IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.: 11-CV-02301-WYD-BNB

VANESSSA UPSHAW,

Plaintiff

v.

TRANSMONTAIGNE SERVICES, INC., a Delaware corporation,

Defendant.

STIPULATED PROTECTIVE ORDER

Upon consideration of the stipulation of Plaintiff Vanessa Upshaw ("Plaintiff") and

Defendant TransMontaigne Services Inc. ("Defendant") as reflected by their signatures hereto,

for a Protective Order concerning certain information and documents provided during the course

of this litigation, which the parties claim constitute commercially sensitive and confidential

information according to current law, and it appearing to the Court that sufficient cause exists for

the issuance of a Protective Order, it is

ORDERED as follows:

1. Any documents produced or exchanged by any of the parties to this action, or any of their

attorneys, and any information contained in responses to interrogatories or in any other

discovery, including but not limited to deposition testimony and deposition exhibits, which a

party in good faith believes contain confidential information, commercially valuable or sensitive

business information, trade secrets, or confidential personnel information, may be designated as

confidential, and all documents and information so designated and all copies thereof (hereinafter

Case 1:11-cv-02301-WYD-BNB Document 16 Filed 01/17/12 USDC Colorado Page 1 of 8
referred to collectively as "the Confidential Information"), shall be treated as confidential and

shall not be disclosed except as provided in this Order; PROVIDED, however, that counsel for

the party designating information as confidential may, in writing and without Court approval,

agree to release any of the Confidential Information from the requirements of this Order.

2. Information produced during the course of this Action within the scope of Paragraph 1

above, may be designated by the producing party (“Designating Party”) as containing

Confidential Information by conspicuously placing on each page the legend:

CONFIDENTIAL/Subject to Protective Order

Upshaw v. TransMontaigne

 11-CV-02301-WYD-BNB

Such designation shall be placed on the page so that it will not interfere with the legibility of

material on the page. If and to the extent that such information is entered as an Exhibit at a

hearing or trial relating to this action, a clean copy of the document without the legend may be

substituted for admission into evidence.

3. Any party wishing to challenge the designation of any document as confidential by the

other 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 motion is timely filed, the disputed information shall be

treated as confidential under the terms of this Protective Order until the Court rules on the

Case 1:11-cv-02301-WYD-BNB Document 16 Filed 01/17/12 USDC Colorado Page 2 of 8
motion. 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.

4. Neither the Confidential Information nor its contents shall be disclosed to any other

person without the agreement of the party designating information as confidential, except that

counsel may, without further agreement, disclose the Confidential Information or its contents to

the following persons for use solely in connection with this action under the following

conditions:

a. attorneys and legal assistants, whether employees or independent

contractors, of counsel's firms and to any other employee of counsel's firms who shall handle the

Confidential Information under normal office procedure;

b. any person the attorneys in good faith believe will or may be requested or

required to testify as a witness at deposition or trial ("Potential Witness"), provided that such

Potential Witnesses shall be shown only Confidential Information that relates to issues of which

counsel reasonably believes the Potential Witness has some prior knowledge, and only such

Confidential Information as counsel deems reasonably necessary to allow for the full and fair

exploration and presentation of information possessed by the Potential Witness;

c. experts or consultants retained by the parties with respect to this action;

d. the parties; 

e. the Court and its employees (“Court Personnel”), and members of a jury if

any; and

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f. any court reporters present in their official capacity at any hearing,

deposition or other proceeding in this action.

5. Prior to disclosing any Confidential Information to any person listed above (other than

the parties, counsel, persons employed by counsel, Court Personnel, members of a jury, if any,

and court reporters), counsel shall provide such person with a copy of this Protective Order and

obtain from such person a written acknowledgment 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,

including consent to the jurisdiction of this Court. This provision shall not apply when a party is

to be deposed using Confidential Information that it produced. All such acknowledgments shall

be retained by counsel and shall be subject to in camera review by the Court if good cause for

review is demonstrated by opposing counsel.

6. Neither the Confidential Information nor its contents shall be used or disclosed to any

person for any purpose beyond this action.

7. The party receiving confidential information, regardless of the format in which that

information is produced, shall, within 30 days of the termination of litigation (including

termination of any appeals), provide a listing of all of confidential information provided by the

Disclosing Party, including those provided to expert witnesses and computer files containing

confidential information, and provide a certification that 1) such information will be removed

from all computers and copies of such information will be maintained by the receiving party’s

attorney under seal; 2) such sealed confidential information shall not be unsealed without first

giving the Disclosing Party ten (10) days prior written notice indicating the reason for unsealing

the information and an opportunity for the Disclosing Party to seek an appropriate Court order

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regarding the unsealing, use or disclosure of the Confidential Information; and 3) indicating that

such confidential information shall be destroyed at the end of seven (7) years, or as otherwise

provided for by the receiving party’s attorney’s record retention and client file destruction

policy, whichever is earlier. In no case shall such sealed information leave the receiving party’s

attorney’s possession, or be given directly to the party as a part the attorney’s file. At the time of

destructions or deletion of the confidential information maintained under seal, all such

confidential information shall be destroyed, including the deletion of any computer files

containing confidential information, wherever they exist. Within 30 days of the destruction of

the confidential information contained under seal, the receiving party shall certify in writing to

the producing party that all confidential information, regardless or format or location, has been

destroyed.

8. The provisions of this order shall not limit the parties' ability to make full use of

otherwise admissible Confidential Information at any stage of this litigation as necessary,

including but not limited to, attachments to pleadings, exhibits to depositions or at trial. Any

request to restrict access to documents or materials filed with the court must comply with

the requirements of D.C.COLO.LCivR 7.2. If either party submits Confidential Information

to the Court as an attachment to pleadings, motions, depositions or to any other document filed

with the Court, such submission shall be made under seal and opened only by order of the Court.

9. The confidentiality provisions of this Order shall survive any settlement, judgment or

other disposition or conclusion of this action, and all appeals there from, and this Court shall

retain continuing jurisdiction in order to enforce the terms of this Order.

Case 1:11-cv-02301-WYD-BNB Document 16 Filed 01/17/12 USDC Colorado Page 5 of 8
10. Any party may at any time and for any reason seek modification of this Protective Order. 

This Protective Order can be modified only by written agreement of the parties or by order of

this Court. Each party reserves the right to object to any party's motion or request to modify this

Protective Order.

Dated January 17, 2012.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

Stipulated by:

ELWYN F. SCHAEFER AND

ASSOCIATES, P.C.

s/ Elwyn F. Schaefer 

Elwyn F. Schaefer

1801 Broadway, Ste. 550

Denver, Colorado 80202

Telephone: 303 825 1961 

Facsimile: 303 825 5460

 Email:

elwyn.schaefer@qwestoffice.net

Counsel for Plaintiff Vanessa Upshaw

LATHROP & GAGE LLP

s/ Denise D. Riley

Denise D. Riley, No. 33944

Maxwell N. Shaffer, No. 42500

950 17th Street, Ste. 2400

Denver, Colorado 80202

Telephone: (720) 931-3200

Facsimile: (720) 931-3201

Email: DRiley@LathropGage.com

MShaffer@LathropGage.com

Counsel for Defendant TransMontaigne Services,

Inc. 

Case 1:11-cv-02301-WYD-BNB Document 16 Filed 01/17/12 USDC Colorado Page 6 of 8
EXHBIT A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No.: 11-CV-02301-WYD-BNB

VANESSSA UPSHAW,

Plaintiff

v.

TRANSMONTAIGNE SERVICES, INC., a Delaware corporation,

Defendant.

 

ACKNOWLEDGMENT OF PROTECTIVE ORDER

_____________________________________________________________________________

I, ____________________________________, declare as follows: 

1. My address is _________________________________________________________. 

2. My present employer is _________________________________________________. 

3. My present job position is _______________________________________________. 

4. Pursuant to the Protective Order entered by the Court in this case (“Order”), I hereby

acknowledge that I may receive information designated under the Order, and I certify my

understanding that such information is provided to me pursuant to the terms and restrictions of that

Order. 

5. I further state that I have been given a copy of, and have read the Order, that I am familiar

with its terms, and I agree to comply with and to be bound by each of its terms, and that I agree to

hold in confidence any information disclosed to me pursuant to the terms of the Order and to use

such information solely for the purpose of this action. 

Case 1:11-cv-02301-WYD-BNB Document 16 Filed 01/17/12 USDC Colorado Page 7 of 8
6. To assure compliance with the Order, I hereby submit myself to the jurisdiction of the United

State Court for the District of Colorado and any other Court having personal jurisdiction over me

for the limited purpose of any proceedings relating to the performance under, compliance with, or

violation of the Order. 

7. I understand that I am to retain all of the material that I receive which has been designated

under the Order in a manner consistent with the Order and that all such materials are to remain in

my custody until I have completed my testimony or assigned duties in this matter. I further

understand that, upon the completion of my testimony or assigned duties in this matter all materials

are to be returned to the counsel or party by whom I have been provided such materials or they are

to be destroyed. I also understand that any materials, memoranda, work notes, or other documents

derived from documents designated under the Order are to be delivered to the counsel or party by

whom I have been provided are to be destroyed. Such delivery or destruction shall not relieve me

from any of the continuing obligations imposed upon me by the Order. I further agree to notify any

clerical personnel who are required to assist me of the terms of the Order. 

I declare under penalty of perjury under the law of the United States of America that the

foregoing is true and correct. 

Signed at ________________________________ on this ____ day of_______________, 2012. 

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