Jenkins v. Catholic Health Initiatives
Filing
29
STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 11/14/14. ORDERED that Defendant's 27 Joint MOTION for Protective Order is GRANTED. FURTHER ORDERED that when filing documents under seal parties MUST fully comply with the requirements of D.C.ColoL.CivR. 7.2 and D.C.COLO. ECF. PROC. 5.1. (cbssec)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-CV-00801 REB-CBS
JENKINS, FREDRICK K.
Plaintiff(s),
v.
CATHOLIC HEALTH INITIATIVES
Defendant(s).
STIPULATED PROTECTIVE ORDER
Pursuant to the Joint Motion for Stipulated Protective Order filed by the parties, the
Court hereby Orders as follows:
1.
information,
This Protective Order shall apply to all documents, materials, and
including
without
limitation,
documents
produced,
answers
to
interrogatories, responses to requests for admission, deposition testimony, and other
information disclosed in this civil action pursuant to the disclosure or discovery duties
created by the Federal Rules of Civil Procedure.
2.
As used in this Protective Order, “document” is defined as provided by
Fed. R. Civ. P. 34(a). A draft or non-identical copy is a separate document within the
meaning of this term.
3.
This agreement does not constitute a global waiver by any party as to
whether any confidential or privileged information is discoverable, but rather, is a
mechanism by which confidential information that is disclosed is prevented from being
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used for any purpose outside this litigation by any party.
4.
One who provides, serves, discloses or files any nonpublic documents or
information in connection with this civil action, and who in good faith believes such
documents or information contains nonpublic personal, personnel, employment, private,
medical, or other information implicating privacy interests, proprietary interests or safety
and security concerns of either the Plaintiff and/or Defendant, may designate such
documents or information as “Confidential.”
The documents or information so
designated shall be deemed “Confidential Information” subject to this Protective Order.
5.
One who provides, serves, discloses or files any nonpublic documents or
information in connection with this civil action, and who in good faith believes such
documents or information contains purely personal information of any person that is
unrelated to the litigation, or nonpublic proprietary information, may designate such
documents or information as “Confidential – EYES ONLY”.
The documents or
information so designated shall be deemed “EYES ONLY” subject to this Protective
Order.
6.
Confidential Information shall be subject to the following restrictions.
Confidential Information shall be used only for the limited purpose of preparing for and
conducting this civil action (including any appeals), but not including any future state
court action regardless of its relation to this action, and not for any other purpose
whatsoever, and shall not, without the consent of the party producing it or further Order
of the Court, be disclosed in any way to anyone except those specified in this
paragraph:
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(a)
attorneys actively working on this case;
(b)
persons regularly employed or associated with the attorneys actively
working on the case whose assistance is required by said attorneys in the preparation
for trial, or at other proceedings in this case;
(c)
Two designated representatives each of Plaintiff and Defendant Catholic
Health Initiatives who execute the attached Exhibit A.;
(d)
expert witnesses and consultants retained in connection with this
proceeding, to the extent such disclosure is necessary for preparation, trial or other
proceedings in this case;
(e)
the Court and its employees (“Court Personnel”);
(f)
stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action;
(g)
deponents, witnesses, or potential witnesses who execute the attached
Exhibit A (hereinafter “Non-Party Witness”), and subject to the restrictions in Paragraph
9 below;
(h)
and other persons by written agreement of the parties who execute the
attached Exhibit A.
7.
Eyes Only Information shall be subject to the following restrictions. Eyes
Only Information shall be used only for the limited purpose of preparing for and
conducting this civil action (including any appeals), and not for any other purpose
whatsoever, and shall not, without the consent of the party producing it or further Order
of the Court, be disclosed in any way to anyone except those specified in this
paragraph:
(a)
attorneys actively working on this case;
(b)
persons regularly employed or associated with the attorneys actively
working on the case whose assistance is required by said attorneys in the preparation
for trial, or at other proceedings in this case;
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(c)
expert witnesses and consultants retained in connection with this
proceeding, to the extent such disclosure is necessary for preparation, trial or other
proceedings in this case;
(d)
the Court and its employees (“Court Personnel”);
(e)
stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action;
(f)
deponents, witnesses, or potential witnesses who execute the attached
Exhibit A (hereinafter “Eyes Only Witnesses”), and subject to the restrictions in
Paragraph 10 below;
(g)
and other persons by written agreement of the parties who execute the
attached Exhibit A.
8.
Except for stenographic reporters engaged in proceedings incident to the
conduct of this action, no Confidential Information or Eyes Only Information shall be
disclosed to anyone in this litigation, with the exception of counsel who have entered an
appearance in this action on behalf of one or more partie(s), until said person first signs
an agreement with respect to the confidentiality of such information in the form attached
hereto as Exhibit A. Prior to disclosing any Confidential or Eyes Only Information to any
person listed in paragraphs 6 and 7 above (other than counsel, persons employed by
counsel, Court Personnel and stenographic reporters), counsel shall provide such
person with a copy of this Protective Order and have such person execute a copy of
Exhibit A, acknowledging that he or she has read this Protective Order and agreed to be
bound by its provisions. All such acknowledgments shall be retained by counsel and
shall be subject to in camera review by the Court if good cause for review is
demonstrated by any party.
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9.
No Non-Party Witness shall be entitled to review or receive Confidential
Information, except in the presence of counsel for any party, or staff employed by such
counsel and actively working on the case, or during the course of a deposition, hearing,
trial, while such individual is providing testimony under oath. No Non-Party Witness
shall be entitled to retain a physical or electronic copy of any Confidential Information
outside the presence of counsel or staff. Within seven (7) days following the execution
of Exhibit A by a Non-Party Witness, counsel for the party requesting the execution of
such agreement shall disclose the identity of such Non-Party Witness to counsel for all
other parties, and indicate that such witness has executed Exhibit A.
10.
No witness shall be entitled to review or receive Eyes Only Information,
except during the course of a deposition, hearing, trial, while such individual is providing
testimony under oath, or is otherwise in the presence of counsel for all parties. No
witness shall be entitled to retain a physical or electronic copy of any Eyes Only
Information outside the presence of counsel or staff.
11.
D.C.COLO.L.Civ.R 7.2 Requirement. The parties agree that a stipulated
protective order or a confidentiality agreement executed by the parties, standing alone,
will not suffice for sealing a paper or closing a court proceeding to the public, will not
substitute for the showing required under D.C.COLO.L.Civ.R 7.2(C), and will not be
binding on the court. Any document that a party asserts should not be part of the public
record pursuant to a protective order or a confidentiality agreement shall be filed as a
sealed document. The document shall be sealed for 14 days. If no motion to seal is
filed within 14 days, the document shall be automatically unsealed.
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Any motion to seal or restrict public access shall address, at a minimum:
1)
The nature of the material or the proceeding at issue;
2)
The private interest that, when weighted against the qualified right or
presumption of public access to court files and proceedings, warrants the
relief sought;
3)
The clearly defined and serious injury that would result if the relief sought
is not granted; and
4)
Why a less restrictive alternative to the relief sought is not practicable or
would not adequately protect the interest in question (e.g. redaction,
summarization, limited sealing of exhibits or portions of exhibits).
12.
This Protective Order shall not prohibit or restrain any party from
performing the tasks necessary to prepare for trial; however, any redisclosure or
communication of the information covered by this Protective Order, except as
specifically allowed by this Protective Order for the purposes of this litigation only, is
strictly prohibited. The object of this Protective Order is that none of the information
revealed in connection with such protections be used for any purpose other than in
relation to this litigation and that no one be allowed to use any information produced
pursuant to this order in connection with any other issue, dispute, litigation or charge
against any of the parties whether currently pending or contemplated in the future.
13.
No reproduction of information disclosed in reliance on this Protective
Order is authorized, except to the extent copies are required to prepare the case for
trial. All copies, excerpts, or summaries made, shown, or given to those authorized
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hereby and according to the provisions hereof shall be stamped to indicate the
protected and confidential nature of the disclosed information. Review of Confidential or
Eyes Only Information by counsel, experts or consultants for the litigation will not
constitute any waiver of the confidentiality of the document or of any objections to
production. The inadvertent, unintentional or in camera disclosure of Confidential or
Eyes Only Information shall not, under any circumstances, be deemed a waiver, in
whole or in part, of any claims of confidentiality.
14.
Counsel to the parties are required to advise, instruct and supervise all
associates, staff and employees of counsel to keep designated Confidential or Eyes
Only Information confidential in the strictest possible fashion. Counsel and the Parties
also agree to such treatment of the information by themselves, and counsel will
appropriately instruct their clients as to the protected nature of the information produced
pursuant to this order and the limitations on its use and disclosure.
15.
Documents are designated as Confidential Information by placing or
affixing on them (in a manner that will not interfere with their legibility) the following or
other appropriate notice:
“CONFIDENTIAL.”
Digital media or storage devices
containing electronically stored information may be designated as Confidential
Information by affixing a label with the word “CONFIDENTIAL” to the media or device.
Documents are designated as Eyes Only Information by placing or affixing on them (in a
manner that will not interfere with their legibility) the following or other appropriate
notice: “CONFIDENTIAL – EYES ONLY.” Digital media or storage devices containing
electronically stored information may be designated as Confidential Information by
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affixing a label with the word “CONFIDENTIAL – EYES ONLY” to the media or device.
16.
Responses to discovery requests are designated as CONFIDENTIAL by
imprinting the word “CONFIDENTIAL” next to or above the response. Responses to
discovery requests are designated as Eyes Only Information by imprinting the words
“CONFIDENTIAL – EYES ONLY” next to or above the response.
17.
Whenever a deposition involves the disclosure of Confidential or Eyes
Only Information, the deposition or portions thereof may be designated as Confidential
or Eyes Only and subject to this Protective Order. Such designation shall be made on
the record during the deposition whenever possible, but a party may designate portions
of depositions as Confidential or Eyes Only after transcription, provided written notice of
the designation is promptly given to all counsel of record within thirty (30) days after
notice by the court reporter of the completion of the transcript. The cover page, those
portions of the original transcripts that contain confidential material shall bear the legend
“CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER,” and shall be bound
separately from the non-confidential portions of the transcript. Any deposition exhibits
designated confidential shall also be bound separately.
18.
A party may object to the designation of particular documents as
Confidential or Eyes Only Information by giving written notice to the party designating
the disputed information.
The written notice shall identify the information to which
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
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the Court determine whether the disputed information should be subject to the terms of
this Protective Order, and/or whether such information should be subject to either
Confidential or Eyes Only protection.
If such a motion is timely filed, the disputed
information shall be treated as confidential, or 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 and shall not thereafter be treated as confidential in
accordance with this Protective Order. In connection with any 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.
19.
The termination of this action shall not relieve counsel or other persons
obligated hereunder from their responsibility to maintain the confidentiality of
CONFIDENTIAL or EYES ONLY Information pursuant to this Protective Order.
20.
Three years after the conclusion of this case, unless other arrangements
are agreed upon, and upon a written request from one of the parties hereto, each
document and all copies thereof designated as Confidential or Eyes Only shall be
returned to the party that designated the material as Confidential or Eyes Only, or the
parties may elect to destroy confidential documents.
All documents designated as
Confidential or Eyes Only shall be maintained as Confidential Information or Eyes Only
Information during the three year period following the conclusion of the case.
21.
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Stamped confidential documents shall not be filed with the clerk except
9
when required in connection with motions under Federal Rules of Civil Procedure 12 or
56, motions to determine confidentiality under the terms of this Protective Order, and
motions related to discovery disputes if the confidential documents are relevant to the
motion.
A party contemplating filing Confidential Information protected by this
Protective Order to the Court must comply with the requirements of D.C.Colo.LCiv.R.
7.2 with respect to any submissions of Confidential Materials designated pursuant to
this Protective Order.
All Confidential Materials so filed with the Court shall be
maintained by the Clerk of the Court under seal and shall be released only upon further
Order of the Court.
22.
Agreement pursuant to Rule 502(d) of the Federal Rules of Evidence.
(1) Any inadvertent disclosure or production of documents protected by the
attorney-client privilege or work-product protection will not constitute a waiver of
either any available privilege or protection by the disclosing party.
(2) In the event that the receiving party discovers that it has received either
attorney-client privilege or work-product protected documents, it will bring that
fact to the attention of the producing party immediately upon discovery.
(3) Upon the request of the producing party, the receiving party will promptly
return to the producing party any attorney client privilege or work-productprotected document and any copies that the receiving party may have made,
except that a non-producing party may retain such documents solely for the
purpose of bringing a motion to compel such documents on the grounds that the
designation of attorney-client privilege or work-product doctrine is improper.
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(4) Upon the request of the producing party, the receiving party will promptly
disclose the names of any individuals who have read or have had access to the
attorney-client privilege or work-product-protected document.
(5) No such inadvertently produced attorney-client privilege or work-productprotected document may be used in evidence against the producing party, unless
the Court determines the documents not to be attorney client privileged or
covered by the work-product doctrine.
(6) If either party must seek judicial enforcement of this agreement, the costs and
reasonable attorney’s fees of the party seeking enforcement will be paid by the
party against whom such enforcement must be sought, but only if the court finds
the existence of a valid privilege and grants enforcement of this agreement by
ordering the return and non-evidentiary use of the produced document.
23.
This Protective Order may be modified by the Court at any time for good
cause shown following notice to all parties and an opportunity for them to be heard.
24.
Nothing in this Protective Order shall prevent any party or other person
from seeking modification of this order or from objecting to discovery that the party or
other person believes to be improper. Nothing in this Protective Order shall prejudice
the right of any party to contest the alleged relevancy, admissibility, or discoverability of
confidential documents or information sought.
25.
This Protective Order shall apply to discovery already produced by the
Plaintiff to the Defendant.
The Plaintiff may designate some of this material as
"Confidential" or "Eyes Only" pursuant to this Order.
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DATED at Denver, Colorado, on November 14, 2014.
BY THE COURT:
s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-CV-00801 REB-CBS
JENKINS, FREDRICK K.
Plaintiff(s),
v.
CATHOLIC HEALTH INITIATIVES
Defendant(s).
EXHIBIT A TO PROTECTIVE ORDER – CONFIDENTIALITY AGREEMENT
I, _____________________________________(please print), the undersigned,
being duly sworn, hereby acknowledge that I have read the Protective Order issued by
the Court in the above captioned civil action and I understand the terms and conditions
of such Protective Order governing the restricted use of information and materials
obtained from the Parties and provided to me for the sole purposes of the above
captioned action, and hereby agree to keep all such information and materials strictly
and absolutely confidential, and in all other respects to be bound by the terms of the
Protective Order.
My current address and telephone number is:
________________________________
Signature
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STATE of
)
)ss.
COUNTY of
)
The foregoing Confidentiality Agreement was sworn and acknowledged to before
me by _________________________ on this ______ day of _____________________,
201_____.
Witness my hand and official seal.
[S E A L]
Notary Public
My commission expires: _________________________
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