HomeMy WebLinkAbout2018CV3204 - Lori Frank V. City Of Fort Collins, Terence F. Jones And Jerome Schiager - 032 - Stipulated Proposed Protective OrderIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:18-cv-03204-RBJ
LORI FRANK,
Plaintiff,
v.
CITY OF FORT COLLINS, A municipality;
TERENCE F. JONES, former Interim Chief of Police, in his individual capacity; and
JEROME SCHIAGER, former Deputy Chief of Police, in his individual capacity;
Defendants.
STIPULATED PROPOSED PROTECTIVE ORDER
Plaintiff Lori Frank and Defendants, the City of Fort Collins, Terence F. Jones, and
Jerome Schiager, by and through their respective undersigned counsel, have stipulated to the
terms of this Order. Upon a showing of good cause in support of the entry of protective order to
protect the discovery and dissemination of confidential information that will improperly annoy,
embarrass, or oppress any Party, witness, or person providing discovery in this case, IT IS
ORDERED:
RECITALS & THRESHOLD GOOD CAUSE SHOWING
1. Plaintiff has sued Defendants for alleged gender discrimination and retaliation in
violation of Title VII and the Colorado Anti-Discrimination Act, age discrimination in violation
of the Age Discrimination in Employment Act and the Colorado Anti-Discrimination Act, the
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Equal Pay Act, and violation of the Equal Protection Clause of the 14th Amendment. Defendants
deny all liability on Plaintiffs’ claims.
2. Given the nature of the case, there is good cause to believe that disclosures and
discovery may involve the disclosure of confidential information. A protective order, therefore,
is appropriate in this case.
3. Based on these recitals and the terms of disclosure that follow, the Parties have
agreed to this Stipulated Protective Order to facilitate the efficient production of information that
the producing Party may claim in good faith is entitled to confidential treatment, while at the
same time protecting the Parties’ interests in the confidential treatment of that information and
the full and fair disclosure of discoverable information in this action.
DEFINITIONS AND TERMS
1. This Protective Order shall apply to certain documents, materials, and information
designated by one of the attorneys for the Parties in the manner provided in paragraph 5 below as
containing Confidential Information.
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. Any information designated by a party as CONFIDENTIAL will first be reviewed
by counsel who will confirm that the designation as CONFIDENTIAL is based on a good faith
belief that the information is confidential or otherwise entitled to protection.
4. “Confidential Information” shall be information, documents, or materials that are
protected by a statutory, regulatory, or common law right of privacy or protection, or otherwise
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contain nonpublic personal, personnel, employment, private, medical, security-sensitive,
proprietary, trade secret, financial, personal, or other information implicating privacy interests,
proprietary interests, or safety and security concerns of the Plaintiff, any of the Defendants, or
other persons, including non-parties, providing discovery in this case. Designation of information
as CONFIDENTIAL shall not affect its discoverability. CONFIDENTIAL information shall
not be disclosed or used for any purpose except the preparation and trial (including any appeal)
of this case and no other matter.
5. Where Confidential Information is produced, provided or otherwise disclosed by
the Parties in response to any discovery request, it will be designated in the following manner:
a. By imprinting the word “Confidential” on the first page or cover of any
document produced;
b. By imprinting the word “Confidential” next to or above any response to a
discovery request; and
c. With respect to deposition or other transcribed testimony not in open
court: 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 made on the record during the deposition whenever possible, but (1) a party may
designate portions of depositions as CONFIDENTIAL after transcription, provided
written notice of the designation is promptly given to all counsel of record within thirty
(30) days after notice by the court reporter of the completion of the transcript or (2) the
parties may stipulate otherwise on the record at a deposition.
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6. Confidential Material is subject to the following restrictions. Confidential
Material may be used only for the limited purpose of preparing for and conducting this civil
action (including any appeals), and must not be disclosed in any way to anyone except:
a. attorneys actively working on this case;
b. persons regularly employed by the attorneys who have entered their
appearances in the case;
c. the parties, including Defendants’ designated representatives and insurers;
d. stenographic reporters who are engaged in proceedings in this action;
e. deposition witnesses questioned by counsel for a Party in connection with this
action, but only to the extent necessary to assist such counsel in the prosecution
or defense of this action;
f. an author or recipient of the Confidential Information to be disclosed,
summarized, described, characterized or otherwise communicated or made
available, but only to the extent necessary to assist counsel in the prosecution
of this action;
g. the Court and its employees (“Court Personnel”);
h. retained expert witnesses and consultants; and
i. other persons by written agreement of the parties.
For any disclosures to a person identified under Paragraph 6(a) through (c), prior to
disclosing any Confidential Information, counsel shall provide such person with a copy of
this Protective Order and obtain verbal or written agreement from such person that he or she
will be bound by its provisions.
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7. Individuals authorized t o 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. The Parties recognize that the available
sanctions for the violation of the protective order include, but are not limited to, the sanctions
available under Fed.R.Civ.P. 37(b)(2)(A).
8. By producing any Confidential Information or testifying on any matter later
designated as “Confidential,” no Party to this protective order waives any objection or
challenge to the admissibility of any such Confidential Information.
9. Each party shall be responsible for assuring compliance with the terms of
this Protective Order with respect to persons to whom such Confidential Information is
disclosed and shall maintain a list of all persons to whom any Confidential Information is
disclosed.
10. Upon a showing of substantial need, each party has the right to seek court
intervention, including in camera review, to determine whether the terms of the Protective
Order are being complied with.
11. No copies of Confidential Information shall be made except by or on behalf
of counsel in this litigation for work product purposes, including for review by experts in this
case. Any such copies shall be made and used solely for purposes of this litigation.
12. During pendency of this litigation, counsel shall retain custody of
Confidential Information and copies made therefrom pursuant to paragraph 11 above.
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13. A Party may object to the designation of particular Confidential Information by
giving written notice to the attorney for 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 business days after the time the notice is received, it shall be
the obligation of the attorney for 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 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 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.
14. In the event it is necessary for the Parties to file Confidential Information with the
Court in connection with any proceeding or motion, the Confidential Information shall be filed
as a restricted document in accordance with the requirements of D.C.COLO.LCivR 7.2. The
Parties agree that any such motion will be narrowly tailored and only filed with good cause in
accord with this Court’s practice standards.
15. 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. Neither the taking of
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any action in accordance with the provisions of this Protective Order, nor the failure to object
thereto, shall be construed as a waiver of any claim or defense in this action.
16. 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, and the Court shall retain continuing jurisdiction
to enforce the terms of this Protective Order, even after this action is terminated.
17. When this litigation has been fully decided, including completion of all
possible appellate procedures, such protected material shall be destroyed or returned to the
party that produced the Confidential Information. If destroyed, counsel for the party
responsible for destroying the Confidential Information will provide written verification to
the producing party that the Confidential Information has been destroyed.
18. 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.
19. The protections afforded by Fed.R.Evid. 502(d) shall apply to this matter so that
attorney-client privilege or work-product protection are not waived by inadvertent disclosure
connected with this litigation.
20. This Order is binding upon the Parties, their agents and employees, all counsel for
the Parties and their agents and employees, and all persons to whom disclosure of discovery
materials or testimony are limited pursuant to the terms of this Order. Nothing in this Order shall
preclude any Party from filing a motion seeking further or different protection from the Court
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under the Federal Rules of Civil Procedure, or from filing a motion with respect to the manner in
which confidential discovery material shall be treated at trial. This stipulation shall be binding on
the Parties prior to its entry as an Order.
21. 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.
22. The Parties agree that in the event attorney client privileged information or
documentation is inadvertently disclosed to an opposing Party, any information or
documentation so disclosed shall be immediately returned to the producing Party without any
copies being made or notes being taken regarding said information/documentation by those who
have received the inadvertent disclosure. Further, the Parties agree that no recipient of
inadvertently disclosed attorney client privileged information or documentation shall utilize such
information/documentation or any fruits derived therefrom for the purposes of this litigation and
that the inadvertent disclosure of attorney client privileged information or documentation shall
not constitute a waiver of any privilege that may otherwise apply.
IT IS SO ORDERED.
DATED this _____ day of _____________, 2019.
BY THE COURT:
________________________________________
District Court Judge
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