College Pharmacy, Inc, et al v. Prairie Capital Advisors, Inc, et al

Filing 44

STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION by Magistrate Judge Boyd N. Boland on 3/3/14. (Simmons, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-CV-02570-REB-BNB
COLLEGE PHARMACY, INCORPORATED
EMPLOYEE STOCK OWNERSHIP PLAN, by
JOHN STINAR, TRUSTEE and COLLEGE PHARMACY,
INC., a Colorado corporation,
Plaintiff
v.
MARK LARIVEE, Individually and PRAIRIE
CAPITAL ADVISORS, INC., an Illinois Corporation,
Defendant(s).

STIPULATED PROTECTIVE ORDER RE: CONFIDENTIAL INFORMATION

THIS MATTER, having come before the Court on Plaintiffs’ unopposed motion for entry
of Stipulated Protective Order regarding Confidential Information, and the Court, having been
advised in the premises finds and orders as follows:
1.

In this action, at least one of the Parties has sought and/or is seeking Confidential

Information (as defined in paragraph 2 below). The Parties also anticipate seeking additional
Confidential Information during discovery and that there will be questioning concerning
Confidential Information in the course of depositions. The Parties assert the disclosure of such
information outside the scope of this litigation could result in significant injury to one or more of
the Parties’ business or privacy interests. The Parties have entered into this Stipulation and
request the Court enter the within Protective Order for the purpose of preventing the disclosure

and use of Confidential Information except as set forth herein.
2.

“Confidential Information” means any document, file, portions of files,

transcribed testimony, or response to a discovery request, including any extract, abstract, chart,
summary, note, or copy made therefrom - not made available to or generally known by the
public - and designated, in good faith, by one of the Parties or counsel in the manner provided in
paragraph 4 below as containing: confidential or proprietary information, including but not
necessarily limited to, intellectual property, market research information, trade secrets,
engineering designs, customer information, financial information, savings calculations, pricing
data, testing, pilot studies, and other valuable business information.
3.

The term “counsel” will mean counsel of record in this action, and other

attorneys, paralegals, secretaries, and other support staff employed in the law firms identified
below:
M. James Zendejas
Stinar, Zendejas, Hansen & Gaithe, LLC
121 E. Vermijo Avenue, Suite 200
Colorado Springs, CO 80903
[phone]
John E. Bolmer, II
Adam Wiens
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
[phone]

Charles H. Torres
Charles H. Torres, PC
1888 Sherman Street, Suite 630
Denver, CO 80203
[phone]
4.

Where Confidential Information is produced, provided or otherwise disclosed by

a Party in response to any discovery request, it may be designated in the following manner:
a.

By imprinting the word “Confidential” on all pages of any document
produced;

b.

By imprinting the word “Confidential” next to or above a response to a
discovery request; and

c.

With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” no later than
fourteen calendar days after receipt of the transcribed testimony.

5.

All Confidential Information provided by a Party in response to a discovery

request or transcribed testimony shall be subject to the following restrictions:
a.

It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;

b.

It shall not be communicated or disclosed by the receiving party to anyone
other than those persons designated herein and must be handled in the
manner set forth below.

6.

Information designated as “Confidential” must be viewed only by counsel (as

defined in paragraph 3) of the receiving party and by the additional individuals listed below:
(a)

The individual and entity parties to this action, including officers,
directors, managers, and technical employees of an entity party;

(b)

Consulting experts and expert witnesses who may be called to provide

expert testimony under Fed. R. Civ. P. 26(a)(2) (including their stenographic and clerical
employees) pursuant to the terms of paragraph 7;
(e)

Non-party fact witnesses who may be interviewed or deposed during the
pendency of this action pursuant to the terms of paragraph 7; and

(f)
7.

All witnesses examined during trial.

The right of any experts (including consulting and testifying experts) or any non-

party fact witnesses (who may be interviewed or deposed) to receive any Confidential
Information will be subject to the execution of the form Affidavit attached hereto as Exhibit A
by the expert or non-party fact witness, before providing any Confidential Information of the
producing party to the expert or non-party fact witness. Party’s counsel who discloses
Confidential Information to an expert or non-party fact witness shall obtain and retain a copy of
affidavits signed by any experts or non-party fact witnesses who are recipients of Confidential
Information.
8.

Individuals authorized to review Confidential Information pursuant to this

Protective Order shall hold Confidential Information in confidence and shall not divulge the
Confidential Information, either verbally or in writing, to any other person, entity or government
agency unless authorized to do so by court order. Counsel for each party, and each person
receiving Confidential Information must take reasonable precautions to prevent the unauthorized
or inadvertent disclosure of such information. If Confidential Information is disclosed to any
person other than a person authorized by this Order, the party responsible for the unauthorized
disclosure must immediately bring all pertinent facts relating to the unauthorized disclosure to
the attention of the other parties and, without prejudice to any rights and remedies of the other

parties, make every effort to prevent further disclosure by the party and by the person(s)
receiving the unauthorized disclosure.
9.

No party will be responsible to another party for disclosure of Confidential

Information under this Order if the information in question is not labeled or otherwise identified
as such in accordance with this Stipulation and Order.
10.

If a party, through inadvertence, produces any Confidential Information without

labeling or marking or otherwise designating it as such in accordance with this Stipulation and
Order, the designating party may give written notice to the receiving party that the document or
thing produced is deemed Confidential Information, and that the document or thing produced
should be treated as such in accordance with that designation under this Order. The receiving
party must treat the materials as confidential, once the designating party so notifies the receiving
party. If the receiving party has disclosed the materials before receiving the designation, the
receiving party must notify the designating party in writing of each such disclosure. Counsel for
the parties will agree on a mutually acceptable manner of labeling or marking the inadvertently
produced materials as confidential.
11.

No copies of Confidential Information shall be made except by or on behalf of

counsel in this litigation and such copies shall be made and used solely for purposes of this
litigation.
12.

During the pendency of this litigation, counsel shall retain custody of Confidential

Information, and copies made therefrom pursuant to paragraph 8 above.
13.

A party may object to the designation of particular CONFIDENTIAL

information by giving written notice to the party designating the disputed information.
The written notice shall identify the information to which the objection is made. 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
CONFIDENTIAL 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 disputed information shall be treated as
CONFIDENTIAL 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 CONFIDENTIAL and shall not
thereafter be treated as CONFIDENTIAL in accordance with this Protective Order. In
connection with a motion filed under this provision, the party designating the information
as CONFIDENTIAL shall bear the burden of establishing that good cause exists for the
disputed information to be treated as CONFIDENTIAL.
If opposing counsel objects to the designation of certain information as Confidential
Information, he or she shall promptly inform the other parties’ counsel in writing of the specific
grounds of objection to the designation. All counsel shall then, in good faith and on an informal
basis, attempt to resolve such dispute. If after such good faith attempt, all counsel are unable to
resolve their dispute, opposing counsel may move for a disclosure order consistent with this
order. Any motion for disclosure shall be filed within 14 days of receipt by counsel of notice of
opposing counsel's objection, and the information shall continue to have Confidential
Information status from the time it is produced until the ruling by the Court on the motion.

14.

Use of Confidential Information in Court Proceedings: Any request to restrict

access must comply with the requirements of D.C.COLO.LCivR 7.2. In the event
Confidential Information is used in any court filing or proceeding in this action, including but
not limited to its use at trial, it shall not lose its confidential status as between the parties through
such use. Confidential Information and pleadings or briefs quoting or discussing Confidential
Information will not be accepted for filing “under seal” or otherwise kept out of the public record
in this action, however, except by court order issued upon motion of the party seeking to file the
documents under seal. Any motion requesting leave to file documents under seal shall comply
with the requirements of D.C.COLO.LCivR 7.2 and demonstrate that the Confidential
Information at issue is entitled to protection under the standards articulated in Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598-602 (1978)(applied in United States v. Hickey, 767
F.2d 705, 708 (10th Cir. 1985) and Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th
Cir. 1980)).
15.

The termination of this action shall not relieve counsel or other persons obligated

hereunder from their responsibility to maintain the confidentiality of Confidential Information
pursuant to this Protective Order, and the Court shall retain continuing jurisdiction to enforce the
terms of this Protective Order.
16.

By agreeing to the entry of this Protective Order, the Parties adopt no position as

to the authenticity or admissibility of documents produced subject to it.
17.

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 Confidential
Information shall be treated at trial.

Dated March 3, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

STIPULATED AND AGREED TO:
/s/ M. James Zendejas
Duly signed original on file

M. James Zendejas
Stinar, Zendejas, Hansen & Gaithe, LLC
121 E. Vermijo Avenue, #200
Colorado Springs, CO 80903
[phone]
Attorney for Plaintiffs

/s/ Adam B. Wiens
Duly signed original on file
John E. Bolmer II
Adam B. Wiens
Hall & Evans LLC
1001 Seventeenth Street, Suite 300
Denver, CO 80202
[phone]
Attorneys for Defendant Prairie Capital
Advisors, Inc.

/s/ Charles H. Torres
Duly signed original on file
________________________________________________
Charles H. Torres
Charles H. Torres, PC
1888 Sherman Street, Suite 630
Denver, CO 80203
[phone]
Attorney for Defendant Mark Larivee

EXHIBIT A
AFFIDAVIT OF

REGARDING PROTECTION ORDER

STATE OF _____________
COUNTY OF

)
)

ss.

)

_________________ swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in Civil Action
_______________________________, a copy of which is attached to this Affidavit.

No.

2.
I have been informed by __________., counsel for ___________, that the materials
described in the list attached to this Affidavit are Confidential Information as defined in the
Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge to any person
or recording device any Confidential Information shown or told to me except as authorized in the
Protective Order. I will not use the Confidential Information for any purpose other than this
litigation.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.
Signature (Print or Type Name)
Address:
Telephone:

SUBSCRIBED AND SWORN to before me this_____ day of ________, 20_____, by
_________________________.
WITNESS my hand and official seal.
Notary Public
[S E A L]
My Commission Expires: