Usera v. Rocky Vista University, LLC et al

Filing 27

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 7/29/15. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00877-KMT
Joseph Andrew Usera,
Plaintiff,

v.

Rocky Vista University LLC,
and David Robert Black,

Defendants.

STIPULATED PROTECTIVE ORDER

Under Rules 26(c) and 26(c)(7), Fed. R. Civ. P., upon a showing of good cause
in support of the entry of a protective order to protect the discovery and dissemination of
confidential and proprietary information or information which will improperly annoy,
embarrass, or oppress any party, witness, or person providing discovery in this case, IT
IS ORDERED:
1.
information,

This Protective Order shall apply to all documents, materials, and
including

without

limitation,

documents

produced,

answers

to

interrogatories, responses to requests for admission, deposition testimony, and other
information disclosed pursuant to the disclosure or discovery duties created by the
Federal Rules of Civil Procedure.

2.

As used in this Protective Order, the term “document” is defined as

provided in Fed.R.Civ.P. 34(a). A draft or non-identical copy is a separate document
within the meaning of this term.
3.

Information designated “CONFIDENTIAL” shall be information that is

confidential, including but not limited to personnel information regarding employees of a
party to this litigation, the Plaintiff’s and/or other information which is entitled to
protection under

Fed.R.Civ.P. 26(c). As a condition of designating information as

CONFIDENTIAL, the information must be reviewed by a lawyer who must make a good
faith determination that the information is entitled to protection, and designating the
information as CONFIDENTIAL

represents the

attorney’s certification of this

determination. The parties acknowledge that any designation of information as
CONFIDENTIAL must meet the requirements of Fed.R.Civ.P. 26(g). By stipulating to
the form of this Protective Order, neither party waives her/its right to object to the
production or disclosure of particular CONFIDENTIAL information or concedes that the
other party has shown a compelling need for discovery of particular CONFIDENTIAL
information.
4.

CONFIDENTIAL information shall not be disclosed or used for any

purpose except the preparation and trial of this case. The duty to keep CONFIDENTIAL
information confidential survives the completion of this case.
5.

CONFIDENTIAL documents, materials, and/or information (collectively

“CONFIDENTIAL information”) shall not, without the consent of the party producing it or

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further Order of the Court, be disclosed except that such information may be disclosed

to:

(a)
(b)

actively working on this civil action whose assistance is required by
said attorneys in the preparation for trial, at trial, or at other
proceedings in this civil action;
(c)

the parties;

(d)

the claims counsel or representative of any insurer of any party to

this action;
(e)

civil action, to the extent such disclosure is necessary for
preparation, trial or other proceedings in this civil action;
the Court and its employees (“Court Personnel”);

(g)

stenographic reporters who are engaged in proceedings

necessarily incident to the conduct of this civil action;
(h)

expert witnesses and consultants retained in connection with this

(f)

persons regularly employed or associated with the attorneys

attorneys actively working on this civil action;

deponents, where there is a good faith belief that the deponent has
prior knowledge of the CONFIDENTIAL information or by
agreement of the parties;

(i)

trial witnesses;

(j)

jurors and copying services; and

(k)

other persons by written agreement of the parties.

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6.

Prior to disclosing any CONFIDENTIAL information to persons listed in

subparagraphs 5(d), 5(e), 5(g), 5(h) or 5(k), counsel shall provide such person with a
copy of this Protective Order and obtain from such person a written acknowledgment
stating that he or she has read this Protective Order and agrees to be bound by its
provisions. All such acknowledgments with copies of the CONFIDENTIAL documents
disclosed shall be retained by counsel and shall be subject to in camera review by the
Court if good cause for review is demonstrated by opposing counsel. Other exceptions
to the requirement of written acknowledgment may be made by written agreement of the
parties.
7.
every

page

Documents are designated as CONFIDENTIAL by stamping each and
to

be

designated

CONFIDENTIAL

with

the

applicable

legend

“CONFIDENTIAL.”
8.

No copies of CONFIDENTIAL information may be made except by or on

behalf of counsel in this litigation, and such copies may be made and used solely for
purposes of litigation and subject to all provisions hereof which apply to the originals.
9.

During the pendency of this litigation, counsel shall retain custody of

CONFIDENTIAL information and copies made therefrom pursuant to paragraph 8
above.
10.

Any party that wishes to file CONFIDENTIAL information with the Court

must move the Court to file such information under restriction pursuant to
D.C.COLO.LCivR 7.2 unless the designating party agrees in writing that the information
may be filed without restriction.

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11.

Whenever a deposition involves the disclosure of CONFIDENTIAL

information, the deposition or portions thereof shall be designated as CONFIDENTIAL
and shall be subject to the provisions of this Protective Order. Such designation shall
be made on the record during the deposition whenever possible, but a party may
designate portions of depositions as CONFIDENTIAL after transcription, provided
written notice of the designation is promptly given to all counsel of record within fourteen
(14) days after notice by the court reporter of the completion of the transcript.

12.

A party may object to the designation of particular CONFIDENTIAL

information 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 ten (10) business days after the time the
notice is received, it shall be the obligation of the party designating the information as
CONFIDENTIAL to initiate the Magistrate Judge’s procedures for discovery disputes,
including, if permitted, the filing of an appropriate motion requesting that the Court
determine whether the disputed information should be subject to the terms of this
Protective Order. If such discovery dispute procedures are timely initiated, the disputed
information shall be treated as CONFIDENTIAL under the terms of this Protective Order
until the Court rules on a permitted motion or the dispute is otherwise resolved by
agreement of the parties. 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

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designating the information as CONFIDENTIAL shall bear the burden of establishing
that good cause exists for the disputed information to be treated as CONFIDENTIAL.
13.

Following the conclusion of the case, counsel for the parties may return or

destroy the CONFIDENTIAL information or may retain the CONFIDENTIAL information
subject to the terms of this Protective Order.
14.

If any person receiving and in possession, custody, or control of

CONFIDENTIAL information is served with a subpoena, demand, or any other legal
process seeking CONFIDENTIAL information by someone not a party to this action, the
receiving person shall give prompt written notice, by hand or email transmission, within
forty-eight (48) hours of its receipt of such subpoena, demand or legal process, to the
designating party. The designating party shall be solely responsible for seeking any
relief or protection from any subpoena, demand, or legal process seeking
CONFIDENTIAL information and, as between the parties hereto, shall also be solely
responsible for its costs and attorney’s fees in any proceedings relating to such
subpoena, demand, or legal process.
15.

The Plaintiff, Mr. Usera, and the Defendant, Mr. Black, were attorneys for

the Defendant, RVU. Accordingly, there may be attorney-client, work-product, and other
privileged material properly to be produced between the parties because they are all
within such privilege. These documents are not however, by law, without more, properly
to be shared with others. Accordingly, documents produced between the parties which
are marked “PRIVILEGED AND CONFIDENTIAL” may not be further disseminated
beyond counsel for the parties absent agreement between the parties or, failing that, by

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order of the Court. Such documents as are agreed or ordered to be further
disseminated shall, unless otherwise specified, be subject to all other terms of
this Order as regards documents marked “CONFIDENTIAL.”
16.

The parties agree that the inadvertent disclosure of any document

which is subject to a legitimate claim that the document should have been withheld
from disclosure as subject to the attorney-client privilege or attorney work product
doctrine shall NOT waive any privilege or other applicable protective doctrine for
that document

or

for

the

subject

matter

of

the

inadvertently

disclosed

information, if the producing party, upon becoming aware of the disclosure,
promptly requests its return. The inadvertent disclosure shall also not estop that
party or the privilege holder from designating the information or document as
attorney-client privileged or subject to the work product doctrine at a later date.
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.
18.

Nothing in this Protective Order shall preclude any party from

filing a motion seeking further or different protection from the Court under Rule
26(c) of the Federal Rules of Civil Procedure, or from filing a motion with respect
to the manner in which CONFIDENTIAL information shall be treated at trial.

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19.

This Protective Order may be modified by the Court at any time for

good cause shown following notice to all parties and an opportunity for them to be
heard.
DATED this 29th day of July, 2015.

BY THE COURT:

_______________________________
Kathleen M. Tafoya
United States Magistrate Judge

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STIPULATED BY:

s/ John A. Culver

s/ David H. Stacy

/s/ John A. Culver
John A. Culver
Seth J. Benezra
BENEZRA & CULVER, P.C.
Colorado Plaza Tower #1
633 17th Street, Suite 1310
Denver, CO 80202
[phone]
[e-mail]
[e-mail]
Attorneys for Plaintiff

/s/ David H. Stacy
David H. Stacy
STACY & ASSOCIATES, LLC
7887 E. Belleview Ave., Suite 1100
Denver, CO 80111
[phone]
Email: [e-mail]
Attorneys for Defendants

s/ Hendrik G. Milne

s/ Hendrik G. Milne
Hendrik G. Milne
Carlos F. Osorio
Renee R. Tischler
ABALLÍ MILNE KALIL, PA
2250 SunTrust International Center
One SE Third Ave.
Miami, FL 33131
305-373-6600
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants

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Exhibit A to Protective Order

STATE OF
COUNTY OF

)
) ss.
)

I,

, being first duly sworn, state that:

1.
I have received a copy of the Protective Order in the case of Joseph
Andrew Usera v. Rocky Vista University, LLC, et al., United States District Court for the
District of Colorado case number 15-cv-00877-KMT.

2.
I understand that I can be held in contempt of court for violating the terms
of the Protective Order and I submit to the jurisdiction of the United States District Court
for the District of Colorado for purposes of enforcement of the Stipulated Protective
Order.

3.
I have carefully read and understand the provisions of the Protective
Order, and I will comply with all of its provisions.

Subscribed and sworn to before me this

day of

Notary Public

[seal]

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, 20

.