Stillwater Mining Company v. Power Mount Incorporated

Filing 31

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 1/21/15. ORDERED that when filing restricted documents, parties MUST fully comply with the requirements of D.C.ColoL.CivR. 7.2. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv 02475-WYD-CBS
STILLWATER MINING COMPANY,
Plaintiff,
v.
POWER MOUNT INCORPORATED,
Defendant.
STIPULATED PROTECTIVE ORDER
Upon a showing of good cause in support of the entry of a protective order to protect the
discovery and dissemination of private proprietary information, trade secrets, and/or other
confidential research, development, or commercial information, 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.
3.

Information designated "CONFIDENTIAL" shall be information that is

confidential and implicates private proprietary information, trade secrets, and/or other
confidential research, development or commercial information. CONFIDENTIAL information

shall not be disclosed or used for any purpose except the preparation and trial of this case. Prior
to designating any information as “CONFIDENTIAL,” the designating party’s attorney shall
review the information and shall only so designate if he or she has a good faith belief that it is
confidential or otherwise entitled to protection.
4.

Information designated as “ATTORNEYS’ EYES ONLY” shall be information

that is confidential and implicates private proprietary information, trade secrets, and/or other
confidential research, development or commercial information that if disclosed to a party itself as
opposed to its attorneys, could cause substantial economic harm to the competitive position to
the designating party. ATTORNEYS’ EYES ONLY information shall not be disclosed or used
for any purpose except the preparation and trial of this case, and may not be disclosed to the
parties themselves unless otherwise ordered by the Court. Prior to designating any information
as “ATTORNEYS’ EYES ONLY,” the designating party’s attorney shall review the information
and shall only so designate if he or she has a good faith belief that it is confidential or otherwise
entitled to protection as described in this paragraph.
5.

Production or other disclosure of documents subject to work-product immunity,

the attorney-client privilege, or other legal privilege that protects information from discovery
shall not constitute a waiver of the immunity, privilege, or other protection, provided that the
producing party notifies the receiving party in writing when it becomes aware of such
inadvertent production. Copies of such inadvertently produced privileged and/or protected
document(s) shall be returned to the producing party or destroyed immediately upon notice of
privilege and any information regarding the content of the document(s) shall be deleted from any
litigation support or other database and is forbidden from disclosure and forbidden from use in
this action or for any other reason at all. The parties shall have the benefit of all limitations on

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waiver afforded by Federal Rules of Evidence 502. Any inadvertent disclosure of privileged
information shall not operate as a waiver in any other federal or state proceeding, and the parties’
agreement regarding the effect of inadvertent disclosure of privileged information shall be
binding on non-parties.
6.

CONFIDENTIAL documents, materials, and/or information (collectively

"CONFIDENTIAL information") shall not, without the written consent of the party producing it
or further Order of the Court, be disclosed except that such information may be disclosed to:
(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;
(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) persons whose depositions are taken for use in this case; and
(h) other persons by written agreement of the parties.
7.

ATTORNEYS’ EYES ONLY documents, materials, and/or information

(collectively "ATTORNEYS’ EYES ONLY information") shall not, without the written consent
of the party producing it or further Order of the Court, be disclosed except that such information
may be disclosed to:
(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;

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(c) the Court and its employees ("Court Personnel");
(d) stenographic reporters who are engaged in proceedings necessarily incident to the
conduct of this action;
(e) witnesses who are employees or former employees of the party that produced the
ATTORNEYS’ EYES ONLY information who are being deposed or cross examined at
trial; and
(f) other persons by written agreement of the parties.
8.

Prior to disclosing any CONFIDENTIAL information (or ATTORNEYS’ EYES

ONLY 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 a written acknowledgment stating that
he or she has read this Protective Order and agrees to be bound by its provisions and the
continued jurisdiction of the Court to enforce this Protective Order. All such acknowledgments
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.
9.

Documents are designated as CONFIDENTIAL by placing or affixing on them

(in a manner that will not interfere with their legibility) the term “CONFIDENTIAL.” If files are
produced in their native formats, the producing party can also designate such documents as
CONFIDENTIAL by either putting CONFIDENTIAL in the name of the native file or by
designating such documents as “CONFIDENTIAL” in correspondence from counsel of the party
producing the documents.
10.

Documents are designated as ATTORNEYS’ EYES ONLY by placing or affixing

on them (in a manner that will not interfere with their legibility) the term “ATTORNEYS’ EYES
ONLY.” If files are produced in their native formats, the producing party can also designate
such documents as ATTORNEYS’ EYES ONLY by either putting ATTORNEYS’ EYES ONLY

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in the name of the native file or by designating such documents as “ATTORNEYS’ EYES
ONLY” in correspondence from counsel of the party producing the documents.
11.

Whenever a deposition involves the disclosure of CONFIDENTIAL information,

the deposition or portions thereof 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.
12.

If a deposition may involve the disclosure of ATTORNEYS’ EYES ONLY

information to a witness who is not an employee or former employee of the producing party, if
the parties cannot reach a mutual written agreement, the disclosure of such information at the
deposition shall be determined by the presiding Judge, and at a minimum afforded as much
protection as the disclosure of CONFIDENTIAL information in such circumstances.
13.

The inadvertent or mistaken disclosure of CONFIDENTIAL information or

ATTORNEYS’ EYES ONLY information does not waive any party’s or nonparty’s claim of
confidentiality. Any party or nonparty who inadvertently or mistakenly produces
CONFIDENTIAL information or ATTORNEYS’ EYES ONLY information without an
appropriate designation of confidentiality shall promptly notify the party or parties receiving the
CONFIDENTIAL information or ATTORNEYS’ EYES ONLY information when inadvertent
production is discovered. Upon receiving written notice that material has been inadvertently or
mistakenly produced without an appropriate designation of confidentiality, the party or parties
receiving the CONFIDENTIAL information or ATTORNEYS’ EYES ONLY information will

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immediately begin treating the material as CONFIDENTIAL information or ATTORNEYS’
EYES ONLY information under this Order and either mark the material per the producing or
disclosing party’s instructions or return the CONFIDENTIAL information or ATTORNEYS’
EYES ONLY information to the producing or disclosing party for marking.
14.

A party may object to the designation of particular CONFIDENTIAL information

or ATTORNEYS’ EYES ONLY 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 twenty-one (21) days after
the time the notice is received, it shall be the obligation of the party designating the information
as CONFIDENTIAL or ATTORNEYS’ EYES ONLY 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 or ATTORNEYS’ EYES ONLY 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 or
ATTORNEYS’ EYES ONLY and shall not thereafter be treated as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY in accordance with this Protective Order. In connection with a
motion filed under this provision, the party designating the information as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY shall bear the burden of establishing that good cause exists for the
disputed information to be treated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY.
15.

A party’s right to use any CONFIDENTIAL information or ATTORNEYS’

EYES ONLY information at a hearing, trial, or other proceeding in this action shall be
determined by the presiding Judge. The designation of material as CONFIDENTIAL

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information or ATTORNEYS’ EYES ONLY information shall not otherwise affect the Court’s
determination as to whether it shall be received into evidence; nor shall such designation
constitute the authentication of such material or a waiver of any right to challenge the relevance,
confidentiality, or admissibility of such material.
16.

Any person subject to this Order who receives a request or subpoena for

production or disclosure of CONFIDENTIAL information or ATTORNEYS’ EYES ONLY
information shall, within three (3) business days of receipt of the request or subpoena, give
written notice to the party or non-party who originally produced or disclosed the
CONFIDENTIAL information or ATTORNEYS’ EYES ONLY information, identifying the
information sought and enclosing a copy of the subpoena or request. The person subject to the
subpoena or other request shall not produce or disclose the requested CONFIDENTIAL
information or ATTORNEYS’ EYES ONLY information without consent of the producing or
designating party or nonparty until ordered to do so by a court of competent jurisdiction.
Nothing in the Order shall be construed as prohibiting production of CONFIDENTIAL
information or ATTORNEYS’ EYES ONLY information covered by this Order in response to a
lawful Court order.
17.

The party receiving the CONFIDENTIAL information or ATTORNEYS’ EYES

ONLY information may only submit such CONFIDENTIAL information or ATTORNEYS’
EYES ONLY information and all briefs, memoranda, affidavits, transcripts, exhibits, and other
papers containing notes or summaries of CONFIDENTIAL information or ATTORNEYS’
EYES ONLY information to the Court under restriction in accordance with D.C.COLO.LCivR
7.2.

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18.

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

document and all copies thereof which have been designated as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY information shall be returned to the party that designated it
CONFIDENTIAL or ATTORNEYS’ EYES ONLY information within forty-five (45) days of
conclusion of this action and any post trial filings and appeals arising from the same, or the
parties may elect to destroy CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents;
provided, however, that counsel for each party may retain one copy of the CONFIDENTIAL or
ATTORNEYS’ EYES ONLY 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 or ATTORNEYS’ EYES
ONLY documents, the destroying party shall provide all parties with an affidavit confirming the
destruction within forty-five (45) days after conclusion of the action.
19.

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.

21st
Dated this ____ day of January

, 2015
SO ORDERED:

U.S. DISTRICT COURT JUDGE
Craig B. Shaffer 
United States Magistrate Judge 

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Submitted and approved as to form and content this 16th day of January, 2015.

Davis Graham & Stubbs, LLP

Wheeler Trigg O’Donnell, LLP

s/ Jordan Lipp
Jordan Lipp
Daniel Spivey
1550 17th Street, Suite 500
Denver, CO 80202

s/ Matthew E. Johnson
Matthew E. Johnson
Habib Nasrullah
Cara E. Dearman
370 17th Street, Suite 4500
Denver, CO 80202

Attorneys Stillwater Mining Company

Attorneys for Power Mount Incorporated

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