Gebremedhin et al v. American Family Mutual Insurance Company

Filing 105

PROTECTIVE ORDER entered by Magistrate Judge Boyd N. Boland on 8/5/14. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No.: 13-cv-02813-CMA-BNB
WELDESAMUEL GEBREMEDHIN, an individual;
TERHAS DESTA, an individual; and
ABRHAM GIDAY, a minor, by and through his guardians and natural parents,
WELDESAMUEL GEBREMEDHIN and
TERHAS DESTA,
Plaintiffs,
v.
AMERICAN FAMILY MUTUAL INSURANCE COMPANY
Defendant / Third Party Plaintiff,
GLENN TURNER, an individual;
VERONICA TURNER, an individual;
SPECIAL KIDS SPECIAL FAMILIES, INC., a Colorado corporation;
GRANITE STATE INSURANCE COMPANY, a Pennsylvania corporation;
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, a Pennsylvania
corporation
Third Party Defendants

[PROPOSED] STIPULATED PROTECTIVE ORDER

Each Party and each Counsel of Record stipulates and move the Court for a Protective
Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment of
Confidential Information (as hereinafter defined). Good cause having been shown, IT IS
ORDERED: and, as grounds therefor, state 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 This Protective Order is entered for the
purpose of preventing the disclosure and use of Confidential Information except as set forth
herein.
2.

Information designated as “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 the public—and
designated by one of the Parties in the manner provided in paragraph 4 below as containing:
a.

The proprietary, confidential, competitively sensitive and/or trade secret
information of a party and/or its related entities; or

b. Any individual’s common law or statutory privacy interests.
3.

As used in this Protective Order, “document” is defined as provided in Fed. R.

Civ. P. 34(a)(1)(A). A draft or non-identical copy is a separate document within meaning of this
term.
4.

Documents are designated as Confidential Information by:
a. Imprinting the word “Confidential” on the first page or cover of any document
produced and in a manner that will not interfere with their legibility;
b. Imprinting the word “Confidential” next to or above any response to a discovery
request; and

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c. With respect to transcribed testimony, by giving written notice to opposing
counsel designating such portions as “Confidential” no later than ten (10)
calendar days after receipt of the transcribed testimony.
5.

Documents designated as Confidential Information shall be documented in the

privilege log of the designating party with sufficient explanation of the document to substantiate
the basis of the invoked protection.
6.

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 any Party’s counsel or a Party in any
manner, either directly or indirectly, to anyone except for purposes of this case
and unless an affidavit in the form of Exhibit A has been signed.
7.

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.
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.
9.

The Party’s counsel who discloses Confidential Information shall be responsible

for assuring compliance with the terms of this Protective Order with respect to persons whom
such Confidential Information is disclosed and shall obtain and retain the original affidavits
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signed by qualified recipients of Confidential Information, and shall maintain a list of all persons
to whom any Confidential Information is disclosed.
10.

During the pendency of this action, opposing counsel may upon court order or

agreement of the parties inspect the list maintained by counsel pursuant to paragraph 9 above
upon a showing of substantial need in order to establish the source of an unauthorized disclosure
of Confidential Information and that opposing counsel are unable otherwise to identify the
source of the disclosure. If counsel disagrees with opposing counsel’s showing of substantial
need, then counsel may seek a court order requiring inspection under terms and conditions
deemed appropriate by the Court.
11.

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

Information, and copies made therefrom pursuant to paragraph 7 above.
12.

Whenever a deposition involves the disclosure of Confidential Information, the

deposition or portions thereof shall be designated as Confidential 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 Confidential
after transcription in accordance with paragraph 4(c) 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
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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.
14.

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. Notifying counsel
and the designating counsel shall then, in good faith and on an informal basis, attempt
to resolve such dispute. If after such good faith attempts, counsel are unable to resolve
the dispute, opposing counsel may move for a disclosure order consistent with this
Order. Any motion for disclosure shall be filed within fourteen (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.
15.

Use of Confidential Information in Court Proceedings: 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 Information status as
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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 document under seal. Any motion
requesting leave to file documents under seal shall comply with the requirements of
D.C.Colo.L.Civ.R 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)).
16.

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.
17.

Upon termination of this litigation, including appeals, and unless other

arrangements are agreed upon mutually by the parties, each document and all copies
thereof which have been designated as Confidential shall be returned to the party that
designated it Confidential. At that time, counsel shall also file under seal with this Court
the list of individuals who have received Confidential Information which counsel shall
have maintained pursuant to paragraph 9 herein, and counsel shall provide the Court
with verification that any of counsel’s work product referencing Confidential Information
has been destroyed.

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18.

This Protective Order also governs the use of videotaped depositions

obtained during this litigation. The parties and their counsel to this case are prohibited
from publicly disseminating any portion of a deposition videotape designated as
Confidential obtained by any party during this case or otherwise use such Confidential
portions of a videotape deposition or depositions for any purpose outside of this
litigation except by further Order of Court.
19.

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.
20.

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.
21.

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 August 5, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

STIPULATED AND AGREED TO BY:

s/Jeremy A. Sitcoff
Bradley A. Levin
Jeremy A. Sitcoff

s/ Kathleen Chaney
L. Kathleen Chaney
Jerad A. West
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Nelson A. Waneka
ROBERTS LEVIN ROSENBERG PC
1512 Larimer Street, Ste. 650
Denver, CO 80202
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]

LAMBDIN & CHANEY, LLP
4949 S. Syracuse St., Suite 600
Denver, CO 80237
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

s/Steven Shapiro
Steven Shapiro
Amanda Pfeil
Fleishman & Shapiro P.C.
2000 S. Colorado Blvd
Tower One, Suite 9000
Denver, CO 80222
Tel: [phone]
Fax: [phone]
[e-mail]
[e-mail]

s/Nicole Marie Black_
Lisa F. Mickley
Nicole Marie Black
Hall & Evans, LLC
1001 Seventeenth Street, Suite 300
Denver, Colorado 80202
[phone]
[e-mail]
[e-mail]

s/Kathleen M. Byrne
Michael L. Hutchinson
Kathleen M. Byrne
Treece Alfrey Musat P.C.
999 18th Street, Suite 1600
Denver, CO 80202
Telephone: [phone]
[e-mail]
[e-mail]

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EXHIBIT A
AFFIDAVIT
STATE OF COLORADO

)
)

COUNTY OF ___________

)

[Name] swears or affirms and states under penalty of perjury:

1.
Affidavit.

I have read the Protective Order in **, a copy of which is attached to this

2.
I have been informed by **, Esq., 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:

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Telephone: (

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)