Dolan v. Board of County Commissioners of Rio Blanco County, CO

Filing 8

STIPULATION AND PROTECTIVE ORDER, by Judge Richard P. Matsch on 3/11/2015. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-03152-RPM
CATHERINE DOLAN,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS OF RIO BLANCO, CO,
Defendant.

STIPULATION AND PROTECTIVE ORDER

Each party and each Counsel of Record stipulate and move the Court for a Protective
Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment of
Confidential Information (as hereinafter defined) and, as grounds therefore, state as follows:
1.

In this action, at least one of the Parties will produce or has sought and/or may

seek Confidential Information (as defined in paragraph 2 below). The Parties also anticipate
seeking additional Confidential Information during discovery and that there will be questioning
concerning Confidential Information in the course of depositions. The Parties assert the
disclosure of such information outside the scope of this litigation could result in significant
injury to one or more of the Parties’ business or privacy interests. The Parties have entered into
this Stipulation and request the Court enter the within Protective Order for the purpose of
preventing the disclosure and use of Confidential Information except as set forth herein.

2.

“Confidential Information” means any document, file, portions of files,

transcribed testimony, or response to a discovery request, including any extract, abstract, chart,
summary, note, or copy made therefrom, which contains information that a party believes is
confidential and implicates common law and statutory privacy interests of the individuals who
are named and which are not made available to the public, as to which a reasonable expectation
of privacy or confidentiality exists.
3.

Information designated as Confidential must first be reviewed by the attorney for

the designating party, who must have a good faith belief that the information is confidential or
otherwise entitled to protection under Fed. R. Civ. P. 26(c). Gillard v. Boulder Valley Sch Dist.,
196 F.R.D. 382, 386 (D. Colo. 2000).
4.

Where Confidential Information is produced, provided, or otherwise disclosed by

the Parties in response to any discovery request, it will be designated in the following manners:
a.

By imprinting the word “Confidential” on the first page or cover of any document

produced;
b.

By imprinting the word “Confidential” next to or above any response to a

discovery request;
c.

With respect to transcribed testimony, by giving written notice to opposing

counsel designating such portions as “Confidential” no later than thirty (30) calendar days after
receipt of the transcribed testimony; and
d.

With respect to live testimony, by making a record at the time of the testimony.

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5.

Confidential Information is subject to the following restrictions.

a.

It shall be used only for the purpose of this litigation and not for any business or

other purpose whatsoever;
b.

It shall not be communicated or disclosed by any Party’s counsel or a Party in any

manner, either directly or indirectly, to anyone except for purposes of this case and unless an
affidavit in the form of Exhibit A has been signed.
6.

Individuals authorized to review Confidential Information pursuant to this

Protective Order including, but not limited to, the Parties to this action, their undersigned
counsel, and self-insurance representatives, shall hold Confidential Information in confidence
and shall not divulge the Confidential Information, either verbally or in writing, to any other
person, entity, or government agency unless authorized to do so by court order. The Parties
recognize that the available sanctions for the violation of the protective order include, but are not
limited to, the sanctions available under Fed.R.Civ.P. 37(b)(2)(A).
7.

The Party’s counsel who discloses Confidential Information shall be responsible

for assuring compliance with the terms of this Protective Order with respect to persons to whom
such information is disclosed and shall obtain and retain the original affidavits signed by
qualified recipients on Confidential Information, and shall maintain a list of all persons to whom
any Confidential Information is disclosed.
8.

By producing any Confidential Information or testifying on any matter later

designated as “Confidential,” no Party to this protective order waives any objection or challenge
to the admissibility of any such Confidential Information.

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9.

Each party shall be responsible for assuring compliance with the terms of this

Protective Order with respect to persons to whom such Confidential Information is disclosed and
shall obtain and retain the original affidavits signed by qualified recipients on Confidential
Information, and shall maintain a list of all persons to whom any Confidential Information is
disclosed.
10.

Upon a showing of substantial need, each party has the right to seek court

intervention, including in camera review, to determine whether the terms of the Protective Order
are being complied with.
11.

During pendency of this action, opposing counsel may upon Court order or

agreement of the Parties inspect the list maintained by counsel pursuant to paragraph 9 above
upon showing of substantial need in order to establish the source of an unauthorized disclosure
of Confidential Information and that opposing counsel are unable to otherwise identify the
source of the disclosure. If counsel disagrees with opposing counsel’s showing of substantial
need, counsel may then seek a court order requiring inspection under terms and conditions
deemed appropriate by the Court.
12.

No copies of Confidential Information shall be made except by or on behalf of

counsel in this litigation for work product purposes, including for review by experts in this case.
Any such copies shall be made and used solely for purposes of this litigation. Any such copies
shall be made and used solely for purposes of this litigation, and subject to all restrictions herein.
Nothing herein shall be construed as precluding the provision of actual copies of designated
documents provided the provisions of paragraph 5 are followed.

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13.

A party may object to the designation of particular information as Confidential by

giving written notice to the party designating the disputed information at any time. 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 designating party 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
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 and shall not thereafter be treated as confidential in accordance with
this Protective Order. In connection with a motion filed under this provision, the party
designating the information as confidential shall bear the burden of establishing that good cause
exists for the disputed information to be treated as confidential.
14.

In the event it is necessary for the Parties to file Confidential Information with the

Court in connection with any proceeding or motion, the filing party shall ascertain whether the
Confidential Information should be filed as a restricted document under D.C.COLO.LCivR 7.2.
The parties agree to confer in advance of submitting Confidential Information to the Court in
order to resolve any disputes over whether access should be restricted and to provide a
nonmoving party the opportunity to file a motion under D.C.COLO.LCivR 7.2. If the Parties
agree access should be restricted, the Confidential Information shall be filed in accordance with

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D.C.COLO.LCivR 7.2. The fact that this protective order has been entered into by any party
shall not in any way preclude a party from opposing a motion to restrict public access to
designated.
15.

The termination of this action shall not relieve counsel or other persons obligated

hereunder from their responsibility to maintain the confidentiality of Confidential pursuant to
this Protective Order, and the Court shall retain continuing jurisdiction to enforce the terms of
this Protective Order, even after this action is terminated.
16.

By agreeing to the entry of this Protective Order, the Parties adopt no position as

to the authenticity or admissibility of documents produced subject to it. Neither the taking of any
action in accordance with the provisions of this Protective Order, nor the failure to object thereto,
shall be construed as a waiver of any claim or defense in this action.
17.

Upon termination of this litigation, including any appeals, each Party’s counsel

agree to continue to keep the information confidential after the litigation concludes.
18.

Nothing in this Protective Order shall preclude any Party from filing a motion

seeking further or different protection from the Court pursuant to Fed.R.Civ.P. 26(c), or from
filing a motion with respect to the manner in which Confidential Information shall be treated at
trial.
19.

The parties agree that in the event information or documentation is inadvertently

disclosed to an opposing party, any information or documentation so disclosed shall be
immediately returned to the producing party without any copies being made or notes being taken
regarding said information/documentation by those who have received the inadvertent
disclosure. Further, the parties agree that no recipient of inadvertently disclosed information or
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documentation shall utilize such information/documentation or any fruits derived therefrom for
the purposes of this litigation and that the inadvertent disclosure of information or documentation
shall not constitute a waiver of any privilege that may otherwise apply.
DATED this 11th day of March, 2015.

BY THE COURT:
s/Richard P. Matsch
_________________________________
Richard P. Matsch, Senior District Judge

STIPULATED AND AGREED TO:

S/ Ralph E. Lamar
________________________________
Ralph E. Lamar
Attorney at Law
8515 Braun Loop
Arvada, CO 80005
T: 303-345-3600
Email: [e-mail]
ATTORNEY FOR PLAINTIFF

S/ Cathy Havener Greer
__________________________________
Cathy Havener Greer
Wells, Anderson & Race, LLC
1700 Broadway, Suite 1020
Denver, CO 80290
T: 303-830-1212
Email: [e-mail]
ATTORNEYS FOR THE DEFENDANT

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AFFIDAVIT
STATE OF COLORADO
COUNTY OF

)
)ss
)

_____________________________, swears or affirms and states under penalty of perjury:
1.

I have read the Protective Order in ___________________________, a copy of which is

attached to this Affidavit.
2.

I have been informed by ___________________________, Esq., counsel for

_______________________________, that the materials described in the list attached to this Affidavit
are Confidential Information as defined in the Protective Order.
3.

I promise that I have not and will not divulge or undertake to divulge to any person or

recording device any Confidential Information shown or told to me except as authorized in the Protective
Order. I will not use the Confidential Information for any purpose other than this litigation.
4.

For the purpose of enforcing the terms of the Protective Order, I hereby submit myself to

the jurisdiction of the court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.
_________________________________________
(Signature)
_________________________________________
(Print or Type Name)
Address:
_________________________________________
_________________________________________
Telephone No.: (_____) _____________________

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