Tuffy Security Products, Inc. v. Bestop, Inc.

Filing 32

STIPULATED PROTECTIVE ORDER Governing Confidentiality, by Magistrate Judge Nina Y. Wang on 02/08/16.(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-01085-PAB-NYW
TUFFY SECURITY PRODUCTS, INC., a Colorado Corporation,
Plaintiff,
v.
BESTOP, INC., a Delaware Corporation,
Defendant.

[Proposed] STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIALITY

Pursuant to Federal Rule of Civil Procedure 26(c), Plaintiff Tuffy Security Products, Inc.
(“Tuffy”) and Defendant Bestop, Inc. (“Bestop”) (together, the “parties,” and individually, a
“party”), stipulate to the following Protective Order Governing Confidentiality (the “Protective
Order”), and request that the Court enter it.
1.

Introduction and Scope

This Protective Order shall govern documents and information exchanged during this
action, including but not limited to documents produced by the parties or non-parties, deposition
testimony, testimony taken at a hearing or other proceeding, interrogatory answers, responses to
requests for admission, and correspondence between counsel (collectively,

“Discovery

Material”).
2.

Designation of Certain Discovery Material as “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY”

Discovery Material may be designated “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” under the terms of this Protective Order.

3.

Good Faith Designation of Discovery Materials

By designating something as Designated Material, counsel for the Designating Party
certifies under Rule 26(g) of the Federal Rules of Civil Procedure that to the best of counsel's
knowledge, information, and belief formed after a reasonable inquiry that the designation is (a)
consistent with the Federal Rules of Civil Procedure and warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing
new law; (b) not interposed for any improper purpose, such as to harass, cause unnecessary delay,
or needlessly increase the cost of litigation; and (c) not unreasonable.
4.

“CONFIDENTIAL” Discovery Materials

Subject to Paragraph 3 above, if the Designating Party believes in good faith that
Discovery Material contains non-public information or materials that must be protected against
disclosure to third parties, such Discovery Material shall be so identified at the time of service of
such Discovery Material by including on each page the legend “CONFIDENTIAL”. If the
Discovery Material is not in a format that can be easily stamped with such a legend, then the
Discovery Material shall be designated “CONFIDENTIAL” using an alternative method.
Acceptable alternative methods include identifying “CONFIDENTIAL” Discovery Material in
correspondence transmitted with the Discovery Material or for an electronic file using the word
“CONFIDENTIAL” in the file name.
5.“ATTORNEYS’ EYES ONLY” Discovery Materials
Subject to Paragraph 3 above, if the Designating Party believes in good faith that
Discovery Material contains materials that comprise highly confidential information that likely
would be of value to a competitor or potential competitor of the Designating Party possessing the
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information and that such therefore must be protected from disclosure, such Discovery Material
shall be so identified at the time of service of such Discovery Material by including on each page
the legend “ATTORNEYS’ EYES ONLY”. ATTORNEYS' EYES ONLY information may
include, without limitation, trade secrets, highly sensitive technical information, highly sensitive
financial information, marketing plans and forecasts, pricing and cost information, and customer
names and lists. Absent a specific order by this Court, once designated as ATTORNEYS' EYES
ONLY, such designated information shall be used by the Parties solely in this litigation, and not
for any business, competitive, or governmental purpose or function, and such information shall
not be disclosed to anyone except as provided herein.
6.

Limitations on Access to “CONFIDENTIAL” Discovery Material

Subject to the provisions of this paragraph, Paragraph 3, “CONFIDENTIAL” Discovery
Material shall not, without prior written consent of the producing party, (a) be disclosed to
anyone other than the Court, its personnel, and the Authorized Personnel specified herein; or (b)
be used by anyone other than the producing party for any purpose whatsoever other than the
prosecution or defense of this litigation. Nothing herein shall affect any confidentiality
obligations to which the parties may be subject pursuant to agreements independent of this
litigation, nor shall anything herein constitute an agreement that such obligations will relieve any
party of the obligation to produce Discovery Material.
Access to and disclosure of “CONFIDENTIAL” Discovery Material marked and
identified in accordance with this Protective Order shall be limited to the Court, its personnel,
and Authorized Personnel. Authorized Personnel are:

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(a)

Counsel of record for the parties, including paralegal, secretarial, and clerical

personnel reasonably necessary to assist such counsel, and counsel not of record that become
signatories to this Protective Order;
(b)

Principals and agents of the parties, or of any of their associated entities,

including Tuffy Security Products, Inc. and Bestop, Inc.;
(c)

Technical experts and consultants and their staff who are retained by a party or

attorney to assist in this action, but only to the extent reasonably necessary to perform such work.
A party desiring to disclose “CONFIDENTIAL” Discovery Material to experts or consultants
shall first obtain from each expert or consultant an Acknowledgement in the form provided in
Exhibit A, and the attorney for the party shall keep the executed Acknowledgement for a oneyear period following the final termination of this litigation. The disclosing attorney must have a
good faith belief that disclosure of such documents to the expert or consultant is necessary for
the expert or consultant’s review of the issues in this litigation;
(d)

Employees of outside vendors providing copy services and exhibit preparation

services in connection with this litigation. A party desiring to disclose “CONFIDENTIAL”
Discovery Material to employees of outside vendors shall first obtain from each outside vendor
an Acknowledgement in the form provided in Exhibit A, and the attorney for the party shall keep
the executed Acknowledgement for a one-year period following the final termination of this
litigation;
(e)

Stenographic reporters and videographers engaged for depositions or proceedings

necessary to this litigation. A party desiring to disclose “CONFIDENTIAL” Discovery Material
to stenographic reporters or videographers shall first obtain from each stenographic reporter or
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videographer an Acknowledgement in the form provided in Exhibit A, and the attorney for the
party shall keep the executed Acknowledgement for a one-year period following the final
termination of this litigation;
(f)

Any person (i) who is identified as an author or recipient, including receipt by

copy, of any document or information therein and is not otherwise shown prior to

such

disclosure not to have received the document or information therein or (ii) who has been
identified in writing by the designating party as having been provided with the document or
information therein. Such person shall be considered “Authorized Personnel” solely with respect
to the specific document or information therein;
(g)

Employees of the parties. A party desiring to disclose “CONFIDENTIAL”

Discovery Material to its employees shall ensure that such employees abide by the terms of this
Stipulated Protective Order Governing Confidentiality;
(h)

Fact witnesses designated by the parties who may be expected to comment or

testify regarding the “CONFIDENTIAL” Discovery Material in deposition or at trial, provided
that the party seeking to disclose such “CONFIDENTIAL” Discovery Material shall first obtain
from each such witness an Acknowledgement in the form provided in Exhibit A; and
(i)

Such other persons as hereafter may be designated by written stipulation of the

parties filed with the Court or by further Court order.
7.

Limitations on Access to “ATTORNEYS’ EYES ONLY” Discovery Material

Subject to the provisions of this paragraph, Paragraph 3, “ATTORNEYS’ EYES ONLY”
Discovery Material shall not, without prior written consent of the producing party, (a) be
disclosed to anyone other than the Court, its personnel, and the Authorized Personnel specified
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herein; or (b) be used by anyone other than the producing party for any purpose whatsoever other
than the prosecution or defense of this litigation. Nothing herein shall affect any confidentiality
obligations to which the parties may be subject pursuant to agreements independent of this
litigation, nor shall anything herein constitute an agreement that such obligations will relieve any
party of the obligation to produce Discovery Material.
Access to and disclosure of “ATTORNEYS’ EYES ONLY” Discovery Material marked
and identified in accordance with this Protective Order shall be limited to the Court, its
personnel, and Authorized Personnel. Authorized Personnel are:
(a)

Counsel of record for the parties, including paralegal, secretarial, and clerical

personnel reasonably necessary to assist such counsel, and counsel not of record that become
signatories to this Protective Order;
(b)

Technical experts and consultants and their staff who are retained by a party or

attorney to assist in this action, but only to the extent reasonably necessary to perform such work.
A party desiring to disclose “ATTORNEYS’ EYES ONLY” Discovery Material to experts or
consultants shall first obtain from each expert or consultant an Acknowledgement in the form
provided in Exhibit A, and the attorney for the party shall keep the executed Acknowledgement
for a one-year period following the final termination of this litigation. The disclosing attorney
must have a good faith belief that disclosure of such documents to the expert or consultant is
necessary for the expert or consultant’s review of the issues in this litigation;
(c)

Employees of outside vendors providing copy services and exhibit preparation

services in connection with this litigation. A party desiring to disclose “ATTORNEYS’ EYES
ONLY” Discovery Material to employees of outside vendors shall first obtain from each outside
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vendor an Acknowledgement in the form provided in Exhibit A, and the attorney for the party
shall keep the executed Acknowledgement for a one-year period following the final termination
of this litigation;
(d)

Stenographic reporters and videographers engaged for depositions or proceedings

necessary to this litigation. A party desiring to disclose “ATTORNEYS’ EYES ONLY”
Discovery Material to stenographic reporters or videographers shall first obtain from each
stenographic reporter or videographer an Acknowledgement in the form provided in Exhibit A,
and the attorney for the party shall keep the executed Acknowledgement for a one-year period
following the final termination of this litigation;
(e)

Any person (i) who is identified as an author or recipient, including receipt by

copy, of any document or information therein and is not otherwise shown prior to

such

disclosure not to have received the document or information therein or (ii) who has been
identified in writing by the designating party as having been provided with the document or
information therein. Such person shall be considered “Authorized Personnel” solely with respect
to the specific document or information therein;
(f)

Fact witnesses designated by the parties who may be expected to comment or

testify regarding the “ATTORNEYS’ EYES ONLY” Discovery Material in deposition or at trial,
provided that the party seeking to disclose such “ATTORNEYS’ EYES ONLY” Discovery
Material shall first obtain from each such witness an Acknowledgement in the form provided in
Exhibit A; and
(g)

Such other persons as hereafter may be designated by written stipulation of the

parties filed with the Court or by further Court order.
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8.

Designation of Deposition or Other Testimony

Deposition and other testimony may also be designated as “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY”. During the course of a deposition or other testimony which
involves “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” Discovery Material, counsel
for a party or witness producing such information may designate on the record the portion(s) of
the deposition or other testimony which counsel believes may contain “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” information. If such designation is made, those portions of the
deposition or other testimony involving such “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” Discovery Material will be taken with no one present, except those persons who are
authorized to have access to such “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
Discovery Material in accordance with this Protective Order. For thirty (30) days after the
official transcript is delivered to all counsel, a party may designate in writing other or new
portions containing “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” information. A
party objecting to any such designation of deposition or other testimony as “CONFIDENTIAL”
or “ATTORNEYS’ EYES ONLY” shall follow the procedure as set forth in Paragraph 13
below.
9.

Production By Non-Parties

The existence of this Protective Order shall be disclosed to any non-party producing
documents or information in this action who may reasonably be expected to desire confidential
treatment of such documents or information. Such non-parties may avail themselves of this
Protective Order by designating information “CONFIDENTIAL” or “ATTORNEYS’ EYES
ONLY” pursuant to the terms herein.
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10.

Party’s Own Information

The restrictions on the use of Discovery Material established by this Protective Order are
applicable only to Discovery Material received by a party from another party or from a non-party
as a direct result of this litigation. A party is free to do whatever it desires with its own
Discovery Material.
11.

Related Material

The restrictions on the use of Discovery Material established by this Protective Order
shall extend to: (i) all copies, extracts, and complete or partial summaries prepared from such
Discovery Material; and (ii) portions of briefs, memoranda, or any other writing filed with the
Court and exhibits thereto that contain or reflect the content of any such Discovery Material,
copies, extracts, or summaries, provided that such writings are marked “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” on at least the first page of the writing.
12.

Procedures for Filing Designated Material

Any request to restrict access to Discovery Material must comply with the requirements
of D.C.COLO.LCivR 7.2.

This Order does not, by itself authorize the restriction of any

information or documents.
13.

Challenge to Designation

A party may object to the designation of particular CONFIDENTIAL or ATTORNEYS’
EYES ONLY 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.
The parties shall confer in good faith and if the parties cannot resolve the objection within ten
(10) business days after the time the notice is received, the parties shall call the Court for a
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discovery hearing to resolve the dispute. It shall be the obligation of the party designating the
information as CONFIDENTIAL or ATTORNEYS’ EYES ONLY 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 or ATTORNEYS’ EYES ONLY 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 or ATTORNEYS’ EYES ONLY and shall not thereafter be treated as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY in accordance with this Protective Order. In
connection with a motion filed under this provision, the party designating the information as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY shall bear the burden of establishing that
good cause exists for the disputed information to be treated as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY.
14.

Other Protections

(a)

This Protective Order shall not preclude any party from seeking additional

protection with respect to the confidentiality of Discovery Material as that party deems
appropriate. Nor shall any party be precluded from seeking an order from the Court permitting
the disclosure or use of certain Discovery Materials otherwise prohibited by this Protective
Order;
(b)

Nothing herein shall prevent the parties from mutually agreeing in writing to the

use or disclosure of “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” Discovery Material
other than as permitted by this Protective Order;

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(c)

If it becomes necessary for counsel for a party receiving “CONFIDENTIAL” or

“ATTORNEYS’ EYES ONLY” Discovery Material to seek the assistance of any person other
than those specified in Paragraph 3 above, the following procedures shall be employed:
i. Counsel for the receiving party shall notify, in writing, counsel for the
producing party of the desire to disclose such “CONFIDENTIAL” or “ATTORNEYS’
EYES ONLY” Discovery Material and shall identify the person(s) to whom counsel
intends to make such disclosure;
ii. If no objection to such disclosure is made by counsel for the producing
party within two (2) business days of such notification, counsel for the receiving party shall
be free to make such disclosure to the designated person(s); provided, however, that
counsel for the receiving party shall serve upon opposing counsel, prior to disclosure, an
Acknowledgement in the form set forth in Exhibit A whereby such person(s) agree to
comply with and be bound by this Protective Order;
iii. If the producing party objects to such disclosure, no disclosure shall be
made at that time. However, any party may bring before the Court the question of whether
the particular “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” Discovery Material
can be disclosed to the designated person(s) and the party making the designation shall
have the burden of establishing before the Court the necessity for such designation.
15.
(a)

Inadvertent Disclosure
If,

through

inadvertence,

a

party

produces

“CONFIDENTIAL”

or

“ATTORNEYS’ EYES ONLY” Discovery Material in this litigation without marking the
information as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”, the producing party may
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subsequently inform the receiving party in writing of the “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” nature of the disclosed information, and the receiving party shall
treat the disclosed information in accordance with this Protective Order after receipt of such
written notice and make reasonable efforts to retrieve any such material that has been disclosed
to persons not authorized to receive the material under the terms hereof. A party objecting to
any such “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” designation shall follow the
procedures set forth in Paragraph 13 above. Prior disclosure of material later designated as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” shall not constitute a violation of this
Protective Order.
(b)

If “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” Discovery Material

is disclosed to any person other than in the manner authorized by this Protective Order, the
person responsible for the disclosure must immediately bring all pertinent facts relating to such
disclosure to the attention of counsel for the producing party and, if appropriate, to the Court
and, without prejudice to other rights and remedies of any party, take reasonable and appropriate
measures to prevent further disclosure by it or by the person who was the recipient of such
information.
(c)

If a disclosing party through inadvertence produces or provides Discovery

Material that it believes is subject to a claim of attorney-client privilege, work product
protection, or any other privilege, the disclosing party may give written notice to the receiving
party that the Discovery Material is deemed privileged and that return of the Discovery Material
is requested. Upon such written notice, the receiving party shall immediately gather the original
and all copies of the Discovery Material of which the receiving party is aware and shall
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immediately return the original and all such copies to the disclosing party. Return of this
Discovery Material by the receiving party shall not preclude the receiving party from moving the
Court to compel production of the returned Discovery Material.
16.

Materials Not “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”

Notwithstanding the designation and protection of any materials as “CONFIDENTIAL”
or “ATTORNEYS’ EYES ONLY” Discovery Material, such Discovery Material shall not be
deemed confidential and shall not be subject to this Protective Order, if the contents and/or
substance thereof:
(a)

is, at the time of disclosure, in the public domain by publication or otherwise

and is not otherwise protected from disclosure as a result;
(b)

becomes at any time, through no act or failure to act on the part of the recipient

party, part of the public domain by publication or otherwise;
(c)

is already in the possession of a party at the time of disclosures by another

party and was acquired other than directly or indirectly from the disclosing party under
conditions requiring the confidential treatment of the material; or
(d)

is made available to a party by a third-party who obtained the same by legal

means and without any obligation to the party claiming its confidential nature.
17.

Return of Discovery Material

After this case is completed, through settlement or litigation, including the exhaustion of
all appeals, each party, unless otherwise agreed in writing by counsel for the parties, shall have
thirty (30) calendar days to notify the other parties in writing whether it wants (1) the return of its
produced materials designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”,
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including all copies, extracts, and summaries thereof; or (2) the destruction of these materials by
the party, person, or firm in possession. Any documents, copies, extracts, or summaries that
constitute attorney work product may be retained by counsel or destroyed. The return or
destruction of these materials shall occur within sixty (60) days after this written notice is
received. The party returning or destroying materials under this paragraph shall provide written
certification to the producing

party attesting to the return or destruction of all designated

materials.
18.

Waiver or Termination

This Protective Order’s provisions may not be modified, waived, or terminated except by
order of the Court. This Protective Order shall survive the final termination of this litigation
with respect to any retained “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” Discovery
Material. Termination of this litigation shall not relieve any person from the obligations of this
Protective Order, unless the Court orders otherwise. The Court shall retain jurisdiction to
enforce the Protective Order despite the termination of this lawsuit.
19.

Notice

All notices required by this Protective Order are to be served via email to the outside
counsel for the parties. The date by which a party to this action receiving the notice shall
respond, or otherwise take action, shall be computed from the date that the email was received.
Any of the notice requirements herein may be waived in whole or in part, but only in writing
signed by an attorney for the party designating Discovery Material under this Protective Order.

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20.

Other Proceedings

By entering this Protective Order and limiting the disclosure of information in this case,
the Court does not intend to preclude any other court from finding that information may be
relevant and subject to disclosure in another case. Any person or party subject to this Protective
Order, who receives a written request, subpoena, or court order seeking disclosure of another
party’s “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” Discovery Material, shall
promptly (no more than five (5) business days after receipt) notify counsel for the producing
party of the request, subpoena, or court order and shall provide a copy of the same.

DATED: February 8, 2016

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

SUBMITTED AND APPROVED AS TO FORM AND CONTENT THIS 4th DAY OF
February , 2016:
/s/Ramon Pizarro

/s/ Jeffrey A. Sadowski

Ramon L. Pizarro
Law Office of Ramon L. Pizarro
7535 East Hampden Ave., Suite 520
Denver, CO 80231
Phone: [phone]
E-mail: [e-mail]

HOWARD & HOWARD ATTORNEYS
PLLC
Jeffrey A. Sadowski (P28153)
450 West Fourth Street
Royal Oak, Michigan 48067-2557
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
John R. Posthumus
[e-mail]
Patricia Y. Ho
[e-mail]
SHERIDAN ROSS P.C.
1560 Broadway, Suite 1200

ATTORNEY FOR PLAINTIFF

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Denver, Colorado 80202-5141
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
ATTORNEYS FOR
DEFENDANT

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EXHIBIT A
WRITTEN ACKNOWLEDGEMENT TO ABIDE BY THE TERMS
OF THE STIPULATED PROTECTIVE ORDER GOVERNING CONFIDENTIALITY
I,

, do solemnly swear that I have received a copy of the

Stipulated Protective Order Governing Confidentiality that was entered in connection with Tuffy
Security Products, Inc. v. Bestop, Inc., Case No. 15-cv-01085-PAB-NYW in the United States
District Court for the District of Colorado, and I hereby agree to be bound by its terms and
conditions. I recognize that during my participation in the handling and development of this case
I may have occasion to read or hear of Discovery Material that is designated
“CONFIDENTIAL.” I agree to use any such Discovery Material solely in connection with my
participation in this case and for no other purpose. I hereby submit to the jurisdiction of the
United States District Court for the District of Colorado for the limited purpose of enforcing said
Stipulated Protective Order Governing Confidentiality, and this Acknowledgement.
I am employed by
title is

and my
. I declare under penalty of perjury that the

foregoing is true and correct.

Signature:
Name:
Date:

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