DJS One, Inc. v. Federal Deposit Insurance Corporation

Filing 31

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 8/21/14. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00980-REB -KMT

DJS ONE, INC., a Colorado corporation
Plaintiff
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, as
receiver for COMMUNITY BANKS OF COLORADO
Defendant.

STIPULATED PROTECTIVE ORDER

1.

It is hereby ordered that any disclosure of documents and information, including

nonpublic private financial information, confidential and private financial documents, records,
and information which the Federal Deposit Insurance Corporation as Receiver for Community
Banks of Colorado is mandated to protect pursuant to constitutional, federal, state, statutory,
and/or case law (including, but not limited to: account numbers, loan files, applications, personal
income and financials, social security numbers, and loan payment history, etc.) shall be made
pursuant to the provisions set forth in this protective order (“Protective Order”).
2.

This Protective Order shall apply to all documents, materials, and information,

including without limitation, documents produced, answers to interrogatories, responses to
requests for admission, deposition testimony, and other information disclosed pursuant to the
disclosure or discovery duties created by the Federal Rules of Civil Procedure.

3.

As used in this Protective Order, “document” is defined as provided in

Fed.R.Civ.P. 34(a). A draft or non-identical copy is a separate document within the meaning of
this term.
4.

Information designated "CONFIDENTIAL" shall be information that is

confidential and implicates common law and statutory privacy interests of current or former
customers, accountholders, borrowers, or others associated with Community Banks of Colorado
as described in Paragraph 1.
5.

CONFIDENTIAL information shall not be disclosed or used for any purpose

except the preparation and trial of this case.
6.

CONFIDENTIAL documents, materials, and/or information (collectively

“CONFIDENTIAL information”) shall not, without the consent of the party producing it or
further Order of the Court, be disclosed except that such information may be disclosed to:
(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, at
trial, or at other proceedings in this case;
(c) the parties, including 4 designated representatives for the entity defendant;

(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;

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(g) deponents, witnesses, or potential witnesses; and

(h) other persons by written agreement of the parties.

7.

Prior to disclosing any CONFIDENTIAL information to any person listed 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 obtain from such
person a written acknowledgment stating that he or she has read this Protective Order and agrees
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
opposing counsel.
8.

Documents are designated as CONFIDENTIAL by placing or affixing on them

(in a manner that will not interfere with their legibility) the following or other appropriate notice:
“CONFIDENTIAL.”
9.

Documents may be designated as CONFIDENTIAL only when reviewed by an

attorney for the party making the designation who, based upon a good faith belief, certifies that
information contained therein is confidential or otherwise entitled to protection.
10.

Whenever a deposition involves the disclosure of CONFIDENTIAL information,

the deposition or portions thereof shall be designated as CONFIDENTIAL and shall be subject to
the provisions of 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 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.

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11.

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 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.
12.

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.
13.

By entering into this Protective Order, the Court does not intend to create any

presumption with regard to the actual confidentiality of any such material, or to alter the normal
burden of proof necessary for obtaining a Protective Order from the Court with respect to
particular documents. Any dispute among the parties as to the confidentiality of any specific
material shall be resolved pursuant to Paragraph 14 of this Protective Order.
14.

If any party in this case believes any designated material produced in discovery

does not contain confidential and private financial documents, records and information, it may

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contest the application of this Protective Order to such material by notifying the attorneys for the
producing party and other parties, identifying the material, and filing a motion with the Court,
under seal, or the release of the materials from coverage under this Protective Order. As to any
produced material for which such a motion is not made or the requested relief is not granted,
such material shall remain within the scope of the Protective Order. The producing party
claiming confidential and protected status shall have the burden of establishing the same with
respect to any documents produced or created, but all parties to the Protective Order agree to be
bound by this Protective Order pending resolution of the document status if such a document
status is challenged.
15.

Nothing in this Protective Order shall prevent a party from using Confidential

information protected by this Protective Order during mediation, arbitration, deposition, trial or
any other proceeding in this civil action. All materials filed, lodged or entered into evidence
with the Court which contain or make reference to Confidential information, and any pleading or
memorandum purporting to reproduce, attach or paraphrase such Confidential information, shall
be filed with the Court under restriction pursuant to procedures outlined in D.C.Colo.LCivR 7.2.
The parties to this Protective Order are aware that D.C.Colo.LCivR 7.2(c) requires a Motion to
Restrict to be filed whenever a party seeks to file documents under restriction and that
“stipulations between the parties or stipulated protective orders with regard to discovery, alone,
are insufficient to justify restriction.” D.C.Colo.LCivR 7.2(c) (2) (2014).
16.

Should the parties need to use Confidential Information during mediation,

arbitration, deposition, trial, or any other proceeding in this civil action for which electronic
filing subject to D.C.Colo.L.CivR 7.2 is unavailable, all materials filed, lodged or entered into
evidence which contain or make reference to Confidential information, and any pleading or

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memorandum purporting to reproduce, attach or paraphrase such protected materials, shall be
filed and placed in sealed envelopes or other appropriate containers on which shall be endorsed
the caption of the case, the label “CONFIDENTIAL INFORMATION” or similar wording in a
statement substantially in the following form:
In this envelope contains documents and information designated as
CONFIDENTIAL and shall not be opened, nor the contents thereof displayed
or revealed, except in the manner as provided by the Protective Order entered
by this The United States District Court for the District of Colorado in Civil
Action No. 14-cv-00980-REB-KMT..

17.

At the conclusion of this case, unless other arrangements are agreed upon, each

document and all copies thereof which have been designated as CONFIDENTIAL shall be
returned to the party that designated it CONFIDENTIAL, or the parties may elect to destroy
CONFIDENTIAL documents. Where the parties agree to destroy CONFIDENTIAL documents,
the destroying party shall provide all parties with an affidavit confirming the destruction.

DATED this 21st day of August, 2014.

Kathleen M. Tafoya
United States Magistrate

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