Professional Bull Riders, Inc. v. Murcielago, Inc. et al

Filing 42

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 7/7/14. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-00379-PAB-KMT
PROFESSIONAL BULL RIDERS, INC.,
a Colorado corporation,
Plaintiff,
v.
MURCIELAGO, INC.,
a Nebraska corporation
and
MR. MICHAEL MALCOM,
an individual
Defendants.

STIPULATED PROTECTIVE ORDER

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff Professional Bull
Riders, Inc. (“PBR”) and Defendants Murcielago, Inc. (“Murcielago”) and Michael Malcom
(“Malcom”), by and through their respective attorneys of record, hereby stipulate to entry of the
following Protective Order to govern use and disclosure of confidential information disclosed or
produced in this action:
PROTECTIVE ORDER
The Parties recognize that, during the course of discovery and other proceedings in this
action, it may become necessary for them to disclose certain confidential and proprietary
information to the other party.

All Parties wish to ensure that any such confidential and

proprietary information shall not be used for any purpose other than this action, not be made

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public, or otherwise be disclosed or disseminated beyond the extent necessary for purposes of
this action.
Accordingly, the Parties stipulate to and this Court orders the following procedures for
protecting confidential and proprietary information:
A.

Definitions
1.

For purposes of this Protective Order, CONFIDENTIAL INFORMATION means

any Document (as defined below) and transcripts of oral testimony or recorded statements, or
any portion thereof, which is designated by any Party as confidential because it contains
confidential information, trade secrets or other confidential research, development, or
commercial information as those terms are used in Rule 26(c)(1)(G), or contains personal,
private, and confidential information of individuals. By way of example, and not limitation,
CONFIDENTIAL INFORMATION may be included in Documents, portions of Documents,
electronic files, transcripts, answers to interrogatories, briefs, summaries, notes, abstracts,
motions, drawings and any instrument, which comprises, embodies or summarizes matter that
any Party considers confidential and desires not to be made public.
2.

The term “Documents” shall mean and include, but not be limited to: (a) any

electronically stored information, data, documents, files, programs, emails, and other electronic
communications, regardless of format; (b) printed matter and other writings, including letters,
correspondence, memoranda, bulletins, circulars, catalogs, publications, interoffice and/or intracorporate communications, minutes, telegrams, statements, cancelled checks, emails, contracts,
invoices, drafts, maps, charts, specifications, guidelines, manuals, books of accounts, work

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sheets, notes of conversations, desk diaries, appointment books, expense accounts; sketches,
drawings, notes, blueprints, disclosures, data, reports, work assignments, instructions, and
compilations from which information can be obtained and translated; and (c) other tangible
things, including, photographs, motion pictures, videotapes, and models.
B.

Designation of Information
3.

If any Party intends to produce Documents, provide discovery responses or

testimony that the producing Party deems to contain or include CONFIDENTIAL
INFORMATION and wishes such Document, discovery responses, or testimony to be subject to
this Protective Order, the producing Party shall designate confidentiality by marking the
Documents, testimony, or discovery responses “CONFIDENTIAL” at the time it is provided to
the receiving Party. Any copy made of such Documents or other materials shall also bear on its
face the legend “CONFIDENTIAL.” Such designation shall be made only upon the designating
Party’s good faith and well founded belief that the material constitutes CONFIDENTIAL
INFORMATION as defined above.
4.

Any Party may also designate particularly sensitive Documents and other

information as “CONFIDENTIAL FOR ATTORNEYS’ EYES ONLY” by so marking or
designating it in good faith. All Documents or information designated “CONFIDENTIAL FOR
ATTORNEYS’ EYES ONLY” are included within the meaning of “CONFIDENTIAL
INFORMATION” as used in this Protective Order and, except as otherwise provided herein, all
provisions set forth in this Protective Order applicable to “CONFIDENTIAL INFORMATION”
also apply to Documents or information designated “CONFIDENTIAL FOR ATTORNEYS’

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EYES ONLY,” except that “CONFIDENTIAL FOR ATTORNEYS’ EYES ONLY” Documents
and information shall not be shown, disclosed, or communicated by the receiving Party in any
way to anyone other than those persons described in paragraph 7(i) herein. Such designation
shall be made only upon the designating Party’s good faith and well founded belief that the
information constitutes highly sensitive financial information, trade secrets or other highly
confidential proprietary or personal information.
5.

Whenever a deposition taken on behalf of any Party hereto involves a disclosure

of CONFIDENTIAL INFORMATION of another Party, the following procedure shall be
implemented:
(a)

During the deposition, counsel for the Party whose CONFIDENTIAL
INFORMATION is subject to disclosure may state that the testimony is
CONFIDENTIAL or CONFIDENTIAL FOR ATTORNEYS EYES ONLY and
advise all persons present that the information is subject to this Protective Order.
Only those persons authorized to receive disclosures of such CONFIDENTIAL
INFORMATION as provided in paragraphs 4, 7, and 8 hereof shall be permitted
to listen to or read testimony so designated.

(b)

If a designation of CONFIDENTIAL INFORMATION is not made during a
deposition, a Party may designate the deposition or parts thereof as
CONFIDENTIAL or CONFIDENTIAL FOR ATTORNEYS EYES ONLY by
written notice to the other Party and the court reporter within thirty (30) days of
the receipt of the deposition transcript. All persons with copies of the deposition

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transcript shall then mark their copies with the above legend. If a Party or its
counsel discloses any deposition transcripts that are subsequently designated as
CONFIDENTIAL or CONFIDENTIAL FOR ATTORNEYS EYES ONLY in
accordance with this provision, then such Party and counsel shall make all
reasonable and good faith efforts to recover the disclosed CONFIDENTIAL
INFORMATION and protect it under the terms of this Protective Order.
6.

In the event that any Documents that have been designated CONFIDENTIAL or

CONFIDENTIAL ATTONREYS’ EYES ONLY are included with or the contents thereof are in
any way disclosed in any pleading, motion, deposition transcript, or other paper filed with the
clerk of the court, such Documents and related materials shall be filed Pursuant to
D.C.Colo.LCivR 7.2 to restrict access to such Documents and materials.
C.

Use of CONFIDENTIAL INFORMATION
7.

All material produced by any Party pursuant to pretrial discovery in this action

that is designated by the producing Party as CONFIDENTIAL or CONFIDENTIAL
ATTORNEYS’ EYES ONLY, including any summaries, abstracts or other Documents derived
in whole or in part from such Documents, shall be maintained in confidence according to the
terms of this Protective Order by the receiving Party and used solely in the preparation,
prosecution, settlement, or trial of this action. Subject to the provisions of paragraphs 7 and 8
hereof, CONFIDENTIAL INFORMATION shall only be disclosed by the receiving Party to:
(a)

the Party who designated the Document or materials as

CONFIDENTIAL;

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(b)

a current employee or other representative of a Party who

designated the Document or materials as CONFIDENTIAL and who is authorized
by such designating Party to receive the CONFIDENTIAL INFORMATION;
(c)

a person or non-Party entity that authored or received the item

prior to its production in this litigation;
(d)

outside or in-house counsel of record for either Party (including

stenographic, clerical and paralegal employees of outside counsel) and outside
companies engaged by them such as independent copying companies, temporary
services, etc.;
(e)

the Court and its officers;

(f)

outside independent experts and consultants;

(g)

court reporters used during the course of this litigation;

(h)

employees of the receiving Party only on a need to know basis for

the sole purpose of this litigation; and
(i)

Documents and materials designated as CONFIDENTIAL FOR

ATTORNEYS’ EYES ONLY shall be disclosed only to those persons designated
in subparagraphs (a), (b), (c), (d), (e), (f), and (g) above.
D.

Right to Object to Designation
8.

The receipt of any Document or other materials designated as CONFIDENTIAL

or CONFIDENTIAL ATTORNEYS’ EYES ONLY by a Party shall not be construed as an
agreement by any other Party that any such Document or other materials are in fact confidential,

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and shall not operate as a waiver of any Party’s right to challenge any such designation as
provided herein.
9.

The Parties shall act in good faith in designating information and materials as

CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES ONLY. A Party may object to
the designation of particular CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES
ONLY information by giving written notice to the Party designating the disputed information.
Any objection to the designation shall be reasonable and in good faith, and the written notice
shall identify with reasonable particularity 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, it shall be the obligation of the Party designating the information as CONFIDENTIAL
or CONFIDENTIAL ATTORNEYS’ EYES ONLY to file an appropriate motion requesting that
the Court determine whether the disputed information should be subject to the terms of this
Protective Order. If such a motion is filed within thirty (30) days after the Parties were unable to
resolve the designation dispute, the disputed information shall be treated as CONFIDENTIAL or
CONFIDENTIAL ATTORNEYS’ EYES ONLY 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 or
CONFIDENTIAL ATTORNEYS’ EYES ONLY and shall not thereafter be treated as
CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES ONLY in accordance with this
Protective Order. In connection with a motion filed under this provision, the Party designating
the information as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES ONLY shall

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bear the burden of establishing that good cause exists for the disputed information to be treated
as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES ONLY.
10.

No Party shall be obligated to challenge the propriety or correctness of the

designation of information as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES
ONLY and a failure to do so shall not preclude a subsequent challenge to such status. The
burden of proof with respect to the propriety or correctness in the designation of information as
CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES ONLY shall rest on the
designating Party.
E.

Information Inadvertently Disclosed
11.

If a producing Party inadvertently discloses to receiving Party any Document or

other materials containing information that the producing Party deems confidential without
designating it as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES ONLY, the
producing Party shall upon discovery of such inadvertent disclosure promptly inform the
receiving Party in writing that Documents should be marked as CONFIDENTIAL or
CONFIDENTIAL ATTORNEYS’ EYES ONLY and the receiving Party shall thereafter treat the
Document and other materials as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES
ONLY under this Protective Order. Notice given within, at least, thirty (30) days after discovery
of the inadvertent disclosure shall be considered prompt notice. To the extent such Document or
other materials may have been disclosed to persons other than authorized persons described in
this Protective Order, the receiving Party shall make every reasonable effort to retrieve the

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Document or other materials promptly from such persons and to limit any further disclosure to
unauthorized persons.
F.

Privileged Materials
12.

Nothing in this Protective Order shall be construed to require the disclosure of

material that is protected from disclosure by the attorney-client privilege or the attorney work
product doctrine and shall not operate as a waiver of any Party’s obligation to prove and/or
support any such designation as provided herein.
13.

If a producing Party inadvertently discloses to receiving Party information that is

privileged or otherwise immune from discovery, said producing Party shall so advise the
receiving Party within ten (10) days of discovery of such disclosure in writing and request that
the item or items of information be returned, and no Party to this action shall thereafter assert
that such inadvertent disclosure waived any privilege or immunity. It is further agreed that the
receiving Party will return such inadvertently produced item or items of information and all
copies thereof within ten (10) days of receiving a written request for the return of such item or
items of information. The Party having returned such inadvertently produced item or items of
information may thereafter, without asserting waiver because of inadvertent production, seek
production of any such Documents in accordance with the Federal Rules of Civil Procedure.
G.

Termination of Litigation or Settlement
14.

Within ninety (90) days of the conclusion or final settlement of this litigation and

any appeal thereof, all persons subject to the terms hereof shall destroy or assemble and return to
the Party who produced the Documents or other materials designated as CONFIDENTIAL or

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CONFIDENTIAL ATTORNEYS’ EYES ONLY, all such Documents and other materials
including depositions and deposition exhibits, and shall destroy any outlines, summaries,
abstracts, compilations, memoranda, Documents and the like, which constitute, embody, contain,
or disclose the contents of any CONFIDENTIAL INFORMATION; except that Counsel for the
Parties may retain one or more archival copies of materials that they believe are required to
satisfy their ethical obligations to retain client- or case-related materials, including, copies of
court filings, deposition and trial transcripts (including copies of exhibits thereto), attorney notes
and other work product, provided all such retained materials remain subject to this Protective
Order.
H.

Additional Protection of CONFIDENTIAL INFORMATION
15.

Nothing in the foregoing provisions of this Protective Order shall be deemed to

preclude any Party from seeking and obtaining, on an appropriate showing, additional protection
with respect to the confidentiality of Documents or other discovery material, or relief from this
Protective Order with respect to particular material designated hereunder, provided that no such
relief shall be granted once this case has been finally disposed of through settlement or final
judgment with no further right of appeal.
I.

Obligations of Parties
16.

Each of the Parties and their counsel of record undertakes to abide by and be

bound by the provisions of this Protective Order and to use due care to see that its provisions are
known and adhered to by those under its supervision or control.

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17.

Nothing in this Protective Order shall bar counsel from rendering advice to their

client with respect to this litigation and, in the course thereof, relying upon any Documents,
things, or information designated CONFIDENTIAL or CONFIDENTIAL ATTORNEYS’ EYES
ONLY, provided that such rendering of advice or opinions shall not unnecessarily reveal the
content of such information except pursuant to this agreement or other prior written agreement
with opposing counsel.
ORDERED THIS 7th day of July, 2014.

Magistrate Judge Kathleen M. Tafoya
Respectfully submitted this 7th day of July, 2014 by:
/s/ Juliet A. Cox
Juliet A. Cox
KUTAK ROCK LLP
1010 Grand Boulevard, Suite 500
Kansas City, MO 64106
[phone] Telephone
[phone] Facsimile
[e-mail]
ATTORNEYS FOR PLAINTIFF

/s/ Thomas P. Howard
Thomas P. Howard, Esq.
THOMAS P. HOWARD, LLC
842 W. South Boulder Rd., Suite 200
Louisville, CO 80027
[phone] Telephone
[phone] Facsimile
[e-mail]
ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE
I hereby certify that on July 7, 2014, I electronically filed the foregoing with the clerk of
the court by using the CM/ECF system which will send a notice of electronic filing to the
following:
Thomas P. Howard, Esq.
THOMAS P. HOWARD, LLC
842 W. South Boulder Rd., Suite 200
Louisville, CO 80027
[e-mail]
Attorneys for Defendants

s/ Juliet A. Cox
ATTORNEYS FOR PLAINTIFF

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