Branson v. Price et al

Filing 67

PROTECTIVE ORDER entered by Magistrate Judge Boyd N. Boland on 11/17/14. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-03090-REB-BNB
GARY BRANSON,
Plaintiff,
v.
COMMERCE CITY POLICE OFFICER ROBERT PRICE, in his official and individual capacity,
COMMERCE CITY COMMUNITY SERVICES OFFICER ARICA BORES, in her official and
individual capacity,
COMMERCE CITY POLICE OFFICER CHRISTOPHER CASTILLO, in his official and individual
capacity, and
CITY OF COMMERCE CITY, COLORADO,
Defendants.
______________________________________________________________________
STIPULATION AND PROTECTIVE ORDER
______________________________________________________________________
Each Party and each Counsel of Record stipulate and move the Court for entry of this
Stipulation and Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure
concerning the treatment of Confidential Information and/or identifiable health information
(“Protected Health Information”) (as hereinafter defined), and, therefore, the Court ORDERS, as
follows:
1.

The nature of the claims, defenses and damages asserted in this lawsuit involves

disclosure and discovery of documents and information containing Confidential Information (as
defined in paragraph 4 below) and/or Protected Health Information (as defined in paragraph 6
below).

2.

The purpose of this Protective Order is to preclude disclosure of Confidential

Information and/or Protected Health Information to any person or entity not subject to this
litigation as defined in this Protective Order. The disclosure of such information outside the
scope of this litigation could result in significant injury to one or more of the Parties’ privacy
interests, or affect the privacy interests of patients identified in protected health records in
violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
3.

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 and/or Protected Health Information except as set forth herein, and prohibiting the
Parties from using or disclosing the Confidential Information and/or Protected Health
Information for any purpose other than this litigation.
4.

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

or transcribed testimony, or response to a discovery request, including any extract, abstract,
chart, summary, note, or copy made therefrom, which contains information that is confidential
and implicates common law and statutory privacy interests of the Parties. See, e.g.; COLO. REV.
STAT. § 13-90-107(1)(d) (physician-patient privilege); Alcon v. Spicer, 113 P.3d 735 (Colo.
2005); Weil v. Dillon Co., Inc., 109 P.3d 127 (Colo. 2005); COLO. REV. STAT. § 24-72204(3)(a)(II)(A) (concerning disclosure of personnel records); Everitt v. Brezzel, 750 F. Supp.
1063 (D. Colo. 1990); Martinelli v. District Court in and for the City and County of Denver, 612
P.2d 1083 (Colo. 1980).
5.

Information designated as confidential must first be reviewed by the attorney for

the designating 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).
6.

“Protected Health Information” (hereinafter “PHI”) means, a patient’s name,

address, birth date, admission date, discharge date, date of death, telephone number, fax number,
e-mail address, social security number, medical records number, insurance plan information,
account number, certificate/license number, vehicle identifier and license number, device
identifier and serial number, URL, IP address number, biometric identifier including voice and
finger prints, photographs, and any other unique identifying number, characteristic or code.
7.

When Confidential Information and/or PHI is produced, provided or otherwise

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

imprinting the word “Confidential” on the first page or cover of any
document produced;

b.

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

c.

with respect to transcribed testimony, by either designating deposition
testimony as “Confidential” or containing “Confidential Information” on
the record at the time of the deposition or hearing that the testimony is
“Confidential” and subject to the protective order, or by designating
portions of depositions or testimony as “Confidential” after transcription,
provided written notice of the designation is given to all counsel of record
within thirty (30) days after notice by the court reporter of the completion
of the transcript; and

d.

with respect to electronically stored information, by labeling each
document or file produced as “Confidential” as a component of their bates
number designations.

8.

All designations of Confidential Information and/or PHI must be made at least

forty (40) days before the dispositive motion deadline, and all confidentiality issues must be
raised with the Court if not resolved between the parties no later than thirty (30) days before the
dispositive motion deadline.
9.

All Confidential Information and/or PHI 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 purposes of this litigation and not for any
other purpose;

b.

it shall not be communicated or disclosed by any Party’s counsel or a
Party in any manner, either directly or indirectly, except for purposes of
this litigation, to anyone other than those specified in this subparagraph:
(i)

attorneys actively working on this case;

(ii)

persons regularly employed or associated with the attorneys

actively working on this case, whose assistance is required by said
attorneys for the purpose of this litigation;
(iii)

the Parties and designated representatives of the Parties;

(iv)

expert witnesses and consultants retained in connection with this

litigation, to the extent such disclosure is necessary for the purposes of
this litigation, who execute the attached Exhibit A;
(v)

the Court and its employees;

(vi)

stenographic reporters who are engaged in this litigation;

(vii)

deponents and witnesses who execute the attached Exhibit A;

(viii) members of a jury or other finder(s) of fact; and
(ix)

other persons by agreement of the parties who execute the attached

Exhibit A.
10.

The Party’s counsel who discloses Confidential Information and/or PHI shall be

responsible for assuring compliance with the terms of this Protective Order with respect to
persons to whom such Confidential Information and/or PHI is disclosed and shall retain the
original affidavits signed by qualified recipients of Confidential Information and/or PHI and
maintain a list of all persons to whom any Confidential Information and/or PHI is disclosed.
11.

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 10 above
upon showing of substantial need in order to establish the source of an unauthorized disclosure
of Confidential Information and/or PHI and that opposing counsel are unable to otherwise
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 the terms and
conditions deemed appropriate by the Court.
12.

No copies of Confidential Information and/or PHI shall be made except by or on

behalf of counsel in this litigation for work product purposes, including for review by experts in
this case. Any such copies shall be made and used solely for purposes of this litigation, and
subject to all restrictions herein.
13.

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

Information and/or PHI, and copies made there from pursuant to paragraph 12 above.

14.

A Party may object to the designation of particular Confidential Information

and/or PHI by giving written notice to the Party designating the disputed information within the
time period set forth in paragraph 8. 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 the grounds for the disputed
information to be treated as confidential.
15.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2. In the event it is necessary for the Parties to file Confidential
Information and/or PHI with the Court in connection with any proceeding or motion, the
Confidential Information and/or PHI shall be filed in accordance with the requirements of
D.C.COLO.LCiv.R 7.2. In addition, any pleadings or briefs quoting or discussing any
information designated as “Confidential” will not be accepted for filing as a restricted document
or otherwise kept out of the public record in this action, except pursuant to Court Order issued
upon motion of the party seeking to file such information as a restricted document.
16.

The termination of this action shall not relieve counsel or any Party or other

persons obligated hereunder from their responsibility to maintain the confidentiality of
Confidential Information and/or PHI pursuant to this Protective Order, and the Court shall retain
continuing jurisdiction to enforce the terms of this Protective Order, until termination of this
case.
17.

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, and admissibility of the
designated Confidential Information and/or PHI will be reserved for and addressed at trial.
Neither the taking of any action in accordance with the provisions of this Protective Order, nor
the failure to object thereto, shall be construed as a waiver of any claim or defense in this action.
18.

Within thirty (30) days following the complete conclusion of this matter,

including any appeals, each Party’s counsel shall return to the producing party all Confidential
Information and/or PHI provided subject to this Protective Order or dispose of it in a
confidential manner.
19.

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 and/or PHI shall be treated at trial.
20.

In the event information or documentation is inadvertently disclosed to an

opposing Party, any information or documentation so disclosed shall be immediately returned to
the producing Party without any copies being made or notes taken regarding said
information/documentation by those who have received the inadvertent disclosure. Further, no
recipient of inadvertently disclosed information or documentation shall utilize such
information/documentation or any fruits derived therefrom for the purposes of this litigation and

that the inadvertent disclosure of information or documentation shall not constitute a waiver of
any privilege that may otherwise apply.
21.

Nothing in this Protective Order shall relieve any party of its obligation under

Fed. R. Civ. P. 26(b)(5) to prepare and provide a privilege log.
22.

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

shown following notice to all Parties and an opportunity to be heard.
Dated November 17, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

STIPULATED AND AGREED TO:

THE ANIMAL LAW CENTER, L.L.C.

SENTER GOLDFARB & RICE, L.L.C.

s/ Jennifer Reba Edwards
Jennifer Reba Edwards
4465 Kipling Street, Suite 108
Wheat Ridge, Colorado 80033
Telephone: [phone]
Email: [e-mail]
Attorney for Plaintiff

s/ Gillian M. Fahlsing
Gillian M. Fahlsing
1700 Broadway, Suite 1700
Denver, Colorado 80290
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorney for Defendants

KILLMER, LANE & NEWMAN, L.L.P.

s/ David A. Lane
David A. Lane
Nicole B. Godfrey
1543 Champa Street, Suite 400
Denver, Colorado 80202
Telephone: [phone]
Facsimile: [phone]
Emails: [e-mail]
[e-mail]
Attorneys for Plaintiff

AFFIDAVIT
STATE OF COLORADO
COUNTY OF

)
) ss.
)

_____________________________, swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in ___________________________, a copy of which
is attached to this Affidavit.
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 purpose 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 No.: (_____) _____________________

SUBSCRIBED AND SWORN to before me this ______________ day of
___________________________, 2014, by_______________________________.
WITNESS my hand and official seal.
_____________________________
Notary Public

My commission expires:________________
[SEAL]

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