IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:11-cv-02514-MSK-CBS

MERLE A. FREY

Plaintiff,

v.

DAVID W. TURNER

K&B TRANSPORTATION, INC.

Defendants.

 

STIPULATED PROTECTIVE ORDER

The Parties stipulate to the entry of a protective order to control and protect the

dissemination of documents or information that may be provided in this Action through

disclosures or discovery which information may contain trade secrets or other confidential

research, development or commercial information or otherwise competitively sensitive

confidential information. 

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 by a Party to this

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Action pursuant to the disclosure or discovery duties created by the Federal Rules of Civil

Procedure, whether or not the document, material or information had been provided to

other Parties before commencement of the Action or disclosed or provided in this Action

before entry of this Protective Order. Any document, material or information that has

been disclosed or provided in this Action in response to discovery requests prior to entry

of this Protective Order is “Protected Information” pursuant to this Protective Order for

20 days after entry of this Protective Order after which date the previously disclosed or

provided document, material or information will no longer be ‘Protected Information”

unless so designated pursuant to the provisions of this Protective Order.

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. 

3. “Party” or “Parties” means the named Parties to this Action and includes, where

applicable, a Parties’ employees. 

4. “Protected Information” means any document, file, portions of files, transcribed

testimony, or response to a discovery request, including any extract, abstract, chart,

summary, note, or copy made therefrom -not made available to the public -and disclosed

and designated by one of the Parties in the manner provided below as containing

confidential information which if disclosed could significantly impact the parties’

business or privacy interests and/or impact other cases in litigation involving various

parties and/or non-parties. 

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5. “Disclosing Party” means the Party initially producing or subsequently disclosing

Protected Information. 

6. “Receiving Party” means the Party receiving the Protected Information. 

7. Where Protected Information is disclosed, provided, or otherwise produced by a Party in

response to any discovery request, the Disclosing Party or the Receiving Party may

designate documents or information as “Protected” in the following manner: 

a. By imprinting the word “Protected” on the first page or cover of any document; or

b. By imprinting the word “Protected” next to or above any response to a discovery

request; or 

c. With respect to transcribed testimony, by giving written notice to opposing

counsel designating such portions as “Protected” no later than ten (10) calendar

days after receipt of the transcribed testimony; or 

d. In writing, by designating specific Bates Numbered pages of documents produced

“Protected” or by otherwise identifying specific documents or information as

“Protected;” or 

e. If the document or information was disclosed or provided in the Action before

entry of this Protective Order, designating the previously provided documents or

information as “Protected” on or after 20 days after the entry of this Protective

Order. 

8. All Protected Information disclosed by a Party shall be subject to the following

restrictions: 

a. It shall be used only for the purpose of this Action and not for any other purpose

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whatsoever;

b. It shall not be communicated or disclosed by any Party or a Party’s counsel in any

manner, either directly or indirectly, to anyone except for purposes of this Action

and according to the procedure of Paragraphs 11 and 12 of this Order. 

9. Protected documents, materials, and/or information (collectively “Protected 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 the following Qualified 

Recipients: 

a. The law firms representing the parties in this Action; 

b. Persons regularly employed by or associated with the law firms representing the

parties in this Action; 

c. Parties including Party’s employees; 

d. Expert witnesses and consultants and their employees retained by the Parties to

assist with this Action, to the extent such disclosure is necessary for preparation,

trial or other proceedings in this case; 

e. The Court and its employees (“Court Personnel”); 

f. Stenographic reporters and videographers retained by the Parties in this Action; 

g. Deponents and witnesses during the course of testimony in this Action; 

h. potential witnesses in this Action, but only such Protected Information as is

relevant and material to the potential testimony of the witness; 

i. The Parties insurance carriers and their employees; 

j. Other persons by written agreement of the Parties. 

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10. Individuals authorized to review Protected Information pursuant to this Protective Order

shall hold Protected Information in confidence and shall not divulge the Protected

Information, either verbally or in writing, to any other person, entity or government

agency unless authorized to do so by court order. 

11. Prior to disclosing any Protected Information to any person listed above (other than

counsel for the Parties, persons employed by counsel, the Parties themselves, Court

Personnel and stenographic reporters and videographers), counsel shall provide such

person with a copy of this Protective Order and obtain from such person a written

acknowledgment in the form attached at Exhibit A stating that he or she has read this

Protective Order and agrees to be bound by its provisions 

12. The Party who is disclosing Protected Information shall obtain and retain the original

acknowledgments signed by Qualified Recipients of the Protected Information, and shall

maintain a list of all persons to whom any Protected Information is disclosed. 

13. During the pendency of this Action, any Party may, upon court order or agreement of the

Parties, inspect the list maintained by counsel pursuant to Paragraph 12 above upon a

showing of substantial need in order to establish the source of an unauthorized disclosure

of Protected Information where a Party is unable otherwise to identify the source of the

disclosure. If disagreement exists among the Parties regarding the showing of substantial

need, then a Party may seek a court order requiring inspection of the list under terms and

conditions deemed appropriate by the Court. 

14. Within 90 days after the conclusion of this Action, whether by final judgment, including

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any appeals, or settlement, all Parties receiving and/or disclosing Protected Information

under the terms of this Protective Order shall provide the original Disclosing Party with

written certification that all copies of the Protected Information have been destroyed by

the Receiving Party and any Qualified Recipients. No copies of Protected Information

shall be made except by or on behalf of Parties to this Action and such copies shall be

made and used solely for purposes of this Action. 

15. If the Receiving Party objects to the designation of certain information as Protected

Information, he or she shall promptly inform the other Parties counsel in writing of the

specific grounds of objection to the designation. All counsel shall then, in good faith and

on an informal and expedited basis, attempt to resolve such dispute. If after such good

faith attempt, counsel are unable to resolve their dispute, the Receiving Party may move

for a disclosure order consistent with this Order. During the pendency of any motion for

disclosure, the information shall continue to have Protected Information status from the

time it is produced until the ruling by the Court on the motion. 

16. Use of Protected Information in Court Proceedings: In the event Protected Information is

used in any court filing or proceeding in this action, including but not limited to its use at

trial, it shall not lose its confidential status as between the Parties through such use.

Protected Information and pleadings or briefs quoting or discussing Protected Information

will not be accepted for filing “under seal” or otherwise kept out of the public record in

this action, however, except by court order issued upon motion of the party seeking to file

the documents under seal. Any motion requesting leave to file documents under seal shall

comply with the requirements of D.C.COLO.LCivR 7.2 and demonstrate that the

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Protected Information at issue is entitled to protection under applicable law. 

17. A Party’s failure to object to documents or information as being designated “Protected” in

this Action does not constitute a stipulation or admission that such documents or

information were or are “confidential” for purposes of establishing any claim or defense

in the Action, nor does such failure to object waive objections that may be asserted under

the Federal Rules of Evidence at the trial of this Action. 

18. The termination of this action shall not relieve counsel or other persons obligated

hereunder from their responsibility to maintain the confidentiality of Protected

Information pursuant to this Protective Order, and the Court shall retain continuing

jurisdiction to enforce the terms of this Protective Order.

19. 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. 

20. Nothing in this Protective Order shall preclude any Party from filing a motion seeking to

remove or assert further or different protections from the Court under Rule 26(c ) of the

Federal Rules of Civil Procedure, or from filing a motion with respect to the manner in

which Protected Information shall be treated at trial. 

DATED this _________ day of February, 2012.

BY THE COURT:

______________________________

Magistrate Judge Craig B. Shaffer

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