Arrow Electronics, Inc. v. Arrow Partnership, LLC

Filing 29

STIPULATED PROTECTIVE ORDER by Judge R. Brooke Jackson on 2/26/16. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02370-RBJ
ARROW ELECTRONICS, INC.,
Plaintiff,
vs.
ARROW PARTNERSHIP, LLC,
Defendant.

STIPULATED PROTECTIVE ORDER
Pursuant to Rule 26 of the Federal Rules of Civil Procedure and consistent with Federal
Rule of Evidence 502, Arrow Electronics, Inc., and Arrow Partnership, LLC, (individually
“Party” and collectively the “Parties”) hereby stipulate to the entry of this Protective Order.
1.

The Parties have reviewed Judge Jackson’s Practice Standards, including as they

relate to protective orders, the filing of confidential information, and requests for restricting
public access to such information. The Parties agree to abide by these practice standards in their
filings with the Court.
2.

This Protective Order shall govern the exchange and disclosure of all information

which is or has been produced or discovered in this litigation, including but not limited to
documents (regardless whether in electronic or hard copy format), deposition testimony, and
written discovery responses (“Discovery Materials”). The Parties agree that all
CONFIDENTIAL and ATTORNEYS’ EYES ONLY Discovery Materials exchanged during the

course of this litigation shall be used by the receiving party solely for the prosecution or defense
of this litigation.
3.

As used herein, the following definitions shall apply:
a)

“CONFIDENTIAL” means any Discovery Materials that are personal or
private or confidential information relating to any Party or any Party’s
employees, managers, or agents (including personal financial information,
social security numbers, personal medical information); and

b)

“ATTORNEYS’ EYES ONLY” means any Discovery Materials that:
(i)

(ii)

c)

shall be deemed proprietary business information including but not
limited to customer, and supplier information and mailing lists
including names and addresses and contact information, customer
and supplier (including equipment and other suppliers) sales
history and account information, company information, tax returns,
technical and operational information including protocols,
processes, and procedures, not known to the general public; and
if inspection of a Party’s computer is permitted, all electronic data,
information or documents retrieved from a Party’s computers
during said inspection will be considered “ATTORNEYS’ EYES
ONLY” during the inspection. Within ten (10) business days after
the conclusion of the inspection, producing counsel must
appropriately designate any data, information, or documents as
“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” otherwise
the receiving Party may treat it as non-confidential subject to the
terms of this Protective Order.

No Discovery Materials shall be regarded as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY if:
(i)

it is in the public domain at the time of disclosure as evidenced by
a written document or becomes part of the public domain, through
no fault of the receiving Party; or

(ii)

the receiving Party can establish that a written document
containing the Discovery Material was rightfully in its possession
prior to its disclosure by the producing Party.

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4.

Discovery Materials designated as CONFIDENTIAL by a Party may be disclosed

only to the following persons (hereinafter referred to as “Qualified Personnel—
CONFIDENTIAL”):
(a)

Up to two (2) party representatives identified in advance of receiving the

CONFIDENTIAL Discovery Materials Information but only to the extent counsel determines in
good faith that the representatives’ assistance is reasonably necessary in preparation or trial of
this action;
(b)

In-house attorneys employed by the Parties and directly involved in

preparation or trial of this action, and their assistants, associates, paralegals, clerks, and
employees specifically acting at the direction of the aforementioned in-house attorneys to assist
them in preparation or trial of this action;
(c)

All outside attorneys engaged by the Parties, and their assistants,

associates, paralegals, clerks, and employees specifically acting at the direction of counsel to
assist such counsel in preparation or trial of this action;
(d)

Contractors and vendors specifically engaged for the limited purpose of

making copies of Discovery Materials or organizing and processing Discovery Materials;
(e)

The Court, its personnel, and any agents of the Court, including any court

reporter or videographer used during trial, hearing, or depositions in this matter;
(f)

Independent experts and consultants retained by any Party whose

assistance is necessary in preparation or trial of this action;

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(g)

At any deposition or hearing in this matter, witnesses (i) whose name

appears on the document as having previously sent or received such CONFIDENTIAL
Discovery Materials, or (ii) for whom it is clear from other facts and circumstances had prior
lawful access to such CONFIDENTIAL Discovery Materials (said witnesses also are subject to
this Protective Order);
(h)

Any other person expressly agreed to by the producing Party in writing or

during the course of a recorded or transcribed deposition or Court hearing;
(i)

Any attorney working for an insurance company that may be liable to

satisfy all or part of a possible judgment, who is working on this case, and his or her assistants,
associates, paralegals, and clerks specifically acting at the direction of the aforementioned
attorney to assist in evaluating the case for purposes of providing coverage and/or a defense.
5.

Discovery Materials designated as ATTORNEYS’ EYES ONLY by a Party may

be disclosed only to the persons (hereinafter referred to as “Qualified Personnel—
ATTORNEYS’ EYES ONLY”) identified in the preceding subparagraphs 4(c)-(i) and Christos
Yatrakis, Alan Chan, and Mark Thostenson of Arrow Electronics, Inc., and Chan Pollock of
Arrow Partnership, LLC.
6.

Disclosure shall be made to persons identified in Paragraph 4 or 5 above only as

necessary for this litigation, and only after the person to whom disclosure is made has been
informed of the Protective Order, and has agreed in writing to be bound by it, by signing the
form of acknowledgment attached to this Protective Order as Exhibit A-Acknowledgement. The
terms of this Protective Order shall be explained to such persons by the persons disclosing the
Discovery Materials. With the exception of acknowledgments executed by consulting, non-

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testifying experts and persons covered by Paragraph 4(b), (c), (e), and (g), each executed
acknowledgment shall be promptly served upon the Party whose CONFIDENTIAL or
ATTORNEYS’ EYES ONLY Discovery Materials are disclosed.
7.

A Party may designate Discovery Materials as either “CONFIDENTIAL” or

“ATTORNEYS’ EYES ONLY” by placing or affixing the words “CONFIDENTIAL” or
“ATTORNEYS’ EYES ONLY” on all Discovery Materials. All such designations and markings
must be applied prior to the time the Discovery Materials are produced to the receiving Party.
The receiving Party agrees to maintain the confidentiality associated with any CONFIDENTIAL
or ATTORNEYS’ EYES ONLY Discovery Materials at all times.
8.

A Party shall designate Discovery Materials disclosed during any deposition in

this matter as “CONFIDENTIAL” or “ATTORNEYS EYES ONLY” by (i) notifying all Parties
either during the deposition or (ii) in writing, within fifteen (15) days of receipt of the transcript,
specifying the pages and lines of the transcript which are CONFIDENTIAL or ATTORNEYS’
EYES ONLY. Each Party shall attach a copy of such written notice to the face of the transcript
and each copy thereof in its possession, custody, or control.
9.

If a Party seeks to designate CONFIDENTIAL or ATTORNEYS’ EYES ONLY

Discovery Material as an exhibit, attachment, or otherwise make it a part of any filing with the
Court in this matter, the disclosing Party must first meet and confer with the designating Party no
later than five (5) business days prior to the filing deadline to discuss de-designating the
Discovery Material so that it may be included as part of the public record consistent with Judge
Jackson’s practice standards. The Parties will not unreasonably withhold consent to de-designate
Discovery Materials that contains information material to the merits of the case. If the Parties

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cannot reach agreement, the Parties shall set a conference with Judge Jackson to discuss whether
a motion to file the documents under seal is needed. Any motion requesting leave to file
documents under seal shall comply with the requirements of D.C.COLO.LCivR 7.2 and
demonstrate that good cause exists to protect the information from public disclosure. The
attorneys of record also shall make reasonable efforts to redact CONFIDENTIAL or
ATTORNEYS’ EYES ONLY material and file such redacted copies for the public record.
10.

Nothing in this Protective Order shall be construed as precluding a Party from

seeking additional protection from the Court against the disclosure or production of any other
confidential information, including an order that such information not be disclosed or that it be
disclosed only in a designated manner.
11.

Nothing in this Protective Order precludes or limits a Party from viewing, using

or disclosing its own CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents.
12.

The use of CONFIDENTIAL or ATTORNEYS’ EYES ONLY documents or

information at trial or hearing shall be addressed in any pre-trial or pre-hearing order or by a
stipulation submitted by the Parties to comport with the Court’s pre-trial or pre-hearing filing
deadlines.
13.

The agreement of the Parties to this Protective Order shall not be construed as an

agreement or admission: (i) that any material or document designated as CONFIDENTIAL or
ATTORNEYS’ EYES ONLY is, in fact, CONFIDENTIAL or ATTORNEYS’ EYES ONLY; (ii)
as to the correctness or truth of any allegation made or position taken relative to any matter
designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY; or (iii) with respect to the

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authenticity, competency, relevance, materiality, or admissibility of any Discovery Material
designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY.
14.

Nothing shall prevent disclosure beyond the terms of this Protective Order if any

Party expressly consents to such disclosure, either in writing or in the record of any proceeding
in this litigation, or if the Court, after notice to all affected parties, orders such disclosure.
15.

The attorneys of record are responsible for employing reasonable measures to

control access to and distribution of all Discovery Materials exchanged in this litigation.
16.

Upon the termination of this litigation, the provisions of this Protective Order

shall continue to be binding. In addition to being a Court Order, this document is also a legally
binding private contract between and amongst the Parties hereto and shall survive dismissal or
other termination of this litigation.
17.

Within thirty (30) days after this litigation is terminated, the Parties or any

witnesses or other persons having received any Discovery Materials subject to this Protective
Order shall return or destroy these items, at the option of the disclosing Party. The Parties may
keep attorney work product that refers or relates to any Discovery Materials and a complete set
of all documents filed with the Court.
18.

If, by inadvertence, a Party produces CONFIDENTIAL or ATTORNEYS’ EYES

ONLY Discovery Material without CONFIDENTIAL or ATTORNEYS’ EYES ONLY
designations, the producing Party may request that those materials be treated as
CONFIDENTIAL or ATTORNEYS’ EYES ONLY and the receiving Party agrees to treat the
Discovery Material as such. The producing Party will reproduce the Discovery Material with
appropriate designations. Disclosure of CONFIDENTIAL or ATTORNEYS’ EYES ONLY

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Discovery Material prior to receipt of a written notice of the inadvertent disclosure shall not be
deemed a violation of this Order. However, the receiving Party shall undertake its best efforts to
retrieve all copies of inadvertently disclosed CONFIDENTIAL or ATTORNEYS’ EYES ONLY
Discovery Material in the possession of persons not authorized by this Order.
19.

The Parties also acknowledge and stipulate to the applicability of Federal Rule of

Civil Procedure 26(b)(5)(B) and Federal Rule of Evidence 502 concerning the inadvertent or
unintentional disclosure of any documents or information subject to a claim of privilege,
protection, or immunity (including but not limited to attorney-client privilege, work product
immunity, and immunities created by federal or state statute or regulation).
20.

Any Party can challenge a CONFIDENTIAL or ATTORNEYS’ EYES ONLY

designation, or a claim of privilege, by providing timely written notice to the designating Party
setting forth the grounds upon which the challenging Party’s position rests. A Party may only
seek relief from the Court if, after meeting and conferring with counsel for the designating Party,
the dispute is unresolved. The Parties may then seek judicial relief consistent with the Local
Rules and Judge Jackson’s standard practices governing discovery disputes. During the
pendency of any such dispute, the challenging Party shall respect the designation or claim made
consistent with the terms of this Protective Order.
21.

This Protective Order shall not bar any attorney in the course of rendering advice

to his or her client with respect to this litigation from conveying to the client general conclusions
or observations formed as a result of considering CONFIDENTIAL or ATTORNEYS’ EYES
ONLY Discovery Materials; provided, however, that in rendering such advice and otherwise
communicating with the client, the attorney shall not disclose the specific contents, directly or

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indirectly, of any Discovery Materials, which disclosure would be contrary to the terms of this
Protective Order.
22.

By entering into this Protective Order the Parties do not intend to waive any

objections raised in response to discovery or any rights otherwise afforded to the Parties under
the Federal and Local Rules of Civil Procedure or Federal Rules of Evidence, nor does this
Protective Order in any way obligate any Party to produce any specific documents or records in
the future which a Party deems inappropriate for production.
23.

The Parties, by their respective representatives, hereby agree and stipulate to each

of the terms and conditions as set forth in the foregoing Protective Order.
February 25, 2016

Respectfully submitted,
/s/ Scott W. Johnston
Scott W. Johnston
MERCHANT & GOULD P.C.
3200 IDS Center
80 South 8th Street
Minneapolis, MN 55402-2215
Phone: [phone]
[e-mail]

/s/ Hope Hamilton
Hope Hamilton
Adam A. Hubbard
HOLLAND & HART LLP
1800 Broadway, Suite 300
Boulder, Colorado 80302
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

Dana P. Jozefczyk
MERCHANT & GOULD P.C.
1801 California Street, Suite 3300
Denver, CO 80202
Phone: [phone]
[e-mail]

ATTORNEYS FOR PLAINTIFF

ATTORNEYS FOR DEFENDANT
SO ORDERED this 26th day of February, 2016.
BY THE COURT:
__________________________________________
United States District Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-02370-RBJ
ARROW ELECTRONICS, INC.,
Plaintiff,
vs.
ARROW PARTNERSHIP, LLC,
Defendant.

EXHIBIT A – ACKNOWLEDGEMENT
I, ________________________, have reviewed the Protective Order entered in the above
case and am a person as defined in paragraph 4. I understand and agree to abide by the terms of
the Protective Order. I hereby submit to the jurisdiction of the above captioned court for
enforcement of that Protective Order. I understand that all Discovery Materials shall not be
disclosed or used, pursuant to terms of this Protective Order, and that all such information must
be destroyed or returned to the producing party following the resolution of this case. I
understand and acknowledge that violation of the Protective Order may result in penalties for
contempt of court.
Name:
Title:
Address:

Date: __________________________
8512488_1

Signature: _________________________________