Fryberger v. TripTelevision, LLC et al

Filing 47

PROTECTIVE ORDER entered by Magistrate Judge Nina Y. Wang on 12/18/15. (bsimm, )

United States District Court
District of Colorado
Case No.: 15-cv-00363-MSK-NYW
CHARLES F. FRYBERGER d/b/a CHUCK FRYBERGER FILMS,
Plaintiff,
v.
TRIPTELEVISION, LLC, a Nevada company,
KULIN STRIMBU, an individual,
ELIZABETH HOLT, an individual,
RICH MEDIA EXCHANGE, LLC, a Colorado company
APPLE VACATIONS, LLC, a Delaware Corporation,
Defendants.
Proposed Protective Order
The following provisions are necessary for the protection of the parties confidential,
proprietary, or otherwise protected information pursuant to the provisions F.R.CP. 26(c).
IT IS HEREBY ORDERED THAT:
1. AUTHORIZED DESIGNATION UNDER PROTECTIVE ORDER AND NON-WAIVER
A.

Each party producing information including, but not limited to, any document,

record, electroncially stored information (“ESI”) or tangible thing (collectively “Documents”) in
this litigation shall label it as “Confidential” to the extent that the providing party believes in good
faith that the information falls within the scope of protection defined more fully in Paragraph 2
below, and as “Attorneys’ Eyes Only” to the extent that the providing party believes in good faith
that the information falls within the scope of protection defined more fully in Paragraph 3 below.
ESI that is converted to an image format (PDF or TIFF) for production shall be designated by
affixing the appropriate designation to the image. ESI produced in a non-image format shall be
designated by including the appropriate designation in the file name of the produced file and/or
also by producing a slip sheet bearing the bates number (if any), file name, and the appropriate
designation.
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B.

Non-waiver.
1) The failure to designate materials as “Confidential” or “Attorneys’ Eyes Only” at
the time of production shall not preclude the producing party from imposing such
designation at a later time if it believes in good faith that the information falls within
the scope of protection defined more fully in Paragraph 3 below. If a producing
party fails to designate a Document as “Confidential” or “Attorneys Eyes Only” in
the first instance and later discovers that the Document should have been so
designated, it shall may do so by promptly notifying the receiving party or parties
and providing a replacement copy of the Document bearing the new Designation.
2) If a receiving party objects to the new designation, it shall follow the challenge
procedure outlined in Paragraph 7 below.
3) If the receiving party used the document in a manner inconsistent with the new
designation prior to receiving such notice, then such prior use is not a breach of this
Order. However, upon receipt of such notice and until the resolution of any dispute
concerning such designation, the receiving party shall treat the document in
accordance with the new designation provided.

2.

ITEMS THAT QUALIFY FOR “CONFIDENTIAL” DESIGNATION
A party may designate as “Confidential” any business documents, correspondence,

testimony, or other sensitive or private information that the disclosing party believes should remain
confidential between the parties to the lawsuit and not be disclosed to any third party.

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3.

ITEMS THAT QUALIFY FOR “ATTORNEYS’ EYES ONLY” DESIGNATION
A party may designate as “Attorneys’ Eyes Only” any document, tangible thing, testimony,

or other data related to: any proprietary, sensitive business or technical information that would
provide a significant advantage to the party’s competitors if disclosed, including for example,
business development plans, trade secrets, proprietary information, competitor market analyses,
customer lists, bidding information, internal financial-accounting information, operations
information, and pricing and cost information.
4. DISTRIBUTION AND USES OF “CONFIDENTIAL” MATERIAL:
A.

Documents, records or items marked as “Confidential” material shall be used solely

for the purpose of conducting this litigation and not for any other purpose. Absent written consent
or a court order to the contrary, all documents, records, or other items disclosed or produced in
relation to this case which have been marked as “Confidential” material may be disclosed by the
party in receipt thereof only to the following persons:
1) Legal Counsel for the parties in this litigation, including necessary secretarial,
clerical, paralegal, and other administrative personnel assisting such counsel;
2) Accounting staff for the parties, including necessary secretarial, clerical and
paralegal personnel assisting such counsel or auditors;
3) Parties or employees, agents, or representatives of the parties;
4) Court reporters, videographers, interpreters, document reproduction companies and
such other qualified persons otherwise unconnected to any party but who are
involved in taking testimony, copying documents, and the like and are working at
the direction of or in cooperation with Legal Counsel or testifying Expert
Witnesses;

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5) Expert Witnesses who are engaged by a party or its Legal Counsel to assist in this
proceeding;
6) Witnesses or potential witnesses who appear or will potentially appear for
deposition or trial that agree to comply with the terms of this Protective Order (see
Exhibit A);
7) An author, records custodian, or recipient of the documents, records, or other items
marked as “Confidential” materials; and
8) The judge and employees of the Court, together with the members of any official
jury pool.
5. DISTRIBUTION AND USES OF “ATTORNEYS’ EYES ONLY” MATERIAL
A.

Documents, records or items marked as “Attorneys’ Eyes Only” material shall be

used solely for the purpose of conducting this litigation and not for any other purpose. Absent
written consent or a court order to the contrary, all documents, records, or other items disclosed or
produced in relation to this case which have been marked or designated as “Attorneys’ Eyes Only”
may be disclosed by the party in receipt thereof only to the following persons:
1) Legal Counsel for the parties including necessary secretarial, clerical, paralegal,
and other administrative personnel assisting such counsel;
2) Accounting staff for the parties, including necessary secretarial, clerical and
paralegal personnel assisting such counsel or auditors;
3) The judge and employees of the Court;
4) Court reporters, videographers, interpreters, document reproduction companies and
such other qualified persons otherwise unconnected to any party but who are
involved in taking testimony, copying documents, and the like and are working at

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the direction of or in cooperation with Legal Counsel, Accounting Counsel,
Auditors, Consultants, or testifying Expert Witnesses;
5) Testifying Expert Witnesses who execute a form of Exhibit A entitled “Agreement
to be Bound By Protective Order,” and their staff who are not affiliated with any
party and are engaged by a party or its Legal Counsel to assist in this proceeding,
and who shall communicate solely with Legal Counsel and not with the party;
6) An author, records custodian, or recipient of the documents, records, or other
“Attorneys’ Eyes Only” materials.
6.

DEFINITION OF LEGAL COUNSEL
The term “Legal Counsel” shall mean any licensed attorney who is consulted by the parties

in this litigation, including necessary secretarial, clerical and paralegal personnel assisting such
attorney.
7.

PROCEDURE FOR CHALLENGING DESIGNATIONS
A party may object to the designation of particular materials as “Confidential” or

“Attorneys’ Eyes Only” by giving written notice to the party designating the disputed information
within thirty (30) calendar days of receiving the materials in question. The written notice shall
identify the information to which the objection is made by Bates number or, if Bates numbers are
unavailable, by the clearest reasonable description of the information. The designating party shall
respond to the challenge within ten (10) calendar days after the date on which the notice of
objection is sent.
If the parties cannot resolve the objection within three calendar days thereafter, the
designating party must file with the Court a motion requesting the Court to uphold the designations
of the material subject to the objection within the next three days. If such motion is timely filed,
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the disputed information shall be treated as originally designated under the terms of this Protective
Order until the Court rules on the request. If the designating party fails to file such a request within
the prescribed time, the disputed information shall lose its designation as “Confidential” or
“Attorneys’ Eyes Only” and shall not thereafter be treated as such in accordance with the terms of
this Protective Order unless good cause is shown.
8.

PROCEDURE FOR REQUESTING REVIEW OF “ATTORNEYS’ EYES ONLY”
MATERIAL BY INDIVIDUALS NOT NAMED IN SECTION 5
If a party wishes to disclose materials marked “Attorneys’ Eyes Only” to an individual or

class of individuals other than those specified in Section 5, the party may do so only after
(1) requesting written consent from the opposing party, and (2) if consent is not given within seven
(7) calendar days, filing a motion with the Court requesting an order allowing the individual or
class of individuals to be permitted to view the materials.
9. ENFORCEMENT
The parties agree that this Court shall retain jurisdiction over this matter and this Protective
Order to enforce the terms of this Protective Order.
10. OBLIGATIONS UPON TERMINATION OF LITIGATION
Legal Counsel may retain “Confidential” or “Attorneys’ Eyes Only” information for a
three-year period following the Final Termination of this litigation, at which time Legal Counsel
may either return or destroy the documents. This Order does not require Legal Counsel to
undertake any extraordinary or unreasonable measures or incur any significant expense, such as
purging “Confidential” or “Attorneys’ Eyes Only” from archival or back-up storage media. Legal
Counsel shall preserve the confidentiality of the information as required by Sections 4 and 5 above
so long as such information remains in the possession of Legal Counsel. Notwithstanding the

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above, Legal Counsel may retain intact any pleading, transcript, exhibits, correspondence or other
materials within its case file that includes or references “Confidential” or “Attorneys’ Eyes Only”
materials in accordance with such Legal Counsel’s own document retention policy, but shall
continue to preserve its confidentiality. This Protective Order shall continue to be binding after the
conclusion of this litigation except that a party may seek the written permission of the other party
or further order of the Court, after notice to the other party and opportunity to be heard, with respect
to dissolution or modifications of this Protective Order. The Court retains jurisdiction subsequent
to settlement, if any, or entry of judgment, if any, to enforce the terms of this Protective Order.
For purposes of this Section 10, the term “Final Termination” shall mean that all Judgments
or Orders that may be entered are no longer subject to appeal or further appeal.
11. NO EFFECT ON DISCOVERY ORDERS
Nothing in this Protective Order shall be deemed or interpreted to vacate, amend, or modify
any Orders which have been previously entered by the Court relating to discovery matters except
for the ability of the parties to designate materials as “Confidential” or “Attorneys’ Eyes Only” as
provided for herein, and by doing so subject such materials to the restrictions and procedures set
forth herein.
12. NO WAIVER
Nothing in this Protective Order, or the taking of any action in accordance with the
provisions of this Protective Order, or the failure to object thereto, shall be construed as a waiver
or admission of any claim or defense in this proceeding, or any waiver of the attorney-client or
work-product privilege.

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The entry of this Protective Order shall not be construed as a waiver of any right to object
to the furnishing of information in response to discovery or to object to a requested inspection of
documents or things, and except as expressly provided herein, shall not relieve any party of the
obligation of producing information in the course of discovery.
13. SUBPOENAS
If any party or other person authorized under this Protective Order to receive
“Confidential” or “Attorneys’ Eyes Only” materials receives a subpoena from a non-party to this
Protective Order seeking production or other disclosure of such material, that party or person shall
object to production of any such material and shall immediately give written notice to counsel for
the party who produced such material identifying the material requested and enclosing a copy of
the subpoena. The duty of the receiving party shall be discharged by such notice and objection and
the receiving party may, but is not required to, undertake any further expense or effort to defend
the designation of the producing party. If ordered by a court to produce such material, the
subpoenaed party may do so.
14. AMENDMENTS AND MODIFICATIONS
No amendment, modification, or supplement to this Protective Order shall be binding on
any of the parties unless it is in writing and signed by the parties in interest at the time of the
modification, or otherwise ordered by the Court.

18th
December
Dated this ______ day of _____________, 2015.

s/ Nina Y. Wang
__________________________________
Judge

Nina Y. Wang
United States Magistrate Judge

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Submitted and approved as to form and content this 4th day of December, 2015.

/s Scott E. Brenner____________
Scott E. Brenner
Thomas P. Howard
William C. Groh
Thomas P. Howard, LLC
842 W. South Boulder Rd., Suite 200
Louisville, CO 80027
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff
Chuck Fryberger

/s Joy Allen Woller (per authorization)____
Joy Allen Woller
Frederick J. Baumann
LEWIS ROCA ROTHGERBER LLP
1200 17th Street, Suite 3000
Denver, CO 80202-5855
Tel: [phone]
Fax: [phone]
Attorneys for Defendant
Apple Vacations, LLC

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EXHIBIT A TO PROTECTIVE ORDER
I, _________________________________________, have read the Protective Order
entered in the state court proceeding Charles F. Fryberger d/b/a Chuck Fryberger Films v.
Triptelevision, LLC, et al., United States District Court, District of Colorado Case No.: 15-cv00363-MSK-NYW. I understand its contents, and agree not to make any disclosures of
information, documents, tangible things, testimony, or other data marked or identified and
produced as “Confidential” or “Attorneys’ Eyes Only” materials in this litigation to any person
who is not permitted to have access to the same under the Protective Order.
________________________
Signature
________________________
Name
________________________
Date

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