Scott v. City of Bismarck, North Dakota et al

Filing 22

PROTECTIVE ORDER by Magistrate Judge Charles S. Miller, Jr. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Jamie Scott, individually and as Personal
Representative for the Wrongful Death
Estate of James Anthony Scott,

)
)
)
)
Plaintiff,
)
)
vs.
)
)
City of Bismarck, a Municipal Corporation; )
Dan Donlin, in his individual and official
)
capacity as Chief of Police for the City of
)
Bismarck; Shaun Burkhartsmeier, in his
)
official and individual capacity; John Does )
1-5, in their individual and official capacities, )
)
)
Defendants.
)

PROTECTIVE ORDER

Case No. 1:17-cv-059

The court issues the following as its Protective Order:
1.

As used in this Protective Order, the following terms shall have the following

meanings unless the context clearly provides otherwise:
a.

“Attorney(s)” shall mean an attorney of record for a party.

b.

“Party” includes its attorneys of record.

c.

“Protected Material” means all documents, testimony, or other information that have
been marked or designated as being Confidential or Protected Material in the manner
provided for by this Protective Order, including copies or other reproductions of any
material so marked or designated.

d.

“Termination of the Litigation” shall mean the entry of a final, non-appealable
dismissal or judgment.

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e.

“Written Assurance” means the executed document attached as “Exhibit A.”

2.

Any party may mark or designate as Confidential or Protected Material any

documents, testimony, or other information produced or generated during this litigation that the
party in good faith reasonably believes is properly the subject of a protective order under the Federal
Rules of Civil Procedure because it contains: (i) trade secrets or other proprietary or commercially
sensitive information the dissemination of which has a significant likelihood of causing damage to
a party’s business; (ii) material that is required to be kept confidential under federal or state law,
except when disclosed for a permitted litigation purpose; or (iii) personal information the disclosure
of which would constitute an unwarranted invasion of privacy or cause the party to suffer undue and
unwarranted embarrassment. The mere desire to keep material private is not enough. Any party
who lacks a good faith reasonable belief that the documents, material, or other information is eligible
to be treated as Protected Material or otherwise abuses this Protective Order is subject to sanction
by the Court.
3.

Protected Material that has been marked or designated by a party in accordance with

this Protective Order may only be used by the other parties for purposes of this litigation and no
other purposes. The other parties shall keep the Protected Material confidential, except that
Protected Material may be disclosed to:
a.

attorneys of record in this action who by their appearance are bound by this
Protective Order;

b.

attorneys representing a party who are not an attorney of record if they have
executed the Written Assurance;

c.

the following persons from the City of Bismarck if they have executed the Written

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Assurance: City management department heads involved with monitoring this
litigation, the mayor, chief executive officer, city auditor, and city council members
(or the equivalent), and attorneys at the City Attorney’s Office;
d.

the claims adjustor and claims manager(s) for any insurance carrier or risk-sharing
pool providing liability coverage to the City of Bismarck in this action if they have
executed the Written Assurance;

e.

employees of attorneys of record or those providing contract services to the attorneys
of record, but only if the employees or contractors have executed the Written
Assurance and subject to the condition that the attorneys of record are responsible
and liable for their noncompliance with this Protective Order;

f.

to experts or consultants retained for purposes of the litigation if they have executed
the Written Assurance;

g.

to witnesses and prospective witnesses, but only to the extent necessary for their
testimony or the preparation for their testimony and only if they have executed the
Written Assurance;

h.

any privately engaged stenographic recorder;

i.

the court and court personnel; and

j.

any other persons separately agreed to by the parties in writing or as ordered by the
court, provided they have executed the Written Assurance.

An exception to these requirements is Protected Material that has been designated by a party for the
benefit of another party because the designating party is attempting to comply with confidentiality
requirements imposed by law or anticipates that the other party is desirous of the designation. An

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example is where the designating party discloses confidential medical or employment information
of another party. In such an instance, the party for whose benefit the designation of Protected
Material is being made is not bound by the provisions of this Protective Order in terms of its
handling or use but the party designating the Protected Material is bound.
4.

If a party desires to claim information discussed during a deposition as Protected

Material, the party may designate the appropriate portions of the deposition transcript by page and
line number as Protected Material provided that the party does so within thirty (30) days following
receipt of the deposition transcript and serves the designation upon the other parties.
5.

If a party desires to file any deposition testimony, deposition exhibit, discovery

request or response, affidavit, motion, brief, or other document that includes, incorporates,
or quotes specific Protected Material, it shall follow the court’s requirements and procedures
for filing under seal unless the court orders otherwise.
6.

Any party desiring to use Protected Material during the trial must first seek

permission from the court. The sealing of a trial record or closure of trial proceedings involves a
number of considerations that are not presently before the court and will be dealt with at that time.
7.

Inadvertent or unintentional production of Protected Material by a party claiming

confidentiality shall not be deemed a waiver in whole or in part of that party’s claim of
confidentiality unless the Court orders otherwise upon motion by any party.
8.

Once material has been marked or otherwise classified as Protected Material it shall

remain Protected Material until all of the parties agree in writing or the Court specifically orders
otherwise. Any party may challenge a designation of Protected Material by filing a motion with the
Court, but only after first attempting to resolve the matter with the other parties. The party claiming

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the benefit of the designation of Protected Material has the burden of persuasion.
9.

Any party who has been provided with Protected Material marked or designated by

another party or who has itself marked or designated the Protected Material for the benefit of another
Party, shall, no later than sixty (60) days following Termination of the Litigation, (i) destroy the
Protected Material or (ii) return it to the party marking or designating the Protected Material or the
party whose benefit it has been so marked or designated if that party has previously demanded in
writing that it be returned instead of being destroyed. An exception is that the attorneys for the
parties may retain Protected Material in one set of archival records for this action but subject to the
court’s continued jurisdiction and the requirements of this Protective Order.
10.

Any Written Assurances obtained by a party pursuant to this Protective Order from

those to whom Protected Material has been provided, as well as any written confirmations of
destruction of the Protected Material, shall be retained by the party for a period of not less than six
(6) years following the Termination of the Litigation unless copies have been provided to the other
parties of record. Failure of a party to maintain these documents or obtain back the Protected
Material or written confirmation of its destruction are grounds for sanction. Upon Termination of
the Litigation, any party may within (30) thirty days request of another party that it provide copies
of all Written Assurances and confirmations of destruction that have been obtained and copies shall
be provided unless the objecting party obtains an order from this Court that the documents do not
have to be provided.
11.

Information provided by third persons or entities may be designated as “Protected

Material” by agreement of the parties or by further order of this Court and the provisions of this
Protective Order shall apply to the Protected Material as appropriate.

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12.

If any party or person who is subject to the terms of this Protective Order is served

with a subpoena, process, or court order from a court of competent jurisdiction requiring disclosure
of the Protected Material, the party or other person must:
a.

notify the court in whose name the subpoena, process, or order is issued of the
existence of this Court’s Protective Order;

b.

make a reasonable effort to promptly notify the party who designated the material as
Protected Material and/or who is the subject of the Protected Material of the
subpoena, process, or other court order;

c.

not turn over the Protected Material, except pursuant to an order of this Court, an
order of a court of competent jurisdiction specifically requiring that the Protected
Material be turned over or disclosed notwithstanding this Court’s Protective Order,
or the agreement of the party who is the subject of the Protected Material or for
whose benefit the Protected Material designation was made.

13.

The terms of this Protective Order shall survive the dismissal or other termination

of this action. The Court retains jurisdiction over the subject matter of this Order, as well as the
parties and other persons and entities provided with Protected Material under this Order, to the
extent required to resolve any disputes with respect to the Order or otherwise enforce its provisions,
including imposition of any sanctions for noncompliance.
IT IS SO ORDERED.
Dated this 7th day of November, 2017.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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EXHIBIT A
WRITTEN ASSURANCE
I, _________________________________________ , do hereby declare that:
(printed or typewritten name)
I reside at _______________________________________ in the City of __________________,
County of _______________, State of ______________ .
My telephone number is
__________________________________.
I have been provided a copy of, read, and understand the terms of the Protective Order dated March
9, 2016, filed in Case No. 1:17-cv-059, Jamie Scott v. City of Bismarck, et al. 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 imposed by the Court, including being held in
contempt of court and the possibility of imprisonment.
I agree not to not divulge any documents or other information designated “Confidential” or
“Protected Material” (herein Protected Material) that has been provided to me, including the contents thereof,
except as required for my involvement in this action and then only to the party, an attorney for the party, or
such other persons that the party or attorney for the party may direct and that are otherwise persons eligible
to receive the Protected Material under the Protective Order and who have executed a Written Assurance.
As soon as I no longer have reasonable need to use the Protected Material for purposes of the above
action, but not later than 30 days after dismissal of the action by stipulation or by an order of dismissal (and
even though there might be an appeal), I shall return the Protected Material to the attorney from whom I have
received it, along with all copies, excerpts, summaries, notes, digests, abstracts, and indices related to the
Protected Material, or, if instructed to do so by the attorney or party providing the Protected Material, destroy
it and confirm in writing that I have destroyed it. In addition, I understand that my obligation to keep
confidential the contents of the Protected Material extends beyond my return or destruction of it.
I submit myself to the jurisdiction of the United States District Court for the District of North Dakota
for the purpose of its enforcement or otherwise providing relief relating to the Protective Order.
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct.
Executed on _______________________
(Date)

______________________________
(Signature)

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