Pugh v. Elwood Staffing
Filing
16
Stipulation and Protective Order. Signed by Judge John L. Kane on 02/29/16. (jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-CV-2212-JLK
PATTI PUGH, individual,
Plaintiff,
v.
ELWOOD STAFFING D/B/A SOS EMPLOYMENT GROUP, A/K/A SOS STAFFING
SERVICES, an Indiana corporation,
Defendant.
STIPULATION AND PROTECTIVE ORDER
Kane, J.
Each Party and each Counsel of Record stipulate and move the Court for a Protective
Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment
of Confidential Information (as hereinafter defined), and, as grounds therefor, state as follows:
1.
In this action, at least one of the Parties has sought and/or is seeking
Confidential Information (as defined in paragraph 2 below). The Parties also anticipate seeking
additional Confidential Information during discovery and that there will be questioning
concerning Confidential Information in the course of depositions.
The Parties assert the
disclosure of such information outside the scope of this litigation could result in significant
injury to one or more of the Parties’ business or privacy interests. The Parties have entered into
this Stipulation and request the Court enter the within Protective Order for the purpose of
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preventing the disclosure and use of Confidential Information except as set forth herein.
2.
“Confidential Information” means any document, file, portions of files,
transcribed testimony, or response to a discovery request, including any extract, abstract, chart,
summary, note, or copy made therefrom - not made available to the public - and designated by
one of the Parties in the manner provided in paragraph 3 below as containing: (a) personnel
information concerning current and former employees of Defendant Elwood Staffing Services,
Inc., incorrectly identified as Elwood Staffing d/b/a SOS Employment Group, a/k/a SOS
Staffing Services (“Defendant” or “Elwood Staffing”), to the extent that such information
implicates privacy interests and is not generally known to the public; (b) proprietary business
information of the Defendant; (c) information containing industry trade secrets; and (d)
information relating to Plaintiff concerning personal and confidential matters not generally
known to the public, such as, but not limited to, income information, medical information, and
information regarding contacting prospective employers.
3.
Where Confidential Information is produced, provided or otherwise disclosed
by a Party in response to any discovery request, it will be designated in the following manner:
a.
By imprinting the word “Confidential” on the first page or cover of any
document produced;
b.
By imprinting the word “Confidential” next to or above any response to a
discovery request; and
c.
With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential” no later
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than ten calendar days after receipt of the transcribed testimony.
4.
All Confidential Information provided by a Party in response to a discovery
request or transcribed testimony shall be subject to the following restrictions:
a.
It shall be used only for the purpose of this litigation and not for any
business or other purpose whatsoever;
b.
It shall not be communicated or disclosed by any Party’s counsel or a
Party in any manner, either directly or indirectly, to anyone except for
purposes of this case and unless an affidavit in the form of Exhibit A has
been signed.
5.
The Parties further anticipate seeking Confidential – Attorneys’ Eyes Only
Information (as defined by Paragraph 6 below) during discovery and that there will be
questioning concerning Confidential – Attorneys’ Eyes Only Information in the course of
depositions. The Parties’ assert the disclosure of such information outside the scope of this
litigation could result in significant injury to one or more of the Parties’ business or privacy
interests.
6.
“Confidential – Attorneys’ Eyes Only Information” means any document, file,
portions of files, transcribed testimony, or response to a discovery request, including any
extract, abstract, chart, summary, note, or copy made therefrom – not made available to the
public – and designated by one of the Parties in a manner provided in paragraph 7 below as
containing information relating to highly sensitive personal and confidential matters not
generally known to the public.
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7.
Where Confidential – Attorneys’ Eyes Only Information is produced, provided
or otherwise disclosed by a Party in response to any discovery request, it will be designated in
the following manner:
a.
By imprinting the phrase “Confidential – Attorneys’ Eyes Only” on the
first page or cover of any document produced;
b.
By imprinting the phrase “Confidential – Attorneys’ Eyes Only” next to
or above any response to a discovery request; and
c.
With respect to transcribed testimony, by giving written notice to
opposing counsel designating such portions as “Confidential –
Attorneys’ Eyes Only” no later than ten calendar days after receipt of
the transcribed testimony.
8.
Access to and viewing of any document marked “Confidential – Attorneys’
Eyes Only” received by the nonproducing Party, and any information contained in any such
document, shall be restricted to the following persons:
a.
Attorneys actively working on the case;
b.
Persons regularly employed or associated with the attorneys 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.
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;
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d.
The Court and its employees;
e.
Stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action; and
f.
9.
Other persons by written agreement of all Parties.
Where disclosure of Confidential Attorneys’ Eyes Only Information is made by
agreement of all Parties under subsection (f) of Paragraph 8 above or to expert witnesses and
consultants under subjection (c) of Paragraph 8 above, any such disclosure shall require
execution of an affidavit in the form of Exhibit A.
10.
Individuals authorized to review Confidential Information or Confidential –
Attorneys’ Eyes Only Information pursuant to this Protective Order shall hold such information
in confidence and shall not divulge the Confidential Information or Confidential – Attorneys’
Eyes Only Information, either verbally or in writing, to any other person, entity or government
agency unless authorized to do so by court order.
11.
The Party’s counsel who discloses Confidential Information or Confidential –
Attorneys’ Eyes Only Information shall be responsible for assuring compliance with the terms
of this Protective Order with respect to persons to whom such Confidential Information or
Confidential – Attorneys’ Eyes Only Information is disclosed and shall obtain and retain the
original affidavits signed by qualified recipients of Confidential Information or Confidential –
Attorneys’ Eyes Only Information, and shall maintain a list of all persons to whom any such
information is disclosed.
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12.
During the pendency of this action, opposing counsel may upon court order or
agreement of the parties inspect the list maintained by counsel pursuant to paragraph 11 above
upon a showing of substantial need in order to establish the source of an unauthorized
disclosure of Confidential Information or Confidential – Attorneys’ Eyes Only Information and
that opposing counsel are unable otherwise to identify the source of the disclosure. If counsel
disagrees with opposing counsel’s showing of substantial need, then counsel may seek a court
order requiring inspection under terms and conditions deemed appropriate by the Court.
13.
No copies of Confidential Information or Confidential – Attorneys’ Eyes Only
Information shall be made except by or on behalf of counsel in this litigation and such copies
shall be made and used solely for purposes of this litigation.
14.
During the pendency of this litigation, counsel shall retain custody of
Confidential Information and Confidential – Attorneys’ Eyes Only Information, and copies
made therefrom pursuant to paragraph 138 above.
15.
If opposing counsel objects to the designation of certain information as
Confidential Information or Confidential – Attorneys’ Eyes Only Information, he or she shall
promptly inform the other parties’ counsel in writing of the specific grounds of objection to the
designation. All counsel shall then, in good faith and on an informal basis, attempt to resolve
such dispute. If after such good faith attempt, all counsel are unable to resolve their dispute,
opposing counsel may move for a disclosure order consistent with this order. Any motion for
disclosure shall be filed within 14 days of receipt by counsel of notice of opposing counsel's
objection, and the information shall continue to have Confidential Information or Confidential –
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Attorneys’ Eyes Only Information status from the time it is produced until the ruling by the
Court on the motion.
16.
Use of Confidential Information or Confidential – Attorneys’ Eyes Only
Information in Court Proceedings: In the event Confidential Information or ConfidentialAttorneys’ Eyes Only Information is used in any court filing or proceeding in this action,
including but not limited to its use at trial, it shall not lose its confidential status as between the
parties through such use. Confidential Information and Confidential – Attorneys’ Eyes Only
Information and pleadings or briefs quoting or discussing Confidential Information Confidential
– Attorneys’ Eyes Only Information will not be accepted for filing “under seal” or otherwise
kept out of the public record in this action, however, except by court order issued upon motion
of the party seeking to file the documents under seal. Any motion requesting leave to file
documents under seal shall comply with the requirements of D.C.COLO.LCivR 7.2 and
demonstrate that the Confidential Information or Confidential – Attorneys’ Eyes Only
Information at issue is entitled to protection under the standards articulated in Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598-602 (1978) (applied in United States v. Hickey, 767
F.2d 705, 708 (10th Cir. 1985) and Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461
(10th Cir. 1980)).
17.
The termination of this action shall not relieve counsel or other persons
obligated hereunder from their responsibility to maintain the confidentiality of Confidential
Information and Confidential- Attorneys’ Eyes Only Information pursuant to this Protective
Order, and the Court shall retain continuing jurisdiction to enforce the terms of this Protective
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Order.
18.
By agreeing to the entry of this Protective Order, the Parties adopt no position
as to the authenticity or admissibility of documents produced subject to it.
19.
Upon termination of this litigation, including any appeals, each Party’s counsel
shall immediately return to the producing party all Confidential Information and Confidential –
Attorneys’ Eyes Only Information provided subject to this Protective Order, and all extracts,
abstracts, charts, summaries, notes or copies made therefrom. At that time, counsel shall also
file under seal with this Court the list of individuals who have received Confidential
Information or Confidential – Attorneys’ Eyes Only Information which counsel shall have
maintained pursuant to paragraph 6 herein, and counsel shall provide the Court with verification
that any of counsel's work product referencing Confidential Information or Confidential –
Attorneys’ Eyes Only Information has been destroyed.
20.
Nothing in this Protective Order shall preclude any Party from filing a motion
seeking further or different protection from the Court under Rule 26(c) of the Federal Rules of
Civil Procedure, or from filing a motion with respect to the manner in which Confidential
Information or Confidential – Attorneys’ Eyes Only Information shall be treated at trial.
Dated at Denver, Colorado, this 29th day of February, 2016.
BY THE COURT:
JOHN L. KANE, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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STIPULATED AND AGREED TO:
s/ Mark J. Berumen
Mark J. Berumen
Kristen Kavan
Berumen Law Firm, P.C.
13900 East Harvard Avenue
Suite 108
Aurora, Colorado 80014
markberumen@berumenlaw.com
kristenenglert@berumenlaw.com
Attorneys for the Plaintiff
s/ Roger G. Trim
Roger G. Trim
Raul Chacon, Jr.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
1700 Lincoln Street
Suite 4650
Denver, Colorado 80203
roger.trim@ogletreedeakins.com
raul.chacon@ogletreedeakins.com
Attorneys for the Defendant
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EXHIBIT A
AFFIDAVIT
STATE OF COLORADO
COUNTY OF
)
)ss.
)
, swears or affirms and states under penalty of perjury:
1.
I have read the Protective Order in Patti Pugh v. Elwood Staffing d/b/a SOS
Employment Group, a/k/a SOS Staffing Services, Civil Action No. 15-cv-02212-JLK, a copy of which
is attached to this Affidavit.
2.
I have been informed by ___________________________, Esq., counsel for
_______________________, that the materials described in the list attached to this Affidavit are
Confidential Information or Confidential – Attorneys’ Eyes Only Information as defined in the
Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge to any person or
recording device any Confidential Information or Confidential – Attorneys’ Eyes Only Information
shown or told to me except as authorized in the Protective Order. I will not use the Confidential
Information or Confidential – Attorneys’ Eyes Only Information for any purpose other than this
litigation.
4.
For the purposes of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
5.
I will abide by the terms of the Protective Order.
____________________________________
Signature
___________________________________
(Print or Type Name)
Address:
____________________________________
____________________________________
Telephone No.: (
)
SUBSCRIBED
AND SWORN to before me
2016, by _________________________________________.
this
_____ day of __________,
WITNESS my hand and official seal.
[S E A L]
My Commission Expires:
___________________________________
Notary Public
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