Jimenez v. Denver Restaurant Venture, LLC et al

Filing 32

Stipulated PROTECTIVE ORDER, by Magistrate Judge Kathleen M. Tafoya on 4/16/2015. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.: 14-cv-03426-WYD-KMT
HUSAI JIMENEZ on his own behalf and on behalf
of all others similarly situated,
Plaintiff,
v.
DENVER RESTAURANT VENTURE, LLC d/b/a DIEGO’S and
TONY TERRONES,
Defendants.

STIPULATED PROTECTIVE ORDER

Upon consideration of the Stipulated Motion for Protective Order filed by
undersigned counsel for Plaintiffs and Defendants, and upon this Court’s finding that good
cause exists for the issuance of a Stipulated Protective Order, IT IS ORDERED as follows:
1.

This Stipulated Protective Order (“Protective Order”) shall apply to all

information, documents, electronically-stored information, and other materials disclosed,
produced, exchanged, or otherwise disseminated in this case, including without limitation,
documents produced, answers to interrogatories, responses to requests for admission,
deposition testimony, and other information disclosed, produced, or exchanged pursuant
to procedures set forth in the Federal Rules of Civil Procedure.
2.

As used in this 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.

3.

As used in this Protective Order, “electronically-stored information” means

any type of information that can be stored electronically, and is intended to be broad
enough to cover all current types of electronically and computer-based information.
4.

Information, documents, electronically-stored information, and/or other

materials designated as “CONFIDENTIAL” (collectively, “CONFIDENTIAL material” or
“CONFIDENTIAL information”) shall be information, documents, electronically-stored
information, and/or other materials that are confidential and meet the requirements set
forth in 5 U.S.C. § 552(b)(4) and (b)(6), such as: (a) personnel records of current or former
employees of Defendants; (b) any non-public personal information, including credit or
debit numbers, social security numbers, drivers’ license numbers, and bank or financial
account information or password information; (c) trade secrets and commercial or financial
information that is either privileged or confidential; (d) Protected Health Information; and
(e) any other material qualifying for protection under Federal Rule of Civil Procedure 26(c).
5.

CONFIDENTIAL material shall not, without the consent of the party

designating it as CONFIDENTIAL (the “Designating Party”) or further Order of the Court,
be disclosed except that such information may be disclosed, solely for the purposes of this
case to: attorneys actively working on this case; persons regularly employed by or
associated with the attorneys actively working on the case whose assistance is utilized by
said attorneys in connection with this case; the parties, including representatives of
Defendants; expert witnesses and consultants retained in connection with this proceeding;
the Court and its employees (“Court Personnel”); stenographic reporters who are engaged
in proceedings necessarily incident to the conduct of this action; or deponents, witnesses,
or potential witnesses; and other persons by written agreement of the parties.

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6.

CONFIDENTIAL information shall not be disclosed or used for any purpose

except for the preparation, trial, and appeal of this case.
7.

Information, documents, electronically-stored information, and/or other

materials are designated as CONFIDENTIAL by the party producing them by placing or
affixing (in a manner that will not interfere with their legibility) the following or other
appropriate notice—“CONFIDENTIAL”—on every page containing CONFIDENTIAL
information. If electronically-stored information is produced electronically and in a format in
which it is not feasible to comply with the foregoing sentence, then the electronic file
containing the information may be designated as CONFIDENTIAL by incorporating
“CONFIDENTIAL” into the file name, or by other means to which the parties may agree.
With the exception of depositions, which are discussed below in Paragraph 9, information,
documents, electronically-stored information, and/or other materials unintentionally
produced without a “CONFIDENTIAL” designation or produced before the Stipulated
Protective Order is issued, may be retroactively designated in the same manner.
8.

Before any information is designated as “CONFIDENTIAL,” counsel of

record for the Designating Party must first review the information and make a
determination, in good faith, that the information, documents, electronically-stored
information, and/or other materials are confidential or otherwise are entitled to protection
pursuant to Paragraph 4 of this Protective Order and Fed. R. Civ. P. 26(c).
9.

Whenever a deposition involves the disclosure of CONFIDENTIAL

information, the portions of the deposition containing such information may be designated
as CONFIDENTIAL and upon such designation shall be subject to the provisions of this
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
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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.
10.

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 schedule a telephone conference with the Magistrate Judge within
twenty (20) days after the time the notice is received, asking the Magistrate Judge to
assist the parties’ disagreement over and resolution of whether the disputed information
should be subject to the terms of this Protective Order. If such a telephone conference is
scheduled, the disputed information shall be treated as CONFIDENTIAL under the terms
of this Protective Order until the parties resolve their dispute or the Court rules on a
motion.

If the Designating Party fails to schedule a telephone conference within the

prescribed time or fails to make good-faith efforts to timely schedule such conference, 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 dispute 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.
11.

This Protective Order shall not prohibit the use of CONFIDENTIAL material

in depositions; pleadings; motions; at trial; or in post-trial motions or proceedings, provided
that such uses are related to the prosecution or defense of this case. Notwithstanding that
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CONFIDENTIAL material may be used, this Stipulated Protective Order does not waive
any right or obligation of any party to file a motion under D.C.COLO.LCivR. 7.2 to restrict
access to all or a portion of papers and documents filed with the Court. In addition, the
parties agree to comply with D.C.COLO.LCivR. 7.2 regarding procedures for restricting
access to documents that are marked “CONFIDENTIAL.”
12.

In the event that any CONFIDENTIAL material is used in any Court

proceeding in this action or any appeal from this action, counsel shall confer in good faith
on such procedures as are necessary to protect the confidentiality of any such material
used in the course of any court proceedings including, but not limited to, requesting the
Court to hear counsel with respect to such information in camera. No party, other than the
Designating Party, shall offer CONFIDENTIAL material into evidence, or otherwise tender
CONFIDENTIAL material to the Court in any court proceeding, without first advising the
Court and the Designating Party of its intent to do so; notification is satisfied by provision
of an exhibit list or copy of exhibits to be proffered. At that point, the Designating Party
may seek such protection from the Court as it deems appropriate, including the exclusions
of persons and witnesses from the Court and the sealing of the pertinent parts of the Court
records. The use of CONFIDENTIAL material in any court proceeding shall not prejudice
or limit in any way the rights of any person to petition the Court for such further protective
measures as may be necessary to protect the confidentiality of such material.
13.

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 and any entry of an
order, judgment or decree finally disposing of all litigation. At the conclusion of this case,
unless other arrangements are agreed upon in writing, each document and all copies
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thereof that have been designated as CONFIDENTIAL shall be returned to the party that
designated it CONFIDENTIAL, or the parties may elect to destroy CONFIDENTIAL
documents, except that counsel shall be permitted to retain court filings, deposition
transcripts, exhibits, and work product that contain CONFIDENTIAL information or
references thereto and a single copy of all documents marked CONFIDENTIAL for
archival purposes; provided that such counsel, and employees of such counsel, shall not
disclose such retained materials to any person or use such retained materials for any
purpose unrelated to this action except pursuant to court order or written agreement with
the Designating Party. Where parties agree to destroy CONFIDENTIAL documents, the
destroying party shall provide all parties with an affidavit confirming the destruction.
Notwithstanding the provisions of this paragraph, the parties, their counsel, and experts
for a party shall not be required to return or to destroy any CONFIDENTIAL information to
the extent prohibited by law or to the extent such CONFIDENTIAL information is (a) stored
on media that is generally considered not reasonably accessible, such as disaster
recovery backup tapes, or (b) only retrievable through the use of specialized tools or
techniques typically used by a forensic expert.

To the extent any CONFIDENTIAL

information is not returned or destroyed in accordance with this paragraph,

such

CONFIDENTIAL information shall remain subject to the confidential obligations of this
Protective Order.
14.

If any person receiving and in the possession, custody, or control of

CONFIDENTIAL information is served with a subpoena, demand, or any other legal
process seeking discovery material containing CONFIDENTIAL information by one not a
party to this action, the receiving party shall give prompt written notice, by hand or
facsimile transmission within forty-eight (48) hours of its receipt of such subpoena,
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demand or legal process, to the Designating Party, assuming the provision of such notice
is not forbidden by law or legal authorities.

The Designating Party shall be solely

responsible for seeking any relief or protection from any subpoena, demand, or legal
process seeking the discovery material and shall also be solely responsible for all of its
costs and attorneys’ fees in any proceedings relating to such subpoena or legal process.
15.

This Protective Order, the production or receipt of CONFIDENTIAL material,

and/or compliance with the terms of this Order, shall not:
a.

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;
b.

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

authenticity or admissibility into evidence of any document (or portion thereof), testimony
or other evidence subject to this Order;
c.

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;
d.

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
for in this Order with respect to any particular CONFIDENTIAL information; or
e.

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

any information as “CONFIDENTIAL.”
16.

This Protective Order may be modified by the Court at any time for good

cause shown, following notice to all parties, and an opportunity for them to be heard.

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ORDERED this 16th day of April, 2015.

BY THE COURT:

Magistrate Judge Kathleen M. Tafoya
AGREED AND APPROVED
s/ Jay Jester

s/ Brandt Milstein
Milstein Law Office
595 Canyon Blvd.
Boulder, CO 80302
Telephone: [phone]

Jester Gibson & Moore, LLP
1999 Broadway
Suite 3225
Denver, CO 80202
Telephone: [phone]

Attorney for Plaintiffs
Attorney for Defendants

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