D Three Enterprises, LLC v. Rillito River Solar LLC
Filing
29
AGREED PROTECTIVE ORDER entered by Magistrate Judge Craig B. Shaffer on 9/8/15. (amont, )
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No.: 1:15-cv-1148-CBS
D THREE ENTERPRISES, LLC,
Plaintiff,
v.
RILLITO RIVER SOLAR LLC, d/b/a
ECOFASTEN SOLAR,
Defendant.
AGREED PROTECTIVE ORDER
The parties to this Agreed Protective Order have agreed to the terms of this
Order; accordingly, it is ORDERED:
1.
Scope. All materials produced or adduced in the course of discovery,
including initial disclosures, responses to subpoenas and discovery requests, deposition
testimony and exhibits, and information derived directly therefrom (collectively,
“Documents”), shall be subject to this Order concerning Confidential Information, as
defined below. This Order is subject to the Local Rules of this District and the Federal
Rules of Civil Procedure on matters of procedure and calculation of time periods.
2.
Confidential Information. (a) As used in this Order, “Confidential
Information” or “Highly Confidential Information” – as further described in Sections 5(b)
and (c) – means information designated by the producing party as “CONFIDENTIALSUBJECT TO PROTECTIVE ORDER” or “Highly Confidential – Outside Counsel Eyes
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Only – Subject to Protective Order,” respectively (or designated using substantially
similar wording), and that falls within one or more of the following categories: (i)
information prohibited from disclosure by statute; (ii) information that reveals trade
secrets; (iii) research, technical, commercial or financial information that the party has
maintained as confidential; (iv) medical information concerning any individual; (v)
personal identity information; (vi) income tax returns (including attached schedules
and forms), W-2 forms, and 1099 forms; or (vii) personnel or employment records of a
person who is not a party to the case. Information that falls within categories (ii) or (iii)
above and that includes technical information or technical data relating to the design,
composition, manufacture, or operation of products or systems used or to be used for
fastening or mounting systems for solar installations on various roof types and
substrates may hereafter be referred to as “Technical Information”. Information or
documents that are available to the public may not be designated as Confidential or
Highly Confidential Information.
(b)
The Highly Confidential designation should be used as sparingly as
possible, and such designations should be carefully reconsidered, upon request, in
order to avoid where reasonably possible the inconveniences and inefficiencies of
filing materials under seal. To the extent a receiving party determines in good faith
that the assistance of an in-house party representative, such as an officer or in-house
counsel of a party, is reasonably necessary to the conduct of the litigation in which the
information is disclosed, and that such assistance requires in-house access to Highly
Confidential Information, then the Parties shall negotiate in good faith to determine
whether and under what terms such limited access should be granted. If the Parties
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reach agreement in writing, then such agreement will serve to modify this Order for
that limited purpose. If, after a period of seven calendar days, the Parties are unable to
reach agreement, then the Party seeking access to Highly Confidential Information for
an in-house representative may seek relief from the Court.
3.
Designation.
(a)
A party may designate a Document as Confidential or Highly
Confidential for protection under this Order by placing or affixing the appropriate
designation (see Section 2 above) on the Document and on all copies in a manner that
will not interfere with the legibility of the Document. As used in this Order, “copies”
includes electronic images, duplicates, extracts, summaries or descriptions that contain
the Confidential Information. The designation shall be applied prior to or at the time
the Documents are produced or disclosed. Application of the Confidential or Highly
Confidential designation to a Document does not mean that the Document has any
status or protection by statute or otherwise except to the extent and for the purposes of
this Order. Any copies that are made of any Documents so designated shall also be so
marked, except that indices, electronic databases, or lists of Documents that do not
contain substantial portions or images of the text of marked Documents and do not
otherwise disclose the substance of the Confidential or Highly Confidential Information
are not required to be marked.
(b)
The designation of a Document as Confidential or Highly
Confidential Information is a certification by an attorney or a party appearing pro
se that he or she believes, in good faith pursuant to Rule 26(g), that the
Document contains Confidential or Highly Confidential Information as defined in
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this order.
4.
Depositions.
Deposition testimony is protected by this Order only if designated as Confidential
or Highly Confidential on the record at the time the testimony is taken
(e.g., during the deposition or at the end of the deposition while the court reporter and
party representatives are still present). Such designation shall be specific as to the
portions that contain Confidential or Highly Confidential Information. Deposition
testimony so designated shall be treated as Confidential or Highly Confidential
Information protected by this Order until fourteen days (or a longer period, if agreed to
in writing by both parties) after delivery of the transcript by the court reporter to any
party or the witness. Within fourteen days after delivery of the transcript (or a longer
period, if agreed to in writing by both parties), a designating party may serve a Notice of
Designation to all parties of record identifying the specific portions of the transcript that
are designated Confidential or Highly Confidential Information, and thereafter those
portions identified in the Notice of Designation shall be protected under the
terms of this Order. The failure to serve a timely Notice of Designation waives any
designation of deposition testimony as Confidential or Highly Confidential Information
that was made on the record of the deposition, unless otherwise ordered by the Court.
5.
Protection of Confidential and Highly Confidential Material.
(a)
General Protections. Confidential and Highly Confidential
Information shall not be used or disclosed by the parties, counsel for the parties, or
any other persons or entities identified in subparagraph (b) for any purpose
whatsoever other than in this litigation.
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(b)
Limited Third-Party Disclosures for Confidential Information.
The parties and counsel for the parties shall not disclose or permit the disclosure of
any Confidential Information to any third person or entity except as set forth in
subparagraphs (1)-(9). Subject to these requirements, the following categories of
persons are allowed to review Confidential Information:
(1)
Outside Counsel. Outside Counsel for the parties and
employees of outside counsel who have responsibility for
the action;
(2)
Parties. Individual parties and employees of a party,
including in-house counsel, but only to the extent outside
counsel determines in good faith that the employee’s
assistance is reasonably necessary to the conduct of the
litigation in which the information is disclosed;
(3)
The Court and its personnel;
(4)
Court Reporters and Recorders. Court reporters and
recorders engaged for depositions;
(5)
Contractors. Those persons specifically engaged for the
limited purpose of making copies of Documents or
organizing or processing Documents, including outside
vendors hired to process electronically stored Documents;
(6)
Consultants and Experts. Consultants, investigators, or
experts employed by the parties or counsel for the parties
to assist in the preparation and trial of this action but only
after: such persons have completed and signed the
certification contained in Attachment A, Acknowledgment
of Understanding and Agreement to Be Bound; such
signed certification is provided to the producing party; and
the obligations pursuant to subparagraph 5(c) below have
been fulfilled;
(7)
Witnesses at depositions. During their depositions,
witnesses in this action to whom disclosure is reasonably
necessary. Witnesses shall not retain a copy of Documents
containing Confidential Information, except witnesses may
receive a copy of all exhibits marked at their depositions in
connection with review of the transcripts. Pages of
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transcribed deposition testimony or exhibits to depositions
that are designated as Confidential Information pursuant
tothe process set out in this Order must be separately bound
by the court reporter and may not be disclosed to anyone
except as permitted under this Order.
(8)
(9)
(c)
Author or recipient. The author or recipient of the
Document (not including a person who received the
Document in the course of litigation); and
Others by Consent. Other persons only by written consent
of the producing party or upon order of the Court and on
such conditions as may be agreed or ordered.
Further, prior to disclosing “Confidential Information” or “Highly
Confidential Information” to a receiving party's proposed expert or consultant, and in
addition to providing a signed Acknowledgment of Understanding and Agreement to
Be Bound, the receiving party must provide to the producing party the resume or
curriculum vitae of the proposed expert or consultant, the expert or consultant's
business affiliation, and any current and past consulting relationships in the industry
within the previous five (5) years. The producing party will thereafter have five (5)
business days from receipt of the Acknowledgment of Understanding and Agreement
to Be Bound and related expert information to object to any proposed individual. The
objection must be made for good cause and in writing, stating with particularity the
reasons for the objection. Failure to object within five (5) business days constitutes
approval. If the parties are unable to resolve any objection, the receiving party may
apply to the presiding judge to resolve the matter. There will be no disclosure to any
proposed individual during the five (5) business day objection period, unless that period
is waived by the producing party, or if any objection is made, until the parties have
resolved the objection, or the presiding judge has ruled upon any resultant motion.
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(d)
Limited Third-Party Disclosures for Highly Confidential Information.
The parties and counsel for the parties shall not disclose or permit the disclosure of
any Highly Confidential Information to any third party or entity except as set forth in,
and subject to the requirements described in, subparagraphs (b)(1) and (b)(3)-(9),
provided, however, that Highly Confidential Information filed with the Court under
subparagraph (b)(4) should be filed under seal or other appropriate measures should
be taken to avoid public disclosure.
(e)
Control of Documents. The parties and their counsel shall
make reasonable efforts to prevent unauthorized or inadvertent disclosure of
Confidential and Highly Confidential Information.
(f)
Absent the written consent of the producing Party, any counsel
or representative of counsel, or receiving Party or any agent of the receiving Party
that sees, reviews, participates in discussions that reveal any of the contents of, or
otherwise accesses Technical Information properly designated as Confidential
Information or Highly Confidential Information shall not be involved in the
prosecution of patents or patent applications relating to roof mount assemblies
(including but not limited to any application claiming priority to the asserted patents,
any application claiming priority to an application in the family of applications to
which the asserted patents claim priority, or any application otherwise related to the
patents asserted in this action before any foreign or domestic agency, including the
United States Patent and Trademark Office). For purposes of this paragraph,
“prosecution” means any involvement for purposes of determination of claim
amendments, claim limitations, or claim drafting in original prosecution or reissue
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proceedings. “Prosecution” does not include participation in inter partes review
proceedings. For avoidance of doubt, nothing in this paragraph shall prevent any
individual from participation in inter partes review proceedings, or from participating
in determining claim amendments in connection with inter partes review
proceedings. This prohibition on patent prosecution shall only begin when this
Agreed Protective Order has been entered AND Confidential or Highly Confidential
Technical information has been received by the affected individual, and shall end
one year (1) after the final resolution of this action, including all appeals. This
prosecution bar is personal to the person receiving such information and shall not
be imputed to any other person or entity.
(g)
No person shall submit or disclose any “Confidential” or “Highly
Confidential - Outside Counsel Eyes Only” Discovery Material, or information
derived therefrom, for purposes other than the prosecution or defense of this
action, including, without limitation, for the purposes of preparing, filing or
prosecuting any patent application, continuation or divisional patent application,
reissue patent application or request for re-examination or in any United States
Patent and Trademark Office post-grant proceeding, such as reexamination or inter
partes review, or in any proceeding in a foreign patent office. Notwithstanding
anything to the contrary in this Agreement, any Party or individual who is subject to
this Protective Order and who believes in good faith that he, she, or it has or may
have conflicting legal obligations, such as, for example, co-existing obligations to
(a) abide by the terms of this Protective Order and (b) disclose Confidential or
Highly Confidential material to the USPTO pursuant to a duty of candor or to a third
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party in response to a valid subpoena, may seek judicial relief (for example, leave
from this Court to amend the Protective Order) to try to resolve the conflict or alleged
conflict.
6.
Inadvertent Failure to Designate. An inadvertent failure to designate
a Document as Confidential Information does not, standing alone, waive the right to so
designate the Document; provided, however, that a failure to serve a timely Notice of
Designation of deposition testimony as required by this Order, even if inadvertent,
waives any protection for deposition testimony. If a party designates a Document as
Confidential or Highly Confidential Information after it was initially produced, the
receiving party, on notification of the designation, must make a reasonable effort to
assure that the Document is treated in accordance with the provisions of this Order.
No party shall be found to have violated this Order for failing to maintain the
confidentiality of material during a time when that material has not been designated
Confidential or Highly Confidential Information, even where the failure to so designate
was inadvertent and where the material is subsequently designated Confidential
or
Highly Confidential Information.
7.
Filing of Confidential or Highly Confidential Information. This Order
does not, by itself, authorize the filing of any Document under seal restriction. Any
motion requesting leave to file a Document under seal restriction shall comply
with the requirements of D.C.COLO.LCivR 7.2 and demonstrate that the
Confidential or Highly Confidential information at issue is entitled to protection
under the standards articulated in Nixon v. Warner Communications, Inc., 435 U.S.
589, 598-602 (1978) (applied in United States v. Hickey, 767 F.2d 705, 708 (10th
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Cir. 1985) and Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir.
1980)).
8.
No Greater Protection of Specific Documents. Except on privilege
grounds not addressed by this Order, no party may withhold information from
discovery on the ground that it requires protection greater than that afforded by this
Order unless the party moves for an order providing such special protection.
9.
Challenges by a Party to Designation as Confidential or Highly
Confidential Information. The designation of any material or Document as
Confidential or Highly Confidential Information is subject to challenge by any party.
The following procedure shall apply to any such challenge.
(a)
Meet and Confer. A party challenging the designation of
Confidential or Highly Confidential Information must do so in good faith and must
begin the process by conferring directly with counsel for the designating party. In
conferring, the challenging party must explain the basis for its belief that the
confidentiality designation was not proper and must give the designating party an
opportunity to review the designated material, to reconsider the designation, and, if
no change in designation is offered, to explain the basis for the designation. The
designating party must respond to the challenge within five (5) business days.
(b)
Judicial Intervention. A party that elects to challenge a
confidentiality designation may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. Each such motion must
be accompanied by a competent declaration that affirms the movant has complied
with the meet and confer requirements of this procedure. The burden of persuasion
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in any such challenge proceeding shall be on the designating party. Until the Court
rules on the challenge, all parties shall continue to treat the materials as Confidential
or Highly Confidential Information under the terms of this Order.
10.
Action by the Court. Applications to the Court for an order relating to
materials or Documents designated Confidential or Highly Confidential Information
shall be by motion. Nothing in this Order or any action or agreement of a party
under this Order limits the Court’s power to make orders concerning the disclosure
of Documents produced in discovery or at trial.
11.
Use of Confidential or Highly Confidential Documents or Information
at Trial. Nothing in this Order shall be construed to affect or preclude the use of any
Document, material, or information at any trial or hearing. A party that intends to
present or that anticipates that another party may present Confidential or Highly
Confidential information at a hearing or trial shall bring that issue to the Court’s and
parties’ attention by motion or in a pretrial memorandum, without disclosing the
Confidential Information. The Court may thereafter make such orders as are
necessary to govern the use of such Documents or information at trial.
12.
Confidential or Highly Confidential Information Subpoenaed or Ordered
Produced in Other Litigation.
(a)
If a receiving party is served with a discovery request, subpoena
or an order issued in other litigation that would compel disclosure of any material or
Document designated in this action as Confidential Information, the receiving party
must so notify the designating party, in writing, immediately and in no event more than
five court days after receiving the subpoena or order. Such notification must include
a copy of the subpoena or court order.
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(b)
The receiving party also must immediately, and in no event more
than five court days after receiving the discovery request, subpoena or order, inform
in writing the party who caused the subpoena or order to issue in the other litigation
that some or all of the material covered by the subpoena or order is the subject of
this Order. In addition, the receiving party must promptly deliver a copy of this Order
to the party in the other action that caused the subpoena to issue.
(c)
The purpose of imposing these duties is to alert the interested
persons to the existence of this Order and to afford the designating party in this case
an opportunity to try to protect its Confidential or Highly Confidential Information in the
court from which the subpoena or order issued. The designating party shall bear the
burden and the expense of seeking protection in that court of its Confidential or Highly
Confidential Information, and nothing in these provisions should be construed as
authorizing or encouraging a receiving party in this action to disobey a lawful directive
from another court. If a designating party does not take steps to prevent disclosure
within fourteen (14) days of the date written notice is given, the Party to whom the
subpoena or other request is directed may produce such documents in response
thereto so long as they are designated under any applicable protective order in the
other litigation at an equivalent or greater level of protection as that afforded by this
Order. The party to whom the subpoena or other request is directed also may
produce such documents as required to comply with any legal duty or obligation
imposed by the court or other judicial, arbitral, administrative, or legislative body.
(d)
The obligations set forth in this paragraph remain in effect while
the party has in its possession, custody or control Confidential or Highly Confidential
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Information of the other party to this case.
13.
Challenges by Members of the Public to Sealing Orders. A party or
interested member of the public has a right to challenge the sealing of particular
Documents that have been filed under seal, and the party asserting confidentiality
will have the burden of demonstrating the propriety of filing under seal.
14.
Obligations on Conclusion of Litigation.
(a)
Order Continues in Force. Unless otherwise agreed or ordered,
this Order shall remain in force after dismissal or entry of final judgment not subject
to further appeal.
(b)
Obligations at Conclusion of Litigation. Within sixty-three days
after dismissal or entry of final judgment not subject to further appeal, all Confidential
or Highly Confidential Information, including copies as defined in ¶ 3(a), shall be
returned to the producing party unless: (1) the Document has been offered into
evidence or filed without restriction as to disclosure; (2) the Parties agree to
destruction to the extent practicable in lieu of return; or (3) as to Documents bearing
the notations, summations, or other mental impressions of the receiving party, that
party elects to destroy the Documents and certifies to the producing party that it has
done so; or (4) the receiving party shall destroy Documents containing Confidential or
Highly Confidential Information and certify the fact of destruction, and that the
receiving party shall not be required to locate, isolate and return e-mails (including
attachments to e-mails) that may include Confidential or Highly Confidential
Information, or Confidential or Highly Confidential Information contained in deposition
transcripts or drafts or final expert reports.
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(c)
Retention of Work Product and one set of Filed Documents.
Notwithstanding the above requirements to return or destroy Documents, outside
counsel may retain (1) attorney work product, including an index that refers or relates
to designated Confidential or Highly Confidential Information so long as that work
product does not duplicate verbatim substantial portions of Confidential Information,
and (2) one complete set of all Documents filed with the Court, including those filed
under seal. Any retained Confidential or Highly Confidential Information shall continue
to be protected under this Order. An attorney may use his or her work product in
subsequent litigation, provided that its use does not disclose or use Confidential or
Highly Confidential Information.
15.
Order Subject to Modification. This Order shall be subject to
modification by the Court on its own initiative or on motion of a party or any
other person with standing concerning the subject matter.
16.
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating
discovery. Nothing herein shall be construed or presented as a judicial determination
that any Document or material designated Confidential or Highly Confidential
Information by counsel or the parties is entitled to protection under Rule 26(c) of the
Federal Rules of Civil Procedure or otherwise until such time as the Court may rule on
a specific Document or issue.
17.
Persons Bound. This Order shall take effect when entered and shall be
binding upon all counsel of record and their law firms, the parties, and persons made
subject to this Order by its terms.
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So Ordered.
Dated: September 8, 2015
s/ Craig B. Shaffer
U.S. Magistrate Judge Craig B. Shaffer
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WE SO MOVE and agree to abide by the forms of this Order:
Dated: September 1, 2015
/s/ Melanie J. Reichenberger
Melanie J. Reichenberger
Katherine W. Schill
Rachel N. Bach
Michael Best & Friedrich LLP
100 East Wisconsin Ave., Suite 3300
Milwaukee, Wisconsin 53202
Tel: (414) 271-6560
Fax: (414) 277-0656
E-mail: kwschill@michaelbest.com
mjreichenberger@michaelbest.com
rnbach@michaelbest.com
Christopher P. Beall
Levine Sullivan Koch & Schulz, LLP
1888 Sherman Street, Suite 370
Denver, Colorado 80203
Tel: (303) 376-2400
Fax: (303) 376-2400
cbeall@lskslaw.com
Attorneys for Defendant EcoFasten
Dated: September 1, 2015
/s/ David A. Skeels
David A. Skeels
Michael T. Cooke
Dave R. Gunter
Friedman Suder & Cooke
604 East 4th Street, Suite 200
Fort Worth, TX 76102
Tel: (817) 334-0400
Fax: (817) 334-0401
E-mail: skeels@fsclaw.com
E-mail: mtc@fsclaw.com
E-mail: gunter@fsclaw.com
Attorneys for D Three Enterprises, LLC
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF COLORADO
Civil Action No.: 1:15-cv-1148
D THREE ENTERPRISES, LLC,
Plaintiff,
v.
RILLITO RIVER SOLAR LLC,
d/b/a ECOFASTEN SOLAR,
Defendant.
ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the
Protective Order dated August
, 2015 entered in the above-captioned action
and attached hereto, understands the terms thereof, and agrees to be bound by
its terms. The undersigned submits to the jurisdiction of the Colorado courts in
matters relating to the Protective Order and understands that the terms of the
Protective Order obligate him/her to use materials designated as Confidential or
Highly Confidential Information in accordance with the Order solely for the
purposes of the above-captioned action, and not to disclose any such
Confidential or Highly Confidential Information to any other person, firm, or
concern.
The undersigned acknowledges that violation of the Protective Order may
result in penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date:
Signature
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