LinnCo, LLC et al v. Bennett

Filing 63

STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Erica P. Grosjean on 10/27/2015. (Martinez, A)

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BAKER BOTTS L.L.P.
Kevin M. Sadler (SBN 283765)
[e-mail]
Elizabeth K. Boggs (SBN 280555)
[e-mail]
Alali Dagogo-Jack (SBN 302437)
[e-mail]
1001 Page Mill Road
Building One, Suite 200
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: 650-739-7699
Gavin R. Villareal (pro hac vice)
[e-mail]
98 San Jacinto Blvd.
Suite 1500
Austin, TX 78701-4078
Telephone: [phone]
Facsimile: 512-322-2501
Attorneys for Plaintiffs and Counter-Defendants
LINNCO, LLC; LINN ENERGY, LLC; and for Counter-Defendant BERRY PETROLEUM
COMPANY, LLC
WANGER JONES HELSEY PC
Kurt F. Vote (SBN 160496)
[e-mail]
265 East River Park Circle, Suite 310
P.O. Box 28340
Fresno, CA 93729
Telephone: [phone]
Facsimile: 559-233-9330
Attorneys for Defendant and Counter-Claimant
CLARENCE J. BENNETT
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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LINNCO, LLC and LINN ENERGY, LLC,
Delaware corporations,
Plaintiffs,
v.
CLARENCE J. BENNETT, an individual,
Defendant.

Case No. 1:14-CV-01881-KJM-EPG
STIPULATED PROTECTIVE
ORDER

CLARENCE J. BENNETT, an individual,
Counter-Claimant,
vs.
LINNCO, LLC, a Delaware corporation;
LINN ENERGY, LLC, a Delaware
corporation, and BERRY PETROLEUM
COMPANY, a Delaware limited liability
company,
Counter-Defendants.

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STIPULATED PROTECTIVE ORDER

CASE NO. 1:14-cv-01881-KJM-EPG

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles. The parties further acknowledge, as

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set forth in Section 12.3 below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal; Local Rule 141 sets forth the procedures that must be

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followed when a party seeks permission from the Court to file material under seal.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored, or maintained) or tangible things that qualify for protection under Federal

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Rule of Civil Procedure 26(c).

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2.3

Counsel (without qualifier): Outside Counsel of Record and In-House Counsel

(as well as their support staff).
2.4

Designating Party: a Party or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.5

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other

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things, testimony, transcripts, and tangible things), that are produced or generated in disclosures

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or responses to discovery in this matter.

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2.6

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Expert: a person with specialized knowledge or experience in a matter pertinent

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to the litigation who has been retained by a Party or its counsel to serve as an expert witness or

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as a consultant in this action.
2.7

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House Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8

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In-House Counsel: attorneys who are employees of a party to this action. In-

Non-Party: any natural person, partnership, corporation, association, or other

legal entity not named as a Party to this action.
2.9

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Outside Counsel of Record: attorneys who are not employees of a party to this

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action but are retained to represent or advise a party to this action and have appeared in this

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action on behalf of that party or are affiliated with a law firm which has appeared on behalf of

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that party.
2.10

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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11

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Party: any party to this action, including all of its officers, directors, employees,

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
2.12

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Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.
2.13

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Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL.”
2.14

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Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE

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The protections conferred by this Order cover not only Protected Material (as defined

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above), but also (1) any information copied or extracted from Protected Material; (2) all copies,

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excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
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However, the protections conferred by this Order do not cover the following information: (a)

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any information that is in the public domain at the time of disclosure to a Receiving Party or

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becomes part of the public domain after its disclosure to a Receiving Party as a result of

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publication not involving a violation of this Order, including becoming part of the public record

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through trial or otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source who obtained

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the information lawfully and under no obligation of confidentiality to the Designating Party.

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Any use of Protected Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by

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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court

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order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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action, including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take

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reasonable care to limit any such designation to specific material that qualifies under the

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appropriate standards. The Designating Party must designate for protection only those parts of

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material, documents, items, or oral or written communications that qualify – so that other

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portions of the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly

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so designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix the legend “CONFIDENTIAL” to each page that contains protected material. If only

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a portion or portions of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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margins).

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has indicated

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which material it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied

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and produced, the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

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Designating Party identify on the record, before or within 14 days of the close of the deposition,

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hearing, or other proceeding, all protected testimony.

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(c) for information produced in some form other than documentary and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior of the

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container or containers in which the information or item is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

designate qualified information or items does not, standing alone, waive the Designating Party’s
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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

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process by providing written notice of each designation it is challenging and describing the basis

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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

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notice must recite that the challenge to confidentiality is being made in accordance with this

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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

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good faith and must begin the process by conferring directly. In conferring, the Challenging

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Party must explain the basis for its belief that the confidentiality designation was not proper and

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must give the Designating Party an opportunity to review the designated material, to reconsider

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the circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge process only if

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it has engaged in this meet and confer process first or establishes that the Designating Party is

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unwilling to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without Court

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intervention, the Challenging Party may file and serve a motion challenging confidentiality.

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Such motion shall be heard by the Magistrate Judge assigned to the case. Each such motion

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must be accompanied by a competent declaration affirming that the movant has complied with

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the meet and confer requirements imposed in the preceding paragraph.

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The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Until the Court rules on a challenge, all parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s designation.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed

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or produced by another Party or by a Non-Party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the litigation has been terminated, a Receiving Party must comply with the provisions of

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section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees

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of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

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information for this litigation;

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(b)

the officers, directors, and employees (including In-House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this litigation;

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d) the Court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation;

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(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
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A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material must be separately bound by the court reporter and may not be disclosed to anyone

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except as permitted under this Order.
(g) the author or recipient of a document containing the information or a custodian or

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other person who otherwise possessed or knew the information.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation that

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compels disclosure of any information or items designated in this action as “CONFIDENTIAL,”

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that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include a

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copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to issue in the

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other litigation that some or all of the material covered by the subpoena or order is subject to

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this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;

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and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party

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shall bear the burden and expense of seeking protection in that court of its confidential material

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– and nothing in these provisions should be construed as authorizing or encouraging a Receiving

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Party in this action to disobey a lawful directive from another court.

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9.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a Non-Party in

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this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in

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connection with this litigation is protected by the remedies and relief provided by this Order.

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Nothing in these provisions should be construed as prohibiting a Non-Party from seeking

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additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to produce a Non-

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Party’s confidential information in its possession, and the Party is subject to an agreement with

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the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-Party that some or

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all of the information requested is subject to a confidentiality agreement with a

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Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order

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in this litigation, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and

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(3) make the information requested available for inspection by the Non-Party.

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(c) If the Non-Party fails to object or seek a protective order from this Court within 14

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days of receiving the notice and accompanying information, the Receiving Party may produce

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the Non-Party’s confidential information responsive to the discovery request. If the Non-Party

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timely seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the Court. Absent a court order to the contrary, the Non-Party shall bear the

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burden and expense of seeking protection in this court of its Protected Material.

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best reasonable efforts to retrieve all unauthorized copies of

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the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of

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a communication or information covered by the attorney-client privilege or work product

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protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the Court.

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12.

12.1

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MISCELLANEOUS
Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the Court in the future.
12.2

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Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order no Party waives any right it otherwise would have to object to disclosing or producing

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any information or item on any ground not addressed in this Stipulated Protective Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.
12.3

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Filing Protected Material. Without written permission from the Designating Party

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or a Court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Local Rule 141.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph 4, each

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Receiving Party must return all Protected Material to the Producing Party or destroy such
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material and represent in writing to the Producing Party that such destruction has taken place.

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As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings,

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motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,

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deposition and trial exhibits, expert reports, attorney work product, and consultant and expert

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work product, even if such materials contain Protected Material. Any such archival copies that

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contain or constitute Protected Material remain subject to this Protective Order as set forth in

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Section 4 (DURATION).

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BAKER BOTTS L.L.P.

DATED: October 27, 2015

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By: /s/ Kevin M. Sadler ____________________ .
Kevin M. Sadler
Attorneys for Plaintiffs / Counter-Defendants
LINNCO, LLC, LINN ENERGY, LLC, and
BERRY PETROLEUM COMPANY, LLC

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DATED: October 27, 2015

WANGER JONES HELSLEY PC

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By: /s/ Kurt F. Vote _______________________ .
Kurt F. Vote
Attorneys for Defendant / Counter-Claimant
CLARENCE J. BENNETT

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ORDER

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The Court has reviewed the stipulation outlined above and adopts the stipulation except
that the terms related to judicial intervention outlined in paragraph 6.3 will not be automatic,
rather, the Court will determine on a case-by-case basis whether judicial intervention is
warranted. In order to file a motion under this paragraph, counsel must receive permission from
the Court following an informal telephone conference. A party wishing to schedule such a
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conference should contact chambers at [phone] to receive available dates. The Court

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will schedule the conference as soon as possible, taking into consideration the urgency of the

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issue. Before contacting the Court, the parties must meet and confer by speaking with each

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other in person, over the telephone, or via video in an attempt to resolve the dispute

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independently without Court involvement.

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Prior to the conference, the Court will require the parties to submit a short letter no more

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than 3 pages in length to chambers for review. Telephonic conferences will not be on the record

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and the Court will not issue a formal ruling at that time. Nevertheless, the Court will attempt to

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provide guidance to the parties to narrow or dispose of the dispute. If no resolution is reached,

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the Court will consider whether the filing of a formal motion is appropriate.

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Dated : October 27, 2015

/s/ Erica P. Grosjean
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court

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for the Eastern District of California on _____________ in Case No. 1:14-cv-01881-KJM-EPG,

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LinnCo, LLC & LINN Energy, LLC v. Clarence J. Bennett. I agree to comply with and to be
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bound by all the terms of this Stipulated Protective Order and I understand and acknowledge

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that failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information or item that

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is subject to this Stipulated Protective Order to any person or entity except in strict compliance

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with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the

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Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective
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Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.
Date: ______________________________________

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City and State where sworn and signed: _________________________________
Printed name: _______________________________
Signature: __________________________________

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