Purac America Incorporated v. Birko Corporation

Filing 38

PROTECTIVE ORDER by Judge R. Brooke Jackson on 10/20/14. (jdyne, )

UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 2014-cv-1669-RBJ-MJW
PURAC AMERICA INCORPORATED, an Illinois corporation.
Plaintiff,
v.
BIRKO CORPORATION, a Colorado corporation,
Defendant.
ORDER PROTECTING CONFIDENTIAL INFORMATION
Pursuant to Fed. R. Civ. P. 26(c), this Order shall govern the handling of Confidential
Discovery Material in this case.
RECITALS
A.

The parties may exchange through discovery in this case documents or

information that is confidential and concerns trade secrets, proprietary information, sensitive
third-party information, or other business or financial information that is not publicly available,
and, therefore, entitled to protection under Fed. R. Civ. P. 26(c)(1)(g).
B.

Nothing in this Order is intended, nor shall it be construed, as either a waiver of

any dispute as to whether, or an admission that, any documents or information are confidential
and concern trade secrets, proprietary information, sensitive third-party information, or other
business or financial information that is not publicly available. Likewise, nothing contained in
this Order is intended, nor shall it be construed, as a waiver of any legal privilege or work
product protection to which a party may be entitled.

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C.

Counsel for both parties have reviewed the Court’s Practice Standards and will

comply with them.
DEFINITIONS
For the purposes of this Order, the following definitions shall apply:
“Discovery Material” means all documents, depositions, deposition exhibits, responses
to any discovery requests (including responses to interrogatories, document requests and requests
for admissions), inspections, examinations of premises, facilities and physical evidence, witness
interviews, and any other information produced pursuant to the Federal Rules of Civil Procedure
or otherwise given or exchanged by or between the parties and/or persons or entities that are not
parties to this action.
“Confidential Discovery Material” means Discovery Material designated as
“Confidential” or “Attorneys’ Eyes Only” under the terms of this Order that is confidential and
concerns trade secrets, proprietary information, sensitive third-party information, or other
business or financial information that is not publicly available.
“Producing Party” means any party or non-party to this action producing Discovery
Material who wishes to designate or has designated Discovery Material as Confidential
Discovery Material.
TERMS
Confidential Discovery Material.
1.

Any Producing Party may designate any Discovery Material as “Confidential”

under the terms of this Order when, in the good faith judgment of the Producing Party, it
contains information that is confidential and concerns trade secrets, proprietary information,

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sensitive third-party information, or other business or financial information that is not publicly
available. Notwithstanding anything contained in this Order, the burden shall be and remain on
the Producing Party to demonstrate, when and if challenged, that any such designated Discovery
Material is confidential and concerns trade secrets, proprietary information, sensitive third-party
information, or other business or financial information that is not publicly available.
2.

Any Producing Party may designate any Discovery Material as “Attorneys’ Eyes

Only” under the terms of this Order when, in the good faith judgment of the Producing Party, it
contains particularly sensitive, non-public, and confidential information that the Producing Party
believes in good faith cannot be disclosed without threat of competitive injury, because such
Discovery Material contains proprietary or commercially sensitive information. This designation
shall be used as sparingly as possible. Any document, material, or information designated by a
party as “Attorneys’ Eyes Only” must be reviewed by an attorney. Notwithstanding anything
contained in this Order, the burden shall be and remain on the Producing Party to demonstrate,
when and if challenged, that any such designated Discovery Material contains particularly
sensitive, non-public, and confidential information that the Producing Party believes in good
faith cannot be disclosed without threat of competitive injury.
3.

Confidential Discovery Material shall not be disclosed or used for any purpose

except in pretrial discovery, at the trial, or in preparation for trial, or for any appeals of this
action.
4.

Individuals authorized to review Confidential Discovery Material pursuant to this

Order shall hold such information in confidence and shall not divulge the information, either

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verbally or in writing, to any other person, entity, or government agency unless authorized to do
so by law or court order.
5.

No third parties authorized under Paragraphs 8(c), (d), (e), (f), and (g) of this

Order to receive access to Confidential Discovery Materials shall be granted such access until
such person agrees in writing to keep the parties’ information confidential by signing a copy of
the Undertaking attached as Exhibit A to this Order. The original copy of each such Undertaking
shall be maintained by counsel for the party that seeks to disclose Confidential Discovery
Materials to such persons. Further, each recipient of Confidential Discovery Materials shall not
make any copies of or notes concerning such information for any purpose whatsoever, except for
the purpose of prosecuting or defending this lawsuit.
Designation Procedures.
6.

Any Producing Party may designate Discovery Material as “Confidential” or

“Attorneys’ Eyes Only” for the purposes of this Order in the following manner:
(a)

In the case of documents or other materials (apart from interviews,

depositions or pretrial testimony), by stamping each and every page of the same with the
legend “Confidential” or “Attorneys’ Eyes Only.”
(b)

In the case of depositions or other pretrial testimony, by counsel’s

statement on the record, at the time of such disclosure, that the testimony is
“Confidential” or “Attorneys’ Eyes Only.” Or, in the alternative, a Producing Party may
also designate testimony by written notice from its counsel to the court reporter and
counsel of record for the other party, specifying by page and line number the material to
be designated and the designation assigned. To be effective, any such written notice must

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be sent within 30 days of the date on which the reporter mails a copy of the transcript to
counsel for the Producing Party, or, if that counsel has not ordered a transcript, within 30
days of the date on which the reporter notifies counsel that the original transcript is
available for review. In either event, counsel shall direct the court reporter and/or
counsel to affix the appropriate confidentiality stamp to any portion of the original
transcript, and to that portion of all copies of the transcript, containing Confidential
information or Attorneys’ Eyes Only information and those portions of the transcript so
designated shall be Confidential Discovery Material. If and to the extent the transcript
includes copies of documents previously designated as Confidential or Attorneys’ Eyes
Only, the Producing Party need not make any other or further designation as to those
documents.
During the 30-day designation period to which the preceding paragraph refers, the
parties will treat all of the deposition testimony and attached materials (at least to the
extent the parties have not previously agreed this information is not “Confidential”) as
“Confidential” absent some other agreement of the parties, designation of the deposition
testimony and attached materials as “Attorneys’ Eyes Only” on the record, or an
appropriate Court Order.
(c)

In the case of any other production of Discovery Materials not otherwise

covered by this Order, a written statement made by counsel for the Producing Party to
counsel for the other parties to this case, that such Discovery Material or any portion
thereof is “Confidential” or “Attorneys’ Eyes Only.”

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(d)

The parties to this Order may modify the procedures set forth in Paragraph

6(b) through the agreement of counsel on the record at such deposition without further
order.
7.

The parties agree that any such designations shall be reasonably limited both in

subject matter and in time, and, where reasonably possible, shall be tailored to allow the
maximum unfettered use of the particular material.
Limitations on Access to “Confidential” Material.
8.

Discovery Material designated as “Confidential” may be disclosed, summarized,

described, characterized, or otherwise communicated or made available in whole or in part only
to the following persons:
(a)

The Court in accord with the terms and conditions of this Order, persons

the Court employs, and stenographers and/or court reporters transcribing the testimony or
argument at a hearing, trial or deposition in this case or any appeal taken in this case;
(b)

Any named party and its employees reasonably and necessarily involved

in prosecuting or defending this case;
(c)

Any counsel to any named party who have entered an appearance in this

case; in-house counsel; legal, clerical, paralegal and secretarial staff employed or retained
by outside or in house counsel; and third parties those counsel or their staff have retained
to provide litigation support services (including, for example, outside copying services);
(d)

Experts or consultants the parties or counsel have retained in connection

with this case, but only to the extent reasonably necessary to assist counsel in the
prosecution or defense of this case;

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(e)

Deposition witnesses questioned by counsel of record in this case, but only

to the extent reasonably necessary to assist counsel in the prosecution or defense of this
case;
(f)

An author or recipient of the Confidential Discovery Material to be

disclosed, summarized, described, characterized or otherwise communicated or made
available, and which author or recipient is not currently an employee of a party, but only
to the extent reasonably necessary to assist counsel in the prosecution or defense of this
case; and
(g)

Mediators, arbitrators, or similar outside parties and their staffs that all of

the parties enlist to assist in the resolution of this matter.
Limitations on Access to “Attorneys’ Eyes Only” Material.
9.

Access to and disclosure of “Attorneys’ Eyes Only” Discovery Material marked

and identified in accordance with this Protective Order shall be limited solely to the Court, its
officers and its clerical staff and to the Authorized Personnel listed in Paragraph 8, with the
exception that no “Attorneys’ Eyes Only” Discovery Material shall be provided, shown, or made
available to the persons identified in Paragraph 8(b) except for a party’s in-house attorneys
pursuant to Paragraph 8(c). “Attorneys’ Eyes Only” Discovery Material shall not be provided,
shown, made available, or communicated in any way to any person or entity other than provided
for in this paragraph.
Designation Disputes.
10.

A party may object to the designation of any Discovery Materials as

“Confidential” or “Attorneys’ Eyes Only” by giving written notice to the Producing Party.

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11.

If any party timely objects to the designation of any Discovery Materials as

“Confidential” or “Attorneys’ Eyes Only,” the parties shall attempt to resolve the dispute in good
faith on an informal basis. If they are unable to resolve the dispute informally within twenty (20)
business days after the notice is received, the Producing Party must file an appropriate motion
within ten (10) business days after the end of the informal resolution period requesting that the
Court determine whether the Discovery Materials should be subject to the terms of this Order.
If the Producing Party makes such a motion, the Discovery Material shall continue to be treated
as it was designated (either “Confidential” or “Attorneys’ Eyes Only,” as applicable) under the
terms of this Order, unless and until the Court rules on the motion and directs some other
treatment. If the Producing Party fails to file such a motion within the prescribed time, the
disputed information or materials shall lose their designation and shall not thereafter be treated as
confidential in accordance with this Order.
12.

In any proceeding to release Confidential Discovery Material from its

designation, or to change the designation of any such material, the burden shall be upon the
Producing Party to sustain the burden of establishing the appropriateness of the classification
under Fed. R. Civ. P. 26(c)(1)(G). A dispute concerning confidentiality shall not otherwise
impede the progress of discovery.
Submission of Confidential Discovery Materials to Court.
13.

Any Confidential Discovery Material filed with the Court for any purpose must be

filed with restricted access in compliance with D.Colo.LCivR. 7.2 and the Court’s Practice
Standards. In the event that any Confidential Discovery Material is used in any live proceeding

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or appeal regarding this action, counsel shall confer in good faith on those procedures necessary
to protect the confidentiality of any such material used in the course of any such proceedings.
Other Use of Confidential Discovery Material.
14.

No copies of Confidential Discovery Materials shall be made except by or on

behalf of the persons listed in Paragraph 8(a)-(d). To the extent such authorized persons require
copies of Confidential Discovery Materials, any such copies shall be made and used solely for
the purposes of this case and in accordance with the provisions of this Order.
15.

The use of Confidential Discovery Material in this case shall not prejudice in any

way the rights of any person to petition the Court for such further protective measures as may be
necessary to protect the confidentiality of those materials.
16.

The provisions of this Order shall, absent written permission of a Producing Party

or further order of the Court, continue to be binding throughout and after the termination of this
case, including, without limitation, any appeals. Within sixty (60) days after receiving notice of
the entry of an order, judgment or decree finally disposing of all litigation in which Confidential
Discovery Material was disclosed, all persons having received Confidential Discovery Material
shall either return those materials and all copies thereof (including summaries and excerpts) to
the Producing Party (or its counsel), or destroy all Confidential Discovery Material and certify in
writing to the Producing Party (or its counsel) that the required destruction has occurred.
Notwithstanding the preceding provisions, counsel for the parties shall be entitled to retain
litigation papers, deposition and trial transcripts, and attorney work product that contain
Confidential Discovery Material or references thereto; provided, however, that counsel, and
employees of counsel, shall not disclose to any person nor use for any purpose unrelated to this

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case any such litigation papers or attorney work product except pursuant to further order of this
Court or agreement with the Producing Party.
17.

If any person receiving and in the possession, custody or control of Confidential

Discovery Material is served with a subpoena, demand, or any other legal process seeking the
production or other disclosure of Confidential Discovery Material by any person or entity not a
party to this case (or not the Producing Party with respect to the Confidential Discovery Material
sought), the receiving party shall give prompt written notice to the Producing Parties, by hand
delivery or facsimile transmission within two business days of its receipt of the subpoena,
demand or legal process. The Producing Party shall be solely responsible for seeking any relief
or protection from any subpoena, demand or legal process seeking Confidential Discovery
Material, and shall also be solely responsible for any costs and attorneys’ fees the Producing
Party incurs in any proceedings relating to any such subpoena, demand or legal process.
18.

In the event additional parties join or are joined in this case, or additional or

different counsel enter an appearance, they shall not be given access to Confidential Discovery
Material until the newly joined party, by its counsel, or the newly appearing counsel, as the case
may be, has executed the Undertaking and provided a copy of same to all other counsel in this
case.
19.

Neither this Order, the production or receipt of Confidential Discovery Material

under this Order, nor otherwise complying with the terms of this Order, shall:
(a)

Prejudice in any way the rights of the parties to object on grounds of

privilege, relevance, or otherwise to the production of documents or other information
they consider not subject to discovery; operate as an admission by any party that the

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restrictions and procedures set forth in this Order constitute adequate protection for any
particular information deemed by any party to be Confidential Discovery Material; or
control the determination of any motion a party may bring pursuant to Rules 26 or 37 of
the Federal Rules of Civil Procedure;
(b)

Prejudice in any way the rights of any party to object to the authenticity or

admissibility into evidence of any document (or portion thereof), testimony or other
evidence subject to this Order;
(c)

Prejudice in any way the rights of a party to petition the Court for a further

protective order relating to any confidential information the Producing Party asserts it
requires or should be subject to other or further protection;
(d)

Prevent the parties to this Order from agreeing in writing, with the consent

of the Producing Party, to alter or waive the provisions or protections provided for in this
Order with respect to any particular Confidential Discovery Material; or
(e)

Prejudice in any way the rights of a party to contest the designation of any

Discovery Material as “Confidential” or “Attorneys’ Eyes Only.”
20.

Nothing in this Order shall prevent any party to this case from using, for any

purpose and in any manner, Confidential Discovery Material that party produced and designated
as Confidential Discovery Material in connection with this case.
21.

Nothing in this Order shall preclude any party from filing a motion seeking

further or different protection from the Court under the Federal Rules of Civil Procedure, or from
filing a motion with respect to the manner in which Confidential Discovery Material shall be
treated at the trial.

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22.

This Order shall become effective as a stipulation among the parties immediately

upon its execution by all who are listed as signatories hereto, notwithstanding the pendency of
approval by the Court. Each signatory is signing on behalf of himself or herself, as well as the
party he or she represents.

APPROVED:

/s/ David C. Holman
Kenzo S. Kawanabe
Chad D. Williams
David C. Holman
Davis Graham & Stubbs LLP
1550 17th Street, Suite 500
Denver, CO 80202
Telephone [phone]

/s/ Sarah B. Wallace
Sarah B. Wallace
Andrew J. Petrie
Ballard Spahr, LLP
1225 17th Street, Suite 2300
Denver, CO 80202
Telephone: [phone]
ATTORNEYS FOR DEFENDANT
BIRKO CORP.

ATTORNEYS FOR PLAINTIFF
PURAC AMERICA INC.

DATED this 20th day of October, 2014.
BY THE COURT:

R. Brooke Jackson
District Judge

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UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No. 2014-cv-1669
PURAC AMERICA INCORPORATED, an Illinois corporation.
Plaintiff,
v.
BIRKO CORPORATION, a Colorado corporation,
Defendant.
UNDERTAKING PURSUANT TO ORDER GOVERNING
THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL MATERIAL
1.

I have read the foregoing Order dated ___________________, 2014, that governs

the treatment of Confidential Discovery Material in the action captioned above (the
“Litigation”).
2.

I have been informed that materials being shown or provided to me contain

information that has been designated Confidential Discovery Material, as defined in the Order.
3.

I hereby represent that I have not divulged, and will not divulge, or undertake to

divulge, any Confidential Discovery Material except as authorized in the Order. I further
represent that I will not use any Confidential Discovery Material for any purpose other than the
Litigation, and that, at the termination of the Litigation, I will return all Confidential Discovery
Material with which I have been provided to the counsel from whom I received such Discovery
Material.
4.

If I am in the possession, custody or control of Confidential Discovery Material

and am served with a subpoena, demand, or any other legal process seeking Discovery Material
by a person not a party to this action, I shall give prompt written notice, by hand or facsimile

transmission within forty eight hours of receipt of such subpoena, demand or legal process, to the
Producing Party, and shall, unless otherwise ordered by a Court, decline to produce the
Discovery Material on the basis of the existence of this Order.
5.

I hereby agree to abide by the terms of the Order.

6.

For the purposes of enforcing the terms of the Order only, I hereby submit to the

jurisdiction of the United State District Court for the District of Colorado.
Printed Name:

DATED:

Signature:

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