Obermeyer Hydro Accessories, Inc. v. CSI Calendering, Inc. et al

Filing 34

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 6/16/14. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00184-RM-KMT

OBERMEYER HYDRO ACCESSORIES, INC. d/b/a OBERMEYER HYDRO, INC.,

Plaintiff,
v.
CSI CALENDERING, INC. d/b/a/ CSI CALENDERING SPECIALISTS, INC.

Defendant.

STIPULATED PROTECTIVE ORDER

The parties agree and the Court so orders for good cause shown:

1.

The parties expect to produce certain documents that contain confidential and

proprietary documents and information that are not available for dissemination to the general
public (“Confidential Documents”). These documents may include, but are not limited to,
confidential product and pricing information. The disclosure or release of this information to
anyone and particularly to competitors would undermine the parties' competitive position, and
could result in immediate and severe financial hardship. Accordingly, the parties have agreed
that this Protective Order may be entered by the Court for the purpose of protecting from
disclosure said Confidential Documents. Notwithstanding the foregoing, the parties recognize
the strong presumption in favor of public access to Court documents, and further recognize that
an unduly broad definition of Confidential Documents would unnecessarily restrict public access
to Court documents and burden the parties. As such, the parties agree that the documents and
information designated as confidential and protected under this Protective Order shall be limited
to only such documents and information (irrespective of how the documents or information are
stored or maintained), testimony, or tangible things obtained during discovery in this action, that:
(1) reveal a trade secret; (2) reveal confidential tests, research, development, financial
information that is commercially sensitive, or other commercially sensitive information that is

CORE/3000160.0002/101616167.1

otherwise entitled to protective treatment under Fed. R. Civ. P. 26(c); and (3) personal
information that is protected from disclosure by applicable law, statute, or regulation.
2.

The parties shall designate the Confidential Documents as confidential by typing,

stamping, or otherwise affixing the word “CONFIDENTIAL” on such documents. Typing,
stamping, or otherwise affixing the word “CONFIDENTIAL” on the first page of a multi-page
document, or the first page of a collection of documents that are bound or attached together in
any manner, shall have the effect of designating the entirety of the document as confidential. In
the case of information not readily subject to page marking, a party may clearly designate in
writing at the time of disclosure that such materials are "CONFIDENTIAL."
3.

The portions of the Confidential Documents and other documents that the parties

agree to produce may be produced with redaction of privileged and other information that is not
discoverable in this action pursuant to Fed. R. Civ. P. 26(b). All documents that have been
redacted shall be listed in a log identifying the document, the subject matter of the redactions,
and the basis for making the redactions. Production of documents shall not be construed as an
admission that they are relevant or admissible for purposes of trial or ruling on any dispositive
motions.
4.

Each party and all persons bound by the terms of this Protective Order shall use

any properly designated Confidential Documents provided to them pursuant to this Protective
Order only for the purpose of prosecution or defense of this action, not for any other purpose or
in any other action. Insofar as this Protective Order restricts the communication and use of the
documents produced in this case, the parties (and any person who agrees to be bound hereunder)
agree that they will abide by such orders after the conclusion of this litigation.
5.

Except with prior written consent from the other party, their counsel of record, or

the Court, Confidential Documents, or any information contained in Confidential Documents,
may not be disclosed to any person other than the following:
a.

the U.S. District Court for the District of Colorado and any court having

jurisdiction of any appeal of this case, as well as the Court’s staff and such employees of the
Clerk of the Court as directed by the Clerk or the presiding judge. Provided, however, that such
documents should be filed as Level 1 Restricted in accordance with D.C.COLO.LCivR 7.2. The
party filing any Confidential Documents (the “Filing Party”) shall be responsible for filing a
concurrent Motion to Restrict Public Access in accordance with D.C.COLO.LCivR 7.2(c).

However, should the Motion to Restrict Public Access be contested or objected to by any party
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or member of the public, the Filing Party shall be under no obligation to take any action in
further support of the Motion to Restrict Public Access. Rather, only the party who designated
the documents as Confidential Documents under this Protective Order shall be responsible
for contesting any objection to a Motion to Restrict Public Access. If the Motion to Restrict
Public Access is denied, the documents will be made publicly available and will therefore no
longer constitute Confidential Documents. In such event, the Filing Party shall have no
liability or further obligation with respect to the documents filed.
b.

The parties (including, without limitation, any and all officers, directors,

employees, and agents of the parties), the parties’ counsel of record, and said counsel’s partners,
associates, paralegals, secretaries, and other office staff who have direct functional responsibility
in representing the parties in this matter;
c.

Any mediator or a settlement conference judge assigned or retained to

mediate this litigation, so long as the party is provided with a copy of this Protective Order and
agrees to be bound by its terms;
d.

Consultants and experts retained for the purpose of assisting the parties in

preparation and trial of this matter, so long as the party is provided with a copy of this Protective
Order and agrees to be bound by its terms; and
e.

Actual or potential trial or deposition witnesses in this matter, the

witnesses' counsel, and any Court reporter, provided the witness is a F.R.C.P. 30(b)(6) designee
or current officer, agent, or employee of a party. For all other trial or deposition witnesses in this
matter, Confidential Documents may be disclosed so long as the witnesses are provided with a
copy of this Protective Order and agree to be bound by its terms. If the witness will not agree to
be bound by the terms of the Protective Order, the examining attorney may only disclose
Confidential Documents to the witness with leave of the Court.
6.

The parties’ counsel may designate as confidential any portion of the transcript of

any deposition at which a Confidential Document was marked as an exhibit or discussed. Such
designation shall be given orally upon the record during the course of the deposition and must be
memorialized in a writing served upon the other party's counsel. When such a designation is
made, the entire deposition shall be treated as confidential, pending transcription of the

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deposition and signing by the deponent. Thereafter, the parties’ counsel shall designate on the
transcribed deposition the portion or portions, which involve the Confidential Documents and
which shall be treated as confidential within 21 days of receiving same. The parties’ counsel
shall communicate, in writing, the designations to the other party's counsel. If no designations
are made within the 21-day timeframe, the testimony and transcript will no longer be considered
CONFIDENTIAL. Any party shall retain the right to challenge the designation of any part of a
deposition transcript as confidential.
7.

This Protective Order preserves the parties' ability to designate information as

CONFIDENTIAL after a production or disclosure of the information has been made. If timely
corrected, a failure to designate information as CONFIDENTIAL does not, standing alone,
waive the producing party's right to secure protection under this Protective Order for such
information. In the event of a production or disclosure of such information, the producing or
disclosing party shall notify the receiving party of the designation of material as
CONFIDENTIAL, and the receiving party shall thereafter treat such information as designated
subject to the Protective Order, without waiving any right to challenge the designation of such
material.
8.

Neither party will be obligated to challenge the propriety of a confidential

designation at the time made, and a failure to do so will not preclude a subsequent challenge
thereto. A failure of either party to challenge a party's designation of a document or information
as CONFIDENTIAL will not prejudice any party or person and will not constitute an agreement
or admission that the designation is valid by reason of such failure to object. In the event, at any
stage of the proceedings, any party to this action disagrees with the designation of any
information as CONFIDENTIAL, the parties shall first try to resolve such dispute in good faith
on an informal basis. If the dispute cannot be resolved informally, the party claiming the
confidentiality designation may apply for appropriate relief to this Court within 7 days of the
other party’s final confirmation in writing that an informal resolution is not possible. The party
seeking confidentiality of the information shall have the burden of establishing that the
information is entitled to confidential treatment as defined in Paragraph 1 herein. In the absence
of applying for appropriate relief within the 7-day timeframe, the challenged information will no
longer be considered CONFIDENTIAL.

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9.

Notwithstanding any other provisions of this Protective Order: (a) nothing herein

shall prevent disclosure if the party designating the information as "CONFIDENTIAL" expressly
consents to such disclosure, either in writing or in the record of any proceeding in this case, or if
the Court enters an order requiring or permitting the disclosure after notice to both parties; (b)
any party may use or disclose its own Confidential Documents without limitation; and (c) any
party may use or disclose information without limitation that: (1) was publicly available at any
time or has become publicly available since being designated “CONFIDENTIAL”; (2) was
previously in its possession before the entry of the Protective Order; (3) was obtained by any
source outside of formal discovery in connection with this case; or (4) was obtained by any
source that is not subject to the Protective Order.
10.

Notwithstanding any other provision of this Order, the production of documents

by any party will not operate as a waiver of any common law or statutory privilege, protection,
or immunity applicable to those documents, including, but not limited to any attorney-client
privilege, work product protection, joint or common interest doctrine, information that is subject
to protection as trial preparation material, or that is protected from discovery by any other
applicable privilege, protection, immunity, law, or rules (collectively “Privileges”). If a Party
discloses, produces, or makes available for inspection and copying information subject to any
Privilege (“Disclosed Privileged Information”), such disclosure shall not constitute or be deemed
a waiver or forfeiture of any claim of such Privilege applicable to such Disclosed Privileged
Information or any related subject matter, in this litigation or in any other court, administrative
action, investigation, or legal proceeding.
11.

Any Party who realizes that it, he, or she has produced or received Disclosed

Privileged Information, as soon as practicable, shall (i) notify, in writing, all other Parties and/or
other persons producing or receiving such information that disclosure was made, (ii) identify the
document(s) disclosed, (iii) make reasonable efforts to retrieve all copies of and prevent further
disclosure of the Disclosed Privileged Information, and (iv) refrain from using or further
disclosing the Disclosed Privileged Information (including, but not limited to, using the
information in depositions or a trial). Any person or entity receiving notice that Disclosed
Privileged Information has been produced shall, within five (5) business days, return, destroy,
sequester or delete all copies of the Disclosed Privileged Information, as well as any abstracts,
charts, memoranda, notes, summaries, compilations, or indices of same, and provide a

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representation of counsel that all such information has been returned, destroyed, sequestered or
deleted. To the extent the claim of Privilege is disputed, the Parties shall meet and confer to
resolve any such dispute, and in the event such dispute cannot be resolved, the Party receiving
such information may promptly present the information to the Court, filed as Level 1 Restricted,
pursuant to the Local Rules of this Court, and seek such further relief from the Court regarding
the claim of Privilege. The Party claiming the Privilege shall preserve the Disclosed Privileged
Information until the claim of Privilege is resolved either by agreement of the Parties or by the
Court.
12.

Within sixty (60) days following the conclusion of this action, including any and

all appeals, all Confidential Documents, and all copies thereof (hard copy or electronic), shall be
either: 1) returned to the other party’s counsel; or 2) destroyed, at the option of the receiving
party, except that any documents or copies which contain or constitute, or which reflect, attorney
work product or attorney-client privileged communications may be retained by counsel. If
requested, a party’s counsel shall provide the other party’s counsel with an affidavit stating that
such Confidential Documents have been returned or destroyed.
13.

Any confidential designation made in any manner provided herein shall constitute

a representation by counsel to the Court that the designation is made in good faith and in the
belief that the material so designated constitutes confidential material.
14.

In the event a party receives a request to disclose or produce all or any part of the

Confidential Documents pursuant to a subpoena or Order issued by a Court or governmental
body, the parties hereby agree to immediately notify the other parties’ counsel of the request or
order. The party who designated the documents as “CONFIDENTIAL” may, in its discretion,
contest the subpoena or Order, and said party shall be responsible for all costs associated
therewith. The party receiving the subpoena or Order shall be under no obligation to contest the
subpoena or Order, and, notwithstanding any provision herein to the contrary, its disclosure of
any Confidential Documents in connection therewith shall not be deemed a violation of this
Protective Order.
15.

Should any party interpose an improper challenge or designation of

confidentiality under this Order that lacks substantial justification, is interposed for an improper
purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation,
or is frivolous and groundless, the Magistrate shall have discretion to award the non-designating

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party its attorneys’ fees and court costs incurred in connection with contesting the designation of
said information.
16.

Nothing in this Protective Order limits any of the parties from applying to the

Court for modification of, or relief from, this Protective Order, or for such further or additional
protective orders as the Court may deem appropriate. The procedures established by this
Protective Order are intended to be cumulative and in addition to any party’s right to seek further
or different protection from the Court regarding issues addressed herein.
IT IS SO ORDERED.

DATED this 16th day of June, 2014.

BY THE COURT:

___________________________
Kathleen M. Tafoya
United States Magistrate Judge

Respectfully submitted, June 13, 2014

Berg Hill Greenleaf & Ruscitti LLP

Stinson Leonard Street LLP

/s/ Mark D. Changaris
Mark D. Changaris
Berg Hill Greenleaf & Ruscitti LLP
1712 Pearl
Boulder, CO 80302

/s/ Reid A. Page
Reid A. Page (Atty Reg. No. 37722)
Stinson Leonard Street LLP
6400 S. Fiddlers Green Circle, Suite 1900
Greenwood Village, CO 80111

Attorney for Defendant

Attorney for Plaintiff

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