Brooks v. Oba et al

Filing 110

Upon review of the Joint Motion for Protective Order, the motion is GRANTED and the PROTECTIVE ORDER is issued. By Magistrate Judge Craig B. Shaffer on 4/15/2016. (cbslc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02894-CBS
JASON BROOKS,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS, et al.,
Defendants.
______________________________________________________________________________
PROTECTIVE ORDER
______________________________________________________________________________
Pursuant to the Joint Stipulated Motion for Protective Order filed by the parties, the Court
hereby Orders as follows:
1.

This Protective Order shall apply to all documents, materials, and information,

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.
2.

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

P. 34(a). A draft or non-identical copy is a separate document within the meaning of this term.
3.

One who provides, serves, discloses or files any nonpublic documents or

information in connection with this civil action, and who in good faith believes such documents
or information are protected by a statutory, regulatory, or common law right of privacy or
protection, or otherwise contain nonpublic personal, personnel, employment, private, medical, or
other information implicating privacy interests, proprietary interests or safety and security
concerns of either the Plaintiff, Jason Brooks, or any of the Defendants may designate such

documents or information as “Confidential.” The documents or information so designated shall
be deemed “Confidential Material” subject to this Protective Order.
4.

Confidential Material shall be subject to the following restrictions. Confidential

Material shall be used only for the limited purpose of preparing for and conducting this civil action
(including any appeals), and not for any other purpose whatsoever, and shall not, without the
consent of the party producing it or further Order of the Court, be disclosed in any way to anyone
except those specified in this paragraph:
(a)

attorneys actively working on this case;

(b)

persons regularly employed or associated with the attorneys actively working on

the case whose assistance is required by said attorneys in the preparation for trial, or at other
proceedings in this case;
(c)

the parties and designated representatives of the Defendants;

(d)

expert witnesses and consultants retained in connection with this proceeding, to the

extent such disclosure is necessary for preparation, trial or other proceedings in this case;
(e)

the Court and its employees (“Court Personnel”);

(f)

stenographic reporters who are engaged in proceedings necessarily incident to the

conduct of this action;
(g)

deponents, witnesses, or potential witnesses who execute the attached Exhibit A;

(h)

and other persons by written agreement of the parties who execute the attached

Exhibit A.
5.
Only.”

A subset of “Confidential” information may be designated “Confidential-Attorneys

The designation of “Confidential Attorneys Only” is limited to information that a

designation of “Confidential” is insufficient to protect and relates to information that poses a safety

or security threat to corrections employees, inmates and/or the public. Any information so
designated shall not, without consent of the party producing it or further order of the Court, be
disclosed except that such information may be disclosed to:
(a)

attorneys actively working on this case;

(b)

persons regularly employed by or associated with the attorneys actively

working on the case whose assistance is required by said attorneys in the preparation for trial, at
trial, or at other proceedings in this case; however, this does not include contract employees, other
persons hired on a temporary basis, or outside agencies, organizations, or institutions;
(c)

Court Personnel;

(d)

stenographic reporters who are engaged in proceedings necessarily incident

to the conduct of this action;
(e) a defendant who is currently or formerly employed by the agency, entity or
organization who has designated the information as “Confidential Attorneys Only”; and
(f)
6.

other persons by written agreement of the parties.

Prior to disclosing any “Confidential” or “Confidential-Attorneys Only”

information to any person listed in Paragraphs 4 and 5 (other than counsel, Court Personnel, and
stenographic reporters), counsel shall provide such person with a copy of this Protective Order and
have such person sign an acknowledgement that he or she has read this Protective Order and agrees
to be bound by its provisions, as set forth in the form attached hereto as Exhibit A.
7.

This Protective Order shall not prohibit or restrain any party from performing the

tasks necessary to prepare for trial; however, any redisclosure or communication of the information
covered by this Protective Order, except as specifically allowed by this Protective Order for the
purposes of this litigation only, is strictly prohibited. The object of this Protective Order is that

none of the information revealed in connection with such protections be used for any purpose other
than in relation to this litigation and that no one be allowed to use any information produced
pursuant to this order in connection with any other issue, dispute, litigation or charge against any
of the parties whether currently pending or contemplated in the future.
8.

No reproduction of information disclosed in reliance on this Protective Order is

authorized, except to the extent copies are required to prepare the case for trial. All copies,
excerpts, or summaries made, shown, or given to those authorized hereby and according to the
provisions hereof shall be stamped to indicate the protected and confidential nature of the disclosed
information. Review of Confidential Material by counsel, experts or consultants for the litigation
will not constitute any waiver of the confidentiality of the document or of any objections to
production. Additionally, by designating information as Confidential or Confidential-Attorneys
Only and producing that information pursuant to this Protective Order’s terms, no party waives
any objections or statutory exemptions that may otherwise be asserted.

The inadvertent,

unintentional or in camera disclosure of Confidential or Confidential-Attorneys Only Material
shall not, under any circumstances, be deemed a waiver, in whole or in part, of any claims of
confidentiality.
9.

Counsel to the parties are required to advise, instruct and supervise all associates,

staff and employees of counsel to keep designated Confidential and Confidential-Attorneys Only
Material confidential in the strictest possible fashion. Counsel and the Parties also agree to such
treatment of the information by themselves, and counsel will appropriately instruct their clients as
to the protected nature of the information produced pursuant to this order and the limitations on its
use and disclosure.

10.

Documents are designated as Confidential or Confidential-Attorneys Only Material

by placing or affixing on them (in a manner that will not interfere with their legibility) the
following or other appropriate notice:

“CONFIDENTIAL – SUBJECT TO PROTECTIVE

ORDER.” or “CONFIDENTIAL-ATTORNEYS ONLY – SUBJECT TO PROTECTIVE
ORDER.”
11.

Whenever a deposition involves the disclosure of Confidential or Confidential-

Attorneys Only Material, the deposition or portions thereof may be designated as Confidential or
Confidential-Attorneys Only and subject to 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 or Confidential-Attorneys Only 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. The cover page, those portions of
the original transcripts that contain confidential or confidential-attorneys only material shall bear
the legend “CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER,” or “CONFIDENTIALATTORNEYS ONLY --- SUBJECT TO PROTECTIVE ORDER” and shall be bound separately
from the non-confidential portions of the transcript.

Any deposition exhibits designated

confidential or confidential-attorneys only shall also be bound separately.
12.

A party may object to the designation of particular documents as Confidential or

Confidential-Attorneys Only Material, and to the scope of restrictions, by giving written notice to
the party designating the disputed information. The written notice shall identify the information
to which objection is made and the limitations in scope to which objection is made where relevant.
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 or

confidential-attorneys only 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 or confidentialattorneys only 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 or confidential-attorneys only and shall not thereafter be
treated as confidential or confidential-attorneys only in accordance with this Protective Order. In
connection with any motion filed under this provision, the party designating the information as
confidential or confidential-attorneys only shall bear the burden of establishing that good cause
exists for the disputed information to be treated as confidential.
13.

If a party discloses information NOT designated as Confidential or Confidential-

Attorneys Only, any of the other parties may let the disclosing party know of its intention to
designate the information as Confidential or Confidential-Attorneys Only. If the party disclosing
the information objects to the proposed designation of this information as Confidential or
Confidential-Attorneys Only, the provisions of Paragraph 12 will apply for the resolution of the
dispute.
14.

If a disclosing party inadvertently discloses information that was not designated as

Confidential or Confidential-Attorneys Only but later determines that the disclosed information
should have been designated as Confidential or Confidential-Attorneys Only, the disclosing party
shall promptly notify the other (or non-disclosing) parties of the error and furnish properly
designated copies of the disclosed information. Upon learning of the improperly-designated
disclosure, the non-disclosing parties shall treat all copies of the disclosed information as if they
were originally designated as Confidential or Confidential-Attorneys Only.

15.

At the conclusion of this case, including any appeals, unless other arrangements are

agreed upon, each document and all copies thereof designated as Confidential shall be returned to
the party that designated the material as Confidential or Confidential-Attorneys Only, or the parties
may elect to destroy confidential or confidential-attorneys only documents. Where the parties
agree to destroy confidential or confidential-attorneys only documents, the destroying party shall
provide all parties with an affidavit confirming the destruction.

However, this does not require

parties including any entity who employs one of the parties to destroy any documents that would
normally be maintained in their records, as part of a case file or required to be kept by law. In
addition, all counsel are entitled to retain an archival copy of their case file, under terms subject to
this Protective Order, even if such materials contain Confidential Information.
16.

Stamped confidential or confidential attorneys-only documents shall not be filed

with the clerk except when required in connection with motions under Federal Rules of Civil
Procedure 12 or 56, motions to determine confidentiality under the terms of this Protective Order,
Motions in Limine, and motions related to discovery disputes if the confidential documents are
relevant to the motion. A party contemplating filing Confidential or Confidential-Attorneys Only
Material protected by this Protective Order with the Court shall make a good faith effort to have
the Confidential or Confidential-Attorneys Only information filed under seal, or otherwise
restricted from public access, pursuant to D.C.Colo.LCiv.R. 7.2.
17.

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.
18.

Nothing in this Protective Order shall prevent any party or other person from

seeking modification of this order or from objecting to discovery that the party or other person
believes to be improper. Nothing in this Protective Order shall prejudice the right of any party to

contest the alleged relevancy, admissibility, or discoverability of confidential or confidentialattorneys only documents or information sought.
Dated this 15th day of April, 2016
BY THE COURT:
s/ Craig B. Shaffer
United States Magistrate Judge

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02894-CBS
JASON BROOKS,
Plaintiff,
v.
COLORADO DEPARTMENT OF CORRECTIONS, et al.,
Defendants.
______________________________________________________________________________
EXHIBIT A TO PROTECTIVE ORDER – CONFIDENTIALITY AGREEMENT

______________________________________________________________________________
I, _____________________________________, the undersigned, being duly sworn, hereby
acknowledges that I have read the Protective Order issued by the Court in the above captioned civil action
and I understand the terms and conditions of such Protective Order governing the restricted use of
information and materials obtained from the Parties and provided to me for the sole purposes of the above
captioned action, and hereby agree to keep all such information and materials strictly and absolutely
confidential, and in all other respects to be bound by the terms of the Protective Order.
My current address and telephone number is:

________________________________
Signature
STATE of
COUNTY of

)
)ss.
)

The foregoing Confidentiality Agreement was sworn and acknowledged to before me by
_________________________ on this ______ day of _____________________, 201_____.
Witness my hand and official seal.
[S E A L]
Notary Public
My commission expires:_________________________