Zbylski et al v. Douglas County School District et al

Filing 21

PROTECTIVE ORDER entered by Magistrate Judge Boyd N. Boland on 9/17/14. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-1676-MSK-BNB
MARIANNE ZBYLSKI, and
MARK ZBYLSKI, as parents and next friends of S.Z., a minor,
Plaintiffs,
v.
DOUGLAS COUNTY SCHOOL DISTRICT,
PATRICIA DIERBERGER, in her individual capacity, and
JAMES MCMURPHY, in his individual capacity,
Defendants.
______________________________________________________________________________
PROTECTIVE ORDER
______________________________________________________________________________
Upon a showing of good cause in support of the entry of a protective order to protect the
discovery and dissemination of confidential and proprietary information or information which
will improperly annoy, embarrass, or oppress any party, witness, or person providing discovery
in this case, IT IS ORDERED:
1.

This Protective Order shall apply to all documents, materials, videos and

information, including without limitation, documents produced, Rule 26(a)(1) disclosures,
answers to interrogatories, responses to requests for admission, deposition testimony, and other
information disclosed pursuant to the disclosure or discovery duties created by the Federal Rules
of Civil Procedure.
2.

As used in this Protective Order, the term “document” is defined as provided in

Fed.R.Civ.P. 34(a). A draft or non-identical copy is a separate document within the meaning of

this term.
3.

Information designated “CONFIDENTIAL” shall be information that is

confidential and implicates common law and statutory privacy interests of (a) current or former
School District employees, (b) current or former School District students, and (c) any other
individual or entity from whom discovery may be sought with a recognized privacy interest in
the requested materials. See e.g., 22 U.S.C. §1232g and 34 C.F.R. §99.3 (concerning disclosure
of personally identifiable information regarding students); C.R.S 24-72-204(3)(a)(II)(A),
(concerning disclosure of personnel records), 45 C.F.R. § 164.512(e)(1)(ii)(A) and C.R.S. § 1390-107(d) and (g) (concerning disclosure of a patient’s medical records). CONFIDENTIAL
information shall not be disclosed or used for any purpose except the preparation for and trial of
this case.
4.

“ATTORNEYS’ EYES ONLY” information shall include only extremely

sensitive “CONFIDENTIAL” information whose disclosure to another Party or nonparty would
create a substantial risk of serious injury to common law and statutory privacy interests that
could not be avoided by less restrictive means. In designating information as “ATTORNEYS’
EYES ONLY,” the Designating Person will make such designation only as to that information
that the Designating Person in good faith believes requires heightened protection.
5.

CONFIDENTIAL and ATTORNEYS EYES ONLY information shall not be

Disclosed or used for any purpose except the preparation and trial of this case.

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6.

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)

attorneys actively working on this civil action;

(b)

persons regularly employed by or associated with the attorneys actively

working on this civil action whose assistance is required by said attorneys in the
preparation for trial, at trial, or at other proceedings in this civil action;
(c)

the parties (including designated representatives for each party);

(d)

expert witnesses and consultants retained in connection with this civil

action, to the extent such disclosure is necessary for preparation, trial or other
proceedings in this civil action;
(e)

the Court and its employees (“Court Personnel”);

(f)

stenographic reporters who are engaged in proceedings necessarily

incident to the conduct of this civil action;
(g)

deponents, witnesses, or potential witnesses to the extent reasonably

necessary; and,
(h)
7.

other persons by written agreement of the parties.

“ATTORNEYS’ EYES ONLY” documents, materials, and/or information

(collectively “ATTORNEYS’ EYES ONLY information”) shall not, without the consent of the

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party producing it or further Order of the Court, be disclosed except that such information may
be disclosed to:
(a)

attorneys actively working on this civil action;

(b)

persons regularly employed by or associated with the attorneys actively

working on this civil action whose assistance is required by said attorneys in the
preparation for trial, at trial, or at other proceedings in this civil action;
(c)

the parties (including designated representatives for each party);

(d)

expert witnesses and consultants retained in connection with this civil

action, to the extent such disclosure is necessary for preparation, trial or other
proceedings in this civil action;
(e)

the Court and its employees (“Court Personnel”);

(f)

stenographic reporters who are engaged in proceedings necessarily

incident to the conduct of this civil action;
(g)
(h)
8.

the author of the document or the original source of the information; and
other persons by written agreement of the parties.

Prior to disclosing any CONFIDENTIAL or ATTORNEYS’ EYES ONLY

information to any person listed above (other than counsel, persons employed by counsel, Court
Personnel, stenographic reporters, and copying and/or secretarial services engaged by attorneys),
counsel shall provide such person with a copy of this Protective Order and obtain from such

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person a written acknowledgment stating that he or she has read this Protective Order and agrees
to be bound by its provisions. All such acknowledgments shall be retained by counsel and shall
be subject to in camera review by the Court if good cause for review is demonstrated by
opposing counsel.
9.

Documents are designated as CONFIDENTIAL OR ATTORNEYS’ EYES

ONLY by placing or affixing on them (in a manner that will not interfere with their legibility)
the following or other appropriate notice: “CONFIDENTIAL” Or “ATTORNEYS” EYES
ONLY”.
10.

Whenever a deposition involves the disclosure of CONFIDENTIAL or

ATTORNEYS’ EYES ONLY information, the deposition or portions thereof shall be designated
as CONFIDENTIAL or ATTORNEYS’ EYES ONLY 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 or
ATTORNEYS’ EYES ONLY 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.
11.

A party may object to the designation of particular CONFIDENTIAL or

ATTORNEYS’ EYES ONLY information by giving written notice to the party designating the
disputed 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

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notice is received, it shall be the obligation of the party designating the information as
CONFIDENTIAL OR ATTORNEYS’ EYES ONLY 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 or ATTORNEYS’ EYES ONLY 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 or
ATTORNEYS’ EYES ONLY and shall not thereafter be treated as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY in accordance with this Protective Order. In connection with a
motion filed under this provision, the party designating the information as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY shall bear the burden of establishing that good cause exists for the
disputed information to be treated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY.
12.

At the conclusion of this case, unless other arrangements are agreed upon, each

document and all copies thereof which have been designated as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY shall be returned to the party that so designated the document(s),
or the parties may elect to destroy CONFIDENTIAL and ATTORNEYS’ EYES ONLY
documents. Where the parties agree to destroy CONFIDENTIAL and ATTORNEYS’ EYES
ONLY documents, the destroying party shall provide all parties with an affidavit confirming the
destruction.

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13.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2. The Parties agree to comply with D.C.COLO.LCivR 7.2 regarding
motions to seal and procedures for non-electronic filing of papers and documents under seal.
14.

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.
Dated September 17, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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Stipulated to by:
s/Kimberly M. Hult
Kimberly M. Hult
Baine P. Kerr
Hutchinson Black and Cook, LLC
921 Walnut Street, Suite 200
Boulder, CO 80302
[e-mail]
[e-mail]

s/M. Gwyneth Whalen
M. Gwyneth Whalen
W. Stuart Stuller
Caplan and Earnest, LLC
1800 Broadway Street, Suite 200
Boulder, CO 80302
[e-mail]
[e-mail]
COUNSEL FOR DEFENDANTS

Craig Silverman
Silverman and Olivas, P.C.
1331 17th Street, Suite 510
Denver, CO 80202
[e-mail]
COUNSEL FOR PLAINTIFFS

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Exhibit A to Protective Order

STATE OF

)
)ss

COUNTY OF

)

I, ____________________________________________, being first duly sworn,
state that:

1.

I have received a copy of the Protective Order in case of MARIANNE ZBYLSKI and

MARK ZBYLSKI, as parents and next friends of S.Z., a minor v. DOUGLAS COUNTY
SCHOOL DISTRICT; PATRICIA DIERBERGER, in her individual capacity; and JAMES
MCMURPHY, in his individual capacity, United States District Court for the District of
Colorado case number 14-cv-1676.
2.

I understand that I can be held in contempt of court for violating the terms

of the Protective Order and I submit to the jurisdiction of the United States District Court
for the District of Colorado for purposes of enforcement of the Protective Order.
3.

I have carefully read and understand the provisions of the Protective

Order, and I will comply with all of its provisions.

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___________________________________

Subscribed and sworn to before me this _______ day of ________________, 20___.

________________________________________
Notary Public
[seal]

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