Richter v. City of Commerce City, Colorado et al

Filing 38

PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 02/11/2016. (mdave, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

15-CV-01826-MEH

DEREK M. RICHTER,
Plaintiff,
v.
CITY OF COMMERCE CITY, COLORADO,
TROY SMITH, in his individual capacity,
DAVID CUBBAGE, in his individual capacity; and
KAREN STEVENS, in her individual capacity,
Defendants.
PROTECTIVE ORDER
Upon a showing of good cause in support of the entry of a protective order to
protect the discovery and dissemination of confidential information or information which
may improperly annoy, embarrass, or oppress any party, witness, or person providing
discovery in this case, IT IS ORDERED:
1. This Protective Order shall apply to all documents, materials, and information,
including without limitation, documents produced, answers to interrogatories, responses
to requests for admission, deposition testimony, and other information disclosed
pursuant to the disclosure or discovery duties created by the Federal Rules of Civil
Procedure.
2. As used in this Protective Order, "document" is defined as provided in Fed. R.
Civ. P. 34(a). A draft or non-identical copy is a separate document within the meaning
of this term.

3. Information designated "CONFIDENTIAL" or “SUBJECT TO PROTECTIVE
ORDER” or words to that effect (“CONFIDENTIAL Information”), shall be information
that is confidential and implicates common law and statutory privacy interests of (a)
current or former City employees, and (b) current or former police officers. See, e.g.,
section 24-72-202(4.5) (concerning disclosure of personnel records) and section 24-72302(4) (concerning disclosure of criminal justice records that are not a record of an
official action). CONFIDENTIAL information shall not be disclosed or used for any
purpose except the preparation and trial of this case.
4. CONFIDENTIAL documents, materials, and/or information which are to be
subject to this Protective Order per paragraph 3 above (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) attorneys actively working on this case;
(b) persons regularly employed or associated with the attorneys actively working
on the case whose assistance is required by said attorneys in the preparation for trial, at
trial, or at other proceedings in this case;
(c) the partiesand designated representatives for the entity defendants, as well
as representatives from the Defendants’ self insurance pool;
(d) expert witnesses and consultants retained in connection with this proceeding,
to the extent such disclosure is necessary for preparation, trial or other proceedings in
this case;
(e) the Court and its employees ("Court Personnel");
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(f) stenographic reporters who are engaged in proceedings necessarily incident
to the conduct of this action;
(g) deponents or actual witnesses who will testify; and
(h) other persons by agreement of the parties and written acknowledgment to be
bound by this Order.
5. Prior to disclosing any CONFIDENTIAL information to any person listed above
(other than counsel, persons employed by counsel, Court Personnel and stenographic
reporters), counsel shall provide such person with a copy of this Protective Order and
obtain from such person a written acknowledgment stating that he or she has read this
Protective Order and agrees to be bound by its provisions. See attached
acknowledgement. All such acknowledgments shall be retained by counsel and shall
be subject to in camera review by the Court if good cause for review is demonstrated by
opposing counsel.
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" Or “SUBJECT TO PROTECTIVE ORDER” or words to those
affects.
7. 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
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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. A party may object to the designation of particular CONFIDENTIAL 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 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 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.
9. The Parties and their counsel shall exercise reasonable care not to disclose
information contained in these confidential documents by placing them in the public
record in this case. If a Party wishes to use any confidential information in any affidavit,
brief, memorandum, oral argument, or other paper filed in this Court in this case, such
paper or transcript must be submitted to the Court with a motion to restrict access in
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accordance with D.C.COLO.LCivR 7.2. The Parties and their counsel, however, have
the right to use any such information contained in these documents, or the documents
themselves, in depositions and the trial of this case. The Parties do not waive any right
to object at trial to the admissibility of any document, which falls under the scope of this
Order, or portion thereof, or the right to file a motion in limine regarding the use of any
such documents. Additionally, nothing in this Stipulated Protective Order is intended,
nor shall it be construed, as either a waiver or an admission that any documents or
information are admissible or contain either confidential, proprietary business
information or trade secrets. This Protective Order is simply a procedural framework to
facilitate the discovery processes and/or provide protections concerning documents and
information exchanged between and among the Parties and non-parties in this case.
No part of this agreement shall be used in this action or any other action as evidence
that any Party has either waived or admitted to any claims solely by virtue of the act of
designating documents or information as confidential.
10. The Parties agree that in the event information or documentation is
inadvertently disclosed to an opposing Party, 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 any fruits derived therefrom for the purposes of this

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litigation and that the inadvertent disclosure of information or documentation shall not
constitute a waiver of any privilege that may otherwise apply.
11. At the conclusion of this case, unless other arrangements are agreed upon,
each document and all copies thereof which have been designated as CONFIDENTIAL
shall be returned to the party that designated it CONFIDENTIAL, or the parties may
elect to destroy CONFIDENTIAL documents. Where the parties agree to destroy
CONFIDENTIAL documents, the destroying party shall provide all parties with an
affidavit confirming the destruction.
11. 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.
So Ordered.
DATED this 11th day of February, 2016, at Denver, Colorado.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

15-CV-01826-MEH

DEREK M. RICHTER,
Plaintiff,
v.
CITY OF COMMERCE CITY, COLORADO,
TROY SMITH, in his individual capacity,
DAVID CUBBAGE, in his individual capacity; and
KAREN STEVENS, in her individual capacity,
Defendants.

ACKNOWLEDGMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND

The undersigned hereby acknowledges that he/she has read the Protective
Order dated 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 Colorado in matters relating to the
Protective Order and understands that the terms of the Protective Order obligate
him/her to use documents designated CONFIDENTIAL - SUBJECT TO PROTECTIVE
ORDER in accordance with the 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.

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ACKNOWLEDGMENT OF UNDERSTANDING AND
AGREEMENT TO BE BOUND
(Page 2)

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

Job Title:
Employer:
Bus. Address:
Date:

SIGNATURE

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