1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 11-cv-2573-WJM-KMT 

SAENG SOUKSAVATH and NANCY SOUKSAVATH, 

 Plaintiffs, 

v. 

NEW YORK LIFE INSURANCE COMPANY; 

EMIL MUSGROVE, NEW YORK LIFE INSURANCE COMPANY; 

PHIL STOKES, NEW YORK LIFE INSURANCE COMPANY, 

 Defendants. 

 

STIPULATED PROTECTIVE ORDER 

 

 Plaintiffs and Defendants in this litigation (collectively, the “parties”), having shown that 

discovery in this case might include the disclosure of Confidential Information (as defined 

below), and further that the disclosure of such Confidential Information or use of such 

Confidential Information outside this litigation may cause annoyance, embarrassment and 

oppression for the parties and for third parties, The Court ORDERS as follows: 

1. Confidential Information. For the purposes of this Stipulated Protective Order 

(the “Order”), the term “Confidential Information” is defined as (a) Personal Health Information 

(“PHI”) as defined in the Health Insurance Portability and Accountability Act of 1996 

(“HIPPA”) and the regulations issued by the United States Department of Health and Human 

Services implementing HIPAA, belonging to or about the Plaintiffs or any non-party; (b) nonparties’ financial account numbers, including numbers identifying non-parties’ checking 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 1 of 13
2 

accounts, savings accounts, and life insurance accounts; (c) non-parties’ social security numbers 

and similar, government-issued identification numbers, to the extent that such information is 

relevant to the claims and defenses; (d) Plaintiffs’ and Defendants’ personal information, 

including PHI, financial information, and employment information; and (e) Defendant New York 

Life Insurance Company’s proprietary, sensitive, business, personal, client, or personnel 

information. “Confidential Information” shall include all covered information in any form, 

including documents and things incorporating or reflecting Confidential Information including 

copies, summaries, abstracts, notes, derivatives, electronic information, photographs, negatives, 

blow-ups, exhibits, and similar things. No item shall qualify as Confidential Information after it 

has been disclosed in a printed publication or other public medium available to the public or 

trade by reason of dissemination by one having the right to do so, or is generally known 

throughout the trade and public, or is or comes to be known to the receiving party through means 

not constituting breach of any proprietary or confidential relationship or obligation or through 

breach of this Order. However, until such time as the Court rules or the producing party agrees 

that the information shall not be treated as Confidential Information under Paragraph 2, below, 

the designation of information as Confidential Information in accordance with Paragraph 3, 

below, shall be honored by all persons receiving such information in accordance with this Order. 

Nothing in this Stipulated Protective Order shall waive or modify the terms of any contract 

prohibiting the use or disclosure of confidential information obtained during the course of either 

of the Plaintiffs’ affiliation with New York Life. 

2. Exception from this Order. This Stipulated Protective Order’s limitations on the 

use and disclosure of Confidential Information shall not apply to any document, transcript, or 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 2 of 13
3 

thing that the Court rules or the party who designated a document as containing Confidential 

Information agrees in writing that such document or information shall not be treated as 

Confidential Information. 

3. Designations. Any information produced, orally or written, in this litigation at 

any time, either voluntarily or pursuant to court order, that is asserted in good faith by the 

producing party or non-party to contain or constitute Confidential Information shall be so 

designated by such producing party or non-party, as follows: 

a. A producing party or non-party, prior to or coincident with supplying 

copies of documents and things requested by the inspecting party, shall designate such 

copies as containing Confidential Information by clearly and prominently marking on 

their face, including each designated page of a multi-page document, the legend 

“CONFIDENTIAL,” or shall otherwise advise the receiving party in writing as to the 

confidentiality of such documents or things. 

b. If a written response to a discovery request, such as an interrogatory, 

contains Confidential Information, the written response shall be marked with 

“CONFIDENTIAL,” or the receiving party otherwise shall be previously or 

simultaneously advised in writing of its status as Confidential Information. Discovery 

responses containing Confidential Information may be served in a separate document, if 

desired. 

c. If Confidential Information is contained in a deposition, hearing, or other 

testimony, the transcript or portions thereof may be designated as containing Confidential 

Information in accordance with this Order by so notifying the other parties on the record, 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 3 of 13
4 

at the time of the testimony, or by notifying the other parties in writing, within 30 days 

after receipt of the transcript by the producing party or non-party, of the specific pages 

and lines of the transcript that contain such Confidential Information. Except for 

information not qualifying as Confidential Information under Paragraph 1, all transcripts 

of hearings, depositions, or other testimony, regardless of whether a designation of 

confidentiality was made on the record, shall be treated as containing Confidential 

Information and subject to this Order until the time for designation has expired. 

d. The Court retains discretion as to whether to afford confidential treatment 

to any document or information contained in any document submitted to the Court. 

4. Certification Requirements. Any designation of information as Confidential 

Information under this Order and any challenge(s) to any designation of confidentiality are 

subject to the certification requirements set forth in Fed. R. Civ. P. 26(g)(1)(B). In addition, the 

counsel for the designating party must certify that the designation of the document as 

confidential is based on a good faith belief that the information is confidential or otherwise 

entitled to protection. 

5. Submission to Court. All transcripts of hearings, depositions, or other testimony, 

exhibits (including demonstrative exhibits), pleadings, discovery responses, and documents or 

things designated as Confidential Information and that are filed with, or submitted to the Court 

prior to trial, and any pleadings, memoranda, exhibits (including demonstrative exhibits), 

affidavits, letters, documents, or things filed with or submitted to the Court prior to trial, or the 

confidential portions thereof that reproduce, partially reproduce, or paraphrase information that 

has been designated Confidential Information, shall be filed in accordance with 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 4 of 13
5 

D.C.COLO.LCivR 7.2, and shall not be available for public inspection pending the Court’s 

ruling on the motion to restrict access to the documents, things, or information. 

6. Restrictions on Disclosure of Confidential Documents. Except with prior written 

consent of the party or non-party producing the Confidential Information, and except as provided 

elsewhere in this Order and subject to Paragraph 9, documents designated as Confidential 

Information under this Order, and all information contained in them or derived from them, may 

not be disclosed to any person other than: 

a. The parties, inside counsel for NYLIC, outside counsel for the parties, and 

the partners, associates, and employees of such attorneys’ law firms or legal departments; 

b. Secretaries, paralegal assistants, and all other employees of such counsel 

who are assisting in the prosecution and/or defense of this lawsuit; 

c. Outside consultants and experts retained for the purpose of assisting 

counsel and the parties in their prosecution and/or defense of this lawsuit; 

d. Authors, addressees, and recipients of particular Confidential Information 

solely to the extent that the disclosing party believes in good faith that the person has 

previously had lawful access to the particular information disclosed or to be disclosed; 

e. Persons whom counsel for the parties believe in good faith to have, or 

have had, prior access to the particular Confidential Information, or who have been 

participants in a communication that is the subject of the particular Confidential 

Information and from whom verification of or other information about that access or 

participation is sought, solely to the extent of disclosing such information to which they 

have or may have had access or that is the subject of the communication in which they 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 5 of 13
6 

have or may have participated; provided that, unless and until counsel confirms that any 

such persons have or have had access to or were participants, only as much of the 

information may be disclosed as may be necessary to confirm the person’s access or 

participation; and 

f. The Court and its employees, the triers of fact, court reporters transcribing 

testimony and notarizing officers. 

For the purposes of this Order, the term “Disclosure” is intended to be interpreted broadly, and 

means copying (including handwritten copies), exhibiting, showing, communicating, describing, 

allowing access to, or otherwise releasing to any person the documents subject to this Order or 

those documents’ content, except as expressly authorized by this Order. 

7. Exchange of Expert Reports and Court Filings. Expert reports exchanged by the 

parties and documents submitted to the Court prior to trial which contain Confidential 

Information and are designated as Confidential or with a similar legend may be shared with the 

persons listed in Paragraph 6, above. 

8. Deposition Transcripts. A copy of this Order (or, in lieu thereof, an oral 

explanation, on the record, of its terms by counsel present at the deposition) shall be presented to 

the court reporter upon the taking of any deposition in this action at or prior to the time when any 

question is propounded involving Confidential Information. Portions of the original deposition 

transcript designated as Confidential Information shall be separately bound by the reporter, with 

the title of the course, title of the case, and case number, and marked “CONFIDENTIAL” as 

provided in Paragraph 3. The bound portions of the original deposition transcript designated as 

CONFIDENTIAL shall be delivered to the attorneys representing the parties and deponent at the 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 6 of 13
7 

deposition. The failure of a court reporter to comply with this provision shall not eliminate any 

previous designation(s) of testimony as Confidential Information made in accordance with this 

Order. Designated portions of copies of the deposition transcript shall be treated as Confidential 

Information as provided by this Order. If deposition testimony requires the disclosure of 

Confidential Information, that portion of the deposition will be closed to all persons except the 

deponent, those persons authorized by the deponent to have access, the court reporter, and the 

persons designated in Paragraph 6 of this Order, 

9. Further Restrictions on Access. Confidential Information to be produced in 

accordance with the provisions of Paragraph 6 (c), (d), and (e) shall not be made available to any 

person under Paragraph 6 (c), (d), or (e) unless he or she shall have first executed an Undertaking 

in the form of Appendix 1 to this Order. Counsel for each party shall maintain a file containing 

the original Undertakings executed by each individual from whom counsel obtained such an 

Undertaking. 

10. Use of Confidential Information. All Confidential Information designated as such 

in accordance with the provisions of this Order shall be utilized solely and exclusively for 

purposes of this action, including any appeals. Information designated as Confidential 

Information may not be used in connection with any other litigation, actual or contemplated, or 

for any other purpose whatsoever, absent agreement by the parties or an order of this Court or of 

a Court having jurisdiction over the producing party or person. Use for purposes of this 

litigation shall include use in testimony and as exhibits at trial, and in connection with motions, 

depositions, witness preparation, and counsel pretrial investigations, subject to the restrictions of 

this Order. No party or person may give information designated as Confidential Information to 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 7 of 13
8 

any other person to use for purposes other than for this litigation. A party or non-party may use 

its, his, her, or their own designated Confidential Information for any purpose whatsoever. 

11. Inadvertent Disclosures. Any item or information inadvertently furnished by the 

producing party or non-party during the course of this litigation without a designation as 

Confidential Information may nonetheless subsequently be designated as Confidential 

Information under this Order, but only under the conditions that counsel for the receiving party 

(a) subsequently receive(s) written notice from the producing party or non-party of the 

inadvertence and the request to thereafter treat such information as Confidential Information, and 

(b) has (or have) a reasonable opportunity to advise others to whom such information had 

already been disclosed that such information should thereafter be treated in accordance with this 

Order. 

12. Redactions Permitted. Nothing in this Order shall prevent a party from redacting 

Sensitive Information from documents, including but not limited to documents containing 

Confidential Information, prior to production. For the purpose of this clause, the term “Sensitive 

Information” shall include (1) any person’s social security number, (2) telephone numbers, home 

addresses, and other personal identifying information about persons who are not party to this 

action, (3) financial account numbers including, without limitation, insurance policy numbers 

and checking account numbers; provided, however, that if a social security number is necessary 

to identify a person or is otherwise relevant to the case, that the producing party shall not redact 

the last four digits of the social security number. 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 8 of 13
9 

13. Disputes as to Designations and Redactions. 

a. 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. 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 Protective Order. 

If such a motion is timely filed, the disputed information shall be treated as Confidential 

Information under the 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 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 shall bear the burden of establishing that good cause exists for the 

disputed information to be treated as Confidential Information. 

b. If a party to this Order believes that information was improperly or 

excessively redacted from a document, the party shall not file a Motion asking the Court 

to resolve the dispute without first satisfying the requirements of D.C.COLO.LCivR 

7.1(A). More specifically, the party questioning the validity of the opposing party’s 

redaction shall notify the producing party in writing, and they will thereupon confer as to 

the redaction and/or status of the subject information proffered within the context of this 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 9 of 13
10 

Order, and in so conferring shall consider withdrawing all of the redactions or the 

practicality of redacting fewer parts of the document. 

c. In any disagreement over the designation of Confidential Information, the 

designating party bears the burden of showing that the designated information is 

Confidential Information within the scope of this Order. 

d. No party to this action shall be obligated to challenge the propriety of any 

designation, and a failure to do so shall not preclude a subsequent challenge on the 

propriety of such designation and shall not constitute an admission that any information 

is, in fact, Confidential Information. 

14. No Waiver. Nothing in this Order or otherwise shall constitute a waiver of the 

right of any party to object to any discovery request, nor to object at trial as to the authenticity, 

competency, relevance, or admissibility of any information or to the fact that any Confidential 

Information has been so designated, nor shall such constitute a waiver of any party’s right to file 

a motion in limine to preclude the trier of fact from being advised of such designation during 

trial, nor shall this Order, or actions taken or not taken pursuant to it, constitute an admission that 

designation of materials as Confidential Information is appropriate. 

15. Violation. Any person executing or bound by an Undertaking in the form of 

Appendix 1 to this Order shall promptly advise counsel representing the party by whom they are 

employed or on whose behalf they have been retained if such person learns of a violation of this 

Order, and it will be the responsibility of such person to ensure that counsel inform counsel for 

all other parties of such violation. In addition, the person learning of a violation and counsel 

notified by that person shall have a duty to take immediate action to mitigate and remedy any 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 10 of 13
11 

such violation to the extent possible. Compliance with those specific provision will not 

necessarily exempt any person, counsel, or party from sanction by the Court as a result of any 

violation of this Order. 

16. Modification. The parties may, by stipulation, provide for exceptions to this 

Order. Any party may seek an order of this Court seeking relief from or otherwise modifying of 

furthering this Stipulated Protective Order upon good cause shown. 

17. Survival. This Order shall survive the final termination of this action with respect 

to any designated Confidential Information. Within sixty (60) days following termination of this 

litigation, at the election of the producing party or non-party, the originals and all copies of 

designated Confidential Information shall be destroyed with certification of such destruction 

provided to counsel for the producing party, or shall be returned to the counsel for the party or 

non-party that produced such Confidential Information, except that counsel shall be entitled to 

retain all pleadings, depositions, and discovery responses, as well as exhibits thereto and work 

product containing such information. This Court shall retain jurisdiction over this Order, the 

foregoing stipulation, and the parties hereto for the purposes of enforcing said Order and 

stipulation, adjudicating claims of breaches of this Order, and administering damages and other 

remedies related to such breaches. 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 11 of 13
12 

18. Trial. Prior to a public trial of this action, the parties shall apply to the Court for 

such protection of Confidential Information as they deem necessary. The Court shall 

determine whether to grant protection of Confidential Information. 

DATED at Denver, Colorado this 7th day of February, 2012. 

 BY THE COURT: 

 

Kathleen M. Tafoya 

United States Magistrate Judge 

Approved this 2ndst day of February, 2012, by: 

 

John W. McKendree 

OFFICES OF JOHN W. McKENDREE 

LAWYER and CONSULTANT 

7582 East 121st Drive 

Thornton, CO 80602 

(303) 618 8780 

Counsel for the Plaintiffs 

William A. Wright 

Elizabeth B. Chilcoat 

SHERMAN & HOWARD LLC 

633 Seventeenth Street, Ste. 3000 

Denver, CO 80202 

(303) 297-2900 

Fax: (303) 298-0940 

wwright@shermanhoward.com

echilcoat@shermanhoward.com

Counsel for the Defendants 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 12 of 13
13 

APPENDIX 1 

UNDERTAKING TO BE BOUND BY PROTECTIVE ORDER 

 I, , have read or been advised of the terms of the Stipulated 

Protective Order, dated [DATE], entered in the case captioned Saeng Souksavath & Nancy 

Souksavath v. New York Life Insurance Co., Emil Musgrove, & Phil Stokes, United States 

District Court for the District of Colorado, Civil Action No. 11-cv-2573. In Consideration of and 

for the disclosure to me of information designated CONFIDENTIAL, as defined in the Stipulated 

Protective Order, I agree as follows: 

 I agree to be bound by the terms of the Stipulated Protective Order. 

 I agree not to disclose or use any CONFIDENTIAL information disclosed to me for 

purposes other than those permitted under the Stipulated Protective Order. 

 I consent to the jurisdiction of the United States District Court for the District of 

Colorado for the purposes of enforcement of the Stipulated Protective Order. 

Signature: 

Address: 

 

Date: 

Case 1:11-cv-02573-WJM-KMT Document 19 Filed 02/07/12 USDC Colorado Page 13 of 13