Knapp Logistics & Automation, Inc. v. R/X Automation Solutions, Inc.

Filing 40

CONSENT PROTECTIVE ORDER by Judge R. Brooke Jackson on 6/20/14. (jdyne, )

UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 1:14-cv-00319-RBJ
KNAPP LOGISTICS AUTOMATION, INC.,
Plaintiff,
v.
R/X AUTOMATION SOLUTIONS, INC.
Defendant.
__________________________________________________________________
CONSENT PROTECTIVE ORDER
__________________________________________________________________
Discovery in this case may involve the production of documents and/or
witness testimony containing confidential information. For good cause shown,
pursuant to Federal Rules of Civil Procedure 26(c) and 29,
IT IS HEREBY ORDERED THAT:
1.

This Order governs the handling of all Confidential Material (as

defined herein), whether, by way of example and not limitation, it be documents,
testimony, responses to discovery requests, tangible things, digital information,
recordings, whether audio, video or otherwise, or other information, including
copies, excerpts, and summaries of such material, that is produced, provided, or
filed by Plaintiff Knapp Logistics Automation, Inc. (“Plaintiff” or “Knapp”),
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Defendant R/X Automation Solutions, Inc. (“Defendant” or RXAS”), or any nonparty during discovery or other proceedings in the litigation.
2.

Any party or non-party shall have the right for purposes of this Order

to designate as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL/ATTORNEYS’ EYES ONLY” any material that it in good faith
reasonably believes contains non-public, confidential, personal, proprietary, trade
secret, or other commercially and competitively-sensitive information (hereinafter
“Confidential Material”). The party or non-party designating such Confidential
Material is referenced herein as the “Designating Person.” The party or non-party
that receives such Confidential Material is referenced herein as the “Receiving
Party.”
3.

No information that is in the public domain or which is already known

by the receiving party through proper means or which is or becomes available to a
party from a source other than the party asserting confidentiality, rightfully in
possession of such information on a non-confidential basis, shall be deemed or
considered to be Confidential Material under this Consent Protective Order.
4.

All Confidential Material shall be used by the receiving party solely

for purposes of the prosecution or defense of this action, shall not be used by the
receiving party for any business, commercial, competitive, personal or other
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purpose, and shall not be disclosed by the receiving party to anyone other than
those set forth in Paragraphs 12 and 13 as applicable, unless and until the
restrictions herein are removed either by written agreement of counsel for the
parties, or by Order of the Court. It is, however, understood that counsel for a
party may give advice and opinions to his or her client solely relating to the abovecaptioned action based on his or her evaluation of Confidential Material, provided
that such advice and opinions shall not reveal the content of such Confidential
Material except by prior written agreement of counsel for the parties, or by Order
of the Court. Such Confidential Material may not be used or disclosed except as
provided in this Order.
5.

The designation of Confidential Material for purposes of this Order

shall be made as follows:
(a)

at the time a Designating Person produces or otherwise provides
documents, interrogatory responses, or other written material, the
Designating Person shall have the term “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” stamped
in a conspicuous place on each page containing Confidential Material,
or otherwise indicated. For protected ESI produced in image format
(PDF or TIFF), the production images shall be marked with the
appropriate confidentiality designation. For Protected ESI produced
in native format, the file name shall contain the appropriate
confidentiality designation (e.g., SMITH0001_Confidential.xls). The
corresponding image placeholder shall also be marked with the
appropriate confidentiality designation;

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(b)

transcripts of depositions, other pretrial testimony, and exhibits
thereto shall be designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL/ATTORNEYS’ EYES ONLY” by counsel for the
Designating Person either by stating on the record at the time of
disclosure that the testimony and/or exhibits are “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY”, or
by providing written notice within twenty (20) days after receipt of
the final transcript that such testimony is “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” and
requesting that the transcript be clearly marked as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’
EYES ONLY”; or

(c)

at the time a Designating Person produces or otherwise provides
other tangible things, the Designating Person shall have the term
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’
EYES ONLY” stamped on or otherwise indicated for them in a
prominent place.

(d)

Any document or other thing marked “ATTORNEYS’ EYES ONLY”
shall be considered to mean “CONFIDENTIAL/ATTORNEYS’
EYES ONLY.”

6.

Any copies, excerpts, summaries, or other disclosure of the substance

or contents of any material that is designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL/ATTORNEYS’ EYES ONLY” shall also be treated as having
the same designation and shall be appropriately marked with the legend
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES
ONLY.”
7.

In the event that a party or non-party inadvertently omits to apply a

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES
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ONLY” designation to any material at the time it is produced or disclosed, such
party or non-party shall have the right to so designate such documents within a
reasonable period of time after the omission comes to that person’s attention.
8.

In the event that a Receiving Party disagrees with any

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES
ONLY” designation, the Receiving Party and the Designating Person shall confer,
pursuant to Federal Rule of Civil Procedure 37(a)(1) and Local Rule 7.1(a), and
attempt in good faith to resolve the disagreement. If the disagreement is not
resolved, the Receiving Party may challenge the designation, and the Designating
Person shall have the burden of proving the propriety of the designation. Until the
Court rules on such a challenge, the material shall be treated as it is designated and
subject to the terms of this Order. No party is obligated to challenge the propriety
of any designation at the time such designation is made, and a failure to do so shall
not preclude a subsequent challenge to the propriety of such designation.
9.

Nothing herein shall prevent disclosure beyond the terms of this Order

if the Designating Person specifically consents in advance in writing to such
disclosure, or if a court, after notice to all parties, orders such disclosure.

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10.

Any Designating Person shall not be restricted in any manner with

respect to the use and/or disclosure of the Designating Person’s own Confidential
Material.
11.

Any documents or tangible things designated as “CONFIDENTIAL”

or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES ONLY” that are submitted
to the Court in support of or in opposition to a motion or introduced at a hearing or
during trial may retain its protected confidential status only by Order of the Court,
as outlined in the Court’s Practice Standards (revised December 4, 2013).
12.

Documents and other material designated as “CONFIDENTIAL”

pursuant to the terms of this Order may be disclosed only to:
(a)

any party;

(b)

any directors, officers, employees, or independent contractors of a
party or its affiliates to whom the party’s counsel of record reasonably
believes disclosure is necessary to prepare for discovery, motions,
briefs, trial, or appeal in this action, provided that such individuals
consent in writing to be bound by the terms of this Order by executing
the form confidentiality agreement attached hereto as Exhibit A;

(c)

the parties’ outside counsel in this litigation and the parties’ in-house
counsel and their affiliates, employees, and service vendors to whom
the Receiving Party’s counsel reasonably believes is necessary to
show such Confidential Material for purposes of this litigation;

(d)

any recipient, sender, or creator of such Confidential Material;

(e)

the Court, Court personnel and the jury;

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(f)

any independent (unaffiliated with any party) experts, consultants, or
independent contractors retained to advise or assist counsel of record
for any party in the preparation, hearing, or trial of this action, and any
of their employees or support personnel working on this action,
provided that such individuals consent in writing to be bound by the
terms of this Order by executing the form confidentiality agreement
attached hereto as Exhibit A;

(g)

court reporters actually recording proceedings in this action; and

(h)

other persons as agreed to by the parties in writing or as permitted by
the Court.

13.

Documents and other material designated as “HIGHLY

CONFIDENTIAL/ATTORNEYS’ EYES ONLY” pursuant to the terms of this
Order may be disclosed only to:
(a)

the parties’ outside counsel in this litigation and its affiliates,
employees, and service vendors to whom the Receiving Party’s
counsel reasonably believes it necessary to show such Confidential
Material for purposes of this litigation;

(b)

any recipient, sender, or creator of such Confidential Material;

(c)

the Court, Court personnel, and the jury;

(d)

any independent (unaffiliated with any party) experts, consultants, or
independent contractors retained to advise or assist outside counsel of
record for any party in the preparation, hearing, or trial of this action,
and any of their employees or support personnel working on this
action, provided that such individuals consent in writing to be bound
by the terms of this Order by executing the form confidentiality
agreement attached hereto as Exhibit A;

(e)

court reporters actually recording proceedings in this action; and

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(f)

other persons as agreed to by the parties in writing or as permitted by
the Court.

14.

Whenever any Confidential Material is disclosed or used at a

deposition, such testimony shall be conducted only before those persons authorized
under this Order to have access to such information. Use of Confidential Material
in court proceedings will be addressed by motion.
15.

Any Confidential Material that is produced prior to the entry of this

Order by the Court shall be subject to the provisions of this Order to the same
extent as if such Order had been entered by the Court as of the date such
Confidential Material was produced.
16.

The inadvertent or unintentional disclosure of material that is entitled

to protection under this Order, regardless of whether the material was designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES
ONLY” at the time of the disclosure, shall not be deemed a waiver in whole or in
part of the supplying party’s or non-party’s claim of confidentiality, either as to the
specific material disclosed or as to any other information relating thereto or on the
same or related subject matter.
17.

If any Confidential Material that is governed by this Order is

subpoenaed or requested by a court or by any other person or entity purporting to
have authority to require the production of such information, the person to whom
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the subpoena is directed (the “Subpoenaed Party”) shall give prompt written notice
by letter and email or facsimile to the Designating Person that includes a copy of
the subpoena or request (unless prohibited by law or court order). Such prompt
written notice shall be given by the Subpoenaed Party to the Designating Person
promptly, and no later than five (5) business days, after the Subpoenaed Party’s
receipt of the subpoena or request. The date upon which such notice is given to the
Designating Person shall be the “Notice Date.” After the receipt of such notice
from the Subpoenaed Party, the Designating Person shall have the sole
responsibility for promptly moving to quash the subpoena, moving for a protective
order, or seeking any order it believes necessary to prevent disclosure of
Confidential Material. If the Designating Person does not move to quash the
subpoena, move for a protective order, or seek another appropriate order within the
time allowed by the subpoena or request (or within such time as a court may direct
or as may be agreed upon between the Designating Person and the subpoenaing or
requesting party) or give written notice of such motion to the subpoenaing or
requesting party and the Subpoenaed Party, then the Subpoenaed Party may
commence production in response thereto on the production date designated on the
subpoena or request unless the production date is less than five (5) business days
from the Notice Date. In the event that the production date is less than five (5)
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business days from the Notice Date, then the Subpoenaed Party must wait at least
five (5) business days from the Notice Date before production unless otherwise
directed by a Court.
18.

All Confidential Material that is produced during the course of this

action and all copies thereof, including copies stored in any electronic media, upon
request, shall be either returned to the producing person or party or destroyed by
the party to whom the information was produced within sixty (60) days of the final
termination of this action, including appeals, except that counsel may retain one
copy of the production, pleadings, correspondence, any trial or hearing testimony
and exhibits thereto, and attorneys’ notes relating to this action, subject to the other
terms of this Order.
19.

The inadvertent or unintentional production of any privileged or

otherwise protected information shall be dealt with as discussed section 8 of the
Stipulated ESI Discovery Protocol (D.I. 36):
(a)

(b)

The receiving party shall not thereafter use documents (either in
electronic or paper form) that the producing party later asserts are
attorney-client privileged or work product protected unless such
assertion is denied by the Court.
The parties intend to invoke the protections of Federal Rule of
Evidence 502, and specifically 502(d) and (e). If a party discovers
through any means that it has inadvertently produced privileged
materials, non-responsive information, or information that the
producing party has objected to producing (collectively referred to as
the “Inadvertently Produced Information”), the producing party may
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provide written notice to the receiving party that the material was
inadvertently produced, which notice shall include a statement of the
basis for the producing party’s contention that the material is
privileged or is otherwise non-responsive to any then-pending
discovery requests, or subject to an objection. After receiving such
notice, the receiving party must promptly return, sequester, or destroy
the Inadvertently Produced Information and any copies that it has.
The receiving party may promptly present the Inadvertently Produced
Information to the Court under seal for a determination of whether the
information is discoverable and shall not use or disclose the
information until there is an agreement or adjudication that the
material is discoverable. If the receiving party disclosed the
Inadvertently Produced Information before being notified, it must take
reasonable steps to retrieve it. The producing party must preserve the
Inadvertently Produced Information until all disputes regarding the
discoverability of the information have been resolved. This protocol
shall be deemed to comply with the party’s obligation to take
reasonable steps to prevent, identify and rectify inadvertent disclosure
pursuant to Fed. R. Evid. 502(b). Entry of this Order by the Court
shall specifically confer the rights and protections available to the
parties under Fed. R. Evid. 502(d) and (e).
20.

The provisions of this Order shall continue to be binding until

modified, superseded, or terminated by Order of the Court or by agreement of the
parties. The Court retains jurisdiction over the parties for enforcement of the
provisions of this Order after the conclusion of the action.
21.

Nothing contained in this Order shall prejudice the right of any party

to seek an Order of this Court at any time to modify or dissolve this Order.

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SO ORDERED, this 20th day of June, 2014.

R. BROOKE JACKSON
UNITED STATES DISTRICT JUDGE

CONSENTED AND AGREED TO:
/s/ Ann G. Fort
Ann G. Fort
[e-mail]
Georgia Bar No. 269995
Stephanie G. Stella
[e-mail]
Virginia Bar No. 77358
SUTHERLAND ASBILL & BRENNAN LLP
999 Peachtree Street, NE, Suite 2300
Atlanta, Georgia 30306

/s/ Alfred K. Wiedmann, Jr.
Luke R. Santangelo
[e-mail]
Alfred K. Wiedmann, Jr.
[e-mail]
SANTANGELO LAW OFFICES
125 South Howes, 3rd Floor
Fort Collins, CO 80521
Attorneys for Defendant R/X
Automation Solutions, Inc.

John M. Tanner
FAIRFIELD & WOODS, P.C.
1801 California Street, Suite 2600
Denver, CO 80202
Attorneys for Plaintiff Knapp Logistics
Automation, Inc.

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EXHIBIT A
CONFIDENTIALITY AGREEMENT
I hereby acknowledge that I may receive materials designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL/ATTORNEYS’ EYES
ONLY” (“Confidential Material”) in discovery in the following action: Knapp
Logistics Automation, Inc. v. R/X Automation Solutions, Inc. Case No. 1:14-cv319-RBJ (the “Action”), pending in the U.S. District Court for the District of
Colorado, Denver Division (the “Court”).
I certify my understanding that this Confidential Material will be provided to
me pursuant to the terms and restrictions of the Consent Protective Order entered
on ______________, 2014, in this Action (the “Order”). I further certify that I
have been given a copy of and have read the Order, and I agree to be bound by its
terms.
I understand that all Confidential Material and all working copies, computer
data storage, digests, or abstracts prepared from this material are to remain in my
personal custody until I have completed my assigned duties, if any, whereupon all
such material and all of my notes which may contain any Confidential Material
must be returned to the party or counsel who provided the materials to me.
I agree that the Confidential Material that I receive shall not be disclosed to
anyone else, and that this Confidential Material shall not be used for any purpose
other than to prepare for discovery, trial, or appeal in the Action.
I understand that any violation of this Order may subject me to sanctions by
the Court. I further agree and do hereby submit myself to the jurisdiction of the
Court for all matters concerning enforcement or violation of the Order.
This, the ______ day of _______________, 2014.
Signature: ______________________________
Printed Name: ______________________________

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