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- Case 1:03-cv-02461-MSK-MEH Document58 _ Filed 06/29/2005 Page 1 of9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-MK-2461 (OES) LEPRINO FOODS COMPANY, Plaintiff, v.
FELDMEIER EQUIPMENT, INC.,
Defendant.
STIPULATION REGARDING PROTECTION OF CONFIDENTIAL INFORMATION
WHEREAS, discovery in this action is likely to require the production of, among other things, CONFIDENTIAL proprietary, commercial information of or maintained by Leprino Foods Company (“‘Leprino”) and Defendant Feldmeier Equipment, Inc., (“Defendant”); and WHEREAS, good cause has been shown to warrant the issuance ofa limited Protective Order to govern the handling of such CONFIDENTIAL information in this action in order to protect it from unnecessary or inappropriate disclosure to third parties; IT IS THEREFORE STIPULATED AND AGREED, by and between the undersigned on behalf of Leprino and Defendant, as follows:
1. This Stipulation and Order shall govern the circulation and handling of deposition testimony, documents and other written or recorded information (including but not limited to computer data or software) produced by Leprino in connection with this proceeding,
2. Leprino or Defendant may designate as “CONFIDENTIAL” all or any portion of any EXHIBIT 1 4
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testimony, interrogatory answer, document (whether obtained prior to or during the litigation), or other written or recorded information (including but not limited to computer data or software) that they believe contains or compromises commercially or operationally sensitive information, proprietary commercial data, or other CONFIDENTIAL information, whether or not the party was the source of the information. Such designation shall be made in the following way for the following types of material.
DESIGNATION OF DOCUMENTS
3. Whenever the parties elect or are required to produce documents in the course of discovery, such documents shall be deemed CONFIDENTIAL only (i) if so marked on each such document or (ii) if so designated by furnishing a separate written notice to counsel of record for the party receiving such documents specifically identifying the documents as CONFIDENTIAL prior to production.
DESIGNATION OF DEPOSITION TESTIMONY
4. The parties may at any time during a deposition of one of their employees or representatives designate all or any portion of the deposition testimony as CONFIDENTIAL information protected by this Stipulation and Order by making a statement to that effect on the record at the deposition particularly describing the answers alleged to contain CONFIDENTIAL information. All answers so designated shall be treated as CONFIDENTIAL under the provisions of this Stipulation and Order. Any party may also request that only those persons specified in paragraph
6 of this Stipulation and Order be present in the deposition room during the designated portion of the
deposition, and failure of any person to comply with that request shall constitute justification either
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for the witness not to answer any question that calls for the disclosure of CONFIDENTIAL information or for counsel to suspend the deposition until the propriety of that request has been resolved by the Court.
ACCESS TO CONFIDENTIAL DOCUMENTS AND MATERIAL
5. All documents or other materials which are designated CONFIDENTIAL and delivered to counsel of record for the requesting party by any party producing information in this action shall be retained in the offices of counsel of record for the requesting party except as specifically provided in this paragraph 5. The term “counsel of record” as used herein means the individual attorneys who have filed appearances in this action and other members of their respective firms, attorneys associated with or of counsel to those firms, legal assistants and other employees or independent contractors (such as copy room employees or commercial copying services) of those firms and, as to Leprino, Leprino’s Corporate Counsel. Counsel of record for the requesting party shall ensure that only those persons identified in paragraph 6 of this Stipulation and Order may receive or have access to any CONFIDENTIAL material or information (including copies, excerpts or summaries thereof). All copies, excerpts and summaries of CONFIDENTIAL information shall also be marked and treated as CONFIDENTIAL and shall not be delivered, exhibited or disclosed in any manner or form, either directly or indirectly, in substance or otherwise, to any person except as expressly permitted by this Stipulation and Order. No one other than counsel of record shall make copies of any CONFIDENTIAL documents delivered to counsel of record. Only those persons referred to in paragraph 6(c) may remove copies of CONFIDENTIAL documents outside the offices
of counsel of record.
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Case 1:03-cv-02461-MSK-MEH Document58 _ Filed 06/29/2005 Page 4of9 DISCLOSURE OF CONFIDENTIAL INFORMATION
6. A party obtaining discovery in this action shall disclose information obtained in discovery that is required to be treated as CONFIDENTIAL under the terms of this Stipulation and Order only to the following persons, who shall be required to comply with the provisions of paragraph 7 of this Stipulation and Order, prior to receipt of CONFIDENTIAL information: ory "0
(a) Any party and counsel of record for any party, as defined in paragraph 5;
(b) Officers, directors or employees of Legeno to whom counsel of record report;
(c) Witnesses at trial or for deposition only if necessary for purposes of providing testimony;
(d) Independent experts, consultants and advisors employed or retained by counsel for the parties to perform investigative work, research, analysis or other services related to the prosecution and/or defense of this action and employees of such experts, consultants and advisors; and
(e) Deposition reporters and their employees to the extent necessary for their performance of court reporting services.
PROTECTION OF CONFIDENTIAL INFORMATION
7. Prior to the disclosure in any manner or form, either directly or indirectly, in substance or otherwise, of any CONFIDENTIAL information as permitted by this Stipulation and Order, counsel of record shall instruct each individual to whom such information is being disclosed that the information may not be disclosed in any manner or form, either directly or indirectly, in substance or otherwise, to other persons; that the information may not be copied and must remain in the person’s custody until returned to counsel of record for the requesting party; that the information is being disclosed pursuant and subject to the terms of this Stipulation and Order; that the person must not use the information or the contents thereof except for the purposes of this action; and that all information (including but not limited to any excerpts or summaries or copies thereof) must be returned to counsel of record for the requesting party upon completion of their use by said person.
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8. Any party to this action who is served by a non-party with a subpoena or other process which purports to require the production of CONFIDENTIAL information shall immediately by telephone and also in writing (including a copy of the subpoena or other process) by the fastest available means give notice to the party who produced the information. The party served with such a subpoena or other process shall not make production before required or otherwise interfere with the opportunity of the party who produced the information to be heard on an application for protection against such production.
9. In the event that any CONFIDENTIAL information is the subject of or incorporated into, attached to or submitted with any pleadings, motion papers, deposition transcripts or other any other papers filed with this Court or any other Court and said information would thereby be disclosed in any manner or form, either directly or indirectly, in substance or otherwise, the party filing the pleading or other document with the Court shall, before filing the pleading or other document, contact counsel of record for the producing party and inquire whether the producing party wishes the pleading or other document to be filed under seal. If the producing party states that the pleading or other document is to be filed under seal, then those portions of any papers which would thus disclose such information shall be filed in one or more sealed envelopes, whose contents shall not be revealed to the public except as provided in this Stipulation and Order. Each such sealed envelope shall be plainly marked CONFIDENTIAL and shall bear the captions and docket numbers of these actions, the name and general description of the document(s) contained, and the following notice:
This envelope is not to be opened nor the contents thereof to be displayed or disclosed except by Order of the Court.
Each such sealed envelope will remain in the Court's custody. Any papers or copies thereof filed
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Case 1:03-cv-02461-MSK-MEH Document 58 Filed 06/29/2005 Page 6 of9 upon the public record shall have deleted or omitted therefrom all CONFIDENTIAL information. Copies of such papers served upon counsel for the parties shall include all CONFIDENTIAL information and shall be marked CONFIDENTIAL.
USE OF CONFIDENTIAL INFORMATION AT TRIAL
10. Prior to commencement of the trial of this action, or when any listing or document(s) is filed with the Court pursuant to the rules of the Court or any pre-trial Order, whichever is earlier, or at such earlier date as this Court may order sua sponte or on motion of any person, the requesting party shall notify the producing party of its intention to disclose at trial in any manner or form, either directly or indirectly, in substance or otherwise, any information designated CONFIDENTIAL shall identify the document or the terms of this Stipulation and Order and documents or portions thereof containing such information. Use-at-trielby-anyparty-of CONEIDENTIAL-—deeumrents or the of eliciting-of _testimeny—containing CONFIDENTIAL information shal, the Court deems it > appropriate;-be.in camera-——— Nothing contained in this Agreement shall preclude the parties, their attorneys or experts from using confidential documents or information during the course of this litigation or at trial so long as such use is in accordance with the terms of this Stipulation and Order.
OBJECTING TO DESIGNATION
11. ‘In the event counsel for a party receiving documents, material or information designated as CONFIDENTIAL objects to such designation, said counsel shall advise the party producing the items within sixty days of their production of such objections and the reasons therefor. If the producing party objects to the proposed disclosure of the documents, material or information,
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all the items shall be treated as CONFIDENTIAL pending a resolution of the parties’ dispute, and it shall be the obligation of the party challenging the designation of the items as CONFIDENTIAL to seek a prompt hearing before this Court with respect to the proprietary of the designation. In the event that the challenging party seeks such a hearing, the producing party will cooperate in seeking a prompt hearing with respect thereto.
DISPOSITION OF CONFIDENTIAL INFORMATION
12. The termination of proceedings in this action shall not relieve any person to whom CONFIDENTIAL information has been disclosed from the obligations of this Stipulation and Order. Within six weeks after the termination of this action, including all appeals therefrom, counsel of record shall return all CONFIDENTIAL information that it has received during the course of this action to the party producing the information, together with all copies thereof and all excerpts and summaries thereof (regardless of by whom made), except that counsel for either party may elect to destroy documents designated as CONFIDENTIAL by the party who produced them by shredding
them rather than returning them to the party who produced them. Eaeh-eeunselofrecord-shallfile— nT
INADVERTENT PRODUCTION OF CONFIDENTIAL INFORMATION
13. The inadvertent production of any CONFIDENTIAL document, material, or information during discovery in this action without a CONFIDENTIAL designation or the
inadvertent production of any document, material or information, shall be without prejudice to any
claim that such material is CONFIDENTIAL or is privileged in any respect or protected from
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discovery as attorney work product, and no party shall be held to have waived any rights by such inadvertent production. In the event that any document that is subject to a claim of privilege or that is protected from discovery as work product is inadvertently produced, the party that received the inadvertently-produced document shall return the document together with all copies of the document to the producing party promptly after it receives a written notice from the producing party that the document was produced inadvertently.
SCOPE OF THE STIPULATION AND ORDER
14. Any non-party which produces information in this action pursuant to subpoena or otherwise may designate such information as CONFIDENTIAL as set forth in paragraph 2 of this Stipulation and Order. Such designation made by a nonparty shall have the same force and effect as if made by a party.
15. | The Court reserves full power and jurisdiction to modify, revise and/or rescind this Stipulation and Order at any time, upon motion or sua sponte. Any party may move for enforcement of this Stipulation and Order, for sanctions for violation of this Stipulation and Order, or for relief from, or general or particular modification of, this Stipulation and Order in all or any particular
circumstances.
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Agreed and stipulated to this av day of Aeurt 7 , 2004.
CAMPBELL BOHN KILLIN BRITTAN & FOWLER, SCHIMBERG & FLANAGAN, P.C.
RAY, LLC
By; | —_— By: CTY
{ Michael G. Bohn Catherine A. Tallerico ATTORNEYS FOR PLAINTIFF ATTORNEYS FOR DEFENDANT
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