Wren v. Denver Sheriff Department, City and County of Denver et al

Filing 53

STIPULATION AND PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 7/15/2015. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.15-cv-00434-REB-MEH
ANDREW SCOTT WREN
Plaintiff,
v.
DEPUTY DUKE COLE,
JOHN DOE #1,
JOHN DOE #2 and
JOHN DOE #3
Defendants.

STIPULATION AND PROTECTIVE ORDER

Each party and each Counsel of Record stipulate and move the Court for a
Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure
concerning the treatment of Confidential and Confidential – For Attorney’s Eyes Only
Information (as hereinafter defined) and, as grounds therefore, state as follows:
1.

In this action, at least one of the Parties will produce or has sought and/or

may seek Confidential and/or Confidential – For Attorney’s Eyes Only Information (as
defined in paragraph 2 below). The Parties also anticipate seeking additional
Confidential or Confidential – For Attorney’s Eyes Only Information during discovery and
that there will be questioning concerning Confidential or Confidential – For Attorney’s
Eyes Only Information in the course of depositions. The Parties assert the disclosure of

such information outside the scope of this litigation could result in significant injury to
one or more of the Parties’ business, security, safety, or privacy interests. The Parties
have entered into this Stipulation and request the Court enter the within Protective
Order for the purpose of preventing the disclosure and use of Confidential and/or
Confidential – For Attorney’s Eyes Only Information except as set forth herein.
2.

“Confidential Information” and “Confidential – For Attorney’s Eyes Only”

means any document, file, portions of files, transcribed testimony, or response to a
discovery request, including any extract, abstract, chart, summary, note, or copy made
therefrom, which contains information that a party believes is confidential and implicates
common law and statutory privacy interests of the individuals who are named and which
are not made available to the public, as to which a reasonable expectation of privacy or
confidentiality exists. Documents or portions of documents designated “Confidential –
For Attorney’s Eyes Only” contain personal information about one or more parties or
their family members that Defendants request be made available to the attorneys only
for reasons of personal safety and security of the parties.
3.

Information designated as Confidential or Confidential – For Attorney’s

Eyes Only must first be reviewed by the attorney for the designating party, who must
have a good faith belief that the information is confidential or otherwise entitled to
protection under Fed. R. Civ. P. 26(c). Gillard v. Boulder Valley Sch Dist., 196 F.R.D.
382, 386 (D. Colo. 2000).

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4.

Where Confidential or Confidential – For Attorney’s Eyes Only Information

is produced, provided, or otherwise disclosed by the Parties in response to any
discovery request, it will be designated in the following manners:
a. By imprinting the word “Confidential” or “Confidential – For Attorney’s
Eyes Only” on the first page or cover of any document produced;
b. By imprinting the word “Confidential” or “Confidential – For Attorney’s
Eyes Only” next to or above any response to a discovery request;
c. With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” or
“Confidential – For Attorney’s Eyes Only” no later than thirty (30)
calendar days after receipt of the transcribed testimony; and
d. With respect to live testimony, by making a record at the time of the
testimony.
5.

Confidential Information is subject to the following restrictions:
a. It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;
b. It shall not be communicated or disclosed by any Party’s counsel or a
Party in any manner, either directly or indirectly, to anyone except for
purposes of this case and unless an affidavit in the form of Exhibit A
has been signed.

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6.

All Confidential – For Attorney’s Eyes Only Information which is provided

in response to a discovery request or transcribed testimony shall be subject to the
following restrictions:
a. It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;
b. It shall not be communicated or disclosed by any Party’s counsel to
their client, or used in this case if and until the steps set forth in
paragraph 14 have been satisfied.
7.

Individuals authorized to review Confidential Information pursuant to this

Protective Order include, but are not limited to, the Parties to this action, their
undersigned counsel and staff who are assisting counsel with this matter, self-insurance
representatives, adjusters and representatives of the City and County of Denver, expert
witnesses retained specifically for this litigation, the Court, and Court staff.

All

Individuals authorized to review Confidential Information shall hold Confidential
Information in confidence and shall not divulge the Confidential Information, either
verbally or in writing, to any other person, entity, or government agency unless
authorized to do so by court order. The Parties recognize that the available sanctions
for the violation of the protective order include, but are not limited to, the sanctions
available under Fed.R.Civ.P. 37(b)(2)(A).

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8.

The Party’s counsel who discloses Confidential Information shall be

responsible for assuring compliance with the terms of this Protective Order with respect
to persons to whom such information is disclosed and shall obtain and retain the original
affidavits signed by qualified recipients of Confidential Information, and shall maintain a
list of all persons to whom any Confidential Information is disclosed.
9.

By producing any Confidential Information or testifying on any matter later

designated as “Confidential,” no Party to this protective order waives any objection or
challenge to the admissibility of any such Confidential Information.
10.

Upon a showing of substantial need, each party has the right to seek court

intervention, including in camera review, to determine whether the terms of the
Protective Order are being complied with.
11.

During pendency of this action, opposing counsel may upon Court order or

agreement of the Parties inspect the affidavits maintained by counsel pursuant to
paragraph 8 above upon showing of substantial need in order to establish the source of
an unauthorized disclosure of Confidential Information and that opposing counsel are
unable to otherwise identify the source of the disclosure. If counsel disagrees with
opposing counsel’s showing of substantial need, counsel may then seek a court order
requiring inspection under terms and conditions deemed appropriate by the Court.
12.

No copies of Confidential Information shall be made except by or on

behalf of counsel in this litigation for work product purposes, including for review by
experts in this case. Any such copies shall be made and used solely for purposes of this
litigation, and subject to all restrictions herein. Nothing herein shall be construed as
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precluding the provision of actual copies of designated documents provided the
provisions of paragraph 5 are followed.
13.

A party may object to the designation of particular information as

Confidential by giving written notice to the party designating the disputed information at
any time. 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 designating party to file an
appropriate motion requesting that the Court determine whether the disputed
information should be subject to the terms of this Protective Order. Such motions shall
be filed within fourteen (14) business days after the expiration of the 10-day conferral
period set forth above. If such a motion is timely filed, the disputed information shall be
treated as confidential under the terms of this Protective Order until the Court rules on
the motion. If the designating party fails to file such a motion within the prescribed time,
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
motion filed 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.
14.

If after review of information designated as Confidential – For Attorney’s

Eyes Only, counsel requests that a certain document or documents be produced as
“Confidential,” counsel must confer with opposing counsel and attempt to reach an
agreement. If the parties cannot resolve the objection within ten (10) business days
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after the time of conferral, it shall be the obligation of the designating party to file a
motion with the Court seeking an in camera review of the disputed documents and
requesting that the Court make a determination as to the discoverability of the disputed
documents. Such motions shall be filed within fourteen (14) business days after the
expiration of the 10-day conferral period set forth above. Such motions shall be filed as
“restricted” pursuant to the terms of D.C.COLO.LCivR 7.2. After inspection, should the
Court determine that some or all of the submitted documents are discoverable, the
designating party will label those documents as “Confidential” and they shall be subject
to all terms of this Protective Order pertaining to Confidential Information.
15.

In the event it is necessary for the Parties to file Confidential Information

with the Court in connection with any proceeding or motion, the filing party shall
ascertain whether the Confidential Information should be filed as a restricted document
under D.C.COLO.LCivR 7.2.

The parties agree to confer in advance of submitting

Confidential Information to the Court in order to resolve any disputes over whether
access should be restricted and to provide a nonmoving party the opportunity to file a
motion under D.C.COLO.LCivR 7.2. If the Parties agree access should be restricted,
the Confidential Information shall be filed in accordance with D.C.COLO.LCivR 7.2. The
fact that this protective order has been entered into by any party shall not in any way
preclude a party from opposing a motion to restrict public access to Confidential
Information.

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16.

The termination of this action shall not relieve counsel or other persons

obligated hereunder from their responsibility to maintain the confidentiality of
Confidential and/or Confidential – For Attorney’s Eyes Only Information pursuant to this
Protective Order.
17.

By agreeing to the entry of this Protective Order, the Parties adopt no

position as to the authenticity or admissibility of documents produced subject to it.
Neither the taking of any action in accordance with the provisions of this Protective
Order, nor the failure to object thereto, shall be construed as a waiver of any claim or
defense in this action.
18.

Upon termination of this litigation, including any appeals, each Party’s

counsel shall immediately return to the producing party or destroy all Confidential and/or
Confidential – For Attorney’s Eyes Only Information provided subject to this Protective
Order.
19.

Nothing in this Protective Order shall preclude any Party from filing a

motion seeking further or different protection from the Court pursuant to Fed.R.Civ.P.
26(c), or from filing a motion with respect to the manner in which Confidential and/or
Confidential – For Attorney’s Eyes Only Information shall be treated at trial.
20.

The parties agree that in the event information or documentation is

inadvertently disclosed to an opposing party, any information or documentation so
disclosed shall be immediately returned to the producing party without any copies being
made or notes being taken regarding said information/documentation by those who
have received the inadvertent disclosure. Further, the parties agree that no recipient of
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inadvertently

disclosed

information

or

documentation

shall

utilize

such

information/documentation or any fruits derived therefrom for the purposes of this
litigation and that the inadvertent disclosure of information or documentation shall not
constitute a waiver of any privilege that may otherwise apply.
21.

Notwithstanding any provision to the contrary, all such material obtained,

including copies or summaries shall be maintained in a secure manner and eventually
destroyed as follows:
a. Records retained by counsel shall be destroyed in accordance with
counsel’s regular business practices for destruction of client files
unless a hold order from another court reasonably requires a longer
retention period.
b. Records retained by Defendant’s liability carriers (if any) shall be
destroyed at the earliest date that is in accordance with insurance
regulations, hold orders issued by other courts, statutory requirements
and the insurance carriers’ regular business practices.
c. Records retained by Defendant’s liability carriers and by counsel shall
be retained as required by court order, insurance regulation or
statutory obligation.

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ORDERED AND DATED this 15th day of July, 2015, in Denver, Colorado.

BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

Respectfully submitted,

Respectfully submitted,

s/ Brice A. Tondre
_________________________________
Brice A. Tondre
Brice A. Tondre, P.C.
215 S. Wadsworth Blvd.
Lakewood, CO 80226
303-296-3300
[e-mail]
Counsel for Plaintiff

s/ Katherine M.L. Pratt
________________________________
Josh A. Marks
Katherine M.L. Pratt
Berg Hill Greenleaf & Ruscitti, LLP
1712 Pearl Street
Boulder, CO 80302
303-402-1600
[e-mail];
[e-mail]
Counsel for Defendant Deputy Duke Cole

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AFFIDAVIT

STATE OF COLORADO
COUNTY OF

)
) ss
)

_____________________________, swears or affirms and states under penalty
of perjury:
1. I have read the Protective Order in ___________________________, a copy
of which is attached to this Affidavit.
2. I have been informed by ___________________________, Esq., counsel for
_______________________________, that the materials described in the list attached
to this Affidavit are Confidential Information as defined in the Protective Order.
3. I promise that I have not and will not divulge or undertake to divulge to any
person or recording device any Confidential Information shown or told to me except as
authorized in the Protective Order. I will not use the Confidential Information for any
purpose other than this litigation.
4. For the purpose of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
5. I will abide by the terms of the Protective Order.

_____________________________________
(Signature)
_____________________________________
(Print or Type Name)

Address:
_____________________________________
_____________________________________
Telephone No.: (_____) __________________

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