Cota Martinez et al v. Xclusive Management LLC et al

Filing 60

STIPULATED PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 7/6/2015. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00047-MSK-MEH

MARIA DEL ROSARIO COTA MARTINEZ;
MARIO RINCON ROSALES; and
ARACELI ZAVALA RAMIREZ,
On their own behalf and on behalf of all others similarly situated,
Plaintiffs,
v.
XCLUSIVE MANAGEMENT LLC d.b.a. XCLUSIVE STAFFING;
XCLUSIVE STAFFING, INC.;
XCLUSIVE STAFFING OF COLORADO, LLC;
OMNI INTERLOCKEN COMPANY, LLC;
OMNI HOTELS MANAGEMENT CORPORATION; and
DIANE ASTLEY, an individual,
Defendants.

STIPULATED PROTECTIVE ORDER
To adequately protect material entitled to be kept confidential, expedite the flow of
discovery and facilitate the prompt resolution of disputes over confidentiality, it is HEREBY
ORDERED that:
1.

Documents or information produced or provided by the parties during the course

of discovery in the above-styled matter may be designated as “Confidential Information” so long
as the party who seeks confidentiality has a good faith belief that such document or information
is entitled to confidentiality under the terms of this Order.

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2.

For purposes of this Order, “Confidential Information” means (a) any personnel

or personal information for employees of Defendants Xclusive Management LLC d.b.a. Xclusive
Staffing, Xclusive Staffing, Inc., Xclusive Staffing of Colorado, LLC, Omni Interlocken
Company, LLC, Omni Hotels Management Corporation, and Diane Astley (collectively
“Defendants”), their parents or subsidiaries, including any personnel database identifying such
employees, (b) any document or information designated as confidential in accordance with
paragraph 6 of this Order, and (c) any aggregation of Confidential Information.

The

identification of an individual document or category of documents or information as Confidential
Information may be challenged pursuant to paragraph 10 of this Order.
3.

For purposes of this Order, “Document” means all written, recorded, or graphic

material, in hard copy or electronic format, including but not limited to deposition transcripts and
exhibits, trial and hearing transcripts and exhibits, pleadings, motions, affidavits, and briefs that
may quote, summarize, or contain Confidential Information.
4.

For purposes of this Order, “Producing Party” means a party that produces

Confidential Information or other information in connection with this litigation.
5.

For purposes of this Order, “Recipient” means a named party in this litigation (or

counsel thereto and their agents) who receives Confidential Information or other information in
connection with the litigation.
6.

A.

The Producing Party may designate as Confidential Information any

information it believes to be confidential, including, without limitation, (i) non-public
information about a past, present or potential employee of Defendants or a subsidiary, including
personnel records, evaluations, compensation levels, databases, surveys, statistical analyses,
analyses of personnel practices, or other information incorporating or aggregating information

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pertaining to individuals, and (ii) trade secrets or other non-public proprietary, strategic or
commercial information, data or research of Defendants or one or more of their subsidiaries.
B. To designate Confidential Information on Documents, the Producing Party shall place
a legend or stamp upon the Document indicating such in a way that brings the designation to the
attention of a reasonable examiner, or otherwise puts the Recipient on reasonable notice that it
contains Confidential Information. To designate Confidential Information in testimony (or in
exhibits referred to therein), the Producing Party shall (a) make an oral statement to that effect on
the record, or (b) notify the Recipient in writing at any time up until twenty (20) days after
receipt of the transcript.
7.

The Recipient of Confidential Information shall use that information solely in

connection with this litigation, and shall not disclose Confidential Information to any person
except:
a)
b)

the Court and its officers (including court reporters);

c)

counsel of record in this action and employees of counsel in this
action who have been actively engaged in the conduct of this
litigation;

d)

Defendants’ or their subsidiaries’ or affiliates’ corporate
compliance counsel;

e)

experts or litigation consultants engaged by counsel to assist in this
litigation, provided that these expert witnesses or litigation
consultants expressly agree to be bound by the terms of this Order
and not to disclose Confidential Information except as permitted
herein;

f)

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named plaintiffs, in accordance with the procedures set forth in this
Order;

fact witnesses providing testimony by deposition or at any court
proceeding in this case but only in accordance with the procedures
set forth in paragraph 8 of this Order.

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8.

The Recipient of Confidential Information shall disclose such information to

persons set forth in paragraphs 7(a) or 7(f), of this Order only under the conditions set forth
below:
a)

b)

Any person who receives Confidential Information pursuant to
paragraphs 7(a) or 7(f), shall execute an Agreement in the form
annexed hereto as Exhibit A. Each original, executed Agreement
shall be maintained in the files of the Recipient and shall be
available for review by all counsel and parties upon reasonable
notice.

c)

9.

Prior to disclosure of Confidential Information to persons
described in paragraphs 7(a) or 7(f), the Recipient shall advise that
person that, pursuant to this Order, he or she may not divulge such
information to any other individual.

The Recipient who discloses Confidential Information pursuant to
paragraphs 7(a) or 7(f), shall maintain a list specifically identifying
the persons to whom the information was disclosed and the Bates
number and/or other means sufficient to identify such information
disclosed.

In the event the Recipient disputes the Producing Party’s designation of individual

documents or a category of documents or information as Confidential Information, the Recipient
shall notify the Producing Party in writing of such dispute. In an effort to settle such dispute
without judicial intervention, the parties shall meet and confer to determine whether the
restrictions imposed by this Order are warranted with respect to such disputed information. If
resolution of the dispute cannot be reached, the Recipient may apply to the Court for an
appropriate determination. In connection with such an application, the Producing Party shall
bear the burden to show that the information is entitled to continued protection under the Federal
Rules of Civil Procedure and applicable case law. During the pendency of such dispute or
application, and until the court may rule otherwise, the information designated Confidential
Information shall remain subject to the designations and restrictions of this Order.

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10.

Inadvertent failure to designate Confidential Information shall not be construed as

a waiver, in whole or in part, and may be corrected by the Producing Party by written
notification to the Recipient promptly upon discovery of the failure to designate.
11.

All information obtained by a Recipient in discovery in this litigation, regardless

of whether it is Confidential Information, shall be used by the Recipient solely for the
prosecution or defense of the claims in this litigation, and shall not be used by the Recipient in
any other legal action, or for any business, commercial, competitive, personal, publicity, media
or other purpose. No Recipient or other person to whom Confidential Information is disclosed
shall copy, transcribe, or otherwise reproduce in written or any other form any part or portion of
any Confidential Information except as necessary for purposes of the litigation.
12.

Within fifteen (15) business days after the conclusion of this litigation, by

adjudication (including appeals) or otherwise, the Recipient shall return to the Producing Party
all Confidential Information, all copies of such information, and any Documents incorporating
such information. Alternatively, the Recipient shall destroy all such materials and certify in
writing that all such materials have been destroyed.
13.

Confidential Information shall be filed in accordance with D.C.COLO.LCivR 7.2.

If a Party intends to file any Confidential Information with the Court, or any pleadings, motions,
or other papers filed with the Court contain such information, the Party will move to restrict
access to the information in accordance with D.C.COLO.LCivR 7.2. Where possible, only the
portions of filings containing Confidential Information shall be filed with the Court under
restriction.
14.

The restrictions set forth in this Order shall not apply to:
a)

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information that was, is or becomes public knowledge through its
authorized release by a person or entity who rightfully obtained

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and possesses such information during the normal course of
business, and not in violation of this Order;
b)

Defendants (or their subsidiaries), with respect to their own
information or information received or created during the normal
course of its own business.

Whether information that becomes a matter of public record in any other manner may still be
subject to protection as confidential shall be determined according to the standards and
procedures set forth in paragraphs 2 through 10 of this Order. The owner of Confidential
Information shall be able to seek protection of that information in accordance with paragraph 6
of this Order even if it did not produce that information in discovery.
15.

Nothing in this Order shall be deemed to be a limit or waiver of the attorney-

client privilege, the work product privilege, or any other relevant privilege. Further, inadvertent
production of privileged information shall not waive the privilege. If privileged information is
inadvertently produced, the Recipient agrees that, upon request from the Producing Party, it shall
promptly return all copies of Documents containing the privileged information, delete any
versions of the Documents containing the privileged information on any database or computer
filing system it maintains, and make no use of the privileged information.
16.

Nothing in this Order shall prohibit any party from objecting to the production or

disclosure of Confidential Information solely on the grounds that such information is confidential
or sensitive, or on any other grounds. Furthermore, nothing in this Order shall preclude the
parties from objecting to the admissibility or use of Confidential Information.
17.

In the event plaintiffs or their counsel obtain information of Defendants (or their

subsidiaries) from a third party that Defendants believe is confidential, Defendants may
designate such information Confidential Information pursuant to this Order and it shall be treated
as such in accordance with this Order.

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18.

If a Recipient discloses Confidential Information in a manner not authorized

herein, the Recipient must immediately and in writing notify the Producing Party of all pertinent
facts relating to such disclosure and, without prejudice to other rights and remedies of the
Producing Party, make every effort to prevent further disclosure by the Recipient or by the
person to whom the Recipient disclosed such information.
Dated at Denver, Colorado this 6th day of July, 2015.
BY THE COURT:

Michael E. Hegarty,
United States Magistrate Judge

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EXHIBIT A
AGREEMENT CONCERNING INFORMATION COVERED BY A
PROTECTIVE ORDER ENTERED IN THE UNITED STATES
DISTRICT COURT OF COLORADO
The undersigned hereby acknowledges that he/she has read the Protective Order
(“Order”) in Martinez, et al. v. Xclusive Management LLC, et al., Civil Action No. 15-cv-00047MSK-MEH and understands its terms, agrees to be bound by each of those terms, and agrees to
subject himself/herself personally to the jurisdiction of the United States District Court of
Colorado for the purpose of enforcing its terms. Specifically, and without limitation upon such
terms, the undersigned agrees not to use or disclose any Confidential Information made available
to him/her other than in accordance with the Order.

Dated: ___________________, 2015

By: ______________________________

_________________________________
(Type or print name of individual)

Of: ______________________________
Name of Employer

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