Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00860-WDM-PAC

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Filed 07/06/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-WM-860 (PAC) ROBERT ALWARD Plaintiff, v. VAIL RESORTS, INC., a Colorado corporation; VAIL CORPORATION, INC. D/B/A/ VAIL ASSOCIATES INC., a Colorado corporation; VR HOLDINGS, INC., a Colorado corporation; and WILLIAM JENSEN, individually and in his official capacity as Senior Vice President and Chief Operating Officer of Vail Resorts, Inc. Defendants. ______________________________________________________________________________ PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO MOTION FOR PROTECTIVE ORDER ______________________________________________________________________________ Plaintiff Robert Alward, by and through his attorneys, replies to Defendants' Response to Motion for Protective Order (Plaintiff's Motion): 1. Defendants are mistaken--During the court hearing on November 23, 2004,

defendants' counsel made an oral motion for entry of a protective order. The court responded by describing the "standard protective order" that she orders, and instructed counsel for defendants to "draft that up and submit it to [the court]" and further stated that the court would "sign it". Counsel for defendants agreed to do so:
MS. KUHLMANN: And, Judge, we will need to get a protective order in place to cover the privacy of those individuals' information before the files are reviewed, which should be hopefully relatively simple to do. THE COURT: The standard protective order that I order for personnel files is that the information can be used for purposes of the case. At the end of the case, all copies made are returned to the employer, and they're to be kept confidential. They can be used in discussions with your client to get ready for the case, but that's it. MS. KUHLMANN: Okay.

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THE COURT: Well, and experts, too. So if you draft that up and submit it to me, I'm sure I can sign it and get that answered quickly. MS. KUHLMANN: Okay.

Transcript of November 23, 2004 Hearing [Docket #123], 22:17 to 23:6 (emphasis added) (copy of excerpt attached as Exhibit A for the court's convenience). 2. In fact, defendants never did prepare the written protective order as instructed by

the court on November 23, 2004. 3. On January 25, 2005, the court further ordered that all plaintiff's medical and

employment information, including such information defendants obtained pursuant to the medical and employment releases plaintiff signed, would also be subject to the protective order, which the court assumed, incorrectly, was already in place:
THE COURT: Okay. So he would need to--if that's what request for production No. 10 says, then he would need to provide that information. And then the defendants can obtain it. Now, any medical information obtained as a result of these releases and the employment files are going to be produced under protective order, but not attorneys' eyes only. They'll be produced under protective order because they may contain sensitive information, and I don't want to unduly jeopardize Mr. Alward's sense of privacy that he may have in both--both types of records. So they will be produced under the protective order, which I think is already in place. You can use it for purposes of this case for experts, for witnesses. They'll be told to keep the information confidential. And then it will be all returned to the releasing party at the conclusion of this case.

Transcript of January 25, 2005 Hearing [Docket # 122], 82:21 to 83:8 (copy of excerpt attached as Exhibit B for the court's convenience). 4. Similarly, on May 4, 2005, during the continuation of plaintiff's deposition, the

court reiterated the January 25, 2005 order that "Any medical information obtained as a result of the releases and employment records will be produced under the protective order already in place in this case. The information can be used for the purposes of this case only. Witnesses and experts will be told to keep the information confidential, and all documents will be returned to

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the releasing party at the conclusion of the case." Exhibit C, Deposition of Robert Alward, May 4, 2005 session ("Alward Dep."), 305:3-14. 5. In addition, the court also granted plaintiff's designation as confidential, subject

to protective order, all information regarding plaintiff's skate blade company, organization, clients, individuals who are testing the blade or were contacted regarding the blade, patent applications, and all other information regarding the organization, business, patent, and marketing of the skate blade. Ex. C, Alward Dep., 326:8-21. 6. Despite this record, defendants now take the position that they may use

information obtained in this lawsuit which the court has ordered is subject to protective order, for purposes beyond the scope of those orders. Specifically, Defendants do not agree that the testimony obtained from Dr. Steadman is subject to protective order, or that plaintiff's medical records may not be used for the purposes of the pending workers' compensation claim, 7. By letter faxed to defendants on May 13, 2005, plaintiff's counsel confirmed the

scope of the protective order as set forth during the May 4, 2005 deposition of the plaintiff. Exhibit D. Defendants' counsel responded by letter dated May 16, 2005, and indicated for the first time that they did not agree with the scope of the confidentiality order articulated by plaintiff. Exhibit E. Plaintiff responded the same day, in an attempt to confer with defendants about the scope of the protective order, and enclosed a draft of the proposed order. Exhibit F. Defendants' counsel never responded. Consequently, plaintiff filed his Motion on May 18, 2005. 8. Accordingly, in the interest of consistency and in compliance with the court's

instruction at the November 23, 2004 hearing that a written order should be submitted and entered by the court, the proposed order is necessary.

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9.

The proposed order merely synthesizes the court's verbal protective orders,

including the orders issues during plaintiff's deposition. The form of order is consistent with the standard orders used by other magistrate judges in this District. 10. The fact that the defendants now oppose the entry of such a benign protective Without such an order, the court cannot enforce the

order underscores its necessity.

confidentiality of plaintiff's medical information and the confidential business information, which was the subject of testimony by the plaintiff and his treating physician, Dr. Steadman. 11. Moreover, defendants' opposition to the entry of a written protective order also

constitutes a change of circumstances that requires it. Defendants do not say why they oppose entry of the protective order, which by their own admission is consistent with the court's verbal orders. The key difference, perhaps, seems to be the protection afforded the deposition testimony by Dr. Steadman and the plaintiff regarding the medical documents and information, which the court previously deemed confidential. Apparently, defendants oppose the written proposed protective order because they intend to use that deposition testimony outside of this case--likely for the pending workers' compensation case. The court must not allow this, because to permit defendants to use the testimony about confidential documents and information--especially plaintiff's medical records--has the result of nullifying the protection the court ordered in November 2004 and January 2005. Defendants' opposition to the entry of the protective order indicates that they intend to interpret your honor's orders very narrowly, and do not consider the deposition testimony to be within the scope of the current order. Thus, defendants' refusal to abide the intent of the protective order contemplated by the court constitutes a change in circumstances which mandates entry of the written protective order plaintiff proposes in this Motion.

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12.

Because there is no written protective order entered in this case, Plaintiff's

Motion is properly considered a request for such an order, as the court contemplated and instructed defendants to do more than seven months ago. WHEREFORE for the reasons stated above and in Plaintiff's Motion for Entry of Protective Order, the plaintiff respectfully requests the court promptly enter in this case the proposed Protective Order attached to plaintiff's Motion. Dated this 6th day of July 2005. McCLAIN DREXLER, LLC By _/s/ Nina H. Kazazian Nina H. Kazazian Of Counsel 1700 Lincoln Street Suite 3850 Denver, Colorado 80203-4538 Telephone: (303) 860-8400 Email: [email protected] ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that on this 6h day of July 2005, a true and correct copy of the foregoing PLAINTIFF'S REPLY TO DEFENDANTS' RESPONSE TO MOTION FOR PROTECTIVE ORDER was filed with the Clerk of Court via the ECF electronic filing system, which will send notification of the filing to the defendants, addressed to the following: Sherri Heckel Kuhlmann Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 [email protected]

/s/ Nina H. Kazazian

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