Adelos, Inc. v. Halliburton Company et al

Filing 51

STIPULATED PROTECTIVE ORDER. Signed by Judge Dana L. Christensen on 4/5/2017. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ADELOS, INC.,
Plaintiff,
vs.
HALLIBURTON COMPANY and
HALLIBURTON ENERGY
SERVICES, INC.,

ORDER

Defendants.

STIPULATED PROTECTIVE ORDER
WHEREAS the Parties have stipulated that good cause exists for the entry
of a Protective Order to govern confidential materials in accordance with Federal
Rule of Civil Procedure 26( c) to protect against improper disclosure of
confidential information produced or disclosed in this litigation; and
WHEREAS this proposed order is subject to and without waiver of any
objection to jurisdiction or venue and shall not be used as evidence otherwise;
IT IS HEREBY STIPULATED AND AGREED, SUBJECT TO THE
APPROVAL AND ORDER OF THE COURT, as follows:
1. Definitions. As used in this Protective Order, these terms have the
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following meanings:
(a) "Designated Material" means information designated in
accordance with Paragraphs 2 or 3;
(b) "Material" includes all documents, transcripts, records, and things
(in oral, written, or electronic forms) within the scope of Federal Rule of Civil
Procedure 34, including, without limitation, all testimony adduced at depositions,
all documents or things responsive to requests for the production of documents
and things, all answers to interrogatories, all responses to requests for admissions,
and all other responses to discovery requests provided in accordance with the
Federal Rules of Civil Procedure, as well as hearing and trial transcripts, matters
in evidence, and any other information furnished, directly or indirectly, by or on
behalf of any Party to this litigation or any third party;
(c) "Agreement to be Bound By Protective Order" means an executed
document in the form attached as Exhibit A.
(d) "Party" or "Parties" means one or more parties to this lawsuit or
affiliated parties, as delineated here:
• Adelos, Inc.
• Halliburton Company
• Halliburton Energy Services, Inc.
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(e) "Receiving party" means the Party that requests or receives the
disclosure of Designated Material.
( f) "Producing party" means the Party that owns or otherwise controls
the Designated Material requested by the Receiving party.
(g) "Competitive Decision-making" means participation in activities,
association, and relationship with a Party that are such as to involve counsel's
advice and participation in any or all of the Party's decisions (pricing, product
design, etc.) made in light of similar or corresponding information about a
competitor.
2. "Confidential" Information or Items. A Party or non-party may
designate any material "CONFIDENTIAL" for protection under this Protective
Order where that material includes (a) information relating to the development of
products, including computer code and internal product specifications; (b) past,
current, or future business or marketing plans; (c) financial information or
forecasts, customer lists, pricing data, cost data, customer orders, or customer
quotations; (d) pending or abandoned patent, trademark and copyright
applications, foreign or domestic, unless published or otherwise publicly
available; (e) computer code, including source code, object code, executable code,
software files, or other related files; and (f) any other documents, information, or
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material that relate to proprietary information that the Producing party reasonably
believes is of such nature and character that the unauthorized disclosure of such
information could irreparably injure the Producing party. The label
"CONFIDENTIAL" must be placed on each page of such Designated Material.

3. "Highly Confidential-Attorneys' Eyes Only" Information or Items.
4. A Party or non-party may designate any material "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY" for protection under this
Protective Order where that material includes highly-sensitive "Confidential"
information the disclosure of which to competing business or technical staff could
result in competitive harm to the Producing party, including without limitation
affecting or relating to the producing Party's sales, future sales, pricing,
intellectual property rights, product roadmap, customers and customer acquisition.
The label "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY" must be
placed on each page of such Designated Material. Use of Information. All
Designated Material shall be used solely for the purpose of this litigation only,
including any appeal thereof, unless otherwise agreed to, in writing, by the
Producing party, or directed by a court of competent jurisdiction.
5. Access to Designated Material or Items. Access to any material
designated "CONFIDENTIAL" shall be limited to:
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(a) This Court, its officers (including the jury) and supporting
personnel, and any appellate court to which an appeal may be taken or in which
review is sought, and its officers and supporting personnel;
(b) Outside counsel of record and their associates, legal assistants,
investigators, and stenographic and clerical employees, so long as their duties and
responsibilities require access to Designated Material;
(c) Court reporters retained to transcribe testimony in this litigation;
(d) Outside experts and consultants retained by at least one Party or
their counsel for purposes of this litigation, including their support, administrative
and clerical staff, to the extent necessary to assist the Party in this litigation, where
such experts and consultants have signed and furnished to the Producing party the
"Agreement to Be Bound by Protective Order" (Exhibit A), provided the
obligations of Paragraph 9 have been met. Any expert or consultant designated
under this Paragraph and Paragraph 9 are responsible for ensuring that their
support, administrative and clerical staff comply with this Order;
(e) The Parties to this litigation;
(f) Jury consultants and other litigation vendors (which are located

within the United States) retained by at least one Party for purposes of this
litigation (including, but not limited to, mock jurors and outside photocopy,
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imaging, database, graphics, translation and design services), including their
support, administrative, and clerical staff, to the extent necessary to assist the
Party in this litigation, and who have signed the "Agreement to Be Bound by
Protective Order" (Exhibit A), provided the obligations of Paragraph 9 have been
met;
(g) Witnesses of either party, either at deposition or at trial, if the
witness is an author, addressee, or other person indicated as a recipient of a
document containing the information, or witnesses of the Producing party of
whom deposition or trial testimony is being taken, so long as ( 1) the witness is any
of the following: (a) a present director, officer, employee or contractor of the
Producing party; (b) an author, addressee, or other person indicated as a recipient
of a document containing the information; (c) direct or indirect manager of the
group from which the Designated Material originated; or (d) a Rule 30(b)(6)
designee of the Producing party; (2) at the request of any Party, the portion of the
transcript involving Designated Material shall be designated "CONFIDENTIAL"
or "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY''; and (3) the
witness shall not be allowed to retain a copy of the Designated Material;
(h) Up to two (2) in-house legal counsel for each Party with decisionmaking authority with regard to this litigation, and their litigation support
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personnel, that do not engage in Competitive Decision-making for the Party, and
that do not participate in patent procurement. Each such in-house legal counsel
must sign and furnish to the Producing party the "Agreement to Be Bound by
Protective Order" (Exhibit A), and the obligations of Paragraph 9 must be met
before any Designated Material may be disclosed. Such in-house legal counsel
and/or litigation support personnel may not participate in the development of
products or intellectual property for the Party; and
(i) Any person for whom prior authorization is obtained from the
Producing party or the Court.
Access to any material designated "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY'' shall be limited to individuals specified in
Paragraphs 5(a), 5(b), 5(c), 5(d), 5(f), 5(g), 5(h), and 5(i).
6. Third-Party Material. Third parties producing material in the course
of this litigation may also designate such material as "CONFIDENTIAL" or
"HIGHLY CONFIDENTIAL -ATTORNEYS' EYES ONLY" subject to the same
protections and constraints as the Parties to the litigation. A copy of this
Protective Order shall be served along with any subpoena served in connection
with this litigation. All material produced by such third parties shall be treated as
"Highly Confidential -Attorneys' Eyes Only" for a period often (10) days from
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the date of its production to any Party in this litigation, regardless of the
designation of such material by the third party, so that the Parties have sufficient
time to review the material to determine whether to assert that the material
contains Confidential information of the Party.
7. Effect of Designation. The designation of information as
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES
ONLY" shall constitute a representation that an attorney believes that there is a
valid basis for such designation. The designation or failure to designate
information as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY'' may not, however, be used against the Producing
party as an admission or concession that the designated information is or is not, in
fact, confidential, proprietary, a trade secret, or otherwise sensitive.
8. Handling of Designated Material. Any person in possession of
Designated Material shall exercise reasonable and appropriate care with regard to
the storage, custody, or use of such material to ensure that its confidential nature is
maintained. Any printed copy of Designated Material must be stored in a locked
location when not in use (i.e., in a locked office, locked filing cabinet, or similar
secured location). Any electronic copy of Designated Material must be secured
with a password (i.e., stored on a computer or server with restricted access, or
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stored on password protected storage media). No person receiving Designated
Material shall, directly or indirectly, transfer, disclose, or communicate in any way
the material or the contents of the material to any person other than those specified
in Paragraph 5, and only as specified in this Protective Order.
9. "Agreement to Be Bound by Protective Order." Each person
appropriately designated in accordance with Paragraphs 5(d), 5(±), or 5(h) to
receive Designated Material, shall execute an "Agreement to Be Bound by
Protective Order" (Exhibit A). Counsel of record for any Party receiving
Designated Material shall provide a copy of the executed "Agreement to Be
Bound by Protective Order" to the counsel of record for all Parties at least ten (10)
days before it first discloses such information to any such person. In addition to
an executed "Agreement to Be Bound by Protective Order," Counsel of record for
any Party intending to disclose Designated Material in accordance with Paragraphs
5(d), 5(±), or 5(h) shall also provide a reasonable description of the person to
whom disclosure will be made. With regard to persons designated in accordance
with Paragraphs 5(d) and 5(±), the person's most recent curriculum vitae is
sufficient to provide a reasonable description. For individuals designated in
accordance with Paragraph 5(h), the individual's name, job title, and a brief
description of that individual's job responsibilities is sufficient to provide a
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reasonable description. For individuals designated in accordance with Paragraph
5(d), a listing of all matters in which the expert or consultant has provided
testimony in the past five years must also be submitted with the executed
"Agreement to Be Bound by Protective Order."
(a) During the ten-day period after disclosure of an executed
"Agreement to Be Bound by Protective Order" and a reasonable description of the
person to whom disclosure will be made, the Producing party may raise
appropriate objections to the disclosure of Designated Material to the identified
individual, and the Receiving party shall comply with any such objections. Any
objection must be made for good cause and in writing, stating with particularity
the reasons for the objection. Failure to object within ten (10) days constitutes
approval. The Receiving party may not provide Designated Material to any
persons disclosed in accordance with this Paragraph until the Producing party's
objections are resolved.
(b) The Parties will meet and confer in good faith to resolve any
objections to disclosure raised by the Producing party under Paragraph 9(a). If,
after meeting and conferring, the Producing party and the Receiving party cannot
resolve the dispute, the Producing party shall have ten (10) days to either set up a
conference with the presiding judge to resolve the dispute or to file a motion with
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the Court. The Producing party shall have the burden of establishing that any
proposed disclosure is not appropriate. If the Producing party fails to either set up
a telephone conference with the presiding judge or to file a motion with the Court
within ten (10) days, the objection is deemed resolved and the Receiving party
may disclose Designated Material to the identified individual. Notwithstanding the
foregoing, the Receiving party may not disclose Designated Material to any
individual pursuant to Paragraphs 5(d), 5(f), or 5(h) until and unless the Parties
formally agree in writing to the contrary, the Producing party fails to object during
the initial ten-day period as described above, the Producing party fails to bring a
dispute to the Court's attention as described above, or a contrary determination is
made by the Court.
10. Use of Designated Material at Deposition. All depositions or portions
of depositions taken in this litigation that contain Designated Material may be
designated and thereby obtain the appropriate protections accorded other
Designated Material or items. Confidentiality designations for depositions shall
be made either on the record or by written notice to all other Parties within thirty
(30) days of receipt of the transcript. Unless otherwise agreed in writing,
depositions shall be treated as "HIGHLY CONFIDENTIAL - ATTORNEYS'
EYES ONLY" information during the thirty (30) day period following receipt of
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the transcript. The deposition of any witness (or any portion of such deposition)
that involves Designated Material shall be taken only in the presence of persons
who are qualified to have access to such information.
11. Inadvertent Failure to Properly Designate Documents; Inadvertent
Production of Privileged or Work Product Documents.
(a) Any Party that inadvertently fails to identify material as
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -ATTORNEYS' EYES
ONLY'' shall have at least ten (10) days from the discovery of its oversight to
correct its failure. Such failure shall be corrected by providing written notice of
the error and substituted copies of the inadvertently produced documents. Any
Party receiving such inadvertently unmarked material shall make reasonable
efforts to retrieve and destroy material distributed to persons not entitled to receive
material with the corrected designation. Such inadvertently unmarked documents
or information, including all copies thereof, shall be returned to the Producing
party or deleted and/or destroyed upon request.
(b) The inadvertent disclosure of documents or information otherwise
subject to the attorney/client privilege, work product immunity or any other
appropriate privilege shall not, in and of itself, constitute a waiver of, nor a
prejudice to, any claim that such or related material is privileged, or protected by
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the work product immunity or any other applicable privilege, provided that the
Producing party notifies the Receiving party in writing within fourteen (14) days
after discovery of such improper classification. If the Receiving party does not
dispute the Producing party's claim of privilege, such documents or information,
including all copies thereof, shall be returned to the Producing party or deleted
and/or destroyed upon request. No use shall be made of such documents or
information during deposition or at trial, nor shall such documents or information
be shown to anyone who has not already been given access to them prior to the
request that they be returned and/or destroyed other than those reasonably
responsible for their return and/or destruction. If the Receiving party challenges
the Producing party's claim of privilege on any grounds other than the mere
inadvertent disclosure, the Receiving party shall immediately segregate such
documents and retrieve any copies of such documents that may have been
previously provided to any other person or entity. The parties shall submit the
matter to the Court for resolution of the disputed privilege claim using the joint
letter brief procedure set forth in Paragraph 13 of this Stipulated Protective Order,
and any disputed documents should be submitted to the Court for in camera
review, and while any dispute under this paragraph is pending resolution, the
Receiving party may not otherwise make any use of any disputed document or
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information.
12. Filing Designated Material with the Court. If a Party files a
document containing, or referencing in detail, Designated Material with the Court,
all such documents shall be filed electronically under seal as provided for in the
Local Rules of the Court and shall be marked with the following notation:
FILED UNDER SEAL CONTAINS
CONFIDENTIAL INFORMATION
SUBJECT TO PROTECTIVE ORDER
FILED UNDER SEAL CONTAINS
HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY INFORMATION
SUBJECT TO PROTECTIVE ORDER
The filing Party shall serve the sealed document, independently of the CM/ECF
system, upon all Parties of record by electronic mail.
13. Challenges to Designation. At any time after the delivery of any
Designated Material, counsel for the Receiving party may challenge the
designation of all or any portion thereof by providing written notice to counsel for
the Producing party. The Parties will meet and confer in good faith to resolve any
challenges to Designated Material. If, after meeting and conferring, the Producing
party and the Receiving party cannot resolve the dispute, the Parties shall jointly
submit a letter brief to the Court seeking resolution of the dispute. The joint letter
brief shall be submitted within ten (10) days of the Parties' meet and co.nfer. The
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letter brief may include an introductory statement, the content of which shall be
agreed to by both the Receiving party and the Producing party. Each Party shall
limit its portion of the letter brief to no more than two (2) pages of single spaced,
12-point, Times New Roman text (exclusive of any joint introductory statement).
If the Producing party fails to supply the Receiving party with its portion of the

joint letter brief within ten (10) days of the Parties' meet and confer, the Receiving
party may file the letter brief with the Court without the Producing party's
submission. Notwithstanding the foregoing, all Designated Material is entitled to
the protections provided in this Protective Order until and unless the Parties

14. Use of Independently Obtained, Unrestricted, Public, or Produced
Information. This Protective Order shall not impose any restrictions on (a) the

use or disclosure by a Party of information or material properly obtained by the
Party independent of discovery in this litigation (even if such material is also
obtained through discovery in this litigation) or (b) a Party from disclosing its own
confidential information as it deems appropriate. This Protective Order also shall
not apply to information that (a) was properly known to the Receiving party before
it was disclosed in this litigation, (b) is or became public knowledge through no
breach of the provisions of this Protective Order, (c) is independently developed
by the Receiving party without access to the Designated Material, or (d) is
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disclosed to the Receiving party by a third party without restriction as to the
disclosure, so long as the third party has the right to disclose the information to the
Receiving party and is not otherwise required to maintain such information as
confidential.
15. Return or Destruction of Designated Material Upon Termination of
Litigation. Upon the termination of this litigation, including any appeals, all

Designated Material, including all copies or summaries of such material, shall be
returned to the Producing party or destroyed within 60 days of receipt of a written
request for such return or destruction of such material. Each Party's outside
counsel, however, may retain archival copies of all attorney work product,
correspondence, expert reports, deposition and trial transcripts and exhibits,
papers filed with the Court (including exhibits), and discovery responses (but not
document production) exchanged by the Parties. Any Designated Material
included in the archival copy shall remain subject to the provisions of this
Protective Order. All Parties shall certify compliance with this Paragraph in
writing within 60 days of receipt of the written request for the return or destruction
of the Designated Material.
16. Modification of the Protective Order. Any Party may apply to the
Court for a modification of this Protective Order, and nothing in this Protective
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Order shall be construed to prevent a Party from seeking such further provisions
enhancing or limiting confidentiality, as may be appropriate.
17. No Waiver of Claim or Defense. No action taken in accordance with
this Protective Order shall be construed as a waiver of any claim or defense in the
litigation or of any position as to the discoverability or the admissibility of
evidence.
18. Injunctive Relief. If any person violates or threatens to violate the
terms of this Protective Order, the Parties agree that the aggrieved Party may
immediately apply to obtain injunctive relief against any such person. The Parties
and any other person subject to the terms of this Protective Order agree that this
Court shall retain jurisdiction over them for the purpose of enforcing this
Protective Order, notwithstanding any subsequent disposition of this litigation.
19. Subpoena or Court Order. If a Receiving party is served with a
subpoena or a court order that would compel disclosure of any information,
documents or things designated by a Producing party in this action as
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES
ONLY," then no more than ten (10) days after receiving the subpoena or order, the
Receiving party must: (1) notify the Producing party, in writing (by fax or email)
of the subpoena or order, and include a copy of the subpoena or order with the
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notification; (2) inform the party that caused the subpoena or order to issue, in
writing, that some or all of the material covered by the subpoena or order are
subject to this Protective Order; and (3) deliver a copy of this Protective Order to
the party that caused the subpoena or order to issue. The purpose of these duties is
to alert the interested parties to the existence of this Protective Order and to afford
the Producing party an opportunity to seek protection for its Designated Material
in the court from which the subpoena or order issued. The Producing party shall
bear the burden and expense of seeking protection in that court. Nothing in this
provision should be construed as authorizing or encouraging a Receiving party to
disobey a lawful directive from another court.
20. Survival of Protective Order. The obligations imposed by this
Protective Order shall survive the termination of this litigation.
Dated this

~day of April, 2017.

Dana L. Christensen, Chief Judge
United States District Court

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EXHIBIT A
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
declares that:

~-----------------~

I am currently employed by_ _ _ _ _ _ _ _ _ _ _ _ _ _ _located
at _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~andmy

current job title is

~-----------------------

I have read and believe I understand the terms of the Protective Order filed
in Civil Action File No. 9: 16-cv-00119-DLC, pending in the United States District
Court for the District of Montana. I agree to comply with and be bound by the
provisions of the Protective Order. I understand that any violation of the
Protective Order may subject me to sanctions by the Court, civil liability, criminal
liability, or any combination of the above. I submit myself to the jurisdiction of
the United States District Court for the District of Montana for the purpose of
enforcing or otherwise providing relief relating to the Protective Order.
I agree to abide by the terms set forth as follows: I am an outside expert,
consultant, or vendor designated in accordance with Paragraphs 5(d) or 5(f), or inhouse counsel designated in accordance with Paragraph 5(h), to receive
Designated Material. I shall not divulge any Designated Material, or copies of
Designated Material, obtained in accordance with the Protective Order, or the
contents of such materials, to any person other than those specifically authorized
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by the Protective Order. I shall not copy or use such materials except for the
purposes of this litigation and in accordance with the terms of the Protective
Order.
As soon as is practical, but no later than thirty (30) days after final
termination of this litigation, I shall return any Designated Material in my
possession to the attorney from whom I received such materials. I shall also return
to that attorney, at that time, all copies, excerpts, summaries, notes, digests,
abstracts, and indices relating to such materials.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on - - - - - - - Date

Signature

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