Waller v. City and County of Denver et al
PROTECTIVE ORDER entered by Magistrate Judge Boyd N. Boland on 1/21/15. (bsimm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02109-WYD-BNB
CITY and COUNTY of DENVER, a municipal corporation,
BRADY LOVINGIER, individually and in his official capacity,
GINA MCCALL, individually and in her official capacity.
The Court hereby enters this Protective Order pursuant to Fed.R.Civ.P. 26(c) and orders
In this action, it is anticipated that the Parties will disclose and/or seek
Confidential Information (as defined in paragraph 3 below). The Parties also anticipate that they
will seek additional information that the opposing Party(ies) may deem to be Confidential
Information during all aspects of discovery. The disclosure of such information outside the
scope of this litigation could result in significant injury to one or more of the Parties’ business or
Defendants the City and County of Denver and Captain Gina McCall request that
the Court enter the within Protective Order for the purpose of preventing the disclosure and use
of Confidential Information except as set forth herein. Any information designated by a Party as
Confidential must be reviewed by counsel who will certify that the designation as Confidential is
based on a good faith belief that the information is confidential or otherwise entitled to
protection under Fed. R. Civ. P. 26(c)(7) or otherwise involves common law or statutory
“Confidential Information” means any document, file, portions of files,
transcribed testimony, disclosures, response to a discovery request, including any extract,
abstract, chart, summary, note or copy made therefrom and designated by one of the parties in
the manner provided in paragraph 4 below as containing Confidential Information, including, but
not limited to:
Plaintiff’s personnel, medical, mental health records or other confidential
records of the Plaintiff;
Plaintiff’s employment, tax and/or financial records;
Plaintiff’s juvenile and/or sealed arrest and/or criminal history records;
The personnel, employment, internal affairs investigation and discipline
records and/or files of any party or third-party.
Where Confidential Information is produced, provided or otherwise disclosed by
a Party in the course of this case, it will be designated in the following manner:
By imprinting the word “Confidential” on the first page or cover of any
document produced or otherwise imprinting the word “Confidential” on
each page in such a manner as not to obscure the text of the document;
By imprinting the word “Confidential” next to or above any response to a
discovery request; or
With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” no later than
ten calendar days after receipt of the transcribed testimony.
All Confidential Information disclosed by a Party or provided by a Party in
response to a discovery request or transcribed testimony shall be subject to the following
It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;
It shall not be communicated or disclosed by any Party’s counsel or a
Party in any manner, either directly or indirectly, to anyone except for
purposes of this case and unless an affidavit in the form of Exhibit A has
been signed by the recipient of the Confidential Information.
Individuals authorized to review Confidential Information pursuant to this
Protective Order including, but not limited to, the Parties to this action and their undersigned
counsel, shall hold Confidential Information in confidence and shall not divulge the Confidential
Information, either verbally or in writing, to any other person, entity or government agency
unless authorized to do so by court order.
The Party’s counsel who discloses Confidential Information shall be responsible
for assuring compliance with the terms of this Protective Order with respect to persons to whom
such Confidential Information is disclosed and shall retain the original affidavits signed by
qualified recipients of confidential information and shall maintain a list of all persons to whom
any Confidential Information is disclosed.
During the pendency of this action, opposing counsel may upon court order or
agreement of the Parties inspect the list maintained by counsel pursuant to paragraph 6 above
upon showing of substantial need in order to establish the source of an unauthorized disclosure
of Confidential Information and that opposing counsel are unable to otherwise identify the
source of the disclosure. If a Party disagrees with the other Party’s showing of substantial need,
then a Party may seek a court order requiring inspection under terms and conditions deemed
appropriate by the Court.
No copies of Confidential Information shall be made except by or on behalf of
counsel in this litigation for work product purposes, including for review by experts in this case.
Any such copies shall be made and used solely for purposes of this litigation.
During the pendency of this litigation, counsel shall retain custody of Confidential
Information, and copies made therefrom pursuant to paragraph 8 above, except that copies of
Confidential Information may be retained by experts, consultants or representatives of the Parties
during the pendency of this case.
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 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. 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.
Any request to restrict access must comply with the requirements of
D.C.COLO.LCivR 7.2. In the event it is necessary for the Parties to file Confidential
Information with the Court in connection with any proceeding or motion, the Confidential
Information shall be filed in accordance with the requirements of D.C.COLO.LCivR 7.2.
The termination of this action shall not relieve counsel or other persons obligated
hereunder from their responsibility to maintain the confidentiality of Confidential Information
pursuant to this Protective Order, and the Court shall retain continuing jurisdiction to enforce the
terms of this Protective Order, even after this action is terminated.
The Parties have adopted no position as to the authenticity or admissibility of
documents produced subject to this Protective Order. Neither the taking of any action in
accordance with the provisions of this Protective Order, nor the failure to object thereto, shall be
construed as a waiver of any claim or defense in this action.
The terms and conditions in this Protective Order survive the termination of this
litigation. Any Party in possession of Confidential Information shall notify the producing Party
that they have destroyed the Confidential Information or shall return to the producing Party all
Confidential Information provided subject to this Protective Order within 60 days of the
conclusion of this litigation, except as otherwise provided at ¶18.
Nothing in this Protective Order shall preclude any Party from filing a motion
seeking further or different protection from the Court under Rule 26(c) of the Federal Rules of
Civil Procedure, or from filing a motion with respect to the manner in which Confidential
Information shall be treated at trial.
Nothing in this Protective Order shall relieve any Party of its obligation under
Fed. R. Civ. P. 26(b)(5).
Notwithstanding any provision to the contrary, all such material obtained,
including copies or summaries shall be maintained in a secure manner and eventually destroyed
Records retained by counsel shall be destroyed in accordance with
counsel’s regular business practices for destruction of client files unless a
hold order from another court reasonably requires a longer retention
Records retained by Defendants’ liability carriers (if any) shall be
at the earliest date that is in accordance with insurance regulations, hold
orders issued by other courts, statutory requirements and the insurance
carriers’ regular business practices.
Records retained by Defendants’ liability carriers and by counsel shall be
retained as required by court order, insurance regulation or statutory
DATED January 21, 2015.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
_____________________________, swears or affirms and states under penalty of
I have read the Protective Order in Waller v. City and County of Denver, et. al.,
Civil Action No. 14-cv-02109-WYD-BNB, a copy of which is attached to this Affidavit.
I have been informed by ___________________________, Esq., counsel for
_______________________________, that the materials described in the list attached to this
Affidavit are Confidential Information as defined in the Protective Order.
I promise that I have not and will not divulge, or undertake to divulge to any
person or recording device any Confidential Information shown or told to me except as
authorized in the Protective Order. I will not use the Confidential Information for any purpose
other than this litigation.
For the purpose of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
I will abide by the terms of the Protective Order.
(Print or Type Name)
Telephone No.: (_____) _____________________
SUBSCRIBED AND SWORN to before me this ____ day of ________________, 201__
WITNESS my hand and official seal.
My commission expires:________________
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