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Let's Go Aero, Inc. v. U-Haul International, Inc.

United States District Court, D. Colorado

April 20, 2016

LET’S GO AERO, INC., a Colorado corporation, Plaintiff,
v.
U-HAUL INTERNATIONAL, INC., a Nevada corporation, and WYERS PRODUCTS GROUP, INC., a Colorado corporation d/b/a TRIMAX Defendants.

PLAINTIFFS’ PROPOSED PROTECTIVE ORDER [WITH DEFENDANT’S DISPUTED LANGUAGE AT P. 10]

Nina Y. Wang, United States Magistrate Judges.

Let’s Go Aero, Inc., U-Haul International, Inc. and Wyers Products Group, Inc. (collectively the “Parties, ” and individually a “Party”) anticipate that discovery in this action will require the production of documents, things, and testimony that may contain confidential, sensitive, or proprietary information. In the interest of expediting discovery and limiting disputes regarding access to such information, the Parties hereby stipulate and agree to the request for, and entry of, the Protective Order set forth below. This Protective Order does not address protections for production of source code, metadata, computer codes or similar electronic information as the Parties do not foresee the need to produce such information or data. The Parties agree that if such information or data is produced, the Parties will meet and confer on an amendment to this Protective Order or to a separate stipulated protective order to cover the production of source code, metadata, computer codes or similar electronic information.

Based on the stipulation of the Parties, and for good cause shown, IT IS HEREBY ORDERED THAT:

1. All documents, information, and items produced in the course of discovery, including initial disclosures; responses to interrogatories and requests for admissions; production and disclosure of documents, information, and items; subpoenas; private mediation or alternative dispute resolution; and deposition testimony and exhibits, whether produced by a Party or nonparty, shall be subject to this Protective Order as set forth below.

2. Any information or materials produced by any Party or nonparty as part of discovery in this action may be designated by such Party or nonparty (the “Designating Party”) as (1) “CONFIDENTIAL” or (2) “ATTORNEYS’ EYES ONLY” ((1) and (2) collectively referred to as “Designated Material”) under the terms of this Protective Order. The protections conferred by this Protective Order also apply to: (1) any information copied or extracted from Designated Material; (2) all copies, excerpts, summaries, or compilations of Designated Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Designated Material. The protections conferred by this Protective Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to the receiving Party or becomes part of the public domain after its disclosure to a receiving Party as a result of publication not involving a violation of this Protective Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the receiving Party prior to the disclosure or obtained by the receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party; any document that is subject to a court order denying protection under this Order. Any use of Designated Material at trial shall be governed by a separate agreement or order.

3. By designating something as Designated Material, counsel for the Designating Party certifies under Rule 26(g) of the Federal Rules of Civil Procedure that to the best of counsel’s knowledge, information, and belief formed after a reasonable inquiry that the designation is (a) consistent with the Federal Rules of Civil Procedure and warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (b) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (c) not unreasonable.

4. Subject to Paragraph 3 above, information or materials may be designated as CONFIDENTIAL if the Designating Party believes in good faith that such information or materials must be protected against disclosure to third parties. Absent a specific order by this Court, once designated as CONFIDENTIAL, such designated information shall be used by and on behalf of the receiving Party solely in connection with this litigation, and not for any business, competitive, or governmental purpose or function, and such information shall not be disclosed to anyone by or on behalf of the receiving Party except as provided herein.

5. Subject to Paragraph 3 above, information or materials may be designated as ATTORNEYS’ EYES ONLY if the Designating Party believes in good faith that such materials comprise highly confidential information that likely would be of value to a supplier, competitor, or potential customer of the Designating Party possessing the information and that therefore must be protected from disclosure. ATTORNEYS’ EYES ONLY information may include, without limitation, trade secrets, highly sensitive technical information, highly sensitive financial information, marketing plans and forecasts, pricing and cost information, and customer names and lists. Absent a specific order by this Court, once designated as ATTORNEYS’ EYES ONLY, such designated information shall be used by the Parties solely in connection with this litigation, and not for any business, competitive, or governmental purpose or function, and such information shall not be disclosed to anyone except as provided herein.

6. The designation of information or material as CONFIDENTIAL or ATTORNEYS’ EYES ONLY for purposes of this Protective Order shall be made in the following manner by the Designating Party:

a. In the case of documents, exhibits, briefs, memoranda, interrogatory responses, responses to requests for admission, or other materials (apart from depositions or other pretrial or trial testimony): by affixing the words CONFIDENTIAL or ATTORNEYS’ EYES ONLY, as appropriate, to each page of any document containing any confidential information or material at the time such documents are produced or such information is disclosed, or as soon thereafter as the Designating Party becomes aware of the confidential nature of the information or material disclosed and sought to be protected hereunder. A Party or nonparty that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed ATTORNEYS’ EYES ONLY. After the inspecting Party has identified the documents it wants copied and produced, the Designating Party must determine which documents, or portions thereof, qualify for protection under this Stipulated Protective Order. Then, before producing the specified documents, the Designating Party must affix the appropriate designation (“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”) to each page that contains confidential information. If only a portion or portions of the material on a page qualifies for protection, the producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted;
b. In the case of depositions or other pretrial or trial testimony: (i) by a statement on the record, by counsel, during such deposition or other pretrial or trial proceeding that the entire transcript or a portion thereof shall be designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY, as appropriate, hereunder; or (ii) by written notice of such designation sent by the Designating Party to all Parties within 15 days after the Designating Party’s receipt of the transcript of the deposition from the court reporter. The Parties shall treat all deposition and other pretrial and trial testimony as ATTORNEYS’ EYES ONLY until the expiration of 15 days after the Designating Party’s receipt of the transcript of the deposition from the court reporter. The Parties may modify this procedure for any particular deposition or proceeding through agreement on the record at such deposition or proceeding or otherwise by written stipulation, without further order of the Court. If any document or information designated as CONFIDENTIAL or ATTORNEYS’ EYES ONLY is used during the course of a deposition, that portion of the deposition record reflecting such confidential information shall be sealed and stamped with the designated degree of confidentiality, and access thereto shall be limited pursuant to the terms of this Protective Order, including the exclusion from the deposition of those persons not eligible to receive access to the materials so designated.

7. Information or material designated as CONFIDENTIAL, or copies or extracts therefrom and compilations and summaries thereof, may be disclosed, summarized, described, characterized, or otherwise communicated or made available in whole or in part only to the following persons:

a. The Parties’ outside counsel of record in this action and the Parties’ house counsel, as well as the regular and temporary employees of such outside counsel and house counsel to whom it is necessary that the information or material be shown for the purposes of this litigation;
b. Employees of the Parties whose assistance is needed by counsel for the purposes of this litigation and subject and conditioned upon compliance with paragraph 11 below;
c. Consultants as defined in paragraph 9 below and pursuant to the provisions of Paragraph 10 below and subject and conditioned upon compliance with Paragraph 10 below;
d. The Court and its personnel;
e. Court reporters employed in connection with this action and their staff;
f. Imaging, copy, graphics or design vendors retained by counsel for a Party for purposes of preparing documents during litigation or preparing demonstrative or other exhibits for deposition, trial, or other court proceedings in this action and their employees and subcontractors, subject to and conditioned upon compliance with Paragraph 11 below;
g. Jury or trial consulting services retained by counsel for a Party, subject to and conditioned upon compliance with Paragraph 11 below;
h. During their depositions, witnesses in the action to whom disclosure is reasonably necessary, subject to and conditioned upon compliance with Paragraph 11 below, unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Designated Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Protective Order;
i. The creator(s), author(s), or prior recipient(s) of a document containing information designated as CONFIDENTIAL, provided it is established in the document or by agreement of the Parties to this action that the ...

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