Copperhead Pipeline and Construction, Inc. v. Northern Natural Gas Company

Filing 32

STIPULATED PROTECTIVE ORDER granting 31 Motion for Protective Order. Ordered by Senior Judge Lyle E. Strom. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COPPERHEAD PIPELINE AND
CONSTRUCTION, INC., an Oklahoma
corporation,
Plaintiff,

Case No. 8:14-cv-00158

STIPULATED PROTECTIVE ORDER

v.
NORTHERN NATURAL GAS COMPANY,
a Delaware corporation,
Defendant.

WHEREAS the parties to this proceeding recognize that during the course of this
proceeding, issues may arise which may require the disclosure of confidential
information or sensitive commercial, financial, proprietary or business information, and
the parties desire to pursue discovery with a minimum of delay and expense;
WHEREAS such information should not be released into the public domain, but
rather should be treated as confidential pursuant to the privacy and business interests
of the parties;
WHEREAS the parties have, through the undersigned counsel, agreed to be
bound by and stipulated to entry of this Stipulated Protective Order to prevent
unnecessary disclosure or dissemination of such confidential information;

WHEREAS the Court has found that the parties should respect and recognize
the privacy interests of each other by the avoidance of any release of the confidential
information, documents, or things that are produced in this action;
IT IS HEREBY STIPULATED, AGREED AND ORDERED that the terms and
conditions of this Stipulated Protective Order shall govern the production and handling
of documents and things, answers to interrogatories, depositions, pleadings, exhibits
and other information exchanged by the parties, in this action:
1.

This Stipulated Protective Order (“Order”) shall apply to and govern all

depositions, documents, electronically stored information, items or things disclosed or
produced in response to a party’s informal request, requests for production of
documents, answers to interrogatories, responses to requests for admissions and all
other discovery taken under the Federal Rules of Civil Procedure, and other information
which the disclosing party designates as “CONFIDENTIAL,” furnished, directly or
indirectly, by or on behalf of any party or any non-party in connection with the abovecaptioned litigation.
2.

When used in this Order, the phrase “disclosing party” shall refer to the

parties to the above-captioned litigation or to non-parties who give testimony or produce
documents or other material.
3.

When used in this Order, the word “document” encompasses, but is not

limited to, any type of document or testimony, including all documents or things
described in Federal Rule of Evidence 1001(a)—(e) and/or Rule 34(a)(1)(A) or (B).
4.

The disclosing party who designates any material “CONFIDENTIAL” bears

the burden of establishing the “CONFIDENTIAL” status of such material in any situation

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in which the designation is at issue, and nothing in this Order shall be construed to alter
such burden. The parties enter into and stipulate to this Order without prejudice to the
rights of any party to assert or contest the “CONFIDENTIAL” status of any material as
set forth below.
5.

A disclosing party may designate as “CONFIDENTIAL” any trade secret or

other confidential research, development, or commercial information, as such terms are
used in Rule 26(c)(1)(G) and any applicable case law interpreting Rule 26(c)(1)(G). In
addition, a disclosing party may designate as “CONFIDENTIAL” any documents,
testimony or information that contains confidential, proprietary, commercial, technical,
scientific, business, financial and/or any other information they deem confidential, which
is not generally known and which the designating party would not normally reveal to
third parties or would cause third parties to maintain in confidence, or information, the
present disclosure of which would, in the good faith judgment of the designating party,
be detrimental to the designating party in the conduct of its business.
6.

In designating material as “CONFIDENTIAL,” a disclosing party shall

make such a designation only as to material which it in good faith believes is
confidential.
7.

Any party or non-party receiving any non-public material from a disclosing

party, regardless of whether such material is designated as “CONFIDENTIAL,” shall use
that material solely for the purpose of conducting this litigation, pending in the United
States District Court for the District of Nebraska, captioned Copperhead Pipeline and
Construction, Inc. v. Northern Natural Gas Company, Case No. 14-cv-00158 and not
for any other purpose whatsoever.

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8.

No “CONFIDENTIAL” material nor any portion or summary thereof, shall

be given, shown, disclosed or communicated by the non-producing parties in any way to
any person or entity other than:
a.

the attorneys for the parties;

b.

the members or employees of the law firms of the attorneys who

are involved with the prosecution or defense of the litigation;
c.

Court

personnel

and

stenographic

reporters,

engaging

in

proceedings necessarily incident to the preparation for trial (e.g., depositions)
and/or trial of this action;
d.

the parties to this litigation;

e.

any arbitrator, mediator, or other alternative dispute resolution

facilitator in front of whom the parties agree to appear or are ordered to appear;
f.

persons actually deposed or called to testify at any hearing or trial;

g.

attorneys

retained

to

represent

third-parties

at

hearings,

depositions or trial;
h.

any experts or consultants who are employed or retained by

counsel or the parties for assistance in this litigation;
i.

third-party vendors retained by the parties or their counsel who are

involved in one or more aspects of copying, reproducing, coding, or storing
discovery materials; and
j.

Any other person with the prior written consent of the party

producing the document, information, pleading or deposition testimony.

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9.

Before disclosure of any “CONFIDENTIAL” material is made to any person

described in paragraphs 8(e), 8(g), 8(h), 8(i) or 8(j) above, the person to whom
disclosure is made shall be given a copy of this Order and shall agree in writing (in the
form attached hereto as Exhibit “A”) to be bound by the terms of this Order. Counsel for
each disclosing party shall maintain a file of such written agreements until this action is
completed.
10.

Before disclosure of any “CONFIDENTIAL” material is made to any person

described in paragraph 8(f) above, the person to whom disclosure is made shall be
given a copy of this Order and shall be asked to agree in writing (in the form attached
hereto as Exhibit “A”) to be bound by the terms of this Order. If the person to whom
disclosure is made refuses to agree in writing (in the form attached hereto as Exhibit
“A”), then that person shall be provided a copy of the form attached hereto as Exhibit
“B” and shall be asked to affirmatively state on the record that he or she has received
the form.
11.

This Court shall retain jurisdiction over this Order, including any

proceedings relating to performance under or compliance with the Order. Individuals
who receive “CONFIDENTIAL” material shall be subject to this Order and to the
jurisdiction of this Court concerning this Order.
12.

The recipient of any “CONFIDENTIAL” material that is provided under this

Order shall maintain such material in a secure and safe area and shall exercise the
same standard of due and proper care with respect to the storage, custody, use and/or
dissemination of such material as is exercised by the recipient with respect to its own
proprietary material.

“CONFIDENTIAL” material shall not be copied, reproduced,

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summarized, extracted or abstracted, except to the extent that such copying,
reproduction, summarization, extraction or abstraction is reasonably necessary for the
conduct of this lawsuit. All such copies, reproductions, summarizations, extractions,
and abstractions shall be subject to the terms of the Order and labeled in the same
manner as the designated material on which they are based.
13.

Disclosing parties shall designate “CONFIDENTIAL” material as follows:
a.

In the case of documents, interrogatory answers, responses to

requests for admissions, and the information contained therein, designation shall
be made, as appropriate under the terms of this Stipulation and Order, by placing
the following legend on each page of any such document: “CONFIDENTIAL.” In
the event that a disclosing party inadvertently fails to stamp or otherwise
designate a document or other material as “CONFIDENTIAL” at the time of its
production, that disclosing party may stamp or otherwise designate the document
or other material as “CONFIDENTIAL” at any reasonable time thereafter. The
delay in designating a document as “CONFIDENTIAL” shall not, in and of itself,
be deemed to have effected a waiver of any of the protections of this Order, but
such document or other material shall be treated as “CONFIDENTIAL” only
beginning at the time such designation occurs, provided, however, that the
foregoing provision shall not apply to any documents or material that had already
been made publicly available prior to the designation.
b.

“CONFIDENTIAL”

material

may

be

used

in

depositions.

Designation of the portion of the deposition transcript (including exhibits) that
contains “CONFIDENTIAL” material shall be made by a statement to such effect

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on the record in the course of the deposition or, upon review of such transcript,
by the disclosing party or counsel for the disclosing party to whose
“CONFIDENTIAL” material the deponent has had access, which shall be so
designated within thirty (30) days after the deposition. During those thirty days,
the

entire

deposition

transcript,

including

exhibits,

shall

be

deemed

“CONFIDENTIAL.”
c.

Any “CONFIDENTIAL” material produced in a non-paper media

(e.g., videotape, audiotape, computer disc, etc.) may be designated as such by
labeling the outside of such non-paper media as “CONFIDENTIAL” and
producing this material in a sealed envelope. In the event a receiving party
generates any electronic copy, “hard copy,” transcription, or printout from any
such designated non-paper media, such party must treat each copy,
transcription, or printout as “CONFIDENTIAL” pursuant to the terms of this Order.
14.

Nothing in this Order shall be taken as indicating that any information is in

fact “CONFIDENTIAL” or entitled to confidential treatment. No party shall be obligated
to challenge the propriety of a “CONFIDENTIAL” designation at the time made, and a
failure to do so shall not preclude a subsequent challenge thereto, nor shall a party that
has designated materials or information as “CONFIDENTIAL” contend that any delay by
another party in objecting to the designating party’s “CONFIDENTIAL” designation in
any way (a) lends support to the designating party’s “CONFIDENTIAL” designation or
(b) invalidates or diminishes in any way the objecting party’s challenge of the
“CONFIDENTIAL” designation for any such materials or information. In the event that
any party disagrees at any stage of these proceedings with such designation, counsel

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for such party shall notify counsel for the disclosing party in writing (the “Notice”). The
objecting party shall identify each particular document bearing a designation to which it
objects and shall specify the reason(s) for the objection, provided that the party
challenging the “CONFIDENTIAL” designation may identify multiple documents by
Bates number (whether in a range of consecutive numbers or otherwise) in its Notice
when the reason or reasons for challenging the “CONFIDENTIAL” designation apply in
the same manner to the documents identified in the Notice. Within seven (7) calendar
days of the receipt of the Notice, counsel for the parties (and any non-party involved)
shall promptly schedule a date and time to meet and confer to attempt to resolve such
dispute in good faith on an informal basis consistent with the requirement to confer in
good faith under Rule 26(c)(1) and Rule 37(a)(1). If the dispute cannot be resolved, the
party that designated the materials in question as “CONFIDENTIAL” may request
appropriate relief from the Court, and the objecting party may also request any relief
from the Court that it deems appropriate (which shall have first been raised no later than
during the parties’ meet and confer session(s)) in its opposition to the designating
party’s motion or other proposed method of seeking relief from the Court. The materials
in question shall retain their “CONFIDENTIAL” status until the Court rules on any such
motion so long as the party that designated the materials in question as
“CONFIDENTIAL” seeks relief from the Court within: (i) thirty (30) days of the date the
parties initially met and conferred, if the disagreement pertains to fewer than ten
documents; or (ii) forty five (45) days of the date the parties initially met and conferred, if
the disagreement pertains to ten or more documents. The parties (and any non-party
involved) may agree to extend the time for the disclosing party to apply to the Court for

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relief. If the designating party does not apply to the Court for a ruling on the designation
of discovery material as “CONFIDENTIAL” within the time period prescribed herein or
agreed to by the parties, the discovery material will no longer be deemed
“CONFIDENTIAL.” The designating party may request a telephonic hearing with respect
to the “CONFIDENTIAL” status of materials. Nothing in this Order shall alter the burden
on the disclosing party to establish the “CONFIDENTIAL” status of information it has so
designated.
15.

Documents containing “CONFIDENTIAL” material shall not be filed with

the Court unless the filing party reasonably believes it is necessary to do so for
purposes of trial, motions (including without limitation, motions for preliminary injunction
or

summary

judgment)

or

other

Court

matters.

Documents

containing

“CONFIDENTIAL” material shall be filed under seal and shall be accompanied by a
motion to seal the documents containing “CONFIDENTIAL” material.
16.

In the event the Court denies a motion to seal documents labeled

“CONFIDENTIAL,” the Clerk of the Court shall leave the documents under seal for a
period of three (3) business days after the date of the Court’s denial of the motion to
seal. If the filing party initially designated the documents “CONFIDENTIAL,” then within
that three (3) day period, the filing party may, at its option, file replacement documents
that do not contain “CONFIDENTIAL” material or any reference to “CONFIDENTIAL”
material, in which case the documents initially filed under seal shall be returned to the
filing party and not be considered by the Court.

If the filing party does not file

replacement documents within the time period prescribed by this Paragraph, the
material shall be filed unsealed in the Court file.

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17.

In the event that any “CONFIDENTIAL” material is used in any Court

proceeding in connection with this litigation, it shall not lose its “CONFIDENTIAL” status
through such use, and the parties shall take all steps reasonably required to protect its
confidentiality during such use. In particular, while a motion to seal is pending and
before the Court has ruled, no party shall make use in open court of any documents that
are subject to that motion to seal without the consent of the designating party or the
permission of the Court.
18.

If “CONFIDENTIAL” material is disclosed to any person other than in the

manner authorized by this Order, the person or party responsible for the disclosure
must seasonably bring all pertinent facts relating to such disclosure to the attention of all
attorneys of record in the above-captioned action and, without prejudice to any other
rights and remedies of the parties or non-parties, make every effort to prevent further
disclosure by it or by the person who was the recipient of such material.
19.

Nothing in this Order shall preclude any parties or non-parties to the

lawsuit or their attorneys (a) from showing a document or part of a document
designated as “CONFIDENTIAL” to an individual who either prepared the document or
is identified on the face of the document as an addressee or copy addressee, or
(b) from disclosing or using, in any manner or for any purpose, any material or
documents from the disclosing party’s own files which the disclosing party itself has
designated as “CONFIDENTIAL.”
20.

In the event any receiving party having possession, custody or control of

any “CONFIDENTIAL” material receives a subpoena, request for production of
documents, or other process or order to produce such material in another, unrelated

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legal proceeding, from a non-party to the above-captioned litigation, such receiving
party shall:
a.

give prompt written notice of the subpoena, request for production

of documents, or other process or order to counsel for the disclosing party that
designated the material as “CONFIDENTIAL”;
b.

furnish counsel for that disclosing party with a copy of said

subpoena, request for production of documents, or other process or order; and
c.

cooperate with respect to all reasonable and legitimate procedures

sought to be pursued by the disclosing party whose interests may be affected.
The disclosing party asserting the “CONFIDENTIAL” treatment shall have the burden of
defending against such subpoena, process or order. The party receiving the subpoena,
request for production of documents, or other process or order shall be entitled to
comply with it except to the extent the disclosing party asserting the “CONFIDENTIAL”
treatment is successful in obtaining an order modifying or quashing the subpoena,
request for production of documents, or other process or order, provided, however, that
the party receiving the subpoena, request for production of documents, or other process
shall await the disposition of any motion to quash or motion for a protective order timely
filed by the disclosing party before producing any “CONFIDENTIAL” information in
response to the subpoena, request for production of documents, or other process or
order unless a court orders compliance with the subpoena, request for production or
other process, or unless awaiting the disposition of any motion to quash or motion for
protective order may subject the party receiving the discovery request to sanctions or
being held in contempt of court.

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21.

The inadvertent production in the course of discovery in the above-

captioned litigation of any materials (whether designated as “CONFIDENTIAL” or not)
shall not be deemed to waive whatever attorney client privilege, work product protection
or other privilege or immunity that would otherwise attach to those documents or
material produced or to other documents or material, so long as the disclosing party
notifies the other party or parties of the claim of privilege or other protection or immunity.
Upon receipt of such notice, all other parties shall (regardless of whether they agree
with the disclosing party’s claim of privilege or protection) promptly:
a.

destroy or segregate all copies of the inadvertently produced

documents or material in such party’s possession, custody, or control, and notify
the disclosing party that it has done so; and
b.

notify the disclosing party that reasonable steps have been taken to

retrieve and/or destroy the inadvertently produced documents or material from
other persons to whom such documents or material have been provided, if any,
consistent with Rule 26(b)(5)(B). Compliance with this Paragraph does not, and
shall not be deemed to, constitute agreement that the claimed document or
material is in fact privileged or entitled to protection or immunity.
22.

Within sixty (60) days of the termination of litigation between the parties,

including final appellate action or the expiration of time to appeal or seek further review,
all “CONFIDENTIAL” material produced by a disclosing party, and all copies thereof,
shall be returned to the disclosing party or destroyed. If destroyed, counsel shall certify
the destruction and provide a copy of the certification to the disclosing party. Counsel

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for each disclosing party shall be entitled to retain all pleadings, motion papers, other
court filings, legal memoranda, correspondence and work product.
23.

Except as specifically provided herein, the terms, conditions, and

limitations of this Order shall survive the termination of the above-captioned litigation.
24.

This Order is without prejudice to the right of any party or non-party to

seek relief from the Court from any of the provisions contained herein.
25.

This Order shall not be construed as waiving any right to assert a claim of

privilege, relevance, overbreadth, burdensomeness or other grounds for not producing
material called for, and access to all material (whether designated as “CONFIDENTIAL”
or not) shall be only as provided by the discovery rules and other applicable law.
DATED this 26th day of September, 2014.
BY THE COURT:
/s/ Lyle E. Strom
__________________________
LYLE E STROM, Senior Judge
United States District Court

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Counsel for Defendant:

Counsel for Plaintiff:

By:
s/J. Daniel Weidner
Gregory C. Scaglione, #19368
J. Daniel Weidner, # 23738
Minja Herian, #24669
KOLEY JESSEN P.C., L.L.O.
1125 South 103rd Street, Suite 800
Omaha, Nebraska 68124-1079
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

By:
s/Patrick G. Colvin__
Tara A. Stingley
Coady H. Pruett
CLINE WILLIAMS WRIGHT
JOHNSON & OLDFATHER, L.L.P.
One Pacific Place
1125 South 103rd Street, Ste. 600
Omaha, Nebraska 68124
[e-mail]
[e-mail]

Attorneys for Defendant Northern Natural
Gas Company.

Thomas L. Vogt
C. Michael Copeland
Patrick G. Colvin
JONES, GOTCHER & BOGAN, P.C.
3800 First Place Tower
15 East 5th Street
Tulsa, Oklahoma 74103
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff Copperhead
Pipeline and Construction, Inc.

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EXHIBIT “A”

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COPPERHEAD PIPELINE AND
CONSTRUCTION, INC., an Oklahoma
corporation,

Case No. 8:14-cv-00158-LSC-FG3

Plaintiff,

ACKNOWLEDGEMENT

v.
NORTHERN NATURAL GAS COMPANY,
a Delaware corporation,
Defendant.

I, _________________________, do hereby acknowledge that I have received
and read a copy of the attached Stipulated Protective Order, and I agree to be bound by
the terms of the Order, and to be subject to the jurisdiction of this Court for enforcement
of all terms of the Order and for judicial action for any violation of the Order.

DATED this ______ day of __________ 2014.
_________________________________________
Relationship to this lawsuit: ________________
STATE OF ____________ )
) ss.
COUNTY OF __________ )
Subscribed and sworn to before me this ______ day of __________ 2014.
_________________________________________
Notary Public

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EXHIBIT “B”

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
COPPERHEAD PIPELINE AND
CONSTRUCTION, INC., an Oklahoma
corporation,

Case No. 8:14-cv-00158-LSC-FG3

Plaintiff,

NOTICE TO WITNESSES

v.
NORTHERN NATURAL GAS COMPANY,
a Delaware corporation,
Defendant.

You are being shown one or more documents which have been designated
as “Confidential” pursuant to an Order of this Court. Except for providing testimony,
you may not disclose these documents or their contents to any person other than
the attorney who represents you.

Further, neither these documents nor their

contents may be used by you for any purpose except that you may use them for
your testimony in connection with this litigation. In any event, you are prohibited
from using them for any business, competitive, personal, private, public, or other
non-litigation purpose. The improper disclosure or use of these documents or their
contents may result in the imposition of sanctions upon you by the Court. If you
wish a complete copy of the Court Order, a copy will be provided to you upon
request.
4846-1287-6062.3

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