Jones v. Specialized Loan Servicing, LLC

Filing 26

PROTECTIVE ORDER entered by Magistrate Judge Nina Y. Wang on 11/16/15. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 15-cv-01488-REB-NYW
MARVIN R. JONES,
Plaintiff,
v.
SPECIALIZED LOAN SERVICING LLC,
a Delaware limited liability company
Defendant.
[PROPOSED] PROTECTIVE ORDER
This matter comes before the Court on the Parties’ Stipulated Motion for Entry of
Protective Order. The Court has reviewed the Motion. Pursuant to Federal Rule of
Civil Procedure 26(c), as well as Federal Rule of Evidence 502(d), (e), the parties have
shown good cause in support of the entry of a protective order to protect the discovery
and dissemination of confidential information. Therefore, IT IS ORDERED:
1.

This Protective Order shall apply to all documents, depositions, deposition

exhibits, recorded telephone conversations, transcripts of telephone conversations, hard
drives, responses to discovery requests, inspections, examinations of premises,
facilities, and physical evidence, electronically stored information (including metadata)
and any other information disclosed pursuant to the disclosure or discovery duties
created by the Federal Rules of Civil Procedure (collectively, “Discovery Material”).

2.

As used in this Protective Order, “document” is defined as provided in

Federal Rule of Civil Procedure 34(a), and specifically includes electronically stored
information and other data compilations. A draft or non-identical copy is a separate
document within the meaning of this term.
3.

Information designated

“CONFIDENTIAL”

by

any

party

shall

be

information that implicates common law and statutory privacy and/or confidentiality
interests such as: (a) personnel and payroll records of current or former employees of
Defendant Selective Loan Servicing LLC (“SLS”); (b) SLS’s trade secrets and
commercial, financial, customer, or insurance information; (c) personal identifying
information relating to the Plaintiff in this matter, including Plaintiff’s tax returns and
other financial information; (d) medical records relating to any individual party to this
litigation; and (e) any other material qualifying for protection under Federal Rule of Civil
Procedure 26(c). CONFIDENTIAL information shall not be disclosed or used for any
purpose except for the preparation and trial of this case and furthermore is subject to
disclosure only under the terms of this Protective Order.
4.

CONFIDENTIAL documents, materials, and/or information (collectively

“CONFIDENTIAL information”) shall not, without the consent of the party producing it or
further Order of the Court, be disclosed, except that such information may be disclosed
to:
a.

The Court, persons employed by the Court, and stenographers

transcribing the testimony or argument at a hearing, trial or deposition in this
action or any appeal therefrom (“Court Personnel”);

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b.

Any named party, counsel to such parties whether or not they have

entered appearances in this action, in-house counsel for corporate parties, and
legal, clerical, paralegal, and secretarial staff employed or retained by outside or
in-house counsel, including outside copying services;
c.

Experts or consultants retained in connection with this action;

d.

Deposition witnesses questioned by outside counsel of record for a

party in connection with this action, but only to the extent necessary to assist
such counsel in the prosecution or defense of this action, and provided that (i)
such witness agrees to be bound by the terms of this Protective Order, or (ii) if
such witness refuses and such refusal is noted on the deposition record, counsel
provides the witness with a copy of this Protective Order, informs the witness and
the witness acknowledges that the information to be communicated is
Confidential, subject to the Protective Order in this case, may be used only in
connection with that deposition and may not be communicated to any other
person, that the witness is subject to the Protective Order and that any misuse of
the Confidential Discovery Material will violate the Court’s Protective Order and
will be punishable as contempt of Court.
e.

Stenographic

reporters

who

are

engaged

in

proceedings

necessarily incident to the conduct of this action;
f.

Any individual identified by a party as a person with knowledge

under Federal Rule of Civil Procedure 26, but only to the extent necessary to
assist Plaintiff or Defendant’s counsel in the prosecution or defense of this action,

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and provided that such author or recipient agrees to be bound by the terms of
this Protective Order;
g.

Mediators and Arbitrators agreed to and retained by the parties in

connection with this action; and
h.
5.

Other persons by written agreement of the parties.

Prior to disclosing any CONFIDENTIAL information to any person listed

above (other than counsel, persons employed by counsel, Court Personnel, deponents,
and stenographic reporters), Plaintiff and Defendant’s counsel shall provide such
person with a copy of this Protective Order, explain the person’s obligations under the
Protective Order, and obtain the person’s agreement to comply with the Protective
Order.
6.

Documents are designated as CONFIDENTIAL by placing or affixing on

them (in a manner that will not interfere with their legibility) the following or other
appropriate

notice:

“CONFIDENTIAL”

on

every

page

containing

Confidential

information. With the exception of depositions, which are discussed below in Paragraph
8, information, documents, and/or other materials unintentionally produced without a
“CONFIDENTIAL” designation or produced before the Protective Order is issued, may
be retroactively designated in the same manner.
7.

Before any information is designated “CONFIDENTIAL,” counsel of record

for the designating party must first review the information and make a determination, in
good faith, that the documents, information, and/or other materials are confidential and
entitled to protection pursuant to Paragraph 3 of this Protective Order, or otherwise

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entitled to protection under Federal Rule of Civil Procedure 26(c).

Whenever a

deposition involves the disclosure of CONFIDENTIAL information, the deposition or
portions thereof shall be designated as CONFIDENTIAL and shall be subject to the
provisions of this Protective Order. Such designation shall be made on the record
during the deposition whenever possible, but a party may designate portions of
depositions as CONFIDENTIAL after transcription, provided written notice of the
designation is promptly given to all counsel of record within thirty (30) days after notice
by the court reporter of the completion of the transcript.
8.

In the case of deposition or other pretrial testimony, a party can designate

testimony as CONFIDENTIAL by a statement on the record by counsel, at the time the
testimony to be protected is given, that said testimony is “Confidential.” Such testimony
may also be designated by written notice from counsel for the Designating Party to the
court reporter and counsel of record for all other parties, specifying by page and line
number the material to be classified and the classification assigned. To be effective,
such notice must be sent within thirty (30) days of the date on which the Designating
Party receives a copy of the transcript. In either event, Plaintiff or Defendant’s counsel
shall direct the court reporter and/or counsel to affix the appropriate confidentiality
stamp to any portion of the original transcript, and to that portion of all copies of the
transcript, and those portions of the transcript so designated shall be deemed
Confidential Discovery Material.
9.

A party may object to the designation of particular CONFIDENTIAL

information by providing notice to the party designating the disputed information within

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twenty (20) calendar days of production of the information. The notice shall identify the
information to which the objection is made (the “Disputed Information”). After conferring
on this issue, if the parties cannot resolve the objection within ten (10) days after the
time the notice is received, the Designating Party may file an appropriate motion
requesting that the Court determine whether the Disputed Information should be subject
to the terms of this Protective Order. While the parties are conferring regarding the
dispute and until the Court resolves the dispute, the disputed information shall be
treated as CONFIDENTIAL under the terms of this Protective Order. In any proceeding
to change the designation of Confidential Discovery Material, the burden shall be upon
the Designating Party to establish that good cause exists for the Disputed Information to
be classified as CONFIDENTIAL. If the challenging party fails to notify the Designating
Party of a dispute within the twenty (20) calendar day time period prescribed above, the
disputed information shall maintain its designation as CONFIDENTIAL and shall be
treated as CONFIDENTIAL in accordance with this Protective Order.
10.

When

filing

any

documents

that

contain

information

designated

CONFIDENTIAL, the party filing such documents must move the Court to restrict public
access to the documents, and follow all procedures for restricting access to such
Confidential

Discovery

Material

at

a

Level

1

restriction

level

pursuant

to

D.C.COLO.LCivR 7.2. If the filing party does not intend to file the document under seal,
the filing party shall confer with all parties’ counsel concerning the filing of documents
designated CONFIDENTIAL at least two (2) days before filing such documents.
Nothing in this Order will be construed to require the court to restrict any document.

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11.

In the event additional parties join or are joined in this action, or additional

or different counsel enter an appearance, they shall also be subject to the terms of this
Protective Order, unless such Parties are granted relief from the court.
12.

Pursuant to Federal Rule of Evidence 502(d) and (e), which are

incorporated herein by reference, the court orders protection of privileged and otherwise
protected Discovery Material against claims of waiver (including as against third parties
and in other federal, state, or administrative proceedings) as follows:
a.

If, during the course of this litigation, a Producing Party determines

that it has produced privileged Discovery Material, pursuant to Federal Rule of
Evidence 502(d), (e):
i.

The Producing Party may notify the Receiving Party of the

inadvertent production and request the return of privileged documents.
The notice shall be in writing; however, it may be delivered orally on the
record at a deposition, and promptly followed up in writing. The Producing
Party’s written notice will contain a log identifying the Discovery Material
inadvertently produced, the privilege claimed, and the basis for the
assertion of the privilege. In the event that any portion of the Discovery
Material does not contain privileged information, the Producing Party shall
also provide to the Receiving Party a redacted copy of the document that
omits the information that the Producing Party believes is subject to a
claim of privilege.

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ii.

The Receiving Party must, within ten (10) days of receiving

the Producing Party’s written notification described above, return,
sequester, or destroy the Discovery Material and any copies, along with
any notes, abstracts or compilations of the content of the privileged
Discovery Material.

To the extent that Discovery Material has been

loaded into a litigation review database under the control of the Receiving
Party, the Receiving Party shall have all electronic copies of the Protected
Document extracted from the database.

When privileged Discovery

Material cannot be destroyed or separated, it shall not be reviewed,
disclosed, or otherwise used by the Receiving Party.
b.

To the extent that the information contained in Discovery Material

has already been used in or described in other documents generated or
maintained by the Receiving Party prior to the date of receipt of written notice,
the Receiving Party shall sequester the documents until the claim has been
resolved. If the Receiving Party disclosed the Discovery Material subject to a
claim of privilege before being notified of its inadvertent production, it must take
reasonable steps to retrieve it.
c.

The Receiving Party’s return, sequestration, or destruction of

privileged Discovery Material as provided for in this Protective Order will not act
as a waiver of the Receiving Party’s right to move for the production of the
returned, sequestered, or destroyed documents on the grounds that the

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documents are not, in fact, subject to a viable claim of privilege. However, the
Receiving Party is prohibited and estopped from arguing that:
i.

The disclosure or production of the Discovery Material acts

as a waiver of an applicable privilege or evidentiary protection;
ii.

The

disclosure

of

the

Discovery

Material

was

not

inadvertent;
iii.

The Producing Party did not take reasonable steps to

prevent the disclosure of the Discovery Material; or
iv.

The Producing Party failed to take reasonable or timely

steps to rectify the error.
d.

Upon a determination by the Court that the Discovery Material is

protected by the applicable privilege, and if the Discovery Material has been
sequestered rather than returned or destroyed by the Receiving Party, the
Discovery Material shall be returned or destroyed within ten (10) days of the
Court’s order (except Discovery Material stored on back-up tapes or other
archival media, which shall remain subject to the terms of this Protective Order).
The Court may also order the identification by the Receiving Party of privileged
Discovery Material by search terms or other means.
e.

Nothing contained in this Protective Order is intended to or shall

serve to limit a party’s right to conduct a review of documents, ESI, or information
(including metadata) for relevance, responsiveness, and/or segregation of
privileged and/or protected information before production.

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13.

The provisions of this Protective Order shall continue to be binding

throughout this action, including, without limitation, any appeals. Within sixty (60) days
after receiving notice of the entry of an order, judgment, or decree finally disposing of all
litigation in which Confidential Discovery Material was disclosed, all persons having
received Confidential Discovery Material shall either: (1) return the material and all
copies (including summaries and excerpts) to the Producing Party or its counsel or (2)
destroy all the Confidential Discovery Material at issue and certify in writing to the
Designating Parties or their counsel that the destruction has occurred. Plaintiff and
counsel for the parties shall be entitled to retain proceeding papers, deposition, and
hearing transcripts, attorney work product, and copies stored on back-up tapes or other
archival media that contain Confidential Discovery Material or references to Confidential
Discovery Material, provided that counsel, and employees of counsel, shall not disclose
to any person nor use for any purpose unrelated to this action the Confidential
Discovery Material except pursuant to a court order or agreement with the Designating
Party. If counsel have provided any person listed in Paragraph 4, above (other than
counsel, persons employed by counsel, Court Personnel, and stenographic reporters)
with any CONFIDENTIAL information, such counsel will ensure those individuals have
returned that CONFIDENTIAL information to counsel within sixty (60) days after the
parties receive notice of the entry of an order, judgment or decree finally disposing of all
litigation in which CONFIDENTIAL information was disclosed.
14.

If a Receiving Party is served with a subpoena, demand, or any other legal

process seeking Confidential Discovery Material, that person shall give prompt written

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notice, by hand or email transmission within forty-eight (48) hours of its receipt of a
subpoena, demand, or legal process, to the Designating Party. The Designating Party
shall be solely responsible for seeking any relief or protection from any subpoena
demand or legal process seeking Confidential Discovery Material and shall also be
solely responsible for its costs and attorneys’ fees in any proceedings relating to the
subpoena or legal process.
15.

This stipulation shall be binding on the parties upon filing with the Court,

prior to its entry as a Protective Order. Should the Court not enter this stipulation as a
Protective Order, it shall remain binding upon the parties until such time as the Court
enters a different protective order providing substantially similar protections to those
contained in this stipulation. Once entered, this Protective Order shall remain in effect
during this Court’s jurisdiction over this action, unless and until the Court enters a
Protective Order to the contrary.
16.

This Protective Order shall not be construed as a waiver of any right to

object to the authenticity, admissibility, or confidentiality of any evidence at trial nor shall
it be deemed or construed as a waiver of any right to object to the furnishing of
information in response to any discovery request.

This Protective Order shall also not

be deemed or construed as a waiver of the attorney-client privilege, work product
doctrine, or any other privilege or of the rights of any party, person or entity to oppose
the production of any documents or information on any grounds. Further, nothing in this
Protective Order shall be construed to limit, restrict or otherwise affect the ability of any
party to seek the production of documents, testimony or information from any source.

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17.

This Protective Order may be modified by the Court at any time for good

cause shown following notice to all parties and an opportunity for them to be heard.

ORDERED this 16th day of November, 2015.

BY THE COURT:

s/ Nina Y. Wang
U.S. MAGISTRATE JUDGE

APPROVED:
s/ Marvin J. Jones
Marvin J. Jones
14399 E. Grand Dr. #140
Aurora, CO 80015
Telephone: [phone]

s/ Jennifer S. Harpole
Jennifer S. Harpole
Littler Mendelson, P.C.
1900 Sixteenth Street, Suite 800
Denver, CO 80202
Telephone: [phone]
E-mail:
[e-mail]

Pro Se Plaintiff

Attorney for Defendant Specialized Loan
Servicing LLC

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