Johnson v. Sears, Roebuck and Co.
Filing
42
Stipulated PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 11/06/2014. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 14-cv-01119-MEH
KARRAH JOHNSON,
Plaintiff,
v.
SEARS, ROEBUCK AND CO., a New York
Corporation conducting business in Colorado
Defendant.
STIPULATED PROTECTIVE ORDER
This matter comes before the Court on Defendant’s Unopposed Motion for Entry of
Protective Order. The Court has reviewed the Motion. Pursuant to Federal Rule of Civil
Procedure 26(c) and Federal Rule of Evidence 502(d), (e), the parties have shown good cause in
support of the entry of a protective order to protect the discovery and dissemination of
confidential information. Therefore, IT IS ORDERED:
1.
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 Colorado Rules of Civil Procedure.
2.
As used in this Protective Order, “document” is defined as provided in Fed. R.
Civ. P. 34(a), and specifically includes electronically-stored information and other data
compilations. A draft or non-identical copy is a separate document within the meaning of this
term.
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3.
Information designated “CONFIDENTIAL” by any party shall be information
that implicates common law and statutory privacy and/or confidentiality interests such as:
(a) personnel and payroll records of current or former employees of Defendant Sears, Roebuck
and Co. (“Sears”); (b) Sears’s trade secrets and commercial, financial, or insurance information;
(c) non-public studies or analyses by internal or outside experts or consultants (excluding
testifying experts in this case); (d) Plaintiff’s tax returns and other financial information; and, (f)
any other material qualifying for protection under Fed. R. Civ. P. 26(c). CONFIDENTIAL
information shall not be disclosed or used for any purpose except for the preparation and trial of
this case and furthermore is subject to disclosure only under the terms of this Protective Order.
4.
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.
The Court, persons employed by the Court and stenographers transcribing
the testimony or argument at a hearing, trial or deposition in this action or any appeal
therefrom (“Court Personnel”);
b.
Any named party, outside counsel to such parties whether or not they have
entered appearances in this action, in-house counsel for corporate parties, and legal,
clerical, paralegal and secretarial staff employed or retained by outside or in-house
counsel, including outside copying services;
c.
Experts or consultants retained by counsel in connection with this action;
d.
Deposition witnesses questioned by outside counsel of record for a party
in connection with this action, but only to the extent necessary to assist such counsel in
the prosecution or defense of this action, and provided that (i) such witness agrees to be
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bound by the terms of this Order, or (ii) if such witness refuses and such refusal is noted
on the deposition record, counsel provides the witness with a copy of this Order, informs
the witness and the witness acknowledges that the information to be communicated is
Confidential, subject to the Confidentiality Order in this case, may be used only in
connection with that deposition and may not be communicated to any other person, that
the witness is subject to the Confidentiality Order and that any misuse of the Confidential
Discovery Material will violate the Court’s Order and will be punishable as contempt of
Court.
e.
Stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action;
f.
Any individual identified by a party as a person with knowledge under
Rule 26, but only to the extent necessary to assist counsel in the prosecution or defense of
this action, and provided that such author or recipient agrees to be bound by the terms of
this Order; and,
g.
5.
Other persons by written agreement of the parties.
Prior to disclosing any CONFIDENTIAL information to any person listed above
(other than counsel, persons employed by counsel, Court Personnel, deponents, and stenographic
reporters), counsel shall provide such person with a copy of this Protective Order, explain the
person’s obligations under the Protective Order, and obtain the person’s agreement to comply
with the Protective Order.
6.
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” on every page containing Confidential information. With the exception of
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depositions, which are discussed below in Paragraph 8, information, documents, and/or other
materials unintentionally produced without a “CONFIDENTIAL” designation or produced
before the Stipulated Protective Order is issued, may be retroactively designated in the same
manner.
7.
Before any information is designated “CONFIDENTIAL,” counsel of record for
the designating party must first review the information and make a determination, in good faith,
that the documents, information, and/or other materials are confidential and entitled to protection
pursuant to Paragraph 3 of this Stipulated Protective Order, or otherwise entitled to protection
under Fed. R. Civ. P. 26(c). Whenever a deposition involves the disclosure of CONFIDENTIAL
information, the deposition or portions thereof shall be designated as CONFIDENTIAL or 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.
8.
In the case of deposition or other pretrial testimony, by a statement on the record
by counsel, at the time the testimony to be protected is given, that said testimony is
“Confidential.” Such testimony may also be designated by written notice from counsel for the
Designating Party to the court reporter and counsel of record for all other parties, specifying by
page and line number the material to be classified and the classification assigned. To be
effective, such notice must be sent within thirty (30) days of the date on which the Designating
Parting receives a copy of the transcript. In either event, counsel shall direct the court reporter
and/or counsel to affix the appropriate confidentiality stamp to any portion of the original
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transcript, and to that portion of all copies of the transcript, and those portions of the transcript so
designated shall be deemed Confidential Discovery Material.
9.
A party may object to the designation of particular CONFIDENTIAL information
by giving written notice to the party designating the disputed information within twenty (20)
calendar days of production of the 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
challenging the information as CONFIDENTIAL to file an appropriate motion or otherwise to
advise the Court that the dispute cannot be resolved by agreement of the parties, within thirty
(30) days after the time the notice is received, 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 or if the challenging party otherwise advises the Court that the dispute cannot be
resolved by agreement of the parties, the disputed information shall be treated as
CONFIDENTIAL under the terms of this Protective Order until the Court rules on the motion or
resolves the dispute. If the challenging party fails to file such a motion or advise the Court of the
dispute within the prescribed time, the disputed information shall maintain its designation as
CONFIDENTIAL and shall be treated as CONFIDENTIAL in accordance with this Protective
Order.
10.
When
filing
any
documents
that
contain
information
designated
CONFIDENTIAL, the party filing such documents must move the Court to restrict public access
to the documents, and follow all procedures for restricting access to such Confidential Discovery
Material at a Level 1 restriction level pursuant to D.C.COLO.LCivR 7.2. If the filing party does
not intend to file the document under seal, the filing party shall confer with all parties’ counsel
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concerning the filing of documents designated CONFIDENTIAL at least two (2) days before
filing such documents.
11.
In the event additional parties join or are joined in this action, or additional or
different counsel enter an appearance, they shall also be subject to the terms of this Protective
Order.
12.
The Court orders protection of privileged documents against claims of waiver
(including as against third parties and in other federal, state, or administrative proceedings),
pursuant to Federal Rule of Evidence 502(d), (e) as follows:
a.
“Discovery Material” means all documents, depositions, deposition
exhibits, responses to any discovery requests, responses to subpoenas duces tecum,
inspections, examinations of premises, examinations of facilities, physical evidence,
electronically stored information (including metadata), witness interviews, and any other
information produced, or otherwise given or exchanged by and among the parties and
non-parties to this action.
b.
“Producing Party” means any party or non-party to this action producing
Discovery Material.
c.
“Receiving Party” means the party receiving the Discovery Material.
d.
The disclosure or production of Discovery Material by a Producing Party
subject to a legally recognized claim of privilege to a Receiving Party shall in no way
constitute the voluntary disclosure of the Discovery Material.
e.
The inadvertent disclosure or production of any Discovery Material in this
action shall not result in the waiver of any privilege, evidentiary protection or other
protection associated with the materials. The inadvertent disclosure or production of any
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Discovery Material also shall not result in any waiver, including subject matter waiver, of
any kind.
f.
If, during the course of this litigation, a Producing Party determines that it
has produced privileged Discovery Material, pursuant to Federal Rule of Evidence
502(d), (e):
i.
The Producing Party may notify the Receiving Party of the
inadvertent production and request the return of privileged documents. The notice
shall be in writing; however, it may be delivered orally on the record at a
deposition, and promptly followed up in writing. The Producing Party’s written
notice will contain a log identifying the Discovery Material inadvertently
produced, the privilege claimed, and the basis for the assertion of the privilege. In
the event that any portion of the Discovery Material does not contain privileged
information, the Producing Party shall also provide to the Receiving Party a
redacted copy of the document that omits the information that the Producing party
believes is subject to a claim of privilege.
ii.
The Receiving Party must, within ten (10) days of receiving the
Producing Party’s written notification described above, return, sequester, or
destroy the Discovery Material and any copies, along with any notes, abstracts or
compilations of the content of the privileged Discovery Material. To the extent
that Discovery Material has been loaded into a litigation review database under
the control of the Receiving Party, the Receiving Party shall have all electronic
copies of the Protected Document extracted from the database. Where privileged
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Discovery Material cannot be destroyed or separated, it shall not be reviewed,
disclosed, or otherwise used by the Receiving Party.
g.
To the extent that the information contained in Discovery Material has
already been used in or described in other documents generated or maintained by the
Receiving Party prior to the date of receipt of written notice as set forth in paragraphs (i)
and (ii) above, the Receiving Party shall sequester the documents until the claim has been
resolved. If the Receiving Party disclosed the Discovery Material subject to a claim of
privilege before being notified of its inadvertent production, it must take reasonable steps
to retrieve it.
h.
The Receiving party’s return, sequestering or destruction of privileged
Discovery Material as provided for in this Order will not act as a waiver of the Receiving
Party’s right to move for the production of the returned, sequestered or destroyed
documents on the grounds that the documents are not, in fact, subject to a viable claim of
privilege. However, the Receiving Party is prohibited and estopped from arguing that:
i.
The disclosure or production of the Discovery Material acts as a
waiver of an applicable privilege or evidentiary protection;
ii.
The disclosure of the Discovery Material was not inadvertent;
iii.
The Producing Party did not take reasonable steps to prevent the
disclosure of the Discovery Material; or
iv.
The Producing Party failed to take reasonable or timely steps to
rectify the error.
i.
Upon a determination by the Court that the Discovery Material is
protected by the applicable privilege, and if the Discovery Material has been sequestered
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rather than returned or destroyed by the Receiving Party, the Discovery Material shall be
returned or destroyed within ten (10) days of the Court’s order (except Discovery
Material stored on back-up tapes or other archival media, which shall remain subject to
the terms of this Order). The Court may also order the identification by the Receiving
Party of privileged Discovery Material by search terms or other means.
j.
Nothing contained in this Order shall limit a party’s right to conduct a
review of documents, data (including electronically stored information) and other
information, including without limitation, metadata, for relevance, responsiveness and/or
segregation of privileged and/or protected information before that information is
produced to another party.
13.
The provisions of this Protective Order shall continue to be binding during this
Court’s jurisdiction over this action. If the counsel have provided any person listed in Paragraph
4, above (other than counsel, persons employed by counsel, Court Personnel, and stenographic
reporters) with any CONFIDENTIAL information, such counsel will ensure those individuals
have returned that CONFIDENTIAL information to counsel within sixty (60) days after the
parties receive notice of the entry of an order, judgment or decree finally disposing of all
litigation in which CONFIDENTIAL information was disclosed.
14.
This stipulation shall be binding on the parties prior to its entry as an Order.
Should the Court not enter this stipulation as an Order, it shall remain binding upon the parties
until such time as the Court enters a different protective order providing substantially similar
protections to those contained in this stipulation. Once entered, this Order shall remain in effect
during this Court’s jurisdiction over this action, unless and until the Court enters an Order to the
contrary.
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15.
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.
ORDERED this 6th day of November, 2014.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
APPROVED:
/s Karen Larson__________________
Karen Larson
900 Logan Street
Denver, CO 80203
Telephone: (303) 831-4404
Facsimile: 303-2618109
Email: kvirginia@aol.com
/s Erin A. Webber______________________
Erin A. Webber
Alyson A. Smith
LITTLER MENDELSON, P.C.
1900 Sixteenth Street, Suite 800
Denver, CO 80202.5835
Telephone: 303.629.6200
Facsimile: 303.629.0200
E-mail: ewebber@littler.com
aasmith@littler.com
ATTORNEY FOR PLAINTIFF
ATTORNEYS FOR DEFENDANT
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