Brigance v. Vail Corporation, The
Filing
30
PROTECTIVE ORDER entered by Magistrate Judge Nina Y. Wang on 10/6/15. (bsimm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1394-WJM-NYW
TERESA BRIGANCE,
Plaintiff,
v.
VAIL SUMMIT RESORTS, INC.
Defendant.
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 therefor, state as follows:
1.
In this action, at least one of the Parties has sought and/or is seeking 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 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 - not made available to the public - and designated by one of the Parties in
the manner provided in paragraph 3 below as containing non-public, confidential, privileged,
proprietary, or commercially or personally sensitive information that requires the protections
provided herein as contemplated by Fed. R. Civ. P. 26(c) and its interpreting case law.
3.
Where Confidential Information is produced, provided or otherwise disclosed by a
Party in response to any discovery request, it will be designated in the following manner:
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; and
c.
With respect to transcribed testimony, by giving written notice to opposing
counsel designating such portions as “Confidential” no later than ten calendar
days after receipt of the transcribed testimony.
4.
All Confidential Information provided by a Party in response to a discovery request
or transcribed testimony shall be 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 except for purposes of
this case and unless an affidavit in the form of Exhibit A has been signed.
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c.
Notwithstanding the foregoing, nothing in this Protective Order prohibits a
Party from sharing its own Confidential Information with individuals,
including experts, without the execution of an affidavit in the form of
Exhibit A.
d.
In addition, documents containing Confidential Information made be shared
with individuals who previously have had access to such Confidential
Information and such access is apparent from the face of the document
and/or the metadata associated with such document. Individual qualified to
receive Confidential Information under this subsection are not required to
execute an affidavit in the form of Exhibit A.
e.
Individuals authorized to review Confidential Information pursuant to this
Protective Order 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 or by written stipulation of the Parties.
5.
The Party’s counsel who discloses Confidential Information shall be responsible for
assuring compliance with the terms of this Protective Order with respect to persons to whom such
Confidential Information is disclosed that are within their control and/or agency. In addition,
the Party’s counsel shall provide a copy of this Protective Order to any individual receiving
Confidential Information who is not counsel of record, and obtain and retain the original
affidavits signed by qualified recipients of Confidential Information, and shall maintain a list of all
persons (including but not limited to counsel of record and their employees) to whom any
Confidential Information is disclosed.
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6.
During the pendency of this action, opposing counsel may upon court order or
agreement of the parties inspect the list maintained by counsel pursuant to paragraph 6 above upon
a showing of substantial need in order to establish the source of an unauthorized disclosure of
Confidential Information and that opposing counsel are unable otherwise to identify the source of
the disclosure. If counsel disagrees with opposing counsel’s showing of substantial need, then
counsel may seek a court order requiring inspection under terms and conditions deemed appropriate
by the Court.
7.
No copies of Confidential Information 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, including but not limited to, for the purposes of review by the parties’ experts who
have received a copy of this Protective Order and have executed an affidavit in the form of
Exhibit A.
8.
Prior to the disclosure of any Confidential Information made to any expert, the
Party seeking to provide such Confidential Information shall provide the other Party with written
notice of the identity of the expert and a copy of such expert’s curriculum vitae at least five
business days prior to any disclosure.
9.
During the pendency of this litigation, counsel and other qualified individuals
shall retain custody of Confidential Information, and copies made therefrom pursuant to
paragraph 7 above.
10.
If opposing counsel objects to the designation of certain information as Confidential
Information, he or she shall promptly inform the other parties’ counsel in writing of the specific
grounds of objection to the designation. All counsel shall then, in good faith and on an informal
basis, attempt to resolve such dispute. If after such good faith attempt, all counsel are unable to
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resolve their dispute, counsel seeking to designate the information as Confidential Information
must move to maintain such document(s) as confidential. Any motion to maintain information as
Confidential Information shall be filed within 14 days of receipt by counsel of notice of opposing
counsel's objection, and the information shall continue to have Confidential Information status from
the time it is produced until the ruling by the Court on the motion. At all times the burden of proof
and persuasion that any information is entitled to protection under this Protective Order rests with
the Party seeking to designate such information as Confidential Information.
11.
If opposing counsel objects to the provision of Confidential Information to an
expert, he or she shall promptly inform the other parties’ counsel in writing of the specific
grounds of objection within five business days of receiving notice of a Party’s intent to disclose as
contemplated by Paragraph 8. All counsel shall then, in good faith and on an informal basis,
attempt to resolve such dispute with respect to any such expert. If after such good faith attempt,
all counsel are unable to resolve their dispute, counsel seeking to disclose the information may
move for a disclosure order consistent with this order. Any motion for disclosure shall be filed
within 14 days of receipt by counsel of notice of counsel's objection, and no Confidential
Information shall be provided to any expert until the ruling by the Court on the motion.
12.
Use of Confidential Information in Court Proceedings: In the event Confidential
Information is used in any court filing or proceeding in this action, including but not limited to its
use at trial, it shall not lose its confidential status as between the parties through such use.
Confidential Information and pleadings or briefs quoting or discussing Confidential Information will
not be accepted for filing “under seal” or otherwise kept out of the public record in this action,
however, except by court order issued upon motion of the party seeking to file the documents under
seal. Any motion requesting leave to file documents under seal shall comply with the requirements
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of D.C.COLO.LCivR 7.2 and demonstrate that the 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 Cir. 1985) and Crystal
Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)).
13.
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 continuing jurisdiction to enforce the
terms of this Protective Order.
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.
Upon termination of this litigation, including any appeals, each Party’s counsel shall
immediately return to the producing party all Confidential Information provided subject to this
Protective Order, and all extracts, abstracts, charts, summaries, notes or copies made therefrom.
Alternatively, a Party may provide a certification to the other Party that all Confidential
Information has been destroyed.
Notwithstanding the foregoing, counsel may maintain an
archival copy of the Confidential Information, work product reflecting Confidential Information,
or filings containing Confidential Information.
16.
Nothing in this Protective Order shall preclude any Party from filing a motion seeking
further or different protection from the Court under Rule 26(c) of the Federal Rules of Civil
Procedure, or from filing a motion with respect to the manner in which Confidential Information
shall be treated at trial.
17.
This Order may be modified upon the showing of good cause.
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DATED: October 6, 2015
BY THE COURT:
s/ Nina Y. Wang
Nina Y. Wang
United States Magistrate Judge
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EXHIBIT A
AFFIDAVIT
STATE OF COLORADO
COUNTY OF
)
)
ss.
)
, swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in Brigance v. Vail Summit Resorts, Inc., Civil
Action No. 15-cv-1394-WJM-NYW, 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 purposes 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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)
SUBSCRIBED AND SWORN to before me this ____ day of ____, 20___,by
WITNESS my hand and official seal.
Notary Public
[S E A L]
My Commission Expires:
9
.
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