IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Magistrate Judge Kathleen M. Tafoya

Civil Action No. 11–cv–01961–REB–KMT

ENERGY INTELLIGENCE GROUP, INC., and

ENERGY INTELLIGENCE GROUP (UK) LIMITED,

Plaintiffs,

v. 

WELLS FARGO SECURITIES, LLC, f/k/a WACHOVIA CAPITAL MARKETS, LLC, 

Defendant.

______________________________________________________________________________

PROTECTIVE ORDER

______________________________________________________________________________

Upon a showing of good cause in support of the entry of a Protective Order to protect

confidential information in this case, IT IS ORDERED:

1. This Protective Order shall apply to all documents, materials, and information,

including without limitation, documents produced, answers to interrogatories, responses to

requests for admission, deposition testimony, and other information disclosed pursuant to the

disclosure or discovery duties created by the Federal Rules of Civil Procedure deemed to be

“Confidential Information” as that term is defined herein.

2. As used in this Protective Order, “document” is defined as provided in Fed. R.

Civ. P. 34(a). A draft or non-identical copy is a separate document within the meaning of this

term. 

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3. “Confidential Information” shall mean non-public documents or materials that the

producing party deems in good faith to comprise or contain information constituting or relating

to trade secrets or to confidential and proprietary information the disclosure of which would

implicate common law or statutory privacy interests or result in competitive or other business

injury to the disclosing party, such as, without limitation, confidential business information

(including, for example, business plans, business strategies, business methods, business records,

negotiations, and agreements), financial information (including, for example, budgeting,

accounting, and sales and expenditures figures), business relationship information (including, for

example, information pertaining to potential and/or existing customers, competitors, suppliers,

and distributors), and personnel information (including, for example, compensation, evaluations

and other employment information).

4. Confidential Information shall not be disclosed or used for any purpose other than

the preparation and trial of this case (and any appeals thereof) with the exception that nothing

herein shall prohibit either party from using any information learned in this proceeding,

including from any Confidential information, to serve as the basis for the necessary information

and belief to commence subsequent litigation proceedings.

5. Confidential Information shall not, without the consent of the party producing it

or further Order of the Court, be disclosed except that such information may be disclosed to:

(a) Outside and in-house counsel for the parties;

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(b) persons regularly employed or associated with outside and in-house counsel

for the parties actively working on the case whose assistance is required by said

counsel in the preparation for trial, at trial, or at other proceedings in this case;

(c) directors, officers, employees or other representatives of a party to the extent

such disclosure is necessary for preparation, trial or other proceedings in this

case;

(d) 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;

(e) the Court and its employees;

(f) stenographic reporters who are engaged in proceedings necessarily incident to

the conduct of this action;

(g) authors or drafters, addressees, and those who received the documents or

information prior to the commencement of this action, or during this action if

obtained independently and not in violation of this Protective Order; and

(h) other persons by written agreement of the parties.

6. Prior to disclosing any Confidential Information to any person listed above under

paragraphs 5(c), (d), and (h), counsel shall provide such person with a copy of this Protective

Order and obtain from such person a written declaration in the form attached hereto as Exhibit A

stating that he or she has read this Protective Order and agrees to be bound by its provisions. All

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such declarations shall be retained by counsel and shall be subject to in camera review by the

Court upon a showing of good cause.

7. Where Confidential Information is produced, provided, or otherwise disclosed by

a party, it shall 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 notice of such designation

during the testimony whenever possible, but a party may designate portions of

depositions as Confidential after transcription, provided written notice of the

designation is promptly given to all counsel of record within thirty (30) days after

notice by the court reporter of the completion of the transcript.

8. 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. Further, a party may request that

information otherwise considered to be confidential be distributed or disclosed under certain

specified conditions. If the parties cannot resolve the objection or the request to disseminate

identified information within ten (10) business days after the time the notice or request is

received, it shall be the obligation of the party designating the information as Confidential

Information to file an appropriate motion requesting that the Court determine whether the

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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 Information not to be

disseminated outside 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 Information and shall not thereafter be treated as

Confidential Information in accordance with this Protective Order. In connection with a motion

filed under this provision, the party designating the information as Confidential Information shall

bear the burden of establishing that good cause exists for the disputed information to be treated

as Confidential Information.

9. If a designating party discloses any Confidential Information without designating

or marking the Confidential Information as “Confidential,” the designating party may

subsequently inform the receiving parties of the confidential nature of the disclosed Confidential

Information, and the receiving parties shall treat the disclosed Confidential Information as

“Confidential” upon receipt of written notice from the designating party. Disclosure of such

Confidential Information to persons not authorized to receive that material prior to receipt of the

confidentiality designation shall not be deemed a violation of this Order. However, the receiving

parties shall take the steps necessary to conform distribution to the “Confidential” designation,

e.g., by retrieving all copies of the Confidential Information, or notes or extracts thereof, in the

possession of the person not authorized under this Order to possess such Confidential

Information and advising the person to whom disclosure was made that the material is

Confidential Information and should be treated as provided in the Order.

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10. Counsel shall exert their best efforts to identify documents or material protected

by the attorney-client privilege or the work-product doctrine prior to the disclosure of any such

documents or material. If, however, a party unintentionally discloses documents or material that

is privileged or otherwise immune from discovery, the party shall, within five (5) business days

upon discovery of the disclosure, so advise the receiving parties in writing, request the

documents or material be returned, and attach a privilege log with an entry pertaining to the

documents or material that is privileged or otherwise immune from discovery. If that request is

made and the privilege log provided, no party to this action shall thereafter assert that the

disclosure waived any privilege or immunity. It is further agreed that the receiving parties will

return or destroy the inadvertently produced documents or material, and all copies and

derivations, within five (5) business days of receipt of a written request for the return of the

documents or material.

11. If any party intends to file a pleading or other document with the Court which

contains Confidential Information, that party must first follow the filing procedures set forth in

D.C.COLO. L. Civ. R 7.2, and all other applicable rules and procedures to request that such

Confidential Information be filed under seal.

12. At the conclusion of this case, unless other arrangements are agreed upon, each

document and all copies thereof which have been designated as Confidential shall be returned to

the party that designated it Confidential, or the parties may elect to destroy Confidential

documents. Where the parties agree to destroy Confidential documents, the destroying party

shall provide all parties with an affidavit confirming the destruction.

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13. 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.

14. 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.

SO ENTERED this 3d day of February, 2012.

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EXHIBIT A

DECLARATION

_______________________________________, swears or affirms and states under penalty of

perjury:

1. I have read the Protective Order in Energy Intelligence Group, Inc., et al. v. Wells

Fargo Securities, LLC, Case No. 1:11-cv-01961-REB-KMT, a copy of which is attached to this

Declaration.

2. I promise that I have not and will not divulge, or undertake to divulge, to any person or

recording device any Confidential Information shown or told to me except as authorized in the

Protective Order. I will not use the Confidential Information for any purpose other than for the

civil action referenced above.

3. 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.

4. I will abide by the terms of the Protective Order.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on (date): ________________

Signature ____________________________________

Print or Type Name ____________________________________

Address ____________________________________

Telephone ____________________________________

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