Martensen v. Koch

Filing 32

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 10/31/13. ORDERED that parties MUST fully comply with all provisions of D.C.ColoL.CivR. 7.2 and D.C.COLO. ECF. PROC. 6.1. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02411-REB-CBS
KIRBY MARTENSEN,
Plaintiff,
v.
WILLIAM KOCH and
DOES 1-25, inclusive,
Defendant.

PROTECTIVE ORDER
1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of

confidential, proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be
warranted. The parties acknowledge that this Order does not confer blanket protections
on all disclosures or responses to discovery and that the protection it affords from public
disclosure and use extends only to the limited information or items that are entitled to
confidential treatment under the applicable legal principles. The parties further
acknowledge, as set forth in Section 12.3, below, that this Protective Order does not
entitle them to file confidential information under seal; D. C. Colo. L. Civ. R. 7.2 sets
forth the procedures that must be followed when a party seeks permission from the

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court to restrict public access to materials filed with the court. The parties further
acknowledge that nothing in this Protective Order modifies their obligations under Fed.
R. Civ. P. 26(g).
2.

DEFINITIONS
2.1.

Challenging Party: a Party or Non-Party that challenges the designation

of information or items under this Order.
2.2.

"CONFIDENTIAL" or "CONFIDENTIAL – ATTORNEYS' EYES ONLY"

Information or Items: information (regardless of how it is generated, stored or
maintained) or tangible things that qualify for protection under Federal Rule of Civil
Procedure 26(c).
2.3.

Counsel (without qualifier): Outside Counsel of Record and House

Counsel (as well as their support staff).
2.4.

Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL"
or "CONFIDENTIAL – ATTORNEYS' EYES ONLY."
2.5.

Disclosure or Discovery Material: all items or information, regardless of

the medium or manner in which it is generated, stored, or maintained (including, among
other things, testimony, transcripts, and tangible things), that are produced or generated
in disclosures or responses to discovery in this matter.
2.6.

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as an
expert witness or as a consultant in this action.

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2.7.

House Counsel: attorneys who are employees of a party to this action.

House Counsel expressly includes attorneys employed by Oxbow Carbon LLC and its
affiliated companies. House Counsel does not include Outside Counsel of Record or
any other outside counsel.
2.8.

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
2.9.

Outside Counsel of Record: attorneys who are not employees of a party

to this action but are retained to represent or advise a party to this action and have
appeared in this action on behalf of that party or are affiliated with a law firm which has
appeared on behalf of that party.
2.10. Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.11. Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12. Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and
their employees and subcontractors.
2.13. Protected Material: any Disclosure or Discovery Material that is
designated as "CONFIDENTIAL" OR "CONFIDENTIAL – ATTORNEYS' EYES ONLY."

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2.14. Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
3.

SCOPE
The protections conferred by this Order cover not only Protected Material (as

defined above), but also (1) any information copied or extracted from Protected
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and
(3) any testimony, conversations, or presentations by Parties or their Counsel that might
reveal Protected Material. However, the protections conferred by this Order do not
cover the following information: (a) any information that is in the public domain at the
time of disclosure to a Receiving Party or becomes part of the public domain after its
disclosure to a Receiving Party as a result of publication not involving a violation of this
Order, including becoming part of the public record through trial or otherwise; and (b)
any information known to the Receiving Party prior to the disclosure or obtained by the
Receiving Party after the disclosure from a source who obtained the information lawfully
and under no obligation of confidentiality to the Designating Party. Any use of Protected
Material at trial shall be governed by a separate agreement or order.
4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed

by this Order shall remain in effect until a Designating Party agrees otherwise in writing
or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)
dismissal of all claims and defenses in this action, with or without prejudice; and (2) final
judgment herein after the completion and exhaustion of all appeals, rehearings,

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remands, trials, or reviews of this action, including the time limits for filing any motions
or applications for extension of time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1.

Exercise of Restraint and Care in Designating Material for Protection.

Each Party or Non-Party that designates information or items for protection under this
Order must take care to limit any such designation to specific material that qualifies
under the appropriate standards. The Designating Party must designate for protection
only those parts of material, documents, items, or oral or written communications that
qualify – so that other portions of the material, documents, items, or communications for
which protection is not warranted are not swept unjustifiably within the ambit of this
Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that
are shown to be clearly unjustified or that have been made for an improper purpose
(e.g., to unnecessarily encumber or retard the case development process or to impose
unnecessary expenses and burdens on other parties) expose the Designating Party to
sanctions. If it comes to a Designating Party's attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the mistaken designation.
5.2.

Manner and Timing of Designations. Except as otherwise provided in this

Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
or ordered, Disclosure or Discovery Material that qualifies for protection under this
Order must be clearly so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend "CONFIDENTIAL" or
"CONFIDENTIAL – ATTORNEYS' EYES ONLY" to each page that contains protected
material. If only a portion or portions of the material on a page qualifies for protection,
the Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for
inspection need not designate them for protection until after the inspecting Party has
indicated which material it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be deemed
"CONFIDENTIAL" or "CONFIDENTIAL – ATTORNEYS' EYES ONLY." After the
inspecting Party has identified the documents it wants copied and produced, the
Producing Party must determine which documents, or portions thereof, qualify for
protection under this Order. Then, before producing the specified documents, the
Producing Party must affix the "CONFIDENTIAL" or "CONFIDENTIAL – ATTORNEYS'
EYES ONLY" legend to each page that contains Protected Material. If only a portion or
portions of the material on a page qualifies for protection, the Producing Party also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins).

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(b)

for testimony given in deposition or in other pretrial or trial

proceedings, that the Designating Party identify on the record, before the close of the
deposition, hearing, or other proceeding, all protected testimony.
(c)

for information produced in some form other than documentary and

for any other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information or item is stored the
legend "CONFIDENTIAL" or "CONFIDENTIAL – ATTORNEYS' EYES ONLY." If only a
portion or portions of the information or item warrant protection, the Producing Party, to
the extent practicable, shall identify the protected portion(s).
5.3.

Inadvertent Failures to Designate.

If timely corrected, an inadvertent failure to designate qualified information or
items does not, standing alone, waive the Designating Party’s right to secure protection
under this Order for such material. Upon timely correction of a designation, the
Receiving Party must make reasonable efforts to assure that the material is treated in
accordance with the provisions of this Order. The Receiving Party shall be obligated to
promptly inform any other person or persons to which the Receiving Party or his
Counsel has provided the Discovery Material of such notification.
Once a Receiving Party has received notice of the inadvertent failure to
designate pursuant to this provision, the Receiving Party shall treat such Discovery
Material at the appropriately designated level pursuant to the terms of this Order.
Protected Material produced without the designation of “CONFIDENTIAL” or
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be so designated subsequent to

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production if the Producing Party failed to make such designation at the time of
production through inadvertence, error or neglect. If Discovery Material is designated
subsequent to production, the Receiving Party shall promptly collect any copies that
have been provided to individuals and/or entities so that they can be re-labeled with the
“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation.
Additionally, if the Receiving Party is not authorized to be in possession of the materials
as a result of their subsequent designation, such Receiving Party shall promptly deliver
all such materials to Counsel for the Receiving Party, and shall provide notice and a
certification to the Designating Party that all such materials, including any copies
thereof, have been delivered to Counsel for the Receiving Party. With respect to any
documents independently or separately created by the Receiving Party which
incorporate, reference or mention such materials or information, the Receiving Party
shall certify to Designating Party that all such documents, and any copies thereof, have
been destroyed.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

Timing of Challenges. Any Party may challenge a designation of

confidentiality within a reasonable period of time after the designation. Unless a prompt
challenge to a Designating Party's confidentiality designation is necessary to avoid
foreseeable, substantial unfairness, unnecessary economic burdens, or a significant
disruption or delay of the litigation, a Party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed; but in any event the challenge must be made within a
reasonable period of time after the designation.
6.2.

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process by providing written notice to Outside Counsel of each specific
designation on each document it is challenging and specifically describe the basis for
each challenge. To avoid ambiguity as to whether a challenge has been made, the
written notice must recite that the challenge to confidentiality is being made in
accordance with this specific paragraph of the Protective Order. The parties shall
attempt to resolve each challenge in good faith and must begin the process by
conferring directly (in voice to voice dialogue; other forms of communication are not
sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
Party must explain the basis for its belief that the confidentiality designation was not
proper and must give the Designating Party an opportunity to review the designated
material, to reconsider the circumstances, and, if no change in designation is offered, to
explain the basis for the chosen designation. A Challenging Party may proceed to the
next stage of the challenge process only if it has engaged in this meet and confer
process first or establishes that the Designating Party is unwilling to participate in the
meet and confer process in a timely manner.
6.3.

Judicial Intervention. If the Parties cannot resolve a challenge without

court intervention, the Designating Party shall file and serve a motion to retain
confidentiality under D. C. Colo. L. Civ. R. 7.1 within 21 days of the initial notice of
challenge or within 14 days of the parties agreeing that the meet and confer process will

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not resolve their dispute, whichever is earlier. Each such motion must be accompanied
by a competent declaration affirming that the movant has complied with the meet and
confer requirements imposed in the preceding paragraph. Failure by the Designating
Party to make such a motion including the required declaration within 21 days (or 14
days, if applicable) shall automatically waive the confidentiality designation for each
challenged designation. In addition, the Challenging Party may file a motion challenging
a confidentiality designation at any time if there is good cause for doing so, including a
challenge to the designation of a deposition transcript or any portions thereof. Any
motion brought pursuant to this provision must be accompanied by a competent
declaration affirming that the movant has complied with the meet and confer
requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
to harass or impose unnecessary expenses and burdens on other parties) may expose
the Challenging Party to sanctions. Unless the Designating Party has waived the
confidentiality designation by failing to file a motion to retain confidentiality as described
above, all parties shall continue to afford the material in question the level of protection
to which it is entitled under the Producing Party's designation until the court rules on the
challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-Party in connection with this case

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only for prosecuting, defending, or attempting to settle this litigation. Such Protected
Material may be disclosed only to the categories of persons and under the conditions
described in this Order. When the litigation has been terminated, a Receiving Party
must comply with the provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2.

Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party
may disclose any information or item designated "CONFIDENTIAL" only to:
(a)

the Receiving Party's Outside Counsel of Record in this action, as

well as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this litigation and who have signed the
"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A;
(b)

the Receiving Party, its House Counsel, and, as applicable, its

officers, directors, and employees to whom disclosure is reasonably necessary for this
litigation and who have signed the "Acknowledgment and Agreement to Be Bound"
(Exhibit A);
(c)

Experts (as defined in this Order) of the Receiving Party to whom

disclosure is reasonably necessary for this litigation and who have signed the
"Acknowledgment and Agreement to Be Bound" (Exhibit A);
(d)

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(e)

court reporters and their staff, professional jury or trial consultants,

mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for
this litigation and who have signed the "Acknowledgment and Agreement to Be Bound"
(Exhibit A);
(f)

during their depositions, witnesses in the action to whom disclosure

is reasonably necessary and who have signed the "Acknowledgment and Agreement to
Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by
the court. Pages of transcribed deposition testimony or exhibits to depositions that
reveal Protected Material must be separately bound by the court reporter and may not
be disclosed to anyone except as permitted under this Protective Order.
(g)

the author or recipient of a document containing the information or

a custodian or other person who otherwise possessed or knew the information.
7.3.

Disclosure of "CONFIDENTIAL – ATTORNEYS' EYES ONLY" Information

or Items: Unless otherwise ordered by the court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated
"CONFIDENTIAL – ATTORNEYS' EYES ONLY" only to:
(a)

the Receiving Party's House Counsel and Outside Counsel of

Record in this action, as well as employees of said Outside Counsel of Record to whom
it is reasonably necessary to disclose the information for this litigation and who have
signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(b)

Experts (as defined in this Order) of the Receiving Party and their

necessary support personnel, provided that disclosure is only to the extent necessary to

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perform such work; and provided that: (i) such Expert or support personnel has signed
the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and (ii) no unresolved
objections to such disclosure exist after proper notice has been given to all other parties
pursuant to Section 7.4, below;
(c)

Court reporters, stenographers and videographers retained to

record testimony taken in this action, to whom disclosure is reasonably necessary for
this Litigation;
(d)

The Court, jury, and court personnel (under seal or with other

suitable precautions determined by the Court);
(e)

Graphics, translation, design, and/or trial consulting services, and

electronic discovery vendors, retained by a Party to whom disclosure is reasonably
necessary for this litigation, provided that each such person, including their staff, has
signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(f)

Any mediator who is assigned to hear this matter, and his or her

staff, subject to their agreement to maintain confidentiality to the same degree as
required by this Protective Order; and
(g)

Any other person with the prior written consent of the Designating

Party.
7.4.

NOTICE OF DISCLOSURE
(a)

Experts or consultants receiving Protected Material shall not be a

current (nor anticipated at the time of retention to become an) officer or director of, nor
employed directly or indirectly by, any entity or person who competes, directly or

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indirectly, with the Designating Party, or any of the Designated Party's affiliated or
related companies.
(b)

Prior to disclosing any Protected Material to any person or entity

described in Paragraphs 7.2(c) or 7.3(b) (“Person”), the party seeking to disclose such
information shall provide the Designating Party with written notice that includes: (i) the
name and contact address of the Person; and (ii) the present employer and title of the
Person; and (iii) an up-to-date curriculum vitae of the Person.
(c)

Within ten (10) business days of receipt of the identity of the Person

to whom Protected Material is proposed to be disclosed, the Designating Party may, for
good cause, object in writing to the Person’s receipt of the Protected Material. There
shall be no disclosure of Protected Material to the Person prior to expiration of this ten
(10) business day period. In the absence of an objection at the end of the ten (10)
business day period, the Person shall be deemed approved under this Order. If the
Designating Party objects to disclosure to the Person within such ten (10) business day
period, the parties shall meet and confer via telephone or in person within five (5)
business days following the objection and attempt in good faith to resolve the dispute on
an informal basis. If the dispute is not resolved, the party objecting to the disclosure will
have five business (5) days from the date of the meet and confer to seek relief from the
Court. If relief is not sought from the Court within that time, the objection shall be
deemed waived. If relief is sought, the Protected Materials shall not be disclosed to the
Person in question until the objection is finally resolved by the Court.

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(d)

For purposes of this section, “good cause” shall include an

objectively reasonable concern that the proposed Person will, advertently or
inadvertently, have the ability or potential ability to use or disclose Protected Materials in
a way that is detrimental to the legitimate business interests of the Designating Party, or
any of the Designated Party's affiliated or related companies, which is inconsistent with
the provisions contained in this Order.
(e)

Prior to receiving any Protected Material under this Order, the

Person must execute a copy of the “Agreement to Be Bound by Protective Order”
(Exhibit A hereto).
8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that
compels disclosure of any information or items designated in this action as
"CONFIDENTIAL" or "CONFIDENTIAL – ATTORNEYS' EYES ONLY" that Party must:
(a)

promptly notify in writing the Designating Party. Such notification

shall include a copy of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or

order to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall include a
copy of this Protective Order; and
(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
"CONFIDENTIAL" or "CONFIDENTIAL – ATTORNEYS' EYES ONLY" before a
determination by the court from which the subpoena or order issued, unless the Party
has obtained the Designating Party's permission. The Designating Party shall bear the
burden and expense of seeking protection in that court of its confidential material – and
nothing in these provisions should be construed as authorizing or encouraging a
Receiving Party in this action to disobey a lawful directive from another court.
9.

A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN

THIS LITIGATION
(a)

The terms of this Order are applicable to information produced by a

Non-Party in this action and designated as "CONFIDENTIAL" or "CONFIDENTIAL –
ATTORNEYS' EYES ONLY." Such information produced by Non-Parties in connection
with this litigation is protected by the remedies and relief provided by this Order. Nothing
in these provisions should be construed as prohibiting a Non-Party from seeking
additional protections.
(b)

In the event that a Party is required, by a valid discovery request, to

produce a Non-Party's confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party's confidential
information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the Non-

Party that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2)

promptly provide the Non-Party with a copy of the Protective

Order in this litigation, the relevant discovery request(s), and a reasonably specific
description of the information requested; and
(3)

make the information requested available for inspection by

the Non-Party.
(c)

If the Non-Party fails to object or seek a protective order from this

court within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party's confidential information responsive to the
discovery request. If the Non-Party timely seeks a protective order, the Receiving Party
shall not produce any information in its possession or control that is subject to the
confidentiality agreement with the Non-Party before a determination by the court.
Absent a court order to the contrary, the Non-Party shall bear the burden and expense
of seeking protection in this court of its Protected Material.
10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

Protected Material to any person or in any circumstance not authorized under this
Protective Order, the Receiving Party must immediately (a) notify in writing the
Designating Party of the unauthorized disclosure(s), (b) use its best efforts to retrieve all
unauthorized copies of the Protected Material, (c) inform the person or persons to whom

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unauthorized disclosures were made of all the terms of this Order, and (d) request such
person or persons to execute the "Acknowledgment and Agreement to Be Bound" that
is attached hereto as Exhibit A. Such executed acknowledgment shall promptly be
served upon the Designating Party. Compliance with the terms of this paragraph shall in
no way serve to relieve a person responsible for such unauthorized disclosure from any
liability for such unauthorized disclosure.
11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). The inadvertent production by a Designating Party of Protected
Material subject to the attorney-client privilege, work-product protection, or any other
applicable privilege or protection will not waive the applicable privilege and/or protection
if a request for return of such inadvertently produced Discovery Material is made after
the Designating Party learns of his inadvertent production.
Upon notification from the Designating Party that he has inadvertently produced
Protected Material that he believes is privileged and/or protected and/or otherwise not
subject to discovery in this matter, the Receiving Party shall immediately return such
Protected Material and all copies to Outside Counsel of Record for the Designating
Party.

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Nothing herein is intended to alter any attorney’s obligation to abide by any
applicable rules of professional responsibility relating to the inadvertent disclosure of
privileged information.
12.

MISCELLANEOUS
12.1. Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the court in the future.
12.2. Right to Assert Other Objections. No Party waives any right it otherwise
would have to object to disclosing or producing any information or item on any ground
not addressed in this Protective Order. Similarly, no Party waives any right to object on
any ground to use in evidence of any of the material covered by this Protective Order.
12.3. Filing Protected Material. Without written permission from the Designating
Party or a court order secured after appropriate notice to all interested persons, a Party
may not file in the public record in this action any Protected Material. A Party that seeks
to file under seal any Protected Material must comply with D. C. Colo. L. Civ. R. 7.2.
Protected Material may only be filed under seal pursuant to a court order authorizing the
sealing of the specific Protected Material at issue. A sealing order will issue only upon a
request establishing that the Protected Material at issue is privileged, protectable as a
trade secret, or otherwise entitled to protection under the law. If a Receiving Party's
request to file Protected Material under seal is denied by the court, then the Receiving
Party may file the information in the public record unless otherwise instructed by the
court.

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13.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4,

each Receiving Party must return all Protected Material to the Producing Party or
destroy such material. As used in this subdivision, "all Protected Material" includes all
copies, abstracts, compilations, summaries, and any other format reproducing or
capturing any of the Protected Material. Whether the Protected Material is returned or
destroyed, the Receiving Party must submit a written certification to the Producing Party
(and, if not the same person or entity, to the Designating Party) by the 60 day deadline
that (1) identifies (by category, where appropriate) all the Protected Material that was
returned or destroyed and (2)affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries or any other format reproducing or capturing
any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if such
materials contain Protected Material. Any such archival copies that contain or constitute
Protected Material remain subject to this Protective Order as set forth in Section 4
(DURATION).
IT IS SO ORDERED.
August 25, 2012
31 Oct 2013
DATED: ________________________ ____________________________________
Hon. Craig B. Shaffer
Magistrate Judge
District of Colorado

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________
[print or type full address], declare under penalty of perjury that I have read in its entirety
and understand the Protective Order that was issued by the United States District Court
for the District of Colorado on [date] in the case of Martensen v. Koch, Civil Action No.
13-cv-02411-REB-CBS. I agree to comply with and to be bound by all the terms of this
Protective Order and I understand and acknowledge that failure to so comply could
expose me to sanctions and punishment in the nature of contempt. I solemnly promise
that I will not disclose in any manner any information or item that is subject to this
Protective Order to any person or entity except in strict compliance with the provisions
of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
District of Colorado for the purpose of enforcing the terms of this Protective Order, even
if such enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and
telephone number] as my agent for service of process in connection with this action or
any proceedings related to enforcement of this Protective Order.
Date: ______________________________________
City and State where sworn and signed: _________________________________
Printed name: _______________________________

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Signature: __________________________________

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