Pacific Northwest Solar v. Northwestern Corporation, A Delaware Corporation

Filing 87

PROTECTIVE AND CLAWBACK ORDER. Please review order for complete details. Signed by Judge Sam E Haddon on 3/6/2018. (HEG)

IN THE UNITED ST ATES DISTRICT COURT
FOR THE DISTRICT OF MONT ANA
HELENA DIVISION

FILED
MAR O6 2018

PACIFIC NORTHWEST SOLAR,
LLC,
Plaintiff,
vs.
NORTHWESTERN CORPORATION,
A DELAWARE CORPORATION
DIBIA NORTHWESTERN ENERGY,
Defendant.
1.

)
)

Clerk, U.S. Distrtct Court
District Of Montana
Helena

) Case No.: CV-16-114-I-I-SEII
)
)
)
) PROTECTIVE AND CLA WBACK
) ORDER

)
)
)
)
)

Documents to be produced by the Parties in this Action, which the

Producing Party in good faith believes contain confidential, proprietary, and/or
sensitive business information such as financial, accounting, operational and critical
energy infrastructure information shall be stamped "CONFIDENTIAL," followed
by a Bates number, and shall be subject to this Order.
2.

Documents marked "CONFIDENTIAL" will be used only in

connection with this Action, and except as provided herein shall not be given to othc1·
persons or other entities without the written permission of the Producing Party.

1

Persons obtaining access to CONFIDENTIAL Documents under this Order shall use
the information only for preparation and trial or appeal of this Iitigation.
3.

Documents marked or designated "CONFIDENTIAL" may be

disclosed only to:
a. The Judge, Magistrate Judge and court personnel. All parties understand
that all documents relied upon by the Court in resolving any issue before
the Court, including documents filed under seal, will be made public
contemporaneously with the Court's ruling on the issue;
b. The Parties in this Action and their Counsel who are actively engaged in
the conduct of this litigation and their staff;
c. Any witness in this Action provided that counsel has a good faith belief
that the document reasonably relates to the potential testimony of such
witness;
d. Outside consultants or experts retained for the purpose of assisting counsel
in the litigation; and
e. Any other person designated by the Court in the interest of justice, upon
such terms as the Court may deem proper.
4.

After receiving a deposition transcript, a party may designate as

"CONFIDENTIAL" those pages of the transcript which discuss documents
previously marked as "CONFIDENTIAL" pursuant to this Order. If no party or
2

deponent designates confidential information in a deposition within thirty (30) days
after receipt of the deposition, then none of the transcript will be treated as
confidential; if a timely designation is made, if filed in the Court's record the
confidential portions may be redacted pursuant to L.R. 26.4(6) but may not be filed
under seal.
5.

Within sixty (60) days after the termination of this litigation, all

materials designated as CONFIDENTIAL, including all copies made for the Party's
own use or shared with experts or consultants, shall be returned to counsel for the
Producing Party, or, alternatively, counsel for the recipient(s) of CONFIDENTIAL
materials shall certify in writing that said materials have been destroyed.
6.

If any Documents designated as CONFIDENTIAL are inadvertently

disclosed to persons other than those identified in Paragraph 3 above, the Requesting
Party who received the Protected Documents in the first instance shall promptly
notify the Producing Party of the inadvertent disclosure in writing, and make every
reasonable effort to prevent further unauthorized disclosure by attempting to
promptly retrieve all copies of the Documents containing Protected Documents from
the unauthorized recipients thereof and securing the agreement of the unauthorized
recipients not to further disseminate the Protected Documents in any form.
Compliance with the foregoing shall not prevent a Party from seeking further relic!'
from the Court.
3

7.

The inadvertent production of a privileged document by any Party will

not operate as a waiver of any applicable privilege of the disclosed document or any
related subject matter in this litigation or in any other court, administrative action,
investigation, or legal proceeding.
8.

A Party who realizes that it has produced or received a Disclosed

Privileged Document shall, as soon as practicable, (i) notify, in writing, all other
Parties and/or other persons producing or receiving such information that disclosure
was made, (ii) identify the Document(s) disclosed, (iii) make reasonable efforts to
retrieve all copies of and prevent further disclosure of the Disclosed Privileged
Documents, and (iv) refrain from using or further disclosing the Disclosed Privileged
Document (including, but not limited to, using the information in depositions or at
trial). Any person or entity bound by the terms of this Protective and Clawback
Order receiving notice that Disclosed Privileged Information has been produced
shall, within three (3) business days, return, destroy, sequester, or delete all copies
of the Disclosed Privileged Document, as well as any abstracts, charts, memoranda,
notes, summaries, compilations, or indices of same, and provide a representation of
Counsel that all such information has been returned, destroyed, sequestered. or
deleted. To the extent the claim of Privilege is disputed, the Parties shall meet and
confer to resolve any such dispute, and in the event such dispute cannot be resolved,
the Party receiving such information may promptly present the information to the
4

Court, under seal, pursuant to the Local Rules of this Court, and seek such further
relief from the Court regarding the claim of Privilege. The Party receiving such
information shall not use in any way (including, but not limited to, using the
information at depositions or at trial) or disclose to any person the Disclosed
Privileged Information until the claim of Privilege is resolved either by agreement
of the Parties or by the Court. The Party claiming the Privilege shall preserve the
Disclosed Privileged Information until the claim of Privilege is resolved either by
agreement of the Parties or by the Court. The Parties contemplate that the Documents
that may be requested or produced in this case may be voluminous and may be
produced in this Action without a full and complete Privilege review.
9.

The terms, conditions, and limitations of this Order may be modified,

changed or eliminated by further Order of Court if necessary or appropriate.
IT IS SO ORDERED.
DATED this ~ y of March, 2018.

~[Mc!~
United States District Judge

5