Eco-Products, Inc. v. World Centric

Filing 17

STIPULATED PROTECTIVE ORDER by Magistrate Judge Boyd N. Boland on 12/12/13. (dkals, )

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-02477-CMA-BNB
ECO-PRODUCTS, INC.
Plaintiff,
vs.
WORLD CENTRIC,
Defendant.

STIPULATED PROTECTIVE ORDER

PROTECTIVE ORDER GOVERNING DISCOVERY MATERIALS
Upon a showing of good cause in support of the entry of a protective order to protect the
discovery and dissemination of confidential information, IT IS ORDERED:
I.

DEFINITIONS
1.

PARTY means any party to this action.

2.

PROTECTED INFORMATION is any document, material, item, testimony, or

information designated as CONFIDENTIAL, or CONFIDENTIAL - ATTORNEYS’ EYES
ONLY.
3.

CONFIDENTIAL information is information that the PRODUCING PARTY and

its TRIAL COUNSEL in good faith believe is information that is maintained confidentially and
constitutes a trade secret; research, development, or commercial information; or otherwise
implicates common law or statutory privacy interests.
4.

ATTORNEYS’ EYES ONLY information is information that the PRODUCING

PARTY and its TRIAL COUNSEL contend in good faith may not be disclosed to the
RECEIVING PARTY in this litigation because of its status as a competitor and shall be reserved
for information relating to prices, business plans and forecasts, marketing/advertising strategies,
customer orders, customer sales quotations, sales volumes, company personnel files, sensitive
corporate documents, sensitive documents regarding corporate and/or customer relationships,
existing and future product designs, engineering, customer lists or identities, manufacturer lists
or identities, profits, losses or other similar information of the most confidential nature.
5.

DOCUMENT means all documents and things within the scope of Fed. R. Civ. P.

34. A draft or non-identical copy is a separate document within the meaning of this term.
6.

TRIAL COUNSEL means outside law firms that are counsel of record for the

Parties, and supporting personnel regularly employed or specially contracted by the attorneys,
such as, for example, paralegals, legal secretaries, and legal clerks.
7.

INDEPENDENT EXPERT means any person with specialized knowledge or

experience in a matter pertinent to the litigation who has been retained by a PARTY or TRIAL
COUNSEL to serve as an expert witness or as a consultant in this action and with whom TRIAL
COUNSEL may deem it necessary to consult concerning technical and/or financial information
received, or concerning other aspects of this case, for the preparation or trial thereof. This
definition includes a professional jury or trial consultant retained in connection with this
litigation and mock jurors retained by such a consultant. INDEPENDENT EXPERTS may not
be (a) a current employee of a PARTY or of a competitor of a PARTY, or (b) a person who, at
the time of retention, is anticipated to become an employee of a PARTY or of a competitor of a
PARTY.

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8.

PRODUCING PARTY means a PARTY or NON-PARTY that produces

PROTECTED INFORMATION in this action.
9.

NON-PARTY means any natural person, partnership, corporation, association, or

other legal entity not named as a PARTY to this Action.
10.

RECEIVING PARTY means a PARTY that receives PROTECTED

INFORMATION from a PRODUCING PARTY.
11.

PROFESSIONAL VENDOR means any persons or entities that provide litigation

support services (e.g., photocopying, organizing, storing, or retrieval of data in any form or
medium, videotaping, translating, designing and preparing exhibits, stenographic reporting,
graphics, or demonstrations, etc.) and their employees and subcontractors. PROFESSIONAL
VENDORS do not include persons who fall within the definition of INDEPENDENT EXPERT.
II.

DESIGNATION AND IDENTIFICATION OF INFORMATION
12.

Information designated as PROTECTED INFORMATION must first be reviewed

by the attorney for the PRODUCING PARTY, who must have a good faith belief that the
information is confidential or otherwise entitled to protection under Fed. R. Civ. P. 26(c). See
Gillard v. Boulder Valley Sch. Dist., 196 F.R.D. 382, 386 (D. Colo. 2000).
13.

With respect to documents, information or material designated

“CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” subject to the
provisions herein and unless otherwise stated, this Order governs said documents, information
and material, including without limitation, documents produced, answers to interrogatories,
responses to requests for admission, deposition testimony, and other information disclosed
pursuant to the disclosure or discovery duties created by the Federal Rules of Civil Procedure.

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14.

A designation of PROTECTED INFORMATION (i.e., “CONFIDENTIAL” or

“CONFIDENTIAL - ATTORNEYS’ EYES ONLY”) may be made at any time. Inadvertent or
unintentional production of documents, information or material that has not been designated as
PROTECTED INFORMATION shall not be deemed a waiver in whole or in part of a claim for
confidential treatment. Any party that inadvertently or unintentionally produces PROTECTED
INFORMATION without designating it as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS’ EYES ONLY” may request destruction of that PROTECTED INFORMATION
by notifying the recipient(s), as soon as reasonably possible after the PRODUCING PARTY
becomes aware of the inadvertent or unintentional disclosure, and providing replacement
PROTECTED INFORMATION that is properly designated. The recipient(s) shall then destroy
all copies of the inadvertently or unintentionally produced PROTECTED INFORMATION and
any documents, information or material derived from or based thereon.
15.

CONFIDENTIAL. Any document or thing containing or including any

CONFIDENTIAL information shall be designated as such by the PRODUCING PARTY or
NON-PARTY by stamping or labeling it with, or otherwise affixing thereto, the following
legend on each page (except for deposition and hearing transcripts1):
CONFIDENTIAL
16.

CONFIDENTIAL - ATTORNEYS' EYES ONLY. Any document or thing

containing or including any CONFIDENTIAL - ATTORNEYS' EYES ONLY information shall
be designated as such by the PRODUCING PARTY OR NON-PARTY by stamping or labeling
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For deposition and hearing transcripts, the legend shall be placed on the cover page of the transcript (if not
already present on the cover page when received from the reporter) by each attorney receiving a copy of the
transcript after that attorney receives notice of the designation of some or all of that transcript as
PROTECTED MATERIAL.

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it with, or otherwise affixing thereto, the following legend on each page (except for deposition
and hearing transcripts, see footnote 1):
CONFIDENTIAL - ATTORNEYS' EYES ONLY
17.

DESIGNATION OF OTHER DISCLOSURES. All PROTECTED

INFORMATION not reduced to documentary or tangible form or that cannot conveniently be
designated in the manner set forth above shall be designated by the PRODUCING PARTY by
informing the RECEIVING PARTY in writing within thirty (30) days of disclosure to the
RECEIVING PARTY.
18.

PRELIMINARY DESIGNATION OF DOCUMENTS BEING INSPECTED. In

the event the PRODUCING PARTY elects to produce PROTECTED INFORMATION for
inspection, the PRODUCING PARTY in advance of the initial inspection need make no
marking. For purposes of this initial inspection, all documents produced will be considered as
having been marked ATTORNEYS' EYES ONLY. Thereafter, on selection of specified
documents for copying by the inspecting PARTY, the PRODUCING PARTY shall mark the
copies of such documents as may contain PROTECTED INFORMATION with the appropriate
confidentiality marking at the time the copies are produced to the inspecting PARTY.
III.

ACCESS TO INFORMATION
19.

RESTRICTIONS ON USE AND DISCLOSURE ___ CONFIDENTIAL.

Documents and information designated CONFIDENTIAL shall not be shown to, discussed with,
or otherwise disclosed to any person other than the following:
a.

TRIAL COUNSEL of record;

b.

employees of such counsel assigned to and reasonably necessary to assist

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in such counsel in the litigation of this action;
c.

officers, directors or employees of the RECEIVING PARTY to whom

disclosure is reasonably necessary for this litigation;
d.
e.

PROFESSIONAL VENDORS retained for this litigation; and

f.
20.

INDEPENDENT EXPERTS retained for this litigation;

the Court and its personnel.

RESTRICTIONS ON USE AND DISCLOSURE ___ CONFIDENTIAL -

ATTORNEYS' EYES ONLY. Documents and information designated CONFIDENTIAL ATTORNEYS' EYES ONLY shall not be shown to, discussed with, or otherwise disclosed to
any person other than the following:
a.

TRIAL COUNSEL of record;

b.

employees of such counsel assigned to and reasonably necessary to assist

in such counsel in the litigation of this action;
c.
d.

PROFESSIONAL VENDORS retained for this litigation; and

e.

21.

INDEPENDENT EXPERTS retained for this litigation;

the Court and its personnel.

PROCEDURES FOR APPROVING DISCLOSURE OF INFORMATION OR

ITEMS TO INDEPENDENT EXPERTS. At least ten (10) days prior to receiving PROTECTED
INFORMATION, an INDEPENDENT EXPERT must execute and provide to opposing TRIAL
COUNSEL the Non-Disclosure Agreement attached hereto as Exhibit A with the bates range of
information intended to be disclosed, a copy of the INDEPENDENT EXPERT’S current resume

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or CV, his/her current employer, his/her employment history for the past 10 years, a list of cases
in which he/she has testified within the preceding 5 years, and a list any patents or patent
applications in which he/she is identified as an inventor or applicant, is involved in prosecuting
or maintaining, or has any pecuniary interest. Opposing TRIAL COUNSEL shall have five (5)
calendar days from the date of receiving the Non-Disclosure Agreement to object to the named
INDEPENDENT EXPERT. The Parties agree to promptly confer and use good faith to resolve
any such objection. If the Parties are unable to resolve any objection, the objecting Party may
file a motion with the Court within fifteen (15) days of notice, or within such other time as the
Parties may agree, seeking a protective order with respect to the proposed disclosure. The
objecting Party shall have the burden of proving the need for a protective order. No disclosure
of PROTECTED INFORMATION shall be made until the parties resolve the matter, the
objection is withdrawn, or the Court denies the opposing PARTY'S motion for a Protective
Order.
22.

DISCLOSURE IN CERTAIN CIRCUMSTANCES. With respect to documents

designated as including PROTECTED INFORMATION, any officer, director, employee,
attorney, or agent of the PRODUCING PARTY, and any person indicated on the face of the
document to be an originator or author or recipient thereof may be shown the document. With
respect to former officers, directors, employees, attorneys, or agents, any document designated as
including PROTECTED INFORMATION may be shown to any former officer, director,
employee, attorney, or agent of the PARTY that produced the document so designated, during
the deposition of that former officer, director, employee, attorney or agent, if the PROTECTED
INFORMATION contained in the document so designated was in existence during the period of

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the former officers', directors', employees', attorneys', or agents' relationship with the
PRODUCING PARTY. Notwithstanding anything to the contrary in this Order, nothing herein
shall preclude a designating party from using or disclosing its own PROTECTED
INFORMATION as it deems appropriate.
IV.

OTHER PROVISIONS
23.

There shall be no disclosure of any PROTECTED INFORMATION by any

person authorized to have access thereto to any person who is not authorized for such access
under this Order. The Parties are hereby ORDERED to safeguard all such documents,
information and material to protect against disclosure to any unauthorized persons or entities.
24.

Nothing contained herein shall be construed to prejudice any Party’s right to use

any PROTECTED INFORMATION in taking testimony at any deposition or hearing provided
that the PROTECTED INFORMATION is only disclosed to a person(s) who is: (i) eligible to
have access to the PROTECTED INFORMATION by virtue of his or her employment with the
designating party; (ii) identified in the PROTECTED INFORMATION as an author, addressee,
or copy recipient of such information; (iii) although not identified as an author, addressee, or
copy recipient of such PROTECTED INFORMATION, has, in the ordinary course of business,
seen such PROTECTED INFORMATION; (iv) a current or former officer, director or employee
of the PRODUCING PARTY or a current or former officer, director or employee of a company
affiliated with the PRODUCING PARTY, to the extent such witness has personal knowledge of
the PROTECTED INFORMATION; (v) counsel for a Party, including TRIAL COUNSEL
(subject to paragraphs 22 and 23 of this Order); (vi) an independent contractor, consultant,
and/or expert retained for the purpose of this litigation; (vii) court reporters and videographers;

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(viii) the Court; or (ix) other persons entitled hereunder to access to PROTECTED
INFORMATION. PROTECTED INFORMATION shall not be disclosed to any other persons
unless prior authorization is obtained from counsel representing the PRODUCING PARTY or
from the Court.
25.

Whenever a deposition involves the disclosure of PROTECTED

INFORMATION, the deposition or portions thereof shall be designated accordingly and shall be
subject to the provisions of this Protective Order. Such designation shall be made on the record
during the deposition whenever possible, but a party may designate portions of depositions as
PROTECTED INFORMATION after transcription, provided written notice of the designation is
promptly given to all counsel of record within thirty (30) days after notice by the court reporter
of the completion of the transcript.
26.

The Order applies to pretrial discovery. Nothing in this Order shall be deemed to

prevent the Parties from introducing any PROTECTED INFORMATION into evidence at the
trial or this Action, or from using any information contained in PROTECTED INFORMATION
at the trial of this Action, subject to any pretrial order issued by this Court.
27.

A party may object to the designation of particular PROTECTED

INFORMATION by giving written notice to the party designating the disputed information. The
written notice shall identify the information to which the objection is made. If the parties cannot
resolve the objection within ten (10) business days after the time the notice is received, it shall
be the obligation of the party designating the information as PROTECTED INFORMATION to
file an appropriate motion requesting that the Court determine whether the disputed information
should be subject to the terms of this Protective Order. If such a motion is timely filed, the

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disputed information shall be treated as PROTECTED INFORMATION under the terms of this
Protective Order until the Court rules on the motion. If the designating party fails to file such a
motion within the prescribed time, the disputed information shall lose its designation as
PROTECTED INFORMATION and shall not thereafter be treated as PROTECTED
INFORMATION in accordance with this Protective Order. In connection with a motion filed
under this provision, the party designating the information as PROTECTED INFORMATION
shall bear the burden of establishing that good cause exists for the disputed information to be
treated as PROTECTED INFORMATION.
28.

Each INDEPENDENT EXPERT to whom PROTECTED INFORMATION is

disclosed in accordance with the terms of this Order shall be advised by counsel or the terms of
this Order, shall be informed that he or she is subject to the terms and conditions of this Order,
and shall sign an acknowledgment that he or she has received a copy of, has read, and has agreed
to be bound by this Order. A copy of the acknowledgment form is attached as Exhibit A.
29.

To the extent that any discovery is taken of persons who are not Parties to this

Action (“Third-Parties”) and in the event that such Third-Parties contended the discovery sought
involves trade secrets, confidential business information, or other proprietary information, then
such Third-Parties may agree to be bound by this Order, except that Third-Parties shall not be
entitled to access the PROTECTED INFORMATION produced by any party in this case.
30.

To the extent that discovery or testimony is taken of Third-Parties, the Third-

Parties may designate as “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEY’S EYES
ONLY” any documents, information or other material, in whole or in part, produced by such
Third-Parties. The Third-Parties shall have ten (10) days after production of such documents,

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information or other materials to make such a designation. Until that time period lapses or until
such a designation has been made, whichever occurs sooner, all documents, information or other
material so produced or given shall be treated as “CONFIDENTIAL - ATTORNEY’S EYES
ONLY” in accordance with this Order.
31.

Any request to restrict access file PROTECTED INFORMATION subject to

this Protective Order under seal must comply with the requirements of D.C.COLO.LCivR7.2.
32.

Nothing in this Protective Order shall preclude any Party from filing a motion

seeking further or different protection from the Court under Rule 26(c) of the Federal Rules of
Civil Procedure, or from filing a motion with respect to the manner in which PROTECTED
INFORMATION shall be treated at trial.
33.

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

document and all copies thereof which have been designated as PROTECTED INFORMATION
shall be returned to the party that designated it PROTECTED INFORMATION, or the parties
may elect to destroy PROTECTED INFORMATION documents. Where the parties agree to
destroy PROTECTED INFORMATION documents, the destroying party shall provide all parties
with an affidavit confirming the destruction.
34.

INTERIM EFFECT. For purpose of proceeding with discovery without delay,

pending the Court’s approval of this Proposed Protective Order, any PROTECTED
INFORMATION produced under the terms of this Order shall be protected by the parties in the
same manner as if this proposed Protective Order was an order of the Court.
35.

This Protective Order may be modified by the Court at any time for good cause

shown following notice to all parties and an opportunity for them to be heard.

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Dated December 12, 2013

BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

Respectfully submitted this 9th day of December, 2013.
/s/Timothy P. Getzoff
Timothy Getzoff
HOLLAND & HART llp
One Boulder Plaza
1800 Boulder Plaza
Boulder, CO 80302
Telephone: [phone]
Facsimilie: 303-473-2720
email: [e-mail]
Mher Hartoonian
HOLLAND & HART LLP
555 17th Street, Suite 3200
Denver, CO 80202
Telephone: [phone]
Facsimilie: 303-295-8261
Email: [e-mail]
Attorneys for Eco-Products, Inc.,
/s/ Monty Agarwal
Monty Agarwal
Arnold & Porter LLP
Three Embarcadero Center, 10th Floor
San Francisco, CA 9411-4024
Tel: [phone]
Fax: [phone]
[e-mail]
Attorney for World Centric

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