Pavel v. Adams County Sheriff's Office et al

Filing 19

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 10/31/14. ORDERED that the 17 Unopposed MOTION for Protective Order is GRANTED. FURTHER ORDERED that when filing documents under seal parties MUST fully comply with the requirements of D.C.ColoL.CivR. 7.2 and D.C.COLO. ECF. PROC. 5.1. (cbssec)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01886-WYD-CBS
CATALIN G. PAVEL,
Plaintiff,
v.
ADAMS COUNTY SHERIFF’S OFFICE;
SHERIFF DOUGLAS N. DARR, in his official and individual capacities;
UNDERSHERIFF ROGER ENGELSMAN, in his official and individual capacities;
COMMANDER MARK MITCHELL, in his individual capacity;
COMMANDER JIM HINRICHS, in his individual capacity;
SERGEANT KEVIN CURRIER, in his individual capacity; and
SERGEANT GENE CLAPS, in his individual capacity;
Defendants.
______________________________________________________________________________
PROTECTIVE ORDER
______________________________________________________________________________
This Protective Order shall apply to all information, documents, and things subject to
discovery in this action, whether produced by a party or third party, including, without
limitation: documents and information produced pursuant to Rule 26, testimony adduced at
depositions upon oral examination or upon written questions pursuant to Rules 30 and 31,
answers to Interrogatories pursuant to Rule 33, documents produced pursuant to Rule 34,
information obtained from inspection of premises or things pursuant to Rule 34, and answers to
requests for admission pursuant to Rule 36.
CATEGORIES OF INFORMATION
1.

Information Subject To This Protective Order. As set forth below, documents and

things that are stamped “CONFIDENTIAL” will be treated as confidential and shall not be used
or disclosed for any purpose other than discovery and trial in this action and any appeal. All

persons (other than counsel of record, their staff, court reporters and copy services) and experts
having access to CONFIDENTIAL INFORMATION shall sign a statement in the form of
Exhibit A hereto acknowledging agreement to the terms of this Protective Order. Copies of such
statements shall be served forthwith upon the opposing party.
The parties may designate the following information as CONFIDENTIAL and subject to
the restrictions of this Protective Order:
(A) Medical records, records of medical treatment (including therapy), and
records related to any medications used or prescribed by a physician;
(B) Information protected by and specifically prohibited from release by statute or
regulation;
(C) Social security numbers, driver’s license numbers, and dates of birth;
(D) Personal bank records, income records, personal financial records and tax
records; and
(E) Such other information as a party may in good faith deem confidential.
2.

Information Not Subject To This Protective Order. This is information,

documents, and things subject to discovery in this action, produced outside the scope of this
Protective Order for which the party producing the documents or information does not assert any
sensitivity with respect to their future dissemination. Such documents or information so
produced will bear no stamp identifying them as subject to this Protective Order, and the party
receiving such documents or information is not in any way restricted in their future
dissemination by this order.
HANDLING OF CONFIDENTIAL INFORMATION

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4.

CONFIDENTIAL INFORMATION will be treated during discovery as

follows:
All CONFIDENTIAL INFORMATION shall be treated as such, and shall be disclosed
or made available only to (1) counsel who are attorneys of record (including counsels’ partners,
associates, associated counsel, paralegal, secretarial and clerical personnel); (2) the outside
experts employed by such attorneys for consultation or to render expert reports in accordance
with Fed. R. Civ. P. 26 (and the necessary secretarial and clerical personnel of such experts)
who are entitled under section 4 of this Order to receive such information; and (3) court
personnel, certified court reporters and copy services. CONFIDENTIAL INFORMATION
shall not be utilized by any person receiving it for any purpose other than in connection with
the prosecution or defense of this action.
CHALLENGES TO CONFIDENTIALITY DESIGNATIONS
5.

In the event that any party disagrees at any stage of the proceedings with the

designation of any information as CONFIDENTIAL INFORMATION, the parties shall try to
resolve such dispute in good faith on an informal basis. Any receiving party may at any time
request that the producing party cancel the CONFIDENTIAL INFORMATION designation with
respect to any document, object or information. Such request shall be written, shall be served on
counsel for the producing party, and shall particularly identify the designated CONFIDENTIAL
INFORMATION that the receiving party contends is not properly designated and the reasons
supporting its contentions. The producing party shall then reply in writing within fourteen (14)
calendar days (or by such other time as the parties may agree to in writing) of receipt and state
whether the party will agree to remove the disputed CONFIDENTIAL designation. If the
dispute cannot be informally resolved, then the receiving party shall have the right to object to

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the designation by appropriate motion before the Court. If a motion is filed, the initial
designation shall remain until the Court rules on such motion and thereafter shall be governed by
the Court's ruling. The acceptance by a party of any information, document or thing identified as
CONFIDENTIAL INFORMATION hereunder shall not constitute evidence, an admission or a
concession that the information, document or thing actually is confidential or proprietary.
TESTIMONY INCLUDING CONFIDENTIAL INFORMATION
6.

Depositions.

A.

Other than Court personnel and Court reporters, only counsel of record for the

parties, the parties, the witness, his/her attorney, and experts who have met the requirements of
Paragraph 4 of this Protective Order may be present at any examination concerning
CONFIDENTIAL INFORMATION of the other party or a third party.
B.

Information disclosed at any deposition may be designated CONFIDENTIAL by

indicating on the record at the deposition that testimony is CONFIDENTIAL INFORMATION
and is subject to the provisions of this Protective Order. Whenever any document designated
CONFIDENTIAL INFORMATION is identified as an exhibit in connection with testimony
given in a deposition, it shall be so marked and separately bound, unless the parties stipulate
otherwise on the record.
C.

Notwithstanding the provisions of Paragraph 5(B), a party may also designate

information disclosed at such deposition as CONFIDENTIAL INFORMATION by notifying all
of the parties, in writing, of the specific pages and lines of the transcript which should be treated
as CONFIDENTIAL INFORMATION thereafter within twenty (20) business days after notice
by the reporter that the transcript is available. Each party shall attach a copy of such written

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notice or notices to the face of the transcript and each copy thereof in his possession, custody, or
control.
D.

All deposition transcripts shall be treated as CONFIDENTIAL INFORMATION

subject to the Protective Order for a period of twenty (20) days after notice from the reporter that
the transcript is available. Notwithstanding the passage of twenty (20) business days, to the
extent that an opposing party has not, through counsel, disseminated information that is subject
to this Protective Order, the right to so designate shall remain, subject to challenge. If such a
challenge is made, the party allowing the twenty (20) business days to pass shall have the burden
before the Court of showing that the information has not become part of the public domain.
TIMING FOR CLASSIFICATION OF DOCUMENTS AND THINGS
7.

Marking Of Documents Or Things.

A.

Any party wishing to designate a produced document, or other thing, as

CONFIDENTIAL INFORMATION shall at the time of production, if at all possible, stamp or
otherwise mark the produced document or other thing with the word(s) “CONFIDENTIAL” or
“CONFIDENTIAL: Subject to Protective Order.” Any party wishing to designate a document
or other thing provided by a non-party as containing CONFIDENTIAL INFORMATION shall
submit to the other party, within twenty (20) business days following production or disclosure, a
written designation of the documents or things containing such information. During the twenty
(20) business days following production by a party, or nonparty, all such documents and things
shall be deemed to contain and/or constitute CONFIDENTIAL INFORMATION.
B.

The parties shall make a good-faith effort to designate CONFIDENTIAL

INFORMATION properly and with the appropriate classification at the time of production.
However, inadvertent or unintentional disclosure by any party of CONFIDENTIAL

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INFORMATION without any, or the appropriate, classification regardless of whether the
CONFIDENTIAL INFORMATION was designated at the time of disclosure, shall not be
deemed a waiver of a party's claim of confidentiality, either as to a specific document or
information contained therein, and the parties shall, upon notice, thereafter treat such
CONFIDENTIAL INFORMATION according to the correct designation and classification. A
receiving party shall make a good faith effort to locate and mark appropriately any
CONFIDENTIAL INFORMATION upon receipt of such notice.
C.

Likewise, if a producing party inadvertently discloses to a receiving party

documents or items that are asserted to be privileged or otherwise immune from discovery, said
producing party shall promptly, upon discovery of such disclosure, so advise the receiving party
in writing and request that the item or items of information be returned, and no party to this
action shall thereafter assert that such disclosure waived any privilege or immunity, provided that
the producing party demonstrates that: (1) the disclosure was inadvertent; (2) the producing party
acted promptly upon discovering the inadvertent disclosure; and (3) the inadvertence occurred
despite reasonable precautions to prevent inadvertent disclosure. Nothing herein shall be
construed to prevent the party returning the inadvertently disclosed material from seeking
production of any documents in accordance with the Federal Rules of Civil Procedure, provided
that, once the producing party makes the requisite showing set forth herein above, the returning
party does not assert waiver of the privilege or immunity because of the inadvertent production.
8.

All transcripts, depositions, exhibits, answers to interrogatories, and other

documents filed with the Court which have previously been designated by a party as comprising
or containing CONFIDENTIAL INFORMATION, or any pleading or memorandum purporting
to reproduce or paraphrase such information, or attach the same as an exhibit shall be filed with

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restricted access consisted with this Order and filed pursuant to Court rules and instructions for
such filings.
EXCLUSION OF PUBLIC DOMAIN INFORMATION
9.

Nothing in this Protective Order shall preclude any party to the lawsuit, their

attorneys or any other person from disclosing or using, in any manner or for any purpose, any
information or documents not obtained in discovery in this lawsuit, if such information is
lawfully obtained from another source, such as a third party having the right to disclose such
information, unless the obtaining party learned about or discovered the relevant documents or
information because they were produced or made available for inspection in discovery in this
lawsuit and designated as CONFIDENTIAL INFORMATION.
USE OF CONFIDENTIAL INFORMATION AT TRIAL
10.

The use of CONFIDENTIAL INFORMATION as evidence at the trial in this case

shall be subject to such protection as the Court shall determine at the time. No party hereto
waives any right it may have to object on any ground to the admission in evidence at the trial of
this action of any CONFIDENTIAL INFORMATION. A party that intends to introduce its own
CONFIDENTIAL INFORMATION at a hearing or trial shall be responsible for taking
appropriate measures with the Court to maintain confidentiality. In the event that a party intends
to introduce an opponent's CONFIDENTIAL INFORMATION, it shall notify the opponent prior
to the time at which it intends to introduce the opponent's CONFIDENTIAL INFORMATION.
If the opponent desires to maintain the confidentiality of this material, it shall be responsible for
taking appropriate measures with the Court to maintain confidentiality.

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REMEDIES FOR DISCLOSURE OF CONFIDENTIAL INFORMATION
11.

In addition to the right to have this Protective Order enforced by the Court's

contempt power, each party may recover damages for any actual loss caused by a breach of this
Protective Order.
NON-WAIVER OR PRIVILEGES AND OBJECTIONS
12.

Nothing in this Protective Order shall be construed to require production of

CONFIDENTIAL INFORMATION that is privileged or otherwise protected from disclosure.
The entry of this Protective Order shall not constitute a waiver by any party of any objection to
disclosure or production of any information or material during discovery.
13.

Nothing in this Protective Order shall be construed to mean that the production of

a document or thing (in whole or in part) constitutes either (a) an admission by any party that the
produced item is relevant, authentic, or properly produced, or (b) a waiver of any right properly
to withhold from production any other document.
MISCELLANEOUS
14.

The terms of this Protective Order shall survive the final termination of this

litigation and shall continue to apply fully to all CONFIDENTIAL INFORMATION that has not
properly become a matter of public record. Following final termination of this litigation, this
Court shall retain and have jurisdiction over the parties and all persons who received access to
CONFIDENTIAL INFORMATION in accordance with the terms of this Protective Order.
15.

This Protective Order shall be binding upon the parties hereto, upon their

attorneys, and upon the parties and their attorneys’ successors, executors, personal
representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions,

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officers, directors, employees, agents, and independent contractors, and other persons or
organizations over which they have control.
16.

Nothing in this Protective Order shall bar or otherwise restrict any attorney herein

from rendering advice to the attorney's party-client with respect to this action, and in the course
thereof, relying upon an examination of CONFIDENTIAL INFORMATION; provided, however,
that in rendering such advice and in otherwise communicating with the party-client, the attorney
shall not disclose the proprietary or otherwise confidential substance of any CONFIDENTIAL
INFORMATION nor the source of any CONFIDENTIAL INFORMATION to anyone not
authorized to receive such documents, things, materials or information pursuant to the terms of
this Protective Order.
17.

Nothing in this Protective Order shall be construed to bar or otherwise restrict any

party from use of the parties’ own CONFIDENTIAL INFORMATION.
18.

No later than thirty (30) days after the final termination of this action, including

all appeals, the attorneys for each party shall destroy all copies of CONFIDENTIAL
INFORMATION produced by the opposing party which respective parties have in their
possession, custody, or control. The attorneys for the parties shall be entitled to retain all
pleadings and litigation documents, including exhibits and their own memoranda, containing
CONFIDENTIAL INFORMATION but such litigation documents and memoranda shall be used
only for the purpose of preserving a file on this action, and shall not without the written
permission of the opposing party or an Order of this Court, be disclosed to anyone other than the
outside attorneys to whom such information was actually disclosed, in accordance with this
Protective Order during the course of this action.

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19.

In the event that a party seeks discovery from a non-party to this suit, the nonparty

may invoke the terms of this Protective Order in writing to all parties to this suit with respect to
any CONFIDENTIAL INFORMATION provided to the requesting party by the non-party.

DATED at Denver, Colorado, on October 31, 2014.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

The parties hereby agree to the above Protective Order entered by the Court.

s/Juliane T. DeMarco
Juliane T. DeMarco
Michelle Tyler Michel
Assistant County Attorney
Adams County Attorney’s Office
4430 S. Adams County Pkwy
5th Floor, Suite C5000B
Brighton, CO 80601
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]
Counsel for Defendants

s/Clifford L. Beem
Clifford L. Beem
A. Mark Isley
730 - 17th Street, Suite 850
Denver, Colorado 80202
Ph: 303.894.8100
Fax: [phone]
[e-mail]
[e-mail]
Counsel for Plaintiff

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01886-WYD-CBS
CATALIN G. PAVEL,
Plaintiff,
v.
ADAMS COUNTY SHERIFF’S OFFICE;
SHERIFF DOUGLAS N. DARR, in his official and individual capacities;
UNDERSHERIFF ROGER ENGELSMAN, in his official and individual capacities;
COMMANDER MARK MITCHELL, in his individual capacity;
COMMANDER JIM HINRICHS, in his individual capacity;
SERGEANT KEVIN CURRIER, in his individual capacity; and
SERGEANT GENE CLAPS, in his individual capacity;
Defendants.
______________________________________________________________________________
ACKNOWLEDGEMENT OF CONFIDENTIALITY
______________________________________________________________________________
I, __________________________________, pursuant to 28 U.S.C. § 1746, declare under
penalty of perjury as follows:
I understand that confidential documents, testimony and/or information may be revealed
to me for purposes of the above-captioned lawsuit. I have been advised that, by agreement
among the parties, as so ordered by the Court, such documents, testimony and/or information
may not be used for any purposes other than the prosecution or defense of said lawsuit.

I have read the Protective Order entered in this lawsuit. I agree to maintain the
confidentiality of any documents, testimony and/or information provided to me and otherwise to
abide by the terms of the Protective Order.
I have been advised that any unauthorized use or disclosure by me of any confidential
documents, testimony and/or information will be treated as a breach of the Protective Order for
which I may be liable for damages and subject to sanction by the Court. I agree to subject
myself to the jurisdiction of the Court for purposes of enforcement of the provisions of the
Agreement.
Dated: _____________________

________________________________
PRINT NAME
_________________________________
SIGNATURE

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