Collins v. Trans Union, LLC et al

Filing 117

STIPULATED PROTECTIVE ORDER, by Magistrate Judge Boyd N. Boland on 2/3/2015. (tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

MICHAEL COLLINS,

)
)
Plaintiff,
)
)
v.
)
)
TRANSUNION, LLC., et al.,
)
EXPERIAN INFORMATION SOLUTIONS, )
INC., and
)
EQUIFAX INFORMATION SERVICES,
)
LLC,

CASE NO. 1:14-cv-742-RBJ-BNB

Defendants.
___________________________________________
STIPULATED PROTECTIVE ORDER AND APPROVED CONFIDENTIALITY
AGREEMENT
___________________________________________
WHEREAS, Plaintiff Michael Collins ("Plaintiff"), Non-Party LexisNexis Risk
Data Retrieval Services LLC ("LNRDRS"), and Defendants TransUnion, LLC, Experian
Information Solutions, Inc., Equifax Information Services, LLC (individually, the "Party," and
collectively, the "Parties"), individually or through their counsel, recognize that pursuant to
discovery or otherwise during the course of the above-captioned lawsuit, LNRDRS may be
required to disclose trade secrets and other confidential research, development, marketing, or
proprietary commercial information within the meaning of Fed. R. Civ. P. 26(c) ("Confidential
Information");

WHEREAS the Parties, individually or through counsel, have stipulated to entry
of this Stipulated Protective Order ("Protective Order") pursuant to Rule 26(c) to prevent
unnecessary disclosure or dissemination of such Confidential Information and materials; and
WHEREAS the Parties agree that this Protective Order shall be effective and
binding throughout all proceedings relating to this Action, shall apply to all discovery in this
Action to the extent that it pertains to LNRDRS.
IT IS ORDERED AS FOLLOWS:
1.

All information that has been provided by LNRDRS in the course of this

Action or will be produced by LNRDRS in the course of this Action shall be used solely for the
purpose of preparation and trial of this Action and for no other purpose whatsoever, and shall not
be disclosed to any person except in accordance with the terms of this Protective Order.
2.

LNRDRS, in producing, using or disclosing ("producing party")

information or documents (as defined by Fed. R. Civ. P. 34(a)) or any summaries or
compilations derived there from, including but not limited to response to subpoenas, productions
of documents, answers to interrogatories, responses to requests for admissions, deposition
testimony, exhibits, and all other discovery, regardless of format ("Discovery Material"), may
designate the Discovery Material produced, used or disclosed in connection with this lawsuit as
"CONFIDENTIAL" subject to the protections and requirements of this Protective Order, if so
designated in writing to the other parties, or orally if recorded as part of a deposition, pursuant to
the terms of this Protective Order. Discovery Material that a producing party in good faith
believes constitute, contain, or refer to i) information that is not generally available to or
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accessible by the general public, or that is to be kept confidential due to preexisting obligations,
or ii) trade secrets or other confidential research, development, business, or financial
information, or other confidential commercial information, and that, if disclosed to a business
competitor, would tend to damage the producing party's competitive position, may be designated
as "CONFIDENTIAL."
3.

LNRDRS may designate Discovery Material as "CONFIDENTIAL,"

provided that LNRDRS’s attorney has reviewed the Discovery Material and the reviewing
person has a good faith belief that the information in the document is entitled to protection based
upon some form of privacy interest, confidentiality interest, trade secret interest, or
privilege. The signature of LNRDRS’s attorney on a letter or discovery response shall constitute
the signatory’s certification that he or she has complied with the above requirements with respect
to any documents disclosed or produced with that letter or discovery response that are marked
confidential.
3A.

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

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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.
4.

Any Discovery Material designated as "CONFIDENTIAL" shall be

maintained as confidential, not to be disclosed, and shall be used by the Party or Parties
receiving such Discovery Material ("Receiving Party") solely in connection with this Action and
shall not be disclosed to anyone other than:
a.

The Court, including court personnel, any court exercising
appellate jurisdiction over this lawsuit, and stenographers
transcribing a deposition;

b.

Outside counsel of record who are signatories to this
Protective Order for a receiving party and employees of
such attorneys and law firms to whom it is necessary that
the material be shown for purposes of this lawsuit;

c.

Actual independent technical experts, consultants,
investigators, or advisors of a receiving party, who are
qualified by knowledge, skill, experience, training or
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education and retained by outside counsel to assist in the
preparation or trial of this lawsuit and to whom it is
necessary that the information be disclosed, and who have
signed a Declaration in the form of Exhibit A, attached;
d.

Document contractors, electronic discovery contractors,
exhibit contractors, graphic art contractors and jury
consultants who are engaged by outside counsel to assist in
the preparation or trial of this lawsuit and to whom it is
necessary that the material be shown for purposes of this
lawsuit, and who have signed a Declaration in the form of
Exhibit A, attached; and

e.

Persons testifying in deposition to the extent the Discovery
Material was authored by or addressed to the person
testifying or such person is established as knowledgeable of
such information or contents of the Discovery Material prior
to disclosing the Discovery Material.

.In the case of a document or thing, a designation of "CONFIDENTIAL" shall be
accomplished by marking every page of the document or conspicuously marking the thing with
the appropriate legend "CONFIDENTIAL" in a manner that shall not interfere with the legibility
of the information contained in the Discovery Material.

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6.

As set forth in this paragraph and its subparts, information conveyed or

discussed in testimony at a deposition shall be subject to this Protective Order, provided that it is
designated as "CONFIDENTIAL" orally or in writing either at the time of the deposition or after
receipt by the Parties of the transcript, as provided in this Protective Order.
a.

For such time as any Discovery Material designated
"CONFIDENTIAL" are disclosed in a deposition, LNRDRS shall
have the right to exclude from attendance at that portion of the
deposition any person who is not entitled to receive such
information or document pursuant to this Protective Order.

b.

In the event that a party believes that "CONFIDENTIAL"
information will be disclosed during a deposition, counsel for
LNRDRS may designate on the record that all or specific portions
of the deposition transcript, and the information contained therein,
is to be treated as "CONFIDENTIAL."

c.

LNRDRS shall have thirty (30) days after receiving a copy of the
deposition transcript in which to designate all or specific portions
of the transcript as "CONFIDENTIAL," as appropriate. If, within
such thirty (30) days, no party designates in writing certain
portions of the transcript as "CONFIDENTIAL," all parties shall
be permitted to use such portions of the transcript and the
information contained therein with no restrictions of
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confidentiality.
d.

Any transcript containing material designated as
"CONFIDENTIAL," including exhibits thereto, shall be marked on
its cover as "CONFIDENTIAL," and the portions of the transcript
or exhibits reflecting such information shall be stamped
"CONFIDENTIAL," and access thereto shall be limited pursuant
to the terms of this Protective Order.

e.

If any Discovery Material received by Plaintiff from LNRDRS is
conveyed or discussed in any deposition proceeding, Plaintiff
shall, within three (3) business days of the deposition, send all
Discovery Materials discussed to LNRDRS so that counsel for
LNRDRS may make the decision as to whether to designate the
Discovery Materials as "CONFIDENTIAL." Plaintiff shall also
send a copy of the deposition transcript to LNRDRS within three
(3) business days of receiving the transcript so that counsel for
LNRDRS may make the decision as to whether to designate
portions of the deposition as "CONFIDENTIAL."

6.

In the case of expert reports, if any Discovery Material designated

"CONFIDENTIAL" pursuant to this Protective Order is specifically identified in, paraphrased,
or attached to an expert's report, then the report shall be marked on its cover as "CONTAINS
CONFIDENTIAL INFORMATION," the portion of the report reflecting such information shall
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be stamped "CONTAINS CONFIDENTIAL INFORMATION," and access to the portion so
designated shall be limited pursuant to the terms of this Protective Order. The Party retaining
the expert shall be responsible for the initial stamping of such report.
7.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2. In the event that Plaintiff wishes to submit "CONFIDENTIAL"
Discovery Material to the Court, all "CONFIDENTIAL" Discovery Material in any affidavits,
motions, briefs, memoranda, or other papers shall be designated as "CONFIDENTIAL," and, if
necessary, such Party shall move the Court to permit leave to file such material under seal.
Nothing in this subsection shall be construed to permit the parties to decide what is filed under
seal, as that is within the sole province of the Court.
8.

Nothing in this Protective Order shall be construed to restrict the use or

disclosure of "CONFIDENTIAL" Discovery Material at trial or any other court proceeding;
provided, however, that the use or disclosure of "CONFIDENTIAL" Discovery Material at trial
or any other court proceeding shall be addressed by this Court at the appropriate time. Plaintiff
and counsel for LNRDRS agree to confer in good faith about procedures for handling Discovery
Material designated "CONFIDENTIAL" during trial or any hearing in open Court of this action,
including the possibility of an additional order.
9.

The failure of LNRDRS to designate Discovery Material as

"CONFIDENTIAL" in accordance with this Order, and the failure of a receiving party to object
to such a designation, shall not preclude LNRDRS at a later time from subsequently designating
or objecting to the designation of such Discovery Material as "CONFIDENTIAL."
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10.

Unless otherwise permitted, within sixty (60) days after the conclusion of

this lawsuit, including all appeals therefrom, all documents designated as "CONFIDENTIAL" all
copies of documents designated as "CONFIDENTIAL," and all excerpts therefrom in the
possession, custody or control of the receiving parties, and their experts, investigators, advisors,
or consultants shall be returned to counsel for the producing party. However, outside counsel
may retain pleadings, attorney and consultant work product, and depositions for archival
purposes only; those materials shall not be disclosed to anyone. Upon request, a party and its
counsel shall separately provide written certification to the producing party that the actions
required by this paragraph have been completed.
11.

Notwithstanding anything in this Protective Order to the contrary, the

confidentiality obligations of this Protective Order shall not prohibit the disclosure by any Party
of any Discovery Material required to be disclosed by any law, regulation, order, or rule of any
governmental authority; provided, however, that if Plaintiff is required to disclose the Discovery
Material designated as confidential pursuant to any law, regulation, order, or rule of any
governmental authority, Plaintiff shall give immediate advance written notice of any such
requested disclosure to the counsel of LNRDRS and the Defendants to afford LNRDRS the
opportunity to seek legal protection from the disclosure of such Discovery Material.
12.

In the event that any Discovery Material designated as

"CONFIDENTIAL"" is disclosed, through inadvertence or otherwise, to any person or party not
authorized under this Protective Order, then the party who disclosed the Discovery Material
("disclosing party") shall use its best efforts to bind such person to the terms of this Protective

9

Order; and the disclosing party shall (a) promptly inform such person of all the provisions of this
Protective Order; (b) identify such person immediately to the party or nonparty that designated
the document as "CONFIDENTIAL;" and (c) request such person to sign a Declaration in the
form of Exhibit A. The executed Declaration shall be promptly served upon the party or
nonparty designating the Discovery Material as "CONFIDENTIAL."
13.

The inadvertent production or disclosure of any document (including but

not limited to e-mail or other electronic documents) or thing otherwise protected by the attorneyclient privilege or work-product protection (as defined by Fed. R. Evid. 502(g)) ("Disclosed
Protected Information") shall not constitute or be deemed a waiver or forfeiture of any claim of
privilege or work product protection that the producing party would otherwise be entitled to
assert with respect to the Disclosed Protected Information or its subject matter. The producing
party shall assert in writing the attorney-client privilege or work product protection with respect
to the Disclosed Protected Information. The receiving party shall, within five (5) business days
of receipt of that writing, return or destroy the Disclosed Protected Information and any and all
copies thereof or references thereto and provide a certification of counsel that all such Disclosed
Protected Information has been returned or destroyed.
a.

If the receiving party disputes and wishes to contest that any such
Disclosed Protected Information was inadvertently produced or is
protected by the attorney-client privilege or by work-product
immunity, the receiving party shall so notify the producing party in

10

writing when the Disclosed Protected Information (and all copies)
are returned to the producing party.
b.

Within fifteen (15) days after receiving such notification, the
producing party shall provide to the receiving parties a list
identifying all such returned Disclosed Protected Information and
stating the basis for the claim of privilege or immunity.

c.

Within fourteen (14) days of receiving such a list, the receiving
party or parties may file a motion to compel production of such
Disclosed Protected Information, the protection of which is still
disputed (a "Privilege Motion"). If a Privilege Motion is filed, the
producing party shall have the burden of proving that the
Disclosed Protected Information in dispute is protected by the
attorney-client privilege or by work-product immunity. The
Privilege Motion shall be filed under seal and shall not assert as a
ground for compelling production the fact or circumstances of
inadvertent production.

d.

With respect to Disclosed Protected Information subsequently
generated by a receiving party, which derivative Disclosed
Protected Information contains information derived from such
inadvertently produced Disclosed Protected Information, if the
receiving party does not obtain an order compelling production
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pursuant to a timely filed Privilege Motion, the receiving party
shall, within five (5) business days after learning of the denial of
the Privilege Motion, either destroy the derivative Disclosed
Protected Information or redact from them all such derivative
privileged or work-product information in a manner such that the
derivative privileged or work-product information cannot in any
way be retrieved, inferred or reproduced.
e.

Nothing in this paragraph shall limit a party's ability to assert to
the Court that a disclosing party's affirmative use of Disclosed
Protected Information in this litigation in fairness requires
disclosure of privileged or work product protected information
pursuant to Fed. R. Evid. 106 or 502(a).

14.

The attorneys of record for the respective Receiving Parties shall retain

the original, executed Declarations (in the form of Exhibit A attached) that have been executed
by any person to whom Discovery Material designated as "CONFIDENTIAL," pursuant to this
Protective Order.
15.

All references to "days" in this Protective Order shall be construed as

calendar days unless specifically identified as otherwise. If the last day of the period falls on a
Saturday, Sunday or legal holiday, the due date is the next business day.
16.

The Parties agree to abide by and be bound by the terms of this Protective

Order upon signature as if the Protective Order had been entered on that date.
12

17.

This Protective Order may be executed in any number of counterparts, all

of which, upon complete execution thereof by the Parties, collectively shall be deemed to be the
original.
18.

Written notice provided under this Protective Order shall be by way of

regular U.S. mail and electronic mail to Plaintiff and all counsel of record for the party to whom
notice is required to be given.
19.

In the event that anyone violates or threatens to violate the terms of this

Protective Order, the Parties agree that the aggrieved Party may apply immediately to obtain
injunctive relief against any such violation or threatened violation, and in the event the aggrieved
Party shall do so, the respondent, subject to the provisions of this Protective Order, shall not
employ as a defense that the aggrieved Party possesses an adequate remedy at law.
20.

Unless the parties stipulate otherwise, evidence of the existence or

nonexistence of a designation under this Protective Order shall not be admissible for any
purpose, nor shall the acceptance of any information designated pursuant to this Protective Order
constitute an admission or acknowledgement that the material so designated is in fact
proprietary, confidential, or a trade secret.
21.

The Court shall retain jurisdiction over the parties for the purpose of

ensuring compliance with this Protective Order and granting such amendments, modifications,
and additions to this Protective Order and such other and further relief as may be necessary, and
any party may apply to the Court at any time for an amendment, modification, or addition to this
Protective Order. This Protective Order shall survive the final disposition of this lawsuit, by
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judgment, dismissal, settlement, or otherwise.
22.

The Parties may, by stipulation, provide for exceptions to this Protective

Order and any party may seek an order of this Court modifying this Protective Order.
Dated February 3, 2015.

BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

14

AGREED TO IN FORM AND SUBSTANCE

s/Michael A. Collins
Michael A. Collins
P.O. Box 460276
Aurora, CO 80046-0276

Plaintiff

s/Alyson Blatney
Benton Jordan Barton
HALL & EVANS, LLC
1001 17th Street
Suite 300
Denver, CO 80202
Email: [e-mail]
Alyson Blatney
STRASBURGER & PRICE LLP
2801 Network Blvd., Ste. 600
Frisco, TX 75304
Email: [e-mail]
Attorneys for Defendant
Trans Union, LLC

s/Brian P. Gaffney
Brian P. Gaffney
SNELL & WILMER, LLP-Denver
1200 17th Street
One Tabor Center, Ste. 1900Denver, CO
15

s/Martin A. Foos
Ronald I. Raether, Jr.
Martin A. Foos
FARUKI IRELAND & COX P.L.L.
500 Courthouse Plaza, S.W.
10 North Ludlow Street
Dayton, OH 45402
Email: [e-mail]
[e-mail]

Gillian McKean Bidgood
POLSINELLI PC
1515 Wynkoop St., Ste. 600
Denver, CO 80202
Email: [e-mail]

Attorneys for Third Party LexisNexis Risk Data
Retrieval Services LLC

s/Meredith L. Williams
Christian Shaw MonsonCAMPBELL
16

1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

MICHAEL COLLINS,

)

CASE NO. 1:14-cv-742-RBJ-BNB

)
Plaintiff,

)
)

v.

)
)

TRANSUNION, LLC., et al.,

)
)

Defendants.

)
)

___________________________________________

STIPULATED PROTECTIVE ORDER AND APPROVED
CONFIDENTIALITY AGREEMENT
___________________________________________

_______________________________, declares and undertakes as follows:
1.

My present employer is ___________________________________

________________________________________________________________________
EXHIBIT A
1

2.

My address is __________________________________________

________________________________________________________________________
3.

My present occupation or job description is ___________________

________________________________________________________________________
4.

I have received and read a copy of the Stipulated Protective Order entered

by this Court in the lawsuit identified in the above caption (the "Protective Order"). I am familiar
with its terms and conditions. I agree to comply with and to be bound by each of the terms and
conditions of the Protective Order and by such other orders as may be made by the Court. In
particular, I agree to hold in confidence, in accordance with the requirements of the Protective
Order, any information and material disclosed to me pursuant to the Protective Order and, unless
permitted by further order of the Court, not to communicate the contents of such information and
material to any person other than a person permitted access pursuant to the terms of the Protective
Order.
5.

To assure my compliance with the Protective Order, I submit myself to the

jurisdiction of the United States District Court for the District of Colorado for the limited purpose
of any proceeding relating to the enforcement of, performance under, compliance with, or
violation of the Protective Order.
6.

I understand that I am to retain all of the materials that I receive pursuant to

the Protective Order, and all copies or other reproductions made by me, for me, or at my
direction, in a secure container, cabinet, drawer, room, or other safe place in a manner consistent
with the Protective Order. I understand that all such materials are to remain in my custody until I
2

have completed my assigned duties, at which time they are to be returned to counsel of record for
the party who provided them to me. I understand that, upon completion of my assigned duties,
any materials, memoranda, work notes, or other documents derived from such materials, or
containing any information provided in such materials, shall be destroyed. I understand that such
destruction shall not relieve me from any of the continuing obligations of confidentiality imposed
upon me by the Protective Order.
I declare under penalty of perjury that all of the above declarations are true and
correct.

DATED

SIGNATURE

EXHIBIT A
3