Forney Industries, Inc. v. Daco of Missouri, Inc.
Filing
30
STIPULATED PROTECTIVE ORDER. By Magistrate Judge Michael E. Hegarty on 11/10/2014. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE STATE OF COLORADO
Civil Action Number: 14-cv-01326-CMA-MEH
Forney Industries, Inc. a Colorado Corporation,
Plaintiff,
v.
Daco of Missouri, Inc. a Missouri Corporation d/b/a KDAR Company,
Defendant.
STIPULATED PROTECTIVE ORDER
1.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve
production of confidential, proprietary, or private information for which special
protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted. Accordingly, the parties stipulate to
and petition the court to enter the following Stipulated Protective Order. The parties
acknowledge that this Order does not confer blanket protections on all disclosures
or responses to discovery and that the protection it affords from public disclosure
and use extends only to the limited information or items that are entitled to
confidential treatment under the applicable legal principles. The parties further
acknowledge that this Stipulated Protective Order does not entitle them to file
confidential information under seal and that the Local Rules set forth the
procedures that must be followed and the standards that will be applied when a
party seeks permission from the court to file material under seal.
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2.
DEFINITIONS
2.1
Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
2.2
“CONFIDENTIAL” Information or Items: information (regardless of
how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c).
2.3
Counsel (without qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
2.4
Designating Party: a Party or Non-Party that designates information
or items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.5
Disclosure or Discovery Material: all items or information, regardless
of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in disclosures or responses to discovery in this matter.
2.6
Expert: a person with specialized knowledge or experience in a
matter pertinent to the litigation who has been retained by a Party or its counsel to
serve as an expert witness or as a consultant in this action.
2.7
House Counsel: attorneys who are employees of a party to this
action. House Counsel does not include Outside Counsel of Record or any other
outside counsel.
2.8
Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
2.9
Outside Counsel of Record: attorneys who are not employees of a
party to this action but are retained to represent or advise a party to this action and
have appeared in this action on behalf of that party or are affiliated with a law firm
which has appeared on behalf of that party.
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2.10
Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and
their support staffs).
2.11
Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12
Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.13
Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or “CONFIDENTIAL, ATTORNEYS EYES ONLY.”
2.14
Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
3.
SCOPE
The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the
following information: (a) any information that is in the public domain at the time of
disclosure to a Receiving Party or becomes part of the public domain after its
disclosure to a Receiving Party as a result of publication not involving a violation of
this Order, including becoming part of the public record through trial or otherwise;
and (b) any information known to the Receiving Party prior to the disclosure or
obtained by the Receiving Party after the disclosure from a source who obtained
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the information lawfully and under no obligation of confidentiality to the Designating
Party. Any use of Protected Material at trial shall be governed by a separate
agreement or order.
4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this action,
with or without prejudice; and (2) final judgment after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.
5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. An Outside Counsel of Record for the
Designating Party must review the material to be designated and determine in
Good Faith that the material is worthy of protection. The Designating Party must
designate for protection only those parts of material, documents, items, or oral or
written communications that qualify so that other portions of the material,
documents, items, or communications for which protection is not warranted are not
swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
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purpose (e.g., to unnecessarily encumber or retard the case development process
or to impose unnecessary expenses and burdens on other parties) expose the
Designating Party to sanctions. If it comes to a Designating Party’s attention that
information or items that it designated for protection do not qualify for protection,
the Designating Party must promptly notify all other Parties that it is withdrawing
the mistaken designation.
5.2
Manner and Timing of Designations. Except as otherwise provided in
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
under this Order must be clearly so designated before the material is disclosed or
produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
“ATTORNEYS EYES ONLY” to each page that contains protected material
depending on the class of confidential information. If only a portion or portions of
the material on a page qualifies for protection, the Producing Party also must
clearly identify the protected portion(s) (e.g., by making appropriate markings in the
margins). A Party or Non-Party that makes original documents or materials
available for inspection need not designate them for protection until after the
inspecting Party has indicated which material it would like copied and produced.
During the inspection and before the designation, all of the material made available
for inspection shall be deemed “CONFIDENTIAL,” OR “ATTOENEYS EYES
ONLY.” After the inspecting Party has identified the documents it wants copied
and produced, the Producing Party must determine which documents, or portions
thereof, qualify for protection under this Order. Then, before producing the
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specified documents, the Producing Party must affix the “CONFIDENTIAL” or
“ATTORNEYS EYES ONLY” legend to each page that contains Protected Material.
If only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial
proceedings, that the Designating Party identify on the record, before the close of
the deposition, hearing, or other proceeding, all protected testimony.
(c) for information produced in some form other than documentary and
for any other tangible items, that the Producing Party affix in a prominent place on
the exterior of the container or containers in which the information or item is stored
the legend “CONFIDENTIAL” or “ATTORNEYS EYES ONLY.” If only a portion or
portions of the information or item warrant protection, the Producing Party, to the
extent practicable, shall identify the protected portion(s).
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such
material. Upon timely correction of a designation, the Receiving Party must make
reasonable efforts to assure that the material is treated in accordance with the
provisions of this Order.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality at any time. Unless a prompt challenge to a
Designating Party’s confidentiality designation is necessary to avoid foreseeable,
substantial unfairness, unnecessary economic burdens, or a significant disruption
or delay of the litigation, a Party does not waive its right to challenge a
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confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2
Meet and Confer. The Challenging Party shall initiate the dispute
resolution process by providing written notice of each designation it is challenging
and describing the basis for each challenge. The written notice shall identify the
information to which the objection is made. To avoid ambiguity as to whether a
challenge has been made, the written notice must recite that the challenge to
confidentiality is being made in accordance with this specific paragraph of the
Protective Order. The parties shall attempt to resolve each challenge in good faith
and must begin the process by conferring directly (in voice to voice dialogue; other
forms of communication are not sufficient). In conferring, the Challenging Party
must explain the basis for its belief that the confidentiality designation was not
proper and must give the Designating Party an opportunity to review the
designated material, to reconsider the circumstances, and, if no change in
designation is offered, to explain the basis for the chosen designation.
6.3
Judicial Intervention. 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.
Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet and
confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party and not shift. Frivolous challenges, and those made for an
improper purpose (e.g., to harass or impose unnecessary expenses and burdens
on other parties) may expose the Challenging Party to sanctions. Unless the
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Designating Party has waived the confidentiality designation by failing to file a
timely motion to retain confidentiality as described above, all parties shall continue
to afford the material in question the level of protection to which it is entitled under
the Producing Party’s designation until the court rules on the challenge.
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that
is disclosed or produced by another Party or by a Non-Party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation. Such
Protected Material may be disclosed only to the categories of persons and under
the conditions described in this Order. When the litigation has been terminated, a
Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as
well as employees of Outside Counsel of Record and any representatives to whom
it is reasonably necessary to disclose the information for this litigation, including but
not limited to, claim representatives of any liability insurance company or
companies participating in the defense of a party to any claims or counterclaims
and;
(b) the officers, directors, and employees (including House Counsel) of
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the Receiving Party to whom disclosure is reasonably necessary for this litigation
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
A);
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel;
(e) court reporters and their staff, professional jury or trial consultants,
mock jurors, and Professional Vendors to whom disclosure is reasonably
necessary for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the court. Pages of transcribed deposition testimony or exhibits to
depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.3
Disclosure of “ATTORNEYS EYES ONLY” Information or Items.
Unless otherwise ordered by the court or permitted in writing by the Designating
Party, a Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as
well as employees of Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this litigation;
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(b) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) the court and its personnel;
(d) court reporters and their staff, professional jury or trial consultants,
mock jurors, and Professional Vendors to whom disclosure is reasonably
necessary for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);
(e) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the court. Pages of transcribed deposition testimony or exhibits to
depositions that reveal Protected Material must be separately bound by the court
reporter and may not be disclosed to anyone except as permitted under this
Stipulated Protective Order.
(f) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL or “ATTORNEYS EYES ONLY,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or
order to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall include
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a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served
with the subpoena or court order shall not produce any information designated in
this action as “CONFIDENTIAL” before a determination by the court from which the
subpoena or order issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material – and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this action
to disobey a lawful directive from another court.
9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a
Non-Party in this action and designated as “CONFIDENTIAL” or “ATTORNEYS
EYES ONLY.” Such information produced by Non-Parties in connection with this
litigation is protected by the remedies and relief provided by this Order. Nothing in
these provisions should be construed as prohibiting a Non-Party from seeking
additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality
agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this litigation, the relevant discovery request(s), and a
reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the
Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this
court within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive
to the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that
is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party
shall bear the burden and expense of seeking protection in this court of its
Protected Material.
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has
disclosed Protected Material to any person or in any circumstance not authorized
under this Stipulated Protective Order, the Receiving Party must immediately (a)
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
the person or persons to whom unauthorized disclosures were made of all the
terms of this Order, and (d) request such person or persons to execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
A.
11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection,
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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without
prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
as the parties reach an agreement on the effect of disclosure of a communication
or information covered by the attorney-client privilege or work product protection,
the parties may incorporate their agreement in the stipulated protective order
submitted to the court.
12.
MISCELLANEOUS
12.1
Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the court in the future.
12.2
Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.
12.3
Filing Protected Material. Without 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
Material. A Party that seeks to file under seal any Protected Material must comply
with the local rules. Protected Material may only be filed under seal pursuant to a
court order authorizing the sealing of the specific Protected Material at issue. A
sealing order will issue only upon a request establishing that the Protected Material
at issue is privileged, protectable as a trade secret, or otherwise entitled to
protection under the law.
13.
FINAL DISPOSITION
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Within 60 days after the final disposition of this action, as defined in
paragraph 4, each Receiving Party must return all Protected Material to the
Producing Party or destroy such material. As used in this subdivision, “all Protected
Material” includes all copies, abstracts, compilations, summaries, and any other
format reproducing or capturing any of the Protected Material. Whether the
Protected Material is returned or destroyed, the Receiving Party must submit a
written certification to the Producing Party (and, if not the same person or entity, to
the Designating Party) by the 60 day deadline that (1) identifies (by category,
where appropriate) all the Protected Material that was returned or destroyed and
(2) affirms that the Receiving Party has not retained any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any of the
Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if
such materials contain Protected Material. Any such archival copies that contain or
constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: November 7, 2014
/s/ Christopher R. Benson
Attorney for Plaintiff
DATED: November 7, 2014
/s/ Brendan O. Powers
Attorneys for Defendants
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED this 10th day of November, 2014, at Denver, Colorado.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE STATE OF COLORADO
Civil Action Number: 14-cv-01326-CMA-MEH
Forney Industries, Inc. a Colorado Corporation
Plaintiff
v.
Daco of Missouri, Inc. a Missouri Corporation d/b/a KDAR Company
Defendant
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ____________________________ [name], of
____________________________________________ [address], declare under
penalty of perjury that I have read in its entirety and understand the Stipulated
Protective Order. 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 and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item that
is subject to this Stipulated Protective Order to any person or entity except in strict
compliance with the provisions of this Order.
I further agree to submit 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 Order, even if such enforcement proceedings occur after termination of
this action.
Date: ______________________________________
Printed name: _______________________________
Signature: __________________________________
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