Rickaby v. Hartford Life and Accident Insurance Company

Filing 37

STIPULATED PROTECTIVE ORDER entered by Magistrate Judge Nina Y. Wang on 11/24/15. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00813-WYD-NYW
CHRISTOPHER M. RICKABY,
Plaintiff,
v.
HARTFORD LIFE AND ACCIDENT INSURANCE COMPANY, a Connecticut Corporation
Defendant.

[PROPOSED] STIPULATED PROTECTIVE ORDER

During the course of discovery, the parties may exchange information, to include
documents containing information, which is proprietary as sensitive business, commercial or other
technical information, the uncontrolled release of which would cause the producing party
competitive harm. In order to facilitate this discovery while protecting the producing party's
proprietary interests, it is hereby ORDERED:
I.

A.

The parties recognize that discovery in this matter may call for the production of

materials containing confidential and proprietary business, technical and other commercially
sensitive information, and/or personal information about third-parties, and that the producing party
has a protected proprietary and property interest in those materials, or otherwise has an interest in
preventing the dissemination of information about third-parties.
B. If the producing party has a good faith factual and legal basis for asserting a

privilege or exemption from public disclosure, the producing party may designate as

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"CONFIDENTIAL" the portion of any produced material it considers subject to its claim of
privilege or exemption in accordance with Section I.F, below, relying on the terms of this
Protective Order ("Protective Order") in producing that information. Such "CONFIDENTIAL"
designation shall make the designated portions of those produced materials and all copies, prints,
summaries, translations, or other reproductions of such material subject to this Protective Order.
C.

When used in this Protective Order, the word "CONFIDENTIAL" means

designated research, development, and other technical or other commercially sensitive information
of the producing party and/or personal information about the parties or third-parties.
D.

When used in this Protective Order, the term "CONFIDENTIAL MATERIAL"

means all designated written materials, computer documents, specifications, adjustment data,
videotapes, responses to Interrogatories, Requests for Production, Requests For Admission, or
other discovery referencing confidential material, deposition transcripts, and all other designated
tangible items which disclose "CONFIDENTIAL" information, whether produced in hard-copy,
on CD-ROMs or DVDs, or any other media. Nothing in this Protective Order, however, shall be
interpreted to require the production of any trade secret information as defined in C.R.S. § 7-74102(4) or otherwise.
E.

The burden of proving the confidential nature of designated information is on the

producing party. Prior to designating any material as "CONFIDENTIAL" and subject to this
Protective Order, the producing party must make a bona fide determination that the material is, in
fact, confidential as defined above, the dissemination of which would significantly damage the
producing party's competitive position or impact the privacy rights of third-parties.
F.

In order to designate a portion of any document or other printed material as

"CONFIDENTIAL," the producing party shall mark the designated pages of the material with the

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word "CONFIDENTIAL" in a manner that does not obscure, or impair the legibility of any
information contained within the material, but makes it difficult to remove the designation. In
order to designate a computer database, disc, compact disc, drive, or other electronically recorded
material as "CONFIDENTIAL," the producing party shall mark the disc, case or envelope
containing the material with the word "CONFIDENTIAL." Documents printed from such
electronic media shall be marked the same as documents originally produced on paper.

G.

The parties do not anticipate taking depositions in this case. In the case of a

deposition or oral examination, however, counsel for the producing party may, during the
deposition, designate on the record that testimony involving "CONFIDENTIAL MATERIAL" be
held as "CONFIDENTIAL," and the entire deposition transcript

will be treated

as

"CONFIDENTIAL" until counsel for the producing party receives a transcript of the deposition
and designates specific page and line portions of the testimony. In the event the producing party's
counsel during the deposition does not designate on the record that testimony involving
"CONFIDENTIAL MATERIAL" be held as "CONFIDENTIAL," the producing party does not
waive its right to designate the deposition testimony or any parts thereof as "CONFIDENTIAL"
upon receipt of the deposition transcript. After receipt of the final deposition transcript, the
producing party shall identify by page and line the portion of the material that the producing party
intends to designate as "CONFIDENTIAL" in a written letter served to all counsel of record within
30 days after the producing party's receipt of the written deposition transcript from the court
reporter. Only the portions of the deposition transcript designated by the producing party during
this time period shall remain "CONFIDENTIAL." Any party challenging the "CONFIDENTIAL"
designations of the deposition transcripts shall inform the producing party of those specific
challenges in writing within 20 day of receiving the designations. The producing party shall have

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20 days from receipt of the written challenges to move for an appropriate order regarding the
confidentiality of all or portions of the transcript. The parties stipulate that the court reporter or
videographer for any such depositions, who will be given a copy of this Protective Order, and will
execute an acknowledgement thereof, shall not disclose to anyone (other than the COVERED
PERSONS as defined in Section I.H below) any deposition testimony or exhibits in this lawsuit.

H.

When used in this Protective Order, the term "COVERED PERSONS" includes

only the following: (1) the Court and all Court personnel; (2) the named parties in this litigation;
(3) retained counsel for all parties in this litigation, including members of counsel's legal or support
staff (e.g., in-house investigators, secretaries, legal assistants, paralegals and law clerks), to the
extent reasonably necessary for such persons to render assistance in this litigation; (4) mediators
hired by the parties; and, if applicable to this case, (5) non-attorney experts retained or consulted
by counsel for any party to assist in the preparation, prosecution, or evaluation of this litigation,
provided that no disclosure shall be knowingly made to any expert or consultant who is employed
by a competitor of a party.

II.
This Protective Order is to facilitate the exchange of records and information in discovery.
It governs disclosures to third persons or disclosure of records for discovery motions and discovery
proceedings. Nothing in this Protective Order shall be deemed to preclude any party's right to
oppose discovery on grounds not addressed under the terms of this Protective Order, or to object
on any ground to the admission of any CONFIDENTIAL MATERIAL into evidence at trial, if
applicable.

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III.
Absent a further order of the Court, those documents marked as "CONFIDENTIAL
MATERIAL," as described in Sections I.F and I.G, shall not be used for any purpose other than
the prosecution or defense of this captioned action, and shall not be shown, disseminated or
disclosed in any manner to anyone other than COVERED PERSONS as defined in Section I.H
without the prior written agreement of the producing party or by order of the Court after due notice
to the producing party.

IV.
Before

showing

or

divulging

any

"CONFIDENTIAL

MATERIAL"

or

"CONFIDENTIAL" information to any COVERED PERSON other than the Court and Court
personnel, counsel shall first obtain from each such person a signed "WRITTEN ASSURANCE"
in the form attached hereto as Exhibit "A." Counsel shall maintain a list of all such recipients of
"CONFIDENTIAL MATERIAL" to whom this paragraph applies and the original of every
"WRITTEN ASSURANCE" required pursuant to this paragraph. At the conclusion of the
litigation, the parties shall forward to counsel for the producing party each and every signed
"WRITTEN ASSURANCE" and a list of all recipients of "CONFIDENTIAL MATERIALS";
however, with regard to consultant(s) not identified as expert(s) in this matter, counsel need only
provide a copy of the "WRITTEN ASSURANCE" redacted to remove any reference to the identity
of the consultant(s).

v.
A.

If any "CONFIDENTIAL MATERIAL" is filed with this Court, including

any pleading incorporating "CONFIDENTIAL MATERIAL," the portion of such filing
containing "CONFIDENTIAL MATERIAL" shall be filed in accordance with D.C.COLO.LCivR
7.2. Nothing in this Order requires the court to restrict any document or information.

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B.

If any party or person who has obtained "CONFIDENTIAL MATERIAL" under

the terms of this Protective Order receives a subpoena or other legal process commanding the
production of any such "CONFIDENTIAL MATERIAL" (the "Subpoena"), such party or person
shall promptly notify counsel for the producing party of the service of the Subpoena. The party or
person receiving the Subpoena shall not produce any "CONFIDENTIAL MATERIAL" in
response to the Subpoena without either the prior written consent of counsel for the producing
party, or an order of a court of competent jurisdiction.
VI.
Certain parties anticipate producing large volumes of materials in discovery in this matter,
including collections of materials in the form of paper or electronic documents, increasing the
likelihood that information protected from discovery by certain privileges or immunities, or
"CONFIDENTIAL MATERIAL" not marked as such, may be produced inadvertently. Therefore,
the following provisions shall apply to the production of information in this case:
A.

Inadvertent production of documents subject to the work-product doctrine, the

attorney-client privilege, the trade secret and proprietary business information privilege, or other
legal privilege, rule or doctrine protecting information from discovery shall not constitute a waiver
of the immunity or privilege either for the inadvertently produced document or its subject matter
(so-called "subject matter waiver"), provided that the producing party shall notify the receiving
party in writing of such inadvertent production promptly upon becoming aware of it.
B.

If reasonably prompt notification is made, such inadvertently produced

documents and all copies thereof, as well as all notes or other work product reflecting the
contents of such materials, shall be returned to the producing party or destroyed, and such
returned material shall be deleted from any litigation-support file or database. No use shall be
made of such inadvertently
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produced documents during discovery or at trial nor shall they be disclosed to anyone who was
not given access to them before the request to return and destroy them.
C. If any party contends that the notification of inadvertent production was not
"reasonably prompt," it shall notify the producing party in writing, and will make no further use
of such documents pending a resolution of their status by the Court. It shall be the burden of the
producing party to move for a protective order regarding the inadvertent production, and to
demonstrate both that the production was inadvertent, that reasonable diligence was exercised to
identify the inadvertently produced information, and that notification was made with reasonable
promptness after discovering the inadvertent production.
D.

The party returning or destroying such documents may move the Court for an order

compelling production of the material, but such motion shall not assert the fact or circumstances
of the inadvertent production as a ground for entering such an order.
E.

Inadvertent failure to designate produced materials as CONFIDENTIAL pursuant

to the terms of Section I above shall not constitute a waiver of the right to designate such materials
CONFIDENTIAL provided that the producing party shall notify the receiving party of such
inadvertent failure to designate promptly upon becoming aware of it.
F.

If reasonable notification is made of such failure to designate, such inadvertently

non-designated documents and all copies thereof, shall be returned to the producing party or
destroyed and such material shall be deleted from any litigation-support file or database. No use
shall be made of such non-designated documents during discovery or at trial without the
appropriate "CONFIDENTIAL" markings, nor shall they be disclosed to anyone who was not
given access to them before the request to return or destroy.

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VII.
At the conclusion of this case, unless other arrangements are agreed upon in writing,
CONFIDENTIAL documents shall be destroyed as follows: (a) records retained by the parties'
respective counsel shall be destroyed in accordance with the parties' respective counsel's regular
business practices for destruction of client files; and (b) records provided to COVERED
PERSONS identified in Section I.H(2), (4), and (5) shall be confirmed destroyed in an affidavit
executed by the COVERED PERSONS.
VIII.
A party may object to the designation of particular "CONFIDENTIAL MATERIAL" by
giving written notice to the party designating the disputed information. The written notice shall
identify the information to which the objection is made. If the parties cannot resolve the objection
within fourteen ( 14) days after the time the notice is received, it shall be the obligation of the party
designating the "CONFIDENTIAL MATERIAL" 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 MATERIAL" 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 MATERIAL" and shall not
thereafter be treated as "CONFIDENTIAL MATERIAL" in accordance with this Protective Order.
In connection

with a motion filed under this provision,

the party designating the

"CONFIDENTIAL MATERIAL" shall bear the burden of establishing that good cause exists for
the disputed information to be treated as "CONFIDENTIAL MATERIAL".

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IX.
A.

This Protective Order shall not preclude the parties from exercising any rights

or raising any objections otherwise available to them under the rules of discovery and
evidence. Nothing contained in this Protective Order shall in any manner change, alter or
modify any of the rights of the producing party or any other party under any other orders
issued by any other courts concerning the protection of CONFIDENTIAL MATERIALS and
CONFIDENTIAL information. Nothing in this Protective Order shall limit the rights of
parties to apply for further protective orders or for modification of the terms of this
Protective Order.
B.

This Protective Order may not be waived, modified, abandoned or terminated,

in whole or in part, except by an instrument in writing signed by the parties, or by Order of the
issuing Court. If any provision of this Protective Order shall be held invalid for any reason
whatsoever, the remaining provisions shall not be affected thereby.
C. This Protective Order shall be binding upon the parties hereto, their attorneys, and
upon the parties' and their attorneys' successors, executors, personal representatives,
administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents,
independent contractors, or other persons or organizations over which they have control.
X.
At the conclusion of this lawsuit, the Court shall retain jurisdiction of this lawsuit for
the enforcement of this Protective Order.
BY THE COURT:
s/ Nina Y. Wang
United States Magistrate Judge

November 24, 2015
Date

AGREED:

sf Cristin J. Mack

s/ Patricia S. Bellac

Kevin E. O'Brien, Esq.
Cristin J. Mack, Esq.
Matthew J. Hegarty, Esq.
Hall & Evans, L.L.C.
1001 Seventeenth Street, #300
Denver, Colorado 80202-2052
obrienk@ hallevans.com
mackc@ hallevans.com
hegartym@ hallevans.com
Counsel for Defendant

Patricia S. Bellac, Esq.
Patricia S. Bellac Law Firm, LLC
4845 Pearl East Circle, Suite 101
Boulder, Colorado 80301
psb@ psblawfirm.com
Counsel for Plaintiff

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EXHIBIT "A"
LIMITED SPECIAL APPEARANCE AND AGREEMENT FOR
ACCESS TO CONFIDENTIAL MATERIAL
I hereby acknowledge and affirm that I have read the terms and conditions of the Protective
Order dated

and agreed to by the parties ("Protective Order") in the action titled

Christopher Rickaby v. Hartford Life and Accident Insurance Company, U.S. District Court
for the District of Colorado, Civil Action No. 15-CV-00813-WYD-NYW. Iunderstand the terms
of the Protective Order and under oath consent to be bound by such terms as a condition to
being provided access to the CONFIDENTIAL MATERIALS furnished by the parties in this
action. Further, by executing this Agreement,Ihereby consent to the jurisdiction of the abovecaptioned Court or any Court of competent jurisdiction for the special and limited purpose of
enforcing the terms of the Protective Order.

I recognize that all civil remedies for breach of this Agreement are specifically reserved by
the producing parties in this action and are not waived by the disclosure provided for herein.
Further, in the event of the breach of this Agreement, Irecognize that the producing parties may
pursue all civil remedies available to them as third-party beneficiaries of this Agreement.
DATED:

Name

Firm

Address

Telephone Number

11

_

SUBSCRIBED AND SWORN TO BEFORE ME THIS

day of

Notary Public, State of

My Commission Expires:

12

, 2015.

_