Williams et al v. GenesisFinancial Technologies, Inc. et al

Filing 37

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 6/1/15. ORDERED that when filing restricted documents, parties MUST fully comply with the requirements of D.C.ColoL.CivR. 7.2. (cbssec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LARRY WILLIAMS and LnL PUBLISHING, INC
Plaintiff,
Case No. 1:14-CV-03353-MSK-CBS
v.
GENESIS FINANCIAL TECHNOLOGIES, INC.,
GLEN LARSON and PETE KILMAN,
Defendants.

PROTECTIVE ORDER

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and for good cause, IT IS
HEREBY ORDERED THAT:
1.

Scope of Protection
This Protective Order shall govern any record or information produced in this action and

designated pursuant to this Protective Order, including all designated deposition testimony, all
designated testimony taken at a hearing or other proceeding, all designated deposition exhibits,
interrogatory answers, admissions, documents and other discovery materials, whether produced
informally or in response to interrogatories, requests for admissions, requests for production of
documents or other formal methods of discovery.
This Protective Order shall also govern any designated record or information produced in
this action pursuant to required disclosures under any federal procedural rule or local rule of the
Court and any supplementary disclosures thereto.

This Protective Order shall apply to the parties and to any nonparty from whom discovery
may be sought who desires the protection of this Protective Order.
Nonparties may challenge the confidentiality of the protected information by filing a
motion to intervene and/or a motion to de-designate.
2.

Definitions
(a)

The term PROTECTED INFORMATION shall mean confidential or proprietary,

technical, scientific, financial, business, personal, health, or medical information designated as
such by the producing party.
(b)

The term CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY, shall

mean PROTECTED INFORMATION that is so designated by the producing party. The designation
CONFIDENTIAL-ATTORNEYS EYES ONLY may be used only for the following types of past,
current, or future PROTECTED INFORMATION: (1) sensitive technical information, including
current research, development and manufacturing information and patent prosecution information,
(2) sensitive business information, including highly sensitive financial or marketing information and
the identity of suppliers, distributors and potential or actual customers, (3) competitive technical
information, including technical analyses or comparisons of competitor’s products, (4) competitive
business information, including nonpublic financial or marketing analyses or comparisons of
competitor’s products and strategic product planning, or (5) any other PROTECTED
INFORMATION the disclosure of which to non-qualified people subject to this Protective Order the
producing party reasonably and in good faith believes would likely cause harm.
The term CONFIDENTIAL INFORMATION shall mean all PROTECTED INFORMATION
that is not designated as “CONFIDENTIAL-ATTORNEYS EYES ONLY” information.

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(c)

The term TECHNICAL ADVISOR shall refer to any person who is not a party to this

action and/or not presently employed by or affiliated with, directly or indirectly, the receiving party
or a company related to the receiving party through common ownership, who has been designated by
the receiving party to receive another party’s PROTECTED INFORMATION, including
CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY, and CONFIDENTIAL
INFORMATION. Each party’s TECHNICAL ADVISORS shall be limited to such person as, in the
judgment of that party’s counsel, are reasonably necessary for development and presentation of that
party’s case. These persons include outside experts or consultants retained to provide technical or
other expert services such as expert testimony or otherwise assist in trial preparation.
3.

Disclosure Agreements
Each receiving party’s TECHNICAL ADVISOR shall sign a disclosure agreement in the

form attached hereto as Exhibit A.
4.

Designation of Information
(a)

Documents and things produced or furnished during the course of this action shall be

designated as containing CONFIDENTIAL INFORMATION by placing on each page, each document
(whether in paper or electronic form), or each thing a legend substantially as follows:
“CONFIDENTIAL” or “CONFIDENTIAL INFORMATION”.
(b)

Documents and things produced or furnished during the course of this action shall

be designated as containing information which is CONFIDENTIAL INFORMATIONATTORNEYS EYES ONLY by placing on each page, each document (whether in paper or
electronic form), or each thing a legend substantially as follows:

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CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY.
(c)

During discovery a producing party shall have the option to require that all or

batches of materials be treated as containing CONFIDENTIAL INFORMATION-ATTORNEYS
EYES ONLY during inspection and to make its designation as to particular documents and
things at the time copies of documents and things are furnished.
(d)

A party may designate information disclosed at a deposition as CONFIDENTIAL

INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY by
requesting the reporter to so designate the transcript at the time of the deposition.
(e)

A producing party shall designate its discovery responses, responses to requests

for admission, briefs, memoranda and all other papers sent to the court or to opposing counsel as
containing CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATIONATTORNEYS EYES ONLY when such papers are served or sent.
(f)

A party shall designate information disclosed at a hearing or trial as

CONFIDENTIAL INFORMATION or as CONFIDENTIAL INFORMATION-ATTORNEYS
EYES ONLY by requesting the court, at the time the information is proffered or adduced, to
receive the information only in the presence of those persons designated to receive such
information and court personnel, and to designate the transcript appropriately.
(g)

The parties will use reasonable care to avoid designating any documents or

information as CONFIDENTIAL INFORMATION or as CONFIDENTIAL INFORMATIONATTORNEYS EYES ONLY that is not entitled to such designation or which is generally available
to the public. The parties shall, where practical to do so, designate only that part of a document or
deposition that is CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION4

ATTORNEYS EYES ONLY, rather than the entire document or deposition. For example, if a
party claims that a document contains pricing information that is CONFIDENTIAL-ATTORNEYS
EYES ONLY, the party will designate only that part of the document setting forth the specific
pricing information as ATTORNEYS EYES ONLY, rather than the entire document.
5.

Disclosure and Use of Confidential Information

Information that has been designated CONFIDENTIAL INFORMATION or as
CONFIDENTIAL INFORMATION -ATTORNEYS EYES ONLY shall be disclosed by the
receiving party only to Qualified Recipients. All Qualified Recipients shall hold such information
received from the disclosing party in confidence, shall use the information only for purposes of this
action and for no other action, and shall not use it for any business or other commercial purpose, and
shall not use it for filing or prosecuting any patent application (of any type) or patent reissue or
reexamination request, and shall not disclose it to any person, except as hereinafter provided. All
information that has been designated CONFIDENTIAL INFORMATION or as CONFIDENTIAL
INFORMATION -ATTORNEYS EYES ONLY shall be carefully maintained so as to preclude
access by persons who are not qualified to receive such information under the terms of this Order.
6.

Qualified Recipients
For purposes of this Order, “Qualified Recipient” means:
(a)

For CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY:
(1)

Outside counsel of record for the parties in this action, and the partners,

associates, secretaries, paralegal assistants, and employees of such counsel to the extent
reasonably necessary to render professional services in the action, outside copying services,
document management services and graphic services;

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(2)

Court officials involved in this action (including court reporters, persons

operating video recording equipment at depositions, and any special master appointed by the Court);
(3)

Any person designated by the Court in the interest of justice, upon such

terms as the Court may deem proper;
(4)

Any outside TECHNICAL ADVISOR employed by the outside counsel of

record, subject to the requirements in Paragraph 3 above; and
(5)

Any witness during the course of discovery, so long as it is stated on the face

of each document designated CONFIDENTIAL INFORMATION -ATTORNEYS EYES ONLY
being disclosed that the witness to whom a party is seeking to disclose the document was either an
author, recipient, or otherwise involved in the creation of the document. Where it is not stated on the
face of the confidential document being disclosed that the witness to whom a party is seeking to
disclose the document was either an author, recipient, or otherwise involved in the creation of the
document, the party seeking disclosure may nonetheless disclose the confidential document to the
witness, provided that: (i) the party seeking disclosure has a reasonable basis for believing that the
witness in fact received or reviewed the document, (ii) the party seeking disclosure provides advance
notice to the party that produced the document, and (iii) the party that produced the document does
not inform the party seeking disclosure that the person to whom the party intends to disclose the
document did not in fact receive or review the documents. Nothing herein shall prevent disclosure at
a deposition of a document designated. CONFIDENTIAL INFORMATION -ATTORNEYS EYES
ONLY to the officers, directors, and managerial level employees of the party producing such
CONFIDENTIAL INFORMATION -ATTORNEYS EYES ONLY, or to any employee of such

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party who has access to such CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY in
the ordinary course of such employee’s employment.
(b)

FOR CONFIDENTIAL INFORMATION:
(1)

Those persons listed in paragraph 6(a);

(2)

In-house counsel for a party to this action who are acting in a legal capacity

and who are actively engaged in the conduct of this action, and the secretary and paralegal assistants
of such counsel to the extent reasonably necessary;
(3)
The insurer of a party to litigation and employees of such insurer to the extent
reasonably necessary to assist the party’s counsel to afford the insurer an opportunity to investigate
and evaluate the claim for purposes of determining coverage and for settlement purposes; and
(4)
7.

Employees of the parties who sign a disclosure agreement.

Use of Protected Information
(a)

In the event that any receiving party’s briefs, memoranda, discovery requests,

requests for admission or other papers of any kind which are served or filed shall include another
party’s CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS
EYES ONLY, the papers shall be appropriately designated pursuant to paragraphs 4(a) and (b), and
pursuant to D.C.COLO.L.CivR 7.2, and shall be treated accordingly.
(b)
party’s

All documents, including attorney notes and abstracts, which contain another

CONFIDENTIAL

INFORMATION

or

CONFIDENTIAL

INFORMATION-

ATTORNEYS EYES ONLY, shall be handled as if they were designated pursuant to paragraph
4(a) or (b).

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(c)

Documents, papers and transcripts filed with the court which contain any other

party’s CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS
EYES ONLY shall be filed in sealed envelopes and labeled according to D.C.COLO.L.CivR7.2.
(d)

To the extent that documents are reviewed by a receiving party prior to production,

any knowledge learned during the review process will be treated by the receiving party as
CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY until such time as the documents
have been produced, at which time any stamped classification will control. No photograph or any
other means of duplication, including but not limited to electronic means, of materials provided for
review prior to production is permitted before the documents are produced with the appropriate
stamped classification.
(e)

In the event that any question is asked at a deposition with respect to which a party

asserts that the answer requires the disclosure of CONFIDENTIAL INFORMATION or
CONFIDENTIAL

INFORMATION-ATTORNEYS

EYES

ONLY,

such

question

shall

nonetheless be answered by the witness fully and completely. Prior to answering, however, all
persons present shall be advised of this Order by the party making the confidentiality assertion and,
in the case of information designated as CONFIDENTIAL INFORMATION-ATTORNEYS
EYES ONLY at the request of such party, all persons who are not allowed to obtain such
information pursuant to this Order, other than the witness, shall leave the room during the time in
which this information is disclosed or discussed.
(f)

Nothing in this Protective Order shall bar or otherwise restrict outside counsel from

rendering advice to his or her client with respect to this action and, in the course thereof, from
relying in a general way upon his examination of materials designated CONFIDENTIAL
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INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY, provided,
however, that in rendering such advice and in otherwise communicating with his or her clients,
such counsel shall not disclose the specific contents of any materials designated CONFIDENTIAL
INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY.
8.

Inadvertent Failure to Designate
(a)

In the event that a producing party inadvertently fails to designate any of its

information pursuant to paragraph 4, it may later designate by notifying the receiving parties in
writing. The receiving parties shall take reasonable steps to see that the information is thereafter
treated in accordance with the designation.
(b)
It shall be understood however, that no person or party shall incur any liability
hereunder with respect to disclosure that occurred prior to receipt of written notice of a belated
designation.
9.

Challenge to Designation
(a)

Any receiving party may challenge a producing party’s designation at any time. A

failure of any party to expressly challenge a claim of confidentiality or any document designation
shall not constitute a waiver of the right to assert at any subsequent time that the same is not infact confidential or not an appropriate designation for any reason.
(b)

Notwithstanding anything set forth in paragraph 2(a) and (b) herein, any receiving

party may disagree with the designation of any information received from the producing party as
CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS
EYES ONLY.
No party shall be obligated to challenge the propriety of any designation when made, and
failure to do so shall not preclude a subsequent challenge to the propriety of such designation.
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(c)

With respect to requests and applications to remove or change a designation,

information shall not be considered confidential or proprietary to the producing party if:
(i)

the information in question has become available to the public through no

violation of this Order; or
(ii)

the information was known to any receiving party prior to its receipt from

the producing party; or
(iii) the information was received by any receiving party without restrictions
on disclosure from a third party having the right to make such a disclosure.
10.

Inadvertently Produced Privileged Documents
The parties hereto also acknowledge that regardless of the producing party’s diligence an

inadvertent production of attorney-client privileged or attorney work product materials may occur. In
accordance with Fed. R. Civ. P. 26(b)(5) and Fed. R. Evid. 502, they therefore agree that if a party
through inadvertence produces or provides discovery that it believes is subject to a claim of attorneyclient privilege or attorney work product, the producing party may give written notice to the
receiving party that the document or thing is subject to a claim of attorney-client privilege or attorney
work product and request that the document or thing be returned to the producing party. The
receiving party shall return to the producing party such document or thing. Return of the document or
thing shall not constitute an admission or concession, or permit any inference, that the returned
document or thing is, in fact, properly subject to a claim of attorney client privilege or attorney work
product, nor shall it foreclose any party from moving the Court pursuant to Fed. R. Civ. P. 26(b)(5)
and Fed. R. Evid. 502 for an Order that such document or thing has been improperly designated
or should be produced.
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11.

Inadvertent Disclosure
In the event of an inadvertent disclosure of another party’s CONFIDENTIAL

INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY to a nonQualified Recipient, the party making the inadvertent disclosure shall promptly upon learning of the
disclosure: (i) notify the person to whom the disclosure was made that it contains CONFIDENTIAL
INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY subject to
this Order; (ii) make all reasonable efforts to preclude dissemination or use of the CONFIDENTIAL
INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY by the
person to whom disclosure was inadvertently made including, but not limited to, obtaining all
copies of such materials from the non-Qualified Recipient; and (iii) notify the producing party of the
identity of the person to whom the disclosure was made, the circumstances surrounding the
disclosure, and the steps taken to ensure against the dissemination or use of the information.
12.

Limitation
This Order shall be without prejudice to any party’s right to assert at any time that any

particular information or document is or is not subject to discovery, production or admissibility
on the grounds other than confidentiality.
13.

Conclusion of Action
(a)
At the conclusion of this action, including through all appeals, each party

or other person subject to the terms hereof shall be under an obligation to destroy or return to the
producing party all materials and documents containing CONFIDENTIAL INFORMATION or
CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY and to certify to the

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producing party such destruction or return. Such return or destruction shall not relieve said
parties or persons from any of the continuing obligations imposed upon them by this Order.
(b)

After this action, trial counsel for each party may retain one archive copy of

all documents and discovery material even if they contain or reflect another party’s
CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS EYES
ONLY. Trial counsel’s archive copy shall remain subject to all obligations of this Order.
(c)

The provisions of this paragraph shall not be binding on the United States,

any insurance company, or any other party to the extent that such provisions conflict with
applicable Federal or State law. The Department of Justice, any insurance company, or any other
party shall notify the producing party in writing of any such conflict it identifies in connection
with a particular matter so that such matter can be resolved either by the parties or by the Court.
14.

Production by Third Parties Pursuant to Subpoena
Any third party producing documents or things or giving testimony in this action

pursuant to a subpoena, notice or request may designate said documents, things, or testimony as
CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS
EYES ONLY. The parties agree that they will treat CONFIDENTIAL INFORMATION or
CONFIDENTIAL INFORMATION-ATTORNEYS EYES ONLY produced by third parties
according to the terms of this Order.
15.

Compulsory Disclosure to Third Parties
If any receiving party is subpoenaed in another action or proceeding or served with a

document or testimony demand or a court order, and such subpoena or demand or court order seeks
CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION ATTORNEYS EYES
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ONLY of a producing party, the receiving party shall give prompt written notice to counsel for the
producing party and allow the producing party an opportunity to oppose such subpoena or
demand or court order prior to the deadline for complying with the subpoena or demand or court
order. No compulsory disclosure to third parties of information or material exchanged under this
Order shall be deemed a waiver of any claim of confidentiality, except as expressly found by a
court or judicial authority of competent jurisdiction.
16.

Modification of Protective Order
This Order is without prejudice to the right of any person or entity to seek a modification

of this Order at any time either through stipulation or Order of the Court.
17.

Confidentiality of Party’s own Documents
Nothing herein shall affect the right of the designating party to disclose to its officers,

directors, employees, attorneys, consultants or experts, or to any other person, its own
information. Such disclosure shall not waive the protections of this Protective Order and shall not
entitle other parties or their attorneys to disclose such information in violation of it, unless by such
disclosure of the designating party the information becomes public knowledge. Similarly, the
Protective Order shall not preclude a party from showing its own information, including its own
information that is filed under seal by a party, to its officers, directors, employees, attorneys,
consultants or experts, or to any other person.
SO ORDERED, this 1st

June
day of May, 2015.

BY THE COURT:
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LARRY WILLIAMS and LnL PUBLISHING, INC
Plaintiff,
Case No. 1:14-CV-03353-MSK-CBS
v.
GENESIS FINANCIAL TECHNOLOGIES, INC.,
GLEN LARSON and PETE KILMAN,
Defendants.

WRITTEN ACKNOWLEDGMENT PURSUANT TO PROTECTIVE ORDER GOVERNING
THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION

1.
I have read the foregoing Order dated ___________________, 2015, that governs the
treatment of CONFIDENTIAL or PROTECTED Discovery Material in the action captioned above (the
“Litigation”).
2.
I have been informed that materials being shown or provided to me contain information
that has been designated PROTECTED INFORMATION, CONFIDENTIAL INFORMATION or
CONFIDENTIAL-ATTORNEYS EYES ONLY, as defined in the Order.
3.
I hereby represent that I have not divulged, and will not divulge, or undertake to divulge,
any Confidential Discovery Material except as authorized in the Order. I further represent that I will not
use any Confidential Discovery Material for any purpose other than the Litigation, and that, at the
termination of the Litigation, I will return all Confidential Discovery Material with which I have been
provided to the counsel from whom I received such Discovery Material or destroy all Confidential
Discovery Material and certify in writing to the counsel from whom I received such Discovery Material
that the required destruction has occurred.
4.
If I am in the possession, custody or control of Confidential Discovery Material and am
served with a subpoena, demand, or any other legal process seeking Discovery Material by a person not a
party to this action, I shall give prompt written notice, by hand, email or facsimile transmission within
forty-eight hours of receipt of such subpoena, demand or legal process, to the Producing and Designating
Parties, and shall, unless otherwise ordered by a Court, decline to produce the Discovery Material on the
basis of the existence of this Order.

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5.

I hereby agree to abide by the terms of the Order.

6.
For the purposes of enforcing the terms of the Order only, I hereby submit to the
jurisdiction of the United States District Court for the District of Colorado.

Printed Name:
DATED:

Signature:

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