Beatty v. Vitrolife, Inc.

Filing 16

PROTECTIVE ORDER by Judge Richard P. Matsch on 1/21/2015. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02357-RPM
DAWN BEATTY,
Plaintiff,
v.
VITROLIFE, INC., a Colorado corporation,
Defendant.

PROTECTIVE ORDER

This matter comes before the Court on the parties’ Stipulated Motion for Entry of
Protective Order.

The Court has reviewed that Motion.

The Motion is meritorious and

acceptable. Therefore, IT IS ORDERED:
1.

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

including without limitation, documents produced, 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, “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.

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3.

Information designated “CONFIDENTIAL” shall be information that is

confidential and entitled to protection under Fed. R. Civ. P. 26(c)(1), and that contains (a)
personnel information concerning current and former employees of Defendant to the extent that
such information implicates privacy interests and is not generally known to the public; (b)
information containing industry trade secrets; (c) business records and communications that
contain confidential and proprietary business information; and (d) other documents that implicate
a common law or statutory privacy interest such as personal identifying information, including
social security information and tax returns, or any other information that is otherwise entitled to
protection under Fed. R. Civ. P. 26(c)(1)(G).
4.

Documents designated as “CONFIDENTIAL” shall be first reviewed by a lawyer

who will certify that the designation is based on a good faith belief that the information is
confidential or otherwise entitled to protection under Fed. R. Civ. P. 26(c)(1). Parties and
attorneys designating documents as “Confidential” will be representing that such documents
contain information the disclosure of which would implicate an important interest to be protected
which outweighs the presumption of public access, and that they will be able to identify to the
Court a clearly defined and serious injury that would result if access is not restricted, as required
by D.C.COLO.LCivR 7.2(B)(2) & (3).
5.

CONFIDENTIAL documents, materials, and/or information (collectively

“CONFIDENTIAL information”) shall be used solely for the purpose of this action, and shall
not, without the consent of the party producing it or further Order of the Court, be used,
transferred, disclosed or communicated in any way, except that such information may be
disclosed to:
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(a)

attorneys actively working on this case;

(b)

persons regularly employed or associated with the attorneys actively working on

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

the parties, including designated representatives for Defendant, whose assistance

is required by said attorneys in the preparation for trial, at trial, or at other proceedings in this
case;
(d)

expert witnesses and consultants retained in connection with this proceeding, to

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

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

(f)

stenographic reporters who are engaged in proceedings necessarily incident to the

conduct of this action;
(g)

deponents, witnesses, or potential witnesses; and

(h)

other persons by written agreement of the parties.

6.

Prior to disclosing any CONFIDENTIAL information to any person listed above

(other than counsel, persons employed by counsel, Court Personnel and stenographic reporters),
counsel shall provide such person with a copy of this Protective Order and obtain from such
person an executed “Written Assurance” in the form attached hereto as Exhibit A. All such
written assurances 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. During the pendency of
this action, opposing counsel may upon Court order or agreement of the Parties, inspect the
Written Assurances maintained by counsel upon showing of substantial need in order to establish
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the source of an unauthorized disclosure of CONFIDENTIAL information. If counsel disagrees
with opposing counsel’s showing of substantial need, then counsel may request the Court
disallow inspection, or allow inspection under terms and conditions deemed appropriate by the
Court. The party requesting inspection shall bear the burden of establishing substantial need.
7.

Documents are designated as CONFIDENTIAL by placing or affixing on them

(in a manner that will not interfere with their legibility) the following or other appropriate notice:
“CONFIDENTIAL.”
8.

In the event Electronically Stored Information (“ESI”) is disclosed or discovered

in the course of this litigation, including, but not limited to, ESI provided in a native format on
hard disks or other magnetic data storage disks, removable disks and/or drives, portions thereof,
or digital images of data storage disks or drives, such information may be designated as
CONFIDENTIAL in a written communication or in an electronic mail message to the nonproducing party.
9.

Any party who inadvertently fails to identify documents or information as

CONFIDENTIAL shall, promptly upon discovery of its oversight, provide written notice of the
error and substitute appropriately-designated documents. Any party receiving such improperlydesignated documents shall promptly retrieve such documents from persons not entitled to
receive those documents and, upon receipt of the substitute documents, shall return or destroy the
improperly-designated documents and provide the producing party with an affidavit of
destruction.
10.

Any party who inadvertently discloses documents that are privileged or protected

by the work product doctrine shall, promptly upon discovery of such inadvertent disclosure, so
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advise the receiving party and request that the documents be returned. The receiving party shall
return such inadvertently produced documents, including all copies and copies the receiving
party provided to any other individual or entity, within 14 days of receiving such a written
request, unless such inadvertently disclosed documents are the subject of a Motion to Compel
filed within 14 days of receiving a written request to return the documents, in which case the
inadvertently disclosed documents shall be treated as CONFIDENTIAL until such time as the
Court rules upon the Motion.
11.

Any request to restrict access must comply with the requirements of

D.C.COLO.LCivR 7.2.
12.

Whenever a deposition involves the disclosure of CONFIDENTIAL information,

the portions thereof that involve the disclosure of CONFIDENTIAL information shall be
designated as CONFIDENTIAL 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 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. Transcript pages containing
CONFIDENTIAL information must be separately bound by the court reporter, who must affix to
the top of each such page the legend “CONFIDENTIAL,” as instructed by the party or non-party
offering or sponsoring the witness or presenting the testimony.
13.

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
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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.
14.

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

document and all copies thereof which have been designated as CONFIDENTIAL shall be
returned to the party that designated it CONFIDENTIAL, or the parties may elect to destroy
CONFIDENTIAL documents; provided, however, that counsel for each Party may retain one
copy of the CONFIDENTIAL documents for the sole purpose of maintaining a complete file,
and all such retained documents will not be released, disclosed, or utilized except upon express
permission of this Court after written notice to counsel for the Party that produced the
documents. Where the parties agree to destroy CONFIDENTIAL documents, the destroying
party shall provide all parties with an affidavit confirming the destruction upon request from the
producing party.

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15.

Nothing in this Protective Order shall prevent any party or other person from

seeking modification of this Order or from objecting to discovery that the party or other person
believes to be improper. Nothing in this Protective Order shall prejudice the right of any party to
contest the alleged relevancy, admissibility, or discoverability of confidential documents or
information sought.
16.

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.
ORDERED this 21st day of January, 2015.
BY THE COURT:

s/Richard P. Matsch
_________________________________
Richard P. Matsch, Senior District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02357-RPM
DAWN BEATTY,
Plaintiff,
v.
VITROLIFE, INC., a Colorado corporation,
Defendant.

EXHIBIT A TO PROTECTIVE ORDER – CONFIDENTIALITY AGREEMENT

I, _________________________________________ the undersigned, hereby declare
that:
I reside at _______________________________________ in the City of
__________________, County of
, State of
_____________. My telephone number is __________________________________.
I acknowledge that I have been informed that a Protective Order issued by the Court in
the above captioned civil action requires confidentiality with respect to information designated as
“CONFIDENTIAL” and therefore I agree to keep all such information and materials strictly and
absolutely confidential, and in all other respects be bound by the provisions of the Protective
Order.
As soon as practical, but no later than 30 days after final termination of this action, I shall
return to the attorney from whom I have received them, any documents in my possession
designated “CONFIDENTIAL,” and all copies, excerpts, summaries, notes, digests, abstracts,
and indices relating to such documents.
Executed on ______________________
(Date)

___________________________
(Signature)

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