Mbaku v. Charles Schwab & Co., Inc. et al

Filing 57

STIPULATED PROTECTIVE ORDER entered by Magistrate Judge Nina Y. Wang on 4/6/16. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01301-PAB-NYW
JOLIE MBAKU,
Plaintiff,
v.
ADECCO USA, INC.; and
CHARLES SCHWAB & CO., INC.,
Defendants.

STIPULATED PROTECTIVE ORDER

The parties to this Stipulated Protective Order have agreed to the terms of this Order;
accordingly, it is ORDERED:
1.

Definitions: For the purposes of this Stipulated Protective Order, the following

definitions shall apply:
a.

“Confidential” means consisting of, containing or Disclosing any

Information that the Disclosing Party believes in good faith is entitled to confidential treatment.
b.

“Confidential Material” means any Information, as defined below,

designated as “Confidential” pursuant to the provisions of this Order.
c.

“Disclose,” “Disclosed,” “Disclosure,” or “Disclosing” means to reveal,

divulge, give, or make available Information, or any part thereof.
d.

“Disclosing Party” means any Party or non-Party who is requested to

produce or produces Information containing Confidential Material.
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e.

“Hearing” means any hearing, presentation to or meeting with one or more

of the appraisers appointed in the Proceeding or any court proceeding in connection with the
Proceeding.
f.

“Information” means any and all information, whether disclosed in

writing, orally or otherwise, and includes: (a) documents, exhibits, and all written, recorded,
graphic or electronically stored matters (and all identical and non-identical copies thereof)
containing or derived from such information; (b) any copies, notes, abstracts, or complete or
partial summaries of such information; and (c) any pleading, affidavit, declaration, brief, motion,
transcript or other writing containing such information.
g.

“Order” means this Stipulated Protective Order.

h.

“Proceeding” means the above-entitled proceeding.

i.

“Receiving Party” means any Party or non-Party to whom documents or

Information containing Confidential Material is provided.
2.

Designation of Confidential Material
a.

A Disclosing Party shall have the right to designate as “Confidential” any

Information that the Disclosing Party believes, in good faith, upon review and certification by
counsel of record contains and/or Discloses proprietary information, non-public business
information, financial information, or personal medical information that is entitled to
confidential treatment.
b.

For Information in documentary form including emails or electronic

documents attached to emails, the Disclosing Party must indicate that the document is
"Confidential" by either (a) stamping or otherwise inscribing the words "CONFIDENTIAL" on
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the document, or (b) providing written notice to the other Party or non-Party that a document or
information contained in a document is "Confidential" and subject to the terms of this Stipulated
Protective Order. If documents are made available for inspection prior to copies thereof being
provided, the producing Party or non-Party shall have the option to require that all or batches of
such documents be treated as “Confidential” during the inspection, and may make its
confidentiality designations when copies are produced or furnished. Making documents or
things available for inspection shall not constitute a waiver of any claim of confidentiality. If
only portions of the Information or document warrant protection, the Disclosing Party, to the
extent practicable, shall identify the “Confidential” portions.
c.

For Information produced in some other form not discussed above, and for

any other tangible items, including, without limitation, compact discs or DVDs, the Disclosing
Party must affix in a prominent place on the exterior of the container or containers in which the
Information or item is stored the legend “Confidential.” If only portions of the Information or
item warrant protection, the Disclosing Party, to the extent practicable, shall identify the
“Confidential” portions.
d.

For Information provided orally in argument, testimony or otherwise, if

any, given in any Hearing, the Disclosing Party shall identify either (a) on the record before the
close of the Hearing, or (b) within 20 days after receiving the transcript of such Hearing, all
portions of the oral argument and/or testimony, if any, that it wants to designate as Confidential.
Only those portions of the oral argument and/or testimony, if any, that are designated for
protection during the Hearing, or within the 20 days after receipt of the transcript of such
Hearing, shall be covered by the provisions of this Stipulated Protective Order. The court
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reporter shall affix to the top or bottom of each page of a transcript containing Confidential
Material the legend "CONFIDENTIAL" pursuant to a Disclosing Party's instructions.
3.

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 documents or information designated “CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER” or any similar language by counsel or the parties is
subject to protection under F.R.C.P. Rule 26(c) or otherwise until such time as the Court may
make such a ruling.
4.

Where Confidential Material is produced, provided or otherwise disclosed by a

party, it will be designated in the following manner:
a.

By imprinting or affixing the words “CONFIDENTIAL – SUBJECT TO

PROTECTIVE ORDER” on the page of any such document produced;
b.

By imprinting or affixing the words “CONFIDENTIAL – SUBJECT TO

PROTECTIVE ORDER” next to or above any response to a discovery request seeking
Confidential Material; and
c.

With respect to transcribed testimony or an accompanying exhibit, by

giving written notice to opposing counsel designating such portions as “CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER” no later than fourteen (14) days after the designating
party’s receipt of the transcribed testimony.
5.

All documents or transcribed testimony designated as “CONFIDENTIAL –

SUBJECT TO PROTECTIVE ORDER” shall be subject to the following restrictions:

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a.

It shall be used only for the purpose of this litigation and not for any other

purpose whatsoever; and
b.

It shall not be communicated or disclosed, either directly or indirectly, to

any third person or entity, except as set forth in subparagraphs (i) – (v). Subject to these
requirements, the following categories of persons may be allowed to review documents that have
been designated “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER”:
(i)

Counsel. Counsel for the parties and employees and agents of

counsel who have responsibility for the preparation and trial of this action;
(ii)

Parties.

Named parties, current employees of any party, and

persons who reasonably may be called as witnesses in this case or who may provide factual
background or clarification to the matters pertinent to such documents;
(iii)

Court Reporters and Recorders.

Court reporters and recorders

engaged for depositions;
(iv)

Consultants, Investigators and Experts. Consultants, investigators,

or experts (collectively “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 the affidavit
attached as Exhibit A;
(v)

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.
All such persons shall execute the affidavit attached as Exhibit A.
6.

Individuals authorized to review Confidential Material pursuant to this Protective

Order shall hold Confidential Material in confidence and shall not divulge the Confidential
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Material, either verbally or in writing, to any other person, entity or government agency unless
authorized to do so by court order.
7.

No copies of Confidential Material shall be made except by or on behalf of

counsel in this litigation and such copies shall be made and used solely for purposes of this
litigation.

All copies, electronic images, duplicates, extracts, summaries or descriptions

(hereinafter collectively “Copy” or “Copies”) of documents designated as CONFIDENTIAL –
SUBJECT TO PROTECTIVE ORDER under this Order, or any individual portion of such a
document, shall be affixed with the designation CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER if the word does not already appear on the Copy. All such Copies shall
thereafter be entitled to the protection of this Order. The term “Copies” shall not include indices,
electronic databases or lists of documents provided these indices, electronic databases or lists do
not contain substantial portions or images of the text of confidential documents or otherwise
disclose the substance of the Confidential Material contained in those documents.
8.

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

designated as “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” and Copies made
therefrom pursuant to paragraph 7 above.
9.

Notwithstanding any other provision in this Order, if any Party or non-Party

believes that any document or other Information not designated as “Confidential” by the
producing person should be so designated, the Receiving Party, shall make such production
known to the producing party as soon as practicable. If the parties cannot agree that the
inadvertently produced information should be returned to the producing party, and then produced

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again with the designation “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” then
the producing party shall file a motion with this Court seeking appropriate relief.
10.

If opposing counsel objects to the designation of certain information as

Confidential Material, he or she shall promptly inform the other parties’ counsel in writing of the
specific grounds of objection. All counsel shall then, in good faith and on an informal basis,
attempt to resolve the dispute. If after such good faith attempt, all counsel are unable to resolve
their dispute, the party asserting that the material should be treated as Confidential Material may
move for an order so providing.

Any such motion shall be filed within fourteen (14) days of

receipt by counsel of notice of the opposing counsel’s objection, and the information shall
continue to have Confidential Material status from the time it is produced until the ruling by the
Court on the motion.
11.

In the event Confidential Material is used in any court filing, it shall not lose its

confidential status as between the parties through such use. Confidential Material and pleadings
or briefs quoting or discussing Confidential Material will not be accepted for filing “under seal”
or otherwise kept out of the public record in this action, except by court order issued upon
motion of the party seeking to file the documents under seal. In the event a party seeks to
disclose the content of any material designated CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER in any pleading, motion, deposition, transcript, exhibit or other
document, the party shall be obligated to submit such pleading, motion, deposition, transcript,
exhibit or other document via electronic filing with the following security level: “Restricted –
Access to court, filing parties, served parties.” However, nothing in this order will be construed
as an order of the court to restrict any information or document; such restriction must be sought
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by separate order in compliance with D.C.COLO.LCivR 7.2.The documents designated
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER shall be preceded by a cover page
stating:
The following is confidential: these documents are subject to a Protective Order in
the case of Jolie Mbaku v. Adecco USA, Inc., et al., Case Number 15-cv-01301,
and are to be reviewed only by a Judge of this Court or their law clerks, or
counsel and/or parties in this litigation.
12.

Absent order of the Court, there will be no restrictions on the use of any document

that may be introduced by any party during any hearing or trial. However, if a party intends to
present documents designated “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” or
information derived therefrom at a hearing or at trial, such party shall provide advance notice to
the other parties at least five (5) days before the commencement of trial by identifying the
documents or information at issue as specifically as possible (i.e., by Bates-Number, page range,
deposition transcript lines, etc.) without divulging the actual documents designated
“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” or information derived therefrom.
13.

Any party may remove the “CONFIDENTIAL – SUBJECT TO PROTECTIVE

ORDER” designation from its own documents at any time by advising all parties so in writing.
14.

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.
15.

The termination of this action shall not relieve counsel or other persons obligated

hereunder from their responsibility to maintain the confidentiality of Confidential Material, and
the Court shall retain continuing jurisdiction to enforce the terms of this Protective Order.
16.

Upon termination of this litigation, including any appeals, each party’s counsel

shall as soon as practicable thereafter either destroy or return all documents designated
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“CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER,” including Copies, to the
producing party unless the document has been entered into evidence or filed without restriction
as to disclosure.
17.

Nothing in this Order shall preclude any party from filing a motion seeking

different protection from the Court under Rule 26(c) of the Federal Rules of Civil Procedure, or
from filing a motion as to the manner in which Confidential Material shall be treated at trial.
18.

This Order shall be subject to modification by the Court on its own motion or on

motion of a party or any other person with standing concerning the subject matter.
IT IS SO ORDERED
Dated this 6th day of April, 2016.
BY THE COURT:
s/ Nina Y. Wang
____________________________________
Nina Y. Wang
United States Magistrate Judge
STIPULATED AND AGREED BY:
HKM EMPLOYMENT ATTORNEYS LLP

ARNOLD & PORTER

By: s/ Claire E. Munger
Claire E. Munger (39504)
Shelby Woods (48606)
730 17th Street, Suite 900
Denver, Colorado 80202
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff Jolie Mbaku

By: _s/ Ed P. Aro___________
David Reis (CA -155782)
Jenna L. Goldstein (46120)
Edwin P. Aro (18698)
370 Seventeenth Street, Suite 4400
Denver, Colorado 80202-1370
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Charles Schwab & Co., Inc.

SMITH, GAMBRELL & RUSSELL, LLP
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By: /s Matthew W. Clarke
Matthew W. Clarke (127430)
Promenade, Suite 3100
1230 Peachtree Street, NE
Atlanta, Georgia 30309-3592
Email: [e-mail]
Attorney for Adecco USA, Inc.

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