Stipulation, Protective Order And Affidavit (Judge Kane)

1 [Please note that the bracketed and italicized text on the form convey instructions to the parties and should not be included in the Stipulated Protective Order submitted to the court.] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. * * Plaintiff*, v. * Defendant*. STIPULATED PROTECTIVE ORDER As stipulated and requested by each party and each counsel of record in this case, this Protective Order concerning the treatment of Confidential Information (as hereinafter defined) is issued pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, as follows: 1. In this action, at least one of the parties has sought and/or is seeking Confidential Information (as defined in paragraph 2 below). The parties also anticipate seeking additional Confidential Information during discovery and that there will be questioning concerning Confidential Information in the course of depositions. The parties assert the disclosure of such information outside the scope of this litigation could result in significant injury to one or more of the parties222 business or privacy interests. 2. 223Confidential Information224 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 therefrom227not made available to the public227and designated by one of the American LegalNet, Inc. www.FormsWorkFlow.com 2 parties in the manner provided in paragraph 3 below as containing: [Enter precise categories of data (materials) sought to be protected and basis for treating as confidential information, e.g., trade secrets, etc.] 3. Where Confidential Information is produced, provided, or otherwise disclosed by a party in response to any discovery request, it will be designated in the following manner: a. By imprinting the word 223Confidential224 on the first page or cover of any document produced; b. By imprinting the word 223Confidential224 next to the information; or above any response to a discovery request; and c. With respect to transcribed testimony, by giving written notice to opposing counsel designating such portions as 223Confidential224 no later than ten calendar days after receipt of the transcribed testimony. 4. All Confidential Information provided by a party in response to a discovery request or transcribed testimony shall be subject to the following restrictions: a. It shall be used only for the purpose of this litigation and not for any business or other purpose whatsoever; b. It shall not be communicated or disclosed by any party222s counsel or a party in any manner, either directly or indirectly, to anyone except for purposes of this case and unless an affidavit in the form of Exhibit A has been signed. 5. Individuals authorized to review Confidential Information pursuant to this Protective Order shall hold Confidential Information in confidence and shall not divulge the Confidential Information, either verbally or in writing, to any other person, entity or government agency unless authorized to do so by court order. American LegalNet, Inc. www.FormsWorkFlow.com 3 6. The party222s counsel who discloses Confidential Information shall be responsible for assuring compliance with the terms of this Protective Order with respect to persons to whom such Confidential Information is disclosed, shall obtain and retain the original affidavits signed by qualified recipients of Confidential Information, and shall maintain a list of all persons to whom any Confidential Information is disclosed. 7. During the pendency of this action, opposing counsel may, based on a court order or agreement of the parties, inspect the list maintained by counsel pursuant to paragraph 6 above, upon a showing of substantial need to establish the source of an unauthorized disclosure of Confidential Information and that opposing counsel are unable otherwise to identify the source of the disclosure. If counsel disagrees with opposing counsel222s showing of substantial need, then counsel may seek a court order requiring inspection under terms and conditions deemed appropriate by the Court. 8. No copies of Confidential Information shall be made except by or on behalf of counsel in this litigation and such copies shall be made and used solely for purposes of this litigation. 9. During the pendency of this litigation, counsel shall retain custody of Confidential Information, and copies made therefrom pursuant to paragraph 8 above. 10. If opposing counsel objects to the designation of certain information as Confidential Information by the other parties222 counsel, he or she shall promptly inform designating counsel in writing of the specific grounds for the objection. All counsel shall then, in good faith and on an informal basis, attempt to resolve such dispute. If after such good faith attempt, all counsel are unable to resolve their dispute, opposing/objecting counsel may move for a disclosure order consistent with this order. Any motion for disclosure shall be filed within 14 days of American LegalNet, Inc. www.FormsWorkFlow.com 4 designating counsel222s receipt of opposing counsel222s written objection. The information shall continue to have Confidential Information status from the time it is produced until the ruling by the Court on the motion. 11. Use of Confidential Information in Court Proceedings: In the event Confidential 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. However, Confidential Information and pleadings or briefs quoting or discussing Confidential Information will not be accepted as restricted filings or otherwise kept out of the public record in this action, except by court order issued upon motion of the party seeking to restrict the documents. Any such motion shall comply with the requirements of D.C.COLO.LCivR 7.2 and demonstrate that the Confidential Information at issue is entitled to protection under the standards articulated in Nixon v. Warner Communications, Inc., 435 U.S. 589, 598-602 (1978) (applied in United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985) and Crystal Grower222s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)). 12. 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. 13. Nothing in this Protective Order shall preclude any party from filing a motion seeking further or different protection 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 Confidential Information shall be treated at trial. 14. Upon termination of this litigation, including any appeals, each party222s counsel shall immediately return to the producing party all Confidential Information provided subject to this Protective Order, and all extracts, abstracts, charts, summaries, notes or copies made American LegalNet, Inc. www.FormsWorkFlow.com 5 therefrom. At that time, counsel shall also file under seal with this Court the list of individuals who have received Confidential Information which counsel shall have maintained pursuant to paragraph 6 herein, and counsel shall provide the Court with verification that any of counsel222s work product referencing Confidential Information has been destroyed. 15. The termination of this action shall not relieve counsel or other persons obligated hereunder from their responsibility to maintain the confidentiality of Confidential Information pursuant to this Protective Order. The Court shall retain continuing jurisdiction to enforce the terms of this Protective Order. DATED this day of , 20. JOHN L. KANE SENIOR U.S. DISTRICT JUDGE STIPULATED AND AGREED TO: [Party Name] [Attorney] [Address] [Telephone Number] [Party Name] [Attorney] [Address] [Telephone Number] American LegalNet, Inc. www.FormsWorkFlow.com EXHIBIT A 1 AFFIDAVIT STATE OF COLORADO ) )ss. COUNTY OF ) , swears or affirms and states under penalty of perjury: 1. I have read the Protective Order in v. , Case