Patriot Rail Corp. v. Sierra Railroad Company

Filing 190

AMENDED PROTECTIVE ORDER signed by Judge Morrison C. England, Jr on 1/23/12. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PATRIOT RAIL CORP., a
Delaware corporation,

No. 2:09-cv-00009-MCE-EFB

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Plaintiff,
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AMENDED PROTECTIVE ORDER

v.
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SIERRA RAILROAD COMPANY,
a California corporation,

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Defendant.

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______________________________

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And Related Counterclaim.
______________________________

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The Protective Order previously issued in this matter on

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May 21, 2009 (ECF No. 21) is hereby amended to permit Defendant

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Sierra Railroad Company (“Sierra”) to make due diligence

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disclosures to a prospective purchaser, Iowa Pacific Holdings

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(“Iowa Pacific”) as follows:

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1.

Litigation Information produced or exchanged in the

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course of this case may be used only for the purposes of this

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litigation and for Sierra’s due diligence disclosures in

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connection with its potential acquisition by Iowa Pacific.
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2.

“Litigation Information” includes, without limitation,

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any information obtained by either party from the other party in

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the course of this litigation.

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but is not limited to, information produced during formal or

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informal discovery, including depositions, and information

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produced during formal or informal settlement discussions.

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Litigation information does not include information in the public

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domain or information that is not obtained through litigation in

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this action.

Litigation Information includes,

A party need not designate Litigation Information

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produced or exchanged, either by stamping, marking, or otherwise

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identifying the document or information as “Confidential” or

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“Litigation Information” in order for the protections of this

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order to apply to it.

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3.

“Highly Confidential” is extremely sensitive

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“Litigation Information” whose disclosure to a non-party would

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create a substantial risk of serious injury that could not be

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avoided by less restrictive means.

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information for protection under this order must take care to

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limit any such designation to specific material that qualifies

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under that standard.

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to designate for protection only those parts of materials,

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documents, items, or oral or written communications that qualify

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-- so that other portions of the material, documents, items or

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communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this order.

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indiscriminate, or routinized designations are prohibited.

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A Party that designates

The Designating Party must also take care

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Mass,

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Designations that are shown to be clearly unjustified, or that

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have been made for an improper purchase, will expose the

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Designating Party to sanctions.

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4.

This Amended Protective Order will remain in full force

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and effect unless by modification by further order of this Court

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or written agreement of the Parties.

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order shall survive and remain in full force and effect after the

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conclusion of this case (including any appellate proceedings),

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whether by settlement or through entry of final judgment.

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5.

The provisions of this

Litigation Information must be made available only to:

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a.

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b.

Parties to this action;
Attorneys of record in this litigation and

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employees of such counsel to whom it is necessary that the

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material be shown for the purposes of this litigation;

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c.

Third parties employed by a party, or its attorneys

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of record, solely for the purpose of assisting in preparation for

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trial (e.g., retained experts) after executing the stipulation to

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be bound for the Amended Protective Order, attached hereto as

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Exhibit A;

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d.

Court personnel and any stenographic reporters

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engaged in this action;

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e.

A mediator or neutral person hired by the parties

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or appointed by the Court to assist in resolution of this

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litigation; or

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f.

Iowa Pacific, given Sierra’s representation that it

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is engaged in ongoing acquisition negotiations with Iowa Pacific

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as a protective purchaser for Sierra, and given due diligence

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requests made by Iowa Pacific in connection with that potential

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acquisition for Sierra’s Litigation Information, provided that

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Iowa Pacific Holdings also executes the stipulation (attached

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hereto as Exhibit A) to be bound by the terms of this Amended

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Protective Order.

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to Iowa Pacific, Sierra is directed to provide Plaintiff Patriot

Prior to disclosing any Litigation Information

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Rail Corp. (“Patriot Rail”) with a list of documents to be

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provided to Iowa Pacific in accordance with the terms of this

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Amended Protective Order.

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Rail’s receipt of said list, Patriot Rail may designate a certain

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narrow category of documents as “Highly Confidential” as defined

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above.

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Pacific at the offices of either Sierra or Sierra’s counsel.

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copies of documents designated as “Highly Confidential” shall be

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made or provided to Iowa Pacific in either paper or electronic

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form.

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6.

Within five days following Patriot

Documents so designated can only be reviewed by Iowa
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Subject to the Federal Rules of Evidence, the parties

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may offer Litigation Information in evidence during the course of

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this litigation.

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7.

The parties do not waive their right to object to

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producing any document, responding to any interrogatory, or

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request for admission, or the disclosure of any information by

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any means of discovery in this matter.

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8.

Counsel for each party must take reasonable precautions

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with regard to storage, custody, and use to prevent the

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unauthorized or inadvertent disclosure of any Litigation

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Information.

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9.

This Amended Protective Order shall apply to all

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Litigation Information produced or exchanged prior to the date of

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execution of said order, on that date and after that date.

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10.

A party may seek a court order to enforce the terms of

this Amended Protective Order.

Even if no further order is

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sought, however, the terms of the present order shall be binding

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on all parties.

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The Court retains jurisdiction, both before and after

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the entry of final judgment in this case (whether by settlement

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or litigation), to construe, enforce and amend the provisions of

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this order.

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IT IS SO ORDERED.
Dated: January 23, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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Exhibit A

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STIPULATION TO BE BOUND FOR AMENDED PROTECTIVE ORDER

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I hereby certify that I have reviewed and understand the
attached Amended Protective Order agreed to by the parties and
entered into the record by the Court. I, being a person covered
under paragraph 5(c) or 5(f) of the Amended Protective Order,
agree to comply with its terms and to submit to the jurisdiction
of the United States District Court for the Eastern District of
California should I violate the terms of said order.
I further certify that I am authorized to sign this
Agreement on behalf of any entity listed below for which I am
employed and, in doing so, bind not only myself, but also all
other personnel of such entity to which it is necessary that the
material be shown and/or shared for the purposes of this
litigation, and that I will take reasonable steps to ensure
compliance by such other personnel with this Agreement and the
Amended Protective Order.

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Dated:

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________________________
Signature

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________________________
Printed Name of Signatory

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_________________________
Name of Employer

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_________________________
Address

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