Estes Park Taffy Company, LLC et al v. Original Taffy Shop, Inc., The

Filing 28

STIPULATED PROTECTIVE ORDER. By Magistrate Judge Craig B. Shaffer on 02/08/2016. (cbslc1)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-1697-MSK-CBS
ESTES PARK TAFFY COMPANY, LLC, a Colorado limited liability company;
BENJAMIN HOLCOMB; and
BRET HOLCOMB.
Plaintiffs,
v.
THE ORIGINAL TAFFY SHOP, INC., a Colorado corporation
Defendant.

______________________________________________________________________
STIPULATED PROTECTIVE ORDER

Discovery in this case will involve the production of information that the producing
parties or persons claim to be confidential, proprietary, commercially sensitive, and/or a
trade secret. Under Rule 26(c) of the Federal Rules of Civil Procedure, the parties
stipulate to this protective order for the purposes of governing the handling of such
information in this case, to expedite discovery and disclosure of such information without
frequently resorting to determinations of discoverability by the court and to protect that
information from improper or premature disclosure:
1.0

DEFINITIONS. As used in this Stipulated Protective Order, the following terms

shall have the following meanings:

1.1.

“Confidential”: A party may designate as “Confidential” those materials
which that party in good faith believes constitutes or contains confidential,
proprietary, commercially sensitive and/or trade secret information, which
information is not generally known and which that party would normally not
reveal to third parties or, if disclosed, would require such third parties to
maintain in confidence.

1.2.

“Highly Confidential –Counsel Eyes Only”: A party may designate as
“Highly Confidential –Counsel Eyes Only” any confidential, proprietary,
commercially sensitive and/or trade secret information which that party in
good faith believes is so highly sensitive that the protections afforded to
Confidential information are not sufficient. This designation shall be
reserved for information that constitutes, reflects, or concerns particularly
sensitive proprietary, technical, financial, marketing, or other business
information, trade secrets or know-how.

1.3.

“Counsel”: “Counsel” means the following named counsel, the lawyers of
Coan, Payton & Payne, LLC, counsel for Plaintiffs and Lind Ottenhoff &
Root, LLP and C.R. Miles, PC, counsel for Defendant. The term “Counsel”
shall include other attorneys in their respective firms, secretaries, legal
assistants, clerks, and employees of Counsel. “Plaintiff” or “Plaintiffs”
means Estes Park Taffy Company, LLC, a Colorado limited liability
company, Benjamin Holcomb, and Bret Holcomb, and each of their current

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and former shareholders, employees, contractors, officers, directors, or
agents.
1.4.

“Defendant” means The Original Taffy Shop, Inc., a Colorado corporation,
and its current and former shareholders, employees, contractors, officers,
directors, or agents.

1.5.

“Parties” For the purpose of this Protective Order, the term “Parties” means
Plaintiffs and Defendant, and “Party” means Plaintiffs (and each Plaintiff) or
Defendant as the case may be.

1.6.

“Person” The term “Person” includes natural persons, as well as
partnerships, limited partnerships, limited liability partnerships, companies,
limited liability companies, associations, league, corporations, governments
(including all instrumentalities, offices, agents, subdivisions, thereof), trusts
funds, and all other business legal or artificial entities and business
associations, and their current or former shareholders, members, partners,
executives, employees, and agents.

2.0.

DESIGNATION OF PROTECTED MATERIAL
2.1.

Designation of Confidential Information. Each page of any document or
transcript of oral testimony produced or given in this action that is asserted
by the producing party or stipulating third party to contain or constitute
Confidential information shall be so designated in writing by such producing
party or stipulating third party. Each such document or transcript of
testimony shall be clearly and prominently marked on its face with the

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legend “CONFIDENTIAL”. If necessary to avoid confusion, a letter or letters
identifying the producing party or stipulating third party or other comparable
notice shall be included on the document or transcript of testimony. If the
receiving party wishes to show non-confidential portions of a document or
transcript containing Confidential information to a person or party not
described below in paragraph 4.2, it shall first redact all pages (or portions
of pages) marked as containing Confidential information.
2.2.

Designation of Highly Confidential –Counsel Eyes Only Information.
Each page of any document or transcript of oral testimony produced or
given in this action that is asserted by the producing party or stipulating third
party to contain or constitute Highly Confidential –Counsel Eyes Only
information shall be so designated by such producing party or stipulating
third party. Each such document or transcript of testimony shall be clearly
and prominently marked on its face with the legend “HIGHLY
CONFIDENTIAL –COUNSEL EYES ONLY” preceded by a letter or letters
identifying the producing party or stipulating third party or other comparable
notice. If the receiving party wishes to show non-highly confidential portions
of a document or transcript containing Highly Confidential –Counsel Eyes
Only information to a person or party not described below in paragraph 4.3,
it shall first redact all pages (or portions of pages) marked as containing
Highly Confidential–Counsel Eyes Only information.

3.0.

ACCESS TO PROTECTED MATERIAL.

PAGE 4 OF 15

3.1.

General. A record shall be made of the names of the persons to whom
disclosure of protected material is made.

The foregoing shall exclude

Counsel and outside contractors hired by Counsel to copy, index, sort, or
otherwise manage the storage and retrieval of discovery; the parties and
their principal constituent members; the court, court personnel, and jury
members who properly have access to protected material during the course
of this litigation.
3.2.

Access to Confidential Information. In the absence of written permission
from the producing party or stipulating third party or an order of the Court,
a receiving party shall use any Confidential information designated in
accordance with the provisions of paragraph 3.1 solely for purposes of this
action, including appeals between the Parties, and shall not disclose such
information to or discuss such information with any person other than: (a)
Counsel as defined in paragraph 2.3; (b) any employee or representative of
a party who has executed the Acknowledgement and Confidentiality
Agreement attached as Appendix A; (c) court reporters or videographers;
(d) any person who can be shown from the face of the document to have
authored or received it or who is accused by the producing party of having
accessed, transferred, or misappropriated it; (e) experts and consultants,
including their employees and agents deemed necessary to assist such
expert or consultant, employed by any party or counsel to assist in this
action, including for the preparation for trial who have executed the

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Acknowledgment and Confidentiality Agreement attached as Appendix A;
(f) the Court and its support personnel; (g) any mediator retained by the
parties to mediate this case; (h) members of the jury; (i) other persons
agreed to in writing between Counsel for the Parties, provided such other
persons

have

executed

the

Acknowledgment

and

Confidentiality

Agreement attached as Appendix A; or (j) as may be determined by the
Court on the motion of any party upon a showing of good cause.
Acknowledgments and Confidentiality Agreements shall be provided to all
Counsel prior to any expert or other persons receiving protected material
under this Protective Order. Under no circumstances shall Confidential
information be made available to the receiving party or any other director,
officer, manager, employee, agent, or representative of the receiving party
except as stated in this paragraph. Nothing contained in this Protective
Order shall affect the right of the producing party or stipulating third party to
disclose to anyone Confidential information that it has designated.
3.3.

Access to Highly Confidential –Counsel Eyes Only Information. In the
absence of written permission from the producing party or stipulating third
party or an order of the Court, a receiving party shall use any Highly
Confidential –Counsel Eyes Only information designated in accordance
with the provisions of paragraph 2.2 solely for purposes of this action,
including appeals between the Parties, and shall not disclose such
information to or discuss such information with any person other than: (a)

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Counsel as defined in paragraph 2.3 ; (b) court reporters or videographers;
(c) any person who can be shown from the face of the document to have
authored or received it or who is accused by the producing party of having
accessed, transferred, or misappropriated it; (d) experts (including their
staff) who have executed the Acknowledgment and Confidentiality
Agreement attached as Appendix A; (e) the Court and its support personnel;
(f) any mediator retained by the parties to mediate this case; (g) members
of the jury; and (h) any other persons agreed to in writing between Counsel
for the Parties or as determined by the Court, providing such other persons
have executed the Acknowledgment and Confidentiality Agreement
attached as Appendix A. Without limiting the generality of the foregoing
receiving Counsel may show "Highly Confidential-Counsel Eyes Only"
documents to their clients or a designated client representative on the
conditions that the receiving party may not (1) keep a copy of the "Highly
Confidential” materials; (2) view the “Highly Confidential” materials outside
the direct supervision of Counsel; (3) take notes concerning the content of
the “Highly Confidential” materials; (4) discuss or disclose the contents of
the “Highly Confidential” materials with or to other employees (excluding
client designated representative) or third parties unless these third parties
are experts or technical advisors; and/or (5) use the “Highly Confidential”
materials for any purpose other than in connection with the prosecution or
defense of the lawsuit. Acknowledgment and Confidentiality Agreements
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shall be provided to all Counsel prior to any expert or other persons
receiving Protected Material under this Protective Order. Under no
circumstances shall Highly Confidential –Counsel Eyes Only information be
made available to the receiving party or any other director, officer, manager,
employee, agent, or representative of the receiving party except as stated
in this paragraph. Nothing contained in this Protective Order shall affect the
right of the producing party or stipulating third party to disclose to anyone
Highly Confidential –Counsel Eyes Only information that it has designated.
4.0.

HANDLING OF PROTECTED MATERIAL.

All material designated as

Confidential or Highly Confidential –Counsel Eyes Only shall be handled by the receiving
party in the same manner as it would handle its own information which is confidential and
proprietary. Notwithstanding the foregoing, materials Confidential or Highly Confidential
–Counsel Eyes Only shall be handled in at least a reasonable and prudent manner for
the protection of similar confidential or proprietary information.
4.1.

Designation of Transcript. Transcripts shall be treated by the Parties as
Confidential until 30 days after the producing party’s or stipulating third
party’s receipt of the transcript from the court reporter. During the 30 day
period, the producing party or stipulating third party may give written notice
to the receiving party that the transcript, or portions thereof, contains
protected material and is designated under paragraph(s) 3.1 and/or 3.2.
Absent such designation, the transcript shall not be subject to this Protective
Order after expiration of the 30 day period.

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4.2.

Use in Proceedings. In the event Confidential Information, including any
portion of a deposition transcript designated as Confidential Information, is
included in any papers to be filed in Court, such papers shall be submitted
only after moving to restrict access to them to level 1 or level 2 restriction
as may be appropriate under D.C.COLO.LCivR 7.2. For use of material
at trial, Section 6.0 below shall apply. Nothing in this Protective Order shall
be determinative of the admissibility or inadmissibility

of Protected

Information into evidence.
4.3.

Request

for

Production

in

Unrelated

Legal

Proceedings,

Administrative Tribunals, or Investigations. In the event any receiving
party having possession, custody or control of any protected material
receives from or on behalf of a non-party a subpoena or other process or
order to produce such information in another unrelated legal proceeding,
tribunal, or investigation, such receiving party shall: (a) notify Counsel for
the producing party or the stipulating third party; (b) furnish Counsel or the
stipulating third party with a copy of said subpoena or other process or
order; and (c) cooperate with respect to all reasonable procedures sought
to be pursued by the producing party or stipulating third party whose
interests may be affected. The producing party or stipulating third party
asserting the Confidential designation shall have the burden of defending
against such subpoena, process, or order. The receiving party receiving the
subpoena or other process or order shall be entitled to comply with it except

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to the extent the producing party or stipulating third party asserting the
Confidential treatment is successful in obtaining an order modifying or
quashing the subpoena or other process or order.
5.0.

DESIGNATION NOT DETERMINATIVE OF STATUS. A party may object to the

designation of particular Confidential or Highly Confidential –Counsel Eyes Only
information by giving written notice to the party designating the disputed information. 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 party designating the information as Confidential
or Highly Confidential –Counsel Eyes Only 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, which shall be an additional ten (10)
days, i.e. twenty (20) days following the date the notice is sent, the disputed information
shall be treated as Confidential or Highly Confidential –Counsel Eyes Only under the
terms of this Protective Order until the Court rules on the motion. If the designating party
fails to file such a motion within the prescribed time, the disputed information shall lose
its designation as Confidential or Highly Confidential –Counsel Eyes Only and shall not
thereafter be treated as Confidential or Highly Confidential –Counsel Eyes Only in
accordance with this Protective Order. In connection with a motion filed under this
provision, the party designating the information as Confidential or Highly Confidential –
Counsel Eyes Only shall bear the burden of establishing that good cause exists for the

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disputed information to be treated as Confidential or Highly Confidential –Counsel Eyes
Only.
5.1.

The obligation of a party with respect to any particular portion of
Confidential Information shall terminate (or shall not attach) when any of the
following occurs:
5.1.1. It was in the public domain at the time of a party's communication to
the other party;
5.1.2. It was entered into the public domain through no fault of the party's
subsequent to the time of the other party's communication to the first
party;
5.1.3. It was in one party's possession free of any obligation of confidence
at the time of the designating party's disclosure to the other party; or
5.1.4. It was independently developed by the receiving party.

6.0.

PRESENTATION AT TRIAL. At or before the final pre-trial conference in this

matter, the parties shall stipulate and agree to appropriate amendments to this protective
order in order to protect the confidentiality of material that is to be produced to the court
or jury in trial proceedings. If the parties are unable to so stipulate, the parties shall
provide notice to the court and request the court enter appropriate orders to protect the
confidentiality of the information in question at trial.
7.0.

FINAL DISPOSITION. Within two months after final termination of this action, or

within one month after the time for appeal has expired, each Party shall assemble all
protected material furnished and designated by any other Party or stipulating third party

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including protected material provided to experts, and shall either (i) return such protected
material to the producing party or stipulating third party; or (ii) destroy the Protected
Material and provide a certificate of destruction to the producing Party or Stipulating Third
Party. Counsel for each party shall be entitled to retain one set of pleadings, motion
papers, legal memoranda, correspondence and work product.

Notwithstanding the

foregoing, after final disposition Counsel may retain and protect a single, archival copy of
any materials designated as “Confidential” or “Confidential Attorney’s Eyes Only in paper
format or on electronic media that is not accessible on or to any networked electronic
device (e.g. a disconnected external hard drive, CD-Rom, or other similar electronic
media that is not accessible via a computer network) for a period of time not to exceed
the Counsel’s standard document retention period. Counsel shall store such archival
copy securely and shall not disclose such information to or discuss such information with
any person, including the client, except as authorized in writing by Counsel for the
producing party or by another authorized representative of the producing party or as may
be ordered by a court with jurisdiction over the archival copy after notice to the producing
party and an opportunity to be heard. Under no circumstances shall any archival copy be
made available to the Receiving Party or any other director, officer, manager, employee,
agent, or representative of the receiving party except as stated in this paragraph.
8.0.

TERMINATION AND SURVIVAL OF OBLIGATIONS. No restriction imposed by

this Protective Order may be terminated, except by order of this Court for good cause
shown. The termination of this action shall not automatically terminate the obligations
specified in this Protective Order. Any party may at any time and for any reason seek

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modification of this Protective Order. This Protective Order can be modified only by
written agreement of the parties or by order of this Court.

Each party reserves the

right to object to any party’s motion or request to modify this Protective Order.

Dated this 8th day of February, 2016.

____________________________
Craig B. Shaffer
United States Magistrate Judge

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Approved as to form:
Attorneys for Plaintiffs

Attorneys for Defendant

/s/ Kay L. Collins
Kay L. Collins #9669

/s/John D. Root
John D. Root #34709

/s/ Walter A. Winslow
Walter A. Winslow #34783
COAN, PAYTON & PAYNE, LLC
103 W. Mountain Avenue, Suite 200
Fort Collins, Colorado 80524
Telephone: [phone]
Facsimile: 970-232-9927
Email: [e-mail]
Email: [e-mail]

Lind Ottenhoff & Root, LLP
355 Eastman Park Drive, Suite 200
Windsor, CO 80550
Telephone: [phone]
Fax: [phone]
[e-mail]

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APPENDIX A
ACKNOWLEDGEMENT AND CONFIDENTIALITY AGREEMENT
I, _______________________________, hereby acknowledge that:
1.
I have read the Protective Order entered in the action presently pending in
the U.S. District Court for the District of Colorado captioned Estes Park Taffy Company,
LLC, et al v. The Original Taffy Shop, Inc., Case No. 1:15-cv-1697-MSK-CBS.
2.

I understand the terms of the Protective Order;

3.
I agree, upon threat of penalty of contempt and other civil remedies, to be
bound by the Protective Order’s terms; and
4.
I irrevocably submit my person to the jurisdiction of the U.S. District Court
for the District of Colorado for the limited purpose of securing compliance with the terms
and conditions of the Protective Order.
DATED:____________________________

______________________________
Signature
______________________________
Name
______________________________
Present Employer
______________________________
Title/Occupation
______________________________
Address
______________________________
City State ZIP
______________________________
Telephone Number

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