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Avalon Condominium Assocation, Inc. v. Secura Insurance

United States District Court, D. Colorado

September 29, 2014

AVALON CONDOMINIUM ASSOCATION, INC., Plaintiff,
v.
SECURA INSURANCE, A MUTUAL COMPANY, Defendant.

PROTECTIVE ORDER

KATHLEEN M. TAFOYA, Magistrate Judge.

This matter is before the court on "Defendant Secura Insurance, a Mutual Company's Motion for (1) Entry of Confidential Protective Order and (2) For in Camera Review of Redacted and Withheld Documents" [Doc. No. 46].

It appears that the parties are in conflict over whether a blanket protective order should be entered in this case which would protect confidential information about the business of the Defendant insurance company in connection with production of discovery in this case.

Blanket protective orders do nothing more than place upon the parties themselves, or others from whom discovery is sought, the initial burden of determining what information is entitled to protection. A blanket protective order "requires that counsel for a producing party review the information to be disclosed and designate the information it believes, in good faith, is confidential or otherwise entitled to protection. The designated information is thereafter entitled to the protections afforded by the blanket protective order." Gillard v. Boulder Valley School Dist. Re.-2, 196 F.R.D. 382, 386 (D. Colo. 2000)(emphasis added). A proper blanket protective order must contain provisions for challenging the marking of a document as confidential. Id. "Judicial review of a party's designation as confidential occurs only when there is such an objection which the parties cannot resolve by agreement." Id.

The agreement of all parties is not required for the entry of a blanket protective order. Id .; See Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 121 F.R.D. 264, 268 (M.D. N.C. 1988). The Protective Order entered by a court, however, must conform with the following

First, a party must make some threshold showing of good cause to believe that discovery will involve confidential or protected information. This may be done on a generalized as opposed to a document-by-document basis. Moreover, even though a blanket protective order permits all documents to be designated as confidential, a party must agree to only invoke the designation in good faith. After receiving documents, the opposing party has the right to contest those documents which it believes not to be confidential. At this stage, the party seeking the protection shoulders the burden of proof in justifying retaining the confidentiality designation. Thus, the burden of proving confidentiality never shifts from the party asserting that claim-only the burden of raising that issue.

Parkway, id. Blanket protective orders serve the interests of a just, speedy, and less expensive determination of complex disputes by alleviating the need for and delay occasioned by extensive and repeated judicial intervention. In the context of this case, the court cannot fathom why the Plaintiff objects to such an order nor why the Plaintiff has chosen to "not fully brief[] this issue because it submits that an oral, in person hearing, would allow the Court to make more expedient judicial determinations." (Plaintiff's Response to Defendant Secura Insurance, a Mutual Company's Motion for (1) Entry of Confidential Protective Order [Doc. No. 49] at 2.) To the contrary, the Plaintiff's objection appears completely frivolous in light of the fact it stands to obtain full production of the information it seeks if only it agrees to treat the information as confidential to this case absent a court order to the contrary. As stated by Judge Boland in Gillard, "[i]n view of increasingly complex cases and the existing workload of the trial courts, "[b]lanket protective orders are essential to the functioning of civil discovery. [A]bsent [such orders], discovery would come to a virtual standstill...." Gillard at 386, quoting Bayer AG and Miles, Inc. v. Barr Laboratories, 162 F.R.D. 456, 465-66 (S.D.N.Y. 1995) (disagreed with on other grounds S.E.C. v. TheStreet.Com, 273 F.3d 222 (2nd Cir. 2001).)

The court finds that the Defendant has made 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. Therefore, the court enters the following

PROTECTIVE ORDER

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.

3. Information designated "CONFIDENTIAL" shall be information that is confidential and implicates common law and statutory privacy interests of the parties in confidential, proprietary, or trade secret information that may be subject to discovery in this action, but that should not be made publicly available. CONFIDENTIAL information shall not be disclosed or used for any purpose except the preparation and trial of this case.

4. CONFIDENTIAL documents, materials, and/or information (collectively "CONFIDENTIAL information") shall not, without the consent of the party producing it or further Order of the Court, be ...


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