www.Turnstiles.us, Inc. v. Modular Security Systems, Inc.

Filing 33

PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 12/11/2015. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01806-RM-MEH
www.TURNSTILES.US, INC.,
Plaintiff,
v.
MODULAR SECURITY SYSTEMS, INC.,
Defendant.
________________________________________________________________________
PROTECTIVE ORDER
________________________________________________________________________
WHEREAS, discovery requests have or soon will be served in the above-captioned
action; and
WHEREAS, such requests will likely require the production or disclosure of confidential
or sensitive financial, business, or commercial information;
NOW, THEREFORE, pursuant to the provisions of Rule 26(c) of the Federal Rules of
Civil Procedure, the Court HEREBY ORDERS:
1.

For purposes of this Order, “CONFIDENTIAL INFORMATION” shall

mean all information or materials:
(a)

which is produced for or disclosed to a receiving

party (plaintiff or defendant) in discovery in this action; and
(b)

which has been so designated in the manner set

forth in Paragraph 3 (as either “CONFIDENTIAL” or “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY”) prior to the time of disclosure.

2.

Information, documents, and things that a party or third party in

good faith believes constitutes or contains nonpublic, confidential or proprietary
information, maybe designated as “CONFIDENTIAL.” Information, documents and
things that a party or third party in good faith believes constitutes or contains proprietary,
trade secret and/or other sensitive confidential research, development, business,
commercial or financial information, the disclosure of which can reasonably be expected
to lead to competitive harm to, or otherwise constitute an unwarranted invasion of, the
privacy or the commercial or business interests of the producing party or witness, may be
designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
3.

(a) CONFIDENTIAL INFORMATION contained in physical or electronic

objects or documents, in whatever form, including but not limited to any
correspondence, memoranda, exhibits, responses to letters, etc., or copies thereof,
shall

be

designated

by

stamping

or

affixing

thereto

the

legend

“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” on
the cover or first page and on each page containing confidential information.
(b) Any party or any third party witness may designate a document or
other item as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” by delivering a copy to the party seeking discovery with the appropriate
stamp.
(c) If CONFIDENTIAL INFORMATION is or is about to be disclosed
orally or has just been disclosed orally on the record of any deposition, counsel
for the producing party or third party witness may so designate the information.

Testimony designated as CONFIDENTIAL INFORMATION during a deposition
shall be placed by the reporter in a separate volume. Parties or third parties may
designate testimony as CONFIDENTIAL INFORMATION up to 30 days after
receipt of the official deposition transcript.
(d) The disclosure by a producing party of CONFIDENTIAL
INFORMATION by way of delivering responses to discovery requests, delivering
copies of documents, disclosing deposition testimony or otherwise, without the
designation required by paragraph 3(a), shall not constitute a waiver of any claim
of confidentiality if (a) such disclosure resulted from inadvertence or mistake on
the part of the producing party, (b) such inadvertent or mistaken disclosure has
been brought to the attention of the receiving party promptly after discovery of
such disclosure and (c) within ten (10) days of such discovery, the producing
party has provided properly marked documents. Upon such notice, and upon
receipt of properly marked documents, the materials shall be treated as
confidential and the receiving party shall return said unmarked documents and
things to the extent practicable, and shall not retain copies thereof and shall treat
information contained in said documents and things and any summaries or notes
thereof as CONFIDENTIAL INFORMATION.
4.

Any and all information, documents and things that are made available for

inspection shall be treated as having been designated as “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” pursuant to this Protective Order, whether or not so
marked, until copies of the information, documents and things are requested and
produced. Produced documents and things, and information therein, shall be held

pursuant to this Protective Order based on the designation, if any, marked on the
documents by the producing party.
USE OF CONFIDENTIAL INFORMATION
5.

Any information, documents or things designated as “CONFIDENTIAL”

or as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be used solely for the
preparation and trial of this lawsuit, settlement discussions and negotiations in connection
with this lawsuit, or any form of alternative dispute resolution of this action, and for no
other purpose.
PERMITTED DISCLOSURE OF CONFIDENTIAL INFORMATION
6.

CONFIDENTIAL INFORMATION shall be disclosed by the receiving

party only to Qualified Recipients.
7.

For purposes of this Order, “Qualified Recipient” of information,

documents and things designated as “CONFIDENTIAL” means:
(a) Legal counsel (including in-house counsel) for the parties to this
action, including legal assistants, secretarial, paralegal, or other personnel actually
assisting such counsel;
(b) Any independent consultant or expert witness or other person retained
to assist counsel in this litigation and who obtains authorization to receive
CONFIDENTIAL INFORMATION pursuant to Paragraph 11;
(c) The parties to this litigation, including employees of the parties to this
litigation;

(d) Outside vendors engaged by counsel to scan or code documents,
perform photocopying, computer classification or other similar clerical functions;
and
(e) The Court and Court personnel, including stenographic reporters and
others retained to record testimony given in this action.
8.

For purposes of this Order, “Qualified Recipient” of information,

documents and things designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
means:
(a)

Legal counsel (including in-house counsel) for the parties to this

action, including legal assistants, secretarial, paralegal, or other personnel actually
assisting such counsel;
(b)

Any independent consultant or expert witness or other person

retained to assist counsel in this litigation and who obtains authorization to
receive CONFIDENTIAL INFORMATION pursuant to Paragraph 11;
(c)

Outside vendors engaged by counsel to scan or code documents,

perform photocopying, computer classification or other similar clerical functions;
and
(d)

The Court and Court personnel, including stenographic reporters

and others retained to record testimony given in this action.
9.

All persons not listed in Paragraph 8, including parties to this litigation

and their employees, are not Qualified Recipients for the purpose of receiving
information, documents and things designated as “CONFIDENTIAL – ATTORNEYS’

EYES ONLY” and, therefore, are expressly prohibited from receiving any information,
documents and things so designated.
10.

CONFIDENTIAL INFORMATION shall be held in confidence by each

Qualified Recipient to whom it is disclosed, and that person shall use the
CONFIDENTIAL INFORMATION only for purposes of this action and for no other
action, and shall not use it for any business or other purpose, and shall not disclose it to
any person who is not a Qualified Recipient, except as hereinafter provided. All
CONFIDENTIAL INFORMATION shall be carefully maintained so as to preclude
access by persons who are not Qualified Recipients.
11.

Should any counsel for a receiving party find it necessary, for purposes of

this action, to disclose CONFIDENTIAL INFORMATION, in whole or in part, to any
person pursuant to Paragraphs 7 & 8 for the purpose of assisting in connection with this
action, the undersigned counsel for such receiving party shall require, before such
disclosure, that every such person read this Order and execute a declaration in the form of
Attachment A, stating that the person has read and understands this Order and agrees to
be bound by its terms. The undersigned counsel shall maintain a file containing the
declaration executed by each such person to whom disclosure of CONFIDENTIAL
INFORMATION is made.
12.

CONFIDENTIAL INFORMATION shall not be copied or otherwise

reproduced by a receiving party, except for transmission to Qualified Recipients. Nothing
herein shall, however, restrict a Qualified Recipient from making working copies,
abstracts, digests, analyses of CONFIDENTIAL INFORMATION for use only in
connection with this action. Such working copies, abstracts, digests, and analyses shall be

deemed CONFIDENTIAL under the terms of this Order and shall be marked
accordingly.
13.

Nothing in this Order shall bar or otherwise restrict an attorney who is a

Qualified Recipient from rendering advice to his or her client in this action with respect
to this action, and in any discovery or court proceeding in this action, from generally
referring to or relying upon examination of documents which have been produced
hereunder and which contain CONFIDENTIAL INFORMATION. Such references or
reliance shall not relieve the disclosing counsel of his or her obligations under Paragraph
10, above, which shall continue to preclude the use of such confidential information in
any other action. In rendering such advice or in otherwise communicating with his or her
client, the attorney shall not disclose the specific contents of any such document
produced by the producing party or the CONFIDENTIAL INFORMATION contained
therein where such disclosure would not otherwise be permitted under the terms of this
Order.
14.
before

the

In connection with any evidentiary hearing or trial concerning the action
Court,

counsel

for

a

party

who

believes

he

may

disclose

CONFIDENTIALINFORMATION shall give five business days advance notice to the
party that produced the CONFIDENTIAL INFORMATION and that party may apply to
the Court for in camera treatment of the CONFIDENTIAL INFORMATION within that
time period. In connection with any other proceeding concerning this action before this
Court, counsel for a party who believes he or she may disclose CONFIDENTIAL
INFORMATION shall submit to the Court a timely application for in camera treatment
of the CONFIDENTIAL INFORMATION.

15.

When filing any documents which contain information which has been

designated CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY ,
such documents shall be filed and served separately and in accordance with the Local
Rules for the Federal District Court for the District of Colorado ("Local Rules"), the
Electronic Case Filing ("ECF") Procedures, and the ECF User Manual for such district so
that such documents are sealed from public view. All such materials so filed shall be
released from confidential treatment only upon further order of the Court. Service of such
CONFIDENTIAL INFORMATION on all counsel for the named parties shall be in
accordance with such Local Rules and ECF procedures, and be accompanied by a cover
page or similar designation as provided under the Local Rules. All other documents not
designated as CONFIDENTIAL or CONFIDENTIAL – ATTORNEYS’ EYES ONLY
shall be filed separately in accordance with such Local Rules and ECF procedures so that
they are otherwise made publicly available.
16.

If any deposition testimony during discovery concerns CONFIDENTIAL

INFORMATION, a producing party shall have the right to exclude from the portion of
the examination concerning such information any person other than the witness, the
witness’ attorney(s), the Qualified Recipients with respect to such information, and the
court reporter. If the witness is represented by an attorney who is not a Qualified
Recipient with respect to such information, then prior to the examination, either the other
parties shall be given the opportunity to seek a further protective order, or the attorney
shall be required to provide a written assurance, in the form of Attachment A to this

Protective Order, that the attorney will maintain the confidentiality of CONFIDENTIAL
INFORMATION disclosed during the course of the examination.
17.

Nothing in this Order shall prevent a party from contending that any or all

information designated as CONFIDENTIAL INFORMATION should not be subject to
this Order. A party may at any time request the designating party to cancel the
CONFIDENTIAL INFORMATION designation with respect to any document, object
and/or information and to agree that thereafter such document, object and/or information
is no longer to be subject to the provisions of this Order. Such request shall be written,
shall be served on counsel for the designating party, and shall particularly identify the
CONFIDENTIAL INFORMATION that the requesting party contends should not be
subject to this Order.
18.

If the receiving party objects to the designation of any CONFIDENTIAL

INFORMATION, the receiving party's objection shall be by giving written notice of the
disputed CONFIDENTIAL INFORMATION to the Designating Party. Such written
notice shall identify the information to which the objection is made. The parties shall
attempt to resolve the dispute in good faith. However, 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 initiate a conference call to the Court prior to filing
an appropriate motion requesting that the Court determine whether the disputed
CONFIDENTIAL INFORMATION should be subject to the terms of this Order. If such
motion is made, the Discovery Material shall continue to be deemed CONFIDENTIAL
INFORMATION under the terms of this Order, until the Court rules on such motion. In
connection with a motion filed under the paragraph, the Designating Party shall bear the

burden of establishing that good cause exists for the disputed information to be treated as
"CONFIDENTIAL" or "CONFIDENTIAL – ATTORNEYS’ EYES ONLY."
NOTICE OF DISCLOSURE TO EXPERTS
19.

At least ten (10) business days before the first disclosure of any

CONFIDENTIAL INFORMATION of the producing party is made to an individual
described above in ¶¶ 7(b) or 8(b), the receiving party shall serve a notice on the
producing party identifying said individual by name and position, and including an up–
to–date copy of such individual’s curriculum vitae or equivalent resume and a list of all
cases in which the expert has provided an expert report or given testimony by deposition
or at trial during the previous five (5) years. The notice of disclosure shall also include a
completed certification in Attachment A, Acknowledgement and Agreement to Be
Bound. The producing party may object to the disclosure for good cause shown, in
writing, to the receiving party’s counsel within ten (10) business days of receipt of the
notice. If at the end of the ten–day period, no written objection has been received by the
party that wishes to disclose the material, then the individual may receive copies of such
CONFIDENTIAL INFORMATION upon compliance with all applicable provisions of
this Protective Order. If the producing party objects to the disclosure of its
CONFIDENTIAL INFORMATION to such individual, the producing party shall file,
within ten (10) business days after notifying the other party of its objection, an
appropriate motion for a protective order with the Court (or take other appropriate action
under the Local Rules to bring the matter to the Court for resolution). Until ruled upon by
the Court, no such information may be disclosed unless and until the Court rules
otherwise, or the parties agree otherwise. The disclosure of the identity of a consulting

expert will not be a waiver of any privilege or protection that applies to communications
with that expert or the expert’s work product. Furthermore, the parties agree that by
stipulating to the entry of this Protective Order, the parties do not intend to modify in any
way the discovery rules applicable to consulting experts.
MISCELLANEOUS PROVISIONS
20. Any document that is claimed to be inadvertently produced shall, upon notice
and request by the disclosing party, be returned by the receiving party within two (2) days
of the request, except where counsel for the disclosing party agrees that the receiving
party may retain the inadvertently produced document, or upon order of the Court to be
sought by conference call application and based upon a showing of good cause.
21. The designation of information as CONFIDENTIAL INFORMATION,
pursuant to this Order, shall not be construed as a concession by a designating party that
such information is relevant or material to any issue or is otherwise discoverable, or by a
receiving party that such information is, in fact, confidential or sensitive financial,
business, commercial, or personal information.
22. This Order shall be without prejudice to the right of any part to oppose
production of any information for lack of timeliness or relevance or any other ground.
23. Any of the notice requirements herein may be waived, in whole or in part, but
only in writing signed by the attorney of record for the party against whom such waiver
will be effective.
24. Upon final termination of this action, including all appeals, the receiving party
shall, at its option, either return to the producing party or destroy, in whatever form stored
or reproduced, all physical objects and documents except for pleadings and deposition

transcripts and other materials filed with the Court, including, but not limited to,
correspondence, memoranda, notes, and other work-product materials, which contain or
refer to CONFIDENTIAL INFORMATION; provided that all CONFIDENTIAL
INFORMATION not embodied in physical objects and documents shall remain subject to
this Order. In the event that any party chooses to destroy physical objects and documents,
such party shall certify within ten days that it has made reasonable and good faith efforts
to destroy such physical objects and documents, and that such physical objects and
documents have been destroyed to the best of its knowledge.
25. Nothing in this Order shall impose any restriction on the use or disclosure by a
party of its own documents and information or information obtained independently from
public sources.
26. This Order is entered into without prejudice to the right of any party to apply
to the Court at any time for additional protection, or to relax or rescind the restrictions of
this Order.
Dated at Denver, Colorado, this 11th day of December, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
www.Turnstiles.us, Inc.
Plaintiff
v.

Civil Action No. 1:15-cv-001806-MH

Modular Security Systems, Inc.,
Defendant.

ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND

The undersigned hereby acknowledges that he/she has read the Protective Order
in the above-captioned action and attached hereto, understands the terms thereof, and
agrees to be bound by its terms. The undersigned submits to the jurisdiction of the United
States District Court for the District of Colorado in matters relating to the Protective
Order and understands that the terms of the Protective Order obligate him/her to use
documents designated as CONFIDENTIAL INFORMATION in accordance with the
Protective Order solely for the purposes of the above-captioned action, and not to
disclose any such documents or information derived directly therefrom to any other
person, firm or concern.

The undersigned acknowledges that violation of the Protective Order may result
in penalties for contempt of court.

Name:

______________________________________

Job Title:

______________________________________

Employer:

______________________________________

Business Address:

________________________________
________________________________
________________________________

Date: _________________

___________________________
Signature