Arnold v. City and County of Denver

Filing 33

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 7/29/14. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00290-2343-REB-CBS
VALERIE ARNOLD,
Plaintiff,
v.
CITY OF DENVER, COUNTY OF DENVER,
Defendant.

PROPOSED STIPULATED PROTECTIVE ORDER
______________________________________________________________________
Defendant the City and County of Denver (“the City”), through counsel, Assistant
City Attorney Kristen A. Merrick, and pro se Plaintiff Valerie K. Arnold have stipulated to
the need for this Court to enter a Protective Order pursuant to Rule 26(c) of the Federal
Rules of Civil Procedure concerning the treatment of Confidential Information (as
hereinafter defined), and therefore, the Court orders as follows:
1.

In this action, the Parties anticipate the need to use or discuss certain

Confidential Information (as defined in paragraph 2 below). The Parties also anticipate
seeking Confidential Information during discovery and that there will be questioning
concerning Confidential Information in the course of depositions. The disclosure of
such information outside the scope of this litigation could result in significant injury to
one of more of the Parties’ business or privacy interests.
2.

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

electronic data, audio, video, transcribed testimony, or response to a discovery request,

including any extract, abstract, chart, summary, note, or copy made therefrom – not
available to the public and implicating a business or privacy interest – and designated
by one of the Parties in the manner provided in paragraph 3 below as containing
Confidential Information including, but not limited to: the Office of the Independent
Monitor’s (“OIM”) confidential internal documents which may include but are not limited
to Denver Police Department (“DPD”) and Denver Sheriff Department (“DSD”) internal
affairs investigations into alleged misconduct by officer or deputies and/or critical
incidents (including in-custody deaths, officer-involved shootings, uses of force resulting
in death or serious bodily injury); communications by and between OIM, DPD, DSD, the
Citizens Oversight Board (“COB”), and/or the Denver City Attorney’s Office as part of
the OIM’s oversight responsibilities which may be subject to legally recognized
privileges including the attorney-client privilege and deliberative process privilege; and
discipline of DPD and DSD personnel; personal information relating to third parties
including legally protected information relating to juveniles and victims of crimes;
individual tax returns; and other documents that implicate a business or privacy interest.
(The foregoing definition of Confidential Information is for purposes of this Protective
Order only. This definition may not be used by either Party for purposes of arguing in
favor or defending against allegations that a Party violated City rules or otherwise acted
inappropriately by retaining certain documents.)
3.

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 manner:

a.

By stamping or writing the word “Confidential” on each page or
document produced which contains Confidential Information;

b.

By identifying material in a discovery response as “Confidential”;

c.

With respect to transcribed testimony, by giving written notice to the
opposing party or pro se Plaintiff, 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:
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.

Notwithstanding this provision, if a

person being deposed refuses to sign the affidavit, the Party taking
the deposition may still show that person a document that has been
marked as Confidential Information so long as substantive
information from the document is not discussed.

If substantive

information from the document is discussed, that portion of the
deposition must be marked as Confidential Information subject to
this Protective Order.

5.

Individuals authorized to review Confidential Information pursuant to this

Protective Order including, but not limited to, the Parties to this action and their
undersigned counsel, shall hold Confidential Information in confidence and shall not
divulge the Confidential Information verbally, in writing, electronically, or otherwise, to
any other person, entity or government agency unless authorized to do so by court
order.
6.

If pro se Plaintiff or opposing counsel discloses Confidential Information,

she shall be responsible for assuring compliance with the terms of this Protective Order
with respect to persons to whom such Confidential Information is disclosed and shall
retain the original affidavits signed by qualified recipients of Confidential Information and
maintain a list of all persons to whom any Confidential Information is disclosed.
7.

During the pendency of this action, opposing counsel or pro se Plaintiff

may, upon court order or agreement of the Parties, inspect the list maintained by
opposing counsel or pro se Plaintiff 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 or pro se Plaintiff are unable to
otherwise identify the source of the disclosure. If a Party disagrees with the other
Party’s showing of substantial need, then a Party may seek a court order requiring
inspection under terms and conditions deemed appropriate by the Court.
8.

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

behalf of counsel or pro se Plaintiff in this litigation for work product purposes, including
for review by experts in this case, for the attachment of copies of confidential
documents to motions and submissions to the court by a party in accordance with

D.C.COLO.LCivR 7.2, or for trial exhibits. Any such copies shall be made and used
solely for the purposes of this litigation.
9.

Except as elsewhere provided in this Protective Order, during pendency of

this litigation, counsel and pro se Plaintiff shall retain custody of Confidential
Information, and copies made therefrom pursuant to paragraph 8 above.
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. If the Parties cannot
resolve the objection within ten (10) business days after the time the notice is received,
or longer if the parties mutually agree to a longer time to discuss any pending dispute, 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 within twenty (20)
business days after the notice is received. If requested, the party objecting to the
confidential designation may grant the designating party additional time to try to resolve
the dispute before a motion needs to be filed with the Court. 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 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. In the event
the Parties use any documents marked pursuant to the terms of this Protective Order as
Confidential Information during the trial, the Party must remove or redact any markings
of “Confidential” before such documents are shown to or given to any jurors.
12.

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

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 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
litigation.
14.

Upon termination of this litigation, including any appeals, any Party in

possession of Confidential Information will retrieve and return, within thirty (30) days, all
such confidential documents and copies to the designating party.
15.

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 shall be treated at trial.
16.

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.
29th
Dated this 28th day of July, 2014.
BY THE COURT:

________________________________
The Honorable Craig B. Shaffer
United States District Court Judge
STIPULATED AND AGREED TO:
By: /s/ Valerie K. Arnold
Valerie K. Arnold
1413 Clementine Court
Ft. Collins, CO 80526
Telephone: [phone]
E-mail: [e-mail]
Pro Se Plaintiff

By: /s/ Kristen A. Merrick
Kristen A. Merrick
Assistant City Attorney
Denver City Attorney’s Office
Litigation Section
201 W. Colfax Ave., Dept. 1108
Denver, CO 80202-5332
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Defendant

AFFIDAVIT
STATE OF COLORADO
COUNTY OF

)
) ss
)

__________________________________ swears or affirms and states under penalty
of perjury:
1.
I have read the Protective Order in the matter of Valerie Arnold v. City and
County of Denver, No. 14-cv-00290-2343-REB-CBS, a copy of which is attached to this
Affidavit.
2.
I have been informed by ____________________, Esq., counsel/pro se
Plaintiff (circle one) that the categories of documents described in the list attached to
this Affidavit are Confidential Information as defined in the Protective Order.
3.
I promise that I have not divulged and will not divulge, or undertake to
divulge, orally, in writing, electronically, or otherwise, 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 purposes 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)
(Address)
_______________________________________________________________
(Print or Type Name)
Telephone No.: (_____) ________________

SUBSCRIBED AND SWORN to before me this ______day of _____________,
20___ by __________________________.
WITNESS my hand and official seal.
[SEAL]
________________________
Notary Public
My commission expires: _____________