Sheets v. Steamboat Springs, Colorado et al

Filing 31

STIPULATION AND PROTECTIVE ORDER. Granting 30 Unopposed MOTION for Protective Order and for Entry of Stipulation, Signed by Judge John L. Kane on 1/11/2016.(agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01350-JLK
TREY SHEETS,
Plaintiff,
v.
STEAMBOAT SPRINGS, COLORADO, and
ROSS BLANK,
Defendants.

STIPULATION AND PROTECTIVE ORDER
________________________________________________________________________
Each party and each Counsel of Record stipulate and move the Court for a
Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure
concerning the treatment of Confidential Information (as hereinafter defined) and, as
grounds therefore, state as follows:
1. In this action, at least one of the Parties will produce or has sought and/or may

seek Confidential Information (as defined in paragraph 2 below). The Parties also
anticipate seeking additional Confidential Information during discovery and that there
will be questioning concerning Confidential Information in the course of depositions.
The Parties assert the disclosure of such information outside the scope of this litigation
could result in significant injury to one or more of the Parties’ business, security, safety,

or privacy interests. The Parties have entered into this Stipulation and request the Court
enter the within Protective Order for the purpose of preventing the disclosure and use of
Confidential Information except as set forth herein.
2.

“Confidential Information” means any document, file, portions of files,

transcribed testimony, or response to a discovery request, including any extract, abstract,
chart, summary, note, or copy made therefrom, which contains information that a party
believes is confidential and implicates common law and statutory privacy interests of the
individuals who are named and which are not made available to the public, as to which a
reasonable expectation of privacy or confidentiality exists, including, but not limited to:
a.

Individual Defendant’s personnel documents.

b.

Personnel documents related to other employees of the Steamboat Springs
Police Department.

c.
3.

Plaintiff’s Medical Records

Information designated as Confidential must first be reviewed by the

attorney for the designating party, who must have a good faith belief that the information
is confidential or otherwise entitled to protection under Fed. R. Civ. P. 26(c). Gillard v.
Boulder Valley Sch Dist., 196 F.R.D. 382, 386 (D. Colo. 2000).
4.

Where Confidential Information is produced, provided, or otherwise

disclosed by the Parties in response to any discovery request, it will be designated in the
following manners:

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a.

By imprinting the word “Confidential” on the first page or cover of

any document produced;
b.

By imprinting the word “Confidential” next to or above any

response to a discovery request;
c.

With respect to transcribed testimony, by giving written notice to

opposing counsel designating such portions as “Confidential” no later than thirty (30)
calendar days after receipt of the transcribed testimony; and
d.

With respect to live testimony, by making a record at the time of the

testimony.
5.

Confidential Information is subject to the following restrictions.
a.

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

business or other purpose whatsoever;
b.

It shall not be communicated or disclosed by any Party’s counsel or

a Party in any manner, either directly or indirectly, to anyone not authorized pursuant to
paragraph 6 (the Authorized Individuals), except for purposes of this case and unless an
affidavit in the form of Exhibit A has been signed (individuals who are not Authorized
Individuals but who sign affidavits pursuant to this subsection are referred to as Qualified
Recipients).
6.

Individuals authorized to review Confidential Information pursuant to this

Protective Order are limited to: the Parties to this action, their undersigned counsel and

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staff, attorneys at the City of Steamboat Springs and their staff, and defendant’s selfinsurance representatives (the Authorized Individuals). The Authorized Individuals and
Qualified Recipients shall hold Confidential Information in confidence and shall not
divulge the Confidential Information, either verbally or in writing, to any other person,
entity, or government agency unless authorized to do so by court order. The Parties
recognize that the available sanctions for the violation of the protective order include,
but are not limited to, the sanctions available under Fed.R.Civ.P. 37(b)(2)(A).
7.

By producing any Confidential Information or testifying on any matter later

designated as “Confidential,” no Party to this protective order waives any objection or
challenge to the admissibility of any such Confidential Information.
8.

Each party shall be responsible for assuring compliance with the terms of

this Protective Order with respect to persons to whom such Confidential Information is
disclosed and shall obtain and retain the original affidavits signed by Qualified
Recipients, and shall maintain a list of all persons to whom any Confidential Information
is disclosed.
9.

Upon a showing of substantial need, each party has the right to seek court

intervention, including in camera review, to determine whether the terms of the
Protective Order are being complied with.
10.

During pendency of this action, opposing counsel may upon Court order or

agreement of the Parties inspect the list maintained by counsel pursuant to paragraph 9

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above upon showing of substantial need in order to establish the source of an
unauthorized disclosure of Confidential Information and that opposing counsel are
unable to otherwise identify the source of the disclosure. If counsel disagrees with
opposing counsel’s showing of substantial need, counsel may then seek a court order
requiring inspection under terms and conditions deemed appropriate by the Court.
11.

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

of counsel in this litigation for work product purposes, including for review by experts in
this case. Any such copies shall be made and used solely for purposes of this litigation,
and subject to all restrictions herein. Nothing herein shall be construed as precluding the
provision of actual copies of designated documents provided the provisions of paragraph
5 are followed.
12.

A party may object to the designation of particular information as

Confidential by giving written notice to the party designating the disputed information at
any time. 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 designating party 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 under the terms of this
Protective Order until the Court rules on the motion. If the designating party fails to file

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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 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.

In the event it is necessary for the Parties to file Confidential Information

with the Court in connection with any proceeding or motion, the filing party shall
ascertain whether the Confidential Information should be filed as a restricted document
under D.C.COLO.LCivR 7.2. The parties agree to confer in advance of submitting
Confidential Information to the Court in order to resolve any disputes over whether
access should be restricted and to provide a nonmoving party the opportunity to file a
motion under D.C.COLO.LCivR 7.2. If the Parties agree access should be restricted, the
Confidential Information shall be filed in accordance with D.C.COLO.LCivR 7.2. The
fact that this protective order has been entered into by any party shall not in any way
preclude a party from opposing a motion to restrict public access.
14.

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

obligated hereunder from their responsibility to maintain the confidentiality of
Confidential Information pursuant to this Protective Order, and the Court shall retain

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continuing jurisdiction to enforce the terms of this Protective Order, even after this
action is terminated.
15.

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.
Neither the taking of any action in accordance with the provisions of this Protective
Order, nor the failure to object thereto, shall be construed as a waiver of any claim or
defense in this action.
16.

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

counsel agree to continue to keep the information confidential after the litigation
concludes.
17.

Nothing in this Protective Order shall preclude any Party from filing a

motion seeking further or different protection from the Court pursuant to Fed.R.Civ.P.
26(c), or from filing a motion with respect to the manner in which Confidential
Information shall be treated at trial.
18.

The parties agree that in the event information or documentation is

inadvertently disclosed, any information or documentation so disclosed shall be
immediately returned to the producing party without any copies being made or notes
being taken regarding said information/documentation by those who have received the
inadvertent disclosure. Further, the parties agree that no recipient of inadvertently
disclosed information or documentation shall utilize such information/documentation or

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any fruits derived therefrom for the purposes of this litigation and that the inadvertent
disclosure of information or documentation shall not constitute a waiver of any privilege
that may otherwise apply.

DATED this 11th day of January, 2016.
BY THE COURT:

________________________________
JOHN L. KANE
SENIOR U.S. DISTRICT COURT JUDGE

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STIPULATED AND AGREED TO:

BRICE A. TONDRE, PC

SENTER GOLDFARB & RICE, LLC

s/ Brice A. Tondre
Brice A. Tondre
215 S. Wadsworth Blvd., Suite 500
Lakewood, CO 80226
Telephone: [phone]
FAX: [phone]
E-mail: [e-mail]

s/ Eric M. Ziporin
Eric M. Ziporin
3900 E. Mexico Ave., Suite 700
Denver, CO 80210
Telephone: [phone]
FAX: [phone]
E-mail: [e-mail]

On behalf of Plaintiff Trey Sheets

On behalf of Defendant City of Steamboat
Springs

WELLS ANDERSON & RACE, LLC

s/ Cathy Havener Greer
Cathy Havener Greer
1700 Broadway, Suite 1050
Denver, CO 80290
Telephone: [phone]
FAX: [phone]
E-mail: [e-mail]
On behalf of Defendant Ross Blank

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AFFIDAVIT
STATE OF COLORADO )
)ss
COUNTY OF
)
_____________________________, swears or affirms and states under penalty of
perjury:
1.
I have read the Protective Order in ___________________________, a
copy of which is attached to this Affidavit.
2.
I have been informed by ___________________________, Esq., counsel
for _______________________________, that the materials described in the list attached
to this Affidavit are Confidential Information as defined in the Protective Order.
3.
I promise that I have not and will not divulge or undertake to divulge to any
person or recording device any Confidential Information shown or told to me except as
authorized in the Protective Order. I will not use the Confidential Information for any
purpose other than this litigation.
4.
For the purpose of enforcing the terms of the Protective Order, I hereby
submit myself to the jurisdiction of the court in the civil action referenced above.
5.

I will abide by the terms of the Protective Order.

_________________________________________
(Signature)
_________________________________________
(Print or Type Name)
Address:
______________________________________
______________________________________
Telephone No.: (_____) __________________

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