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HomeMy WebLinkAbout2023-cv-1341 - Erbacher v. City Of Fort Collins, et al. - 038 - Protective Order IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 23-cv-1341-CNS-NRN CODY ERBACHER, Plaintiff, v. CITY OF FORT COLLINS, JASON HAFERMAN, SERGEANT ALLEN HEATON, and CORPORAL JASON BOGOSIAN. Defendants. PROTECTIVE ORDER Pursuant to Fed. R. Civ. P. 26(c), upon a showing of good cause in support of the entry of a protective order to protect the discovery and dissemination of confidential information or information which will improperly annoy, embarrass, or oppress any party, witness, or person providing discovery 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. 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. Case No. 1:23-cv-01341-CNS-NRN Document 38 filed 09/28/23 USDC Colorado pg 1 of 7 2 3. Information designated “CONFIDENTIAL” shall be information that is confidential information protected by a statutory, regulatory, or common law right of privacy or protection, or otherwise contain nonpublic personal, personnel, employment, private, medical, or other information implicating privacy interests, proprietary interests or safety and security concerns of either the Plaintiff, any of the Defendants or any other nonparty including confidential, security-sensitive, proprietary, trade secret, financial, or personal information. Any information designated by a party as CONFIDENTIAL must first be reviewed by a lawyer of record who will certify that the designation as CONFIDENTIAL is based on a good faith belief that the information "is confidential or otherwise entitled to protection." Gillard v. Boulder Valley Sch. Dist., 196 F.R.D. 382, 386 (D. Colo. 2000). CONFIDENTIAL information shall not be disclosed or used for any purpose except the preparation and trial of this case. 4. 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. the parties' attorneys; b. persons regularly employed or associated with the parties' attorneys that are actively working on the case whose assistance is required by said attorneys in the preparation of the case, at trial, or at other proceedings in this case; c. the parties, including designated representatives for the Plaintiffs and Defendants; Case No. 1:23-cv-01341-CNS-NRN Document 38 filed 09/28/23 USDC Colorado pg 2 of 7 3 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 (“Court Personnel”); f. stenographic reporters who are engaged in proceedings necessarily incident to the conduct of this action; g. deponents and witnesses; h. any individual necessary to respond to any licensing, credentialing, peer review, quality management, or other professional inquiry; i. any insurer to a party to this matter; j. other persons by written agreement of the parties. 5. Prior to disclosing any CONFIDENTIAL information to any person listed above (other than those listed in section a, b, c, d, e, f, and g), counsel shall provide such person with a copy of this Protective Order and obtain from such person acknowledgement stating that he or she has read this Protective Order and agrees to be bound by its provisions. 6. Documents are designated as CONFIDENTIAL by placing or affixing on them (in a manner that will not interfere with their legibility) the following or other appropriate notice “CONFIDENTIAL –SUBJECT TO PROTECTIVE ORDER.” 7. Whenever a deposition involves the disclosure of CONFIDENTIAL information, the deposition or portions thereof shall be designated as CONFIDENTIAL and shall be subject to the provisions of this Protective Order. Such designation shall be Case No. 1:23-cv-01341-CNS-NRN Document 38 filed 09/28/23 USDC Colorado pg 3 of 7 4 made on the record during the deposition whenever possible, but a party may designate portions of depositions as CONFIDENTIAL after transcription, provided written notice of promptly given to all counsel of record within thirty (30) days after notice by the court reporter of the completion of the transcript. 8. Whenever it is necessary to attach or otherwise include CONFIDENTIAL information to motions or other documents filed with the court, it shall be filed as restricted Level 1 with accompanying motion to restrict in accordance with the requirements of D.C.COLO.LCiv.R 7.2. The party designating the document as confidential shall have the burden of moving the court to maintain restriction of the document. Nothing in this order may be construed as restricting any document and/or information from the public record. 9. Whenever a party inadvertently fails to designate any information as CONFIDENTIAL or to assert an applicable privilege, that party may correct such failure by giving written notice to the other party(ies) within a reasonable period of time following the discovery of the inadvertent disclosure. Upon such written notification, the corrected materials shall only be deemed CONFIDENTIAL prospectively. Substitute copies of the corrected information shall be appropriately marked and given to the other party(ies) as soon as they become available. Within ten (10) days of receipt of the substitute copies, the party(ies) receiving the CONFIDENTIAL information shall return the previously unmarked information or destroy it. 10. A party may object to the designation of particular CONFIDENTIAL information by giving written notice to the party that designated the disputed information. Case No. 1:23-cv-01341-CNS-NRN Document 38 filed 09/28/23 USDC Colorado pg 4 of 7 5 The parties agree to endeavor to make their objections within a reasonable time after the designation, but nothing herein shall be construed as limiting the ability of a party to object to the designation at any time. 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 contact the Court pursuant to its discovery dispute procedures within 15 business days 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 discovery dispute hearing is timely filedrequested, the disputed information shall be treated as CONFIDENTIAL under the terms of this Protective Order until the Court rules on the motionissue. If the designating party fails to file set such a motion hearing within the prescribed time, the disputed information shall lose its designation as CONFIDENTIAL and shall not thereafter be treated as CONFIDENTIAL in accordance with this Protective Order. In connection with a motion fileddiscovery dispute hearing 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. 11. 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 either (1) be returned to the party that designated it as CONFIDENTIAL, (2) be destroyed, or (3) the parties may retain those Documents confidentially consistent with the document retention and destruction policy of their law firm and pursuant to the continuing terms of this Protective Order. Where the parties agree to destroy Case No. 1:23-cv-01341-CNS-NRN Document 38 filed 09/28/23 USDC Colorado pg 5 of 7 6 CONFIDENTIAL documents, the destroying party shall provide all parties with an affidavit confirming the destruction. Counsel for each party may retain copies of the court papers, deposition, and trial transcripts, and attorney work product that contain Confidential Information, for the sole purpose of maintaining a complete file, and all such retained documents will not be released, disclosed, or utilized except upon express permission of the designating party or this Court after written notice to counsel for the Party that produced the documents. The termination of this action shall not relieve counsel or any party or other persons obligated hereunder from their responsibility to maintain the confidentiality of Confidential Information pursuant to this Protective Order. 12. The parties agree and stipulate that every person who obtains CONFIDENTIAL information is prohibited from using or disclosing said information for any purpose whatsoever, except as consistent with this order. 13. Nothing in this Protective Order shall require the disclosure of information that is otherwise not subject to discovery, is privileged, or constitutes attorney work product. Nothing in this Protective Order shall prejudice any objections that a party might have regarding the production of information. Nothing in this Protective Order shall be construed as an agreement that any CONFIDENTIAL information shall be excluded from evidence. 14. Neither a party’s designation of information as CONFIDENTIAL under this Protective Order, nor a party's failure to make or object to such designation, shall be admissible in evidence as a party admission or otherwise to prove any fact relevant to any claim or defense. 15. The restrictions on use of CONFIDENTIAL information set forth in this Case No. 1:23-cv-01341-CNS-NRN Document 38 filed 09/28/23 USDC Colorado pg 6 of 7 7 Protective Order shall survive the conclusion of this litigation. 16. 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. Dated this 28th day of September, 2023. BY THE COURT: U.S. Magistrate Judge Case No. 1:23-cv-01341-CNS-NRN Document 38 filed 09/28/23 USDC Colorado pg 7 of 7