C&C Properties, Inc. et al v. Shell Pipeline Company, et al

Filing 112

STIPULATED PROTECTIVE ORDER between plaintiffs and defendant Shell Pipeline Company, signed by Magistrate Judge Jennifer L. Thurston on 10/11/2016. (Hall, S)

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KEITH E. MCCULLOUGH (SBN 142519)
KEVIN A. DAY (SBN 222560)
[e-mail]
ALVARADOSMITH
A Professional Corporation
1 MacArthur Place, Suite 200
Santa Ana, California 92707
Tel: [phone]
Fax: [phone]
Attorneys for Defendants
SHELL PIPELINE COMPANY, a Delaware
limited partnership and
ALON USA PARAMOUNT PETROLEUM
CORPORATION, a Delaware limited partnership

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

A LVARADO S MITH
A P ROFESSIONAL C ORPORATI ON
S ANT A A NA

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C & C PROPERTIES, INC., a California
corporation; JEC PANAMA, LLC, a
California limited liability company; and
WINGS WAY, LLC, a Delaware limited
liability company,

CASE NO.: 1:14-cv-01889-DAD-JLT
STIPULATION FOR PROTECTIVE
ORDER; [PROPOSED]
STIPULATED PROTECTIVE
ORDER

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Plaintiffs,

(Doc. 110)

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v.
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SHELL PIPELINE COMPANY, a
Delaware limited partnership; ALON
USA PARAMOUNT PETROLEUM
CORPORATION, a Delaware
corporation; EOTT ENERGY
OPERATING LIMITED
PARTNERSHIP, a Delaware limited
partnership; PLAINS ALL AMERICAN
GP, LLC, a Delaware limited liability
company; and DOES 1 through 25,
inclusive,

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Defendants.
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STIPULATION FOR PROTECTIVE ORDER; STIPULATED PROTECTIVE ORDER

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TO THE HONORABLE JENNIFER L. THURSTON, UNITED STATES
MAGISTRATE JUDGE:
WHEREAS Plaintiffs C & C PROPERTIES, INC., JEC PANAMA, LLC, and

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WINGS WAY, LLC (collectively, “Plaintiffs”), and Defendant SHELL PIPELINE

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COMPANY (“Shell”) (together with the Plaintiffs, the “Parties” and each a “Party”),

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hereby stipulate to and request the Court to enter an order approving the following

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confidentiality agreement and protective order ("Stipulated Protective Order").

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A LVARADO S MITH
A P ROFESSIONAL C ORPORATI ON
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1.

Definitions.
(a)

“Pending Case” means the action captioned above, pending in the

United States District Court for the Eastern District of California.
(b)

“Confidential Information” means information or tangible things

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that qualify for protection under standards developed under Rule 26(c) of the Federal

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Rules of Civil Procedure ("FRCP") and other applicable provisions of law.

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(c)

“Designating Party” means a Party or non-party that designates

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Discovery Material as “Confidential” in the Pending Case, specifically as may be

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produced in connection with Shell’s defense in the Pending Case.

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(d)

“Discovery Material” means all items or information, regardless of

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the medium or manner generated, stored, or maintained (including, among other

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

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disclosures or responses to discovery in the Pending Case.
“Protected Material” means any Discovery Material that is

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(e)

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designated as “Confidential.”

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(f)

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“Producing Party” means a Party or a non-party that produces

Discovery Material in the Pending Case.
(g)

“Receiving Party” means a Party that receives Discovery Material

in the Pending Case.

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2.

Designation of Confidential Information.
(a)

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For Confidential Information in documentary form (apart from

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transcripts of depositions), the Producing Party shall stamp “CONFIDENTIAL” on

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the copies of the document produced. Stamping “CONFIDENTIAL” on the cover of

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any multipage document shall designate all pages of the document as Confidential

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unless otherwise indicated by the Producing Party.
(b)

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For Confidential Information contained in testimony given in

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deposition, the Party or non-party offering or sponsoring the testimony must identify

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on the record, before the certification of the deposition transcript, all protected
testimony and further specify any portions of the testimony that qualify as

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“CONFIDENTIAL.”
(c)

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Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items as “Confidential” does

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not, standing alone, waive the Designating Party’s right to secure protection under this

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Stipulated Protective Order for such material. If material is appropriately designated

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by “Confidential” after the material was initially produced, the Receiving Party, on

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timely notification of the designation, must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Stipulated Protective

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Order.
(d)

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Discovery Material designated as Confidential Information under

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this Stipulated Protective Order and any summaries, copies, abstracts, or other

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documents derived in whole or in part from material designated as Confidential

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Information shall be used only for the purpose of the prosecution, defense, or

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settlement of the Contested Matter and for no other purpose.

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3.

Duration. Even after the termination of the Pending Case, the

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confidentiality obligations imposed by this Stipulated Protective Order shall remain in

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effect until a Designating Party agrees otherwise in writing or a court order otherwise

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directs.
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Access to and Use of Protected Material.
(a)

Protected Material that is designated as “Confidential” and

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produced pursuant to this Stipulated Protective Order may be disclosed or made

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available only to the Court, counsel for a Party (including the paralegal, clerical, and

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secretarial staff employed by counsel), and “qualified persons” designated below:
(i)

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A Party, or an officer, director, or employee of a Party

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deemed necessary by counsel to aid in the prosecution, defense, or settlement of the

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Pending Case.
(ii)

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source of the Protected Material prior to its production or disclosure in this Action.
(iii)

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Any person or entity who authored, received, or was the

Experts or consultants (together with their clerical staff)

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retained by counsel to assist in the prosecution, defense, or settlement of the Pending

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Case, who have signed the “Acknowledgement and Agreement to Be Bound by

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Protective Order” (Exhibit A).

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(iv)

Court reporters employed in the Pending Case.

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(v)

A witness at any deposition or other proceeding in the

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Pending Case, who has signed the “Acknowledgement and Agreement to Be Bound

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by Protective Order” (Exhibit A).
(vi)

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Any other person as to whom the Parties in writing agree,

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and who has signed the “Acknowledgement and Agreement to Be Bound by

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Protective Order” (Exhibit A).
(vii) The jurors empaneled in this Action, if any, and necessary

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courtroom personnel, provided appropriate measures have been take to prevent the

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Protected Material from becoming filed in the public record.

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(b)

Nothing in this Stipulated Protective Order shall impose any

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restrictions on the use or disclosure by a Party of material obtained by such Party

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independent of discovery in the Pending Case, regardless of whether such material is

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also obtained through discovery in the Contested Matter or from disclosing its own

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confidential material as it deems appropriate.
5.

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Challenging Confidentiality Designations.
(a)

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Timing of Challenges. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable substantial

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unfairness, unnecessary economic burdens, or a later significant disruption or delay of

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the litigation, a Party does not waive its right to challenge a confidentiality designation

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by electing not to mount a challenge promptly after the original designation is

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disclosed.
(b)

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Meet and Confer. A Party that elects to initiate a challenge to a

Designating Party’s confidentiality designation must do so in good faith. The process

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can be initiated in writing or by voice to voice dialogue. However, if either side

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requests a voice to voice dialogue during the meet and confer process, the non-

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requesting side must, in good faith, attempt to comply with the requested voice to

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voice dialogue as soon as possible. In conferring, the challenging Party must explain

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

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

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reconsider the circumstances, and, if no change in designation is offered, to explain

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the basis for the chosen designation. A challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer process

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first.

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(c)

Judicial Intervention. A Party that elects to press a challenge to a

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confidentiality designation after considering the justification offered by the

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Designating Party may file and serve a motion that identifies the challenged material

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(but does not include the confidential material in the PACER filing) and sets forth in

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detail the basis for the challenge. Each such motion must be accompanied by a

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competent declaration that affirms that the movant has complied with the meet and

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confer requirements imposed in the preceding paragraph and that sets forth with
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specificity the justification for the confidentiality designation that was given by the

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Designating Party in the meet and confer dialogue.

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Protected Material Subpoenaed Or Ordered Produced In Other Litigation.
(a)

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If a Receiving Party is served with a subpoena or an order issued in

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other litigation that would compel disclosure of any information or items designated

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in the Pending Case as “CONFIDENTIAL,” the Receiving Party must notify the

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Designating Party, in writing (by fax, if possible) immediately and in no event more

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than three court days after receiving the subpoena or order. Such notification must

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include a copy of the subpoena or court order.
(b)

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The Receiving Party also must immediately inform in writing the

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Party who caused the subpoena or order to issue in the other litigation that some or all

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the material covered by the subpoena or order is the subject of this Stipulated

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Protective Order. In addition, the Receiving Party must deliver a copy of this

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Stipulated Protective Order promptly to the party in the other action that caused the

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subpoena or order to issue.
(c)

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The purpose of imposing these duties is to alert the interested

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Parties to the existence of this Stipulated Protective Order and to afford the

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Designating Party in this case an opportunity to try to protect its confidentiality

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interests in the court from which the subpoena or order issued.

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Unauthorized Disclosure of Protected Material. If a Receiving Party

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learns that, by inadvertence or otherwise, it has disclosed Protected Material to any

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person or in any circumstances not authorized under this Stipulated Protective Order,

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

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

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

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were made of all the terms of this Stipulated Protective Order, and (d) request such

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person or persons execute the “Acknowledgment and Agreement to Be Bound” that is

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attached hereto as Exhibit A.
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Filing Protected Material. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested

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persons, a Party may not file in the public record (i.e. on PACER) in the Pending Case

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any Protected Material. A Party that seeks to file under seal any Protected Material

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must comply with all FRCP sections and local rules that may apply with respect to

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filing documents under seal.

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This Stipulated Protective Order shall be without prejudice to the rights

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of the Parties:
(a)

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to bring before the Court at any time the question of whether any

particular document or information is confidential or whether its use should be

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restricted;

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(b)

to present a motion to the Court under FRCP 26(c) for a separate

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protective order as to any particular document or information, including restrictions

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differing from those as specified herein;

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(c)

to seek modification of this Stipulated Protective Order by the

Court in the future; or
(d)

to object on any ground to use in evidence any of the material

covered by this Stipulated Protective Order.

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This Stipulated Protective Order is entered solely for the purpose of

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facilitating the exchange of documents and information between the Parties to the

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Contested Matter without unnecessarily involving the Court in the process. Nothing

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in this Stipulated Protective Order nor the production of any information or document

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under the terms of this Stipulated Protective Order nor any proceedings pursuant to

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this Stipulated Protective Order shall be deemed to be an admission or waiver by

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either Party or to be an alteration of the confidentiality or nonconfidentiality of any

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such document or information or to be an alteration of any existing obligation of any

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Party or the absence of any such obligation.

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Final Disposition. This Stipulated Protective Order shall survive the final

termination of the Pending Case to the extent that the information contained in

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Protected Material is not or does not become known to the public, and the Court shall

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retain jurisdiction to resolve any dispute concerning the use of information disclosed

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under this Stipulated Protective Order. Upon termination of the Contested Matter, the

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Receiving Parties shall assemble and return the Protected Material received from a

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Designating Party, including all copies of same, with a written description signed by

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counsel that all such Protected Material is being returned, has not been disseminated

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or shall certify the destruction thereof.

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Immediately Effective. The Parties hereto agree this Stipulated

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Protective Order is immediately effective as between counsel upon the full execution

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hereof. The Parties and their counsel agree that no documentation marked

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confidential shall be shared with anyone other than counsel for the Parties until the

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signed Order is received from the Court.

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IT IS SO STIPULATED.

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DATED: October , 2016

ALVARADOSMITH
A Professional Corporation

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By:______________________________
KEITH E. MCCULLOUGH
KEVIN A. DAY
Attorneys for Defendants
SHELL PIPELINE COMPANY, a
Delaware limited partnership and ALON
USA PARAMOUNT PETROLEUM
CORPORATION, a Delaware limited
partnership

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DATED: October , 2016

THOMAS VOGELE & ASSOCIATES, APC

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By:
Thomas A. Vogele
Timothy M. Kowal
Attorneys for plaintiffs C & C Properties,
Inc., JEC Panama, LLC, and Wings Way,
LLC

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ORDER

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Based upon the stipulation of the parties, the Court GRANTS the stipulated protective order.

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IT IS SO ORDERED.
Dated:

October 11, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND BY PROTECTIVE

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ORDER

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I, _____________________________ [print or type full name], of
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____________________________ [print or type full address], declare under penalty
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of perjury that I have read in its entirety and understand the Stipulated Protective
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Order that was issued by the United States District Court for the Eastern District of
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California, on __________ in the case of C & C Properties Inc.et al. v. Shell Pipeline
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Company et al., District Case Number 1:14-cv-01889-DAD-JLT. I agree to comply
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with and to be bound by all the terms of the Stipulated Protective Order, and I
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understand and acknowledge that failure to so comply could expose me to sanctions
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and punishment in the nature of contempt. I solemnly promise that I will not disclose
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in any manner any information or item that is subject to the Stipulated Protective
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Order to any person or entity except in strict compliance with the provisions of this
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Order.
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I further agree to submit to the jurisdiction of the United State Bankruptcy
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Court for the Eastern District of California, Sacramento Division, for the purpose of
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enforcing the terms of this Stipulated Protective Order, even if such enforcement
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proceedings occur after termination of the above-referenced bankruptcy case.
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Date: __________________________
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City and State where sworn and signed: ____________________
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Printed name: _____________________
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Signature: _____________________
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