Divis v. Skywest Airlines, Inc.
Filing
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STIPULATED PROTECTIVE ORDER, by Magistrate Judge Kathleen M. Tafoya on 4/2/15. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02551-KMT
Katherine Divis,
Plaintiff,
v.
SkyWest Airlines, Inc.,
a Utah corporation,
Defendant.
______________________________________________________________________________
STIPULATED PROTECTIVE ORDER
______________________________________________________________________________
Under Fed. R. Civ. P. 26(c), upon a showing of good cause in support of the entry of a
stipulated protective order to protect the discovery and dissemination of trade secrets or other
confidential research, development, personnel or commercial information and information that
will improperly annoy, embarrass, or oppress any party, witness, or person in this case,
IT IS ORDERED:
1.
This Stipulated Protective Order shall apply to all documents, materials, and
information, including without limitation, initial disclosures, documents produced, answers to
interrogatories, responses to requests for admission, deposition testimony,designated deposition
exhibits, designated testimony taken at a hearing or other proceeding, and other information
disclosed pursuant to the disclosure or discovery duties created by the Federal Rules of Civil
Procedure.
2.
As used in this Stipulated Protective Order, “document” is defined as provided in
Fed. R. Civ. P. 34(a)(1)(A). A draft or non-identical copy is a separate document within the
meaning of this term.
3.
Confidential documents, materials, and information (collectively, the
“Confidential Information”) shall not be disclosed or used for any purpose except the preparation
and trial of this case. The duty to keep Confidential Information confidential survives the
completion of this case.
4.
Information designated “Confidential” shall be information that is confidential
and implicates common law and/or statutory privacy interests. Confidential Information may also
include private financial, employment, or medical information of Plaintiff Katherine Divis
(“Plaintiff”), confidential business information about Defendant SkyWest Airlines, Inc.
(“Defendant”), and Confidential Information about Defendant’s employees and job applicants,
contained in employer records, employee personnel files, and/or portions of documents that
contain information generally considered to be confidential such as social security numbers,
dates of birth, and other personally identifiable information. As a condition of designating
documents for confidential treatment, the documents must be reviewed by a party’s legal counsel
and a good faith determination must be made that the documents are entitled to protection.
5.
A party designating documents as Confidential Information may do so by
marking such material with the legend “Confidential.”
6.
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
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after transcription, provided written notice is promptly given to all counsel of record within thirty
(30) days after notice by the court reporter of the completion of the transcript.
7.
The parties recognize that Confidential Information may include, but is not
limited to, sensitive and non-public information and records concerning compensation, job
applicants to Defendant, Plaintiff’s personnel record, Defendant’s hiring processes and criteria,
personnel decisions,and other documents related to the Defendant’s employees.
8.
All Confidential Information designated “Confidential” may be reviewed only by
the following persons:
a. the respective parties’ legal counsel working on this case;
b. persons regularly employed or associated with the respective parties’ legal
counsel whose assistance is required by said attorneys in the preparation of the
case, at trial, or at other proceedings in this case;
c. the parties, including Plaintiff’s and Defendant’s representative(s) and any
designated advisory witnesses who are directly assisting said attorneys in the
preparation of 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 in any proceeding herein;
f. stenographic or videographer reporters who are engaged in proceedings
necessarily incident to the conduct of this action;
g. deponents, witnesses, or potential witnesses during the course of their testimony
and in preparation for testimony; and
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h. other persons by written agreement of the parties.
9.
Before the parties or their counsel may disclose any Confidential Information to
persons contemplated by Subparagraphs 8(d), 8(g), and 8(h) of this Stipulated Protective Order,
other than a witness during his or her testimony, such person shall be provided a copy of this
Stipulated Protective Order and obtain from such person a written acknowledgment stating that
he or she has read the Stipulated Protective Order and agrees to be bound by its provisions. All
such acknowledgments shall be retained by counsel and shall be subject to an in camera review
by the Court if opposing counsel demonstrates good cause for review. In the event any counsel
of record determines that persons other than those referenced in Paragraph 8 above have a need
to review any Confidential Information, written authorization of the party who produced the
Confidential Information must be obtained in advance of such disclosure. This disclosing
counsel will need to follow the notice and acknowledgment procedure set forth in this paragraph,
prior to disclosing Confidential Information to a third party that is not referenced in Paragraph 8
above. Should the party who produced the Confidential Information refuse such authorization,
counsel may apply to the Court for authorization.
10.
A party may object to the designation of particular Confidential Information by
giving written notice to the party that designated the disputed information and all other parties to
the civil action through their attorneys of record. 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 shall be treated as Confidential under the terms
of this Stipulated Protective Order until the Court rules on the motion. If the designating party
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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 Stipulated Protective Order. In connection with a motion filed under this provision, the party
designating the information as Confidential Information shall bear the burden of establishing that
good cause exists for the disputed information to be treated as Confidential Information. Any
designation of Confidentiality or challenge of a designation of Confidentiality shall be governed
by Fed. R. Civ. P. 26(c)(1).
11.
The duty to keep confidential any information or documents designated as
Confidential survives the completion of this case. Within thirty (30) days after the conclusion of
this litigation, unless other arrangements are agreed upon, each document and copies thereof
which have been designated as Confidential shall be stored by counsel in a manner that precludes
others, including the parties and their agents (other than undersigned counsel), from obtaining
such documents (whether originals or copies, hardcopy or electronic format). Moreover, any
information labeled Confidential Information in the possession or control of any person or entity
listed in paragraph 8 above, other than legal counsel working on the case, shall return the
Confidential Information to her, his, or its respective legal counsel or otherwise permanently
destroy or delete such information. Copies of all deposition transcripts referring to Confidential
Information shall be sealed by counsel. The parties will continue to be bound by the terms of this
Protective Order with respect to any Confidential document or deposition transcript referring to a
Confidential document stored by counsel after the conclusion of this litigation. This Court shall
retain jurisdiction over this Order, the foregoing stipulation, and the parties hereto for the
purposes of enforcing said Order and stipulation and adjudicating claims of breaches thereof and
administering damages and other remedies related thereto.
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12.
The Court expressly directs that all litigants, their agents, employees, counsel of
record, and said counsel’s paralegals, employees, and associates are precluded from using or
disseminating the Confidential Information produced in this litigation for any purpose other than
this litigation. The Court expressly directs that all litigants, their agents, employees, counsel of
record, and said counsel’s paralegals, employees, and associates are precluded from producing or
providing copies of any documents or materials subject to this Stipulated Protective Order to any
print, electronic, or news media representatives, employees, or agents and are prohibited from
disclosing any information contained in such documents to those individuals.
13.
Any item or information inadvertently furnished by the producing party or
nonparty during the course of this litigation without designation of Confidential may
nevertheless subsequently be designated as Confidential Information under this Order, but only if
counsel for the producing party provides prompt written notice to all receiving parties of the
inadvertent production within twenty (20) days after the production and requests that the
receiving parties thereafter treat such information as Confidential Information under this Order.
No disclosures of such inadvertently produced information shall be deemed to violate this Order
if the disclosure is made prior to the receipt of notice of the producing Party’s designation of the
information as Confidential Information.
14.
If a Party desires to use Confidential Information in a filing or proceeding, the
party shall either provide reasonable notice (not less than fourteen days before filing said
Confidential Information) to opposing counsel of its intention to do so or file a motion to restrict
access which must be filed in compliance with D.C.COLO.LCivR 7.2(c). If a Party desires to
prevent Confidential Information from being used at trial said Party shall specifically identify the
Confidential Information in the Final Pretrial Order, pursuant to D.C.COLO.LCivR 16.3.
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Confidential Information shall not be disclosed, shown, or read to any person except as provided
herein.
15.
In the event that the parties to this litigation, their counsel, or any parties who
have consented to be bound to the terms of this Stipulated Protective Order, knowingly violate
the terms or conditions of this Stipulated Protective Order, said individual shall consent to the
jurisdiction of the United States District Court for the District of Colorado for the purpose of any
contempt proceedings or an action concerning a litigant’s rights to injunctive relief as a result of
such violations.
16.
Nothing in this Protective Order may be taken or construed as a ruling or
statement concerning the admissibility of any documents or information in this action.
17.
Nothing in this Protective Order precludes a party from making any use of
documents that were lawfully in its possession at the beginning of this lawsuit.
18.
The parties shall have the right to seek modification of this Order from the Court
upon showing of good cause.
DATED this 2nd day of April, 2015.
APPROVED AS TO FORM:
_s/ Scott M. Petersen
Scott M. Petersen
Melanie S. Grayson
FABIAN & CLENDENIN,
_____
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A Professional Corporation
215 South State Street, Ste. 1200
Salt Lake City, Utah 84111-2323
Telephone: (801) 531-8900
Facsimile: (801) 596-2814
spetersen@fabianlaw.com
mgrayson@fabianlaw.com
Vance O. Knapp
SHERMAN & HOWARD L.L.C.
633 Seventeenth Street, Suite 3000
Denver, CO 80202
Telephone: (303) 299-8162
Facsimile: (303) 298-0940
vknapp@shermanhoward.com
Attorneys for Defendant SkyWest Airlines, Inc.
s/ Donna Dell’Olio
Donna Dell'Olio, #10887
Cornish &Dell'Olio, P.C.
431 N. Cascade Avenue, Ste. 1
Colorado Springs, CO 80903
Telephone: (719) 475-1204
Facsimile: (719) 475-1264
ddellolio@cornishanddellolio.com
Attorney for Plaintiff Katherine Divis
4838-7974-0194, v. 1
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