GBTKAT Gold, LLC et al v. Golden Queen, LLC, et al

Filing 31

STIPULATED PROTECTIVE ORDER, signed by Magistrate Judge Jennifer L. Thurston on 1/7/2021. (Hall, S)

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Steven D. McGee #71886
Jared C. Marshall #272065
Caroline M. Lutz #274836
FENNEMORE DOWLING AARON
8080 North Palm Avenue, Third Floor
P.O. Box 28902
Fresno, California 93729-8902
Tel: [phone]
Fax: [phone]

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Attorneys for Plaintiffs, GBTKAT GOLD, LLC and FAR AWAY, LLC

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Bradley B. Johnson #257220
Adam K. Guernsey #282105
Russell A. Frink #302522
HARRISON TEMBLADOR HUNGERFORD & JOHNSON LLP
2801 T Street
Sacramento, California 95816
Tel: [phone]
Fax: [phone]

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Attorneys for Defendant, GOLDEN QUEEN MINING COMPANY, LLC

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GBTKAT GOLD, LLC, a California limited
liability and FAR AWAY, LLC, a California
limited liability company,

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Plaintiffs,

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
(Doc. 29)

vs.

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Case No. 1-19-cv-01114-DAD-JLT

GOLDEN QUEEN, LLC, a California limited
liability company; GOLDEN QUEEN
MINING COMPANY, LTD, a publicly traded
British Columbia corporation

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Defendants.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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Plaintiffs GBTKAT GOLD, LLC and FAR AWAY, LLC (collectively,

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“Plaintiffs”) and Defendant GOLDEN QUEEN MINING COMPANY, LLC (erroneously named

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in the Complaint as GOLDEN QUEEN, LLC) (“Defendant” or “GQMC”) (collectively, Plaintiffs

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and Defendant are referred to as the “Parties”), by and through their respective counsel of record,

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submit the following proposed stipulated protective order (the “Stipulated Protective Order”)

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pursuant to Federal Rules of Civil Procedure 26(c)(E), 72, and 83, and Local Rules 141.1(b)(1),

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143, and 302(c)(2).

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I.

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RECITALS

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WHEREAS, on August 15, 2019, Plaintiffs filed their complaint in the U.S.

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District Court, Eastern District of California for: Accounting; Declaratory Relief; Waste;

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Conversion; and Unfair Competition – Cal. Bus. & Prof. §17200, et seq. (Doc No. 1) (the

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“Complaint”).
WHEREAS, on September 30, 2019, Defendant filed its answer to Plaintiffs’

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Complaint (Doc. No. 7) (the “Answer”).

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WHEREAS, to promote the exchange of discovery in further litigation of the

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above-captioned action, the Parties now request that the following proposed Stipulated Protective

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Order be approved by this Court before certain information and documents are produced. Namely,

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Defendant seeks to protect as confidential proprietary business information that is essential to

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Defendant’s competitive advantage in the mining industry and that is also relevant to the claims

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and defenses in this dispute.

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II.

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STIPULATION
THEREFORE, Plaintiffs and Defendant, by and through their respective counsel of

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record, hereby stipulate and agree and request that the Court order that:

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1.

Purpose and Limitations

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Disclosure and discovery in the above-captioned action are likely to involve

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production of confidential, proprietary, or private information which may include information in

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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the nature of, but not limited to, trade secrets, proprietary business information, competitively

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sensitive information, or other information the disclosure of which would be detrimental to the

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conduct of the Producing party’s (as defined below) business and the business of the Producing

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party’s customers or clients, for which special protection from public disclosure and from use for

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any purpose other than litigating this action may be warranted. Likewise, technical and proprietary

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information pertaining to GQMC’s mining operations and discovery efforts on the Soledad

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Mountain mine is confidential business information that is essential to GQMC’s competitive

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advantage in the mining industry and that is also relevant to the claims and defenses in this dispute.

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Therefore, GQMC’s technical and proprietary information should be protected as confidential as

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provided in this Stipulated Protective Order. Accordingly, the Parties hereby stipulate to and

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petition the Court to approve the following Stipulated Protective Order. The Parties acknowledge

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that this Stipulated Protective Order does not confer blanket protections on all disclosures or

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responses to discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment under this

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Stipulated Protective Order.

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2.

Definition of Confidential Information

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As used herein:

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a.

“Confidential Information” shall mean all information (regardless of how

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generated, stored, or maintained), material, tangible things, or testimony that qualify for protection

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under standards developed under the Federal Rules of Civil Procedure, produced by or disclosed

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to a Receiving party by a Producing party that the Producing party or a Designating party

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reasonably and in good faith considers to be confidential or proprietary information or trade secrets

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of the Producing party and which has been so designated by the Producing party or Designating

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party. Such information, material, tangible things, or testimony may include, but is not limited to,

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trade secrets, proprietary business information, competitively sensitive information, technical

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information, customer information, vendor information, financial information, sales data, business

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plans and strategies, agreements and communications, or other information the disclosure of which

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the Producing party or the Designating party reasonably and in good faith considers to be

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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confidential or proprietary information or trade secrets of the Producing party or the disclosure of

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which would otherwise be detrimental to the conduct of the Producing party’s business or the

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business of any of the Producing party’s customers or clients.

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Extracts and summaries of Confidential Information shall also be treated as confidential.

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The following are examples of information that is not Confidential Information:

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i.

published advertising materials;

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ii.

any information that is or, after its disclosure to a Receiving party, becomes

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part of the public domain as a result of publication not involving a violation of this Stipulated

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Protective Order;
iii.

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information that the Receiving party can show by written records was

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already known to it prior to the disclosure, provided that it was either (i) received from the

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Producing party and was not received under an express or implied obligation of confidentiality to

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the Producing party, or (ii) received from a source who obtained the information lawfully and

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under no express or implied obligation of confidentiality to the Producing party;
iv.

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any information that the Receiving party can show by written records was

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received by it after the disclosure from a source who obtained the information lawfully and under

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no express or implied obligation of confidentiality to the Producing party; and
v.

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any information that the Receiving party can show was independently

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developed by it after the time of disclosure by personnel who did not have access to the Producing

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party’s Confidential Information.

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b.

“Attorney Eyes Only Information” shall mean all Confidential Information that,

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consistent with the terms and conditions below, the Producing party or Designating party

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reasonably and in good faith considers to be so sensitive that its dissemination deserves even

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further limitation by preventing the disclosure thereof to the Receiving party. As such, Attorneys

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Eyes Only Information shall only be disclosed to the Receiving party’s counsel and persons

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identified in Paragraph 4.b. herein below but shall not be disclosed to the Receiving party. Attorney

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Eyes Only Information is a subset of Confidential Information, and shall be treated as Confidential

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Information, except as specifically stated otherwise hereinbelow.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

c.

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“Producing party” shall mean any Party to this action or any non-party to this action

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producing Confidential Information in connection with depositions, document production or

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otherwise, or the party asserting the confidentiality privilege, as the case may be.
d.

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“Receiving party” shall mean any Party to this action or any non-party to this action

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receiving Confidential Information in connection with depositions, document production or

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otherwise in this action.
e.

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“Designating party” shall mean any Party to this action or any Producing party that

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designated the Confidential Information as “confidential” by notation on the document, statement

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on the record of the deposition, written advice to the respective undersigned counsel for the Parties

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hereto if the Confidential Information is not reduced to documentary, tangible, or physical form,

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if the Confidential Information cannot conveniently be so designated, or consistent with the terms

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of this Stipulated Protective Order, or by other appropriate means.

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3.

Right to Designate Information as Confidential

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Subject to the terms of Paragraphs 4 and 8, either Party to this action or a Producing party

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may act as a Designating party and designate information, material, tangible things, or testimony

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produced or given by a Producing party in connection with this action that said Designating party

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reasonably and in good faith considers to be Confidential Information by notation on the document,

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statement on the record of the deposition with subsequent notation by the Producing party or

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Designating party on the cover page of the deposition transcript if not already present on the cover

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page of the transcript when received from the court reporter, written advice to the respective

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undersigned counsel for the Parties hereto if the Confidential Information is not reduced to

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documentary, tangible, or physical form, if the Confidential Information cannot conveniently be

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so designated, or consistent with the terms of this Stipulated Protective Order, or by other

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appropriate means.

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Subject to the terms of Paragraph 4, Confidential Information that a Producing party or

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Designating party reasonably and in good faith considers to be Attorney Eyes Only Information

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shall be designated accordingly by notation on the document, statement on the record of the

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deposition with subsequent notation by the Producing party or Designating party on the cover page

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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of the deposition transcript if not already present on the cover page of the transcript when received

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from the court reporter, written advice to the respective undersigned counsel for the Parties hereto

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if the Confidential Information is not reduced to documentary, tangible, if the Confidential

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Information cannot conveniently be so designated, or consistent with the terms of this Stipulated

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Protective Order, or by other appropriate means.

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4.

Treatment of Confidential Information

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Except with the prior written consent of the Designating party or by order of the Court,

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Confidential Information shall not be furnished, shown or disclosed to any person or entity except

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to:
a.

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Plaintiff, GQMC, and personnel of Plaintiff or GQMC actually engaged in assisting

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in the preparation of this action for trial or other proceeding herein and who have been advised of

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their obligations hereunder. Attorney Eyes Only Information shall be not be disclosed to Plaintiff,

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GQMC, or personnel of Plaintiff or GQMC;
b.

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Counsel for the Parties to this action and their associated attorneys, paralegals and

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other professional personnel (including support staff) who are directly assisting such counsel in

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the preparation of this action for trial or other proceeding herein, are under the supervision or

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control of such counsel, and who have been advised by such counsel of their obligations hereunder;
c.

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Expert witnesses or consultants retained by the Parties or their counsel to furnish

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technical or expert services in connection with this action or to give testimony with respect to the

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subject matter of this action at the trial of this action or other proceeding herein; provided, however,

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that such Confidential Information is furnished, shown or disclosed in accordance with Paragraph

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6 hereof;

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d.

The Court and court personnel, if filed in accordance with Paragraph 11 hereof;

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e.

Any independent litigation support services, including persons working for or as

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court reporters, graphics or design services, jury or trial consulting services, and photocopy,

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document imaging, and database services retained by the Parties in this action, if furnished, shown

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or disclosed in accordance with Paragraph 7 hereof;

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[PROPOSED] STIPULATED PROTECTIVE ORDER

f.

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Trial and deposition witnesses, if furnished, shown or disclosed in accordance with

Paragraphs 6, 7, and 9, respectively, hereof; and

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g.

Any other person agreed upon by the Parties.

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Confidential Information shall be utilized by the Receiving party and its counsel only for

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purposes of preparing for, conducting, participating in the conduct of, prosecuting, or defending

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the above-captioned action and not for any other purposes.

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If a Producing party or Designating party determines that information should have been

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designated as Confidential Information but was not, it shall notify the Receiving party in writing

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as soon as practicable following such determination. The Receiving party shall then make a

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reasonably diligent effort to retrieve the Confidential Information and otherwise ensure that

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persons to whom the Confidential Information was disclosed will treat it as confidential.
Any person receiving Confidential Information shall not reveal or discuss such information

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to or with any person not entitled to receive such information under the terms hereof.

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5.

Disagreement Regarding Confidentiality

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The Receiving party may, at any time, notify the Producing party or Designating party in

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writing that the Receiving party does not concur in the designation of information, material, tangible

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things, or testimony as Confidential Information or Attorneys’ Eyes Information, and the parties

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shall attempt to meet and confer to resolve the dispute by mutual agreement. If the dispute is not so

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resolved, within twenty (20) days of the parties’ agreement that the meet and confer process will

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not resolve their dispute, the contesting party may move the Court for a ruling on the dispute. If no

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such motion is filed, such information, material, tangible things, or testimony shall continue to be

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treated as Confidential Information or Attorneys’ Eyes Only Information, as applicable. If such

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motion is filed, the information, material, tangible things, or testimony shall be treated as

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Confidential Information or Attorneys’ Eyes Only Information, as applicable, unless and until the

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Court rules otherwise.

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6.

Disclosure of Confidential Information to Expert Witnesses and Consultants

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Before any disclosure of Confidential Information is made to an expert witness or

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consultant pursuant to Paragraph 4.c. hereof, counsel for the party disclosing the Confidential

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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Information shall provide a copy of this Stipulated Protective Order and a copy of the

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Acknowledgment and Agreement to Be Bound by Stipulated Protective Order attached hereto as

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Exhibit “A” (the “Acknowledgment”) to the aforementioned expert witness or consultant. Said

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expert witness or consultant shall execute the Acknowledgment before any Confidential

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Information is disclosed. Counsel for the party disclosing the Confidential Information shall supply

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a copy of the Acknowledgment executed by the expert witness or consultant to counsel for the

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other party at the time of the disclosure of the Confidential Information.

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7.

Depositions

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All depositions shall presumptively be treated as Confidential Information and subject to

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this Stipulated Protective Order during the deposition and for a period of fifteen (15) days after a

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transcript of said deposition is received by counsel for each of the Parties. Subject to the terms of

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Paragraph 4, at or before the end of such fifteen-day period, the Producing party or Designating

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party shall reasonably and in good faith designate any testimony contained in the deposition it

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considers to be Confidential Information or Attorneys’ Eyes Only Information, if applicable.

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This Stipulated Protective Order shall not preclude counsel for the Parties from using

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during any deposition in this action any information, material, tangible things, or testimony that

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has been designated as Confidential Information under the terms hereof. Any court reporter or

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deposition witness who is given access to Confidential Information shall, prior thereto, be

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provided with a copy of this Stipulated Protective Order and a copy of the Acknowledgment

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attached hereto as Exhibit “A”. Said court reporter or deposition witness shall execute the

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Acknowledgment before the disclosure of any Confidential Information. Counsel for the party

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disclosing the Confidential Information shall supply a copy of the Acknowledgment executed by

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the court reporter or deposition witness to counsel for the other Party at the time of the disclosure

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of the Confidential Information.

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8.

Confidential Information Provided by Non-Parties

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A Party to this action or Producing party may act as a Designating party and designate as

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Confidential Information subject to this Stipulated Protective Order any information, material,

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tangible things, or testimony produced or given by any non-party to this action, or any portion

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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thereof, that said Designating party reasonably and in good faith considers to be Confidential

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Information by notation on the document, statement on the record of the deposition with

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subsequent notation by the Producing party or Designating party on the cover page of the

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deposition transcript if not already present on the cover page of the transcript when received from

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the court reporter, written advice to the respective undersigned counsel for the Parties hereto if the

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Confidential Information is not reduced to documentary, tangible, or physical form, if the

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Confidential Information cannot conveniently be so designated, or consistent with the terms of this

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Stipulated Protective Order, or by other appropriate means.

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In the case of Confidential Information or Attorneys’ Eyes Only Information not already

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so designated when produced or given by any non-party to this action, the Producing party or

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Designating party shall notify all counsel in writing of the Confidential Information or Attorneys’

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Eyes Only Information which said party reasonably and in good faith considers to be Confidential

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Information or Attorneys’ Eyes Only Information and, therefore, is to be treated as such. Subject

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to the terms of Paragraph 4, said written notification may be made at any time up to fifteen (15)

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days after receipt of copies of the aforementioned Confidential Information or Attorneys’ Eyes

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Only Information by counsel for the party asserting the confidentiality privilege. In the case of

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deposition testimony, any designation of Confidential Information or Attorneys’ Eyes Only

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Information shall be made pursuant to Paragraph 7.

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9.

Disclosure at Hearing or Trial

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Should the need arise for any of the Parties to disclose Confidential Information during any

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hearing or trial before the Court, including through argument or the presentation of evidence, such

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Party may do so only after taking such steps as the Court, upon motion of the disclosing party,

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shall deem necessary to preserve the confidentiality of such Confidential Information.

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10.

Limitations on Copying

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No copies, summaries or abstracts of Confidential Information shall be made by a Party,

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or its trial attorneys, for distribution or use by any person other than those described in Paragraph

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4 hereof.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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11.

Confidential Information Filed with Court

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Any Party desiring to make Confidential Information a matter of public record by filing

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such Confidential Information with the Court, must notify the Producing party and Designating

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party, as applicable, of that intention at least ten (10) calendar days prior to filing any such

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Confidential Information in order to allow the Producing party and Designating party, as

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applicable, an opportunity to make application to the Court for sealing the Confidential

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Information for good cause. The Confidential Information shall not be filed until the Court renders

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a decision on the motion to seal.

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12.

Public Information

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Pursuant to the terms of Paragraph 4 hereto, any information, material, tangible things, or

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testimony which have been designated as Confidential Information and were also legally and

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properly within the public domain prior to their designation as Confidential Information need not

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be treated as Confidential Information. However, if such Confidential Information became

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available to the public as a result of any improper conduct or in violation of this Stipulated

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Protective Order, any contract, or court order, such Confidential Information must still be treated

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as such under this Stipulated Protective Order.

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13.

Waiver

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The production or disclosure of Confidential Information shall in no way constitute a

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waiver of each Party’s right to object to the production or disclosure of other information in this

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action or in any other action. Nothing herein shall be deemed to waive any privilege recognized

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by law, or shall be deemed an admission as to the admissibility in evidence of any facts or

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documents revealed in the course of disclosure.

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Pursuant to the terms of Paragraph 4, at any time after any information, material, tangible

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things, or testimony is designated as Confidential Information under this Stipulated Protective

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Order, the Designating Party may agree in writing that the Confidential Information may be

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disclosed to designated persons employed by the Receiving party.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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14.

No Prejudice / Amendment

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This Stipulated Protective Order is entered into without prejudice to the right of either Party

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to seek relief from, or modification of, this Stipulated Protective Order or any provisions thereof

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by properly noticed motion to the Court or to challenge any designation of confidentiality as

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inappropriate under the Federal Rules of Civil Procedure or other applicable law. This Stipulated

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Protective Order may be amended by the written agreement of counsel for the Parties.

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15.

Disposition on Termination of Action

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This Stipulated Protective Order shall continue to be binding upon the Parties and their

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attorneys, successors, executors, personal representatives, administrators, heirs, legal

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representatives, assigns, subsidiaries, divisions, employees, agents, independent contractors, or

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other persons or organizations over which they have control after the conclusion of this litigation

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except (a) that there shall be no restriction on documents and information that are used as exhibits

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in Court (unless such exhibits were filed under seal) or that become a matter of public record; and

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(b) that a Party may seek the written permission of the Designating party or further order of the

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Court with respect to dissolution or modification of all or any part of this Stipulated Protective

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Order. This Court retains and shall have continuing jurisdiction over the Parties and recipients of

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the Confidential Information for enforcement of the provisions of this Stipulated Protective Order

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following termination of this litigation.

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Further, after the final termination of this action and unless the Parties agree otherwise,

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each Party shall:

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a.

assemble and make available for return to the Designating Party all information,

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documents, materials, tangible things, summaries, computer records and abstracts containing

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Confidential Information;

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b.

make available for return or destroy every portion of other information, documents,

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materials, tangible things, or memoranda purporting to reproduce or paraphrase Confidential

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Information;

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c.

upon request made in writing by the Designating Party, certify in writing that the

procedures set forth above have been completed; and

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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d.

by the Designating Party.
IT IS SO STIPULATED.

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agree not to disclose the substance of any Confidential Information revealed to it

Dated:

January 7, 2021

FENNEMORE DOWLING AARON

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By: /s/ Steven D. McGee
Steven D. McGee
Jared C. Marshall
Caroline M. Lutz
Attorneys for Plaintiffs,
GBTKAT GOLD, LLC and FAR AWAY, LLC

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Dated:

January 7, 2021

HARRISON TEMBLADOR HUNGERFORD &
JOHNSON LLP

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By: /s/ Bradley B. Johnson
Bradley B. Johnson
Adam K. Guernsey
Russell A. Frink
Attorneys for Defendant,
GOLDEN QUEEN MINING COMPANY,
LLC

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ORDER

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Good cause appearing, the protective order is GRANTED. However, this protective
order does not entitle the parties to file any documents under seal.

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IT IS SO ORDERED.
Dated:

January 7, 2021

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY STIPULATED

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PROTECTIVE ORDER

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I,

, state that:

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1.

My address is

.

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2.

My present employer is

.

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3.

My present occupation or job description is

.

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4.

I understand that I am about to receive Confidential Information supplied in

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connection with the above-captioned action, the case styled as GBTKAT GOLD, LLC and FAR

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AWAY, LLC v. GOLDEN QUEEN MINING COMPANY, LLC, Case No. 1-19-cv-01114-DAD-

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JLT, United States District Court, Eastern District of California. I understand that the Confidential

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Information is provided to me subject to the terms and restrictions contained in the Stipulated

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Protective Order filed in the above-captioned action.
5.

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I have received a copy of the Stipulated Protective Order entered in the above-

entitled action on the following date:
.

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6.

I have carefully read and understand the provisions of the Stipulated Protective

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7.

I will comply with all of the provisions of the Stipulated Protective Order.

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8.

I will hold in confidence, will not disclose to anyone not designated under the

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19

Order.

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Stipulated Protective Order as permitted to view or receive Confidential Information, and will use

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only for purposes of the above-captioned action, any Confidential Information that is disclosed to

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me, including any documents or things that I have prepared relating thereto, except as expressly

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permitted by the Stipulated Protective Order. I understand that I am to retain all copies of all

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Confidential Information provided to me concerning the above-captioned action in a secure

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manner, and that all copies of such Confidential Information are to remain in my personal custody

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until termination of my participation in the above-captioned action.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

9.

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Upon termination of my participation in the above-captioned action, I will return

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all Confidential Information that comes into my possession to counsel from whom I received the

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Confidential Information and any documents or things that I have prepared relating thereto to

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counsel for the Party by whom I am employed or retained.
10.

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I hereby submit to the jurisdiction of the court in the above-captioned action as

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identified in the Stipulated Protective Order for the purpose of enforcement of the Stipulated

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Protective Order.

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Dated:
SIGNATURE

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CLUTZ/17656823.2/102143.0001

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[PROPOSED] STIPULATED PROTECTIVE ORDER