Panhandle Oil and Gas Inc v. BHP Billiton Petroleum (Fayetteville) LLC et al

Filing 36

ORDER mostly denying and partly granting 30 Motion to seal. 32 Motion for protective order granted as modified. Please file the two complaint, the two briefs, and all attachments on the public docket - with any necessary redactions and noting any attachments that should stay sealed - by 12/8/2017. Signed by Judge D. P. Marshall Jr. on 11/1/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PANHANDLE OIL AND GAS INC.

v.

PLAINTIFF

4:17-cv-379-DPM

BHP BILLITON PETROLEUM
(FAYETTEVILLE) LLC, and
BP AMERICA PRODUCTION COMP ANY

DEFENDANTS

ORDER
1.

The Court needs to clarify how the record should be handled

in this case-a dispute about the parties' contractual obligations related
to some wells in the Fayetteville Shale. Related litigation has been
going on for some time in various state and federal courts.

E.g.,

Panhandle Oil and Gas, Inc. v. BHP Billiton Petroleum (Fayetteville), LLC,
2017 Ark. App. 201, 520 S.W.3d 277 (2017); Panhandle Oil and Gas, Inc.

v. BP America Production Company, No. 4:15-cv-30-DPM.

The live

branch of the dispute, this case, started in state court and was removed
here. Early on, the state circuit court entered a protective order, which
authorized the parties to designate materials as confidential during
discovery and file any materials so designated under seal.

After

removal, BP asked to file four documents under seal- two complaints
and two briefs, each of which contained many attached documents.

This Court tentatively agreed, but hedged, pointing out that redaction
was better than sealing, requesting a complete copy to review in
chambers, and offering to receive briefs. NQ 18. The copies came
promptly;

no briefs were filed.

The Court didn't see anything

particularly sensitive in the materials, and ordered them unsealed. NQ
29. BHP then moved to re-seal them, and the Court did so, pending
further consideration on the merits. NQ 30 & 31. The parties have also
jointly asked for a new protective order.
2.

The Court's first Order should have been clearer. Insofar as

practicable, this Court's business should be done in public. IDT Corp.
v. eBA Y, 709 F.3d 1220, 1222-23 (8th Cir. 2013). There are exceptions, of

course. Protecting sensitive business information is one. Ibid. Parties
are free to conduct discovery in near-total privacy, shielded by a
protective order. There is a clear line, though, between discovery and
filings.

When the parties' dispute comes into the Court for

adjudication, keeping things confidential requires good reasons. And
those good reasons must be given document by document, not across
the board, as may be done in discovery. A protective order doesn't, or
shouldn't, answer the sealing question definitively. The Sixth Circuit's
decision in Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825
F.3d 299, 305-06 (2016) covers this ground particularly well.
There's a further necessary step. When it can be done practically,
redaction beats sealing. It is more trouble. But redaction better protects

-2-

the two important interests at stake: the litigants' need to shield private
things, and the public's right to see what's going on in its courts. IDT

Corp., 709 F.3d at 1224-25. A party seeking to file a document under
seal must therefore give good reasons about that particular document,
plus show that redaction will not work.
BHP' s unopposed request to keep the two complaints and two
briefs under seal is mostly denied and partly granted. The parties' legal
disputes - as ventilated in those four papers- are already matters of
public record. They' re covered in detail in the briefs filed with the
Arkansas Court of Appeals in the related case.

Those briefs are

available online and from that Court. Sealing the entirety of the four
papers here is thus excessive and unnecessary. The parties can, and
should, redact any confidential bits and pieces in those documents.
What about the many attachments? Some are public records. E.g.,
NQ 20-1at55-75. There's also an excerpt from a book, some state court

orders, and some other public court filings. NQ 20-3 at 44-54. All this is
public information that should not be sealed. If the parties' various
agreements are not already in the public record, then they can stay
under seal.

But if, for example, copies of the Chesapeake/BHP

purchase and sale agreement, or the Panhandle/Chesapeake letter
agreements have been made public, then they should be on the public
docket in this dispute about those contracts.

-3-

3.

Last, the proposed protective order. The Court approved a

very similar version of it last spring right before the end of the related
federal case. That was a mistake because the document needs some
revisions. They' re attached. The proposal is fine as modified.

* * *
Unopposed motion to seal, NQ 30, mostly denied and partly
granted with instructions. Motion for protective order, NQ 32, granted
as modified. Please file the two complaints, the two briefs, and all
attachments on the public docket-with any necessary redactions and
noting any attachments that should stay sealed-by 8 December 2017.
So Ordered.

D.P. Marshall Jr.
United States District Judge

-4-

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 1of11

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PANHANDLE OIL AND GAS INC.,
Plaintiff,
v.

Case No. 4: l 7CV379-BRW
BHP BILLITON PETROLEUM
(FAYETTEVILLE) LLC and BP AMERICA
PRODUCTION COMPANY,
Defendants.
AGREED PROTECTIVE ORDER
To protect confidential information sought or used in discovery in this Case No.
4:17CV379-BRW and any appeals here from (the "Proceeding"), the Parties have jointly
requested entry of this Agreed Protective Order.
IT IS AGREED BY THE PARTIES AND ORDERED AS FOLLOWS:
1.

As used in this Order:
a. The term "Party(ies)" refers to any Plaintiff, Defendant or Intervenor in this
lawsuit.
b. The term "third party(ies)" refers to persons or entities who are not parties to this
lawsuit.
c. The term "discovery material" shall include:
i. Testimony and the record of depositions and hearing transcripts created in

the Proceeding; and
n. Documents, electronically stored information and things produced in the
Proceeding pursuant to discovery, subpoena, voluntarily or otherwise.

EXHIBIT

I

t

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 2of11

d. "Confidential material" shall refer to any discovery material, or any portion
thereof, which contains information that any Party or third party considers in good
faith to be confidential, trade secret, proprietary, or commercially sensitive.
2.

Any Party or third party producing or receiving any discovery material may

designate all or any portion or portions thereof as Confidential.
3.

The designation of Confidential material may be made by:
a. in the case of documents and transcripts, visibly labeling the document
\e':ii../.Ji li'fy
"CONFIDENTIAL" in a manner as will not interfere with the~l:egaH~ thereof;
b. in the case of tangible things and electronically stored information, giving notice
to all Parties by letter or coversheet along with a description sufficient to identify
the Confidential material (such as document identification numbers); and
c. in the case of oral testimony, including during a deposition, either (1) stating
orally on the record that certain information or exhibits are Confidential or (2)
sending written notice designating such information, testimony, or exhibits as
Confidential within 21 days of receipt of the deposition transcript.

Prior to

expiration of those 21 days, or until it is otherwise designated, whichever comes
first, all deposition testimony shall be deemed Confidential.
4.

Any discovery material covered by such legend or notice and any discovery

material with a cover page containing such legend or notice, and the information contained
therein, shall be deemed Confidential material in its entirety unless the Party or third party
designating the material as Confidential shall clearly indicate thereon that only a portion thereof
is to be covered by the notice of confidentiality.

2!Page

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 3 of 11

5.

Unless and until otherwise ordered by the Court, Confidential material shall be

disclosed only as follows:
a. Confidential material and the contents thereof may be disclosed to counsel for
named Parties and persons regularly employed in the office of such counsel.
b. Confidential material and the contents thereof may be disclosed to court personnel
and court reporters/stenographers taking depositions in this case.
c. Confidential material and the contents thereof may be disclosed to Parties and
officers, directors, or employees of a Party assisting in the evaluation, prosecution
or defense of this Proceeding.
d. Confidential materials and the contents thereof may be disclosed to the person or
entity that wrote or received the document or gave the testimony designated as
confidential;
e. Confidential material and the contents thereof may be disclosed to non-party
experts who are actively engaged in the conduct of this litigation and have actual
need to see the material or know the contents thereof in connection with that
engagement, provided that such persons are first given a copy of this Order and
provided each first executes a written statement, a copy of which is attached
fN..

hereto as Exhibit 1 and made a part hereof, that (1 ) ~ person has read and
understands this Order; (2) pursuant to this Order, efftperson shall not use or
A

divulge any Confidential material except as essential to the prosecution or defense
of the above-captioned lawsuit, and only to persons listed in this Paragraph 5 of
this Order; (3) ~ person understands that the unauthorized use or disclosure of
,._
the Confidential material or their contents constitutes contempt of Court; and (4)

31Pagc

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 4 of 11

ik.
-saitl person consents to this Court's venue and exercise of personal jurisdiction
,..
over him or her to enforce this Order or address any violation thereof.
f.

Confidential materials and the contents thereof may be disclosed to others if the
designator so agrees in writing or, for good cause shown, the Court permits.

6.

Any summaries or copies of confidential materials or the contents thereof shall

bear an appropriate designation as described in Paragraph 3 above and shall be subject to the
terms of this Protective Order to the same extent as the information or document from which
such summary or copy is made.
7.

If any third party produces documents that are not designated as Confidential

material, such documents shall still be considered as Confidential material under this Protective
Order for 21 days from the time that each Party to this action has received such documents. If at
the end of such period, any Party believes that the documents should be permanently designated
as Confidential material, that Party should first notify the third-party that the documents should
be so designated. If the third party declines to so designate the documents, the third party and
the proposed designating Party shall confer in an effort to resolve the dispute by informal means.
If they cannot reach an agreement, the Parties will follow the schedule order's procedures on

discovery disputes to bring any disagreement to the Court. The Parties, in conjunction with any
third party, may, by stipulation, provide for exceptions to this Protective Order for certain
documents produced by any third party.
c9'V

8.

All Confidential material and its contents shall be used a:nMisclosed solely for
A

the purpose of the direct prosecution or defense of the Proceeding and for no other purpose
whatsoever, and shall not be disclosed to any person except in accordance with the terms of this
Order. No Party or any director, officer, employee, agent or attorney for any Party shall use or

41Pa g c

v

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 5 of 11

permit to be used any Confidential material or the contents thereof for any business or
commercial purpose whatsoever of such Party or any other person, firm, or corporation.
the event that any Confidential material is included with, or the conte
sed in, any pleading, motion, deposition transcript
filed with any court, such Confiden ·

this Order applicable to the stated

e Party may file the sealed Confidential material without seeking prior leave o

10.

In the event discovery material is to be filed of record or used as an exhibit during

a hearing or trial, the Parties shall comply with the redaction requirements set forth in Rule 5.2 of
the Federal Rules of Civil Procedure, even if the discovery material has not been designated as
Confidential material.
11.

If a Party intends to introduce Confidential material into evidence at a hearing or

trial in this Proceeding, that Party shall give notice of that intention to the Court, opposing
counsel and the producing Party or third party prior to the hearing or trial date set in this matter,
and the Court may take such steps as it shall deem appropriate to preserve the confidentiality of
such information. A Party may be allowed to introduce Confidential material at a hearing or trial
of this matter that has not been disclosed to the Court or opposing counsel upon written

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 6of11

12.

Any Party who designated discovery material as Confidential material may waive

its own designation and use such discovery material in this Proceeding without seal.
13 .

Inadvertent, unintentional, or in camera disclosure of Confidential material shall

not be deemed a waiver, in whole or in part, of any Party's claims of confidentiality or privilege.
30
14.
Within thi~ (3 ~ days after the settlement or entry of final judgment or order in
the Proceeding from which no further appeal has been or can be taken, all Confidential material

i/
vM!-

fl/IJ~/s
"4AJ._

-fv

~ t1'M. .ffn IM-tc 1{,.v__

and all copies thereof shall be returned to the producing Party or third party or destroyed, and •\ .;)../ I(s
each of the Parties shall separately certify in writing under oath that each has returned to the
producing Party or third party or destroyed all the Confidential material and has destroyed any
materials created from information in those categories of material. Each of the Parties shall, at
their own expense, have their experts return to the retaining counsel all copies of Confidential
material( and destroy all materials derived from the same, certifying separately, in writing under
oath, the same. Notwithstanding the other provisions of this Order, counsel for the parties may
maintain a complete copy of all pleadings filed in the case, all deposition and hearing transcripts,
all exhibits introduced into depositions and hearings, and all attorney work product, irrespective
of whether they contain Confidential material, provided that such counsel shall not use or
disclose copies of Confidential material at any time or in any manner other than as permitted by
this Protective Order.
15.

With respect to any discovery material that has been designated as Confidential

material by a Party or third party, another Party may seek and obtain from the Court, upon an
appropriate showing and full opportunity of the designator to respond and be heard, a
determination that such material should not be deemed Confidential material. Until the Court
-i~t ~n+

rules on any such moti~ the materials shall continue to be deemed and treated as Confidential,
/\.

'

~

()~

p-(.fA.Uo

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 7 of 11

as designated by the producing Party or third party. Any Party may seek and obtain, on an
appropriate showing, additional protection with respect to the confidentiality of discovery
material.
16.

This Protective Order may be modified or amended by agreement of the Parties

with the approval of the Court. To the extent that the Parties fail to agree on a modification
proposed by any Party or third party, nothing contained herein shall be deemed to preclude any
Party or third party from ~~~the Court, for good cause shown, for a ruling that modifies this
.

.

Protect1veOrdermanyrespect....

/

~ _ __;;> t'T.

~

,ivY o....

Svt>li.

riA.4D4/Ye

~~

Iµ_

~ -h M.t. ~

i~f ~tnf- "(- <i1JG6Vt/A.y c4J>pv-U. l'vrs-v~,.J..-1-o H..,,._

·scovery Disputes. Counsel should confer in good faith in person befo_.

M ..b.,,,,

dispute to the Court. Do not file motions to compel. Do not
to quash or for protective

as disputed written discovery or

discovery
sche

. File this paper under the

dact any attachments as required by

Federal Rule of Civil Pr edure 5.2 to protect confidential
sufficiently befor

a motion

der unless there is an emergency. If the parti

impasse, they should file a join eport explaining the disagreem

formation. File the joint report

e discovery cutoff so that the dispute can be r olved, and any additional

mpleted, without undermining other pretrial deadlines.

Court will rule or

ea hearing. Alert the law clerk on the case to the joint report's filing.

·ng a deposition, call chambers so the Judge can rule during the deposition.
/

!~

/7. )-8:'

Production of privileged or work product protected information is presumed to be

inadvertent and does not waive the privilege. If information is produced that is subject to a claim

71 Page

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 8 of 11

of privilege or of protection as trial-preparation material, the person 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
and may not use or disclose the information until the claim is resolved. The Parties will follow
~,a

the 5cheduling Seder's procedure on resolving any dispute over whether information is privileged
~;;,.

-;;

or protected. If the receiving Party disclosed the information before being notified, it must take
reasonable steps to retrieve it. The producing Party must preserve the information until the claim
is resolved. Inadvertent disclosure of privileged or work product protected documents shall not
be a waiver of a claim of privilege either as to the specific material disclosed or as to related
information.
If any person covered by this Protective Order is subpoenaed or served with a

document demand in another action or proceeding and such subpoena or document demand
seeks information which has been designated in the Proceeding as Confidential material, that
person shall (i) give prompt written notice by email, and in no event later than 48 hours after the
receipt of such subpoena or document demand, to the person or persons who produced and who
designated the Confidential material; and (ii) object to the production of such information on the
ground that such information is subject to the terms of this Protective Order. The burden of
opposing the enforcement of the subpoena or document demand shall fall upon the person or
persons who designated the Confidential material. Unless the person or persons who produced
or designated the information as Confidential material obtains an order directing that the
subpoena or document demand not be complied with, and serves such order upon the person who
received the subpoena or document demand, the person who received the subpoena or document
demand shall be permitted to produce information in response to the subpoena or document

8 jPage

.,,/

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 9 of 11

demand on the response date for the subpoena or document demand; provided, however, that the
person who received the subpoena or document demand shall not produce information in
response to the subpoena or document demand before its response date.

{q ~

This Protective Order shall expire one year following the Parties' compliance

with Paragraph 13, and the Court's jurisdiction will end. Notwithstanding the expiration of this
.µ..,_ f<M-~ ~) C,!J11'/JSef._1 41.N\.cf St ~L't.5
Protective Order, Cffi!flS@o); remain under a continuing obligation, as a matter of contra<rtJbetween
A

tRc

Par-tie~

l.:J

/o

to comply with the requirement in Paragraph 13 that they not use or disclose copies

of Confidential material at any time or in any manner other than as permitted by this Protective
Order.
(1..0 }'(

This Protective Order shall operate retroactively to the inception of this action in

state court. Any material produced prior to the signing of this Protective Order shall be treated
as confidential upon designation as set forth above.
Nothing contained in this Protective Order, and no action taken pursuant to it shall
prejudice the right of any Party or Non-Party to contest the alleged relevancy, admissibility, or
discoverability of the material sought. Nor shall this Protective Order prevent any Party or third
party from objecting to discovery it believes to be otherwise improper.

?J . Y.

The Parties have authorized their respective counsel of record to execute this

Protective Order on their behalf, and the Parties and their respective counsel agree to be bound
by the terms of this Protective Order.
IT IS SO ORDERED this _ _ day of _ _ _ _ _ _ _, 2017.

The Honorable D. P. Marshall Jr.
UNITED STATES DISTRICT JUDGE

91Page

../

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 10of11

Approved by:
By: s/ M. Edward Morgan
M. Edward Morgan, Bar No. 82113
Morgan Law Finn, P.A.
148 Court Street
Clinton, AR 72031
[phone]
[e-mail]
Attorney for Plaintiff

By: s/ Julie DeWoody Greathouse
Julie De Woody Greathouse, Bar No. 99159
[e-mail]
Kimberly D. Logue, Bar No. 2009242
[e-mail]
PPGMR,PLLC
P.O. Box 251618
Little Rock, AR 72225
Attorneys for Defendant BHP Billiton
Petroleum (Fayetteville) LLC

By: s/ Christopher J. Heller
Christopher J. Heller
Friday, Eldredge & Clark, LLP - Little Rock
400 West Capitol Ave.
Regions Center, Ste. 2000
Little Rock, AR 72201-3522
[phone]
[e-mail]
Rob F. Robertson, OBA No. 12455
Gregory T. Metcalfe, OBA No. 19526
GableGotwals
One Leadership Square, Suite 1500
211 North Robinson Ave.
Oklahoma City, OK 73102-7101
[phone]
[e-mail]
[e-mail]

Attorneys for Defendant BP America
Production Company

IOIPage

Case 4:17-cv-00379-DPM Document 32-1 Filed 08/08/17 Page 11of11

NON-DISCLOSURE AGREEMENT
I certify that I have read the Agreed Protective Order (the "Order") in this action, Case
No. 4:17-cv-379-DPM, and that I fully understand the terms of the Order. I recognize that I am
bound by the terms of the Order, and I agree to comply with those terms. I hereby consent to the
personal jurisdiction of the United States District Court for the Eastern District of Arkansas for
any proceedings involving the enforcement of the Order.
EXECUTED this ___ day of _ _ _ _ _ _, 201_.

Signature

Name

Affiliation

Business Address