Commnet Wireless, LLC et al v. Benning Power Electronics, Inc.

Filing 37

Stipulated Motion for Protective Order re: 36 . Signed by Judge John L. Kane on 12/28/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-3424-JLK
COMMNET WIRELESS, LLC, a Delaware limited liability company and
ATLANTIC TELE-NETWORK, INC., a Delaware corporation,
Plaintiffs,
v.
BENNING POWER ELECTRONICS, INC., a Texas corporation, and
BENNING ELEKTROTECHNIK UND ELEKTRONIK GMBH & CO. KG, a foreign
limited liability company,
Defendants.

STIPULATED MOTION FOR PROTECTIVE ORDER

Plaintiffs Commnet Wireless, LLC, a Delaware limited liability company, and Atlantic
Tele-Network, Inc., a Delaware corporation, and Defendants Benning Power Electronics, Inc.,
a Texas corporation, and Benning Elektronik Und Elektronik GMBH & Co. KG, a foreign
limited liability company, (“collectively “the Parties”) through their respective counsel,
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 has sought and/or is seeking

Confidential Information (as defined in paragraph 2 below). The Parties may seek additional
Confidential Information during discovery and there may be questioning concerning
Confidential Information in the course of further depositions. The Parties assert the disclosure

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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 as well as attorney-client privilege. 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 those documents the designating party

believes are protected by the Federal Rules of Civil Procedure as provided in Rule 26 and
designated by one of the Parties in the manner provided in paragraph 3 below, the disclosure of
which the designating party believes may cause harm to the designating party.
3.

Where Confidential Information is produced, provided, or otherwise disclosed

by a Party in response to any discovery request, it will be designated in one of the following
manners:
a.

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

document produced, accompanied by a reference to the ranges of bates numbered pages
to which that designation refers;
b.

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

discovery request; and
c.

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

counsel designating such portions as “Confidential” no later than ten calendar days after
receipt of the transcribed testimony.
4.

All Confidential Information provided by a Party shall be subject to the

following restrictions:
a.

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It shall be used only for the purpose of this litigation and not for any 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, provided, however, that
there shall be no requirement to obtain an affidavit for those persons identified in
paragraphs 7.a., 7.b., 7.c., 7.d and 7.e. of this Stipulation and Protective Order.
5.

Individuals authorized to review Confidential Information pursuant to this

Protective Order 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.
6.

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

for obtaining and retaining the original affidavits signed by qualified recipients of Confidential
Information. The form affidavit is attached as Appendix A to this Protective Order.
7.

Confidential Information shall not be disclosed to any person or entity other

a.

This Court, including court personnel, court reporters and persons operating

than:

video recording equipment at depositions in this action;
b.

Corporate (in-house) and outside attorneys for each party actively engaged in

this litigation and law clerks, paralegals, office clerks, and secretaries working under
their supervision;
c.

Any witness with prior knowledge of the information and/or prior or current

possession of the documents to be disclosed;
d.

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Consultants, investigators, or experts (hereinafter referred to collectively as

“experts”) retained or employed by the parties or counsel to assist in the preparation
and/or trial of the lawsuit.
e.

The Parties, deponents, witnesses, or potential witnesses; and

f.

Essential insurance representatives needed for claims evaluation. Prior to

disclosure to any insurance representative, the insurance representative must be
informed of and agree to be subject to the provisions of this Protective Order requiring
that the documents and information be held in confidence, as represented in Appendix
A.
8.

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

counsel in this litigation and such copies shall be made and used solely for purposes of this
litigation.
9.

During the pendency of this litigation, counsel shall retain custody of

Confidential Information and may provide disclosure as permitted under this Order.
10.

If any counsel objects to the designation of certain information as Confidential

Information, as soon as possible after determining that said designation is in error or
inappropriate, he or she shall promptly inform the other parties’ counsel in writing of the
specific grounds of objection to the designation. All counsel shall then, in good faith and on an
informal basis, attempt to resolve such dispute. If after such good faith attempt, all counsel are
unable to resolve their dispute, opposing counsel may move for a disclosure order consistent
with this Order. Any motion for disclosure shall be filed within 14 days of receipt by counsel
of notice of opposing counsel's objection, and the information shall continue to have
Confidential Information status from the time it is produced until the ruling by the Court on the
motion.

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11.

In the event a party desires to use Confidential Information in any filing with the

Court or in any Court proceeding, the filing or offering party shall give sufficient advance
notice to the party seeking confidentiality to enable that party to file a Motion to Restrict Public
Access, in accordance with D.C.COLO.L.Civ.R 7.2(c). Any such motion will be determined in
accordance with D.C.COLO.L.Civ.R 7.2.
12.

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

obligated hereunder from their responsibility to maintain the confidentiality of Confidential
Information pursuant to this Protective Order, and the Court shall retain continuing jurisdiction
to enforce the terms of this Protective Order.
13.

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

to the protected nature of the documents produced subject to provisions of the order, their
authenticity, or their admissibility.
14.

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

shall make available all Confidential Information provided subject to this Protective Order as
well as copies not otherwise destroyed to the producing party at the offices of counsel to whom
the Confidential Information was produced. If within thirty (30) days after providing notice to
producing counsel of the availability of the Confidential Information the producing party has
not taken possession of the Confidential Information, counsel providing notice shall destroy the
Confidential Information as documents are destroyed in the normal course of counsel’s
business.
15.

Nothing in this 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

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Information shall be treated at trial.
DATED this 24th day of December, 2015

.

WILSON ELSER MOSKOWITZ EDELMAN & DICKER
Signature on file at the offices of Wilson Elser Moskowitz Edelman &
Dicker LLP

By: /s/ Henry L. Solano
Henry L. Solano, #7539
1225 17th Street, Ste 2750
Denver, CO 80202
[phone]
[e-mail]
Attorney for Defendants
COZEN O'CONNOR
Signature on file at the offices of Cozen O'Connor

By: /s/ Brad W. Breslau
Brad W. Breslau
707 17th Street, Suite 3100
Denver, CO 80202
720-479-3900
866-765-8613 (fax)
[e-mail]
Attorneys for Plaintiffs

SO ORDERED this 28th day of December, 2015.
BY THE COURT:

JOHN L. KANE
SENIOR U.S. DISTRICT COURT JUDGE

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EXHIBIT A

AGREEMENT OF CONFIDENTIALITY
1. My full name is:
2. My address is:
3. My present employer is:
4. My present occupation or job description is:
5. I have received a copy of the Protective Order entered in this case. I have carefully read and
understand the provisions of the Protective Order. I will comply with all of the provisions of the
Protective Order.
6. I will not disclose any documents covered by the Protective Order except to the attorneys of
record in this case and their staff. I will use any such information only with respect to this case.
7. I will return all documents covered by the Protective Order that come into my possession and
all documents or things which I have prepared which contain reference to such information to
any attorney representing the party that has employed or retained me at the conclusion of this
case.
8. I submit to the jurisdiction of this Court for the purposes of enforcement of the Protective
Order.
DATED this day of

7

, 20

.