Apex Mobility Transportation, LLC et al v. First Transit, Inc.

Filing 39

PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 05/21/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02645-REB-MEH
APEX MOBILITY TRANSPORTATION, LLC,
EZ CARE TRANSPORTATION, LLC
ARAPHAHOE TRANSPORTATION, LLC, f/k/a Chad Transportation, LLC,
LION TRANSPORTATION, LLC,
HEAVEN WHEELS TRANSPORTATION, LLC, and
AA YELLOW SHUTTLE EXPRESS, INC., a/k/a Broadway Express, Inc.,
Plaintiffs,
v.
FIRST TRANSIT, INC.,
Defendant.

STIPULATED PROTECTIVE ORDER

This matter comes before the Court on the Parties’ Joint Motion for Entry of Protective
Order. The Court has reviewed the Motion. Pursuant to Federal Rule of Civil Procedure 26(c),
as well as Federal Rules of Evidence 502(d) and (e), the Parties have shown good cause in
support of the entry of a protective order to protect the discovery and dissemination of
confidential information. Therefore, IT IS ORDERED:

I.

RECITALS
1.

Plaintiffs’ Complaint asserts claims for: (1) Breach of Contract; (2) Breach of the

Duty of Good Faith and Fair Dealing; (3) Unjust Enrichment; (4) Quantum Meruit; and
(5) Promissory Estoppel.

Defendant’s Counterclaim asserts a claim for Money Had and

Received.
2.

Some of the information the parties will seek or develop through discovery in this

case may contain or consist of information that the producing party may claim is private,
confidential, proprietary, trade secret information, or medical information that is entitled to
protection.
3.

The parties may be required to produce large volumes of Discovery Material. The

parties wish to comply with discovery deadlines and complete discovery as expeditiously as
possible, while preserving, and without waiving, any evidentiary protections or privileges
applicable to the information contained in the Discovery Material.
4.

In order to comply with applicable discovery deadlines, a party may be required

to produce certain categories of Discovery Material that have been subject to minimal or no
attorney review (the “Disclosures”). This Stipulated Protective Order is designed to foreclose
any arguments that by making the Disclosures, the disclosure or production of Discovery
Material subject to a legally recognized claim of privilege, including without limitation the
attorney-client privilege, work-product doctrine, or other applicable privilege:

(i) was not

inadvertently disclosed by the Producing Party; (ii) that the Producing Party did not take
reasonable steps to prevent the disclosure of privileged Discovery Material; (iii) that the
Producing Party did not take reasonable or timely steps to rectify the Disclosure; and/or (iv) that
the Disclosure acts as a waiver of applicable privileges or protections associated with the
Discovery Material.
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5.

Nothing in this Order is intended, nor shall it be construed, as either a waiver or

an admission that specific information is admissible or contains either confidential, proprietary
business information, or trade secrets. This Order is simply a procedural mechanism to facilitate
the discovery process and/or provide protections concerning information exchanged between and
among the parties in this case. No part of this Order shall be used as evidence that any party has
either waived or admitted to any claims solely by virtue of the act of producing information or
designating information as “Confidential” under this Order. Nothing in this Order shall require a
party in possession of material from a source different than the Producing Party to treat any such
material identified as Confidential and delivered by the Producing Party in discovery, as
confidential or otherwise limit its use in this case as non-confidential material.
6.

Since the purpose of this Order is to protect Discovery Material, the parties agree

that they are bound by this Order from the date their respective counsel have signed it.
7.

Based on these recitals and the terms of disclosure that follow, the parties have

agreed to: (i) facilitate the full and fair production of information that the producing party may
claim is entitled to confidential treatment; and (ii) govern the return of inadvertently produced
documents and data, on the terms set forth in this Stipulation.
II.

DEFINITIONS
For the purposes of this Order, the following definitions shall apply:
1.

“Confidential Discovery Material” means Discovery Material designated as

“Confidential” under the terms of this Order.
2.

“Designating Party” means the party who wishes to designate or has designated

Discovery Material as Confidential.

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3.

“Discovery Material” means all documents, depositions, deposition exhibits,

recorded telephone conversations, transcripts of telephone conversations, hard drives, responses
to discovery requests, responses to subpoenas, inspections, examinations of premises,
examinations of facilities, physical evidence, electronically stored information (including
metadata), witness interviews, and any other information produced, or otherwise given or
exchanged by and among the parties and non-parties to, and as part of, this action.
4.

“Producing Party” means any party or non-party to this action producing

Discovery Material.
5.
III.

“Receiving Party” means the party receiving Discovery Material.

TERMS
1.

Confidential Discovery Material

Any Producing Party or Designating Party may designate any Discovery Material as
“Confidential” under the terms of this Order. The burden shall be on the Designating Party to
demonstrate, when and if designation is challenged, that the Discovery Material contains nonpublic, proprietary, commercially sensitive, competitively sensitive, trade secret, personal
information, or other confidential information that requires the protections provided in this
Order. Subject to the foregoing, Confidential Discovery Material may include, but is not limited
to, the following types of information:
a.

Any material of a confidential nature, including, without limitation,

confidential non-public information relating to a party’s respective businesses, business
operations, policies and procedures, employment agreements, contracts, agreements, business
rules, customer lists, customer profiles, customer information, customer complaint and
satisfaction information, personally identifying information, medical information, policies,

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codes, financial information, compensation information, plans, formulae, personnel information,
candidates information, nonpublic contact information, market data comparisons, identity and
key contact information of decision-makers, uniquely compiled preference of key decisionmakers, and records relating to confidential internal investigations;
b.

Non-public revenue, cost, income, pricing, margin, profit, loss, income

statements, balance sheets, cash flow, sources and uses of cash, cash difference, or other nonpublic financial data;
c.

Non-public personal information, including contact information, credit or

debit card numbers, social security numbers, drivers’ license numbers, and bank or financial
account information or password information;
d.

Any material qualifying for protection under any other federal or state law,

including the Uniform Trade Secrets Act, C.R.S. § 7-74-101, et seq.
2.

Designation Procedure

The designation of Discovery Material as “Confidential” for the purposes of this Order
shall be made in the following manner by any Designating Party:
a.

In the case of the production of documents, by stamping at least the first

page of a document, and if possible, each and every page to be designated “Confidential,” with
the legend “Confidential.”
b.

In the case of inspection of documents, within ten (10) days after the

inspecting party has identified the documents it wants copied and produced, the Producing Party
must determine which documents, or portions of documents, qualify for protection under this
Order, and the Producing Party must stamp the first page of a document, and if possible, each
and every page to be designated “Confidential,” with the applicable legend “Confidential.”

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c.

In the case of deposition or other pretrial testimony, by a statement on the

record by counsel, at the time the testimony is given, that particular testimony is “Confidential.”
Confidential testimony may also be designated by written notice to the court reporter and counsel
of record for all other parties, specifying by page and line number the material to be classified as
“Confidential.” To be effective, the notice must be sent within thirty (30) days of the date on
which the Designating Party received a copy of the transcript. In either event, counsel shall
direct the court reporter and the Receiving Party to affix the appropriate confidentiality stamp to
any portion of the original transcript and all copies of the transcript. Those portions of the
transcript so designated shall be deemed “Confidential Discovery Material.” Depositions or
other pretrial testimony shall be treated as confidential during the 30-day designation period
described above.
d.

In the case of mutually agreed upon joint witness interviews (should any

be agreed to), by a statement of counsel during the interview and, following the interview, by a
letter stating that the interview or any portion of the interview is “Confidential.”
e.

In the case of any other production of Discovery Material not otherwise

specifically identified above, a written statement made by counsel of the Designating Party to
counsel for the other parties to this action, identifying the Discovery Material that is
“Confidential.”
f.

The parties to this Order may modify the procedures set forth in

paragraphs (a)-(e) above through agreement of counsel on the record at a deposition or, in the
case of an interview, in the presence of counsel attending the interview, or by agreement in
writing, without further order of the Court.

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g.

Undersigned counsel, or any other Designating Party, must take care and

exercise good faith to designate for protection only those parts of Discovery Material that
qualifies for protection.
3.

Disclosure of Confidential Discovery Material

Confidential Discovery Material, and information derived from Confidential Discovery
Material, shall be used solely for purposes of this action, and shall not be used for any other
purpose, including, without limitation, any business or commercial purpose or in connection with
any other proceeding. Discovery Material designated as “Confidential” may be disclosed only to
the following persons:
a.

Court officials (including court reporters, any special master or technical

advisory personnel, and jurors appointed by the Court) and the Court’s staff in connection with
the Court’s administration and adjudication of this Action, including at trial as set forth below;
b.

Any named party, outside counsel to a party (whether or not they have

entered appearances in this action), in-house counsel for corporate parties, employees of
corporate parties, and legal, clerical, paralegal and secretarial staff employed or retained by
outside counsel or in-house counsel, including outside copying services;
c.

Experts or consultants retained by counsel in connection with this action,

only for the purpose of enabling the expert or consultant to prepare a written opinion, to prepare
to testify and testify at trial, hearings or depositions in this case, or to otherwise assist counsel in
the prosecution or defense of this action. Before receiving any Confidential Discovery Material,
the consultant or expert shall agree to be bound by the terms and conditions of this Order,
consenting to the jurisdiction of the Court for the purposes of enforcement of the terms of this

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Order, and agreeing not to disclose or use the Confidential Discovery Materials for purposes
other than those permitted by this Order.
d.

A deposition witness questioned by outside counsel of record for a party in

connection with this action, but only to the extent necessary to assist counsel in the prosecution
or defense of this action, and provided that (i) the witness agrees to be bound by the terms of this
Order, or (ii) if the witness refuses to be bound by this Order and the witness’ refusal is noted on
the deposition record, counsel provides the witness with a copy of this Order, informs the
witness that the information to be communicated is Confidential, subject to the Protective Order
in this case, may be used only in connection with that deposition, may not be communicated to
any other person, and that any misuse of the Confidential Discovery Material will violate the
Order.
e.

The claims counsel or representative of any insurer of any party (if any),

provided that (i) the disclosure is made only in connection with a claim for defense or indemnity
arising from this action, and (ii) claims counsel or representative agrees to be bound by the terms
of this Order.
f.

Any individual identified by a party as a person with knowledge, but only

to the extent necessary to assist counsel in the prosecution or defense of this action, and provided
that the person agrees to be bound by the terms of this Order. If such individual refuses to be
bound by this Order, counsel shall provide the individual with a copy of this Order, inform the
individual that the information to be communicated is Confidential, subject to the Protective
Order in this case, may be used only in connection with the case and in conformity with the
Protect Order, may not be communicated to any other person, and that any misuse of the
Confidential Discovery Material will violate the Order. Counsel shall maintain a record of the

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disclosure which shall be available in the appropriate circumstances for in-camera examination
by the Court.
4.

Inadvertent Disclosure

The Court orders protection of privileged and otherwise protected Discovery Material
against claims of waiver (including as against third parties and in other federal, state, or
administrative proceedings) as follows:
a.

The disclosure or production of Discovery Material by a Producing Party

subject to a legally recognized claim of privilege to a Receiving Party shall in no way constitute
the voluntary disclosure of the Disclosure Material.
b.

The inadvertent disclosure or production of any Discovery Material in this

action shall not result in the waiver of any privilege, evidentiary protection or other protection
associated with Discovery Material. The inadvertent disclosure or production of any Discovery
Material also shall not result in any waiver, including subject matter waiver, of any kind.
c.

If, during the course of this litigation, a Receiving Party determines that

any Discovery Material is or may reasonably be subject to a legally recognizable privilege or
evidentiary protection:
i.

Subject to paragraph 4(c)(iii) below, the Receiving Party shall: (i)

refrain from reading, reviewing, or listening to the protected discovery material any more closely
than is necessary to determine that it is privileged or otherwise protected from disclosure; (ii)
expeditiously notify the Producing Party in writing that it has discovered Discovery Material
believed to be privileged or protected; and (iii) specifically identify the Discovery Material.
Upon receipt from the Producing Party of a notice that the Discovery Material is in fact
privileged or otherwise protected from disclosure, the Receiving Party shall, within ten (10) days

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of receipt of such notice by the Receiving Party, return, sequester, or destroy all copies of the
privileged or protected Discovery Material, along with any notes, abstracts or compilations of the
content of the privileged or protected Discovery Material. To the extent that privileged or
protected Discovery Material has been loaded into a litigation review database under the control
of the Receiving Party, the Receiving Party shall, to the extent practicable, have all electronic
copies of the privileged or protected Discovery Material extracted from the database. Where
privileged or protected Discovery Material cannot be destroyed or separated, it shall not be
reviewed, disclosed, or otherwise used by the Receiving Party.
ii.

If the Producing Party intends to assert a claim of privilege or other

protection over Discovery Material identified by the Receiving Party, the Producing Party will,
within ten (10) days of receiving the Receiving Party’s written notification described above,
inform the Receiving Party of the intention to assert a claim of privilege in writing and shall
provide the Receiving Party with a log of the privileged or protected Discovery material, setting
forth the basis for the claim of privilege or other protection. In the event that any portion of
Discovery Material does not contain privileged or protected information, the Producing Party
shall also provide to the Receiving party a redacted copy of the material that omits the
information that the Producing Party believes to be subject to a claim of privilege or other
protection.
iii.

Notwithstanding anything stated elsewhere in this Stipulation, the

Receiving Party is under no obligation to search or review the Producing Party’s Discovery
Material to identify potentially privileged material or work product.
d.

If, during the course of this litigation, a Producing Party determines that it

has produced privileged or protected Discovery Material:

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i.

The Producing Party may notify the Receiving Party of the

inadvertent production or production prior to entry of this Order, and request the return of
privileged, protected or Confidential documents. The notice shall be in writing; however, it may
be delivered orally on the record at a deposition, and promptly followed up in writing. The
Producing Party’s written notice will contain a log identifying the Discovery Material
inadvertently produced, the privilege or protection claimed, and the basis for the assertion of the
privilege. In the event that any portion of the Discovery Material does not contain privileged or
protected information, the Producing Party shall also provide to the Receiving Party a redacted
copy of the document that omits the information that the Producing party believes is subject to a
claim of privilege or other protection.
ii.

The Receiving Party must, within ten (10) days of receiving the

Producing Party’s written notification described above, return, sequester, or destroy the
Discovery Material and any copies, along with any notes, abstracts or compilations of the content
of the privileged Discovery Material. To the extent that Discovery Material has been loaded into
a litigation review database under the control of the Receiving Party, the Receiving Party shall
have all electronic copies of the Protected Document extracted from the database. Where
privileged or protected Discovery Material cannot be destroyed or separated, it shall not be
reviewed, disclosed, or otherwise used by the Receiving Party.
e.

To the extent that the information contained in Discovery Material has

already been used in or described in other documents generated or maintained by the Receiving
Party prior to the date of receipt of written notice as set forth in paragraphs (i) and (ii) above, the
Receiving Party shall sequester the documents until the claim has been resolved.

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If the

Receiving Party disclosed the Discovery Material subject to a claim of privilege or protection
before being notified of its inadvertent production, it must take reasonable steps to retrieve it.
f.

The Receiving Party’s return, sequestering or destruction of privileged

Discovery Material as provided for in this Order will not act as a waiver of the Receiving Party’s
right to move for the production of the returned, sequestered or destroyed documents on the
grounds that the documents are not, in fact, subject to a viable claim of privilege or protection.
However, the Receiving Party is prohibited and estopped from arguing that:
i.

The disclosure or production of the Discovery Material acts as a

waiver of an applicable privilege or evidentiary protection;
ii.

The disclosure of the Discovery Material was not inadvertent;

iii.

The Producing Party did not take reasonable steps to prevent the

disclosure of the Discovery Material; or
iv.

The Producing Party failed to take reasonable or timely steps to

rectify the error.
g.

Upon a determination by the Court that the Discovery Material is

protected by the applicable privilege or evidentiary protection, and if the Discovery Material has
been sequestered rather than returned or destroyed by the Receiving Party, the Discovery
Material shall be returned or destroyed within ten (10) days of the Court’s order (except
Discovery Material stored on back-up tapes or other archival media, which shall remain subject
to the terms of this Order), or within any other time period that the Court requires in its Order.
The Court may also order the identification by the Receiving Party of privileged or protected
Discovery Material by search terms or other means.

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h.

Nothing contained in this Order shall limit a party’s right to conduct a

review of documents, data (including electronically stored information) and other information,
including without limitation, metadata, for relevance, responsiveness and/or segregation of
privileged and/or protected information before that information is produced to another party.
5.

Designation Disputes
a.

Any party who objects to the designation of any Discovery Materials as

“Confidential” shall notify the Designating Party in writing. The parties shall meet and confer
within ten (10) business days in an attempt to resolve the issue. In the event the issues remain
unresolved the Disclosing Party shall, no later than ten (10) business days after conferring with
the objecting party, apply to this Court for a ruling on the designation of the Discovery Materials.
b.

The Discovery Material shall continue to be deemed and treated as

“Confidential” until the Court resolves the dispute. In any proceeding to change the designation
of any Discovery Material, the burden shall be upon the Designating Party to establish the
appropriateness of the “Confidential” designation. A dispute concerning confidentiality shall not
otherwise impede the progress of discovery.
6.

Use Of Confidential Discovery Material In Court Proceedings.

In the event that any Confidential Discovery Material is used in any Court proceeding or
appeal in this action, counsel shall confer in good faith on procedures to protect the
confidentiality of the material. No party, other than the party who designated the particular
material as Confidential, shall offer such Discovery Material into evidence, or otherwise tender
Confidential Discovery Material to the Court, without first advising the Court and the
Designating Party of its intent to do so. At that point, the Designating Party may seek protection
from the Court as it deems appropriate, including the exclusion of persons and witnesses from

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the hearing, or the maintenance of the Discovery Material under seal. The use of Confidential
Discovery Material in any proceeding shall not limit in any way the rights of any person to
petition the Court for further protective measures as may be necessary to protect the
confidentiality of the material.
7.

Additional Provisions
a.

The Provisions of this Order shall, absent written permission of a

Designating Party or further order of the Court, continue to be binding throughout and after the
termination of this action, including, without limitation, any appeals. Within sixty (60) days
after receiving notice of the entry of an order, judgment or decree finally disposing of all
litigation in which Confidential Discovery Material was disclosed, all persons having received
Confidential Discovery Material shall either: (i) return the material and all copies (including
summaries and excerpts) to the Producing Party or its counsel, or (ii) destroy all Confidential
Discovery Material at issue and certify in writing to the Designating Parties or their counsel that
the destruction has occurred. Counsel for the parties shall be entitled to retain Confidential
Discovery Material or references to Confidential Discovery Material, provided that counsel, and
employees of counsel shall not disclose to any person nor use for any purpose unrelated to this
action the Confidential Discovery Material except pursuant to a court order, or agreement with
the Designating Party, or for purposes of satisfying its malpractice carrier’s requirements or
defending a malpractice action.
b.

If a Receiving Party is served with a subpoena, demand, or any other legal

process seeking Confidential Discovery Material, that person shall give written notice, by hand
or email transmission within forty-eight (48) hours of its receipt of a subpoena, demand or legal
process, to the Designating Party. The Designating Party shall be solely responsible for seeking

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any relief or protection from any subpoena demand or legal process seeking Confidential
Discovery Material and shall also be solely responsible for its costs and attorneys’ fees in any
proceedings relating to the subpoena or legal process.
c.

In the event additional parties join or are joined in this action, or additional

or different counsel enter an appearance, they shall not be given access to Confidential
Discovery material until the newly joined party, by its counsel, or the newly appearing counsel
has executed this Order and provided a copy of this Order to all other counsel in this action, or
the Court otherwise orders production.
d.

Neither this Order, the production or receipt of Confidential Discovery

Material, otherwise complying with the terms of this Order, shall:
i.

Prejudice in any way the rights of the parties to object on grounds

of privilege, relevance, or otherwise to the production of documents or other information they
consider not subject to discovery, or operate as an admission by any party that the restrictions
and procedures set forth in this Order constitute adequate protection for any particular
information deemed by that party to be Confidential Discovery Material;
ii.

Prejudice in any way the rights of any party to object to the

authenticity or admissibility into evidence of any Discovery Material subject to this Order;
iii.

Prejudice in any way the rights of a party to petition the Court for a

further protective order relating to any confidential information the party asserts requires or
should be subject to other or further protection;
iv.

Prevent the parties to this Order from agreeing in writing, with the

consent of the Designating Party, to alter or waive the provisions or protections provided in this
Order with respect to any particular Discovery material; or

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v.

Prejudice in any way the rights of a party to contest the designation

of any Discovery Material as “Confidential.”
e.

Nothing in this Order shall prevent the Designating Party from using

Confidential Discovery material that the party designated as Confidential Discovery Material.
f.

Nothing in this Order shall preclude any party from seeking additional or

different protection from the Court, or from filing a motion about the manner in which
Confidential Discovery material should be treated at any hearing or trial herein.
g.

Should the Court not enter this Stipulation as an Order, it shall remain

binding upon the parties until the Court enters a different protective order providing substantially
similar protections to those contained in this Stipulation. Once entered, this Order shall remain
in effect unless and until the Court amends or extinguishes it.
Dated at Denver, Colorado this 21st day of May, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

APPROVED:

s/Alan S. Thompson
Alan S. Thompson
Stephen E. Kapnik
Lohf Shaiman Jacobs Hyman & Feiger PC
950 South Cherry Street, Suite 900
Denver, CO 80246
Telephone: [phone]
Facsimile: [phone]

s/Michelle L. Gomez
Darren E. Nadel
Michelle L. Gomez
William E. Trachman
Littler Mendelson, P.C.
1900 Sixteenth Street, Suite 800
Denver, CO 80202
Telephone: [phone]

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[e-mail]
[e-mail]

Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant First Transit, Inc.

Attorneys for Plaintiffs

Firmwide:133658023.1 063012.1079

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