My24HourNews.Com, Inc. v. AT&T Corporation

Filing 64

STIPULATED PROTECTIVE ORDER FOR JURISDICTIONAL DISCOVERY entered by Magistrate Judge Nina Y. Wang on 11/19/15. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Case Number: 15-CV-01210-RM-NYW
MY24HOURNEWS.COM, INC.,
a Colorado corporation
Plaintiff,
v.
AT&T CORP.,
a New York corporation
Defendant.
STIPULATED PROTECTIVE ORDER FOR JURISDICTIONAL DISCOVERY
Plaintiff, My24HourNews.com, Inc. (“Plaintiff:”), and Defendant AT&T Corp.
(“Defendant” or “AT&T Corp.”) (collectively, the “Parties”), through their undersigned
counsel, stipulate as follows, pursuant to Federal Rule of Civil Procedure 26(c), that for
the purposes of the jurisdictional discovery authorized by the Court’s October 22, 2015
Order (ECF 61), confidential information shall be disclosed only in the following
designated ways.
Upon a showing of good cause in support of the stipulation, to protect the
discovery and dissemination of confidential which will improperly annoy embarrass, or
oppress any party, witness, or person providing discovery in this case, IT IS HEREBY
ORDERED:
1

1.

As used in this Protective Order, these terms have the following meanings:
a. “Action” means the case styled My24HourNews.com v. AT&T Corp.,
Case No. 15-CV-01210-RM-NYW, in the United States District Court
for the District of Colorado.
b. “Attorneys” means in-house counsel, and outside counsel of record
representing or advising a Party in the action.
c. “Documents” are all materials within the scope of Fed. R. Civ. P. 34.
d. “Confidential” Documents are Documents designated pursuant to
paragraph 2, below.
e. “Party” or “Parties” means the Plaintiff and Defendant in this action.
a. “Written Notification” and/or “Notice to Counsel” as required under the
terms of this Protective Order shall with respect to Plaintiff require that
such notice be delivered to: Michael D. Murphy, The Law Offices of
Michael L. Glaser, LLC, 1720 S. Bellaire St., Suite 607, Denver,
Colorado, 80222, [e-mail]; and with respect to
Defendant, to Lee F. Johnston, Dorsey & Whitney LLP, 1400 Wewatta
Street, Suite 400, Denver, Colorado, 80202, [e-mail].
b. “Written Assurance” means an executed Document in the form attached
hereto as Exhibit A.

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2.

A Party may designate information, whether in oral, written, paper, or
electronic form, disclosed in this Action through discovery pursuant to the
Federal Rules of Civil Procedure “Confidential” to protect information within
the scope of Fed. R. Civ. P. 26(c)(1)(G) where the designating Party in good
faith believes the Document contains confidential, proprietary, or
commercially sensitive information. Information shall not be designated
Confidential where it shows on its face to have been disseminated to the
public. For Documents, information shall be designated Confidential at or
prior to the time of production of the Documents by stamping or otherwise
marking the documents as Confidential on each page to be deemed
confidential. A party may designate information produced in an electronic
format as Confidential by placing a confidentiality marking on the disk or
device on which the documents are produced. Prior to designating any
document or information as Confidential, counsel of record for a party must
review the document and or information, to certify in good faith that such
document and/or inform implicates common law or statutory privacy and/or
confidentiality issues to warrant designation.
A Party receiving information designated Confidential may object to that

3.

designation and request the removal of such designation as outlined under the
procedures set forth under paragraph 13 of this Protective Order.

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All Confidential information shall be used solely for the purpose of this

4.

Action and no other separate proceeding of any kind. No Party receiving such
information shall, directly or indirectly, use, transfer, disclose, publicize,
promote, or communicate in any way the information, including Documents or
their contents to any person other than those specified in paragraph 5 of this
Protective Order. Any other use or disclosure is strictly prohibited.
5.

Access to any Confidential information shall be limited to:
a. The Court and its staff;
b. A court of competent jurisdiction in a proceeding by a Party made in
connection with this Action (e.g., a subpoena made to obtain Documents
for use in this Action), provided that the Party disclosing the Documents
designated Confidential submit them under seal;
c. The named parties in the action (including officers, directors, employees
and agents of the named parties who are assisting in the litigation);
d. The Attorneys and their law firms, including support staff;
e. The author, recipient, or custodian of the Document;
f. Any person from whom noticed testimony is or will be taken at
deposition or trial (and their counsel) to the extent reasonably necessary
in connection with their testimony, provided that such person has

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executed the Written Assurance prior to being presented such
information;
g. Any person who the Attorneys believe may be a potential witness in this
Action who has executed the Written Assurance, provided that no such
Documents may be left in the possession of a potential witness unless or
until the potential witness’s executed Written Assurance is provided to
the producing Party;
h. Professional vendors (including outside information technology,
photocopying, data processing, graphic production, , document
management, investigators, and litigation support employed by the
Parties or their Attorneys to assist in this action), court reporters and
videographers, messengers, and other providers of clerical services;
i. Outside independent persons (i.e., persons not currently employed by,
consulting with, or otherwise associated with any party) who are
retained by a Party or its Attorneys to furnish technical or expert
services, and/or to give expert testimony in this action, who have
executed the Written Assurance; and
j. Special masters, mediators, or other third parties retained by the parties
for settlement purposes or resolution of discovery disputes.

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Attorneys to the Party that provides Confidential information to such

6.

persons as listed above for which a Written Assurance must be executed (i.e.,
¶¶5(g), (i)) shall maintain the Written Assurance in its files for 60 days
following the termination of this litigation, including any appeals.
With respect to each person to be designated pursuant to paragraph 5(i), the

7.

designating Party’s Attorneys shall notify Attorneys for the other Party(ies) at
least 7 days prior to disclosure to any such person. Such notice shall provide a
reasonable description of the outside independent person, consultant or expert
to whom disclosure is sought sufficient to permit objection to be made. If a
Party objects in writing to such disclosure within 7 days after receipt of notice,
no disclosure shall be made until the Party seeking disclosure obtains the prior
approval of the Court or the objecting Party.
Any Party who inadvertently fails to identify Documents as Confidential

8.

shall, within 14 days from the discovery of its oversight, provide written notice
of the error to the receiving Party. The designating Party shall substitute
appropriately-designated Documents at the time it provides written notice.
Any Party receiving such improperly-designated Documents shall make
reasonable efforts to retrieve such Documents from persons not entitled to
receive those Documents and, upon receipt of the substitute Documents, shall
return or destroy the improperly-designated Documents.

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If a Party files with the Court a Document containing Confidential

9.

information, it shall do so in compliance with the requirements of
D.C.COLO.L.Civ.R 7.2 and the Electronic Case Filing Procedures for the
District of Colorado (version 4.0) as they pertain to filing documents under
seal. Filing under seal shall be without prejudice to any Party’s right to argue
to the Court that such document is not confidential and need not be preserved
under seal. Nothing in this Order may be construed as a ruling to restrict any
document and/or information.
Any Party may challenge the designation of any information designated

10.

Confidential. Any such document shall be treated as originally designated
while the parties confer and, if applicable, until the Court’s decision on the
proper designation. If the requested change in designation is not agreed to, the
Party requesting the change may move the Court to have the designation
removed or reduced. The moving party must provide notice to any non-party
whose designation of produced documents as Confidential in the Action may
be affected. The Party asserting that the Document or category of Documents
is Confidential shall have the ultimate burden of proving that the information
in question is within the scope of protection afforded by Fed. R. Civ. P. 26(c).
If Documents or information subject to any legally cognizable privilege or

11.

evidentiary protection (including, but not limited to, the attorney-client

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privilege or the work-product doctrine) are inadvertently disclosed, such
disclosure alone shall not constitute a waiver of any claim of privilege or
protection for such Documents. Promptly upon discovery of such inadvertent
disclosure, the disclosing Party shall advise the receiving Party in writing of
the claim of privilege or immunity from discovery and the basis for it. Upon
notice, the receiving Party shall immediately return or destroy the inadvertently
produced documents or information, including all copies thereof. If the
receiving Party disclosed or distributed the documents before being notified of
the inadvertent disclosure, it must take reasonable steps to retrieve the
inadvertently produced documents, including all copies, and return or destroy
such copies. Upon request, the receiving party shall provide written
confirmation of its compliance with this paragraph 11.
If any Document is offered as an exhibit to dispositive motion papers, and

12.

the designating Party claims that the Document was inadvertently produced
and is subject to the attorney-client privilege and/or work-product protection or
other immunity from disclosure, all Parties shall still comply with Fed. R. Civ.
P. 26(b)(5)(B) and paragraph 11.
Within 60 days of the termination of this Action, including any appeals,

13.

each receiving Party shall either destroy or return to the producing Party all
Documents designated as Confidential and all copies of such Documents, and

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shall destroy all extracts and/or data taken form such documents. Each Party
shall provide a certification as to such return or destruction within the 60-day
period. However, Attorneys shall be entitled to retain a set of all documents
filed with the Court, any attorney work product, transcripts or Court opinions
and orders, and all correspondence generated in connection with the Action.
The terms of this Protective Order shall govern the jurisdictional discovery

14.

permitted by the Court’s October 22, 2015 Order (ECF 61). The Parties shall
submit a separate Protective Order to govern merits-based discovery in the
event the Court denies AT&T Corp.’s Motion to Dismiss Plaintiff’s Amended
Complaint (ECF 46). Nothing in this Protective Order for Jurisdictional
Discovery shall be construed to prevent a Party from seeking such further
provisions enhancing or limiting confidentiality in the merits-based Protective
Order.
No action taken in accordance with this Protective Order shall be construed

15.

as a waiver of any claim or defense in the Action or of any position as to
discoverability or admissibility of evidence.
16.

The obligations imposed by this Protective Order shall survive the
termination of this Action. Within 60 days following the expiration of the last
period for appeal from any order issued in connection with this action, the
parties shall remove any materials designated “Confidential” from the office of

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the Clerk of Court. Following that 60-day period, the Clerk of Court shall
destroy all such materials.
Entered this 19th day of November, 2015.
BY THE COURT:
s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge
APPROVED:

APPROVED:

s/Lee F. Johnston
Lee F. Johnston
Tucker K. Trautman
Case Collard
DORSEY & WHITNEY LLP
1400 Wewatta Street, Suite 400
Denver, CO 80202
Telephone: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

s/Michael D. Murphy
Michael D. Murphy
The Law Offices of Michael L. Glaser, LLC
1720 S. Bellaire St., Suite 607
Denver, CO 80222
Telephone: [phone]
Email: [e-mail]
Attorneys for Plaintiff
My24HourNews.Com, Inc.

Attorneys for Defendant AT&T Corp.

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EXHIBIT A
WRITTEN ASSURANCE
__________________________________ declares that:
I reside at _______________________ in the City of ____________________,
County of ____________________, State of __________________.

My telephone

number is _________________.
I am currently employed by ________________________________, located at
_________________________________________________, and my current job title is
________________________.
I have read and I understand the terms of the Protective Order dated
__________________, filed in the case of My24HourNews.com v. AT&T Corp., Case
No. 15-CV-01210-RM-NYW (D. Colo.). I agree to comply with and be bound by the
provisions of the Protective Order. I understand that any violation of the Protective
Order may subject me to sanctions by the Court.
I will not disclose any information or item that is designated Confidential to any
person or entity except in compliance with the provisions of the Protective Order. I shall
not copy or use such documents except for the purposes of this action and pursuant to the
terms of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this action,
I shall return or destroy any documents in my possession designated Confidential, and all

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copies, excerpts, summaries, notes, digests, abstracts, and indices relating to such
documents, to the Attorney from whom I received them.
I submit myself to the jurisdiction of the United States District Court for the
District of Colorado for the purpose of enforcing or otherwise providing relief relating to
the Protective Order.
I declare under penalty of perjury that the foregoing is true and correct.

Executed on: ____________________
(Date)

__________________________________
(Signature)

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