or material as CONFIDENTIAL or

ATTORNEYS’ EYES ONLY for purposes of this Protective Order shall be made in the
following manner by the Designating Party:
(a)

In the case of documents, exhibits, briefs, memoranda,

interrogatory responses, responses to requests for admission, or other materials
(apart from depositions or other pretrial or trial testimony): by affixing the words
CONFIDENTIAL or ATTORNEYS’ EYES ONLY, as appropriate, to each page of
any document containing any confidential information or material at the time such
documents are produced or such information is disclosed, or as soon thereafter
as the Designating Party becomes aware of the confidential nature of the
information or material disclosed and sought to be protected hereunder; and
(b)

In the case of depositions or other pretrial or trial testimony: (i) by a

statement on the record, by counsel, during such deposition or other pretrial or

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trial proceeding that the entire transcript or a portion thereof shall be designated
as CONFIDENTIAL or ATTORNEYS’ EYES ONLY, as appropriate, hereunder; or
(ii) by written notice of such designation sent by the Designating Party to all
Parties within fifteen (15) days after the Designating Party’s receipt of the
transcript of the deposition from the court reporter. The Parties shall treat all
deposition and other pretrial and trial testimony as ATTORNEYS’ EYES ONLY
until the expiration of fifteen (15) days after the Designating Party’s receipt of the
transcript of the deposition from the court reporter. The Parties may modify this
procedure for any particular deposition or proceeding through agreement on the
record at such deposition or proceeding, or otherwise by written stipulation,
without further order of the Court. If any document or information designated as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY is used during the course of a
deposition, that portion of the deposition record reflecting such confidential
information shall be sealed and stamped with the designated degree of
confidentiality, and access thereto shall be limited pursuant to the terms of this
Protective Order, including the exclusion from the deposition of those persons
not eligible to receive access to the materials so designated.
7.

Information or material designated as CONFIDENTIAL, or copies or

extracts therefrom and compilations and summaries thereof, may be disclosed,
summarized, described, characterized, or otherwise communicated or made available in
whole or in part only to the following persons:

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(a)

The Parties’ counsel in this action, the Parties’ in-house counsel,

and regular and temporary employees of such counsel, as well as imaging or
copy vendors retained by counsel, to whom it is necessary that the information or
material be shown for the purposes of this litigation;
(b)

Employees of the Parties whose assistance is needed by counsel

for the purposes of this litigation, and subject and conditioned upon compliance
with Paragraph 11 below;
(c)

Consultants as defined in paragraph 9 below and pursuant to the

provisions of Paragraph 10 below and subject and conditioned upon compliance
with Paragraph 10 below;
(d)

The Court;

(e)

Court reporters employed in connection with this action;

(f)

Graphics or design services retained by counsel for a Party for

purposes of preparing demonstrative or other exhibits for deposition, trial, or
other court proceedings in this action, subject to and conditioned upon
compliance with Paragraph 10 below;
(g)

Non-technical jury or trial consulting services retained by counsel

for a Party, subject to and conditioned upon compliance with Paragraph 10
below; and
(h)

Any other person only upon order of the Court or upon written

consent of the Designating Party.

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8.

Information or material designated as ATTORNEYS’ EYES ONLY, or

copies or extracts therefrom and compilations and summaries thereof, may be
disclosed, summarized, described, characterized, or otherwise communicated or made
available in whole or in part only to the following persons:
(a)

The Parties’ counsel, the Parties’ in-house counsel, and regular

and temporary employees of such counsel, as well as imaging or copy vendors
retained by counsel, to whom it is necessary that the information or material be
shown for the purposes of this litigation;
(b)

Consultants as defined in Paragraph 9 below and pursuant to the

provisions of Paragraph 10 below and subject to and conditioned upon
compliance with Paragraph 10 below;
(c)

The Court;

(d)

Court reporters employed in connection with this action;

(e)

Graphics or design services retained by counsel for a Party for

purposes of preparing demonstrative or other exhibits for deposition, trial or other
court proceedings in this action, subject to and conditioned upon compliance with
Paragraph 10 below;
(f)

Non-technical jury or trial consulting services retained by counsel

for a Party, subject to and conditioned upon compliance with Paragraph 9 below;
and
(g)

Any other person only upon order of the Court or upon written

consent of the Designating Party.

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9.

For purposes of Paragraphs 7(c) and 8(b) above, a “consultant” shall be

defined as a person who is neither an employee of a Party at the time of disclosure nor
anticipated to become an employee, and who is retained or employed as a bona fide
consultant or expert for purposes of this litigation, whether full or part time, by or at the
direction of counsel for a Party.
10.

The procedure for having a consultant approved for access to Designated

Material shall be as follows:
(a)

If the consultant is a non-testifying expert, the consultant shall be

approved for access upon completing and signing an Acknowledgement and
Agreement to be Bound in the form attached hereto as Exhibit A. It shall be the
responsibility of the Party retaining the consultant: (i) to ensure that the
consultant is not consulting, working, researching, publishing or teaching in the
substantive areas that are the subject of the Designated Material; and (ii) to
retain the original, signed Acknowledgement and Agreement to be Bound.
(b)

Except for a consultant that falls within Paragraph 10(a), the Party

seeking to have a consultant approved shall provide the other Party with a
current resume or curriculum vitae of such person and a copy of a completed and
signed Acknowledgement and Agreement to be Bound in the form attached
hereto as Exhibit A.
(c)

A Party may object by e-mail to the person proposed for approval

within five (5) days after receiving the information and signed undertaking
described in subparagraph (b) if facts available to that Party give it reason to

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believe there is a reasonable likelihood that the designated person may use
Designated Material for purposes other than the preparation or trial of this case
or that disclosure to such person would threaten the producing Party or
nonparty’s business or interests. Failure to object within five (5) days to a person
proposed shall be deemed approval, but shall not preclude a Party from objecting
to continued access of Designated Material information by that person where
facts establish a bona fide likelihood that the designated person will use the
designated information for purposes other than preparation or trial of the case or
that disclosure to such person would threaten the producing Party or nonparty’s
business or interests.
(d)

If a Party objects, the Parties shall, within five (5) days from the

date of e-mailing the notice of objection, confer and attempt to resolve the
dispute. At that conference, the objecting Party shall inform the Party requesting
approval of its good faith reasons for objecting to the designated person. If the
Parties cannot resolve the dispute within ten (10) days from the date of the notice
of objection, the objecting Party may move the Court for an order that access to
Designated Material be denied to the designated person. This procedure shall
not preclude a Party from objecting to continued access to Designated Material
where facts establish a bona fide likelihood that the designated person will use
the designated information for purposes other than preparation or trial of this
case or that disclosure to such person would threaten the producing Party or
nonparty’s business or interests.

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11.

All persons listed in Paragraphs 7(b), 7(c), 7(f)-7(h) above may be given

access to information or material designated as CONFIDENTIAL, provided that they first
confirm their understanding and agreement to abide by the terms of this Protective
Order by completing and signing a copy of the Acknowledgement and Agreement to be
Bound in the form attached hereto as Exhibit A. Similarly, all persons listed in
Paragraphs 8(b) and 8(e)-(g) above may be given access to information or material
designated as ATTORNEYS’ EYES ONLY provided that they first confirm their
understanding and agreement to abide by the terms of this Protective Order by
completing and signing a copy of the Acknowledgement and Agreement to be Bound in
the form attached hereto as Exhibit A.
12.

The Party’s counsel who discloses Designated Materials shall be

responsible for ensuring compliance with the terms of this Protective Order with respect
to persons to whom such information is disclosed, and shall obtain and retain the
original Acknowledgements and Agreements to be Bound signed by qualified recipients
of Designated Materials, and shall maintain a list of all persons to whom such
information is disclosed.
13.

During the pendency of this action, opposing counsel may, either upon

obtaining a Court Order or agreement of the Parties, inspect the list maintained by
counsel pursuant to Paragraph 12 upon a showing of: (a) substantial need in order to
establish the source of an unauthorized disclosure of Designated Materials; and (b) that
opposing counsel are unable otherwise to identify the source of the disclosure. If
counsel maintaining the list disagrees with opposing counsel’s showing, then counsel

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for the Party asking for the disclosure may seek a Court Order requiring inspection and
subject to such terms and conditions as the Court determines are appropriate.
14.

Any person may be examined as a witness at trial or during a deposition

concerning Designated Material when it appears that person had lawfully received the
information or material prior to being examined, or when the person is the Designating
Party or its current owner, officer, director, shareholder, manager, member, affiliate,
employee, representative, or agent.
15.

The Parties must file documents containing Designated Material in

accordance with Rule 7.2 of the Rules of Local Practice for the United States District
Court for the District of Colorado and otherwise must comply with Rule 7.2, which will
govern the Court’s treatment of Designated Material.
16.

A Party may challenge a Designating Party’s designation of information or

materials produced in this action as CONFIDENTIAL or ATTORNEYS’ EYES ONLY by
serving a written objection upon the Designating Party. Any such objection must be
served no less than forty-five (45) days before the dispositive motion deadline. The
Designating Party shall notify the challenging Party in writing of the bases for the
asserted designation within ten (10) days after receiving any written objection. The
Parties and, if applicable, the nonparty shall confer in good faith as to the validity of the
designation within five (5) days after the challenging Party has received the notice of the
bases for the asserted designation. To the extent an agreement as to the designation is
not reached, the objecting Party may make an appropriate application to this Court after
conferring with the Designating Party, requesting that specifically identified documents,

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information, or deposition testimony be excluded from the provisions of this Protective
Order or downgraded in terms of the degree of protection provided. Until a dispute over
the asserted designation is finally resolved by the Parties, nonparty, or the Court, all
Parties and other persons shall treat the information or materials in question as
designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY. Nothing contained in
this paragraph will change the Designating Party’s burden to prove the propriety of its
designation of Designated Material.
17.

All Designated Material covered by this Protective Order shall be kept in

secure facilities, and access to those facilities shall be permitted only to those
designated persons set forth in Paragraphs 7 and 8 above as persons properly having
access to those materials.
18.

All counsel for the Parties who have access to Designated Material under

this Protective Order acknowledge they are bound by this Order and submit to the
jurisdiction of this Court for purposes of enforcing this Order.
19.

If a Designating Party inadvertently produces information subject to a

claim of attorney-client or other legal privilege, or work product immunity, any such
production shall in no way prejudice or constitute a waiver of, or estoppel as to, any
claim of privilege or work product immunity for or over that information. If and when a
Designating Party discovers that it has inadvertently produced information subject to a
claim of privilege or work product immunity, the Designating Party shall promptly make
a request that the other Parties return the information. Upon such a request, the other
Parties shall promptly return the information that is the subject of that inadvertent

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production. The party returning the information may then move the Court for an Order
compelling the production of the information, but the motion shall not assert as a ground
for production the fact or circumstances of the inadvertent production. Undersigned
counsel acknowledge and agree that the provisions of this Paragraph 19 do not alter or
diminish their obligations with respect to inadvertently produced information under
Federal Rule of Civil Procedure 26(b)(5)(B) and/or the applicable Colorado ethical rules
or opinions.
20.

Entering into, agreeing to, or producing or receiving Designated Material,

or otherwise complying with the terms of this Protective Order shall not:
(a)

Operate as an admission by any Party that any particular

Designated Material contains or reflects trade secrets, proprietary or
commercially sensitive information, or any other type of confidential information;
(b)

Operate as an admission by any Party that the restrictions and

procedures set forth herein constitute or do not constitute adequate protection for
any particular information deemed by any Party or nonparty to be
CONFIDENTIAL or ATTORNEYS’ EYES ONLY;
(c)

Prejudice in any way the rights of any Party to object to the

production of documents it considers not subject to discovery;
(d)

Prejudice in any way the rights of any Party to object to the

authenticity or admissibility into evidence of any document, testimony, or other
evidence subject to this Protective Order;

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(e)

Prejudice in any way the rights of any Party to seek a determination

by the Court whether any information or material should be subject to the terms
of this Protective Order;
(f)

Prejudice in any way the rights of any Party or nonparty to petition

the Court for a further protective order relating to any purportedly confidential
information;
(g)

Prejudice in any way the rights of any Party or nonparty to make a

showing that information or materials of proprietary or competitive value, but
which is not specifically included in the categories of ATTORNEYS’ EYES ONLY
information or materials itemized in Paragraph 5 above, is properly designated
ATTORNEYS’ EYES ONLY; or
(h)

Prevent the Parties to this Protective Order from agreeing in writing

or on the record during a deposition or hearing in this action to alter or waive the
provisions or protections provided for herein with respect to any particular
information or material.
21.

This Protective Order has no effect upon, and shall not apply to, a Party’s

use or disclosure of its own confidential information for any purpose. Nothing contained
herein shall impose any restrictions on the use or disclosure by a Party of documents,
information or material designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY
obtained lawfully by such Party independently of any proceedings in this action, or
which:

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(a)

Was already known to such Party by lawful means prior to

acquisition from, or disclosure by, any other Party in this action;
(b)

Is or becomes publicly known through no fault or act of such Party;

(b)

Is rightfully received by such Party from a third party that has

or

authority to provide such information or material and without restriction as to
disclosure.
22.

If a Party or nonparty inadvertently produces CONFIDENTIAL or

ATTORNEYS’ EYES ONLY information without marking it as such, it may be disclosed
to others until the disclosing Party or nonparty provides actual written notice to the
receiving Party or the receiving Party becomes aware of the disclosing Party’s or
nonparty’s error; provided, however, that the receiving Party is under such an obligation
only if it clearly appears from the face of the document that it contains non-public,
confidential, proprietary, commercially sensitive, or trade secret information of the Party
or nonparty. As soon as the disclosing Party or nonparty notifies the receiving Party of
the inadvertent production, the information will be treated as if it had been timely
designated under this Protective Order, and the receiving Party agrees to endeavor in
good faith to obtain all copies of the document which it distributed or disclosed to
persons not authorized to access such information by Paragraphs 7 or 8 above, as well
as any copies made by such persons.
23.

Nothing in this Protective Order shall prevent or otherwise restrict counsel

from rendering advice to their clients and, in the course thereof, relying generally on

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examination of documents protected under this Protective Order; provided, however,
that in rendering such advice and otherwise communicating with such clients, counsel
shall not make specific disclosure of any item so designated except pursuant to the
provisions of this Protective Order.
24.

The terms of this Protective Order shall apply to all manner and means of

discovery, including entry onto land or premises, and inspection of books, records,
documents, and tangible things.
25.

The terms of this Protective Order shall govern discovery and other

pretrial and trial proceedings in this action.
26.

Each Party is entitled to seek modification of this Protective Order by

application to the Court on notice to the other Party and for good cause.
27.

The Parties agree to be bound by the terms of this Protective Order

pending its entry by the Court, or pending the entry of an alternative thereto which is
satisfactory to all Parties, and any violation of its terms shall be subject to the same
sanctions and penalties as if the Protective Order had been entered by the Court.
28.

Except as otherwise provided in paragraph 29, within sixty (60) days after

the conclusion of this action and any appeals arising therefrom, all originals and copies
of Designated Material, other than Designated Material in possession of the Court or
Court personnel, shall be destroyed and a written statement certifying destruction shall
be sent to the Designating Party. Alternatively, at the option of the Designating Party,
and at its expense, a Designating Party may request that all Designated Material it
produced be returned for its own disposition.

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29.

After the conclusion of this action and any appeals arising therefrom,

counsel for any Party in receipt of Designated Material under the Protective Order may
retain copies of any Designated Material as counsel reasonably deems necessary to the
proper maintenance of counsel’s files with respect to this action. Any such retained
copies shall not be disclosed to anyone outside of counsel’s law firm.
30.

If a subpoena, court order, discovery request, or other compulsory

process is received by a Party or its counsel requesting Designated Material received
under this Protective Order, the Party or counsel subject to the request shall object to
the production of the Designated Material based on the obligations of non-disclosure
under this Protective Order and shall notify the Designating Party so that Party may
intervene and seek protection of its Confidential Material.
31.

In the event that any Designated Material is used in any court proceeding

in this action or any appeal therefrom, such information or material shall not lose its
status as CONFIDENTIAL or ATTORNEYS’ EYES ONLY through such use. Counsel
for the Parties shall confer on such procedures as are necessary to protect the
confidentiality of any documents, information, and transcripts used in the course of any
court proceedings, and shall incorporate such procedures, as appropriate, in the
proposed pre-trial order.

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SO ORDERED this 4th

day of November

, 2014.

BY THE COURT:

Craig B. Shaffer
United States Magistrate Judge
We so stipulate and agree to abide by the terms of this Order:
s/ Andrew J. Petrie
Andrew J. Petrie
Matthew A. Morr
BALLARD SPAHR LLP
1225 Seventeenth Street, Suite 2300
Denver, Colorado 80202-5596
Telephone: [phone]
Facsimile: 303-296-3956
[e-mail]
[e-mail]
Attorneys for Plaintiff, Hach Company

s/ Casey K. Kannenberg
Brett Godfrey
Casey K. Kannenberg
GODFREY ǀ JOHNSON, P.C.
9557 Kingston Court
Englewood, Colorado 80112
Telephone: [phone]
[e-mail]
[e-mail]
Attorneys for Defendant, In-Situ, Inc.

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ATTACHMENT A

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02201-MSK-CBS
HACH COMPANY,
Plaintiff,
v.
IN-SITU, INC.,
Defendant.
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he or she has read the Protective
Order dated __________________________ 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 or her to use documents designated
CONFIDENTIAL or ATTORNEYS’ EYES ONLY 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.
Name:
Job Title:
Employer:
Business Address:

Date:
Signature

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