Free Motion for Protective Order - District Court of Colorado - Colorado

Case 1:04-cv-00865-REB-CBS

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Filed 09/01/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv- 0865- REB- CBS
ESTATE OF APRil Hill , SCOTT Hill , personal representative; SCOTT Hill , as Conservator of the Estate of Katelyn Hill; and SCOTT Hill , individually,

Plaintiffs

AllSTATE INSURANCE COMPANY; MERASTAR INSURANCE COMPANY; AND PRUDENTIAL INSURANCE COMPANY OF AMERICA

Defendants.
STIPULATED PROTECTIVE ORDER
To expedite the flow of discovery material , to facilitate the prompt resolution of

discovery disputes , and to protect the confidentiality of documents produced or
information disclosed , the production of which could harm a party s competitive

standing, Plaintiff Scott Hil , Individually and as personal Representative of the Estate of

April Hil , and Conservator of the Estate of Katelyn Hill , and Defendant Allstate
Insurance Company, Defendant Merastar Insurance Company, and Defendant
Prudential Insurance Company of America , stipulate as follows:

The parties will follow the procedures set forth in this Stipulated Protective Order
with respect to disclosure of information ,

documents , or things in this litigation:

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Confidential Information.

As used in this Stipulated Protective Order CONFIDENTIAL" or
CONFIDENTIAL INFORMATION" shall mean any information , document , or thing that
a party (the " Designating Party ) furnishes in the course of this litigation and in good

faith designates as CONFIDENTIAL INFORMATION pursuant to Sections 1(b) to (d)

below.
A party may designate its answers to interrogatories, responses to requests for admissions, any documents produced in response to a request for
production of documents , subpoena duces tecum , or otherwise , or any other information

provided by it as CONFIDENTIAL INFORMATION by stamping the word

CONFIDENTIAL" upon the document , taking care to avoid obscuring any text , before

providing it to the opposing party. Information marked CONFIDENTIAL shall not be
utilized or disclosed by a receiving party (the " Receiving Party ), its attorneys , its

agents , or its employees , except in accordance with the terms of this Stipulated
Protective Order.
In the case of CONFIDENTIAL INFORMATION in a non- paper

medium , e. , video or audio tape , computer discs, CD- ROMs, DVDs , etc. , a party may
designate all information therein as CONFIDENTIAL by affixing a legend stating the
same to the outside of the medium or container.

To designate a portion of a deposition transcript as
CONFIDENTIAL , a Designating Party may either make a statement on the record to

that effect or , within twenty (20) business days after the deposition transcript is
delivered to the Designating Party, provide to all counsel written notice identifying the

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specific pages of the deposition transcript that counsel for the Designating Party in good

faith believes to contain CONFIDENTIAL INFORMATION. All deposition transcripts
shall be treated as CONFIDENTIAL INFORMATION until the expiration of the

twenty- day period. The portions so designated shall not be utilized or disclosed by the
other party, its agents , or its employees , except in accordance with the terms of this

Stipulated Protective Order. All parties shall mark their copies of the transcript by
stamping the word " CONFIDENTIAL" upon every page so designated.

Documents , testimony, evidence , and other matters may be
deemed CONFIDENTIAL INFORMATION if the substance of the documents , testimony,

evidence , or matter constitutes a trade secret or other confidential research
development , or commercial information , as defined by Fed. R. Civ. P. 26(c)(7); or
confidential medical or financial information of an individual.

Documents , testimony, evidence , and other matters shall not be deemed
CONFIDENTIAL INFORMATION if the substance of the documents , testimony,

evidence , or matter:
, at the time of disclosure by the Designating Party, already

in the possession of the Receiving Party, was not acquired from the Designating Party,

and has previously been released or produced by the Designating Party without a
Confidential" designation; or
i i.

has been made available to the Receiving Party, other than

through the discovery process, by a third- party who obtained the same by legal means
without any obligation of confidence to the Designating Party.

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CONFIDENTIAL INFORMATION shall not be disclosed to any
persons other than:

the attorneys for the Receiving Party in this litigation and

paralegal and clerical staff (whether employees or independent contractors) who are
assisting in the litigation;
i i.

the Receiving Party and officers , directors and/or employees

of the Receiving Party who have direct responsibility for assisting such counsel in the
preparation and trial of the action;
Hi.

court reporters , court officials, and the jury involved in this

litigation;
iv.

experts , consultants and investigators and their staff who are

retained by a party for purposes relating to this litigation and who have executed an Agreement in the form attached as Exhibit A; and
any other non- party witnesses or deponents who have

executed an Agreement attached as Exhibit A or who have been given a copy of and
agree on the record to abide by the Stipulated Protective Order.

CONFIDENTIAL INFORMATION received by any of the persons in the

categories listed above shall be used only for purposes of this liigation and for no other

purposes , including any other litigation , whether on the same issues in this case or
others , or for any business or personal purpose. Nothing in this Stipulated Protective
Order shall prevent the Designating Party from any use of its own CONFIDENTIAL

INFORMATION. CONFIDENTIAL INFORMATION may not be disclosed to the persons
described in Paragraph 1.f. iv-v , above , unless the party disclosing information to that

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person determines in good faith that the disclosure is necessary for the purpose of

developing testimony of such witness or deponent. CONFIDENTIAL INFORMATION
provided to a Receiving Party shall be securely maintained in the offices of that party

outside counsel. Any recipient of CONFIDENTIAL INFORMATION shall maintain such
information in a secure and safe area , and the recipient shall exercise due and proper

care with respect to the storage , custody, access and use of all such information. In

addition , any summary or copy of CONFIDENTIAL INFORMATION shall be subject to
the terms of this Stipulated Protective Order to the same extent as the information or
document of which summary or copy is made , arid must be clearly labeled as containing

CONFIDENTIAL INFORMATION. Counsel for the Parties shall maintain the originals of
signed Agreements for a period of six (6) years from the date of the signing of the

Agreement.
CONFIDENTIAL INFORMATION may be copied or reproduced

only to the extent reasonably necessary for the conduct of this lawsuit. All such copies
or reproductions shall be subject to the terms of this Stipulated Protective Order.

If the Court orders that access to or dissemination of
CONFIDENTIAL INFORMATION shall be made to persons not included in paragraph
1 (f) above , such CONFIDENTIAL INFORMATION shall only be accessible to , or

disseminated to , such persons after they have executed an Agreement in the form

attached as Exhibit A , unless the Court rules otherwise.
No Waiver.

The disclosure of CONFIDENTIAL INFORMATION pursuaht to discovery or the procedures set forth in this Stipulated Protective Order shall not constitute a waiver of

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any trade secret or any intellectual property, proprietary, or other rights to or in such

information.
Use in Depositions.

Material designated as CONFIDENTIAL may be used at a deposition if:

the counsel for the party using such material advises the witness of

the terms of this Stipulated Protective Order , provides a copy to the witness , and the witness agrees on the record to maintain the confidentiality of the material; or
the witness executes an Agreement attached as Exhibit A to this

Stipulated Protective Order.
If the witness refuses to agree to either be bound by the Stipulated Protective

Order on the record or to execute Exhibit A, then the party seeking to use such
CONFIDENTIAL INFORMATION at that witness ' deposition must obtain leave from the

Court before disclosing the material to the witness.
Use in Briefs and as Exhibits.

If any document containing CONFIDENTIAL INFORMATION produced in this

litigation is to be filed as an exhibit to any court record or pleading, or otherwise placed
among the court papers in this litigation , the party filing the material shall submit the

document containing CONFIDENTIAL INFORMATION under seal in accordance with

COLO. LCivR 7. , in a sealed envelope bearing the caption of the case and the

legend Filed Under Seal " subject to Court procedures.
Application of this Stipulated Protective Order.

This Stipulated Protective Order shall apply to all discovery responses or papers

deposition transcripts , summaries , notes , abstracts , or other documents or information

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that comprise, embody, or summarize any documents or information , in any form

produced in this litigation that contain CONFIDENTIAL INFORMATION. Nothing in this
Stipulated Protective Order shall affect the admissibility into evidence of
CONFIDENTIAL INFORMATION , or abridge the rights of any party to seek judicial

review or to pursue other appropriate judicial action with respect to any ruling made by

the Court concerning the status of CONFIDENTIAL INFORMATION. Agreement to the
terms of this Stipulated Protective Order is without prejudice to a party s right to request
that the Court rescind , modify, alter , or amend this Order with respect to specific
documents or information.
Confidentiality Challenqe.

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 and shall specify the

basis for the objection. All objections must be made in good faith. If the parties cannot
resolve the objection within ten (10) business days after the time the notice is received

it shall be 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 Stipulated Protective Order. If such a
motion is timely filed, the disputed information shall be treated as CONFIDENTIAL

under the terms of this Stipulated Protective Order until the Court rules on the motion.
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 Stipulated Protective Order. In

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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.
Confidential Information at Trial.

The designation of any information , documents , or things as CONFIDENTIAL

pursuant to this Stipulated Protective Order shall not , in and of itself , raise any inference
as to the confidentiality of any information , documents , exhibits , or things marked for

identification purposes or introduced into evidence at the trial of this litigation. Nothing
in this Stipulated Protective Order , however , shall preclude any party from seeking
confidential treatment from the Court with respect to such information , documents,

exhibits , or things or from raising any available objections , including without limitation
objections concerning admissibility, materiality, and privilege. The parties to this
Stipulated Protective Order expressly reserve at this time a determination as to the manner in which CONFIDENTIAL INFORMATION may be used in an evidentiary

hearing or at trial. The parties may request special procedures or in camera treatment.
Specific Disclosure.

By joint agreement , the parties, through their counsel , may agree to any specific

disclosure of CONFIDENTIAL INFORMATION in a particular circumstance without
prejudice to the continued application of this Stipulated Protective Order regarding other

uses of that CONFIDENTIAL INFORMATION. The Designating Party may refuse to
agree to specific disclosure of its CONFIDENTIAL INFORMATION.

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Modification.

This Stipulated Protective Order may be modified only by Order of the Court or
by written agreement of the parties.
10.

Non- Parties.

A non- party who produces any information , documents or things in this litigation
that it wishes to be treated as CONFIDENTIAL may become a party to the Stipulated

Protective Order , by signing a copy of the Stipulated Protective Order and giving prompt
notice to all other parties in this case. Signing the Stipulated Protective Order shall not
entitle the non- party to have access to discovery materials or CONFIDENTIAL

INFORMATION of a Party. A non- party may also designate as CONFIDENTIAL any

information , documents , or things produced by that third- party in this litigation pursuant
to the terms of this Stipulated Protective Order. If a non- party serves a Party with a
subpoena or request for production seeking Confidential Information produced to that Party by a Designating Party, the Party in receipt of the subpoena or request for

production wil notify the Designating Party within five (5) business days of the receipt of
the subpoena to allow the Designating Party a reasonable opportunity to intervene to
oppose such production.
11.

Return or Destruction of Confidential Information.

After final disposition of this case , whether by judgment , including appeals

settlement , or otherwise, counsel of record for each of the parties shall either return or
destroy all CONFIDENTIAL INFORMATION the parties produced during this case , and
all copies of such CONFIDENTIAL INFORMATION , within (30) days of a written request

from the Designating Party, which notice shall be given within (30) days after said final

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disposition of this case, except that counsel may retain one copy of such

CONFIDENTIAL INFORMATION to maintain a complete file. All individuals listed under
subparagraphs 1.f. , iv , and v. who received CONFIDENTIAL INFORMATION shall

execute an affidavit , attached as Exhibit B , within thirty (30) business days following the

final resolution of this action.

Dated: September

1 ,

2005

APPROVED AS TO FORM AND CONTENT

By:

Isl

Robert Carev

Robert Carey, Esq.

The Carey Law Firm

2301 East Pikes Peak Colorado Springs , Colorado 80909
Attorney for Plaintiffs

By:

Isl

Elizabeth Lokey Gregory S. Tamkin , Esq.

Elizabeth Lokey, Esq.
DORSEY & WHITNEY LLP Republic Plaza Building, Suite 4700

370 17th Street Denver , CO 80202- 5647
Attorneys for Defendant Merastar Insurance Company

By:

Clifton J. Latiolais. Jr. Clifton J. Latiolais, Jr. , Esq. CAMPBELL , LATIOLAIS & RUEBEL , P. 1625 Downing Street Denver , CO 80218- 1528 Attorneys for Defendant Prudential Insurance Company of America
Isl

By:

Isl

Terence M. Ridley John M. Vaught , Esq. Terence M. Ridley, Esq.

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Michael D. Alper , Esq. Alma M. Lugtu , Esq. WHEELER TRIGG KENNEDY LLP 1801 California Street , Suite 3600

Denver , CO 80202
Attorneys for Defendant Allstate Insurance Company
Signed this

day of

2005.
BY THE COURT:

United States District Judge