Bretoux v. Government Employees Insurance Company

Filing 21

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 2/10/14. ORDERED that when filing documents under seal parties MUST fully comply with the requirements of D.C.ColoL.CivR. 7.2 and D.C.COLO. ECF. PROC. 5.1. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03022-MSK-CBS
FRANTZ E. BRETOUX,
Plaintiff,
v.
GEICO GENERAL INSURANCE COMPANY,
Defendant.
______________________________________________________________________________
STIPULATED CONFIDENTIALITY ORDER
______________________________________________________________________________
Whereas, this lawsuit (the “Litigation”) may involve the disclosure and/or production of
documents and/or information that the Parties believe contain confidential information such as (1)
Defendant’s confidential, nonpublic, commercially-sensitive financial, business, or analytical
information, or proprietary information and data; (2) trade secret or other confidential research,
development or other commercial information of the Defendant under Federal Rule of Civil
Procedure 26(c)(1)(G); (3) the confidential, non-public, private health, financial or other
information of Defendant’s policyholders, insureds, claimants and/or employees or former
employees that may be protected by state and/or federal law or by contract; and/or (4) the
confidential, proprietary, commercially-sensitive, and/or trade secret information of a third party.
Whereas, the Parties desire the entry of a confidentiality order to expedite the flow of
discovery material, facilitate the prompt resolution of disputes over confidentiality, and protect
material required by law or otherwise entitled or required to be kept confidential.
Therefore, it is hereby,

STIPULATED CONFIDENTIALITY ORDER – Page 1

ORDERED that the following provisions shall govern the Parties’ claims of confidentiality
and confidential information in this proceeding:
1.

“Confidential” or “Confidential Information” or “Confidential Documents” as used

herein, means any information of any type, kind or character which a party reasonably believes to
be confidential and which is designated as “Confidential” by Plaintiff or Defendant whether it be a
document, information contained in a document, information revealed during a deposition,
information revealed in a discovery answer or otherwise, which information has not been made
available to the public at large and which includes, but is not limited to, (a) Defendant’s
confidential, nonpublic, commercially-sensitive financial, business, or analytical information, or
proprietary information and data, including but not limited to, information regarding the
processes, operations, production, sales, income, profits, losses, savings, internal analysis of any
of the aforementioned, training manuals or marketing information, pricing information,
insurance rating information, internal forecasts, profit information, marketing strategies and
approaches; (b) trade secret or other confidential research, development or other commercial
information of the Defendant as described in Federal Rule of Civil Procedure 26(c)(1)(G); (c) the
confidential, non-public, private health, financial or other information of Defendant’s policyholders,
insureds, claimants and/or employees or former employees that may be protected by state and/or
federal law or by contract, or which would not generally be disclosed to the public; and/or (d)
information that is the confidential, proprietary, commercially-sensitive, and/or trade secret
information of a third party.
2.

In the event that materials containing Confidential Information are produced and/or

disclosed, all such materials, including documents produced or exchanged in the course of this

STIPULATED CONFIDENTIALITY ORDER – Page 2

Litigation, pleadings, motions, interrogatory answers, other discovery responses and testimony
given in depositions, shall be deemed Confidential pursuant to the terms of this Order.
3.

Confidential Information shall be used solely for the purposes of this Litigation only,

and shall not be used for any other purpose, including, without limitation, any business or
commercial purpose or any other litigation, claim or proceeding. Confidential Information shall not
be revealed, disclosed or made available for inspection or copying to any person except under the
terms of this Order or as required to be disclosed by the Court.
4.

As used in this Order, the “producing party” means any party who either produces

Confidential Information or asserts a confidentiality interest in information produced by another in
this action. Parties will only label or identify documents or information as Confidential which they,
in good faith, believe falls within the definition of Confidential set forth in paragraph 1 above. The
opposing party’s failure to challenge the propriety of a designation by the producing party
immediately shall not preclude a subsequent challenge by the opposing party.

Confidential

Documents or parts thereof will be designated by marking each page of the document as
“Confidential: Bretoux v. GEICO Litigation.” Electronic information may be marked Confidential
in a manner consistent with the manner in which the information is maintained.
5.

Confidential

Information

may

be

disclosed,

summarized,

described,

characterized, or otherwise communicated or made available in whole or in part only to the
following persons:
A.
The Parties and the directors, officers, and employees thereof, who are
assisting with or making decisions concerning the Litigation, to the extent deemed
reasonably necessary by counsel of record for the purpose of assisting in the prosecution
or defense of the Litigation for use in accordance with this Stipulation;
B.
Counsel who represent Parties in this Litigation (including in-house
counsel), and the partners, associates, paralegals, secretaries, clerical, employees, and

STIPULATED CONFIDENTIALITY ORDER – Page 3

service vendors of such counsel (including outside copying and litigation support
services) who are assisting with the Litigation for use in accordance with this Stipulation;
C.
Subject to Paragraph 7, experts or consultants assisting counsel for the
Parties, and partners, associates, paralegals, secretaries, clerical, regular and temporary
employees, and service vendors of such experts or consultants (including outside copying
services and outside support services) who are assisting with the Litigation;
D.
Subject to Paragraph 8, witnesses or deponents, and their counsel, only to
the extent necessary to conduct or prepare for depositions or testimony in this Litigation,
and mediators that may be utilized by the Parties in the litigation of this matter;
E.
Any person indicated on the face of a document or accompanying
covering letter, email, or other communication to be the author, addressee, or an actual or
intended recipient of the document, or, in the case of meeting minutes, an attendee of the
meeting;
F.
The Court, persons employed by the Court, and court reporters and
videographers transcribing any hearing, trial, or deposition in this Litigation or any
appeal therefrom; and
G.
Any other person only upon (i) order of the Court entered upon notice to
the Parties, or (ii) written stipulation of, or statement on the record by, the Producing
Party who provided the Discovery Material being disclosed, and provided that such
person signs an undertaking in the form attached as Exhibit A hereto.
6.

To the extent that testimony is sought or elicited concerning Confidential

Information or Confidential Documents during any deposition or in any other pre-trial hearing,
any Party may exclude any person from the deposition or hearing during such testimony if the
Confidential Information or Documents may not be disclosed to such person under the terms of
this Stipulation.
7.

As provided in Paragraph 5(C) above, Confidential Information and Confidential

Documents may be provided to persons listed in Paragraph 5(C) only to the extent necessary for
such expert or consultant to prepare a written opinion, to prepare to testify, or to assist counsel in
this Litigation, provided that such expert or consultant (i) is using said Confidential Information
solely in connection with this Litigation, and (ii) only if such expert or consultant agrees to be
STIPULATED CONFIDENTIALITY ORDER – Page 4

bound by the terms of this Stipulation by signing an undertaking in the form attached as Exhibit A
hereto. Counsel for the Party showing, providing, or disclosing Confidential Information or
Documents to any person required to execute an undertaking pursuant to this paragraph shall be
responsible for obtaining such signed undertaking and retaining the original, executed copy
thereof.
8.

Notwithstanding Paragraph 5(D) above, Confidential Information may be

provided to persons listed in Paragraph 5(D) only after (i) they confirm their understanding and
agreement to abide by the terms of this Stipulated Confidentiality Order by making such a
statement on the record, and/or by signing an undertaking in the form attached as Exhibit A
hereto, or (ii) a court of competent jurisdiction orders them to abide by the terms of this
Stipulated Confidentiality Order. Counsel for the Party showing Confidential Information or
Documents to any person required to execute an undertaking pursuant to this paragraph shall be
responsible for obtaining such signed undertaking and retaining the original, executed copy
thereof.
9.

Every person to whom Confidential Information is disclosed, summarized,

described, characterized, or otherwise communicated or made available, in whole or in part,
shall be advised that the information is being disclosed pursuant and subject to the terms of
this Stipulation and may not be disclosed or used for purposes other than those permitted
hereunder. Each such person shall maintain the Confidential Information or Confidential
Documents, or information derived therefrom, in a manner reasonably calculated to prevent
unauthorized disclosure.

STIPULATED CONFIDENTIALITY ORDER – Page 5

10.

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 Confidentiality Order. The motion shall be filed within twenty (20) business days
after the time the written notice is received, subject to any order by the Court requiring a
different time and/or procedure for the motion. If such a motion is filed, the disputed information
shall be treated as Confidential under the terms of this Confidentiality 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 Confidentiality 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 (pursuant to Fed. R. Civ. P. 26(c)) exists for the disputed
information to be treated as Confidential.
11.

Notice of objection to a Confidentiality designation can also be made at a deposition

when information is designated at a deposition as Confidential. At the time of deposition or within
14 days after receipt of the certified deposition transcript, a party may designate as Confidential
specific portions of the transcript which contain Confidential matters under the standards set forth in
paragraph 1 above. This designation shall be in writing and served upon opposing counsel. Parties

STIPULATED CONFIDENTIALITY ORDER – Page 6

will only designate portions of the transcript and/or deposition exhibits as Confidential which they,
in good faith, believe fall within the definition of Confidential set forth in paragraph 1 above. No
objection shall be interposed at deposition that an answer would elicit Confidential information.
Transcripts will be treated as Confidential for this 14 day period. Any portions of a transcript
designated Confidential shall thereafter be treated as Confidential in accordance with this Stipulated
Confidentiality Order.
12.

In filing materials with the Court in pretrial proceedings, counsel shall file under

seal, or redact or otherwise code to ensure that the secrecy of the information is maintained, only
those specific documents and that deposition testimony designated Confidential, and only those
specific portions of briefs, applications, and other filings that contain Confidential Information or
Documents, or that set forth the substance of such Confidential Information. Any pleading, brief,
memorandum, motion, letter, affidavit, or other document filed with the Court that discloses,
summarizes, describes, characterizes or otherwise communicates Confidential Information or
Documents must be filed with the Court under seal in accordance with the provisions of
applicable rules.
13.

The Parties reserve the right to apply for an order seeking additional safeguards

with respect to the use and handling of Confidential Information or Confidential Documents or to
modify the terms of this Stipulation.
14.

Subject to all of the requirements of this Order and applicable rules, entering into

this Stipulation, or agreeing to and/or producing or receiving Confidential Information or
Confidential Documents or otherwise complying with the terms of this Stipulation, shall not:

STIPULATED CONFIDENTIALITY ORDER – Page 7

A.

Prejudice in any way the rights of any Party to (i) seek production of
documents or information it considers subject to discovery, or (ii) object to the
production of documents or information its considers not subject to discovery; or (iii) to
present any evidence in any deposition, pre-trial hearing, trial, motion, or brief;

B.
Prejudice in any way the rights of any Party to object to the authenticity or
admissibility into evidence of any Confidential Information or Documents;
C.

Prejudice in any way the rights of any Party to (i) petition the Court for a
further protective order relating to any purportedly Confidential Information or
Document, or (ii) seek a determination by the Court whether any discovery material
should be subject to the terms of this Stipulation;

D.
Prevent any Party from agreeing in writing to alter or waive the provisions
or protections provided herein with respect to any particular Confidential Information or
Document;
E.
Prejudice in any way the rights of any Party to object to the relevance,
authenticity, use, or admissibility into evidence of any document, testimony, or other
evidence subject to this Stipulated Confidentiality Order;
F.
Preclude any Party from objecting to discovery that it believes to be
otherwise improper; or
G.
Operate as a waiver of any attorney-client, work product, business
strategy, trade secret, or other privilege.
15.

Nothing herein shall restrict a party: (a) from using or disclosing Confidential

Documents or Information obtained by such party independent of discovery or disclosure in this
action, whether or not such documents or information is also obtained through discovery or
disclosure in this action; or (b) from disclosing its own Confidential Documents or Information as it
deems appropriate; or (c) from making disclosures ordered by the Court.
16.

In the event a party knowingly and intentionally chooses to disclose its own

Confidential Documents or Information in a non-confidential manner, it shall be deemed to have
waived the right to claim confidentiality to that specific document or information. The inadvertent

STIPULATED CONFIDENTIALITY ORDER – Page 8

and unintentional disclosure of a Confidential Document or Confidential Information shall not
generally be deemed a waiver, in whole or in part, of any party's claims of confidentiality.
17.

In the event additional Parties join or are joined in this Litigation, they shall not

have access to Confidential Information or Confidential Documents until the newly joined Party
by its counsel has executed and filed with the Court its agreement to be fully bound by this
Stipulation.
18.

In the event that any Confidential Information or Confidential Documents are

used in open court during any court proceeding or filed as a trial exhibit, the material shall lose
its confidential status and become part of the public record, unless the Producing Party applies
for and obtains an order from this Court specifically maintaining the confidential status of
particular material. Prior to any court proceeding in which Confidential Information or
Documents are to be used, counsel for the Parties shall confer in good faith on such procedures
that may be necessary or advisable to protect the confidentiality of any such Confidential
Information or Documents.
19.

If at any time in the future any person demands by subpoena or other compulsory

process (collectively, “subpoena”) the production of Confidential Documents or Confidential
Information governed by this Protective Order, the party served with the non-party subpoena must
notify the party that produced the Confidential Documents and/or Confidential Information within
seven (7) business days of receipt of the subpoena or at least 48 hours prior to the time that the
subpoena is to be complied with, whichever is earlier, in order to provide counsel for the party who
produced the Confidential Documents and/or Confidential Information with sufficient information

STIPULATED CONFIDENTIALITY ORDER – Page 9

and an opportunity to protect the interests of the producing party by opposing the subpoena, if and
only if, the party served was given notice by the party issuing the subpoena.
20.

Within sixty (60) days of the termination of this litigation in its entirety, including

any appellate process, upon written request, the originals and all copies of Confidential Documents
or documents referencing Confidential Information, shall be returned to the party who produced
such Confidential Information or Documents. All individuals who have received Confidential
Documents or Confidential Information shall certify in writing that all such documents or
information have been returned. The counsel for the party receiving such certifications shall
maintain copies of the same and shall have them available to provide to the party whose
Confidential Documents or Confidential Information was provided to the individual.
21.

The provisions of this Order shall, absent written permission of the Producing

Party or further order of the Court, continue to be binding throughout and after the conclusion of
the Litigation, including, without limitation, any appeals therefrom. This Court shall retain
jurisdiction to enforce the terms of this Stipulated Confidentiality Order. Any party or person who
received Confidential Information or Confidential Documents covered by this Order agrees to
submit the jurisdiction of this Court with respect to any dispute involving the subject matter of this
Stipulated Confidentiality Order.

STIPULATED CONFIDENTIALITY ORDER – Page 10

DATED at Denver, Colorado, on February 10, 2014.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

Agreed:
/s/ Christopher T. Colby
Christopher T. Colby, Esq.
Perry Law P.C.
Michael S. Simpson, Esq.
Richards and Simpson
Attorneys for Defendant

STIPULATED CONFIDENTIALITY ORDER – Page 11

/s/ Matthew W. Hall
Matthew W. Hall, Esq.
Marc R. Levy, Esq.
Levy ·Wheeler· Waters, PC
Robert O. Fischel, Esq.
Franklin D. Azar & Associates, P.C.
Attorneys for Plaintiff

EXHIBIT A TO STIPULATED CONFIDENTIALITY ORDER
ACKNOWLEDGMENT OF STIPULATED CONFIDENTIALITY ORDER
BRETOUX V. GEICO GENERAL INSURANCE COMPANY,
NO. 1:13-cv-03022-MSK-CBS, U.S. DISTRICT COURT, DISTRICT OF COLORADO
1.

My full name is ______________________________________________________.

2.

My address is _______________________________________________________

__________________________________________________________________________.
3.

My present employer is ________________________________________________

___________________________________________________________________________.
4.

My present occupation or job description is ________________________________

____________________________________________________________.
5.
I have received a copy of the Stipulated Confidentiality Order entered in Case No. 1:13-cv03022-MSK-CBS, U.S. District Court, District of Colorado. I have carefully read and understand
the provisions of the Stipulated Confidentiality Order. I will comply with all of the provisions of
the Stipulated Confidentiality Order.
6.
I will not disclose any Confidential Documents or Confidential Information to any persons,
except as allowed under this Stipulated Confidentiality Order. I will use any such Confidential
Documents and Confidential Information only with respect to my services in Case No. 1:13-cv03022-MSK-CBS, U.S. District Court, District of Colorado.
7.
I will return all Confidential Documents and Confidential Information that comes into my
possession to the attorney representing the party that has employed or retained me or who provided
such documents to me. I will destroy or provide all notes which I have prepared which contain or
reference such Confidential Documents or Information to such attorney. I will provide a written
statement to such attorney that I have returned all copies of Confidential Documents or Information
and destroyed or returned to such attorney any notes or documents I have created which reference
said Confidential Documents or Information.
8.
I agree to submit to the jurisdiction of the United States District Court, State of Colorado,
for the purposes of enforcement of this Stipulated Confidentiality Order.
DATED this ______ day of ______________________, 20____.

_______________________________________
Signature
00013849.DOCX

STIPULATED CONFIDENTIALITY ORDER – Page 2