United States District Court, D. Colorado
Marcia S. Krieger Magistrate Judge.
Kathleen M. Tafoya, United States Magistrate Judge.
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and for good cause, IT IS HEREBY ORDERED THAT:
1. Scope of Protection
This Protective Order shall govern any record of information produced in this action and designated pursuant to this Protective Order, including all designated deposition testimony, all designated testimony taken at a hearing or other proceeding, all designated deposition exhibits, interrogatory answers, admissions, documents and other discovery materials, whether produced informally or in response to interrogatories, requests for admissions, requests for production of documents or other formal methods of discovery.
This Protective Order shall also govern any designated record of information produced in this action pursuant to required disclosures under any federal procedural rule or local rule of the Court and any supplementary disclosures thereto.
This Protective Order shall apply to the parties and to any nonparty from whom discovery may be sought who desires the protection of this Protective Order.
Nonparties may challenge the confidentiality of the protected information by filing a motion to intervene and a motion to de-designate.
(a) The term PROTECTED INFORMATION shall mean confidential or proprietary technical, scientific, financial, or business information designated as such by the producing party.
(b) The term CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY, shall mean PROTECTED INFORMATION that is so designated by the producing party. The designation CONFIDENTIAL - ATTORNEYS EYES ONLY may be used only for the following types of past, current, or future PROTECTED INFORMATION: (1) sensitive technical information, including current research, development and manufacturing information and patent prosecution information, (2) sensitive business information, including highly sensitive financial or marketing information and the identity of suppliers, distributors and potential or actual customers, (3) competitive technical information, including technical analyses or comparisons of competitor’s products, (4) competitive business information, including non-public financial or marketing analyses or comparisons of competitor’s products and strategic product planning, or (5) any other PROTECTED INFORMATION the disclosure of which to non-qualified people subject to this Protective Order the producing party reasonably and in good faith believes would likely cause harm.
(c) The term CONFIDENTIAL INFORMATION shall mean all PROTECTED INFORMATION that is not designated as "CONFIDENTIAL -ATTORNEYS EYES ONLY" information.
(d) The term TECHNICAL ADVISOR shall refer to any person who is not a party to this action and/or not presently employed by the receiving party or a company affiliated through common ownership, who has been designated by the receiving party to receive another party’s PROTECTED INFORMATION, including CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY, and CONFIDENTIAL INFORMATION. Each party’s TECHNICAL ADVISORS shall be limited to such person as, in the judgment of that party’s counsel, are reasonably necessary for development and presentation of that party’s case. These persons include outside experts or consultants retained to provide technical or other expert services such as expert testimony or otherwise assist in trial preparation. TECHNICAL ADVISORS do not include employees of outside counsel of record in this case (i.e., paralegals, secretaries, etc.) or professional vendors (i.e., persons or entities that provide litigation support services to outside counsel of record - photocopying, videotaping, translating, exhibit or demonstration preparation, data retrieval, etc. - and their employees or subcontractors).
3. Disclosure Agreements
(a) Each receiving party’s TECHNICAL ADVISOR shall sign a disclosure agreement in the form attached hereto as Exhibit A, which shall be provided to the other party promptly after execution. No disclosures shall be made to a TECHNICAL ADVISOR for a period of five (5) business days after the disclosure agreement is provided to the other party.
(b) Before any PROTECTED INFORMATION is disclosed to a TECHNICAL ADVISOR, the following information must be provided in writing to the producing party and received no less than five (5) business days before the intended date of disclosure to that TECHNICAL ADVISOR: the identity of that TECHNICAL ADVISOR, business address and/or affiliation and a current curriculum vitae of the TECHNICAL ADVISOR, and, if not contained in the TECHNICAL ADVISOR’s curriculum vitae, a brief description, including education, present and past employment and general areas of expertise of the TECHNICAL ADVISOR. If the producing party objects to disclosure of PROTECTED INFORMATION to a TECHNICAL ADVISOR, the producing party shall within five (5) business days of receipt serve written objections identifying the specific basis for the objection, and particularly identifying all information to which disclosure is objected. Failure to object within five (5) business days shall authorize the disclosure of PROTECTED INFORMATION to the TECHNICAL ADVISOR. As to any objections, the parties shall for a period of seven (7) days negotiate in good faith to promptly resolve any objections informally. If the objections cannot be resolved, the party seeking to prevent disclosure of the PROTECTED INFORMATION to the expert shall move for an Order of the Court preventing the disclosure. The burden of proving that the designation is proper shall be upon the producing party. If no such motion is made within five (5) business days of the parties reaching an impasse during the seven-day negotiation period outlined above, disclosure to the TECHNICAL ADVISOR shall be permitted. In the event that objections are made and not resolved informally and a motion is filed, disclosure of PROTECTED INFORMATION to the TECHNICAL ADVISOR shall not be made except by Order of the Court.
(c) Any disclosure agreement executed by any person affiliated with a party shall be provided to any other party who, based upon a good faith belief that there has been a violation of this order, requests a copy.
(d) No party shall attempt to depose any TECHNICAL ADVISOR until such time as the TECHNICAL ADVISOR is designated by the party engaging the TECHNICAL ADVISOR as a testifying expert. Notwithstanding the preceding sentence, any party may depose a TECHNICAL ADVISOR as a fact witness provided that the party seeking such deposition has a good faith, demonstrable basis independent of the disclosure agreement of Exhibit A or the information provided under subparagraph (a) above that such person possesses facts relevant to this action, or facts likely to lead to the discovery of admissible evidence; however, such deposition, if it precedes the designation of such person by the engaging party as a testifying expert, shall not include any questions regarding the scope or subject matter of the engagement. In addition, if the engaging party chooses not to designate the TECHNICAL ADVISOR as a testifying expert, the non-engaging party shall be barred from seeking discovery or trial testimony as to the scope or subject matter of the engagement.
4. Designation of Information
(a) Documents and things produced or furnished during the course of this action shall be designated as containing CONFIDENTIAL INFORMATION by placing on each page, each document (whether in paper or electronic form), or each thing a legend substantially as follows:
(b) Documents and things produced or furnished during the course of this action shall be designated as containing information which is CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY by placing on each page, each document (whether in paper or electronic form), or each thing a legend substantially as follows:
CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY
(c) During discovery a producing party shall have the option to require that all or batches of materials be treated as containing CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY during inspection and to make its designation as to particular documents and things at the time copies of documents and things are furnished.
(d) A party or non-party may designate information disclosed at a deposition as CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY by so indicating on the record at the deposition and requesting the preparation of a separate transcript of such material. In addition, a party or non-party may designate in writing, within fourteen (14) days after receipt of the deposition transcript for which the designation is proposed, that specific pages of the transcript and/or specific responses be treated as “CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY. Alternatively, the designating party may specify at the deposition or up to 14 days after receipt of the transcript that the entire transcript be treated as CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY. Each deposition transcript shall be treated as designated CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY in its entirety until the expiration of the 14-day period to specifically designate the deposition transcript, unless otherwise agreed. After the expiration of the 14-day period, the transcript shall be treated only as actually designated. After any designation made according to the procedure set forth in this paragraph, Counsel for all parties shall be responsible for marking all previously unmarked copies of the designated material in their possession or control with the specified designation.
(e) A producing party shall designate its discovery responses, responses to requests for admission, briefs, memoranda and all other papers sent to the court or to opposing counsel as containing CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY when such papers are served or sent.
(f) The parties will use reasonable care to avoid designating any documents or information as CONFIDENTIAL INFORMATION or as CONFIDENTIAL INFORMATION - ATTORNEYS EYES ONLY that is not entitled to such designation or which is generally available to the public. The parties shall designate only that part of a document or deposition that is CONFIDENTIAL INFORMATION or ...