Opinion
Civil No. 2:04CV00261 DB.
June 4, 2004
MANNING CURTIS BRADSHAW BEDNAR LLC, Kathleen W. Toth, Chad R. Derum, Salt Lake City, Utah, Attorneys for Defendant Wal-Mart Stores, Inc.
DAVID K. ISOM LAW OFFICES, Matthew R. Howell, Attorneys for Plaintiff Ana Bilal.
PROTECTIVE ORDER
The parties have stipulated and agreed to entry of a proposed Protective Order. Judge Dee V. Benson, having reviewed the stipulation and proposed Protective Order of the parties, and for good cause appearing, hereby
ORDERS AS FOLLOWS:
1. Confidential Information. It is anticipated that some documents, testimony and information to be disclosed in the discovery or trial of this action will be entitled to be treated as "confidential information" deserving of protection under this Order. Confidential information shall include only information that has not previously been made public. The party producing the information shall not designate any information as "confidential" unless the party has a good faith basis for doing so. Nothing in this protective order shall be construed to alter the burdens of proof or persuasion that a party may otherwise bear in demonstrating that particular information is entitled to the protections of this order.
2. Designation of Confidential Information. Any document or information produced in discovery or entered in the record may be designated as confidential information by the producing party placing a stamp "Confidential" on each page of the document or otherwise marking the source containing the confidential information with the word "Confidential." Depositions may be designated as confidential by either party noting on the deposition record the particular answers or subject matter claimed to be entitled to protection under this Order or by serving written notice on the opposing party within 15 days after receipt of the transcription of the deposition record. If the opposing party objects to the confidential designation, that party shall object on the deposition record or give written notice of objection to the other party. In the event the parties are unable to agree on whether particular documents or testimony merit inclusion under the terms of this Protective Order, the party seeking to keep the documents or testimony confidential may file a Motion for a Protective Order with the Judge within 15 days after receipt of the deposition transcription or service of written notice objecting to the confidential designation. The disputed documents or testimony shall be treated as subject to the provisions of this Protective Order pending the decision of the Judge. If part of a deposition contains information agreed or determined to be subject to the Protective Order, only those portions of the deposition designated as confidential shall be subject to the provisions of the Protective Order.
3. Use of Confidential Information. Information designated as confidential may be used only by those persons listed in paragraph 5 of this Protective Order and only for purposes necessary to this litigation and for no other purpose. No confidential information may be disclosed to any person or entity not listed in Paragraph 5 of this Protective Order without the written consent and approval of the opposing party, which shall be provided, if appropriate, within 10 days after a request to disclose confidential information is received from the other party. In the event the parties are unable to agree to the use of confidential information by a particular non-party, the issue may be submitted to the Judge by the party seeking to allow disclosure of the confidential information within 15 days after consent to allow disclosure is denied. Any non-party who is allowed access to confidential information shall be required to sign a statement confirming that the non-party has read and agrees to abide by the terms of this Protective Order and that the non-party shall not, directly or indirectly, use, disclose or disseminate, or attempt to use, disclose or disseminate, any confidential information except as required in the context of this litigation.
4. Confidential Information. Any such "Confidential Information" filed with the Court shall be filed pursuant to and be governed by D.U. Civ. R. 5-2(d).
5. Access to Confidential Information. Access to information subject to this Order shall be limited to the following persons and to no others without written consent from the producing party or order of the Court:
(a) the Judge;
(b) parties of record;
(c) counsel of record for the parties, and secretaries, paralegals and other staff employed in the offices of counsel of record; and
(d) non-party witnesses anticipated to testify at trial, whose testimony reasonably requires access to information subject to this Protective Order; such witnesses shall be provided with a copy of this Protective Order and sign a certification that they understand and accept that information subject to this Order may be used only for purposes of this litigation and for no other purpose. "Consulting experts" as defined in Fed.R.Civ.P. 26(b)(4)(B) may review confidential information described herein provided that within 30 days of any disclosure of confidential information the disclosing party submits to the producing party a certification signed by the consulting expert stating that the consulting expert has received a copy of this Order and understands and accepts that information subject to this Order may be used only for purposes of this litigation and for no other purpose.
6. Copying of Confidential Information. Parties and their respective counsel shall be entitled to make only such copies of any information subject to this Order as are reasonably required to conduct this litigation.
7. Use of Confidential Information at Trial. The parties reserve the right to protect designated confidential information subject to this Protective Order by moving to limit the attendance of persons at trial or to seal documents introduced into evidence at trial. Subject to D.U. Civ. R. 5-2 and any limitations the court may place thereon, nothing in this Order shall in any way limit the use of confidential information during the trial of this matter, including in introducing such information as evidence.
8. Obligations of Counsel. Counsel for each party shall take reasonable precautions to prevent the unauthorized or inadvertent disclosure of any confidential information.
9. Return After Trial or Settlement. At the conclusion of this litigation, counsel for the party receiving confidential information shall return to counsel for the producing party all confidential information and all copies, extracts and summaries thereof produced by the producing party.
10. Waiver. Nothing contained herein shall waive any objection by a party to the disclosure or admissibility of any document or information.
11. Release of Record on Appeal. In the event of an appeal, no provision herein shall be construed to restrict the right or ability of counsel for any party to obtain custody of the record on appeal as otherwise allowed by the rules of the applicable appellate court.