Williams v. Enhanced Recovery Company, LLC
PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 11/30/15. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01924-KMT
ENHANCED RECOVERY COMPANY, a Delaware limited liability company,
Pursuant to stipulation of the parties and in accordance with the provisions of
IT IS HEREBY ORDERED THAT:
“CONFIDENTIAL” on the cover of any multipage document shall designate all pages of
the document as Confidential Material, unless otherwise stated by the producing party.
In the case of deposition testimony, a party may request at the time a question is asked,
or at the end of the deposition, that any portion of the deposition transcript be
A party may designate any portion of a deposition as
“CONFIDENTIAL” after transcription of the deposition, provided that 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.
Information shall be designated “CONFIDENTIAL” only after counsel for
the party making the designation has reviewed, or heard, the information and believes,
in good faith, that the information is confidential or otherwise entitled to protection.
The confidential information discussed in ¶1 above, and all tangible
embodiments thereof, all copies thereof, the substance thereof, and all information
contained therein (hereinafter collectively referred to as “Confidential Material”):
shall not be disclosed or distributed by counsel, or any other person
receiving, viewing or hearing the Confidential Material (“Receiving Person”) to any
person other than to (1) counsel for either party as identified in ¶8 below, (2) insurance
carriers for either party, (3) partners, employees and agents of counsel for either party,
(4) any consulting or testifying experts hired by counsel for either party, who are
assisting counsel in preparation of this action for trial (subject to ¶3(c) below), (5) the
Court and its employees, and (6) Plaintiff (“Plaintiff”) and Defendant (the “Defendant”),
its officers, directors and employees;
shall be filed with the Court, should filing be desired or required, in
accordance with D.C.Colo.LCivR 7.2; and,
shall not be disclosed to any consulting or testifying expert unless the
party making the disclosure follows the provisions of ¶5 of this Protective Order.
By agreeing to the limited disclosure permitted under this Protective
Order, no party waives its claim that Confidential Material is confidential. All parties
agree that a disclosure in accordance with this Protective Order does not constitute a
waiver of a party’s claim or position that the information so disclosed is confidential. All
parties agree that no party will contend that the failure to mark a particular document
“CONFIDENTIAL” or to designate any portion or a deposition as “CONFIDENTIAL”
constitutes a waiver of the other party’s position, if any, that a document or a portion of
a deposition contains Confidential Material, unless the party seeking to assert waiver
first notifies the other party in writing of its intention to claim waiver and gives the other
party five (5) business days within which to designate as confidential the document or
portion or deposition transcript at issue.
Before disclosing any Confidential Material to any consulting or testifying
expert, counsel for the disclosing party or parties shall have the consulting or testifying
expert read this Protective Order and shall explain the contents of this Protective Order
to that person. The consulting or testifying expert shall agree to be bound to the terms
of this Protective Order and shall execute a declaration identical to Exhibit “1” attached
During any deposition Confidential Material may be disclosed to any
deponent or witness. Before that disclosure is made, the disclosing party shall advise
the deponent or witness (as well as counsel, if any, representing the deponent or
witness) that the information about to be disclosed is subject to this Protective Order
and that any further disclosure of the Confidential Material by the deponent or witness
(or by his or her counsel) shall constitute a violation of the Protective Order.
Before trial, the parties will address the method for protecting the
confidentiality of the Confidential Material during trial.
In accordance with this Protective Order, counsel for the parties are:
A. In the case of Plaintiff: David M. Larson, Esq.
B. In the case of Defendant: Edward P. Timmins, Esq., Scott S.
Gallagher, Esq. and Adam F. Aldrich, Esq.
It is the responsibility of the attorneys whose signatures appear below to ensure
that their partners, employees and agents who may have access to Confidential
Information shall be apprised of, and adhere to, this Protective Order.
A party may object to the designation of particular Confidential Material by
giving written notice to the party designating the disputed information.
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,
the party designating the information as CONFIDENTIAL shall have the obligation to file
an appropriate motion with the Court 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 make 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 made 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.
The termination of proceedings in this action shall not relieve any person
to whom Confidential Material was disclosed from the obligation of maintaining the
confidentiality of such material in accordance with the provisions of this Protective
Upon final termination of this action, including any appeal, each party shall
assemble and shall destroy all items designated as Confidential Material by the other
party in accordance with the Colorado Rules of Professional Conduct.
This Protective Order shall be without prejudice to the right of the parties:
a) to bring before the Court at any time the question of whether any particular document
or information is Confidential Material or whether its use should be restricted; or, b) to
present a motion to the Court under Fed.R.Civ.P. Rule 26(c) for a separate protective
order as to any particular document or information, including restriction differing from
those as specified herein.
This Protective Order shall not be deemed to prejudice the parties in any
way from making future application to this Court for modification of this Order.
This Protective Order is entered solely for the purpose of facilitating the
exchange of documents and information between the parties to this action without
unnecessarily involving the Court in the process. Nothing in this Protective Order, nor
the production of any information or document under the terms of this Protective Order,
nor any proceeding pursuant to this Protective Order shall be deemed to be an
admission or waiver by either party, or to be an alteration of the confidentiality or nonconfidentiality or the discoverability or non-discoverability or the admissibility or
of any such document or information, or to be an alteration of any
existing obligation of any party or the absence of any such obligation.
The existence of this Protective Order, including the fact that it was
entered into by the parties shall not be admissible at trial of the present action, nor shall
it be admissible in any other court, administrative agency or tribunal for any party, with
the exception of a proceeding to enforce or interpret the terms of this Protective Order.
To the extent that any discovery is taken from any person who is not a
party to this action (“Third Party”), and in the event such Third Party contends the
discovery sought involves Confidential Material, then such Third Party may agree to
execute and be bound by this Protective Order.
Dated: November 30, 2015.
BY THE COURT:
Kathleen M. Tafoya
U.S. Magistrate Judge
ACCEPTED AND APPROVED AS TO FORM:
s/ David M. Larson
David M. Larson, Esq.
88 Inverness Circle East, Suite E-102
Englewood, Colorado 80112
Telephone: (303) 799-6895
Attorney for the Plaintiff
s/ Scott S. Gallagher
Scott S. Gallagher, Esq.
Smith, Gambrell & Russell, LLP
50 N. Laura Street, Suite 2600
Jacksonville, FL 32202
Telephone: (904) 598-6111
Attorney(s) for the Defendant
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