Dempsey v. Jason's Premier Pumping Services, LLC et al

Filing 29

STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT entered by Magistrate Judge Nina Y. Wang on 7/29/15. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00703-CMA-NYW
MICHAEL DEMPSEY, Individually and On Behalf of All Others Similarly Situated,
Plaintiff,
v.
JASON’S PREMIER PUMPING SERVICES, LLC, and
JASON HAUCK,
Defendants.

STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT
Plaintiff Michael Dempsey and Defendants Jason’s Premier Pumping Services, LLC and
Jason Hauck (Plaintiff and Defendants shall be referred to collectively as the “parties”) anticipate
that discovery and trial in this action may require production of documents and testimony that
contain confidential and proprietary business information, the unprotected disclosure of which
might have a detrimental impact on the parties’ legitimate business and personal interests.
NOW, THEREFORE, it is hereby AGREED by the parties and ORDERED by the Court
as follows:
1.

Whenever a party or nonparty (a “Producing Party”) discloses, or anticipates

disclosing, documents or information that the party, in good faith, believes contains confidential
and proprietary business or personnel information, trade secrets, any other confidential or
proprietary research, development, financial, or commercial information, other such information
in accordance with Fed. R. Civ. P. 26(c)(1)(G), or other information required by law or
agreement to be kept confidential, that party (the “Designating Party”) may designate that

material as “Confidential” so long as such designation has been reviewed in good faith by counsel
of record and deemed to be appropriately designated pursuant to counsel’s obligation under Fed. R.
Civ. P. 26(g).
Documents, testimony, deposition transcripts and/or videotapes, written responses to discovery,
declarations, and any other information or material produced, made available for inspection, or
otherwise submitted by any of the parties in this litigation may be designated Confidential
and subject to the provisions of this Stipulated Protective Order and Confidentiality Agreement
(“Protective Order”). This includes writings and recordings ascribed as such under Federal Rule
of Evidence 1001(1), including, without limitation, original writings, drawings, graphs, charts,
photographs, recordings (by video or audio device), electronically-stored data, and any other
compilation from which information can be obtained or translated, if necessary, through
detection devices into a reasonably usable from, and any copies thereof. Such designation must be
reviewed in good faith by counsel of record and deemed to be appropriately designated pursuant to
counsel’s obligation under Fed. R. Civ. P. 26(g).
2.

A Designating Party shall designate all documents and information as

Confidential by clearly stamping “Confidential” in a place or manner that is readily apparent and
avoids any interference with the legibility of the material or by designating them as Confidential
in correspondence from counsel to the party producing documents. Information or data that has
not been reduced to written form may be designated as Confidential by informing counsel for the
parties in writing.
3.

Designation of Confidential documents and information shall be made at or prior

to the time of production of the documents or information. In the case of deposition testimony, a
2

party claiming that information contained therein is Confidential shall advise all other counsel in
writing of the specific pages of the deposition to be treated as Confidential within twenty (20)
days following receipt of the transcript of the deposition. A party may also designate certain
portions of deposition testimony as Confidential during the deposition, as long as the designation
is on the record. All depositions shall be treated as Confidential for twenty (20) days after
receipt of a full and complete transcript by that party’s counsel, unless the parties otherwise
agree in writing.
4.

Confidential documents and information shall not lose their Confidential

character simply because the documents and information are designated as an exhibit to a
deposition, regardless of whether the deposition or deposition transcript itself is later designated,
in whole or in part, as Confidential.
5.

Documents and information designated Confidential shall not be disclosed to any

person or entity, or otherwise made public, except in compliance with the terms of this Protective
Order, unless otherwise ordered by the Court or agreed to in writing by the parties. Documents
and information designated as Confidential may be used solely for purposes of this litigation.
6.

All material designated as Confidential shall not be disclosed, directly or

indirectly, to any person other than the following individuals:
(a)

the Court and necessary Court personnel;

(b)

the parties to this action, including their officers, directors, and employees;

(c)

counsel for the parties to this action, including counsel of record and their

partners, associates, and employees, and in-house attorneys for any party to this action and
employees of the in-house legal department of any party in this action;
(d)

expert witnesses and consultants consulted with or retained in connection

with this litigation;
3

(e)

deponents, including any third party or nonparty deponents;

(f)

court and stenographic reporters performing necessary duties in this

(g)

any person who authored or previously received the document or

action;

information before its designation as Confidential (excluding persons who may have received
such information inadvertently); and
(h)

any other person who is designated to receive Confidential information by:
(1) stipulation of the Designating Party; or
(2) order of the Court.

7.

Prior to the disclosure of any Confidential material to any person or entity in

accordance with paragraph 7 above, counsel shall advise said person that the Confidential
material is being disclosed pursuant to this Protective Order and may not be disclosed other than
pursuant to the terms of the Protective Order.
8.

Producing or receiving materials or otherwise complying with the terms of this

Protective Order shall not:
(a)

operate as an admission by any party that any particular discovery material

contains or reflects any Confidential information or a trade secret under applicable law;
(b)

prejudice in any way the rights of any party to object to the production of

material it considers not subject to discovery or otherwise protected from or limited in discovery
on the basis of privilege or otherwise;
(c)

prejudice in any way the rights of a party to seek a determination from the

Court regarding whether particular discovery materials should be produced; or
(d)

prejudice in any way the rights of a party to apply to the Court for any

additional protection with respect to the confidentiality of documents or information as that party
4

may consider appropriate.
9.

A party may object to the designation of particular Confidential information by

giving written notice to the Designating Party. 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. 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 Designating Party shall bear the burden
of establishing that good cause exists for the disputed information to be treated as Confidential.
10.

Material designated as Confidential may be referred to in discovery, discovery

responses, motions, briefs, or other papers filed with the Court and may be used in depositions,
oral arguments, or at trial in this action either as exhibits or as the basis for questions. The
material designated as Confidential in any brief or other documents referring to or incorporating
such shall be filed with an accompanying motion to restrict filed in under filing restrictions in
accordance with D.C.COLO.LCivR 7.2. Documents filed under seal shall remain sealed until
further order of the Court.
11.

Should any documents, information, or testimony designated as Confidential be

disclosed, inadvertently or otherwise, to any person or party not authorized under this Protective
Order, then the party responsible for the disclosure shall use its best efforts to (1) promptly

5

retrieve the disclosed documents, information, or testimony from such unauthorized person or
party; (2) promptly inform such person or party of all the provisions of this Protective Order;
(1) identify such person or party immediately to all other parties; and (4) identify the
Confidential information immediately to all other parties. Nothing in this paragraph shall limit
the right of the party that designated the information as Confidential to seek any appropriate
sanction or remedy against the party that inadvertently or otherwise disclosed the Confidential
documents, information, or testimony to a person or party not authorized by this Protective
Order.
12.

If material designated as Confidential in this action is called for in a subpoena or

other process by someone who is not a party to this action, the party to whom the subpoena or
other process is directed shall promptly give written notice thereof to the Designating Party and
shall not produce the information until the later of (a) ten (10) days after providing notice or
(b) the return date of the subpoena or other process.
13.

This Protective Order shall survive the final termination of this action and shall

remain in effect after the conclusion of this litigation. Within sixty (60) days of the final
disposition of this action and any related action (including any appeals), and subject to further
order of the Court or written stipulation of the parties, each party shall either (a) return all
documents and information to the Designating Party or (b) destroy all materials that have been
designated as Confidential . This paragraph shall not be construed to require the return or
destruction of any Court papers or exhibits, deposition transcripts or exhibits, regularly
maintained litigation files, or other attorney work product created for any party. Any material
designated as Confidential, or portions or excerpts thereof, which are not destroyed or returned

6

pursuant to this paragraph, shall remain subject to the terms of this Protective Order.
14.

The terms of this Protective Order do not preclude, limit, restrict, or otherwise

apply to the use of documents at trial.
15.

In the event that additional persons become parties to this action, they shall not

have access to Confidential material produced by or obtained from any party until the newly
joined party or their counsel confirms in writing to all other parties that they have read this
Protective Order and agree to be bound by its terms.
16.

The following stipulations and procedures will govern the inadvertent disclosure

of materials protected by the attorney-client privilege, work product doctrine, or other privilege
or immunity:
(a)

In the event any material is produced that the Producing Party later

reasonably and in good faith claims is protected by the attorney-client privilege, work product
doctrine, or other privilege or immunity, the Producing Party shall inform the receiving party in
writing of the asserted privilege and the factual basis therefor. The receiving party shall, within
five (5) business days of receipt of such notice, return the original to the Producing Party, and
after making a good faith search, destroy all known copies thereof and delete any known copy of
the documents, or any portion thereof, from any word processing or database tape or disk it
maintains. The receiving party also agrees to delete or destroy any additional copies of such
documents of which it might become aware in the future. The receiving party will in no manner
examine the documents over which privilege is asserted after receiving notice of the asserted
privilege.

7

(b)

If during the receiving party’s review of documents from the Producing

Party, the receiving party discovers a document that appears on its face to be protected by the
attorney-client privilege, work product doctrine or other privilege or immunity, the receiving
party shall, within two (2) business days, call the attention of the Producing Party to the
document(s). If the Producing Party claims a privilege over the documents, it must give the
notice required by subparagraph (a) within three (3) business days thereafter, from receipt of
which subparagraph (a) will govern the receiving party’s obligations.
(c)

Inadvertent production of privileged, work product protected, or immune

documents in the course of discovery in this action shall not constitute a waiver of any privilege,
work product protection, or immunity, either as to the produced material or as to any other
material or communications.
(d)

Return of documents or information for which the Producing Party has

asserted a claim of privilege, work product protection, or immunity under this paragraph shall be
without prejudice to the receiving party’s right to seek an order from the Court directing
production of the information on the ground that the claimed privilege, work product protection,
or immunity is invalid; provided, however, that mere production of the information in the course
of this action shall not be a ground for asserting waiver of the privilege, protection, or immunity.
(e)
client

privilege,

If a document or information is identified as protected by the attorneywork

product

doctrine,

or

other

privilege

in

accordance

with

subparagraphs (a) and/or (b) above, the receiving party shall not make any use of the document
or its contents, including, without limitation, as part of any publicly available court filing, and

8

shall hold it in the strictest of confidence, unless and until the Court directs the production of the
document or information as provided for in subparagraph (d) above.
17.

This Protective Order shall survive the final determination of this action and shall

remain in full force and effect after the conclusion of all proceedings, for a period of three (3)
years, to provide the Court with ancillary jurisdiction to enforce its terms.
The Court retains jurisdiction to make such amendments, modifications, and additions to
this Protective Order as it may from time to time deem appropriate or may consider upon motion
of any party.
DATED: July 29, 2015

BY THE COURT:
s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge

IT IS SO STIPULATED:
Dated: July 20, 2015.

s/ Gabriel A. Assaad
Gabriel Assaad
Kennedy Hodges, L.L.P.
711 W. Alabama Street
Houston, TX 77006
[phone]
Attorneys for the Plaintiff

s/ Brett C. Painter
Brett C. Painter
Nathalie A. Bleuzé
Davis Graham & Stubbs LLP
1550 Seventeenth St., Suite 500
Denver, CO 80202
[phone]
Attorneys for Defendants

IT IS SO ORDERED:

9