United States Securities and Exchange Commission v. Johnson et al

Filing 56

PROTECTIVE ORDER signed by Magistrate Judge Craig B. Shaffer on 7/20/15. 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
Civil Action No. 15-cv-00299-REB-CBS
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION,
Plaintiff,
v.
KRISTINE L. JOHNSON,
TROY A. BARNES, and
WORK WITH TROY BARNES, INC. (d/b/a THE ACHIEVE COMMUNITY),
Defendants,
and
ACHIEVE INTERNATIONAL, LLC,
Relief Defendant.
______________________________________________________________________
[PROPOSED] CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER
______________________________________________________________________
Pursuant to the parties’ Joint Motion for Entry of Confidentiality Agreement and
Protective Order [#__], and after due consideration, the Court hereby ORDERS as
follows:
1.
The “Litigation” shall mean the above-captioned case, United States
Securities and Exchange Commission v. Kristine L. Johnson, et al., Civil Action No. 15cv-00299-REB-CBS (D. Colo.).
2.
The “Related Action” shall mean any criminal matters concerning facts
and circumstances substantially similar to those involved in this case, regardless of
whether such case or cases have been filed at the time of this Order.
3.
The “Parties” shall mean and include all of the parties to the Litigation,
whether pro se or through their counsel of record.
4.
“Documents” or “information” shall mean and include any document
(whether in hard copy or electronic form), records, responses to discovery, deposition

transcripts, tangible articles or things, whether documentary or oral, and other
information provided, served, disclosed, filed, or produced, whether voluntarily or
through discovery or other means, in connection with the Litigation.
5.
“Producing Party” shall mean any person or entity who provides, serves,
discloses, files, or produces any nonpublic documents or information in connection with
the Litigation and/or the Related Action.
6.
The Parties agree that, in conjunction with the Litigation, the Parties or any
Producing Party may designate any document, thing, material, testimony, or other
information derived therefrom (hereinafter collectively referred to as “information”) as
“CONFIDENTIAL” under the terms of this Confidentiality Agreement and Protective
Order (the “Order”).
7.
Confidential information is information which has not been made public
and which contains trade secret, proprietary and/or sensitive business or personal
information.
8.
Confidential documents may be so designated by marking or stamping
copies of the document produced to a Party with the legend “CONFIDENTIAL.”
Marking or stamping the legend “CONFIDENTIAL” on the cover of any multi-page
document shall designate all pages of the document as confidential, unless otherwise
indicated by the Producing Party. Indicating confidential on the electronic file name of a
document produced electronically, or in the name of an electronic file folder containing
documents, shall also designate all contents of the electronic document or electronic file
folder as confidential. Additional methods for designating documents confidential may
be agreed to by the Parties as necessary.
9.
Testimony taken at a deposition may be designated as confidential by any
Party making a statement to that effect on the record at the deposition. Arrangements
shall be made with the court reporter taking and transcribing such deposition to
separately bind such portions of the transcript and deposition exhibits containing
information designated as confidential, and to label such portions appropriately.
Counsel for the Parties may also agree that an entire deposition transcript shall be
designated confidential. In the alternative, counsel for a Party may designate a
deposition or any portion thereof as confidential within ten 10 days of receipt of the
transcript or within 10 days of entry of this Order, whichever is later.
10.
A Party who receives confidential information from a Producing Party shall
not publish such information to third parties other than the Parties except as permitted
by, and in accordance with, the provisions of this Order. A Party who receives
Confidential information from a Producing Party shall use such information solely for the
purposes of the Litigation and/or the Related Action and shall not disclose such
information to any person except:

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a.
A United States District Court (“Court”) and persons assisting the
Court or assisting in the Litigation or Related Action processes (including,
but not limited to, court personnel, court reporters, stenographic reporters,
videographers and electronic filing personnel);
b.
The attorneys of record in the Litigation and the attorneys in the
Related Action (even if the Related Action has yet to be filed and therefore
the attorneys are not yet of record) and their co-shareholders, codirectors, partners, investigative attorneys, employees, associates,
paralegals, secretaries, and other support staff who are assisting in the
Litigation and/or Related Action (collectively hereafter referred to as
“Counsel”);
c.

Any law enforcement officer working with Counsel;

d.
A Party, or an officer, director, member, manager, employee, or
representative of a Party deemed necessary by counsel to aid in the
prosecution, defense, and settlement of the Litigation and/or the Related
Action;
e.
Third party witnesses, as may reasonably be necessary in
preparation for deposition or trial testimony;
f.
Experts or consultants and their staff, and litigation support
personnel and their staff, retained by the Parties and/or Counsel in the
Litigation and/or Related Action;
g.
Support vendors or contractors retained by Counsel for functions
directly related to the Litigation and/or the Related Action, such as
copying, document management, and graphic design;
h.
Any person identified on the face of any such confidential
information as an author or as recipient thereof;
i.
Any person who is determined to have been an author and/or
previous recipient of the confidential information, but is not identified on
the face thereof, provided there is prior evidence of actual authorship or
receipt of the confidential information by such person prior to such person
being shown any confidential information;
j.
Any non-party engaged by the parties or appointed by the Court for
purposes of acting as a Discovery Referee, Special Master, and/or neutral

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arbitrator or mediator in any alternative dispute resolution procedures in
which the Parties may participate;
k.
Any distribution agent or receiver, including third-party entities,
selected and/or retained in the Litigation and/or the Related Action for the
ultimate purpose of distributing funds obtained as a result of, or in
connection with, the Litigation and/or the Related Action;
l.
this Order shall not prevent the U.S. Securities and Exchange
Commission (the “Commission”) from complying with its obligations under
law concerning disclosure of documents, including but not limited to its
published Routine Uses of Information in Forms 1661 and 1662, the
Freedom of Information Act, and any other statutes or rules applicable to
the Commission, or interfere with the Commission’s use of information for
law enforcement activities and to otherwise regulate, administer, and
enforce the federal securities laws; and
m.

Any person as ordered by the Court.

Before any person may receive disclosure pursuant to Section 10(c) through 10(g)
above, they must understand and concur with their responsibility to maintain the
confidentiality of the information pursuant to this Order. The persons designated in
Section 10(e) & (f) above must sign Exhibit A to this Order before receiving confidential
information and, for any such persons who have already received confidential
information, such persons must sign Exhibit A within 10 days of entry of this Order, or
must return the confidential information. The attorneys of record for the party making
disclosure pursuant to Section 10(e) & (f) above shall retain the original Exhibits A that
have been executed by those to whom disclosure has been made.
11.
All designations of information as confidential by the Producing Party must
be made in good faith. All Parties reserve the right to challenge the designation of
information as confidential. In the event of such a challenge, the Producing Party has
the burden of establishing the appropriateness of the confidential designation.
12.
Nothing herein shall prevent a Party from freely using or disclosing
information that such Party independently generated or obtained from a source other
than disclosure or discovery from an opposing Party in this Litigation.
13.
This Order is not, and shall not be deemed to constitute, a determination
that any specific documents, item of information, or deposition actually constitutes or
contains confidential information, and nothing herein shall prevent any party hereto from
applying to the Court for, or shall present the Court from granting, relief from this Order
or further protective orders.

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14.

The provisions of this Order are without prejudice to the Parties’ rights to:
a.
Resist or compel discovery with respect to, or seek to obtain
additional or different protection for, material claimed to be protected work
product or privileged under applicable state or federal law, material as to
which the producing party claims a legal obligation not to disclose, or
material not required to be provided pursuant to applicable state or federal
law; or
b.
Object to the use, relevance or admissibility at trial or otherwise of
any material, whether or not designated in whole or in part as confidential
information governed by this Order. This Order shall not govern the use
or admissibility of any evidence at trial or the procedures for using such
documents or information at trial.

15.
The inadvertent production of any information without it being properly
marked or otherwise designated shall not be deemed to waive any claim of
confidentiality with respect to such information. If a Producing Party, through
inadvertence, produces any confidential information without marking or designating it as
such in accordance with the provisions of this Order, the Producing Party may, promptly
on discovery of the inadvertent disclosure, furnish a substitute copy properly marked
along with written notice to all Parties (or written notice alone as to non-documentary
information) that such information is deemed confidential and should be treated as such
in accordance with the provisions of this Order. Each receiving person must treat such
information as confidential in accordance with the notice from the date such notice is
received. Disclosure of such confidential information prior to the receipt of such notice,
if known, shall be reported to the Producing Party and shall not be deemed a violation of
this Order.
16.
If, through inadvertence, the Producing Party produces or makes available
to the other party for review Information that it believes is subject to a claim of attorneyclient privilege, work product immunity, or any other privilege, in whole or in part, or
learns of the production of privileged or protected information by a third party, the
Producing Party or party asserting the privilege may retrieve such information as follows
(unless the Parties dispute the applicability of the claimed privilege or protection, in
which case the matter will be resolved either by the Parties or the Court, and in which
case the obligations set forth below in subparagraphs b and c will be inapplicable):
a.
Within a reasonable time after producing the information (e.g., not
the week before trial), the Producing Party may give written notice to the
receiving party that it claims the information, in whole or in part, to be
privileged or protected material. In addition, the notice must state the
nature of the privilege or protection and the factual basis for asserting it.

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b.
In receipt of such notice, all parties who have received copies of the
produced information shall promptly (i) return all such copies to the party
asserting the privilege or (ii) provide written assurance to the party
asserting the privilege that all copies have been destroyed.
c.
In the event the Producing Party claims only part of the information
to be privileged or protected, the Producing Party shall furnish to the
requesting party redacted copies of such information, removing only the
part(s) thereof to be privileged or protected, together with such written
notice. Upon receipt of the redacted copy, each party shall promptly (a)
return all un-redacted copies to the party asserting the privilege or (b)
provide written assurance to the parties asserting the privilege that all
copies have been destroyed.
17.
If any Party wishes to file a document with the Court containing
confidential information, the Party filing the document shall notify the Producing Party in
advance so that the Parties may confer regarding the necessity of a motion to seal. If
the Producing Party requests that the information be submitted to the Court under seal,
then the Parties shall cooperate with respect to the process for filing documents under
seal. It is the responsibility of the Party seeking to prevent public disclosure of the
confidential information to prepare any pleadings necessary to submit the documents
under seal.
18.
The Parties may seek modification of this Order by the Court at any time,
by stipulation or for good cause.
19.
The Court shall retain jurisdiction over the Parties for the purpose of
ensuring compliance with this Order and granting such amendments, modifications, and
additions to this Order, and such other and further relief as may be necessary.
20.
This Order shall survive the final disposition of the Litigation, by judgment,
dismissal, settlement, appeal, or otherwise.

Dated July 20 2015 at Denver, Colorado.
__,

BY THE COURT:
_____________________________
Robert E. Blackburn
United States District Judge
Craig B. Shaffer 
United States Magistrate Judge 

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EXHIBIT A
STATEMENT REGARDING STIPULATED PROTECTIVE ORDER
I, __________________________________ , do hereby acknowledge and agree
as follows:
1.

I have received and read the Confidentiality Agreement and Protective

Order entered in the matter entitled United States Securities and Exchange Commission
v. Kristine L. Johnson, et al., Civil Action No. 15-cv-00299-REB-CBS (D. Colo.), to
which the form of this agreement is an attachment.
2.

I understand the terms and provisions of the Confidentiality Agreement

and Protective Order and agree to be bound by and to strictly adhere to all of its terms
and provisions.
3.

I hereby submit to the jurisdiction of the United States District Court for the

District of Colorado solely for the purpose of enforcement of the Confidentiality
Agreement and Protective Order.
DATED this

day of

____, 201__.

[Signature]

[Name, Address, Telephone Number]

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