Weinman v. Gibson et al
Filing
113
STIPULATION AND PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 11/4/14. ORDERED that Defendant R&J Ltd. Partnership's 111 Unopposed MOTION for Protective Order is GRANTED. FURTHER ORDERED that when filing documents under seal parties MUST fully comply with the requirements of D.C.ColoL.CivR. 7.2 and D.C.COLO. ECF. PROC. 5.1. (cbssec)
UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 14-cv-00296-CMA-CBS
JEFFREY A. WEINMAN, Chapter 7 Trustee,
Plaintiff,
v.
MICHAEL J. MCCLOSKEY, et al.
Defendants
STIPULATION AND PROTECTIVE ORDER
Each Party and each Counsel of Record hereby stipulates and moves the Court
for a Protective Order (“Protective Order”) pursuant to Rule 26(c) of the Federal Rules
of Civil Procedure concerning the treatment of Confidential Information (as hereinafter
defined), and, as grounds therefor, states as follows:
1.
In this action, at least one of the Parties has sought and/or is seeking
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 Party designating any information as Confidential Information asserts in good faith
that the disclosure of such information outside the scope of this litigation could result in
significant injury to one or more of the Parties’ or non-party individuals’ business or
privacy interests. The Parties have entered into this Stipulation and request the Court
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enter the within Protective Order for the purpose of preventing the disclosure and use
of Confidential Information except as set forth herein.
2.
“Confidential Information” 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.
Confidential Information may include:
trade secrets, confidential or
proprietary financial information, operational data, business plans, and competitive
analyses, personnel files, personal information that is protected by law or privacy
policies, and other sensitive information that, if not restricted as set forth in this order,
may subject the producing or disclosing person to competitive or financial injury or
potential legal liability to third parties.
Confidential Information shall not include
publicly available information or information obtained from third-party sources who
obtained such information through lawful and appropriate means, and who are not
governed by this Protective Order.
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 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;
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c.
With respect to deposition testimony, by orally designating such
testimony as “Confidential” on the record at a deposition; and
d.
With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” no
later than thirty (30) calendar days after receipt of the transcribed
testimony, and as to such transcribed testimony not orally
designated as “Confidential” on the record, the designation shall
not apply until written notice is actually received.
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 by the receiving person. As used
herein, a “Party’s counsel” includes counsel’s law firm staff. There
is no requirement that counsel, counsel’s staff, the Court, Court
personnel, or court reporters engaged in connection with this case
to whom Confidential Information is disclosed execute an affidavit.
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5.
Individuals authorized to review Confidential Information pursuant to this
Protective Order shall hold Confidential Information in confidence and shall not divulge
the Confidential Information, either verbally or in writing, to any other person, entity or
government agency unless authorized to do so by court order.
6.
The Party’s counsel who receives Confidential Information 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 obtain and
retain the original affidavits signed by qualified recipients of Confidential Information,
and shall maintain a list of all persons to whom any Confidential Information is
disclosed.
7.
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 a showing of substantial need in order to establish the source
of an alleged unauthorized disclosure of Confidential Information and that opposing
counsel are unable otherwise to identify the source of the alleged disclosure.
If
counsel disagrees with opposing counsel’s showing of substantial need, then counsel
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 in this litigation and such copies shall be made and used solely for
purposes of this litigation.
9.
During the pendency of this litigation, counsel shall retain custody of
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Confidential Information, and copies made therefrom pursuant to paragraph 8 above.
10.
If a Party objects to the designation of certain information as Confidential
Information, he or she shall promptly inform the other Parties in writing of the specific
grounds of objection to the designation. All counsel shall then, in good faith and on an
informal basis, attempt to resolve such dispute. If after such good faith attempt, all
counsel are unable to resolve their dispute, opposing counsel may move for a
disclosure order consistent with this order. Any motion for disclosure shall be filed
within twenty-one (21) days of receipt by counsel of notice of opposing counsel's
objection, and the information shall continue to have Confidential Information status
from the time it is produced until the ruling by the Court on the motion.
11.
Use of Confidential Information in Court Proceedings:
In the event
Confidential Information is used in any court filing or proceeding in this action, including
but not limited to its use at trial, it shall not lose its confidential status as between the
parties through such use. Confidential Information and pleadings or briefs quoting or
discussing Confidential Information will not be accepted for filing “under seal” or
otherwise kept out of the public record in this action, however, except by court order
issued upon motion of the party seeking to file the documents under seal. Any motion
requesting leave to file documents under seal shall comply with the requirements of
D.C.COLO.LCivR 7.2; however, the non-designating Party shall have no duty to
demonstrate that the Confidential Information at issue is entitled to protection under the
standards articulated in Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-602
(1978) (applied in United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985), and
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Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)).
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.
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.
14.
Upon termination of this litigation, including any appeals, each Party’s
counsel shall immediately return to the producing party all hard copies of Confidential
Information provided subject to this Protective Order, and all extracts, abstracts, charts,
summaries, notes or copies made therefrom. At that time, counsel shall also file under
seal with this Court the list of individuals who have received Confidential Information
which counsel shall have maintained pursuant to paragraph 6 herein, and counsel shall
provide the Court with verification that all electronically stored copies of Confidential
Information and any of counsel's work product referencing Confidential Information
have been purged from any systems, servers, or other electronic media where it may
have been stored.
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.
4th
Dated at Denver, Colorado, this ____ day of November, 2014.
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BY THE COURT:
CRAIG B. SHAFFER
UNITED STATES MAGISTRATE JUDGE
STIPULATED AND AGREED TO:
ALLEN & VELLONE, P.C.
BROWNSTEIN HYATT FARBER
SCHRECK, LLP
By: /s/ Mark A. Larson (by agreement)
Patrick D. Vellone, #15284
Mark A. Larson, #30659
Shelley Thompson, #39999
1600 Stout Street, Suite 1100
Denver, Colorado 80202
(303) 534-4499 / fax: (303) 893-8332
pvellone@allen-vellone.com
mlarson@allen-vellone.com
By: /s/ Joshua M. Hantman (by
agreement)
John V. McDermott
Joshua M. Hantman
410 Seventeenth Street, Suite 2200
Denver, CO 80202-4432
DATE: OCTOBER 31, 2014
DATE: OCTOBER 31, 2014
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ULMER & BERNE LLP
By: /s/ Frances Floriano Goins
Frances Floriano Goins
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113-1448
(216) 583-7000 / fax: (216) 583-7001
fgoins@ulmer.com
DATE: OCTOBER 31, 2014
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EXHIBIT A
AFFIDAVIT
STATE OF
COUNTY OF
)
) ss.
)
___________________, swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in Jeffrey A. Weinman vs. Michael J.
McCloskey, et al., a copy of which is attached to this Affidavit.
2.
I have been informed by __________________, Esq., counsel for
_______________, that the materials described in the list attached to this Affidavit are
Confidential Information as defined in the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge to
any person or recording device 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 the 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)
(Print or Type Name)
Address:
Telephone No.: (
9
)
SUBSCRIBED AND SWORN to before me this ___ day of ___________, 201__,
by _________________________.
WITNESS my hand and official seal.
Notary Public
[S E A L]
My Commission Expires:
10
2117920
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