Malveaux v. Xcel Energy Services, Inc.
Filing
45
STIPULATED PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 4/20/2015. (mdave )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-3137-CMA-MEH
ALCIN MALVEAUX,
Plaintiff,
v.
PUBLIC SERVICE COMPANY OF COLORADO, d/b/a XCEL ENERGY,
Defendant.
STIPULATED PROTECTIVE ORDER
This matter comes before the Court on the Parties’ Stipulated Motion for Entry of
Protective Order. The Court has reviewed that Motion and finds that the Motion is
meritorious and acceptable. Therefore, IT IS ORDERED:
1.
The Parties have stipulated and agreed to the terms of and entry of this
Stipulated Protective Order.
2.
Pursuant to Rule 26(c), this Stipulated Protective Order shall govern the
handling of documents, materials, and information including without limitation,
depositions, deposition exhibits, responses to any discovery requests, including
responses to interrogatories, document requests, and requests for admissions and any
other information produced, given or exchanged by and among the Parties and nonparties to this action.
3.
As used in this Stipulated 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.
4.
Information designated “CONFIDENTIAL” shall be information that has
previously been maintained in a confidential manner, is confidential and/or is 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)
proprietary business information of Defendant, including but not limited to financial
information, operational data, business plans and competitive analyses and other
sensitive information that, if not restricted as set forth in this Order, may subject the
producing or disclosing person to competitive or financial injury or potential legal liability
to third parties; (c) information containing trade secrets; (d) internal cost, compensation,
recruiting and retention data; and (e) information relating to Plaintiff concerning personal
and/or confidential matters not generally known to the public, such as, but not limited to,
Plaintiff’s
financial
and
medical
information.
Documents
designated
as
“CONFIDENTIAL” shall be first reviewed by a lawyer who will confirm 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
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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, summarized, described, or communicated in any way,
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, and their employees with a need to know;
(d) expert witnesses, consultants and investigators 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, its employees and members of the Jury (“Court Personnel”);
(f) stenographic reporters and videographers who are engaged in proceedings
necessarily incident to the conduct of this action;
(g) deponents, witnesses, or potential witnesses;
(h) individuals serving as mediators with regard to these proceedings;
(i) other persons by written agreement of the Parties; and
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(j) Independent providers of document reproduction, electronic discovery or other
litigation services retained or employed specifically in connection with this lawsuit.
6.
Prior to disclosing any CONFIDENTIAL information to any person listed
above (other than counsel, persons employed by counsel, Court Personnel,
stenographic reporters and videographers), counsel shall provide such person with a
copy of this Stipulated 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.
7.
No copies of CONFIDENTIAL documents and materials shall be made
except by or on behalf of the persons listed in the subsections of paragraph 5 above.
To the extent such authorized persons require copies of CONFIDENTIAL documents or
materials, any such copies shall be used solely for the purposes permitted hereunder.
8.
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.”
Applying the “CONFIDENTIAL” marking to a
document does not mean that the document has any status or protection by statute or
otherwise except to the extent and for the purposes of this Order.
9.
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
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information may be designated as CONFIDENTIAL in a written communication or in an
electronic mail message to the non-producing party or parties.
10.
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
improperly-designated 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.
11.
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 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. The inadvertent disclosure or
production of any information or document that is subject to an objection on the basis of
attorney-client privilege or work-product protection, including, but not limited, to
information or documents that may be considered Confidential Information under the
Stipulated Qualified Protective Order, will not be deemed to waive a party’s claim to its
privileged or protected nature or estop that party or the privilege holder from designating
the information or document as attorney-client privileged or subject to the work product
doctrine at a later date.
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12.
Before any Party submits documents, including motions, briefs, and
exhibits, containing Confidential Discovery Material to the Court, that Party shall first
determine whether it is feasible to redact as appropriate personal identifying information
such as social security numbers and full names of non-party individuals with privacy
interests so that the individual cannot be identified on basis of the exhibit itself, and
other Confidential information to the extent feasible so that it is not necessary to file the
material under restricted access. If the presence of Confidential Discovery Material
cannot be redacted sufficiently to avoid filing it under restricted access, the filing Party
shall request that the submissions, or portions thereof, be filed under restricted access
in accordance with Local Rule 7.2, including a motion to restrict access setting forth the
requirements of Local Rule 7.2(c)1-5. The non-filing Party may also file a motion to
restrict access if the filing party fails to do so. The Parties shall attempt to agree on
whether particular material must be filed with a motion to restrict access before it is filed.
To the extent that Court Rules governing the E-filing of documents modify the
procedures for filing Confidential Discovery Material under restricted access, the Parties
shall follow such rules. All such materials so filed shall be released from confidential
treatment only upon further order of the Court.
13.
Any request to restrict access must comply with the requirements of
D.C.COLO.LCivR 7.2.
14.
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
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provisions of this Stipulated 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.
15.
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 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 Stipulated
Protective Order. If such a motion is timely filed, 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 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 shall bear the burden of
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establishing that good cause exists for the disputed information to be treated as
CONFIDENTIAL.
16.
At the conclusion of this case, unless other arrangements are agreed
upon, within sixty (60) business days after the final resolution 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.
Where the Parties agree to destroy CONFIDENTIAL
documents and materials, the destroying Party shall certify in writing that the
CONFIDENTIAL documents and materials have been destroyed.
17.
This Order is subject to modification by the Court on its own motion or on
the motion of any party or any other person with standing concerning the subject matter.
The Order must not, however, be modified until the parties have been given notice.
18.
The Court’s jurisdiction to enforce the provisions of this Order will
terminate on the final disposition of this Lawsuit. A party may file a motion to seek leave
to reopen the case to enforce the provisions of this Order.
19.
This Stipulated Protective Order shall not be construed as a waiver of any
right to object to the authenticity, admissibility or confidentiality of any evidence at trial
nor shall it be deemed or construed as a waiver of any right to object to the furnishing of
information in response to any discovery request.
This Stipulated Protective Order
shall also not be deemed or construed as a waiver of the attorney/client privilege, work
product doctrine, or any other privilege or of the rights of any party, person or entity to
oppose the production of any documents or information on any grounds.
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Further,
nothing in this Stipulated Protective Order shall be construed to limit, restrict or
otherwise affect the ability of any party to seek the production of documents, testimony
or information from any source.
20.
Nothing in this Stipulated Protective Order shall preclude any party from
filing a motion seeking further or different protection from the Court under Rule 26(c) of
the Federal Rules of Civil Procedure, or from filing a motion with respect to the manner
in which Confidential Information shall be treated at trial.
21.
This Stipulated Protective Order shall not constitute or be deemed to
constitute an admission by either of the stipulating parties or a determination by the
Court as to any contested issue in this case, including, without limitation, the existence
or non-existence of a privacy interest or privilege relating to said Confidential
Information or its admissibility at trial or limit the parties’ rights to object to the disclosure
of Confidential Information at the trial in this matter or in discovery or litigation of this
matter.
DATED and entered in Denver, Colorado this ____ day of _________________,
2015.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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APPROVED AS TO FORM:
BERENBAUM WEINSHIENK, PC
MARTINEZ LAW GROUP, P.C.
By: /s/ Rosemary Orsini
By: /s/ Meghan W. Martinez
Rosemary Orsini
Meghan W. Martinez
370 Seventeenth Street, Suite 4800
Elizabeth Imhoff Mabey
Denver, Colorado 80202
720 South Colorado Boulevard
Telephone: (303) 592-8305
South Tower, Suite 1020
Fax: (303) 629-7610
Denver, Colorado 80246
Telephone: (303) 597-4000
Fax: (303) 597-4001
ATTORNEY FOR PLAINTIFF
ATTORNEY FOR DEFENDANT
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 16th day of April, 2015, I
electronically filed the foregoing document with the Clerk of the Court using the CM/ECF
system which will send notification of such filing to the following:
Rosemary Orsini, Esq.
BERENBAUM WEINSHIENK, PC
370 Seventeenth Street, Suite 4800
Denver, Colorado 80202
Attorney for Plaintiff
/s/ Beth Reinhardt
Beth Reinhardt
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-3137-CMA-MEH
ALCIN MALVEAUX,
Plaintiff,
v.
PUBLIC SERVICE COMPANY OF COLORADO, d/b/a XCEL ENERGY,
Defendant.
EXHIBIT A TO PROTECTIVE ORDER – WRITTEN ASSURANCE
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 Stipulated 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 Stipulated Protective Order.
Executed on ______________________
(Date)
___________________________
(Signature)
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