Boulter v. Noble Energy, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:20-cv-00861-WJM-SBP
MIKE BOULTER,
BOULTER, LLC,
RALPH NIX PRODUCE, INC., and
BARCLAY FARMS, LLC, on behalf of themselves and classes of similarly situated persons,
Plaintiffs,
v.
NOBLE ENERGY, INC., and
KERR-MCGEE OIL & GAS ONSHORE, LP,
Defendants.
ORDER ON MOTIONS TO ENFORCE PROTECTIVE ORDER AND TO
RESTRICT DOCUMENTS
Susan Prose, United States Magistrate Judge
This case is closed, but the court has before it two motions. Defendant Kerr-McGee Oil
& Gas Onshore LP (“KMOG”) moves to enforce a stipulated protective order governing
confidential information produced in discovery in this matter. ECF No. 72 (“Motion to
Enforce”). Plaintiffs Mike Boulter, Ralph Nix Produce, Inc., and Barclay Farms, LLC
(“Plaintiffs”) move for leave to restrict four documents that they filed in response to the Motion
to Enforce. ECF No. 78 (“Motion to Restrict).1 The Motions are referred. ECF Nos. 73, 77. For
1 Three of the four named Plaintiffs in this case––Mr. Boulter, Ralph Nix Produce, and Barclay
Farms––originally docketed the Motion to Restrict at ECF No. 76, but that filing inadvertently
included two copies of a proposed order without the Motion to Restrict. The Motion to Restrict
was then filed at ECF No. 78.
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 1 of 16

2
the reasons that follow, the Motion to Enforce is GRANTED, subject to the limitations on relief
as set forth below, and the Motion to Restrict is GRANTED.
I. 	Procedural History
The court begins with the salient aspects of the complex procedural history of the
litigation between the parties here.
In 2020, Plaintiffs brought the instant case, a purported class action, against KMOG and
Noble Energy, Inc. ECF Nos. 1 (complaint); 7 (amended complaint). For clarity, the court will
refer to this case as “Boulter I.” Both Defendants moved to dismiss the action. ECF Nos. 23, 24.
They also sought to stay discovery pending the resolution of their motions to dismiss, which
Judge Kristen L. Mix, the United States magistrate judge previously assigned to the case, denied.
ECF No. 47. On December 2, 2020, Judge Mix entered a Stipulated Protective Order and
Confidentiality Agreement, ECF No. 53 (“Protective Order”), which defined “Confidential
Information” as encompassing “information that the designating person or entity reasonably and
in good faith believes constitutes, contains, or comprises confidential or sensitive business or
financial information or documents.” Id. ¶ 3. The Protective Order circumscribed the use of all
“Confidential Information”:
All CONFIDENTIAL information, and any notes, work papers, summaries, or
other documents prepared from such CONFIDENTIAL information, may be used
by the receiving Party solely in connection with the Litigation and may not be
disclosed by the receiving Party[.]
Id. ¶ 6 (emphasis added). As pertinent to the dispute raised in the Motion to Enforce, KMOG
produced certain documents designated as “Confidential Information” under the Protective Order
on February 4, 2021. See Motion to Enforce at 3.
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 2 of 16

3
On February 17, 2021, Judge Martínez granted Defendants’ motions to dismiss for lack
of subject matter jurisdiction because Plaintiffs had failed to comply with then-existing
exhaustion requirements under state law. ECF No. 58 (order); ECF No. 59 (final judgment).
Boulter I was closed on the same date. Plaintiffs did not appeal in Boulter I.
More than two years after judgment entered in Boulter I, Plaintiffs filed a motion to
reopen the matter pursuant to Federal Rule of Civil Procedure 60(b). Judge Martínez denied that
motion on November 22, 2023. ECF No. 71 (order).
On May 22, 2024, Plaintiffs brought a new case against KMOG: Mike Boulter et al. v.
Kerr-McGee Oil & Gas Onshore, LP, No. 24-cv-01459-SKC-KAS (D. Colo.). The parties refer
to the new case as Boulter VI, as does this court.
On June 13, 2024, KMOG filed a motion to dismiss in Boulter VI, ECF No. 8, which
Judge Crews recently denied. Plaintiffs’ response to that motion to dismiss signals the dispute
about the confidential information that is at issue in the Motion to Enforce now before this court:
On July 10, 2024, Plaintiffs’ counsel conferred with KMOG’s counsel regarding
their motion to file the relevant policy and procedure produced by KMOG in
underlying litigation (Boulter I) as restricted. Even though[] the document was
originally produced in February 2021,2 on July 10, 2024, KMOG asserted, for the
first time, that the relevant document is protected by the attorney-client privilege,
2 It is apparent from the documents appended to Plaintiffs’ response to the motion to dismiss that
this “document” actually refers to two separate documents: one called the “Rockies Settlement
Marketing Exemptions Guideline” and the other called the “Wattenberg Marketing Exemptions.”
See Boulter VI, ECF Nos. 14 to 14-4. Plaintiffs assert that the two documents contain different
iterations of the same policy, which they collectively call the “Guidelines.” ECF No. 14 at 2. In
this order, the court refers to these confidentially-designated documents as the “Guidelines.”
Relatedly, the court notes that the Motion to Enforce does not specifically refer to the bates-
range encompassing the Wattenberg Marketing Exemptions, see ECF No. 72 ¶ 9, which appears
to have been a scrivener’s error. The court construes the Motion to Enforce as seeking protection
for both components of the “Guidelines.”
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 3 of 16

4
and that the document was inadvertently produced by KMOG back in 2021.
Plaintiffs disagree with KMOG’s position that the document is privileged and will
promptly file a Motion for In Camera Review for the [Boulter VI] Court to
determine whether the document is protected by the asserted privilege.
Boulter VI, ECF No. 13 at 12 n.4. As they had indicated, on July 16, 2024, Plaintiffs filed a
document titled “Motion for In Camera Review and Determination Regarding Applicability of
Attorney-Client Privilege” on July 16, 2024. Boulter VI, ECF No. 14 (“In Camera Motion”).
KMOG took several steps in response to Plaintiffs’ filings in Boulter VI. First, KMOG
filed the instant Motion to Enforce on July 18, 2024. ECF No. 72. A week later, in Boulter VI,
KMOG moved to strike Plaintiffs’ response to the motion to dismiss and the In Camera Motion
on grounds that the use of the Guidelines in those filings violates the Protective Order issued in
Boulter I. Boulter VI, ECF No. 19.3
Finally, as relevant to the procedural timeline, Plaintiffs filed the Motion to Restrict on
July 30, 2024, asking this court to restrict access to certain documents, including the Guidelines,
appended to their response to the Motion to Enforce. Boulter I, ECF No. 78.
The court first addresses KMOG’s Motion to Enforce, then turns to Plaintiffs’ Motion to
Restrict.
II. 	Motion to Enforce
In the Motion to Enforce, KMOG argues that Plaintiffs violated the Protective Order by
using the Guidelines produced in Boulter I in the litigation in Boulter VI, by retaining and
refusing to destroy the Guideline after Defendants clawed them back, and by refusing to certify
3 Very recently, Judge Crews denied both the motion to strike and the In Camera Motion without
prejudice. Boulter I, ECF No. 47 at 10. That ruling does not affect this court’s evaluation of the
pending Motion to Enforce and Motion to Restrict.
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 4 of 16

5
destruction of all confidential information after the final disposition of Boulter I. Motion to
Enforce at 5-8.
A. 	Legal Principles
The interpretation of protective orders rests in the discretion of the trial court. See, e.g.,
Brave Law Firm, LLC v. Truck Accident Lawyers Grp., Inc., 843 F. App’x 134, 138 (10th Cir.
2021) (decisions regarding protective orders are reviewed for abuse of discretion) (citing S.E.C.
v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010)); Kaufman v. Am. Fam.
Mut. Ins. Co., 601 F.3d 1088, 1092 (10th Cir. 2010) (recognizing this “deferential standard of
review,” and stating “that a district court is in the best position to define the scope of the
discovery orders and attendant protective orders it issues”). “The starting point for interpretation
of a protective order lies in its plain language.” Merrill Scott, 600 F.3d at 1271; see also Crocs,
Inc. v. Joybees, Inc., No. 21-cv-02129-GPG-SBP, 2023 WL 8851997, at *6 (D. Colo. Dec. 8,
2023) (“The court must interpret the protective order reasonably in light of its express terms and
stated purposes.”) (citing In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693,
696 (9th Cir. 1993) (“For the protective order to comply with common sense, a reasonable
reading must connect its prohibitions to its purpose—protection against disclosure of commercial
secrets.”).
“Protective orders serve the vital function of securing the just, speedy, and inexpensive
determination of civil disputes by encouraging full disclosure of all evidence that might
conceivably be relevant.” Merrill Scott, 600 F.3d at 1272 (cleaned up). “This being the case,
courts should be wary of retroactive attempts to modify them in ways that undermine” their
stated purposes. See id.
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 5 of 16

6
B. 	Analysis
1. 	Use of Confidential Information Obtained in Boulter I in Boulter VI
This court agrees with KMOG that Plaintiffs violated the Protective Order by using the
Guidelines in Boulter VI.
Recall that the Protective Order specifies that “[a]ll Confidential information, and any
notes, work papers, summaries, or other documents prepared from such Confidential
information, may be used by the receiving Party solely in connection with the Litigation and may
not be disclosed by the Receiving Party[.]” Id. ¶ 6 (emphasis added). Put simply, irrespective of
any other litigation between the parties, they agreed to limit the use of all materials produced and
designated as “Confidential Information” in Boulter I “solely” to that case. This unequivocal
language is the beginning and end of the assessment. The court finds none of Plaintiffs’ counter-
arguments persuasive.
Plaintiffs first argue that the Protective Order does not preclude them from using
confidential informant from Boulter I because Boulter VI “is obviously a continuation of the
same breach of contract dispute between the exact same parties.” ECF No. 74 at 2. It is not an
“obvious” point that Boulter VI is a mere “continuation” of Boulter I, particularly for purposes of
a protective order explicitly governing the production of confidential information in that
particular case. As KMOG correctly observes, Plaintiffs have filed numerous separate lawsuits
against KMOG and Noble Energy, each with its own unique procedural history at the trial court
and appellate levels. See id. at 3-6 (describing Boulter II, No. 21-cv-01345-RM-KLM (D. Colo.);
Boulter III, No. 21-cv-03500-RM-SKC-SKC (D. Colo.); Boulter IV, No. 22-cv-01843-DDD-
SKC (D. Colo.); Boulter V, No. 24-cv-01459-SKC-KAS (D. Colo.)). It may be that Plaintiffs
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 6 of 16

7
have continued to pursue claims that are “substantially identical” throughout their numerous
complaints, e.g., id. ¶¶ 13, 15, 16, 24, but there is nothing in the plain language of the Protective
Order countenancing the idea that its protections are eviscerated when Plaintiffs decide to pursue
similar litigation. To construe the Protective Order in that fashion would run afoul of the court’s
obligation to interpret the Order by starting with its “plain language,” which does not
contemplate that protected confidential information can be used in any other litigation—
irrespective of any similarities between them. Merrill Scott, 600 F.3d at 1271. And again
construing the Protective Order in accordance with its plain terms, there is no basis for the court
to find that the protections imposed by that court order ended because Boulter I was dismissed
without prejudice for lack of subject matter jurisdiction, as opposed to “on the merits.” ECF No.
74 at 2. There is no “on the merits” exception to the parties’ obligation to continue to abide by
the terms of the Protective Order. See Protective Order ¶ 21 (“Survival. This Protective Order
will survive the final disposition of the Litigation, by judgment, dismissal, settlement, appeal, or
otherwise.”).
Plaintiffs cite no legal authority that would authorize this court to retroactively rewrite
the terms of the Protective Order to countenance the use in Boulter VI of confidential
information produced by KMOG in Boulter I. Plaintiffs assert that the authority cited by KMOG
is “wholly distinct,” ECF No. 74 at 12-13, but the court must disagree with that characterization.
In particular, the United States Court of Federal Claims rejected a nearly identical argument,
based on a protective order which—like the one at issue here—directed that “[p]rotected
information may be used solely for the purposes of this litigation and may not be given, shown,
made available, discussed, or otherwise conveyed in any form except as provided herein.”
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 7 of 16

8
Pyramid Real Estate Servs., LLC v. United States, 95 Fed. Cl. 613, 615 (2010) (emphasis added).
The court explained the basis for rejecting the plaintiff’s argument that “the phrase ‘this
litigation’ does not prohibit use of protected information in a protest in the same forum, of the
same procurement, and on behalf of the same client”:
In support of its position, Matt Martin relies on an absence of authority: “Defendant
has cited no case in which such use has constituted a violation of a protective order.”
The fact that such a case cannot be found, however, appears instead to highlight
what an unusual interpretation of the Protective Order Matt Martin urges on the
court. Matt Martin cites no case in which a party was permitted to rely in one
action on information it received pursuant to a protective order in another,
regardless of how closely the two are related. To the contrary, parties that use
protected information outside of the litigation in which it is disclosed are typically
sanctioned if they did not first seek and receive leave from the court that granted
the protective order.
Id. at 620 (internal citations omitted) (emphasis added).
Just so here. Plaintiffs cite no case in which a party was permitted to rely in one action on
information it received pursuant to a protective order in another, regardless of how closely the
two are related. Neither has this court located such a case. Moreover, to the extent Plaintiffs’
argument could be read to imply that they have not actually “used” the Guidelines in Boulter VI,
there is likewise no support for that contention. Plaintiffs referred to the content of confidential
information contained in the Guidelines in resisting the motion to dismiss in Boulter VI. ECF
No. 74 at 12 (“In fact, the evidence produced by Kerr-McGee in the underlying litigation
(Boulter I) suggests that Kerr-McGee has applied the Rogers decision with respect to both oil
and natural gas production.”). By any commonsense construction, relying on confidential
information to explain the alleged actions of KMOG constitutes a “use” of KMOG’s confidential
information in violation of the Protective Order. See City of Fort Collins v. Open Int’l, LLC,
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 8 of 16

9
No. 21-cv-02063-CNS-MEH, 2022 WL 7582436, at *4 (D. Colo. Aug. 16, 2022) (recognizing
that “use” involves the utilization of “the confidential content within the [protected] documents”)
(citing Milwaukee Elec. Tool Corp. v. Snap-on Inc., No. 14-cv-1296-JPS, 2016 WL 1719657,
at *1, 4 (E.D. Wis. Mar. 16, 2016)).
Finally, Plaintiffs assert that applying the terms of the Protective Order as written “will
not further the purpose” of Federal Rule of Civil Procedure 1. ECF No. 74 at 16. To the contrary,
as the Tenth Circuit has recognized, protective orders “allow the parties to make full disclosure
in discovery without fear of public access to sensitive information and without the expense and
delay of protracted disputes over every item of sensitive information, thereby promoting the
overriding goal of the Federal Rules of Civil Procedure, ‘to secure the just, speedy, and
inexpensive determination of every action.’” United Nuclear Corp. v. Cranford Ins. Co.,
905 F.2d 1424, 1427 (10th Cir. 1990) (quoting Fed. R. Civ. P. 1); see also Merrill Scott,
600 F.3d at 1272 (“Protective orders serve the vital function of secur[ing] the just, speedy, and
inexpensive determination of civil disputes by encouraging full disclosure of all evidence that
might conceivably be relevant.”) (quotation omitted).
The parties “justified reliance” on the terms of a protective order will be undermined by
any retroactive rewriting of its terms, which this court is not authorized to do and will not do. See
Merrill Scott, 600 F.3d at 1272 (“Unless protective orders are fully and fairly enforceable,
witnesses relying upon such orders will be inhibited from giving essential testimony in civil
litigation, thus undermining a procedural system that has been successfully developed over the
years for disposition of civil differences.”) (quotation omitted). The court will not allow Plaintiff
to circumvent the protections provided in the Protective Order in Boulter I.
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 9 of 16

10
For these reasons, the court finds that Plaintiffs’ use of the confidential Guidelines in
Boulter VI violated the Protective Order.
2. 	KMOG’s Disclosure of the Guidelines and Clawback Request
KMOG argues that Plaintiffs also violated the Protective Order by refusing to destroy the
Guidelines, which KMOG asserts are privileged and were inadvertently produced in Boulter I.
Motion to Enforce at 6-8.
On July 10, 2024, Plaintiffs informed KMOG that they intended to attach the Guidelines
to their response to the motion to dismiss in Boulter VI. ECF No. 72-1 at 7. In response, KMOG
asserted that the Guidelines are “attorney-client privileged” and were “inadvertently produced in
Boulter I.” Id. at 5. KMOG invoked Paragraph 13 of the Protective Order:
Inadvertent Disclosure of Privileged Information. Nothing contained in this
Protective Order will affect in any manner any claim of privilege or work product
protections 	or 	any 	other 	privilege 	or 	immunity. 	Inadvertent 	production 	of
documents or information otherwise subject to the attorney-client or other privilege
or work product immunity will not constitute a waiver of any such privilege or
immunity. Upon written notification that a document or information has been
inadvertently produced and that a claim of privilege or work product will be made
with regard to such document or information, the Party receiving such notice shall
refrain from using said document or information in any manner or form, including
specifically, but not exclusively, use during discovery, review with witnesses, use
at a hearing, or any other disclosure or review whatsoever, and promptly shall return
to the producing person or entity and destroy any copies of the inadvertently or
erroneously produced documents or information, unless otherwise ordered by the
Court.
Protective Order ¶ 13 (emphasis added). KMOG asked Plaintiffs to destroy the Guidelines. ECF
No. 72-1 at 5.4 Plaintiffs refused, asserting that KMOG had waived any privilege because
4 Counsel for KMOG observed that “in a separate litigation filed by [Plaintiffs’] counsel on
behalf of different entities as plaintiffs in Denver District Court, Kerr-McGee obtained a ruling
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 10 of 16

11
“(1) Kerr-McGee has waited over 3 years to assert a privilege; (2) there are no indications that
Kerr-McGee took reasonable steps to prevent the disclosure of the allegedly privileged
document; and (3) the extent of the disclosure is such that no meaningful confidentiality can be
restored with respect to the contents of the Marketing Exemption Guidelines.” Id. at 3.
At this juncture, the parties’ core dispute is whether Paragraph 13 of the Protective Order,
or whether the clawback procedures established in Federal Rule of Civil Procedure 26(b)(5)(B),5
controls the management of the Guidelines. Although both sides argue for mutually exclusive
interpretations, Paragraph 13 of the Protective Order largely accords with Rule 26(b)(5)(B). Both
the Protective Order and the Rule contemplate that a court will determine the manner in which
inadvertently-produced documents must be handled. Compare Protective Order ¶ 13 (upon
notice, party must return and destroy the documents “unless otherwise ordered by the Court”),
with Rule 26(b)(5)(B) (after notice, party “must promptly return, sequester, or destroy” the
information, and “may promptly present the information to the court under seal for a
determination of the claim”) (emphasis added). The issue here is not that Plaintiffs were required
that this same document is protected by attorney-client privilege under Colorado law,” ECF
No. 72-1 at 5, but Plaintiffs believe the Denver District Court Judge wrongly decided that point.
Id. at 3.
5 “If information produced in discovery is subject to a claim of privilege or of protection as trial-
preparation material, the party making the claim may notify any party that received the
information of the claim and the basis for it. After being notified, a party must promptly return,
sequester, or destroy the specified information and any copies it has; must not use or disclose the
information until the claim is resolved; must take reasonable steps to retrieve the information if
the party disclosed it before being notified; and may promptly present the information to the
court under seal for a determination of the claim. The producing party must preserve the
information until the claim is resolved.” Fed. R. Civ. P. 26(b)(5)(B).
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 11 of 16

12
to destroy the Guidelines before a court resolved the disputed privilege question. The Protective
Order explicitly provides a caveat to a destruction demand: the party “promptly shall return to
the producing person or entity and destroy any copies of the inadvertently or erroneously
produced documents or information, unless otherwise ordered by the Court.” Protective Order
¶ 13. At bottom, the Protective Order does not clearly mandate destruction before the entry of a
court order resolving a dispute about the inadvertent disclosure of privileged information. The
court thus finds that Plaintiffs’ “sequestering” of the Guidelines, pending a court order on the
matter, see ECF No. 74 at 15, complies with the Protective Order—even though KMOG might
have preferred a full-on destruction of those materials.
However, Plaintiffs clearly did not “refrain from using” the Guidelines before a court
order authorized such use, as demonstrated by the substantive reference to the Guidelines in
Plaintiffs’ response to the Motion to Dismiss. Protective Order ¶ 13 (directing that “the Party
receiving such notice shall refrain from using said document or information in any manner or
form” until the privilege question is resolved) (emphasis added). In so doing, Plaintiffs violated
Paragraph 13 of the Protective Order.
3. 	The Destruction/Certification Requirement in the Protective Order
Finally, KMOG argues that Plaintiff violated the Protective Order by failing to comply
with Paragraph 18 at the conclusion of Boulter 1:
Conclusion of Litigation. Upon the request of a Covered Party following the final
disposition of the Litigation, including all appeals therefrom, or the final disposition
of the Litigation against any one or more of the Parties, the remaining Covered
Parties, including their Experts, shall either destroy all Confidential Information
and certify to the requesting Covered Party such destruction, or return to the
requesting Covered Party all Confidential 	Information. Notwithstanding the
foregoing, counsel for each Covered Party may retain a complete record of this
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 12 of 16

13
Litigation, irrespective of whether a Covered Party’s Confidential Information is
included in the correspondence, pleadings, discovery, notes, research, or other files
maintained by the attorney for purposes of representing his/her client in the
Litigation.
Protective Order ¶ 18; see also ECF No. 79 at 4 (arguing that Plaintiffs “refuse to comply with this
provision” and therefore have “violated the Protective Order”).
Plaintiffs do not dispute that they have not complied with the destruction or certification
requirements in Paragraph 18. As the court has previously noted, it finds untenable the
proposition that the provision has not been triggered because Boulter I has not reached its “final
disposition”—thus conferring on Plaintiffs “a right to retain” the confidential information
produced in Boulter I. See ECF No. 74 at 9. Plaintiffs refusal to comply with Paragraph 18
constitutes a violation of the Protective Order.
C. 	Relief
Having found that Plaintiffs’ conduct violated Paragraphs 6, 13, and 18 of the Protective
Order, the court is left to determine the appropriate sanction for these violations.
Under Federal Rule of Civil Procedure 37(b)(2), the court has authority to impose
sanctions for violating a court order, including a stipulated protective order. “Determination of
the correct sanction for a discovery violation is a fact-specific inquiry that the district court is
best qualified to make.” Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992); see also
Kaufman, 602 F.3d at 1093 (court’s decision regarding discovery sanctions is reviewed under the
deferential abuse of discretion standard, which recognizes that “a district court is in the best
position to define the scope of the discovery orders and attendant protective orders it issues”).
“[T]he Tenth Circuit has recognized that discovery sanctions must be in the interests of justice
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 13 of 16

14
and proportional to the specific violation of the Rules.” Connell Solera, LLC v. Lubrizol
Advanced Materials, Inc., No. 21-cv-00336-NYW-SKC, 2023 WL 2187481, at *8 (D. Colo. Feb.
23, 2023) (citing Olcott v. Del. Flood Co., 76 F.3d 1538, 1557 (10th Cir. 1996)).
Having carefully considered the parties’ arguments and the entire record, the court finds
that, while Plaintiffs’ conduct with regard to compliance with the Protective Order may warrant
no praise, neither has KMOG suffered significant prejudice here. No consequential aspect of the
Guidelines has been publicly disclosed at this juncture. Nevertheless, the court recognizes its
obligation to enforce the terms of protective orders and their “vital function of securing the just,
speedy, and inexpensive determination of civil disputes[.]” Merrill Scott, 600 F.3d at 1272
(cleaned up). The court does not take lightly the requirements of the Protective Order, and
neither should Plaintiffs be permitted to discount their importance.
Accordingly, the court respectfully ORDERS as follows:
(1) Plaintiffs shall not use, in Boulter VI or any other litigation, any documents
designated by KMOG as Confidential Information in Boulter I, unless Plaintiffs have obtained
those documents pursuant to discovery requests in other litigation.
(2) Plaintiffs shall immediately either destroy all Confidential Information they obtained
in Boulter I, and certify to KMOG such destruction, or return to KMOG all such Confidential
Information, except for the Guidelines, which are the subject of the pending In Camera Motion
before Judge Crews, and the copy of such information counsel is allowed to retain pursuant to
Paragraph 18 of the Protective Order.
If Judge Crews determines that the Guidelines are in fact privileged, the parties in this
case shall treat them in accordance with Judge Crews’s order in Boulter VI and may seek a
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 14 of 16

15
higher level restriction on access to the Guidelines in this case, as delineated below.
III. 	Motion to Restrict
In the Motion to Restrict, ECF No. 78, Plaintiffs request that the court maintain a Level 1
restriction on access for the Guidelines, ECF Nos. 75 and 75-1, and the related requests for
production and a letter from counsel disseminating the documents. ECF Nos. 75-2 and 75-3.
The court grants the motion and respectfully rejects KMOG’s request to elevate the
restriction on access to Level 3, which limits access to the court, at this time. To be sure, KMOG
clawed back the Guidelines, and the privilege claim has not yet been resolved. But as Plaintiffs
note, there is an impractical, form-over-substance aspect to the proposed Level 3 restriction
because both sides have possession of the restricted documents; indeed, Plaintiffs themselves
filed the documents here. See ECF Nos. 75 to 75-3. Most compellingly, Plaintiffs point out that
Judge Crews will decide the privilege question in conducting an analysis of the In Camera
Motion in Boulter VI. See ECF No. 81 at 3. This court declines to prejudge the outcome of that
privilege question by changing the restriction level on the Guidelines now.
After the Boulter VI court determines the privilege question, the parties may submit a
motion to this court to change the restriction. Until then, a Level 1 restriction on access remains
appropriate.
IV. 	Conclusion
Consistent with the foregoing, it is hereby respectfully ORDERED:
Defendant Kerr-McGee Oil & Gas Onshore, LP’s Motion to Enforce Protective Order,
ECF No. 72, is granted.
Plaintiffs’ Motion for Leave to File Exhibits 1, 2, 3 and 4 Attached to their Response in
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 15 of 16

16
Opposition to Defendant’s Motion to Enforce Protective order as Level 1 Restricted Documents,
ECF No. 78, is granted. ECF Nos. 75, 75-1, 75-2, and 75-3 shall remain restricted at Level 1.6
DATED: March 28, 2025 	BY THE COURT:
Susan Prose
United States Magistrate Judge
6 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado. 28
U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection will
result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
Case No. 1:20-cv-00861-WJM-SBP Document 82 filed 03/28/25 USDC Colorado
pg 16 of 16