Kellogg et al v. Smith et al

Filing 53

PROTECTIVE ORDER by Magistrate Judge Charles S. Miller, Jr. (BG) (Main Document 53 replaced on 12/23/2016 to attach signed Order. Regenerated NEF.) Distributed. (rh)

UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
Gene Kellogg and Eda Kellogg,
Civil File No. 16-00016-DLH-CSM
Plaintiffs,
vs.
PROTECTIVE ORDER
Daniel J. Smith, an individual,
DDA, Inc., an Indiana corporation,
Brenda McGinley, an individual,
International Investigators Inc, an Indiana
corporation, C. Tim Wilcox, an individual, and
Recon Avionics, Corporation, an Indiana
corporation,
Defendants.
Upon consideration of the Stipulation by the parties for a Protective Order [Docket No.
52] pursuant to Federal Rule of Civil Procedure 26(c):
IT IS HEREBY ORDERED:
1.

As used in the Protective Order, these terms have the following meanings:

"Attorneys" means counsel of record;
"Confidential" documents are documents designated pursuant to paragraph 2;
"Documents" are all materials within the scope of Fed. R. Civ. P. 34;
"Outside Vendors" means messenger, copy, coding, and other clerical-services vendors
not employed by a party or its Attorneys; and
"Written Assurance" means an executed document in the form attached as Exhibit A.
2.

A Party may designate a document "Confidential," to protect information

within the scope of Fed. R. Civ. P. 26(c).

3.

All Confidential documents, along with the information contained in the

documents, shall be used solely for the purpose of this action, and no person receiving such
documents shall, directly or indirectly, use, transfer, disclose, or communicate in any way the
documents of their contents to any person other than those specified in paragraph 4. Any other use
is prohibited.
4.

Access to any Confidential document shall be limited to:
a.
b.
c.
d.
e.
f.

5.

the Court and its staff;
Attorneys, their law firms, and their Outside Vendors;
persons shown on the face of the document to have authored or received
it;
court reporters retained to transcribe testimony;
the parties;
outside independent persons (i.e., persons not currently or formerly
employed by, consulting with, or otherwise associated with any party)
who are retained by a party or its Attorneys to provide assistance as mock
jurors or focus group members or the like, or to furnish technical or
expert services, and/or to give testimony in this action.

Third parties producing documents in the course of this action may also

designate documents as "Confidential," subject to the same protections and constraints as
the parties to the action. A copy of the Protective Order shall be served along with any
subpoena served in connection with this action. All documents produced by such third
pa11ies shall be treated as "Confidential" for a period of 14 days from the date of their
production, or, in the case of documents produced prior to this Order, for 14 days from
the date of this Order, and during either period any party may designate such documents
as "Confidential " pursuant to the terms of the Protective Order.
6.

Each person appropriately designated pursuant to paragraph 4(f) to receive

Confidential l information shall execute a "Written Assurance" in the form attached as Exhibit
A. Opposing counsel shall be notified at least 14 days prior to disclosure to any such person
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who is known to be an employee or agent of, or consultant to, any competitor of the party
whose designated documents are sought to be disclosed. Such notice shall provide a
reasonable description of the outside independent person to whom disclosure is sought
sufficient to permit objection to be made. If a party objects in writing to such disclosure
within 14 days after receipt of notice, no disclosure shall be made until the party seeking
disclosure obtains the prior approval of the Court or the objecting party.
7.

All depositions or portions of depositions taken in this action that contain

confidential information may be designated "Confidential" and thereby obtain the protections
accorded other "Confidential" documents. Confidentiality designations for depositions shall
be made either on the record or by written notice to the other party within 14 days of receipt
of the transcript. Unless otherwise agreed, depositions shall be treated as "Confidential"
during the 14-day period following receipt of the transcript. The deposition of any witness
(or any portion of such deposition) that encompasses Confidential information shall be taken
only in the presence of persons who are qualified to have access to such information.
8.

Any party who inadvertently fails to identify documents as "Confidential"

shall, promptly upon discovery of its oversight, provide written notice of the error and
substitute appropriately designated documents.

Any party receiving such improperly

designated documents shall retrieve such documents from persons not entitled to receive
those documents and, upon receipt of the substitute documents, shall return or destroy the
improperly designated documents.
9.

If a party files documents with the Court containing information designated as

protected pursuant to the terms of this Order, the filings must be in compliance with the Electronic
Case Filing Procedures for the District of North Dakota. The parties are advised that designation
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by a party of a document as protected pursuant to the terms of this Order cannot be used as
the sole basis for filing the document under seal in connection with either trial or nondispositive, dispositive, or trial related motion. Only those documents and portions of a party's
submission, or any part thereof, which otherwise meets the elements for protection from
public filing (including, but not limited to, a statute, rule or regulation prohibiting public
disclosure, or protection under the attorney-client privilege or work product doctrine, or the
standards for protection set forth in Fed. R. Civ. P. 26(c)), as first determined by the Court
upon motion and a showing of good cause, shall be filed under seal. If a party intends to file
with the Court a document designated by another party as protected pursuant to the terms of
this Order, then that filing patty shall provide reasonable advance notice to the designating
party of such intent so that the designating party may determine whether or not they should
bring a motion before the Court which seeks to rerun ire the protected documents to be filed
under seal. Any party which seeks to assert that a document should be filed with the Court
under seal shall have the burden of demonstrating that the document should be filed under
seal.
10.

Any party may request a change in the designation of any information

designated "Confidential. " Any such document shall be treated as designated until the
change is completed. If the requested change in designation is not agreed to, the party
seeking the change may move the Court for appropriate relief, providing notice to any
third party whose designation of produced documents as "Confidential" in the action may
be affected. The party asserting that the material is Confidential shall have the burden of
proving that the information in question is within the scope of protection afforded by Fed. R.
Civ. P. 26(c).
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11.

Within 60 days of the termination of this action, including any appeals, each

party shall either destroy or return to the opposing party all documents designated by the
opposing party as "Confidential," and all copies of such documents, and shall destroy all
extracts and/or data taken from such documents. Each party shall provide a certification as
to such return or destruction within the 60-day period. However, Attorneys shall be entitled
to retain a set of all documents filed with the Court and all correspondence generated in
connection with the action.
12.

Any party may apply to the Court for a modification of the Protective Order,

and nothing in this Protective Order shall be construed to prevent a party from seeking such
further provisions enhancing or limiting confidentiality as may be appropriate.
13.

No action taken in accordance with the Protective Order shall be construed as

a waiver of any claim or defense in the action or of any position as to discoverability or
admissibility of evidence.
14.

The obligations imposed by the Protective Order shall survive the termination

of this action.

Dated:

December 23, 2016
_______________

Charles S. Miller, Jr.
U.S. MAGISTRATE JUDGE

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EXHIBIT A
WRITTEN ASSURANCE
declares that:
I reside at

in the City of
, County of

, State of

.

My telephone number is

.

I am currently employed by

, located at
, and my current job title is
.

I have read and I understand the terms of the Protective Order dated

, filed in Case No. 16-00016-DLH-CSM, pending in the United States District Court for the
District of North Dakota. 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.
I shall not divulge any documents, or copies of documents, designated
“Confidential” obtained pursuant to such Protective Order, or the contents of such
documents, to any person other than those specifically authorized by the Protective Order.
I shall not copy or use such documents except for the purposes of this action and pursuant
to the terms of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this action, I
shall return to the attorney from whom I have received them, any documents in my possession
designated “Confidential”, and all copies, excerpts, summaries, notes, digests, abstracts, and
indices relating to such documents.

I submit myself to the jurisdiction of the United States District Court for the District
of North Dakota for the purpose of enforcing or otherwise providing relief relating to the
Protective Order.

Executed on ___________________
(Date)

_________________________________
(Signature)

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