Lehman Brothers Holdings, Inc. v. PMAC Lending Services, Inc.

Filing 26

STIPULATED PROTECTIVE ORDER by Magistrate Judge Kristen L. Mix on 4/29/14. (lgale)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 1 :13-cv-03373-RM-KLM
LEHMAN BROTHERS HOLDINGS, INC.,
Plaintiff,
V.

PMAC LENDING SERVICES, lNC, f/k/a PREFERRED MORTGAGE ALLIANCE

coRP..
Defendant.

SrtpuuereD PRorEcrtve Onoen

The Court finds that documents to be exchanged in this matter may include
information constituting

or

containing financial

or other business or trade secret

information of a proprietary, confidential, or commercially sensitive nature as to both

parties, as well as that which may be potentially invasive of nonparties' legitimate
privacy interests. Upon this showing of good cause in support of the entry of

a

protective order to protect the discovery and dissemination of confidential and private
information that may be utilized and sought in this case, lT lS ORDERED:

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

in

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

3.

Information designated .CONFIDENTIAL' shall

be information that

contains confidential or private information, which is not available to the public, including

but not limited to, personal identifying information of nonparties on loan documents, and
confidential or proprietary information regarding the business practices of the parties.
CONFIDENTIAL information shall not be disclosed or used for any purpose except the
preparation and trial of this case.

4.

CONFIDENTIAL documents, materials, and/or information (collectively

'CONFIDENTIAL information") shall not, without the consent of the party producing it or
further Order of the Court, be disclosed except that it 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 designated representatives of the entity parties;

(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 potentialwitnesses; and

(h) other persons by written agreement of the parties.

5.

Prior to disclosing any CONFIDENTIAL information to any person listed

above (other than counsel, persons employed by counsel, Court Personnel and
stenographic reporters, and other persons by written agreement of the parties), counsel

shall provide such person with a copy of this Protective Order and obtain from such
person a written acknowledgment in the form attached as Exhibit A to this Protective
Order stating that he or she has read this Protective Order and agrees to be bound by

its provisions. All such acknowledgments shall be retained by counsel and shall

be

subject to in camera review by the Court if good cause for review is demonstrated by
opposing counsel.

6.

Documents are designated as CONFIDENTIAL by placing or atfixing on

them (in a manner that will not interfere with their legibility) the following or other
appropriate notice: "CONFIDENTIAL.' Unless otherwise agreed between the parties or

otherwise permitted under this Order,
CONFIDENTIAL information shall

the

and designation

of

be made at the time when the information

is

identification

produced.

7.

Whenever

a

deposition 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 thirty (30) days after
notice by the court reporter of the completion of the transcript.

8.

All papers,

substance

of

documents and transcripts containing

CONFIDENTIAL information

shall be filed

in

or

revealing the

accordance with

D.C.COLO.LC|vR 7.2, and therefore shall be filed as restricted Level 1 documents and

shall be filed with a Motion to Restrict Access. lt shall be the responsibility of the Party

that designated the CONFIDENTIAL information to file the Motion to Restrict Access
required by Local Rule 7.2.

9.

lf,

through inadvertence,

a party provides any material containing

CONFIDENTIAL information without designating the material as such, whether by
document production or deposition testimony, the party may subsequently inform the
receiving party in writing of the CONFIDENTIAL information status of the material and

designate

it as CONFIDENTIAL. The

parties shall thereafter treat the disclosed

material as CONFIDENTIAL information in accordance with the written notification of
the inadvertent disclosure. The parties shall take reasonable steps to advise persons to

whom disclosure was made prior

to

receipt

of a

CONFIDENTIAL information

designation of such designation and of this Order. Any documents which are subject to

the attorney-client privilege or work product protection that are inadvertently disclosed
shall immediately be returned to the producing party and any copies or summaries of, or

notes relating to, any such inadvertently or mistakenly produced information shall be
destroyed. Any such inadvertent disclosure, whether as part of a voluminous document
review or otheruvise, shall not be construed as a waiver of the attorney-client privilege or
work product doctrine.

4

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. lf 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
co

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whether the disputed information should be subject to the terms of this Protective Order
or othenrvise request Court intervention in the manner piescribed by the Court. lf such a

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motion is timely:tilid'or request is timely made, the disputed information shall be treated

as CONFIDENTIAL under the terms of this Protective Order until the Court rules on the
motion or resolves the request. lf the designating party fails

bffiha

motion or

make such a request 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. ln connection with a motion or

request

submitted 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.

At the conclusion of this case, unless other arrangements are agreed

upon, each document and all copies thereof which have been designated as
CONFIDENTIAL shall be returned to the party that designated it CONFIDENTIAL, or the

parties may elect to destroy CONFIDENTIAL documents. Where the parties agree to
destroy CONFIDENTIAL documents, the destroying party shall provide all parties with

5

an affidavit confirming the destruction within sixty (60) days of the conclusion of the
case.

12.

Without separate court order, this Protective Order is not intended to, and

shall not be interpreted to change, amend, or circumvent any court rule or local rule.

13.

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 this SdaV

ot Fir

,2014.
BY THE COURT:

Stipulated by the parties:

/s/ MichaelJ. Gates
Michael J. Gates, Esq.
Christopher P. Carrington, Esq.
Foster Graham Milstein & Calisher, LLP
360 South Garfield St., 6th Floor
Denver, CO 80209
Telephone: 303.333.981 0
ATTORNEYS FOR PLAINT F F
I

/s/ Nicole C. Salamander lrbv
Tamara A. Hoffbuhr Seelman, Esq.
Nicole C. Salamander lrby, Esq.
Gordon & Rees LLP
555 Seventeenth Street, Suite 3400
Denver, Colorado 80202
Telephone: [phone]
ATTORNEYS FOR DEFEN DANT

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Case No.

1:1

3-cv-03373-RM-KLM

LEHMAN BROTHERS HOLDINGS, INC,,
Plaintiff,
V.

PMAC LENDING SERVICES, lNC, flkla PREFERRED MORTGAGE

ALLTANCE

CORP.,
Defendant.

ACKNOWLEDGEMENT OF RECEIPT OF CONFIDENTIAL MATERIAL
declare under the penalty of perjury, that:

(a)
(b)

My present residential address is
My present employer is

the address of my present employer is

(c)

My present occupation or job description is

(d)|havereceivedandcarefu||yreadtheProtectiveorderdated_'
and understand its provisions. Specifically, I understand that I am obligated, under the
Order of the Court, to hold in confidence and not to disclose the contents of anything
marked "CONFIDENTIAL" except as permitted under the terms of this Protective Order.
I

will use the Confidential information solely for purposes relating to the above-captioned

litigation. I will never use said information, directly or indirectly, in competition with the
Designating Party nor will

I permit others to do so, ln addition to the foregoing,

I

understand that I must abide by all of the provisions of the Protective Order.

(e)

At the termination of this Action or at any time requested by counsel, I will

return to counsel for the party by whom

I am employed, all documents and other

materials, including notes, computer data, summaries, abstracts, or any other materials
containing or reflecting Confidential information, which have come into my possession,

and will return all documents or things I have prepared relating to or reflecting such
information.

(0

| understand that I am subject to the jurisdiction of this Court for the

purposes of enforcing this Order, and I further understand that if I violate the provisions
of the Protective Order, I will be in violation of a Court Order and subject to sanctions or

other remedies that may be imposed by the Court and potentially liable in a civil action
for damages by the Designating Party,

I declare under the penalty of perjury of the laws of the United States that the
foregoing is true and correct.

Date:
Printed:
Declarant:

I