Opinion
Civil Action.No. 10-cv-03116-MSK-MJW
04-23-2012
PATRICK CILLO, and INTERNATIONAL UNION OF POLICE ASSOCIATIONS, AFL-CIO ("IUPA"), Plaintiffs, v. CITY OF GREENWOOD VILLAGE. a body corporate and politic DONNIE PERRY, in bis individual capacity; JOSEPH HARVEY, in his individual capacity; and JAMES SANDERSON, in his individual capacity. Defendants.
STIPULATED AINU AGREED John A. Culver Seth J. Benezra CULVER & BENEZRA Attorneys for Plaintiff Patrick Cilia Aaron Martin Nisenson Attorney for Plaintiff IU Erie M. Ziporin Jennifer F. Kemp SENTER GOLDFARB & RICE, L.L.C. Attorneys for Defendants City of Greenwood Village, Dannie Perry, Joseph Harvey, Cecil Randy Corbitt, and, James Sanderson
MODIFIED STIPULATION AND PROTECTIVE ORDER
Each party and each Counsel of Record stipulate and move die Court for a Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment of Confidential Information (as hereinafter defined) and, as grounds therefore .state as follows;
1. In this action, at least one of die Parties will produce or has sought and/or may seek 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 Putties insert the disclosure of such information outside the scope of thus litigation could result in significant injury to one or more of the Parties business or privacy interests. The Parties have entered into this Stipulation and request the Court, enter the within Protective Order for the purpose of preventing the disclosure and use of Confidential Information except as set forth herein.
2. "Confidential Information" 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 therefrom not made available- to the public - and designated by one the Panties in the manner provided in paragraph 3 below as containing Confidential Information on, including, but not limited to:
a. Employee personnel files:
b. Internal affairs investigation files;
c. documents relating to employee discipline; and
d. other private or confidential documents re Lied to Plaintiffs' claims in this action.
3. 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" or. 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;
e. With respect to transcribed testimony. by giving written notice m opposing counsel designating such portions as "Confidential" no later than tea calendar days after receipt: of the transcribed testimony; and
d. With respect to live testimony, by making a record at the time of the 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 he used only for the purpose of this litigation and not for any business or other pus pose whatsoever:
b. It shall not be communicated or disclosed by any Party's counsel or a Party in any manner, either directly or indirectly, to anyone (1) except tor purpose of this case or discovery in Jones v. City o:'Greenwood Village et al., No. 11-cv-01448-RPM find (2) unless an affidavit in the form of Exhibit A has been signed.
5. Individuals authorized to review Confidential Information pursuant to this Protective Order including, but not limited to, the Panics to ibis action, their undersigned counsel, their undersigned counsel's employee, self-insuraree representatives, and the Parties to case number 11-cv-01448-RPM and their counsel shall hold Confidential Information in confidence and shall nor divulge the Confidential Information, enter 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 order Fed.R.Civ.P. 37(b)(2)(A).
6. 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.
7. The Party's counsel who discloses Confidential Information shall be responsible for assuring compliance with the corns of this Protective Order with respect to persons to whom such Confidential Information is disclosed and shall obtain and retain the original affidavits signed by qualified recipients on Confidential Information, and shall maintain a list of all persons to whom any Confidential Information is disclosed.
8. During the pendency of this action, opposing counsel may inspect the list maintained by counsel pursuant to paragraph 7 above upon a showing of substantial need in order to establish the source of a unauthorized disclosure of Confidential Information and that opposing counsel are unable to otherwise identify the source of the disclosure. If counsel disagrees with opposing counsel's showing of substantial need, then counsel may seek a court order requiring inspection under terms deemed appropriate by the Court.
9. 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.
10. During pendency of this litigation, counsel shall retain custody of Confidential Information and copies made therefrom pursuant to paragraph 9 above
11. 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 die objection within ten (H) 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 Conn, determine whether the disputed information should be subject to the terms of this Protective Order. If such a motion is timely fled, the disputed information shall be treated as confidential under the term of this Protective Order until the Court rules on the motion. If the designating party fails to file such a motion within the prescribed tune, the disputed Information shall lose its designation as confidential and shall not thereafter he 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 hear the burden of establishing that good cause exists for the disputed information to be treated as confidential.
12. In the event i! is necessary for the Parties to file Confidential Information with the Court in connection with any proceeding or motion, the Confidential information shall be tiled in accordance with the requirement of D.C.COLO.LCivR 7.2.
13. By agreeing to the entry of this Protective Order, the Parties adopt no position us to the authenticity or admissibility of documents produced subject to it; Neither the taking of 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 actual.
14. 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, until termination of this case.
5. When this litigation has been fully decided, including completion of all possible appellate procedures, such protected material shall be destroyed or preserved by counsel in a manner which is fully consistent with the spirit of use protective order. At the end of litigation, counsel will not be required to return the material.
10. Nothing in this Protective Order shall preclude any Party from filing a motion seeking further or different protection from the Court under Rule 26(e) of the Federal Rules of Civil Procedure, or from filing a motion with respect to die manner in which Confidential Information Shall be treated at trial
17. The Parties agree that in die event 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 information or documentation shall utilize such Information/documentation or any fruits derived therefrom for the purposes of this litigation and that the inadvertently tent disclosure of Information or documentation shall not constitute a waiver of any privilege that may otherwise apply.
BY THE COURT:
__________________
Michael J. Watanabe
United States Magistrate Judge
STIPULATED AINU AGREED TO:
______________
John A. Culver
Seth J. Benezra
CULVER & BENEZRA
Attorneys for Plaintiff Patrick Cilia
____________________
Aaron Martin Nisenson
Attorney for Plaintiff IU PA
_____________
Erie M. Ziporin
Jennifer F. Kemp
SENTER GOLDFARB & RICE, L.L.C.
Attorneys for Defendants City of Greenwood Village, Dannie Perry, Joseph Harvey, Cecil Randy
Corbitt, and, James Sanderson
AFFIDAVIT
STATE OF COLORADO)
)ss
county or)
_________, swears or affirms and stales under penalty of perjury:
1. I have read the Protective Order in __________, a copy of which is attached 1o this Affidavit.
2. I have been informed by __________, Esq., counsel for __________, that the materials described in the list attached to this Affidavit are Confidential Information as defined in the Protective Order.
3. I promise that I have no: and will not divulge or undertake to divulge to any person or recording device any Confidential Information shown or told to me except as authorized in the Protective Order. I will not use the Confidential Information for any purpose other than this litigation.
4. For the purpose of enforcing the leans of die Protective Order. I hereby submitmyself to the jurisdiction of lire court in die civil action referenced above.
5. I will abide by the terms of the Protective Order.
__________
(Signature)
___________________
(Print or Type Name)
Address:
__________
Telephone No.: __________
SUBSCRIBED AND SWORN to before me this __________ day of __________, 200 ___, by __________?
WITNESS my hand and official seal.
__________
Notary Public
My commission expires: __________
[SEAL]