Wornicki v. Brokerpriceopinion.com, Inc. et al

Filing 74

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 07/13/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

1:13-CV-03258-PAB-KMT

KATHY WORNICKI and
EDWARD LAINE,
on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
BROKERPRICEOPINION.COM, INC.
FIRST VALUATION, LLC;
FIRST VALUATION SERVICES, LLC;
FIRST VALUATION TECHNOLOGY, LLC, and
CARTEL ASSET MANAGEMENT, LLC,
Defendants.
PROTECTIVE ORDER
This matter comes before the Court on the parties’ Joint Motion for Entry of
Protective Order. The Court has reviewed that Motion. The parties have shown good
cause in support of the entry of a protective order. Therefore, IT IS ORDERED:
1.

This Protective Order shall apply to all confidential documents, materials,

and information, produced, given, or exchanged by and among the parties and non- parties to this
action including, without limitation, documents produced, answers to interrogatories, responses
to requests for admission, deposition testimony, deposition exhibits, and any other confidential
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 in

Fed.R.Civ.P. 34(a). A draft or non-identical copy is a separate document within the meaning of

this term.
3.

As used in this Protective Order, “producing party” is defined as any

party or non-party to this action producing documents, materials, and/or information.
4.

As used in this Protective Order, “designating party” is defined as any

producing party who

has

designated documents, materials, and/or information as

“CONFIDENTIAL.”
5.

Information

designated

“CONFIDENTIAL”

shall

be

information

that implicates common law privacy interests, statutory privacy interests, and/or confidentiality
interests such as:

(a) personnel records of Defendants’ current or former employees and/or

applicants for employment; (b) Defendants’ trade secrets; (c) privileged or confidential
commercial information; (d)

privileged or confidential financial information; (e) medical

records, financial records, and tax records. CONFIDENTIAL information shall not be disclosed
or used for any purpose except for prosecuting, defending, or attempting to settle this litigation
and as prescribed by law by 5 U.S.C. § 552, Freedom of Information Act (FOIA), as amended.
6.

CONFIDENTIAL documents, materials, and/or information (collectively

“CONFIDENTIAL information”) shall not, without the consent of the producing party or further
Order of the Court, be disclosed except that such information may be disclosed to:
a.

Any named party and counsel to such parties including

legal, clerical, paralegal and any staff employed or retained by counsel, including secretarial staff
and outside copying services;
b.

expert witnesses and consultants retained in connection with

c.

the

this proceeding;
Court, persons employed by the Court and stenographers

transcribing the testimony or argument at a hearing, trial or deposition in this action or any
2

appeal therefrom (“Court Personnel”);
d.

stenographic reporters who are engaged in proceedings necessarily

incident to the conduct of this action;
e.

deponents, witnesses, or potential witnesses likely to have

knowledge or information related to the subject matter of confidential documents, and their
translators, if any; and
f.
7.

other persons by written agreement of the parties.

Prior to disclosing any CONFIDENTIAL information to any person listed

above (other than counsel, persons employed by counsel, Court Personnel, deponents,
stenographic reporters and outside copying services), counsel shall provide such person
with a copy of this Protective Order, explain the person’s obligations under the Protective Order,
and obtain the person’s agreement to comply with the Protective Order.
8.

The producing party may designate a document as CONFIDENTIAL by

placing or affixing on it (in a manner that will not interfere with their legibility) the
following notice, or other appropriate notice: “CONFIDENTIAL.”
9.

Before any information is designated “CONFIDENTIAL,” counsel of

record for the designating party must first review the information and make a determination, in
good faith, that it is confidential or otherwise entitled to protection under Fed. . Civ. P. 26(c).
The designating party must designate for protection only those parts of material, documents,
items, or oral or written communications that qualify, so that other portions of the material,
documents, items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this agreement.

Mass, indiscriminate, or routinized

designations are prohibited. Notwithstanding, an entire database or informational structure may
be designated CONFIDENTIAL if the confidentiality of that which is produced arises from the
3

good-faith belief by the producing party that the structure and/or schema of the database or
informational structure is confidential irrespective of the data stored therein.

If an entire

database or informational structure is designated CONFIDENTIAL, the non-designating party
may nevertheless report non-confidential data from the database to use at depositions or to file
publicly with the Court if such non-confidential data is reported in a manner that does not expose
or reflect the confidential structure and/or schema of the database or informational structure.
Designations that are not shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber or delay the case development process or to impose
unnecessary expenses and burdens on other parties) expose the designating party to sanctions.
10.

Whenever a deposition or other pretrial testimony 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, provided
written notice of the designation is promptly given to all counsel of record within fortyfive (45) days after notice by the court reporter of the completion of the transcript. Notice shall
specify by page and line number the material to be classified and the classification assigned. The
designating party shall direct the other Parties and the court reporter to affix the appropriate
confidentiality stamp to any portion of the original transcript, and to that portion of all copies of
the transcript, and those portions of the transcript so designated as CONFIDENTIAL.
11.

The parties agree to file documents designated as CONFIDENTIAL by

the other party as a restricted document, in conformance with D.C.Colo.LCivR 7.2(e).
12.

A party may object to the designation of particular CONFIDENTIAL

information by giving written notice to the designating party of such designation. The written
4

notice shall identify the information to which the objection is made. If the parties do not resolve
the objection within ten (10) business days after the time the notice is received and after
conferring in good faith, it shall be the obligation of the party designating the information as
CONFIDENTIAL to file an appropriate motion, within thirty (30) days after the time the
notice is received, requesting that the Court determine whether the disputed information should
be subject to the terms of this Protective Order. If such a motion is 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 designating party shall bear the burden
of establishing that good cause exists for the disputed information to be treated as
CONFIDENTIAL.
13.

In the event additional parties join or are joined in this action, or additional

or different counsel enter an appearance, they shall also be subject to the terms of this Protective
Order.
14.

Clawback Agreement: The parties agree that they are taking reasonable

steps to protect against inadvertent disclosure of materials protected by the work product
doctrine, attorney-client privilege, and governmental deliberative process privilege and any
other privilege recognized by the federal courts (“Protected Materials”). The parties also
agree that the inadvertent disclosure of Protected Materials shall not constitute a waiver of the
attorney work product doctrine, attorney-client privilege, or the deliberative process privilege.
Any party that discovers it has sent or received Protected Materials shall immediately notify the
opposing party so that appropriate steps to return or destroy the Protected Materials may
5

be taken. By operation of the parties’ agreement and Court Order, the parties are
specifically afforded the protections of Fed. R. Evid. 502(d) and (e). This Clawback Agreement
supplements, and does not supersede, any protections already afforded by Fed. R. Evid. 502
or Fed.R.Civ.P. 26(b)(5)(B).
15.

Materials shall remain confidential in accordance with the terms of this

proposed order until the Court enters the governing protective order in this case. Once entered,
the Court’s Order shall remain in effect during this Court’s jurisdiction over this action, unless
and until the Court enters an Order to the contrary.
16.

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.
Dated: July 13, 2015.

Kathleen M. Tafoya
United States Magistrate Judge

6