Spencer v. Capital Safety USA d/b/a DBI-Sala Protecta et al

Filing 33

PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 02/05/2016. (mdave, )

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02355-REB-MEH

RICHARD D. SPENCER,
Plaintiff,
v.
CAPITAL SAFETY USA d/b/a DBI-SALA PROTECTA;
D B INDUSTRIES, LLC; and
JOHN DOES 1-10.
Defendants.

PROTECTIVE ORDER

Pursuant to Federal Rule of Civil Procedure 26(c), it is hereby agreed by and
between the parties, and Ordered by the Court, that the following provisions concerning
the confidential treatment of documents, answers to interrogatories, responses to
requests for production, responses to requests for admission, deposition testimony, and
other responses to discovery requests, shall apply in the above-captioned matter.
1.

Documents produced by either the Plaintiff or Defendant (individually

referred to as a “Party” or collectively as the “Parties”) to this litigation which contain
confidential information shall hereafter be referred to as “Protected Documents.” Any
document or any information designated as “CONFIDENTIAL” shall only be used,
shown, disseminated, or disclosed as provided in this Protective Order.
2.

As used in this Protective Order, the term “documents” means all

materials as defined in Federal Rule of Civil Procedure 34(a).

3.

Prior to designating any material as “CONFIDENTIAL,” a Party is required

to review the material and designate only that information it believes in good faith is
confidential

or

otherwise

entitled

to

protection.

Information

designated

as

“CONFIDENTIAL” shall be entitled to the protections afforded by this Protective Order
unless the designation is objected to in writing by an opposing Party. 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 by mutual agreement within ten (10) business days after the time the written
notice is received, it is 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.”
4.

The designation of Protected Documents may be made by marking or

placing the notice “CONFIDENTIAL” or substantially similar notice, on the document.

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5.

Protected Documents and any copies thereof received by a “Qualified

Person” as set forth in paragraph 6, below, shall be used only for preparation for the trial
of this matter, subject to the limitations set forth herein.
6.

Protected Documents shall be disclosed only to “Qualified Persons.”

Qualified Persons are limited to:
(a) Counsel of Record for the parties and the parties;
(b) Non-technical and clerical staff employed by Counsel of Record and
involved in the preparation and trial of this action;
(c) Experts and non-attorney consultants retained by the parties for the
preparation or trial of this case, provided that no disclosure shall be
made to any expert or consultant who is employed by a competitor of
Defendant;
(d) The Court, the Court’s staff, witnesses and the jury of this case; and,
(e) Stenographic reporters who are engaged in proceedings necessarily
incident to the conduct of this action.
(f) Deponents, witnesses, or potential witnesses; and
(g) Other persons by written agreement of the Parties.
7.

Before receiving access to any Protected Document or the information

contained therein, each person described in paragraphs 6(c), (e), (f), and (g) above
shall be provided with a copy of this Protective Order and execute a “Written
Assurance” in the form contained in Exhibit A, attached hereto. Counsel for the parties
will retain the Written Assurance and will keep a list of all persons who have received

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Protected Documents for inspection by the Court and, upon order of the Court, Counsel
of Record for the Parties.
8.

To the extent that Protected Documents or information obtained therefrom

are used in the taking of depositions and/or used as exhibits at trial, such documents or
information shall remain subject to the provisions of this Protective Order, along with the
transcript pages of the deposition testimony and/or trial testimony dealing with the
Protected Documents or information.
9.

Any stenographic reporter who records or transcribes testimony in this

action shall agree that all “CONFIDENTIAL” information designated as such under this
Protective Order shall remain confidential and shall not be disclosed by them, except
pursuant to the terms of this Protective Order, and that any notes or transcriptions of
such testimony (and any accompanying exhibits) will be retained by the reporter or
delivered to Counsel of Record.
10.

Nothing contained in this Protective Order shall prevent any Party from

making disclosures beyond its terms if (a) the producing Party of confidential
information or documents consents in writing to such disclosure, or (b) such disclosure
is otherwise required by lawful subpoena or order issued by a court of competent
jurisdiction, or (c) this Court, after notice to all affected parties, orders such disclosure.
11.

Any Party may utilize confidential information or documents produced in

this matter as part of any motion, affidavit, brief, memorandum of law, or other
document filed with the Court in this litigation provided that any such information or
documents utilized shall be marked “CONFIDENTIAL” and filed and served in

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accordance with D.C.COLO.L.Civ.R 7.2, with Level 1 Restricted Access, and shall be
maintained under seal by the Court.
12.

Nothing in this Protective Order shall be deemed to control the manner in

which the Protected Documents should be handled at Trial or on Appeal. Such matters
shall be decided at a later date. The production or disclosure of confidential information
or documents, whether done voluntarily, through discovery, or by order of the Court,
does not constitute a waiver of any Party’s right to object to the admission or use of
such confidential information at a hearing or at the trial of this matter. Unless otherwise
agreed to in writing by the Parties or ordered by the Court, all proceedings involving or
relating to confidential information and documents shall be subject to the provisions of
this Protective Order.
13.

Inadvertent or unintentional production of documents or information

containing information which should have been designated as “CONFIDENTIAL” shall
not be deemed a waiver in whole or in part of a Party’s claims of confidentiality.
14.

This Protective Order may not be waived, modified, abandoned or

terminated, in whole or in part, except by an instrument in writing signed by the Parties.
If any provisions of this Protective Order shall be held invalid for any reason
whatsoever, the remaining provisions shall not be affected thereby.
15.

After termination of this litigation, the provisions of this Order shall

continue to be binding.

No Qualified Person or other recipient of confidential

information and documents shall copy, duplicate, or otherwise retain any confidential
information or documents other than for use solely for purposes of this litigation. Within
sixty (60) days from the date of entry of final judgment or order of dismissal in this
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litigation, each Qualified Person or recipient of any confidential information and
documents shall return to counsel for the producing party any all copies of confidential
information and documents, or the persons may elect to destroy confidential documents
and information. In the event the Parties agree to destroy confidential information and
documents, the destroying Party shall provide all Parties with an affidavit confirming the
destruction.
16.

Nothing in this Protective Order shall affect the right of any Party to make

objections or provide other responses permitted by the Federal Rules of Civil Procedure
to any interrogatory, request for production, request for admission, question at a
deposition, or other discovery request, except for matters of confidentiality which have
been addressed in this Protective Order.

Nothing in this Protective Order shall

constitute a ruling on such objection or other response made by a Party.
17.

This Protective Order shall be binding upon the parties hereto, upon their

attorneys, and upon the parties’ and their attorneys’ successors, executors, personal
representatives, administrators, heirs, legal representatives, assigns, subsidiaries,
divisions,

employees,

agents,

independent

contractors

or

other

persons

or

organizations over which they have control.
18.

All persons described in paragraph 6 above shall not under any

circumstance sell or offer for sale either the Protected Documents or the confidential
information contained therein. This paragraph does not prohibit disclosure of the fact
that Protected Documents are possessed (as distinguished from disclosure of the
substance of such documents) to potential Qualified Persons so long as the provisions

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of this Protective Order are complied with in full prior to disclosure of the actual
Protected Documents or confidential information.
19.

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 5th day of February, 2016.
BY THE COURT:

s/ Michael E. Hegarty
United States Magistrate Judge

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EXHIBIT A
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02355-REB-MEH

RICHARD D. SPENCER,
Plaintiff,
v.
CAPITAL SAFETY USA d/b/a DBI-SALA PROTECTA;
D B INDUSTRIES, LLC; and
JOHN DOES 1-10.
Defendants.

WRITTEN ASSURANCE

Affidavit of

, being duly sworn and personally

appearing before the undersigned notary public, duly authorized by law to administer
oaths, deposes and states that the within statements are true and correct.
1.

I have read the Protective Order attached hereto and I understand its

terms and meanings.
2.

I agree that my signature below submits me to the jurisdiction of the

United States District Court for the District of Colorado where the case styled Richard
Spencer v. Capital Safety USA d/b/a DBI-SALA Protecta, District Court of Colorado, 901
19th Street, Denver, Colorado, Case No. No. 1:15-cv-02355-REB-MEH is pending, and
binds me to the provisions of the Protective Order, including to all promises undertaken
in the Order, as if original agreed to by me.
3.

I agree that within sixty (60) days from the date of entry of final judgment

or order of dismissal in this litigation, I will return to counsel for the producing party any
all copies of confidential information and documents, or destroy confidential documents

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and information. In the event I agree to destroy confidential information and documents,
I will provide all Parties with an affidavit confirming the destruction.

FURTHER SAYETH AFFIANT NOT.

, Signature
, Please print name

Subscribed and sworn to before me by
_____________, 20____.

this _____ day of

My Commission Expires:

_________________________________
Notary Public

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