Chesapeake Enterprises, Inc. v. Online Consumers Network et al

Filing 38

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 6/18/15. (sgrim)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-3511
CHESAPEAKE ENTERPRISES, INC.
Plaintiff,
vs.
ONLINE CONSUMERS NETWORK, STEPHEN COLE KIMBALL, and DEL
KIMBALL,
Defendants.

STIPULATED PROTECTIVE ORDER
______________________________________________________________________________
The parties agree that during the course of discovery it may be necessary to disclose
certain confidential information relating to the subject matter of this action. They agree that
certain categories of such information should be treated as confidential, protected from
disclosure outside the litigation, and used only for purposes of prosecuting or defending this
action and any appeals. The parties jointly request entry of this proposed Protective Order to
limit the disclosure, dissemination, and use of certain identified categories of confidential
information.
The parties assert in support of their request that protection of the identified categories of
confidential information is necessary because it is anticipated that during the course of document
production, material will be produced containing, by way of example: personal identifying
information of both parties and non-parties, and sensitive or proprietary tax, financial, trade
secret or other business information.
For good cause shown under Fed. R. Civ. P. 26(c), the court grants the parties’ request to

Exhibit A

enter this jointly proposed Protective Order to govern this action.
1.

Scope. All documents and materials produced in the course of discovery of this

case, including initial disclosures, responses to discovery requests, all deposition testimony and
exhibits, and information derived directly therefrom (hereinafter collectively “documents”), are
subject to this Order concerning Confidential Information as set forth below. As there is a
presumption in favor of open and public judicial proceedings in the federal courts, this Order will
be strictly construed in favor of public disclosure and open proceedings wherever possible.
2.

Definition of Confidential Information. As used in this Order, “Confidential

Information” is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use is restricted by statute or could potentially
cause harm to the interests of disclosing party or nonparties. For purposes of this Order, the
parties will limit their designation of “Confidential Information” to the following categories of
information or documents:


Proprietary, trade secret, or other information, records, files, and/or processes of Plaintiff
and/or Defendants which are not made available to the public;



Tax records;



Personnel records;



Financial statements and records;



Contributors to Defendant OCN, which are confidential owing to its status as a 501(c)(4)
non-profit;
Information or documents that are available to the public may not be designated as

Confidential Information.

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3.

Form and Timing of Designation. The producing party may designate documents

as containing Confidential Information and therefore subject to protection under this Order by
marking or placing the words “CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER”
(hereinafter “the marking”) on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries or descriptions that contain the Confidential Information. The
marking will be applied prior to or at the time the documents are produced or disclosed.
Applying the 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 purposes of this Order. Copies that
are made of any designated documents must also bear the marking, except that indices, electronic
databases, or lists of documents that do not contain substantial portions or images of the text of
marked documents and do not otherwise disclose the substance of Confidential Information are
not required to be marked. By marking a designated document as confidential, the designating
attorney or party appearing pro se thereby certifies that the document contains Confidential
Information as defined in this Order.
4.

Inadvertent Failure to Designate. Inadvertent failure to designate any document or

material as containing Confidential Information will not constitute a waiver of an otherwise valid
claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is asserted
within 21 days after discovery of the inadvertent failure.
5.

Depositions. Deposition testimony will be deemed confidential only if designated

as such when the deposition is taken or within a reasonable time period after receipt of the
deposition transcript. Such designation must be specific as to the portions of the transcript and/or
any exhibits to be protected.

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6.

Protection of Confidential Material.
a. General Protections. Designated Confidential Information must be used or
disclosed solely for purposes of prosecuting or defending this lawsuit, including
any appeals, or any other related legal proceeding brought by one of the parties to
this litigation.
b. Who may view Designated Confidential Information. Except with the prior
written consent of the designating party or prior order of the court, designated
Confidential Information may only be disclosed to the following persons:
i. The parties to the litigation, including any employees, agents, and
representatives of the parties;
ii. Counsel for the parties and employees and agents of counsel;
iii. The court and court personnel, including any special master appointed by
the court, and members of the jury;
iv. Court reporters, recorders, and videographers engaged for depositions;
v. Any mediator appointed by the court or jointly selected by the parties;
vi. Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation, but only after such persons
have

completed

the

certification

contained

in

Attachment

A,

Acknowledgement and Agreement to be Bound;
vii. Any potential, anticipated, or actual fact witness and his or her counsel,
but only to the extent such confidential documents or information will
assist the witness in recalling, relating, or explaining facts or in testifying;
viii. The author or recipient of the document (not including a person who

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received the document in the course of the litigation);
ix. Independent providers of document reproduction, electronic discovery, or
other litigation services retained or employed specifically in connection
with this litigation; and
x. Other persons only upon consent of the producing party and on such
conditions as the parties may agree.
c. Control of Documents. The parties must take reasonable efforts to prevent
unauthorized or inadvertent disclosure of documents designated as containing
Confidential Information pursuant to the terms of this Order. Counsel for the
parties must maintain a record of those persons, including employees of counsel,
who have reviewed or been given access to the documents along with the
originals of the forms signed by those persons acknowledging their obligations
under this Order.
7.

Filing of Confidential Information. In the event a party seeks to file any document

containing Confidential Information subject to protection under this Order with the court, that
party must take appropriate action to insure that the document receives proper protection from
public disclosure.
Nothing in this Order will be construed as a prior directive to allow any document to be
filed under seal. The parties understand that the requested documents may be filed under seal
only with the permission of the court after proper motion. If the motion is granted and the
requesting party permitted to file the requested documents under seal, only counsel of record and
unrepresented parties will have access to the sealed documents. Pro hac vice attorneys must
obtain sealed documents from local counsel.

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8.

Challenges to a Confidential Designation. The designation of any material or

document as Confidential Information is subject to challenge by any party. Before filing any
motion or objection to a confidential designation, the objecting party must meet and confer in
good faith to resolve the objection informally without judicial intervention. A party that elects to
challenge a confidentiality designation may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. The burden of proving the necessity
of a confidentiality designation remains with the party asserting confidentiality. Until the court
rules on the challenge, all parties must continue to treat the materials as Confidential Information
under the terms of this Order.
9.

Use of Confidential Documents or Information at Trial or Hearing. Nothing in

this Order will be construed to affect the use of any document, material, or information at any
trial or hearing. A party that intends to present or that anticipates that another party may present
Confidential Information at a hearing or trial must bring that issue to the attention of the court
and the other parties without disclosing the Confidential Information. The court may thereafter
make such orders as are necessary to govern the use of such documents or information at the
hearing or trial.
10.

Obligations on Conclusion of Litigation.
a. Order Remains in Effect. Unless otherwise agreed or ordered, all provisions of
this Order will remain in effect and continue to be binding after conclusion of the
litigation.
b. Return of Confidential Documents. Within 30 days after this litigation concludes
by settlement, final judgment, or final order, including all appeals, all documents
designated as containing Confidential Information, including copies as defined

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above, must be returned to the party who previously produced the document, at
the producing parties expense, unless: (1) the document has been offered into
evidence or filed without restriction as to disclosure; (2) the parties agree to
destruction of the document to the extent practicable in lieu of return; or (3) as to
documents bearing the notations, summations, or other mental impressions of the
receiving party, that party elects to destroy the documents and certifies to the
producing party that it has done so.
c. Retention of Work Product. Notwithstanding the above requirements to return or
destroy documents, at the conclusion of the litigation counsel may retain one copy
of all information designated as CONFIDENTIAL that they may use solely for the
purpose of preservation of the client’s file. Counsel may also retain attorney work
product, including an index which refers or relates to designated Confidential
Information, so long as that work product does not duplicate verbatim substantial
portions of the text or images of designated documents. This work product will
continue to be confidential under this Order. An attorney may use his or her own
work product in subsequent litigation provided that its use does not disclose
Confidential Information.
11.

Order Subject to Modification. This Order is subject to modification by the court

on its own motion or on 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 and an opportunity to be heard on the proposed modification.
12.

No Prior Judicial Determination. This Order is entered based on the

representations and agreements of the parties and for the purpose of facilitating discovery.

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Nothing in this Order will be construed or presented as a judicial determination that any
document or material designated as Confidential Information by counsel or the parties is entitled
to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the court may rule on a
specific document or issue.
13.

Persons Bound by Protective Order. This Order will take effect when entered and

is binding upon all counsel of record and their law firms, the parties, and persons made subject to
this Order by its terms.
14.

Jurisdiction. The court’s jurisdiction to enforce the provisions of this Order will

terminate on the final disposition of this case. But a party may file a motion to seek leave to
reopen the case to enforce the provisions of this Order.
15.

Applicability to Parties Later Joined. If additional persons or entities become

parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file with the court their written agreement to be bound by the provisions of this
Order.
16.

Protections Extended to Third-Party’s Confidential Information. The parties agree

to extend the provisions of this Protective Order to Confidential Information produced in this
case by third parties, if timely requested by the third party.
17.

Confidential Information Subpoenaed or Ordered Produced in Other Litigation. If

a receiving party is served with a subpoena or an order issued in other litigation that would
compel disclosure of any material or document designated in this action as Confidential
Information, the receiving party must so notify the designating party, in writing, immediately and
in no event more than three business days after receiving the subpoena or order. Such
notification must include a copy of the subpoena or court order.

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The receiving party also must immediately inform in writing the party who caused the
subpoena or order in issue in the other litigation that some or all of the material covered by the
subpoena or order is the subject of this Order. In addition, the receiving party must deliver a
copy of this Order promptly to the party in the other action that caused the subpoena to issue.
The purpose of imposing these duties is to alert the interested persons to the existence of
this Order and to afford the designating party in this case an opportunity to try and protect its
Confidential Information in the court from which the subpoena or order issued. The designating
party bears the burden and the expense of seeking protection in that court of its Confidential
Information, and nothing in these provisions should be construed as authorizing or encouraging a
receiving party in this action to disobey a lawful directive from another court. The obligations set
forth in this paragraph remain in effect while the party has in its possession, custody, or control
Confidential Information by the other party to this case.
18.

Inadvertent Disclosure of Confidential Information Covered by Attorney-Client

Privilege or Work Product. 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 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. Any party receiving any such information or document must return it upon request
to the producing party. Upon receiving such a request as to specific information or documents,
the receiving party must return the information or documents to the producing party within 7
days, regardless of whether the receiving party agrees with the claim of privilege and/or work

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product protection. Disclosure of the information or documents by the other party prior to such
later designation will not be deemed a violation of the provisions of this Order. The provisions of
this section constitute an order pursuant to Rules 502(d) and (e) of the Federal Rules of
Evidence.
IT IS SO ORDERED.
Dated this 18th day of June, 2015.
____________________________________
Kathleen M. Tafoya
U.S. Magistrate Judge

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WE SO MOVE AND AGREE TO ABIDE BY THE TERMS OF THIS ORDER:

SHOOK, HARDY & BACON, LLP
/s/ Richard F. Sander
Richard F. Sander
Kali R. Backer
Shook, Hardy & Bacon LLP
1660 17th St., Ste 450
Denver, CO 80202
Telephone [phone]
Fax [phone]
Email: [e-mail]
[e-mail]
Kenneth E. Chase
Shook, Hardy & Bacon LLP
1155 F Street NW, Ste. 200
Washington, DC 20004
Telephone [phone]
Fax [phone]
Email: [e-mail]
FRANKE SCHULTZ & MULLEN
/s/ John L. Mullen
John L. Mullen
8900 Ward Parkway
Kansas City, MO 64114
Phone [phone]
Email: [e-mail]

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ATTACHMENT A
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the case captioned, Chesapeake Enterprises, Inc. v. Online Consumers
Network, et al., Case No. 14-cv-3511, and attached hereto, understands the terms thereof, and
agrees to be bound by its terms. The undersigned submits to the jurisdiction of the United States
District Court for the District of Colorado in matters relating to this Protective Order and
understands that the terms of the Protective Order obligate him/her to use materials designated as
Confidential Information in accordance with the order solely for the purposes of the abovecaptioned action, and not to disclose any such Confidential Information to any other person,
firm, or concern, except in accordance with the provisions of the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name: ________________________________________
Job Title: ______________________________________
Employer: _____________________________________
Business Address: _______________________________
______________________________________________
Date: ______________________
Signature: ______________________________________

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