White v. Roaring Fork Partners, LLC et al

Filing 11

Stipulated PROTECTIVE ORDER, by Judge Richard P. Matsch on 2/6/2015. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 14-cv-02607-RPM
CLIFTON WHITE,
Plaintiff,
v.
ROARING FORK PARTNERS, LLC, a Colorado limited liability company,
ROARING FORK ADVISORS, LP, a Colorado limited Partnership, and
ROARING FORKS ADVISORS, LLC, whose true name is unknown.
Defendants.

STIPULATION AND PROTECTIVE ORDER

IT IS HERBY STIPULATED, AGREED, and ORDERED that the provisions set forth
below shall govern the production, review and handling of materials produced in the abovecaptioned litigation (the “Litigation”).
1.

All information, whether designated confidential or not, that is produced or

exchanged in the course of the Litigation (other than information that is publicly available)
shall be used by the party or parties to whom the information is produced solely for
purposes of this Litigation.
2.

Definitions:
(a)

“Discovery Material” shall mean all documents, materials, interrogatory

answers, testimony, or other information in paper, electronic, or any other form produced or
disclosed by any Producing Party, and the contents thereof, in discovery in this Litigation.

(b)

“Privilege” shall mean the attorney-client privilege, the attorney-work

product doctrine, or any other legally recognized privilege or doctrine that may apply to
Discovery Material.
(c)

“Producing Party” shall mean any party or non-party who produces

Discovery Material to any party in connection with this Litigation.
(d)

“Receiving Party” shall mean any party who receives Discovery Material

in this Litigation.
(e)

“Confidential Information” shall mean any Discovery Material labeled as

“Confidential” pursuant to this Protective Order.
(f)

“Designating Party” shall mean any Producing Party who designates

Discovery Material as Confidential Information.
3.

Any Producing Party may, subject to the provisions of this Stipulation and

Protective Order (“Protective Order”), designate as “Confidential Information” any Discovery
Material that the Designating Party believes in good faith is confidential in that it contains
confidential, non-public information, including, but not limited to: (1) financial information not
publicly filed with any federal or state regulatory authority or otherwise publicly available; (2)
trade secret information as defined under state or federal law; (3) personal information relating
to any person or entity; (4) confidential or proprietary sales, pricing, marketing, design,
licensing, operational, employment, compensation, competitive or other proprietary information
not otherwise publicly available; (5) information pertaining to Defendants’ or another party’s
strategic business decisions; and (6) information relating to non-public administrative,
regulatory, or private dispute resolution proceedings.

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4.

Discovery Material designated “Confidential Information” shall be maintained in

confidence and, to the extent not otherwise prohibited by an order of the Court, shall only be
disclosed to the following persons:
(a)

The Court, its personnel, any other person (such as a master or mediator)

who serves in a judicial or quasi-judicial function, professional videographers, stenographers, or
court reporters engaged to transcribe testimony, and jurors;
(b)

Counsel for the parties and employees or agents of such counsel,

including, but not limited to, private investigators, retained to assist such counsel in connection
with the Litigation;
(c)

The parties (including the officers, directors, and employees of the

parties), as counsel for such party deems necessary to assist in connection with the Litigation;
(d)

In-house counsel and insurers for the parties, if applicable;

(e)

Any experts or consultants retained to assist the parties in connection with

(f)

Persons who have been noticed for depositions or subpoenaed for trial

the Litigation;

testimony in connection with the Litigation, provided, however, in any deposition or testimony in
which Confidential Information is shown, referenced, or included as exhibits, that portion of the
transcript of that deposition or testimony may be designated Confidential as provided herein;
(g)

Any person reflected as an author, addressee, or recipient of the

Confidential Information being disclosed;
(h)

Clerical and data processing personnel involved in the production,

reproduction, organizing, filing, coding, cataloging, converting, storing, retrieving and review of

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Confidential Information, to the extent reasonably necessary to assist the parties or their counsel
in connection with the Litigation; and
(i)

Any other person designated by the Court, upon such terms as the Court

may deem proper.
5.

Prior to the time that any person or entity listed in Paragraph 4, subsections (e),

(f), (h), and (i), or any private investigator as referenced in Paragraph 4, subsection (b), is given
access to Confidential Information, such person or entity is provided with a copy of the
Protective Order and such person or entity shall execute an undertaking in the form attached
hereto agreeing to be bound by the Protective Order, which undertaking shall be retained by
counsel for the party who disclosed the Confidential Information to such person or entity.
6.

Nothing in this Protective Order shall limit any Producing Party’s use or

disclosure of its own Confidential Information.
7.

Nothing in this Protective Order shall be construed as indicating that any

information is in fact Confidential Information or entitled to confidential treatment. The parties
shall be obligated to challenge the propriety of a Confidential Information designation within
sixty (60) days of receipt of Discovery Material designated as such. Unless good cause is found
by the Court, failure to timely object to the Confidential Information designation shall preclude
a subsequent challenge thereto. In the event that any party objects to the designation of
Discovery Material as Confidential Information, counsel for such party shall notify counsel for
the Designating Party in writing (the “Notice”).

The objecting party shall identify the

information in question and shall specify the reason(s) for the objection. Within seven (7)
calendar days of the receipt of the Notice, counsel for the Designating Party and objecting party

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shall meet and confer (in person or by telephone) in an effort to resolve any disagreement. If
the parties cannot resolve their disagreement, the objecting party may file a motion seeking a
ruling on the Designating Party’s designation of the Discovery Material as Confidential
Information within the sixty (60) day time period to object. The Designating Party, however,
shall have the burden of showing that the document or information is Confidential. While any
such application is pending, the Confidential Information will remain confidential until the
Court rules otherwise. Nothing in this Protective Order shall limit any Producing Party’s use or
disclosure of its own Confidential Information.
8.

Any party to this Litigation or a Producing Party who is not a party to this

Litigation may designate information as “Confidential”, including all or any portion of
documents or other materials, as follows:
(a)

Any documents or other tangible materials produced by a party or non-

party may be designated as “Confidential” at any time by either (i) stamping or writing
“Confidential Pursuant to Court Order,” “Confidential Information,” or “Confidential” on such
material at or before the time of production or (ii) by notifying all other parties in writing of the
Designating Party’s claim of confidentiality at any time subsequent to the time of production. In
order to provide the parties an adequate opportunity to designate discovery as “Confidential
Information”, all discovery produced in this case shall be deemed “Confidential Information,”
whether or not stamped with an appropriate legend, for a period of thirty (30) days following
production. No party shall be held in breach of this Protective Order solely for disclosing
documents or other tangible material to persons unauthorized to receive Confidential Information
under this Protective Order if (i) such documents or other discovery have not been designated as

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“Confidential Information” by the Producing Party and (ii) at least thirty (30) days have passed
since the time such documents or other tangible material were first produced. Once a party
receives notice that a Designating Party has made a designation of confidentiality, such party
shall treat the designated materials as “Confidential” in accordance with this Protective Order
regardless of how much time has passed since the time the newly designated materials were first
produced.
(b)

Deposition or other testimony and/or all or any part of any document or

thing marked for identification may be designated as “Confidential Information” by any of the
following means: (i) by stating orally on the record that the information is “Confidential
Information” on the day the testimony is given; or (ii) by sending written notice designating
information as “Confidential Information” within thirty (30) days after receipt of the final
deposition transcript. All information disclosed during a deposition shall be deemed to have
been designated “Confidential Information” until thirty (30) days after the transcript has been
received, whether or not portions of the transcript have been previously so designated.
Deposition transcripts containing Confidential Information shall be bound and sealed and may
only be examined by persons described in Paragraph 4 of this Protective Order as applicable.
(c)

Where only parts of any testimony, documents, or other information or

material are claimed to be Confidential, counsel claiming confidentiality shall designate the parts
of said material for which confidentiality is claimed.
9.

Nothing in this Protective Order shall require disclosure of any Discovery

Material that the Producing Party contends is protected from disclosure by Privilege. The
inadvertent production of any Discovery Material or information protected by Privilege shall be

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without prejudice to any such claim of Privilege, and the Producing Party shall not be held to
have waived any rights by such inadvertent production. If a Producing Party believes that
privileged Discovery Material was inadvertently produced, the Producing Party shall so notify
the party to whom the Discovery Material was produced in writing and the Discovery Material
shall immediately be considered privileged. The Receiving Party must immediately return any
Discovery Material that was inadvertently produced and later designated privileged. The parties
may, within ten (10) days of receipt of such notification, meet and confer in an effort to resolve
any disagreements with respect to the designation.

If the parties cannot resolve their

disagreement, the Producing Party may apply to the Court within fourteen (14) court days of the
meet and confer for a ruling on the Producing Party’s claim of inadvertent production.
10.

Any party issuing a subpoena to a non-party shall enclose a copy of this

Protective Order and notify the non-party that the protections in the Protective Order are
available to such non-party. Any non-party from whom discovery is sought in this Litigation
may obtain the protection of this Order by designating its provision of discovery as subject
thereto in the manner provided herein.
11.

Nothing contained in this Protective Order shall be construed to have any effect

on the admissibility or discoverability of any Confidential Information. Nothing contained in
this Protective Order shall be construed to limit any party’s right to use in Court any
Confidential Information, except that no Confidential Information shall be filed in the public
record absent the consent of the Designating Party or an order of the Court so permitting. In the
event that any Receiving Party wants to file with the Court any Confidential Information in the
public record, that Party shall either file such material under seal or as “restricted access” or

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make an application to the Court, on notice to the Designating Party in accordance with the
procedures in Paragraph 8. In the event that any Confidential Information is filed under seal or
as “restricted access”, such material, and any pleadings, motions or other papers filed with the
Court disclosing any such material, shall be filed in a sealed envelope (or other sealed
container) which shall be endorsed with the title of the action and the words “CONFIDENTIAL
INFORMATION” and submitted in accordance with applicable Local Rules of Practice for the
United States District Court for the District of Colorado, including, but not limited to
D.C.COLO.LCivR 7.2, and, when necessary, filed electronically under seal or as “restricted
access”.
12.

The foregoing shall not prevent any appropriately marked second copy of any

Confidential Information specifically intended for review by the Court from being handdelivered to the Court to assure that the same is brought promptly to the Court’s attention.
13.

The terms of this Protective Order shall remain in full force and effect until the

Litigation is finally resolved, i.e., until all appeals relating to the Litigation have been exhausted
or the time to appeal has expired (“Final Resolution”). The Court will retain jurisdiction over
all persons and parties subject to or bound by this Protective Order for purposes of its
enforcement.
14.

Upon Final Resolution, a party in possession of Confidential Information, other

than that which is contained in pleadings, correspondence, deposition materials, and litigation
files, shall, no later than six (6) months after final resolution this Litigation, and at the election
of the party in possession of the Confidential Information, either (a) return such Confidential
Information to counsel for the party or non-party who provided such Confidential Information,

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(b) securely store such information with the party’s attorney’s files for this matter; or (c) destroy
such Confidential Information and provide written confirmation to the Producing Party that
such Confidential Information has been destroyed.
15.

The restrictions set forth in any of the preceding paragraphs shall not apply to

information or material that:
(a)

was, is or becomes public knowledge, not in breach of this Protective

(b)

is acquired by the Receiving Party from a third party having the right to

Order; or

disclose such information or material or is learned by the Receiving Party as a result of the
Receiving Party’s own independent efforts, investigation or inquiry.
16.

This Protective Order shall not prevent any party from applying to the Court for

further or additional protective orders, for the modification of this Protective Order, or from
agreeing with the other parties to modify this Protective Order, subject to approval of the Court.
17.

Nothing herein shall prevent any Party from producing “Confidential

Information” in response to a lawful subpoena or other compulsory process from a non-party to
this Protective Order seeking production or other disclosure of Confidential Information,
provided that the subpoenaed party gives prompt written notice to counsel for the Designating
Party and to counsel for all parties and permits counsel for any party or Producing Party at least
fourteen (14) calendar days to intervene and seek judicial protection from the enforcement of
the subpoena and/or entry of an appropriate protective order in the action in which the subpoena
was issued. In addition, the party receiving the subpoena or other legal process may produce
Confidential Information in response to the subpoena or other legal process only if: (i) prior

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written consent of the Designating Party has been obtained; (ii) the Court has ordered that the
Confidential Information be produced; or (iii) the Designating Party has been notified of the
subpoena or other legal process pursuant to this paragraph, but has not, prior to the return date,
moved for a protective order or otherwise sought remedial action.
18.

If the Court does not sign and enter this Protective Order for any reason, the

parties to this Protective Order shall remain bound by all of its terms and provisions, except as
otherwise provided by governing law or by any subsequent Court order in this Litigation.

DATED: February 5, 2015.

S/ G. SCOTT FIDDLER

G. Scott Fiddler, Esq.
LAW OFFICE OF G. SCOTT FIDDLER, P.C.
1004 Congress, 2nd Floor
Houston, Texas 77002
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Plaintiff Clifton White

S/ CHRISTIAN H. HENDRICKSON

Christian H. Hendrickson, Esq.
SHERMAN & HOWARD L.L.C.
633 17th Street, Suite 3000
Denver, Colorado 81611
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorney for Defendants
Roaring Fork Partners, LLC, d/b/a Roaring Fork
Advisors, LLC, and Roaring Fork Advisors, LP
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IT IS SO ORDERED
BY THE COURT:

s/Richard P. Matsch
________________________________
Richard P. Matsch, Senior District Judge
Dated: February 6th, 2015

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UNDERTAKING
AGREEMENT TO ABIDE BY STIPULATED PROTECTIVE ORDER
I,

[print or type full name], of

[print or

type full address], declare under penalty of perjury that I have read in its entirety and understand
the Stipulated Protective Order issued by the United States District Court for Colorado on
_________________, 2015 in the case of Clifton White v. Roaring Fork Partners, LLC, Roaring
Fork Advisors, LP and Roaring Forks Advisors, LLC, 14-cv-02607-RPM. I agree to comply
with and to be bound by all the terms of this Stipulated Protective Order, and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment in the
nature of contempt.

I solemnly promise that I will not disclose in any manner any

information or item that is subject to this Stipulated Protective Order to any person or entity
except in strict compliance with the provisions of this Stipulated Protective Order.
I further agree to submit to the jurisdiction of the United States District Court for
Colorado for the purpose of enforcing the terms of this Stipulated Protective Order, even if such
enforcement proceedings occur after the termination of this action.

Date:
City and State where sworn and signed:
Printed name:
Signature:

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