Instamart Fulfillment LLC et al v. Instacart, Inc. et al

Filing 51

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 1/20/15. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01808-CMA-KMT
INSTAMART FULFILLMENT LLC, a Colorado limited liability company, and
INSTAMART IP, LLC, a Wyoming limited liability company,
Plaintiffs,
v.
MAPLEBEAR, INC., D/B/A INSTACART, a Delaware corporation,
Defendant.

AGREED PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE
OF DISCOVERY MATERIALS

Plaintiffs and counterclaim-defendants Instamart Fulfillment LLC
and Instamart IP, LLC (collectively “Instamart”) and defendant and counterclaimplaintiff Maplebear, Inc. (“Maplebear”) (collectively referred to herein as the
“Parties”) anticipate that documents, testimony, or information containing or
reflecting confidential, proprietary, trade secret, and/or commercially sensitive
information are likely to be disclosed or produced during the course of
discovery, initial disclosures, and supplemental disclosures in this case and
request that the Court enter this Order setting forth the conditions for treating,
obtaining, and using such information.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure,
the Court finds good cause for the following Agreed Protective Order
Regarding the Disclosure and Use of Discovery Materials (“Order” or
“Protective Order”).
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1.

PURPOSES AND LIMITATIONS
(a)

Unless otherwise agreed by the Parties, Protected Material

designated under the terms of this Protective Order shall be used by a Receiving
Party solely for this case, and shall not be used directly or indirectly for any other
purpose whatsoever.
(b)

The Parties acknowledge that this Order does not confer

blanket protections on all disclosures during discovery, or in the course of making
initial or supplemental disclosures under Rule 26(a). Designations under this
Order shall be made with care and shall not be made absent a good faith belief
that the designated material satisfies the criteria set forth below. If it comes to a
Producing Party’s attention that designated material does not qualify for
protection at all, or does not qualify for the level of protection initially asserted, the
Producing Party must promptly notify all other Parties that it is withdrawing or
changing the designation.
2.

DEFINITIONS
(a)

“Confidential” Information

or Items means information

(regardless of how generated, stored or maintained) or tangible things that qualify
for protection under the standards developed under Fed. R. Civ. P. 26 (c).
(b)

“Counsel” (without qualifier) means Outside Counsel and

Jack Leon Fetzer.
(c)

“Designating Party” means a Party or non-party that

designates information or items that it produces in disclosures or in responses to
discovery as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only.”

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(d)

“Discovery Material” means all items or information, including

from any non-party, regardless of the medium or manner generated, stored, or
maintained (including, among other things, testimony, transcripts, or tangible
things) that are produced, disclosed, or generated in connection with discovery or
Rule 26(a) disclosures in this case.
(e)

“Expert” means 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 consultant in this action and who is
not a past or current officer, director or employee of a Party to this action or of a
competitor of a Party to this action and who at the time of retention and the time
of disclosure of Protected Material is not anticipated to become an officer, director
or employee of a Party to this action or of a competitor of a Party to this action.
(f)

“Highly Confidential – Attorneys’ Eyes Only” Information or

Items means extremely sensitive Confidential Information or Items, disclosure of
which to another Party or non-party would create a substantial risk of serious
injury that could not be avoided by less restrictive means.
(g)

“Outside Counsel” means

counsel who are not officers,

directors or employees of a Party and who appear on the pleadings as counsel for
a Party in this action, partners and associates of such counsel to whom it is
reasonably necessary to disclose the information for this litigation, and their
paralegals and support staff.
(h)

“Party” means any party to this case, including all of its

officers, directors, employees, and outside counsel and their support staffs.

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(i)

“Producing Party” means any Party or non-party that

discloses or produces any Discovery Material in this case.
(j)

“Professional Vendors” means persons or entities that

provide litigation support services (e.g., photocopying; videotaping; translating;
preparing exhibits or demonstratives; organizing, storing, retrieving data in any
form or medium) and their employees and subcontractors.
(k)

“Protected Material” means any Discovery Material that is

designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY,” as provided for in this Order.
(l)

“Receiving Party” means any Party who receives Discovery

Material from a Producing Party.
3.

COMPUTATION OF TIME
The computation of any period of time prescribed or allowed by this

Order shall be governed by the provisions for computing time set forth in Federal
Rule of Civil Procedure 6.
4.

SCOPE
(a)

The protections conferred by this Order cover not only

Discovery Material governed by this Order as addressed herein, but also any
information copied or extracted therefrom, as well as all copies, excerpts,
summaries,

or

compilations

thereof,

plus

testimony,

conversations,

or

presentations by Parties or their counsel in court or in other settings that might
reveal Protected Material.
(b)

Nothing in this Protective Order shall prevent or restrict a

Producing Party’s own disclosure or use of its own Discovery Material for any
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purpose, and nothing in this Order shall preclude any Producing Party from
showing its Discovery Material to an individual who prepared the Discovery
Material.
(c)

Nothing in this Order shall be construed to prejudice any

Party’s right to use any Protected Material in court or in any court filing with
consent of the Producing Party or by order of the Court.
(d)

This Order is without prejudice to the right of any Party to

seek further or additional protection of any Discovery Material or to modify this
Order in any way, including, without limitation, an order that certain matter not be
produced at all.
5.

DURATION
Even after the termination of this case, and unless otherwise

indicated in this Order, the confidentiality obligations imposed by this Order shall
remain in effect until a Producing Party agrees otherwise in writing or an order
from this Court otherwise directs.
6.

ACCESS TO AND USE OF PROTECTED MATERIAL
(a)

Basic Principles. All Protected Material shall be used solely

for this case or any related appellate proceeding, and not for any other purpose
whatsoever, including without limitation any other litigation, or any business or
competitive purpose or function, except as expressly provided herein. Protected
Material shall not voluntarily be distributed, disclosed or made available to anyone
except as expressly provided in this Order.

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(b)

Secure Storage.

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.
(c)

Legal Advice Based on Protected Material. Nothing in this

Protective Order shall be construed to prevent counsel from advising their clients
with respect to this case based in whole or in part upon Protected Materials,
provided counsel does not disclose the Protected Materials themselves, the
content of those Protected Materials, or the fact of those particular Protected
Materials’ existence except as provided in this Order.
(d)

Limitations. Nothing in this Order shall restrict in any way a

Producing Party’s use or disclosure of its own Protected Material. Nothing in this
Order shall restrict in any way the use or disclosure of Discovery Material by a
Receiving Party: (i) that is or has become publicly known through no fault of the
Receiving Party; (ii) that is lawfully acquired by or known to the Receiving Party
independent of the Producing Party; (iii) with the consent of the Producing Party;
or (iv) pursuant to order of the Court. Notwithstanding the foregoing, a Producing
Party may not disclose its own Protected Material to the extent such Protected
Material is also the Protected Material of any other Party (e.g., settlement
discussions and agreements containing confidentiality obligations), without the
prior written consent of such other Party, unless compelled to do so by a Court of
competent jurisdiction.
7.

DESIGNATING PROTECTED MATERIAL
(a)

Available Designations. Any Producing Party may designate

Discovery Material with any of the following designations, provided that it meets
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the requirements for such designations as provided for herein: “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
(b)

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. To the extent it is practical to do so,
the Producing 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 purpose (e.g., to unnecessarily encumber or retard the case
development process or to impose unnecessary expenses and burdens on
other parties) expose the Producing Party to sanctions.
(c)

Written Discovery and Documents and Tangible Things.

Written discovery, documents (which include “electronically stored information,”
as that phrase is used in Federal Rule of Procedure 34), and tangible things that
meet the requirements for the confidentiality designations listed in Paragraph 7(a)
may be so designated by placing the appropriate designation on every page of
the written material prior to production.

For digital files being produced, the

Producing Party may mark each viewable page or image with the appropriate
designation, and mark the medium, container, and/or communication in which the
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digital files were contained. In the event that original documents are produced for
inspection, the original documents shall be presumed “HIGHLY CONFIDENTIAL
– ATTORNEYS’ EYES ONLY” during the inspection and re-designated, as
appropriate during the copying process.
(d)

Depositions and Testimony. Parties or testifying persons or

entities may designate depositions and other testimony with the appropriate
designation by indicating on the record at the time the testimony is given or by
sending written notice of how portions of the transcript of the testimony are
designated within twenty one (21) days of receipt of the transcript of the
testimony. If no indication on the record is made, all information disclosed during
a deposition shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” until the time within which it may be appropriately designated as provided
for herein has passed. Any Party that wishes to disclose the transcript that has
been deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” as a
result of no designation having been made on the record at the time the testimony
was given, or information contained therein, may provide written notice of its
intent to treat the transcript as non-confidential, after which time, any Party that
wants to maintain any portion of the transcript as confidential must designate the
confidential portions within fourteen (14) days, or else the transcript may be
treated as non-confidential. Any Protected Material that is used in the taking of a
deposition shall remain subject to the provisions of this Protective Order, along with
the transcript pages of the deposition testimony dealing with such Protected
Material. In such cases the court reporter shall be informed of this Protective
Order and shall be required to operate in a manner consistent with this Protective
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Order. In the event the deposition is videotaped, the original and all copies of the
videotape shall be marked by the video technician to indicate that the contents of
the videotape are subject to this Protective Order, substantially along the lines of
“This videotape contains confidential testimony used in this case and is not to
be viewed or the contents thereof to be displayed or revealed except pursuant
to the terms of the operative Protective Order in this matter or pursuant to
written stipulation of the parties.” Counsel for any Producing Party shall have
the right to exclude from oral depositions, other than the deponent, deponent’s
counsel (subject to Paragraph 9(a)(i)), the reporter and videographer (if any),
any person who is not authorized by this Protective Order to receive or access
Protected Material based on the designation of such Protected Material. Such
right of exclusion shall be applicable only during periods of examination or
testimony regarding such Protected Material.
8.

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
(a)

Unless otherwise ordered by the Court, Discovery Material

designated as “CONFIDENTIAL” may be disclosed only to the following:
(i)

The Receiving Party’s Outside Counsel;

(ii)

Outside Counsel’s immediate paralegals and staff, and

any copying or clerical litigation support services working at the direction of such
counsel, paralegals, and staff;
(iii)

The officers, directors, and employees (including in-

house counsel) of the Receiving Party to whom disclosure is reasonably
necessary for this litigation;

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(iv)

The author or recipient of a document containing the

information or a custodian or other person who otherwise possessed or knew the
information;
(v)

During their depositions, witnesses in the action (other

than persons described above in Paragraph 8(a)(iv)) 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 Protective Order. Witnesses shown Protected Material shall not be
allowed to retain copies;
(vi)

Any Expert retained by the Receiving Party to assist in

this action, provided that (a) disclosure is only to the extent necessary to perform
such work; and (b) such Expert has already agreed to be bound by the
provisions of the Protective Order by signing a copy of Exhibit A.
(vii)

Court reporters, stenographers and videographers

retained to record testimony taken in this action;
(viii)

The Court, jury, and court personnel;

(ix)

Document processing and hosting vendors, and

graphics, translation, design, and/or trial consulting services, having first agreed
to be bound by the provisions of the Protective Order by signing a copy of
Exhibit A;

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(x)

Mock jurors who have signed an undertaking or

agreement agreeing not to publicly disclose Protected Material and to keep any
information concerning Protected Material confidential;
(xi)

Any mediator who is assigned to hear this matter, and

his or her staff, subject to their agreement to maintain confidentiality to the same
degree as required by this Protective Order; and
(xii)

Any other person with the prior written consent of the

Producing Party or by order of this Court.
9.

DISCOVERY
MATERIAL
DESIGNATED
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
(a)

“HIGHLY

AS

Unless otherwise ordered by the Court, Discovery Material

designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be
disclosed only to:
(i)

The Receiving Party’s Outside Counsel.

Unless

otherwise agreed, Discovery Material designated as “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” shall not be disclosed to Jack Leon Fetzer. For
documents

designated

by

defendant

as

“HIGHLY

CONFIDENTIAL

–

ATTORNEYS’ EYES ONLY,” in addition to the version that may be disclosed only
to plaintiffs’ Outside Counsel, defendant shall provide a redacted version that, to
the extent it is practical to do so, redacts only those portions that qualify for the
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation, which for
purposes

of

this

subparagraph

means extremely sensitive

Confidential

Information or Items, disclosure of which to Jack Leon Fetzer would create a
substantial risk of serious harm that could not be avoided by less restrictive
means. The redacted version shall bear the same document production number
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as the unredacted version along with the further designation “REDACTED FOR
JACK LEON FETZER” and may be disclosed to Jack Leon Fetzer and, subject to
the restrictions of this Order, the other individuals listed in Paragraph 9(a). Where
the entire document qualifies for the HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” designation or it otherwise would not be practical to redact only
those portions, defendant may instead provide a log that identifies such
documents by document production number.
(ii)

Outside Counsel’s immediate paralegals and staff, and

any copying or clerical litigation support services working at the direction of such
counsel, paralegals, and staff;
(iii)

The author or recipient of a document containing the

information or a custodian or other person who otherwise possessed or knew the
information;
(iv)

Any Expert retained by the Receiving Party to assist in

this action, provided that (a) disclosure is only to the extent necessary to perform
such work; and (b) such Expert has already agreed to be bound by the provisions
of the Protective Order by signing a copy of Exhibit A.
(v)

Court reporters, stenographers and videographers

retained to record testimony taken in this action;
(vi)

The Court, jury, and court personnel;

(vii)

Document processing and hosting vendors, and

graphics, translation, design, and/or trial consulting services, having first agreed
to be bound by the provisions of the Protective Order by signing a copy of
Exhibit A;
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(viii)

Any mediator who is assigned to hear this matter, and

his or her staff, subject to their agreement to maintain confidentiality to the same
degree as required by this Protective Order; and
(ix)

Any other person with the prior written consent of the

Producing Party or by order of this Court.
10.

CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL
(a)

A Party shall not be obligated to challenge the propriety of

any designation of Discovery Material under this Order at the time the designation
is made, and a failure to do so shall not preclude a subsequent challenge thereto.
(b)

Any challenge to a designation of Discovery Material under

this Order shall be written, shall be served on outside counsel for the Producing
Party, shall particularly identify the documents or information that the Receiving
Party contends should be differently designated, and shall state the grounds for
the objection. Thereafter, further protection of such material shall be resolved in
accordance with the following procedures:
(i)

The objecting Party shall have the burden of

conferring either in person, in writing, or by telephone with the Producing Party
claiming protection (as well as any other interested party) in a good faith effort to
resolve the dispute. The Producing Party shall have the burden of justifying the
disputed designation;
(ii)

Failing agreement, the Receiving Party may bring a

motion to the Court for a ruling that the Discovery Material in question is not
entitled to the status and protection of the Producing Party’s designation. The
Parties’ entry into this Order shall not preclude or prejudice any Party from
13

arguing for or against any designation or redaction, establish any presumption
that a particular designation or redaction is valid, or alter the burden of proof that
would otherwise apply in a dispute over discovery or disclosure of information;
(iii)

The burden of persuasion in any such challenge

proceeding shall be on the Designating Party. Notwithstanding any challenge to a
designation, the Discovery Material in question shall continue to be treated as
designated under this Order until one of the following occurs: (a) the Party or nonparty who designated the Discovery Material in question withdraws such
designation in writing; or (b) the Court rules that the Discovery Material in
question is not entitled to the designation.
11.

SUBPOENAS OR COURT ORDERS
(a)

If at any time Protected Material is subpoenaed by any court,

arbitral, administrative, or legislative body, the Party to whom the subpoena or
other request is directed shall immediately give prompt written notice thereof to
every Party or non-party who has produced such Discovery Material and to its
counsel and shall provide each such Party or non-party with an opportunity to
move for a protective order regarding the production of Protected Materials
implicated by the subpoena.
12.

FILING PROTECTED MATERIAL
(a)

Absent written permission from the Producing Party or a

court order secured after appropriate notice to all interested persons, a Receiving
Party may not file in the public record any Protected Material.
(b)

When filing any Protected Material, such documents shall be

filed and served separately and in accordance with the Local Rules for the
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Federal District Court for the District of Colorado (“Local Rules”), the Electronic
Case Filing (“ECF”) Procedures, and the ECF User Manual for such district so
that such documents are sealed from public view. Service of such Protected
Material on all counsel for the named parties shall be in accordance with such
Local Rules and ECF procedures, and be accompanied by a cover page or
similar designation as provided under the Local Rules. All other documents not
designated as Protected Material shall be filed separately in accordance with
such Local Rules and ECF procedures so that they are otherwise made publicly
available.
13.

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
(a)

The inadvertent production by a Producing Party of Discovery

Material subject to the attorney-client privilege, work-product protection, or any
other applicable privilege or protection, despite the Producing Party’s reasonable
efforts to prescreen such Discovery Material prior to production, will not waive the
applicable privilege and/or protection if a notice and request for return of such
inadvertently produced Discovery Material is made promptly after the Producing
Party learns of its inadvertent production.
(b)

Upon a notice and request from any Producing Party who

has inadvertently produced Discovery Material that it believes is privileged and/or
protected, each Receiving Party shall immediately return within five (5) days of
such notice and request such Protected Material or Discovery Material and all
copies to the Producing Party, except for any pages containing privileged markings
by the Receiving Party which shall instead be destroyed and certified as such by
the Receiving Party to the Producing Party.
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(c)

Within ten (10) days of the Producing Party’s notice and

request for the return and/or destruction of privileged Discovery Material, the
Producing Party shall provide a privilege log with entries for the inadvertently
produced document(s).

The Producing Party shall maintain the referenced

document(s) until the Parties resolve any dispute concerning the privileged nature
of such documents or the Court rules on any motion to compel production of such
documents.

If a dispute arises concerning the privileged nature of the

document(s) demanded or returned, the Parties shall meet and confer in good
faith in an effort to resolve the dispute. If the Parties are unable to resolve the
dispute, the Receiving Party may file a motion to compel the production of such
document(s). In the event of such a motion to compel, the Producing Party shall
have the burden to demonstrate the claimed privilege, work product immunity or
other immunity. However, in no case will the return of any demanded document
be delayed or refused by reason of a Party’s objection to the demand or by the
filing of a motion to compel, nor may a Party assert the fact of the inadvertent
production as a ground for any such motion. The Parties further agree that the
Receiving Party will not use or refer to any information contained within the
document(s) at issue, including in deposition or at trial or in any Court filing,
unless and until such a motion to compel production of that document is granted
by the Court, except as such information may appear in any applicable privilege
log.
14.

INADVERTENT FAILURE TO DESIGNATE PROPERLY
(a)

The inadvertent failure by a Producing Party to designate

Discovery Material as Protected Material with one of the designations provided for
16

under this Order shall not waive any such designation provided that the Producing
Party notifies all Receiving Parties that such Discovery Material is protected under
one of the categories of this Order within fourteen (14) days of the Producing
Party learning of the inadvertent failure to designate. The Producing Party shall
reproduce the Protected Material with the correct confidentiality designation within
seven (7) days upon its notification to the Receiving Parties. Upon receiving the
Protected Material with the correct confidentiality designation, the Receiving
Parties shall destroy all Discovery Material that was not designated properly.
(b)

A Receiving Party shall not be in breach of this Order for any

use of such Discovery Material before the Receiving Party receives the notice
described in Paragraph 14(a).

Once a Receiving Party has received the

Protected Material with the correct confidentiality designation, the Receiving Party
shall treat such Discovery Material at the appropriately designated level pursuant to
the terms of this Order.
(c)

Protected Material produced without the designation of

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
may be so designated subsequent to production when the Producing Party failed
to make such designation at the time of production through inadvertence or error.
If Discovery Material is designated subsequent to production, the Receiving Party
promptly shall collect any copies that have been provided to individuals so that
they can be re-labeled with the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” designation.

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15.

INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER
(a)

In the event of a disclosure of any Discovery Material

pursuant to this Order to any person or persons not authorized to receive such
disclosure under this Protective Order, the Party responsible for having made
such disclosure, and each Party with knowledge thereof, shall immediately notify
counsel for the Producing Party whose Discovery Material has been disclosed
and provide to such counsel all known relevant information concerning the nature
and circumstances of the disclosure. The responsible disclosing Party shall also
promptly take all reasonable measures to retrieve the improperly disclosed
Discovery Material and to ensure that no further or greater unauthorized
disclosure and/or use thereof is made.
(b)

Unauthorized or inadvertent disclosure does not change the

status of Discovery Material or waive the right to hold the disclosed document or
information as Protected.
16.

FINAL DISPOSITION
(a)

Not later than ninety (90) days after the Final Disposition of

this case, each Party shall return all Discovery Material of a Producing Party to
the respective outside counsel of the Producing Party or destroy such Material, at
the option of the Receiving Party. For purposes of this Order, “Final Disposition”
occurs after an order, mandate, or dismissal finally terminating the abovecaptioned action with prejudice, including all appeals.
(b)

All Parties that have received any such Discovery Material

shall certify in writing that all such materials have been returned to the respective
outside counsel of the Producing Party or destroyed.
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Notwithstanding the

provisions for return of Discovery Material, outside counsel may retain one set of
pleadings, correspondence and attorney and consultant work product (but not
document productions) for archival purposes.
17.

MISCELLANEOUS
(a)

Right to Further Relief. Nothing in this Order abridges the

right of any person to seek its modification by the Court in the future.

By

stipulating to this Order, the Parties do not waive the right to argue that certain
material may require additional or different confidentiality protections than those
set forth herein.
(b)

Termination of Matter and Retention of Jurisdiction.

The

Parties agree that the terms of this Protective Order shall survive and remain in
effect after the Final Disposition of the above-captioned matter. The Court shall
retain jurisdiction after Final Disposition of this matter to hear and resolve any
disputes arising out of this Protective Order.
(c)

Successors. This Order shall be binding upon the Parties

hereto, their attorneys, and their successors, executors, personal representatives,
administrators, heirs, legal representatives, assigns, subsidiaries, divisions,
employees, agents, retained consultants and experts, and any persons or
organizations over which they have direct control.
(d)

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. 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. This Order shall not constitute a waiver of the
19

right of any Party to claim in this action or otherwise that any Discovery Material,
or any portion thereof, is privileged or otherwise non-discoverable, or is not
admissible in evidence in this action or any other proceeding.
(e)

Burdens of Proof and Legal Standards.

Notwithstanding

anything to the contrary above, nothing in this Protective Order shall be construed
to change the burdens of proof or legal standards applicable in disputes regarding
whether particular Discovery Material is confidential, which level of confidentiality
is appropriate, whether disclosure should be restricted, and if so, what restrictions
should apply.
(f)

Modification by Court. This Order is subject to further court

order based upon public policy or other considerations, and the Court may modify
this Order sua sponte in the interests of justice. The United States District Court
for the District of Colorado is responsible for the interpretation and enforcement of
this Order.

All disputes concerning Protected Material, however designated,

produced under the protection of this Order shall be resolved by the United States
District Court for the District of Colorado.
(g)

Discovery Rules Remain Unchanged. Nothing herein shall

alter or change in any way the discovery provisions of the Federal Rules of Civil
Procedure, the Local Rules for the United States District Court for the District of
Colorado, or the Court’s own orders. Identification of any individual pursuant to
this Protective Order does not make that individual available for deposition or any
other form of discovery outside of the restrictions and procedures of the Federal
Rules of Civil Procedure, the Local Rules for the United States District Court for
the District of Colorado, or the Court’s own orders.
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(h)

Supersession of Any Protective Orders. Except as otherwise

set forth in this paragraph, this Protective Order supersedes any protective orders
referenced by the Parties as applying to material disclosed before the entry of this
Protective Order. Any discovery material disclosed by any Party before the entry
of this Protective Order shall retain whatever confidentiality designation it
originally bore.

STIPULATED AND AGREED:
Dated: January 13, 2015

/s/ Jack Leon Fetzer
Jack Leon Fetzer
299 Jasmine Street
Denver, CO 80220
Telephone: [phone]

/s/ Scott B. Kidman
Scott B. Kidman
QUINN EMANUEL URQUHART
& SULLIVAN LLP
865 S. Figueroa St., 10th Floor
Los Angeles, California 90017
Telephone: [phone]

Ramon L. Pizarro
3515 South Tamarac Drive
Suite 200
Denver, CO 80237
Telephone: [phone]

Marc C. Levy
Faegre Baker Daniels LLP
1700 Lincoln Street, Suite 3200
Denver, CO 80203
Telephone: [phone]
Counsel for Maplebear, Inc.

Counsel for Plaintiffs

SO ORDERED this 20th day of January, 2015.
BY THE COURT:

Kathleen M. Tafoya
United States Magistrate Judge

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01808-CMA-KMT
INSTAMART FULFILLMENT LLC, a Colorado limited liability company, and
INSTAMART IP, LLC, a Wyoming limited liability company,
Plaintiffs,
v.
MAPLEBEAR, INC., D/B/A INSTACART, a Delaware corporation,
Defendant.

DECLARATION
_________________________________________________________________
_______

I
, am employed by
_________________________. In connection with this action, I:
_______
_______
_______
_______

am an in-house counsel to one of the parties to this action;
am a director, officer or employee of __________________who is
directly assisting in this action;
have been retained to furnish technical or other expert services or to
give testimony;
am otherwise a qualified recipient (as defined in Paragraph 8(b) or
9(b) of the Protective Order)
(Describe:___________________________________________).

I have read, understand and agree to comply with and be bound by the terms of
the Protective Order in the above-captioned matter. I further state that the
Protective Order entered, or to be entered, by the Court, a copy of which has
been given to me and which I have read, prohibits me from using any Protected
Material, including documents, for any purpose not appropriate or necessary to
my participation in this case or disclosing such documents or information to any
person not entitled to receive them under the terms of the Protective Order. To
the extent I have been given access to Protected Material, I will not in any way
disclose, discuss, or exhibit such information except to those persons whom I
know (a) are authorized under the Protective Order to have access to such
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information, and (b) have executed a similar Disclosure Agreement as this. I will
return all materials containing Protected Material, copies thereof and notes that I
have prepared relating thereto, to counsel for the party with whom I am
associated, or I will destroy all such materials. I agree to be bound by the
Protective Order in every aspect and to be subject to the jurisdiction of the United
States District Court for the District of Colorado for purposes of its enforcement
and the enforcement of my obligations under this Disclosure Agreement. I
declare under penalty of perjury that the foregoing is true and correct.

_____________________________
Signed by Recipient
_____________________________
Name (printed)
_____________________________
Present Occupation/ Job Description
_____________________________
Name of Company or Firm
_____________________________
_____________________________
_____________________________
_____________________________
Address

_____________________________
Date

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