Sunrise Medical (US) LLC v. KI Mobility, LLC et al

Filing 24

STIPULATED PROTECTIVE ORDER by Judge R. Brooke Jackson on 7/23/14. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-01249-RBJ
SUNRISE MEDICAL (US) LLC,
Plaintiff,
v.
KI MOBILITY, LLC, and
KI MOBILITY EXPORTS, INC.
Defendants.
______________________________________________________________________
STIPULATED PROTECTIVE ORDER
______________________________________________________________________
Plaintiff Sunrise Medical (US) LLC (“Sunrise Medical”) and Defendants Ki
Mobility, LLC and Ki Mobility Exports, Inc. (collectively, “Ki Mobility”), through counsel,
hereby 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 Information
(as hereinafter defined), and, in support thereof, state as follows:
1.

Purposes and Limitations.
By entering this Protective Order, the Court is not ordering that any confidential

and/or proprietary information that is sought by any party in their requests for production
and inspection is, or is not, subject to the disclosure and discovery process. Further,
this Protective Order does not preclude any of the parties from seeking further
protection from the Court before producing confidential and/or proprietary information

that any party believes may not be adequately protected by the provisions of this
Protective Order, or from seeking leave to refuse production of such information.
2.

Definitions.
As used in the Protective Order, these terms have the following meanings:
a.
b.

“Confidential” documents are documents designated under Paragraph 2;

c.

“Confidential—Attorneys’ Eyes Only” documents are the subset of
Confidential documents designated under Paragraph 3;

d.

“Protected Information” means documents and information designated
as “Confidential” or “Confidential—Attorneys’ Eyes Only”;

e.

“Documents” includes all materials within the scope of Fed. R. Civ. P.
34;

f.

“Information” includes all materials within the scope of documents,
exhibits, evidence or things used at trial, depositions or other proceedings;
any testimony, whether given at trial or a deposition; and any other means
of presenting, producing or revealing information;

g.

“Outside Vendors” means messenger, copy, coding, and other clerical
services vendors not employed by a party or its Attorneys; and

h.

3.

“Attorneys of Record” means outside counsel of record in this litigation;

“Written Assurance” means an executed document in the form attached
as Exhibit A.

“Confidential” Documents and Information.
When a party in good faith contends that any Document, portion of Document, or

Information (including testimony, interrogatory responses, other discovery responses, or
transcripts) constitutes or contains Information that is not publicly available, that party
may designate such Document or Information as “Confidential.”
Confidential Documents or Information shall be limited to:

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Access to any

a.

the Court and its officers;

b.

the Attorneys of Record for the parties and their office associates, legal
assistants, stenographic and clerical employees, and their Outside
Vendors whose functions require access to Information in that Confidential
Document;

c.

persons shown on the face of the Document to have authored or received
it or, in the case of a deposition or trial testimony transcript, the person
shown on the face to have given the testimony recorded therein;

d.

court reporters and their staff retained to transcribe testimony;

e.

no more than three officers, employees, in-house counsel, or independent
contractors of the receiving party, provided that (i) access by such persons
is reasonably necessary to prosecute or defend this action, and (ii) each
such person executes the Written Assurance in the form attached hereto
as Exhibit A (to be retained by the Attorneys of Record for the receiving
party during the pendency of this action) before receiving access to any
Confidential Information;

f.

subject to Paragraph 7 below, outside independent persons (i.e., persons
not currently or formerly employed by, consulting with, or otherwise
associated with any party) who are retained for purposes of this litigation
by a party or its attorneys to furnish electronic discovery, technical or
expert services or to provide assistance as jury/trial consultants, mock
jurors or focus group members, and/or to give testimony in this action
(including support personnel for such outside independent persons who
assist with or conduct substantive review and analysis of Protected
Information), but specifically excluding those persons who have or will in
the future prepare and prosecute patents for a party relating to the subject
matter of this litigation; and

g.

subject to Paragraph 7 below, and during any deposition, hearing, or trial,
persons who give testimony in this action.

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4.

“Confidential—Attorneys’ Eyes Only” Documents and Information.
The parties shall have the right to further designate Documents, portions of

Documents, or Information (including testimony, interrogatory responses, other
discovery responses, or transcripts) as “Confidential—Attorneys’ Eyes Only,” when a
party in good faith contends that such Documents or Information constitute or contain
Information for which, under the standard set out in U.S. Steel Corp. v. United States,
730 F.2d 1465 (Fed. Cir. 1984) and its progeny, nondisclosure to certain individuals
identified in Paragraph 3 is justified. This category includes Information not publicly
available from which the receiving party could gain advantage (economic or otherwise)
if disclosed.

Access to any “Confidential—Attorneys’ Eyes Only” Documents or

Information shall be limited to persons designated in Paragraphs 2(a), (b), (c), (d), (f),
and (g). If a party is required to serve a Document containing “Confidential—Attorneys’
Eyes Only” Information, including but not limited to answers to interrogatories, the party
may serve and file that Information in a separate Document or with the relevant pages
conspicuously marked.
5.

Third Parties.
Third parties producing Documents or providing testimony in the course of this

action may also designate Documents or Information as “Confidential” or “Confidential—
Attorneys’ Eyes Only,” subject to the same protections and constraints as the parties to
the action. A copy of the Protective Order shall be served along with any subpoena
served in connection with this action. All Documents or Information produced by such
third parties shall be treated as “Confidential—Attorneys’ Eyes Only” for a period of 10

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business days from the date of their production, and during that period any party may
designate such Documents and Information pursuant to the terms of the Protective
Order.
6.

Use of Protected Information.
Protected Information shall be used only for purposes of prosecuting or

defending this action, including any appeals.
7.

Written Assurance.
Non-attorneys designated pursuant to Paragraph 3(e) and each person

appropriately designated pursuant to Paragraph 3(f) to receive Protected Information
shall execute a Written Assurance in the form attached as Exhibit A prior to receiving
any Protected Information except that with respect to any person appropriately
designated pursuant to Paragraph 3(f), a Written Assurance is not required (i) to furnish
electronic discovery services, (ii) to provide assistance as mock jurors or focus group
members, (iii) to give testimony in this action or (iv) for support personnel for such
outside independent persons who provide only stenographic or clerical services
(hereinafter referred to as “Clerical Support.” Counsel for the party or non-party that
has produced such Protected Information shall be notified at least 5 business days prior
to any intended disclosure of such Protected Information to any person designated
pursuant to Paragraphs 3(f); except that with respect to any person appropriately
designated pursuant to Paragraph 3(f) such prior notice is not required (i) to furnish
electronic discovery services, (ii) to provide assistance as jury/trial consultants, mock
jurors or focus group members, or (iii) for Clerical Support.

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When such notice to

counsel is required it shall provide a sufficient description of the person to whom
disclosure is sought to permit objection to said disclosure.

If a party or non-party

objects in writing to such disclosure within 5 business days after receipt of notice, no
disclosure of any such Protected Information shall be made until the party seeking
disclosure obtains the prior approval of the Court or the objecting party or non-party. In
such a case of objection to disclosure, the parties and any non-parties will confer and in
good faith attempt to reach agreement. If the requested disclosure is not ultimately
agreed to, the party seeking to disclose such Protected Information may move the Court
for appropriate relief, providing notice to any non-party whose designation of
Documents or Information as Protected Information may be affected. The party or nonparty objecting to the disclosure of such Protected Information to a person designated
pursuant to Paragraph 3(f) shall have the burden of proving that such Information
warrants protection from disclosure to said designated person.

Under such

circumstances, no disclosure will occur until the Court has resolved the dispute.
8.

Depositions.
All depositions or portions of depositions taken in this action and any Documents,

things, or exhibits used at those depositions may be designated as “Confidential” or
“Confidential—Attorneys’ Eyes Only” pursuant to the terms of this Protective Order.
Confidentiality designations for depositions shall be made either on the record or by
written notice to the other party within 20 calendar days of receipt of the transcript.
Unless otherwise agreed, depositions shall be treated as “Confidential Attorneys’ Eyes
Only” during the 20-calendar-day period following receipt of the transcript.

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Unless

otherwise agreed upon by the parties, any transcript, or the applicable portions thereof,
shall be marked “Confidential—Attorneys’ Eyes Only [or appropriate designation],
pursuant to Protective Order dated [date of this Protective Order].” If it is necessary to
submit them to the Court, all portions of the transcript and all exhibits designated as
“Confidential” or “Confidential—Attorneys’ Eyes Only” shall be filed under seal and kept
under seal until further Order of the Court.
9.

Inadvertent Failure to Identify.
Any party who inadvertently fails to identify Documents as “Confidential” or

“Confidential—Attorneys’ Eyes Only” shall have 10 business days from the discovery of
its oversight to correct its failure. Such failure shall be corrected by providing written
notice of the error and substituted copies of the inadvertently produced Documents.
Any party receiving such inadvertently unmarked Documents shall make reasonable
efforts to retrieve Documents distributed to persons not entitled to receive Documents
with the corrected designation.
10.

Inadvertent Production.
Nothing in this Protective Order shall require production of information which a

Party or any Non-Party contends is protected from disclosure by the attorney-client
privilege or the work product immunity. If information subject to a claim of attorneyclient privilege or work product immunity is nevertheless inadvertently produced, such
production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as
to, any claim of privilege or work product immunity for such information. If a Party has
inadvertently produced to the other Party information subject to claim of immunity or

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privilege, the other Party upon request shall promptly return, delete or destroy the
document (as well as any and all copies) for which a claim of inadvertent production is
made and shall certify to that effect. The Party returning such information may then
move the Court for an Order compelling production of such information (provided that
the challenging Party has otherwise complied with this Court’s procedures for resolving
discovery disputes), but the motion shall not assert as a ground for production the fact
or circumstances of the inadvertent production. In such a circumstance, the challenging
party may retain one copy of each document that is subject to the challenged claim of
privilege for the sole purpose of pursuing the challenge.
11.

Filing Protected Information.
Absent written permission from the Designating Party or a Court order secured

after appropriate notice to all interested persons, a Party may not file in the public
record in this action any Protected Information.

A Party seeking to file Protected

Information under seal with the Court must follow the procedures set forth in
D.C.COLO.LCivR 7.2. All restricted documents shall be served on the non-filing Party
outside of the CM/ECF system. Either Party may seek further protections from the
Court prior to disclosure of materials or information designated as “Confidential” or
“Confidential – Attorneys’ Eyes Only” at trial or a hearing.
12.

Resolution of Objections to Designations and Change in Designation.
Any party may request a change in the designation of any Information designated

“Confidential” or “Confidential—Attorneys’ Eyes Only.” Any such Document shall be
treated as designated until the change is completed. If the parties disagree as to the

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propriety of the designation, the parties will, within 5 calendar days of any request to
change a designation, confer and in good faith attempt to reach agreement. If the
requested change in designation is not ultimately agreed to, the party seeking the
change may move the Court for appropriate relief, providing notice to any third party
whose designation of produced Documents in the action may be affected. The party
asserting that the material is Confidential shall have the burden of proving that the
Information in question warrants the protection afforded to Documents by Fed. R. Civ.
P. 26(c).
13.

Destruction Upon Termination of Action.
Within 60 calendar days of the termination of this action, including any appeals,

each party shall either destroy or return to the opposing party all Documents designated
“Confidential” or “Confidential—Attorneys’ Eyes Only” and all copies of such
Documents, and shall destroy all extracts and data taken from such Documents. Each
party shall provide a certification as to such return or destruction as within the 60-day
period. Attorneys of Record in the litigation shall be entitled to retain, however, a set of
all Documents filed with the Court and all correspondence generated in connection with
this action, along with any work product generated in connection with this action.
14.

Modification.
Any party may apply to the Court for a modification of the Protective Order, and

nothing in the Protective Order shall be construed to prevent a party from seeking such
further provisions enhancing or limiting confidentiality as may be appropriate.

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15.

Privilege and Waiver.
No action taken in accordance with the Protective Order shall be construed as a

waiver of any claim or defense in the action or of any position as to discoverability or
admissibility of evidence. Nothing in this Protective Order is intended to affect any right
any party otherwise might have under the rules governing this proceeding or the
attorney-client or work-product privilege.
16.

Limits of Protective Order.
Nothing in this Protective Order shall restrict or prevent any party to this action

from disclosing or otherwise using:
a.

b.

any Information produced or disclosed in this action not subject to this
Protective Order and not designated as “Confidential” or “Confidential—
Attorneys’ Eyes Only,” or

c.

17.

its own Information, Documents, and exhibits which that party produces or
discloses in this action;

Information that a party already possessed or that it obtained by proper
means from other sources.

Continued Obligation Upon Termination of Action.
The obligations imposed by the Protective Order shall survive the termination of

this action. Within 60 calendar days following the expiration of the last period for appeal
from any order issued in connection with this action, the parties shall remove any
materials designated “Confidential” or “Confidential—Attorneys’ Eyes Only” from the
office of the Clerk of Court. Following that 60-day period, the Clerk of Court shall
destroy all such designated materials and all other materials filed under seal in
accordance with this Protective Order.

This Court shall retain jurisdiction over the

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subject matter over this Order and the parties herein for purposes of enforcing the
Order.
18.

No Admissions by the Parties.
Nothing contained in this Protective Order, nor any action taken in compliance with

it, shall operate as an admission by any party or third party that any particular
Information is or is not a confidential or trade secret matter within the contemplation of
the law, or prejudice in any way the right of any party or third party to seek a Court
determination of whether or not any particular materials should be disclosed or if
disclosed, whether or not they should be subject to the terms of this Order.
19.

Responsibility for Ensuring Compliance.
Counsel for a Party who receives Protected Information shall take reasonable

steps to ensure compliance with the terms of this Protective Order with respect to
persons to whom such Protected Information is disclosed as a result of Counsel’s
receipt of such information from the Disclosing Party. Counsel for the Receiving Party
shall obtain and retain the original Acknowledgements signed by qualified recipients of
Protected Information.

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STIPULATED AND AGREED BY THE PARTIES:

s/David J. Sheikh
David J. Sheikh
Niro, Haller & Niro
181 West Madison Street
Suite 4600
Chicago, IL 60602-4515
Phone: [phone]
Fax: [phone]
[e-mail]

s/Jared B. Briant
Jared B. Briant
Anne J. Lee
Faegre Baker Daniels LLP
3200 Wells Fargo Center
1700 Lincoln Street
Denver, CO 80203
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Counsel for Plaintiff Sunrise Medical (US)
LLC

Counsel for Defendants Ki Mobility,
LLC and Ki Mobility Exports, Inc.

ENTERED BY THE COURT this 23rd day of July, 2014.

_____________________________
R. Brooke Jackson
United States District Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT
TO BE BOUND BY PROTECTIVE ORDER
I, ________________________, currently office at ______________________,
in the city of ____________________, state of __________________. I am currently
employed by _____________________________________ and my current job title is
__________________________________________.
I have read in its entirety and understand the terms of the Stipulated Protective
Order dated ________________, entered in the Sunrise Medical (US) LLC v. Ki
Mobility, LLC and Ki Mobility Exports, Inc., Civil Action No. 14-cv-01249-MEH (D. Colo.).
I agree to comply with and to be bound by all the terms of this Stipulated Protective
Order and I understand and acknowledge that failure to so comply could expose me to
sanctions by the Court. I shall not use or disclose in any manner any Confidential
Information that is subject to this Stipulated Protective Order to any person or entity
except in strict compliance with the provisions of this Order. I understand that any
violation of the Protective Order may subject me to sanctions by the Court.
As soon as practical, but no later than 30 days after final termination of this
action, I shall return to the attorney from whom I have received them, any Protected
Information in my possession designated “Confidential” or “Confidential—Attorneys’
Eyes Only,” and all copies, excerpts, summaries, notes, digests, abstracts, and indices
relating to such Protected Information.
I submit myself to the jurisdiction of the United States District Court for the
District of Colorado for the purpose of enforcing the terms of this Stipulated Protective
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Order, even if such enforcement proceedings occur after termination of this action.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on: _______________
(Date)

_______________________________
(Signature)

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US.54498764.02