Arkansas River Power Authority v. Babcock &Wilcox Power Generation Group, Inc.

Filing 22

PROTECTIVE ORDER. By Magistrate Judge Boyd N. Boland on 05/19/2014. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00638-CMA-BNB
ARKANSAS RIVER POWER AUTHORITY,
Plaintiff,
v.
BABCOCK & WILCOX POWER GENERATION GROUP, INC.,
Defendant.

[PROPOSED] STIPULATED PROTECTIVE ORDER GOVERNING
CONFIDENTIALITY

Pursuant to Federal Rule of Civil Procedure 26(c), Plaintiff Arkansas River Power
Authority (“ARPA”) and Defendant Babcock & Wilcox Power Generation Group, Inc. (“B&W”)
(together, the “parties,” and individually, a “party”), stipulate to the following Protective Order
Governing Confidentiality (the “Protective Order”), and request that the Court enter it.
1.

Introduction and Scope

This Protective Order shall govern documents and information exchanged during this
action, including but not limited to documents produced by the parties or non-parties, deposition
testimony, testimony taken at a hearing or other proceeding, interrogatory answers, responses to
requests for admission, and correspondence between counsel (collectively, “Discovery
Material”).

2.

Designation of Certain Discovery Material as “CONFIDENTIAL”

Discovery Material may be designated “CONFIDENTIAL” if such Discovery Material
contains non-public, confidential business information, trade secrets, or other information of
which the public disclosure would cause damage to the producing party. Such Discovery
Material shall be so identified at the time of service of such Discovery Material by including on
each page the legend “CONFIDENTIAL.” If the Discovery Material is not in a format that can
be easily stamped with such a legend, then the Discovery Material shall be designated
“CONFIDENTIAL” using an alternative method. Acceptable alternative methods include
identifying “CONFIDENTIAL” Discovery Material in correspondence transmitted with the
Discovery Material or for an electronic file using the word “CONFIDENTIAL” in the file name.
3.

Limitations on Access to “CONFIDENTIAL” Discovery Material

Subject to the provisions of this paragraph, Paragraph 3, “CONFIDENTIAL” Discovery
Material shall not, without prior written consent of the producing party, (a) be disclosed to
anyone other than the Court, its personnel, and the Authorized Personnel specified herein; or (b)
be used by anyone other than the producing party for any purpose whatsoever other than the
prosecution or defense of this litigation. Nothing herein shall affect any confidentiality
obligations to which the parties may be subject pursuant to agreements independent of this
litigation, nor shall anything herein constitute an agreement that such obligations will relieve any
party of the obligation to produce Discovery Material.
Access to and disclosure of “CONFIDENTIAL” Discovery Material marked and
identified in accordance with this Protective Order shall be limited to the Court, its personnel,
and Authorized Personnel. Authorized Personnel are:

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(a)

Counsel of record for the parties, including paralegal, secretarial, and clerical

personnel reasonably necessary to assist such counsel, and counsel not of record that become
signatories to this Protective Order;
(b)

Principals and agents of the parties, or of any of their associated entities,

including The Babcock & Wilcox Company and Lamar Light & Power;
(c)

Technical experts and consultants and their staff who are retained by a party or

attorney to assist in this action, but only to the extent reasonably necessary to perform such
work. A party desiring to disclose “CONFIDENTIAL” Discovery Material to experts or
consultants shall first obtain from each expert or consultant an Acknowledgement in the form
provided in Exhibit A, and the attorney for the party shall keep the executed Acknowledgement
for a one-year period following the final termination of this litigation. The disclosing attorney
must have a good faith belief that disclosure of such documents to the expert or consultant is
necessary for the expert or consultant’s review of the issues in this litigation;
(d)

Employees of outside vendors providing copy services and exhibit preparation

services in connection with this litigation. A party desiring to disclose “CONFIDENTIAL”
Discovery Material to employees of outside vendors shall first obtain from each outside vendor
an Acknowledgement in the form provided in Exhibit A, and the attorney for the party shall keep
the executed Acknowledgement for a one-year period following the final termination of this
litigation;
(e)

Stenographic reporters and videographers engaged for depositions or proceedings

necessary to this litigation. A party desiring to disclose “CONFIDENTIAL” Discovery Material
to stenographic reporters or videographers shall first obtain from each stenographic reporter or

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videographer an Acknowledgement in the form provided in Exhibit A, and the attorney for the
party shall keep the executed Acknowledgement for a one-year period following the final
termination of this litigation;
(f)

Any person (i) who is identified as an author or recipient, including receipt by

copy, of any document or information therein and is not otherwise shown prior to such
disclosure not to have received the document or information therein or (ii) who has been
identified in writing by the designating party as having been provided with the document or
information therein. Such person shall be considered “Authorized Personnel” solely with respect
to the specific document or information therein;
(g)

Third-party mediators selected by the parties. A party desiring to disclose

“CONFIDENTIAL” Discovery Material to third-party mediators shall first obtain from each
third-party mediator an Acknowledgement in the form provided in Exhibit A, and the attorney
for the party shall keep the executed Acknowledgement for a one-year period following the final
termination of this litigation;
(h)

Employees of the parties. A party desiring to disclose “CONFIDENTIAL”

Discovery Material to its employees shall ensure that such employees abide by the terms of this
Stipulated Protective Order Governing Confidentiality;
(i)

Fact witnesses designated by the parties who may be expected to comment or

testify regarding the “CONFIDENTIAL” Discovery Material in deposition or at trial, provided
that the party seeking to disclose such “CONFIDENTIAL” Discovery Material shall first obtain
from each such witness an Acknowledgement in the form provided in Exhibit A; and
(j)

Such other persons as hereafter may be designated by written stipulation of the

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parties filed with the Court or by further Court order.
4.

Designation of Deposition or Other Testimony

Deposition and other testimony may also be designated as “CONFIDENTIAL.” During
the course of a deposition or other testimony which involves “CONFIDENTIAL” Discovery
Material, counsel for a party or witness producing such information may designate on the record
the portion(s) of the deposition or other testimony which counsel believes may contain
“CONFIDENTIAL” information. If such designation is made, those portions of the deposition
or other testimony involving such “CONFIDENTIAL” Discovery Material will be taken with no
one present, except those persons who are authorized to have access to such “CONFIDENTIAL”
Discovery Material in accordance with this Protective Order. For five (5) business days after the
official transcript is delivered to all counsel, a party may designate in writing other or new
portions containing “CONFIDENTIAL” information. A party objecting to any such designation
of deposition or other testimony as “CONFIDENTIAL” shall follow the procedure as set forth in
Paragraph 9 below.
5.

Production By Non-Parties

The existence of this Protective Order shall be disclosed to any non-party producing
documents or information in this action who may reasonably be expected to desire confidential
treatment of such documents or information. Such non-parties may avail themselves of this
Protective Order by designating information “CONFIDENTIAL” pursuant to the terms herein.
6.

Party’s Own Information

The restrictions on the use of Discovery Material established by this Protective Order are
applicable only to Discovery Material received by a party from another party or from a non-party

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as a direct result of this litigation. A party is free to do whatever it desires with its own
Discovery Material.
7.

Related Material

The restrictions on the use of Discovery Material established by this Protective Order
shall extend to: (i) all copies, extracts, and complete or partial summaries prepared from such
Discovery Material; and (ii) portions of briefs, memoranda, or any other writing filed with the
Court and exhibits thereto that contain or reflect the content of any such Discovery Material,
copies, extracts, or summaries, provided that such writings are marked “CONFIDENTIAL” on at
least the first page of the writing.
8.

Procedures for Filing Designated Material

Any request to restrict access to Discovery Material must comply with the requirements
of D.C.COLO.LCivR 7.2.
9.

Challenge to Designation

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, 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. 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

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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.
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, it shall be the
obligation of the party objecting to designation of 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. 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 objecting party fails to file such a motion within the
prescribed time, the disputed information shall continue to 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.
10.

Other Protections

(a) This Protective Order shall not preclude any party from seeking additional protection
with respect to the confidentiality of Discovery Material as that party deems appropriate. Nor

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shall any party be precluded from seeking an order from the Court permitting the disclosure or
use of certain Discovery Materials otherwise prohibited by this Protective Order;
(b) Nothing herein shall prevent the parties from mutually agreeing in writing to the use
or disclosure of “CONFIDENTIAL” Discovery Material other than as permitted by this
Protective Order;
(c) If it becomes necessary for counsel for a party receiving “CONFIDENTIAL”
Discovery Material to seek the assistance of any person other than those specified in Paragraph 3
above, the following procedures shall be employed:
i. Counsel for the receiving party shall notify, in writing, counsel for the
producing party of the desire to disclose such “CONFIDENTIAL” Discovery Material and shall
identify the person(s) to whom counsel intends to make such disclosure;
ii. If no objection to such disclosure is made by counsel for the producing party
within two (2) business days of such notification, counsel for the receiving party shall be free to
make such disclosure to the designated person(s); provided, however, that counsel for the
receiving party shall serve upon opposing counsel, prior to disclosure, an Acknowledgement in
the form set forth in Exhibit A whereby such person(s) agree to comply with and be bound by
this Protective Order;
iii. If the producing party objects to such disclosure, no disclosure shall be made
at that time. However, any party may bring before the Court the question of whether the
particular “CONFIDENTIAL” Discovery Material can be disclosed to the designated person(s)
and the party making the designation shall have the burden of establishing before the Court the
necessity for such designation.

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11.

Inadvertent Disclosure

(a) If, through inadvertence, a party produces “CONFIDENTIAL” Discovery Material in
this litigation without marking the information as “CONFIDENTIAL,” the producing party may
subsequently inform the receiving party in writing of the “CONFIDENTIAL” nature of the
disclosed information, and the receiving party shall treat the disclosed information in accordance
with this Protective Order after receipt of such written notice and make reasonable efforts to
retrieve any such material that has been disclosed to persons not authorized to receive the
material under the terms hereof. A party objecting to any such “CONFIDENTIAL” designation
shall follow the procedures set forth in Paragraph 9 above. Prior disclosure of material later
designated as “CONFIDENTIAL” shall not constitute a violation of this Protective Order.
(b) If “CONFIDENTIAL” Discovery Material is disclosed to any person other than in
the manner authorized by this Protective Order, the person responsible for the disclosure must
immediately bring all pertinent facts relating to such disclosure to the attention of counsel for the
producing party and, if appropriate, to the Court and, without prejudice to other rights and
remedies of any party, take reasonable and appropriate measures to prevent further disclosure by
it or by the person who was the recipient of such information.
(c) If a disclosing party through inadvertence produces or provides Discovery Material
that it believes is subject to a claim of attorney-client privilege, work product protection, or any
other privilege, the disclosing party may give written notice to the receiving party that the
Discovery Material is deemed privileged and that return of the Discovery Material is requested.
Upon such written notice, the receiving party shall immediately gather the original and all copies
of the Discovery Material of which the receiving party is aware and shall immediately return the

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original and all such copies to the disclosing party. Return of this Discovery Material by the
receiving party shall not preclude the receiving party from moving the Court to compel
production of the returned Discovery Material.
12.

Materials Not “CONFIDENTIAL”

Notwithstanding the designation and protection of any materials as “CONFIDENTIAL”
Discovery Material, such Discovery Material shall not be deemed confidential and shall not be
subject to this Protective Order, if the contents and/or substance thereof:
(a) is, at the time of disclosure, in the public domain by publication or otherwise and is
not otherwise protected from disclosure as a result;
(b) becomes at any time, through no act or failure to act on the part of the recipient party,
part of the public domain by publication or otherwise;
(c) is already in the possession of a party at the time of disclosures by another party and
was acquired other than directly or indirectly from the disclosing party under conditions
requiring the confidential treatment of the material; or
(d) is made available to a party by a third-party who obtained the same by legal means
and without any obligation to the party claiming its confidential nature.
13.

Return of Discovery Material

After this case is completed, through settlement or litigation, including the exhaustion of
all appeals, each party, unless otherwise agreed in writing by counsel for the parties, shall have
thirty (30) calendar days to notify the other parties in writing whether it wants (1) the return of
its produced materials designated as “CONFIDENTIAL,” including all copies, extracts, and
summaries thereof; or (2) the destruction of these materials by the party, person, or firm in

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possession. Any documents, copies, extracts, or summaries that constitute attorney work product
may be retained by counsel or destroyed. The return or destruction of these materials shall occur
within thirty (30) days after this written notice is received. The party returning or destroying
materials under this paragraph shall provide written certification to the producing party attesting
to the return or destruction of all designated materials.
14.

Waiver or Termination

This Protective Order’s provisions may not be modified, waived, or terminated except by
order of the Court. This Protective Order shall survive the final termination of this litigation
with respect to any retained “CONFIDENTIAL” Discovery Material. Termination of this
litigation shall not relieve any person from the obligations of this Protective Order, unless the
Court orders otherwise. The Court shall retain jurisdiction to enforce the Protective Order
despite the termination of this lawsuit.
15.

Notice

All notices required by this Protective Order are to be served via email to the outside
counsel for the parties. The date by which a party to this action receiving the notice shall
respond, or otherwise take action, shall be computed from the date that the email was received.
Any of the notice requirements herein may be waived in whole or in part, but only in writing
signed by an attorney for the party designating Discovery Material under this Protective Order.
16.

Other Proceedings

By entering this Protective Order and limiting the disclosure of information in this case,
the Court does not intend to preclude any other court from finding that information may be
relevant and subject to disclosure in another case. Any person or party subject to this Protective

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Order who receives a written request, subpoena, or court order seeking disclosure of another
party’s “CONFIDENTIAL” Discovery Material, shall promptly (no more than five (5) business
days after receipt) notify counsel for the producing party of the request, subpoena, or court order
and shall provide a copy of the same.
Dated May 19, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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EXHIBIT A
WRITTEN ACKNOWLEDGEMENT TO ABIDE BY THE TERMS
OF THE STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIALITY

I, _____________________, do solemnly swear that I have received a copy of the
Stipulated Protective Order Governing Confidentiality that was entered in connection with
Arkansas River Power Authority v. Babcock & Wilcox Power Generation Group, Inc., Case No.
14-cv-00638-WYD-BNB in the United States District Court for the District of Colorado, and I
hereby agree to be bound by its terms and conditions. I recognize that during my participation in
the handling and development of this case I may have occasion to read or hear of Discovery
Material that is designated “CONFIDENTIAL.” I agree to use any such Discovery Material
solely in connection with my participation in this case and for no other purpose. I hereby submit
to the jurisdiction of the United States District Court for the District of Colorado for the limited
purpose of enforcing said Stipulated Protective Order Governing Confidentiality, and this
Acknowledgement.
I am employed by ______________________ and my title is _______________.
I declare under penalty of perjury that the foregoing is true and correct.

__________________________

The foregoing Written Acknowledgement to Abide by the Terms of the Stipulated
Protective Order Governing Confidentiality was subscribed and sworn to before me this ____
day of _________________, 20___, by ___________________________.

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Witness my hand and official seal.
_____________________________
Notary Public

My Commission Expires: _______________________

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Submitted and approved as to form and content this 6th day of May, 2014.

FAIRFIELD AND WOODS, P.C.

DAVIS GRAHAM & STUBBS LLP

By: s/ Craig N. Johnson
Craig N. Johnson
Matthew S. Rork
1801 California Street, Suite 2600
Denver, Colorado 80202

By: s/ Ann T. Lebeck
Thomas C. Bell
Ann T. Lebeck
1550 Seventeenth Street, Suite 500
Denver, CO 80202

Attorneys for Plaintiff Arkansas
River Power Authority

Attorneys for Defendant
Babcock & Wilcox
Power Generation Group, Inc.

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