Continental Resources, Inc. v. Rink Construction, Inc.
Filing
91
STIPULATED PROTECTIVE ORDER by Magistrate Judge Clare R. Hochhalter. (BG)
Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
CONTINENTAL RESOURCES, INC., )
)
Plaintiff,
)
)
v.
)
)
RINK CONSTRUCTION, INC.,
)
)
Defendant.
)
)
STIPULATED PROTECTIVE
AND NON-WAIVER ORDER
Civil No. 1:16-cv-91 DLH-CRH
CLARE R. HOCHHALTER, United States Magistrate Judge.
Upon stipulation of the parties for an order providing that confidential information
be disclosed only in designated ways, and the Court having found that good cause exists
for issuance of an appropriately tailored confidentiality order governing the pre-trial phase
of this action, it is hereby ORDERED that any person subject to this Order–including
without limitation the parties to this action, their attorneys, representatives, agents, experts
and consultants, acting as such, all third parties providing discovery in this action, and all
other interested persons with actual or constructive notice of this Order shall adhere to the
following terms:
Discovery Materials May Be Designated as Confidential
1.
Any person subject to this Order who receives from any other person any
“Discovery Material” (i.e., information of any kind provided in the course of discovery
in this action) that is designated as “Confidential” pursuant to the terms of this Order shall
Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 2 of 10
not disclose such Confidential Discovery Material to anyone else except as expressly
permitted hereunder.
2.
The person producing Discovery Material may designate as “Confidential”
any portion thereof that contains non-public business, commercial, financial, or personal
information (for example, and without limitation, the invoices generated by Continental’s
attorneys that Continental produces in this action), the public disclosure of which is either
restricted by law or would likely, in the good faith opinion of the producing person,
seriously harm the producing person’s business, commercial, financial, or personal
interests or cause the producing person to violate his, her, or its privacy or confidentiality
obligations to others. Where the confidential portion is reasonably separable from the nonconfidential portion, via redaction or otherwise, only the confidential portion shall be so
designated.
3.
With respect to the confidential portion of any Discovery Material other
than deposition transcripts and exhibits, the producing person or that person’s counsel
may designate such portion as “Confidential” by stamping or otherwise clearly marking
as “Confidential” the document or protected portion in a manner that will not interfere
with legibility or audibility. Deposition testimony may be designated as “Confidential”
either on the record during the deposition or in writing within five (5) business days of
receipt of the transcript. If so designated, the final transcript of the designated testimony
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Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 3 of 10
shall be bound in a separate volume and marked “Confidential Information Governed by
Protective Order” by the reporter.
4.
If at any time prior to the trial of this action, a producing person realizes that
some portion of Discovery Material that that person previously produced without
limitation should be designated as “Confidential,” the producing person may so designate
that portion by promptly notifying all parties in writing. Such designated portion of the
Discovery Material will thereafter be treated as Confidential under the terms of this Order.
In addition, the producing person shall provide each other party with replacement versions
of such Discovery Material that bears the “Confidential” designation within two (2)
business days of providing such notice.
Who May Receive Confidential Materials
5.
No person subject to this Order, other than the producing person, shall
disclose any Confidential Discovery Material to any other person whomsoever, except to:
(a)
the parties to this action;
(b)
counsel retained specifically for this action, including any paralegal,
clerical or other assistant employed by such counsel and assigned
specifically to work on this action;
(c)
as to any document, its author, its addressee, and any other person
shown on the face of the document as having received a copy;
(d)
any witness who counsel for a party in good faith believes may be
called to testify at trial or deposition in this action, provided such
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Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 4 of 10
person has first executed a Non-Disclosure Agreement in the form
annexed hereto;
(e)
any person retained by a party to serve as an expert witness or
consultant or otherwise provide specialized advice to counsel in
connection with this action, provided such person has first executed a
Non-Disclosure Agreement in the form annexed hereto;
(f)
stenographers and video technicians engaged to transcribe or record
depositions conducted in this action;
(g)
independent photocopying, graphic production services, or other
litigation support services employed by the parties or their counsel to
assist in this action, including computer service personnel performing
duties in relation to a computerized litigation system;
(h)
the Court and its staff; and
(i)
any other person whom the producing person, or other person
designating the Discovery Material “Confidential,” agrees in writing
may have access to such Confidential Discovery Material.
6.
Prior to the disclosure of any Confidential Discovery Material to any person
referred to in subparagraphs 5(d) or 5(e) above, such person shall be provided by counsel
with a copy of this Protective Order and shall sign a Non-Disclosure Agreement, in the
form annexed hereto, stating that that person has read this Order and agrees to be bound
by its terms. Counsel shall retain each signed Non-Disclosure Agreement, hold it in
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Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 5 of 10
escrow, and produce it to opposing counsel either prior to such person being permitted to
testify (at deposition or trial) or at the conclusion of the case, whichever comes first.
Filing Confidential Materials in this Action
7.
Any person who either objects to any designation of confidentiality, or who,
by contrast, requests still further limits on disclosure (such as “attorneys’ eyes only,”
reserved for extraordinary circumstances), may at any time prior to the trial of this action
serve upon the designating person and all other parties a written notice stating with
particularity the grounds of the objection or request. If agreement cannot be reached
promptly, counsel for all affected persons shall request a joint telephone call with the
Court to obtain a ruling or otherwise follow the Court’s rules and procedure for raising
discovery disputes with the Court.
8.
Notwithstanding the designation of material as “Confidential” in discovery,
there is no presumption that such Confidential Discovery Material will be filed with the
Court under seal. The parties shall follow the appropriate rules and statutes with respect
to pretrial requests for filing under seal.
9.
All persons are hereby placed on notice that the Court is unlikely to seal or
otherwise afford confidential treatment to any Discovery Material introduced in evidence
at trial, even if such material was previously designated as Confidential or sealed during
pretrial proceedings.
10.
Each person who has access to Confidential Discovery Material shall take
all due precautions to prevent the unauthorized or inadvertent disclosure of such material.
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Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 6 of 10
Inadvertent Disclosure of Privileged Materials
11.
If, in connection with this litigation, a producing person inadvertently
discloses information subject to a claim of attorney-client privilege or attorney work
product protection (“Inadvertently Disclosed Information”), such disclosure, in itself,
shall not constitute or be deemed a waiver or forfeiture of any claim of privilege or work
product protection.
12.
If a disclosing person makes a claim of inadvertent disclosure, all receiving
persons shall, within five (5) business days, return or destroy all copies of the
Inadvertently Disclosed Information, and confirm—in writing by the receiving party’s
counsel—that all such information has been returned or destroyed.
13.
Within five (5) business days of the notification that such Inadvertently
Disclosed Information has been returned or destroyed, the disclosing person shall produce
a privilege log with respect to the Inadvertently Disclosed Information.
14.
If a receiving person thereafter moves the Court for an order compelling
production of the Inadvertently Disclosed Information, that motion shall be filed under
seal in whole or in part (if permitted by the appropriate rules and statutes with respect to
pretrial requests for filing under seal), and shall not assert as a ground for entering such
an order the mere fact of the inadvertent production. The disclosing person retains the
burden of establishing the privileged or protected nature of any Inadvertently Disclosed
Information. Nothing in this Order shall limit the right of any party to request an in camera
review of the Inadvertently Disclosed Information.
6
Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 7 of 10
Serving This Protective Order on a Non-Party
15.
Non-parties producing documents or providing deposition testimony in the
course of this action may also designate documents or testimony as “Confidential,”
subject to the same protections and constraints as the parties to the proceeding. A party
serving a subpoena on a non-party must simultaneously serve a copy of this protective
order.
Termination of the Litigation and Other Relief
16.
This Protective Order shall survive the termination of the litigation.
(a)
Within 60 days after the termination of this action (including any
appeals), each party must return or destroy all confidential
documents; and notify the disclosing or producing party that it has
returned or destroyed all confidential documents within the 60-day
period.
(b)
Notwithstanding paragraph 16(a), each attorney may retain a copy
of any confidential document submitted to the Court and a copy of
any document (whether a filing, discovery response, or otherwise)
that quotes or describes the substance of a confidential document.
17.
During the pendency of this case only, this Court shall retain jurisdiction
over all persons subject to this Order to the extent necessary to enforce any obligations
arising hereunder or to impose sanctions for any contempt thereof.
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Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 8 of 10
Other Relief
18.
This protective order shall not prevent any party from applying to the Court
for other forms of relief or for further or additional protective orders.
*
*
*
SO STIPULATED.
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Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 9 of 10
Dated: June 4, 2020
By: /s/ Gregory Van Houten
Gregory E. Van Houten (pro hac vice)
HAYNES AND BOONE LLP
800 17th Street, NW, Suite 500
Washington, D.C. 20006
Telephone: (202) 654-4562
greg.vanhouten@haynesboone.com
--and-Lawrence Bender (ND #03908)
FREDRIKSON & BYRON, P.A.
P.O. Box 1855
Bismarck, ND 58502-1855
Telephone: (701) 221-8700
lbender@fredlaw.com
By: /s/ Shannon M. Awsumb
Philip Kaplan (ND #07952)
Shannon M. Awsumb (pro hac vice)
ANTHONY OSTLUND BAER
& LOUWAGIE P.A.
90 South 7th Street
3600 Wells Fargo Center
Minneapolis, MN 55402
Telephone: (612) 349-6969
pkaplan@anthonyostlund.com
sawsumb@anthonyostlund.com
-- and --
ATTORNEYS FOR PLAINTIFF
CONTINENTAL RESOURCES, INC.
SCHWEIGERT, KLEMIN &
McBRIDE, P.C.
David D. Schweigert (ND #05123)
116 North 2nd Street
P.O. Box 955
Bismarck, North Dakota 585020955
Telephone: (701) 258-8988
ATTORNEYS FOR DEFENDANT
RINK CONSTRUCTION, INC.
IT IS SO ORDERED.
Dated this 4th day of June, 2020.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
9
Case 1:16-cv-00091-DLH-CRH Document 91 Filed 06/04/20 Page 10 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
CONTINENTAL RESOURCES, INC., )
)
Plaintiff,
)
)
v.
)
)
RINK CONSTRUCTION, INC.,
)
)
Defendant.
)
)
I,
NON-DISCLOSURE AGREEMENT
Civil No. 1:16-cv-91 DLH-CRH
[print name], acknowledge that I have read and
understand the Protective Order in this action governing the non-disclosure of those portions
of Discovery Material that have been designated as Confidential. I agree that I will not disclose
such Confidential Discovery Material to anyone other than for purposes of this litigation and
that at the conclusion of the litigation I will return all discovery information to the party or
attorney from whom I received it. By acknowledging these obligations under the Protective
Order, I understand that I am submitting myself to the jurisdiction of the United States District
Court for the District of North Dakota for the purpose of any issue or dispute arising hereunder
and that my willful violation of any term of the Protective Order could subject me to
punishment for contempt of Court.
Dated:
_
[Signature]
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