Nanda v. Phillips 66 Company

Filing 23

PROTECTIVE ORDER by Magistrate Judge Kathleen M. Tafoya on 2/1/16. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 1:15-cv-02108-KMT
BALJIT S. NANDA,
Plaintiff,
vs.
PHILLIPS 66 COMPANY,
Defendant.

STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER

Upon consideration of the parties’ Joint Motion for Entry of Stipulated Protective Order,
and it appearing to the Court that sufficient cause exists under Fed.R.Civ.P. 26(c) for the
issuance of a Protective Order, it is ORDERED as follows:
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 to incorporate everything

listed in Fed.R.Civ.P. 34(a)(1)(A). A draft or non-identical copy is a separate Document within the
meaning of this term.
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therefrom.

As used in this Protective Order, “Lawsuit” means this action and any appeals

4.

As used in this Protective Order, “Confidential Information” shall be information

that is (1) confidential and implicates common law or statutory privacy interests of Plaintiff or of
Defendant’s current or former employees, or (2) confidential and proprietary business information;
and is designated as “Confidential” in the manner described in paragraph 10 below.
5.

Prior to designating any information as Confidential Information under this

Protective Order, counsel for the producing party shall review the information to be disclosed and
designate the information it believes in good faith is Confidential Information or otherwise entitled
to protection.
6.

Confidential Information and all Documents produced in this Lawsuit shall be used

only for the preparation and litigation of this Lawsuit, and shall not be disclosed or used for any
other purpose including, without limitation, any business or commercial purpose or in connection
with any other proceeding or litigation.
7.

All persons with access to Confidential Information produced by another party or a

nonparty shall take all reasonable precautions necessary to ensure that no other person shall
disclose or use Confidential Information for any purpose that does not relate to this Lawsuit or in
any manner that is not permitted by this Protective Order.
8.

Confidential Information shall not, without the consent of the party producing it or

further Court order, be disclosed, summarized, described, characterized or otherwise
communicated or made available in whole or in part to any person except the following:
a.

counsel of record in this Lawsuit;

b.

persons employed by or associated with counsel of record in this Lawsuit
whose assistance is required in connection with prosecuting or defending this
Lawsuit;

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c.

third-party vendors retained by the parties or their counsel for the purpose of
copying, scanning, microfilming, reorganizing, filing, coding, converting,
storing, or retrieving Documents or related data;

d.

representatives of entity parties deemed necessary by counsel for assistance
with the prosecution or defense of this Lawsuit;

e.

expert witnesses and consultants retained in connection with this Lawsuit to
the extent counsel has a reasonable and good faith belief that the disclosure is
necessary for preparation, trial, or other proceedings in this Lawsuit;

f.

deponents, witnesses, or potential witnesses to the extent counsel has a
reasonable and good faith belief that such persons will be witnesses in this
case and that the witnesses’ examination with respect to the Confidential
Information is necessary in connection with such testimony;

g.

the Court and its employees;

h.

stenographic reporters and videographers who are engaged in proceedings
necessarily incident to the conduct of this Lawsuit; and

i.

other persons upon written agreement of the parties.

9.

Before disclosing any Confidential Information to any person listed in paragraphs

8.e, 8.f, or 8.i above, counsel shall provide such person with a copy of this Protective Order and
obtain from such person a written acknowledgment in the form attached as Exhibit A that such
person has reviewed a copy of this Protective Order, will comply with its terms in all respects, and
will submit to the jurisdiction of the Court for adjudication of any dispute about whether such
person has complied with the terms of this Protective Order. All such acknowledgments shall be
retained by the counsel obtaining them and shall be subject to in camera review by the Court if
good cause for review is demonstrated by opposing counsel.
10.

The designation of Documents as “Confidential” for purposes of this Protective

Order shall be made in the following manner:
a.

In the case of Documents (including tif or pdf images of Documents) or other
materials (apart from interviews, depositions or pretrial testimony), by
placing or affixing on them (in a manner that will not interfere with their
legibility) the word “CONFIDENTIAL.”
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b.

c.

In the case of depositions or pretrial testimony, by a statement on the record,
by counsel, at the time of such disclosure, that said deposition or pretrial
testimony, or any portion thereof, is “Confidential.” Counsel shall direct the
court reporter or counsel to affix the appropriate Confidential 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. Although the designation shall be made on the record during
the deposition whenever possible, a party may designate portions of
depositions as Confidential after transcription, provided written notice of the
designation is given to all counsel of record within thirty days after notice by
the court reporter of the completion of the transcript.

d.

The parties to this Protective Order may modify the procedure set forth in
paragraph 10(c) through agreement of counsel on the record at such
deposition without further order of the Court.

e.

11.

In the case of electronically stored information produced in native format, the
storage media shall be marked with the legend “CONTAINS
CONFIDENTIAL INFORMATION” and the producing party shall provide
an electronic list (spreadsheet or table) by file name of all files that are so
designated.

The parties will have up to 30 days from the execution of this Protective
Order to designate any Documents already produced as Confidential, and the
parties may designate such Documents by written statement to opposing
counsel identifying the particular Documents subject to this Protective Order.
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,
either party may file an appropriate motion within ten business days after notice is received,
requesting that the Court determine whether the disputed information should be subject to the
terms of this Protective Order. The disputed information shall be treated as Confidential
Information under the terms of this Protective Order until the Court rules on the motion. If either
party fails to file such a motion within the prescribed time, the disputed information shall retain its
Confidential designation and shall thereafter be treated as Confidential Information in accordance
with this Protective Order. In connection with a motion filed under this provision, the party
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designating the information as Confidential Information shall bear the burden of establishing that
good cause exists for the disputed information to be treated as Confidential Information.
12.

Subject to the Federal Rules of Civil Procedure and any other applicable law, the

use of Confidential Information in this Lawsuit shall not cause the information to lose its
confidential status. Any party that wishes to file Confidential Information with the Court must
move the Court to file such information under restricted access pursuant to D.C.COLO.LCivR 7.2.
13.

If a party receives a request, including but not limited to a subpoena in a legal or

administrative proceeding, for the production of Confidential Information provided by another
party or a nonparty, that party shall promptly notify the party or nonparty who provided the
Confidential Information or its counsel, shall permit the producing party or nonparty to assert all
appropriate objections, and shall decline to produce the Confidential Information on the basis of
this Protective Order except upon Court order entered after the notice and procedures set forth
above have been followed.
14.

In the event of inadvertent production or disclosure of any Document that the

producing party believes should have been designated Confidential, the producing party may, upon
discovery of such inadvertent disclosure or production, request the marking of any such Document
as Confidential and thereafter such Document and all copies thereof shall be subject to the
provisions of this Protective Order respecting the treatment of Confidential Information.
15.

In the event of an inadvertent disclosure of any Document that is subject to a claim

by the producing party that the Document should have been marked Confidential prior to its
production, or that the Document should have been withheld from disclosure as privileged or work
product or by reason of some other limitation upon disclosure authorized by law, the disclosure of

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such Document shall extend only to the Document so inadvertently disclosed or produced and
shall not extend to or affect the right to designate as Confidential, or to withhold from production
as privileged or work product, any other Document, even though such Documents may relate to the
same transaction or subject matter as the Document inadvertently disclosed.
16.

Any attorney-client privileged or work product Document inadvertently disclosed

shall be returned to the producing party upon request, and all copies and materials including
information from such Document shall be returned or destroyed, upon the parties agreeing that, or
there being an order entered that: (a) such Document is protected by the attorney-client privilege or
constitutes protected work product; and (b) such Document was inadvertently produced. Upon the
date of receipt by the receiving party of a claim of inadvertent production, the privileged or work
product status shall be deemed to be restored, and the Document shall not be further disclosed or
used except in connection with any proceedings contemplated in this paragraph, until the parties
agree otherwise or the Court rules on the issue. The receiving party shall not be deemed to have
violated this Protective Order with respect to any use of such privileged or work product
Document on a date prior to the making of such request for return of such Document.
17.

At the conclusion of this Lawsuit, 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 Documents designated as Confidential, the
destroying party shall provide all parties with an affidavit confirming the destruction.

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18.

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.

DATED this 1st day of February, 2016.
BY THE COURT:

Kathleen M. Tafoya
United States Magistrate Judge

APPROVED:
HOLLAND & HART LLP

EDGAR LAW FIRM LLC

By: /s/ Craig Stewart
Craig Stewart, P.C.
Claire E. Wells Hanson
555 Seventeenth Street, Suite 3200
Denver, CO 80202
Tel: [phone]
[e-mail]
[e-mail]

By: /s/ David W. Edgar
David W. Edgar, #41956
1850 Lincoln Street, Suite 1100
Denver, CO 80203
Tel: [phone]
[e-mail]

Attorneys for Defendant

Attorneys for Plaintiff

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EXHIBIT A
ACKNOWLEDGEMENT OF RECEIPT AND UNDERSTANDING

I, ____________________________, have read and understand the Stipulated Confidentiality
Agreement and Protective Order entered in the Nanda v. Phillips 66 Company matter (Case No.
1:15-cv-02108), and hereby agree to comply with and be bound by the terms and conditions of
said Order, unless and until modified by further order of the Court. I will not disclose to any
individuals, other than those specifically authorized by the Court or in the Order, any documents
or information designated as Confidential Information pursuant to the Order which is disclosed
to me. Nor will I copy, use or disclose any documents or information designated as Confidential
Information pursuant to the Order except for the purposes of this lawsuit and/or any rights of any
of the parties related to this lawsuit and as authorized by the Order. I hereby consent to the
jurisdiction of the Court in this case for purposes of enforcing this Order.

Dated: _________________ By: ___________________________________________
[SIGNATURE]

Print Name:

___________________________________

Print Address: ___________________________________
___________________________________

8431700_1 

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