Blanchette et al v. Laundy et al
STIPULATION AND PROTECTIVE ORDER by Judge Richard P. Matsch on 9/2/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01124-RPM
JOHN LAUNDY, and
CITY OF STEAMBOAT SPRINGS, COLORADO,
STIPULATION AND PROTECTIVE ORDER
Each party and each Counsel of Record stipulate and move the Court for a Protective
Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment of
Confidential and Confidential – For Attorney’s Eyes Only Information (as hereinafter defined)
and, as grounds therefore, state as follows:
1. In this action, at least one of the Parties will produce or has sought and/or may seek
Confidential and/or Confidential – For Attorney’s Eyes Only Information (as defined in
paragraph 2 below). The Parties also anticipate seeking additional Confidential or Confidential –
For Attorney’s Eyes Only Information during discovery and that there will be questioning
concerning Confidential or Confidential – For Attorney’s Eyes Only Information in the course
of depositions. The Parties assert the disclosure of such information outside the scope of this
litigation could result in significant injury to one or more of the Parties’ business, security,
safety, or privacy interests. The Parties have entered into this Stipulation and request the Court
enter the within Protective Order for the purpose of preventing the disclosure and use of
Confidential and/or Confidential – For Attorney’s Eyes Only Information except as set forth
“Confidential Information” and “Confidential – For Attorney’s Eyes Only” means
any document, file, portions of files, transcribed testimony, or response to a discovery request,
including any extract, abstract, chart, summary, note, or copy made therefrom, which contains
information that a party believes is confidential and implicates common law and statutory
privacy interests of the individuals who are named and which are not made available to the
public, as to which a reasonable expectation of privacy or confidentiality exists.
Information designated as Confidential or Confidential – For Attorney’s Eyes
Only must first be reviewed by the attorney for the designating party, who must have a good
faith belief that the information is confidential or otherwise entitled to protection under Fed. R.
Civ. P. 26(c). Gillard v. Boulder Valley Sch Dist., 196 F.R.D. 382, 386 (D. Colo. 2000).
Where Confidential or Confidential – For Attorney’s Eyes Only Information is
produced, provided, or otherwise disclosed by the Parties in response to any discovery request, it
will be designated in the following manners:
By imprinting the word “Confidential” or “Confidential – For Attorney’s
Eyes Only” on the first page or cover of any document produced;
By imprinting the word “Confidential” or “Confidential – For Attorney’s
Eyes Only” next to or above any response to a discovery request;
With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” or “Confidential – For Attorney’s
Eyes Only” no later than thirty (30) calendar days after receipt of the transcribed testimony; and
With respect to live testimony, by making a record at the time of the
5. Confidential Information is subject to the following restrictions.
a. It shall be used only for the purpose of this litigation and not for any business or
other purpose whatsoever;
b. It shall not be communicated or disclosed by any Party’s counsel or a Party in any
manner, either directly or indirectly, to anyone except for purposes of this case and unless an
affidavit in the form of Exhibit A has been signed.
6. All Confidential – For Attorney’s Eyes Only Information which is provided in
response to a discovery request or transcribed testimony shall be subject to the following
It shall be used only for the purpose of this litigation and not for any business or
other purpose whatsoever;
b. It shall not be communicated or disclosed by any Party’s counsel to their client, or
used in this case if and until the steps set forth in paragraph 12 have been
7. Individuals authorized to review Confidential Information pursuant to this Protective
Order including, but not limited to, the Parties to this action, their undersigned counsel, and selfinsurance representatives, shall hold Confidential Information in confidence and shall not
divulge the Confidential Information, either verbally or in writing, to any other person, entity, or
government agency unless authorized to do so by court order. The Parties recognize that the
available sanctions for the violation of the protective order include, but are not limited to, the
sanctions available under Fed.R.Civ.P. 37(b)(2)(A).
8. The Party’s counsel who discloses Confidential Information shall be responsible for
assuring compliance with the terms of this Protective Order with respect to persons to whom
such information is disclosed and shall obtain and retain the original affidavits signed by
qualified recipients on Confidential Information, and shall maintain a list of all persons to whom
any Confidential Information is disclosed.
9. By producing any Confidential Information or testifying on any matter later
designated as “Confidential,” no Party to this protective order waives any objection or challenge
to the admissibility of any such Confidential Information.
Each party shall be responsible for assuring compliance with the terms of this
Protective Order with respect to persons to whom such Confidential Information is disclosed and
shall obtain and retain the original affidavits signed by qualified recipients on Confidential
Information, and shall maintain a list of all persons to whom any Confidential Information is
Upon a showing of substantial need, each party has the right to seek court
intervention, including in camera review, to determine whether the terms of the Protective Order
are being complied with.
During pendency of this action, opposing counsel may upon Court order or
agreement of the Parties inspect the list maintained by counsel pursuant to paragraph 6 above
upon showing of substantial need in order to establish the source of an unauthorized disclosure
of Confidential Information and that opposing counsel are unable to otherwise identify the
source of the disclosure. If counsel disagrees with opposing counsel’s showing of substantial
need, counsel may then seek a court order requiring inspection under terms and conditions
deemed appropriate by the Court.
No copies of Confidential Information shall be made except by or on behalf of
counsel in this litigation for work product purposes, including for review by experts in this case.
Any such copies shall be made and used solely for purposes of this litigation. Any such copies
shall be made and used solely for purposes of this litigation, and subject to all restrictions herein.
Nothing herein shall be construed as precluding the provision of actual copies of designated
documents provided the provisions of paragraph 5 are followed.
A party may object to the designation of particular information as Confidential by
giving written notice to the party designating the disputed information at any time. 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 designating party 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.
If after review of information designated as Confidential – For Attorney’s Eyes
Only, counsel requests that a certain document or documents be produced as “Confidential,”
counsel must confer with opposing counsel and attempt to reach an agreement. If the parties
cannot resolve the objection within ten (10) business days after the time of conferral, it shall be
the obligation of the designating party to file a motion with the Court seeking an in camera
review of the disputed documents and requesting that the Court make a determination as to the
discoverability of the disputed documents. Said motion shall be filed as “restricted” pursuant to
the terms of D.C.COLO.LCivR 7.2. After inspection, should the Court determine that some or all
of the submitted documents are discoverable, the designating party will label those documents as
“Confidential” and they shall be subject to all terms of this Protective Order pertaining to
In the event it is necessary for the Parties to file Confidential Information with the
Court in connection with any proceeding or motion, the filing party shall ascertain whether the
Confidential Information should be filed as a restricted document under D.C.COLO.LCivR 7.2.
The parties agree to confer in advance of submitting Confidential Information to the Court in
order to resolve any disputes over whether access should be restricted and to provide a
nonmoving party the opportunity to file a motion under D.C.COLO.LCivR 7.2. If the Parties
agree access should be restricted, the Confidential Information shall be filed in accordance with
D.C.COLO.LCivR 7.2. The fact that this protective order has been entered into by any party
shall not in any way preclude a party from opposing a motion to restrict public access to
The termination of this action shall not relieve counsel or other persons obligated
hereunder from their responsibility to maintain the confidentiality of Confidential and/or
Confidential – For Attorney’s Eyes Only Information pursuant to this Protective Order, and the
Court shall retain continuing jurisdiction to enforce the terms of this Protective Order, even after
this action is terminated.
By agreeing to the entry of this Protective Order, the Parties adopt no position as
to the authenticity or admissibility of documents produced subject to it. Neither the taking of any
action in accordance with the provisions of this Protective Order, nor the failure to object thereto,
shall be construed as a waiver of any claim or defense in this action.
Upon termination of this litigation, including any appeals, each Party’s counsel
shall immediately return to the producing party or destroy all Confidential and/or Confidential –
For Attorney’s Eyes Only Information provided subject to this Protective Order.
Nothing in this Protective Order shall preclude any Party from filing a motion
seeking further or different protection from the Court pursuant to Fed.R.Civ.P. 26(c), or from
filing a motion with respect to the manner in which Confidential and/or Confidential – For
Attorney’s Eyes Only Information shall be treated at trial.
18. The parties agree that in the event information or documentation is inadvertently
disclosed to an opposing party, any information or documentation so disclosed shall be
immediately returned to the producing party without any copies being made or notes being taken
regarding said information/documentation by those who have received the inadvertent
disclosure. Further, the parties agree that no recipient of inadvertently disclosed information or
documentation shall utilize such information/documentation or any fruits derived therefrom for
the purposes of this litigation and that the inadvertent disclosure of information or documentation
shall not constitute a waiver of any privilege that may otherwise apply.
DATED this 2nd day of September, 2014.
BY THE COURT:
s/Richard P. Matsch
Richard P. Matsch
United States District Court Judge
STIPULATED AND AGREED TO:
OLIPHANT & BURSEK, LLC
SENTER GOLDFARB & RICE, L.L.C.
s/ Grant Bursek
PO Box 774343
Steamboat Springs, Colorado 80477
Telephone: (970) 870-1900
FAX: (970) 870-9800
s/ Eric M. Ziporin
Eric M. Ziporin
Jennifer F. Kemp
1700 Broadway, Suite 1700
Denver, Colorado 80290
Telephone: (303) 320-0509
Facsimile: (303) 320-0210
On behalf of Plaintiff
On behalf of Defendant City of Steamboat
s/ Josh A. Marks
Josh A. Marks
Burg Hill Greenleaf &Ruscitti, LLP
1712 Pearl St.
Boulder, CO 80302
Ph: (303) 402-1600
Fax: (303) 402-1601
Attorney for Defendant John Laundy
STATE OF COLORADO
_____________________________, swears or affirms and states under penalty of
I have read the Protective Order in ___________________________, a copy of
which is attached to this Affidavit.
I have been informed by ___________________________, Esq., counsel for
_______________________________, that the materials described in the list attached to this
Affidavit are Confidential Information as defined in the Protective Order.
I promise that I have not and will not divulge or undertake to divulge to any
person or recording device any Confidential Information shown or told to me except as
authorized in the Protective Order. I will not use the Confidential Information for any purpose
other than this litigation.
For the purpose of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
I will abide by the terms of the Protective Order.
(Print or Type Name)
Telephone No.: (_____) _____________________
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