United States Welding Inc v. Tecsys Inc

Filing 43

STIPULATED PROTECTIVE ORDER. By Magistrate Judge Michael E. Hegarty on 11/6/2014. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:14-cv-00778-REB-MEH
UNITED STATES WELDING, INC.,
Plaintiff,
v.
TECSYS, INC.,
Defendant.
STIPULATED PROTECTIVE ORDER
Discovery in this action is likely to involve production of confidential,
proprietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation
may be warranted. Accordingly, the Parties hereby stipulate to and petition the
Court to enter the following Stipulated Protective Order. The Parties
acknowledge that this Order does not confer blanket protections on all
disclosures or responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment hereunder.
1.

Classes of Protected Information.
The terms of this Order are not to be used to undermine prosecuting this

litigation.

When appropriate, a party or witness, on its own or through its

attorney, may seek to protect the confidentiality of information by designating and
stamping as CONFIDENTIAL material to be shielded from public access. Such

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information may include information or material produced for or disclosed in
connection with this action to a receiving party that a producing party, including
any party to this action and any non-party producing information or material
voluntarily or pursuant to a subpoena or a court order in connection with this
action, considers to comprise confidential technical, sales, marketing, financial,
or other commercially sensitive information.

CONFIDENTIAL information

obtained by a party from any person pursuant to discovery in this litigation may
be used only for purposes of this litigation.
2.

Information Not to Be Designated as Protected.
Information may not be treated as CONFIDENTIAL if it (a) is or becomes

public knowledge, as shown by publicly available writings, other than through
violation of the terms of this order; (b) is acquired by a non-designating party or
non-party witness from a third party lawfully possessing such information and
having no obligation to the owner of the information; (c) was rightfully possessed
by a non-designating party or non-party witness prior to the opening of discovery
in this proceeding without obligation of confidentiality, and for which there is
written evidence of such rightful possession; (d) is disclosed by a nondesignating party or non-party witness legally compelled to disclose the
information; or (e) is disclosed by a non-designating party with the approval of
the designating party. Notwithstanding the foregoing, any information disclosed
under this Order that is already in the possession of a non-designating party and
is already subject to an obligation of confidentiality shall remain subject to that
obligation of confidentiality.

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3.

Access to Protected Information.
The provisions of this Order regarding access to protected information are

subject to modification by written agreement of the Parties or their attorneys, or
by motion filed with and approved by the Court.
a.

Parties are defined as including individuals, officers, partners, and
employees of Plaintiff and Defendant.

b.

Attorneys for Parties are defined as outside counsel for the
Parties, including support staff operating under counsel’s direction,
such as paralegals or legal assistants, secretaries, and any other
employees or independent contractors operating under outside
counsel’s instruction.

c.

Independent experts or consultants include individuals retained
by a party for purposes related to prosecution or defense of the
proceeding but who are not otherwise employees or agents of
either the party or its attorneys, including mock jurors.

d.

Non-party witnesses include any individuals to be deposed during
discovery or trial, whether willingly or under subpoena issued by a
court of competent jurisdiction over the witness.

Parties and their Attorneys shall have access to information designated
as CONFIDENTIAL.
Independent experts or consultants, non-party witnesses, and any
other individual not otherwise specifically covered by the terms of this Order may

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be afforded access to CONFIDENTIAL information in accordance with the terms
that follow in section 4.
4.

Disclosure to Any Individual.
Prior to disclosure of protected CONFIDENTIAL information or documents

by any party or its attorney to any individual or entity not already provided access
to such information by the terms of this Order, the individual or entity shall be
informed of the existence of this Order and provided with a copy to read. The
individual will then be required to certify in writing that the Order has been read
and understood and that the terms shall be binding on the individual.

No

individual shall receive any protected information until the party or attorney
proposing to disclose the information has received the signed certification from
the individual. A form for such certification is attached to this Order as Exhibit A.
The party or attorney receiving the completed form shall retain the original or a
copy and shall transmit a copy of the completed form to counsel for the adverse
party.
5.

Responses to Written Discovery.
Responses to interrogatories under Federal Rule 33 and to requests for

admissions under Federal Rule 36 that the responding party reasonably believes
contain CONFIDENTIAL information shall be prominently stamped or marked as
CONFIDENTIAL.

Any inadvertent disclosure without appropriate designation

shall be remedied as soon as the disclosing party learns of its error, by informing
all adverse Parties, in writing, of the error.

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6.

Production of Documents.
If a party responds to requests for production under Federal Rule 34 by

making copies and forwarding the copies to the inquiring party, then the copies
shall be prominently stamped or marked, as necessary, as CONFIDENTIAL. If
the responding party makes documents available for inspection and copying by
the inquiring party, all documents shall be considered protected during the
course of inspection. After the inquiring party informs the responding party what
documents are to be copied, the responding party will be responsible for
prominently stamping or marking the copies as CONFIDENTIAL. Any inadvertent
disclosure without appropriate designation shall be remedied as soon as the
disclosing party learns of its error, by informing all adverse Parties, in writing, of
the error.
7.

Depositions.
During

discussion

of

any

documentary

or

non-documentary

CONFIDENTIAL information during a deposition, the interested party may make
oral note on the record of the protected nature of the information.
The transcript of any deposition and all exhibits or attachments shall be
considered CONFIDENTIAL for 30 days following the date of service of the
transcript by the party that took the deposition. During the 30-day period, or on
the record during the course of the deposition, a party or non-party witness may
designate portions of the transcript, and any exhibits or attachments thereto, as
CONFIDENTIAL by informing the other parties and the court reporter or
stenographer of the designations.

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8.

Handling of Protected Information.
Disclosure of information protected under the terms of this Order is

intended only to facilitate the prosecution or defense of this case. The recipient
of any protected information disclosed in accordance with the terms of this Order
is obligated to maintain the confidentiality of the information and shall exercise
reasonable care in handling, storing, using or disseminating the information.
9.

Redaction; Filing Material With the Court.
When

a

party

or

attorney

must

file

a

document

containing

CONFIDENTIAL information with the Court, but the CONFIDENTIAL information
is not necessary to the issues presented to the Court, the CONFIDENTIAL
information should be redacted if feasible. At least two business days before
filing any such document with the Court, the filing party must seek the
designating party’s approval with respect to the propriety and sufficiency of the
redactions, which approval shall not be unreasonably withheld.
When a party or attorney files a motion, brief, memorandum, or other
document with the Court containing CONFIDENTIAL information that is
necessary to resolution of the issues presented to the Court, the document
containing such CONFIDENTIAL information shall be filed as a restricted
document, and an accompanying motion to restrict access (Level 1) shall be filed
in accordance with Local Rule 7.2.
10.

Acceptance of Information; Inadvertent Disclosure.
Acceptance by a party or its attorney of information disclosed under

designation as CONFIDENTIAL shall not constitute an admission that the

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information is, in fact, CONFIDENTIAL. Inadvertent disclosure of information
which the disclosing party intended to designate as CONFIDENTIAL shall not
waive any right to claim the information as protected upon discovery of the error.
A party that inadvertently discloses privileged information or information
subject to work-product protections may request in writing that the receiving party
destroy all copies of the inadvertently disclosed information. Within five business
days, the party and its attorneys must destroy all such information in its
possession and must similarly request that any other person to whom the party
or attorney provided the information also destroy all such information and must
certify its compliance with this paragraph. If the receiving party disagrees as to
whether the information is privileged information or information subject to work
product protections, the parties are obligated to confer in good faith in an attempt
to resolve the dispute. If the parties are unable to resolve the dispute, the party
challenging the designation may file a motion with the Court challenging the
assertion of the privilege; in such case, the party may retain the information until
such time as the Court enters a ruling determining whether the information is
subject to a valid privilege or work product protection.
11.

Challenges to Designations of Information as CONFIDENTIAL.
If the Parties or their attorneys disagree as to whether certain information

should be protected, they are obligated to confer in good faith regarding the
designation by the disclosing party. If the Parties are unable to resolve their
differences, the party challenging the designation may make a motion before the
Court seeking a determination of the status of the information.

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A challenge to the designation of information as CONFIDENTIAL must be
made within 30 days of receipt of the designation or designated material, or as
soon as practicable after the basis for challenge is known.
The party designating information as protected bears the burden of
proving that the information should be protected from disclosure.
12.

Other Rights of the Parties and Attorneys.
This Order shall not preclude the Parties or their attorneys from making

any applicable claims of privilege during discovery or at trial. Nor shall the Order
preclude the filing of any motion with the Court for relief from a particular
provision of this Order or for additional protections not provided by this Order.
13.

Contemplation of Additional Degrees of Protection.
The parties have discussed the possibility that more severe restrictions —

such as limiting access to outside counsel and retained consultants and experts
(i.e., “Highly Confidential - Attorneys Eyes Only”) —may become appropriate for
certain information that may be discoverable but that, for example, if disclosed to
the other party would work a competitive disadvantage to the business interests
of the producing party. In the event that a producing party reasonably believes
that any information to be produced requires such extra protections, the party will
promptly notify the receiving party of such belief and of the volume and nature of
the information needing further protection. The producing party may withhold
such information from production until outside counsel have met and conferred in
good faith regarding modification of this Order to include provision for such
additional protections and the necessity for such additional protections. Within

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10 days of the parties’ conference, if the parties are unable to resolve whether
the withheld information requires further protections or what protections are
appropriate, the producing party may file a motion for a protective order setting
forth the parties’ disagreements and the protections requested. Within 5 days
thereafter, the receiving party may file a responsive brief.
14.

Confidential Materials After Judgment.
By jointly submitting and signing this Protective Order, the Parties agree

that the provisions of this Protective Order shall remain binding after the date of
entry of judgment and be subject to enforcement in a court of competent
jurisdiction, unless stipulated otherwise by the Parties.

So Stipulated:
United States Welding, Inc., by its attorneys,
_/s/ Marcus Stephen Harris__________

Dated: October 31, 2014

TECSYS, Inc. , by its attorneys,
_/s/ Benjamin N. Simler____________

Dated: October 28, 2014

So Ordered:
Dated at Denver, Colorado, this 6th day of November, 2014.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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Exhibit A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:14-cv-00778-REB-MEH
UNITED STATES WELDING, INC.,
Plaintiff,
vs.
TECSYS, INC.,
Defendant.
STIPULATED PROTECTIVE ORDER

ACKNOWLEDGEMENT

I, _________________________________, declare that I have been provided
with a copy of the Order regarding the disclosure of, and protection of, certain
types of information and documents during and after the above-captioned case.
I have read the Order and understand its terms and provisions, to which I agree
to be bound. Specifically, I agree to hold in confidence any information or
documents designated as CONFIDENTIAL and disclosed to me in conjunction
with any part I take in this proceeding.
I agree to submit to the jurisdiction of the United States District Court for the
District of Colorado for the limited purpose of its enforcement of this
acknowledgement and the Stipulated Protective Order.

_________________________________
Signature
_________________________________
Date

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