KSQ Architects, P.C. v. 4240 Architecture, Inc.

Filing 12

Stipulation and PROTECTIVE ORDER, by Judge Richard P. Matsch on 2/5/2014. (rpmcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03119-RPM
KSQ ARCHITECTS, P.C., an Oklahoma
Professional Corporation,
Plaintiff.
Vs.
4240 ARCHITECTURE, INC., a
Colorado Corporation,
Defendant.

STIPULATION AND PROTECTIVE ORDER
______________________________________________________________________________
Each party and each Counsel of Record stipulate and move the Court for a Protective
Order pursuant to Fed.R.Civ.P. 26(c) concerning the treatment of Confidential Information (as
hereinafter defined) and, as grounds therefore, state as follows:
1.

In this action, at least one of the Parties has sought or may seek 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’ 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” 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 3 below as containing Confidential Information, including, but not
limited to:
a.

the Parties and/or other employees’;

b.

the Parties’ financial information;

c.

the Parties’ confidential business information, customer lists, trade secrets,

and other information that, if made publically available, would detrimentally impact the Party’s
competitive advantage in the marketplace; and
d.
3.

other documents related to Plaintiff’s claims in this action.

Where Confidential Information is produced, provided or otherwise disclosed by

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

By imprinting the word “Confidential” on the first page or cover of any

document produced;
b.

By imprinting the word “Confidential” next to or above any response to a

discovery request;
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.
4.

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

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

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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.
5.

Confidential documents, materials, and/or information (collectively “Confidential

Information”) shall not, without the consent of the party producing it and the consent of the party
claiming confidentiality 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 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;
(c)

the parties, including their designated representatives for those parties that

are legal entities;
(d)

expert witnesses and consultants retained in connection with this

proceeding, to the extent such disclosure is necessary for depositions, 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;

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(g)

witnesses who have been disclosed in this case and where counsel has a

reasonable and good faith belief that examination with respect to the document is necessary in
legitimate discovery or trial purposes in this case;
(h)

any representatives of the parties’ insurance carriers, including but not

limited to claims adjusters, consultants, and third party adjusters;
(i)

other deponents and witnesses at trial or hearings in this matter, not

covered in paragraph 5(c) or 5(d) above; and
(j)
6.

other persons by written agreement of all the parties.

Individuals authorized to review Confidential Information pursuant to this

Protective Order including, but not limited to, the Parties to this action, their undersigned
counsel, shall hold all such information in confidence and shall not divulge such information,
either verbally or in writing, to any other person, entity or government agency unless authorized
to do so by court order.
7.

The Party’s counsel who discloses Confidential Information to a person identified

in Paragraph 5 shall be responsible for assuring compliance with the terms of this Protective
Order with respect to persons to whom such information is disclosed and shall obtain and retain
the original affidavits signed by qualified recipients on Confidential Information, and shall
maintain a list of all persons to whom any Confidential Information is disclosed.
8.

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 6 above
upon showing of substantial need in order to establish the source of an unauthorized disclosure
of Confidential Information and that opposing counsel are unable to otherwise identify the

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source of the disclosure. If counsel disagrees with opposing counsel’s showing of substantial
need, counsel may then seek a court order requiring inspection under terms conditions deemed
appropriate by the Court.
9.

No copies of Confidential Information 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.
10.

A party may object to the designation of particular information as Confidential by

giving written notice to the party designating the disputed information. The written notice shall
identify the information to which the objection is made. Counsel for the parties shall confer and
attempt to reach an agreement. 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 designating
party to file an appropriate motion requesting that the Court determine whether the disputed
information should be subject to the terms of this Protective Order. Any such motion shall be
filed within thirty (30) days after the failure of the parties to reach an agreement regarding the
treatment of such information. 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. Said motion shall be filed as “restricted” pursuant to the terms of D.C.COLO.LCivR
7.2. After inspection, should the Court determine that some or all of the submitted documents
should be treated as “Confidential” under the terms of this Protective Order, the designating
party will label those documents as “Confidential” and they shall be subject to all terms of this
Protective Order pertaining to Confidential Information. If the designating party fails to file such
a motion within the prescribed time, the disputed information shall lose its designation as

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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.
11.

In the event it is necessary for the Parties to file Confidential Information with the

Court in connection with any proceeding or motion, the Confidential Information shall be filed in
accordance with the requirements of D.C.COLO.LCivR 7.2 when Confidential Information
satisfies the criteria for restricting access. The parties agree to confer in advance of submitting
Confidential Information to the Court in order to resolve any disputes over whether access
should be restricted and to provide a non-moving party the opportunity to file a motion under
D.C. COLO.LCivR 7.2.
12.

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, even after this action is terminated.
13.

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. 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.
14.

Upon termination of this litigation, including any appeals, each Party’s counsel

shall immediately return to the producing party or destroy all Confidential Information provided
subject to this Protective Order.

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15.

Nothing in this Protective Order shall preclude any Party from filing a motion

seeking further or different protection from the Court pursuant to Fed.R.Civ.P. 26(c), or from
filing a motion with respect to the manner in which Confidential Information shall be treated at
trial.
16.

The parties agree that 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 being taken
regarding said information/documentation by those who have received the inadvertent
disclosure. Further, the parties agree that 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.
DATED this 5th day of February, 2014.

BY THE COURT:
s/Richard P. Matsch
____________________________________
Richard P. Matsch
United States District Court Judge

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STIPULATED AND AGREED TO:

s/ Katherine M.L. Pratt
Katherine M.L. Pratt
Berg Hill Greenleaf & Ruscitti, LLP
1712 Pearl Street
Boulder, CO 80302
[phone]
Attorney for Plaintiff

s/ Michael J. Decker
Michael J. Decker
Murphy & Decker, P.C.
1510 West Canal Court, Suite 1500
Littleton, CO 80120
[phone]
Attorney for Defendant

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-CV-03119-RPM
KSQ ARCHITECTS, P.C., an Oklahoma Professional Corporation,
Plaintiff,
v.
42/40 ARCHITECTURE, INC., a Colorado corporation,
Defendant.

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.

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My current address and telephone number is:

_________________________

_________________________

_________________________

STATE of _________________
COUNTY of _______________

_________________________
Signature

)
)ss.
)

The foregoing Confidentiality Agreement was sworn and acknowledged to before me by
_________________________ on this day of _____________________, 20__.

Witness my hand and official seal.

[seal]
_________________________
Notary Public

My commission expires: _________________________

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