Watts v. Smoke Guard, Inc. et al

Filing 73

ORDER granting 66 Motion for Protective Order. By Magistrate Judge Nina Y. Wang on 5-18-15. (nywlc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 2014-cv-1909-WYD-NYW
RAY TRIPP WATTS
Plaintiff
v.

SMOKE GUARD, INC.;
POWERS PRODUCTS CO.;
THE RESIDENCES AT LITTLE NELL DEVELOPMENT, LLC.
Defendants

CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER

The discovery sought by the parties in the above-styled case is likely to involve
production of documents and things containing business, competitive, proprietary, trade
secret within the meaning of Fed. Rule Civ. P. 26(c), or other information of a sensitive
nature about thea party or third-party subject to protection from disclosure pursuant to
that Rule upon court order (or of another person which information the party is under a
duty to maintain in confidence), hereafter referred to as "Confidential Information," and
witness testimony containing Confidential Information. Accordi ngly, the parties having
agreed to enter into this Confidentiality Stipulation and Protective Order ("the Order") to
govern the production of documents and testimony

that

contains

Confidential

Information, and for good cause shown, the Court hereby ORDERS as follows:

Designation of Confidential Information
1.

Designation of Material. Documents and other things claimed to be or to

containing Confidential Information shall, prior to production, be marked by the
producing party as "Confidential." Placement of the "Confidential" designation on each
protected page when it is produced shall constitute notice and shall designate the
document as Confidential material. Copies, extracts, summaries, notes, and other
derivatives of Confidential material also shall be deemed Confidential material and
shall be subject to the provisions of this Order.
2.

Subsequent Designation. Documents and/or materials produced in the

litigation that are not identified as Confidential Information when they were initially
produced may within a reasonable time thereafter be designated as Confidential by the
producing party, or by the party or parties receiving the production, or by a person, by
providing written notice to counsel for all other parties and to any person who may be
involved. Each party or person who receives such written notice shall endeavor to
retrieve any Confidential Information that may have been disseminated, shall affix a
"Confidential" designation to it, and shall thereafter distribute it only as allowed by this
Order. No distribution prior to the receipt of such written notice shall be deemed a
violation of this Order.
3.

Designation of Depositions. Depositions or portions thereof upon oral or

written questions may be classified as Confidential Information either by an examining
party's attorney or by an attorney defending or attending the deposition. A party
claiming that a deposition or any portion thereof is Confidential Information shall give
notice of such claim to the other affected parties and persons either prior to or during
the deposition, or within twenty-eight (28) days after receipt of the deposition transcript,

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and the testimony taken and the transcript of such deposition or portion thereof shall be
designated as Confidential.
4.

Modification of Designation. The designation of Confidential Information

by the designating party shall not be determinative and may be modified or eliminated at
any time in one of two ways, as explained below.
(a)

The designating party may agree in writing to downgrade or eliminate
the Confidential designation concerning any material it produced.

(b)

If the parties cannot agree as to the designation of any particular
information or material after good faith discussion, the receiving party
may move the Court to downgrade or eliminate the "Confidential"
designation. The burden of proving that the information has been
properly designated as protected shall be on the party who made the
original designation.
Access to Confidential Information

5.

General Access. Except as

otherwise expressly provided herein or

ordered by the Court, Confidential Information may be revealed only to those identified
as follows:
(a)

To outside counsel for a party hereto (and secretaries, paralegals, and
other staff employed in the offices of such outside counsel who are
working on the litigation.

(b)

To the parties after they have been given a copy of this Confidentiality
Stipulation by their outside counsel.

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(c)

To court reporters transcribing a deposition, hearing, or other
proceeding in this matter.

(d)

To independent experts and independent consultants (meaning a
person who is retained by a party or a party's outside counsel in good
faith for the purpose of assisting in this litigation).

(e)

To claims professional for parties' insurance companies that may
afford coverage for the claim.

Nothing herein shall prevent the producing party from showing the documents or
information to an employee of that party.
6.

No Copies/Notes. Except for use by outside counsel for the parties

hereto, for Court and deposition copies, and for such use as is expressly permitted
under the terms hereof, no person granted access to Confidential Information shall
make copies, reproductions, transcripts, or facsimiles of the same or any portion thereof
or shall take notes or otherwise summarize the contents of such Confidential
Information excepting reproduction in the course of maintaining counsel's file and
communications with those otherwise identified under subsection 5 above .
7.

Disputes over Access. If a dispute arises as to whether a particular

person should be granted access to Confidential Information, the party seeking
disclosure may move the Court to permit the disclosure and must obtain an order of the
Court before disclosing the information.

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Use of Confidential Information

8.

Use in this Litigation Only. Confidential Information may be used only for purposes of

this litigation. Each person to whom the disclosure of any Confidential Information is made shall
not, directly or indirectly, use, disclose, or disseminate, or attempt to use, disclose, or
disseminate, any of the same except as expressly provided herein.
9.

Use at Depositions. If Confidential Information is to be discussed or disclosed

during a deposition, the producing party shall have the right to exclude from attendance at the
deposition, during the time the Confidential Information is to be discussed, any person not
entitled under this Order to receive the Confidential Information.
10.

Use at Court Hearings and Trial. Subject to the Federal Rules of Evidence,

Confidential Information may be offered into evidence at trial or at any hearing or oral
argument, provided that the proponent of the evidence containing Confidential Information gives
reasonable advance notice to the Court and counsel for the producing or designating party. Any
party may move the Court for an order that the evidence be received in camera or under other
conditions to prevent unnecessary disclosure. If presented at trial, the status of evidence as
Confidential Information shall not be disclosed by a party to the finder of fact.
11.

Filing Under Seal. Each document filed with the Court that contains any Confidential Information
shall be filed with the court in a manner compliant with D.C.COLO.LCivR 7.2. Notwithstanding the
foregoing, nothing in this Protective Order should be construed as an affirmative ruling that any
motion to restrict will be granted, even if the Parties so stipulate. electronically under seal or in a
sealed envelope or other appropriate sealed container on which shall be set forth the title and
number of

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this action, a general description or title of the contents of the envelope, and a
statement that the contents are Confidential and subject to a Protective Order and that
the envelope is not to be opened nor the contents thereof revealed except to counsel of
record in the litigation or court personnel, or pursuant to order of the Court. Copies of
such documents served on counsel for other parties shall be marked as Confidential.
12.

Reasonable Precautions. Counsel for each party shall take all reasonable

precautions to prevent unauthorized or inadvertent disclosure of any Confidential
Information.
13.

Return After Litigation. Within thirty (30) days of the final termination of

this litigation by judgment, appeal, settlement, or otherwise, or sooner if so ordered by
the Court, counsel for each party shall return to counsel for the party who furnished the
same all items constituting, containing, or reflecting the other party's Confidential
Information or certify that it has been destroyed except. Maintenance of counsel file
shall be excepted from this subsection.
Other Provisions

14.

Not an Admission. Nothing contained herein shall preclude the parties or a

person from raising any available objection, or seeking any available protection with
respect to any Confidential Information, including but not limited to the grounds of
admissibility of evidence, materiality, trial preparation materials and privilege.
15.

Objections. A party may object to the designation of particular

Confidential Information by giving written notice to the party designating the disputed
information. The written notice shall identify the information to which the objection is

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made. 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. If such a motion is timely filed, the disputed information shall be
treated as Confidential 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 and shall not
thereafter be treated as Confidential in accordance with this Protective Order until such
a motion is filed. In connection with a motion filed under this provision, the party
designating the information as Confidential shall bear the burden of establishing that
good cause exists for the disputed information to be treated as Confidential. Gillard v.
Boulder Valley School District, 196 F.R.D. 382 (D.Colo. 2000).
16. Miscellaneous. This Order shall apply to the production of all materials
whether or not such materials are informally produced or produced in response to a
formal discovery request or a Court order in this litigation. This Order may be used to
protect the confidentiality of the social security numbers of the parties and of any and all
current

or

former

employees

of

either

7

of

the

parties

or

their

affiliates.

The parties having stipulated and agreed hereto, it is SO ORDERED, this 18th day of
May, 2015.

DATED May 18, 2015.

BY THE COURT:
/s/ Nina Y. Wang___________
United States Magistrate Judge

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