Weslease 2018 Operating LP v. Behan et al

Filing 50

ORDER adopting 46 Agreed Protective Order - non-party Equinor Energy LP by Magistrate Judge Clare R. Hochhalter. (BG)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
WESLEASE 2018 OPERATING LP;

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Plaintiffs,

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V.

DALE BEHAN, LINDALE PIPELINE LLC
AND BULL MOOSE PIPELINE LLC,
Defendants.

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Case No. I: l 9-cv-157

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NOW on this

J.h

AGREED PROTECTIVE ORDER
day of December, 2020, the Court, noting that Plaintiff, Weslease 2018

Operating LP ("Plaintiff'), and non-party Equinor Energy LP ("Equinor"), have agreed to the
provisions of this Agreed Protective Order in this action, the Court, upon a showing of good cause
under F.R.Civ.P. 26(c), hereby enters this Agreed Protective and orders as follows:

IT IS HEREBY ORDERED THAT:
Plaintiff acknowledges and agrees certain information, documents, communications,
electronically stored information, and tangible items of Plaintiff, and third parties subject to
discovery in this action, may constitute confidential information. Further, the disclosure of
information held by Plaintiff or by third parties may be subject to other agreements, laws,
regulations, and/or treatises. Plaintiff agrees certain categories of such information should be
treated as confidential, protected from disclosure outside this litigation, and used only for purposes
of prosecuting or defending this action and any appeals. Plaintiff and EQUINOR jointly request
entry of this proposed Agreed Protective Order to limit the disclosure, dissemination, and use of

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certain identified categories of confidential information.
Plaintiff and EQUINOR assert in support of their request that protection of the identified
categories of confidential information is necessary because certain documents contain confidential,
proprietary, trade secret, commercially sensitive business information, non-public personal
information, and information that, if disclosed, would cause injury to Plaintiff or EQUINOR's
businesses and/or business relationships. A protective order will facilitate production of discovery
materials and information, promote the prompt resolution of disputes over confidentiality,
adequately protect material entitled to be kept confidential, and ensure protection is afforded only
to material so entitled.
1.

Scope - Documents Produced by EQUINOR. The terms and conditions of this

Agreed Protective Order (also referenced as "Order") shall be applicable to and shall govern all
information, documents, and electronically stored information produced by EQUINOR and its
affiliates regardless of medium or format, and all tangible things produced by EQUINOR: (a)
under the Federal Rules of Civil Procedure; (b) in response to any discovery request in this action,
including without limitation all answers to interrogatories pursuant to F.R.Civ.P. 33, all responses
to requests for production pursuant to F.R.Civ.P. 34, all responses to requests for admissions
pursuant toF.R.Civ.P. 36, all deposition testimony, all responses to subpoenas, and all other
discovery engaged in pursuant to the Federal Rules of Civil Procedure; and (c) in connection with
this action informally and/or voluntarily or pursuant to a rule, order, or other requirement.
2.

Definition of Confidential Information. As used in this Order, "Confidential

Information" is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use is restricted by statute or could potentially

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cause harm to the interests of the disclosing party or of nonparties. For purposes of this Order,
EQUINOR will limit their designation of "Confidential Information" to information that (a) if
disclosed, would cause injury to the Party's business or business relationships with others; (b)
contains trade secrets or other confidential and non-public research, development, business and/or
proprietary information; (c) contains non-public personal information; or (d) contains other
information for which a good faith claim of the need for protection from disclosure can be made
under the Federal Rules of Civil Procedure or other applicable law.

3.

Form and Timing of Designation. The producing party may designate documents

as containing Confidential Information and therefore subject to protection under this Order by
marking or placing the words "CONFIDENTIAL" (hereinafter "the marking") on the document
and on all copies in a manner that will not interfere with the legibility of the document. As used
in this Order, "copies" includes electronic images, duplicates, extracts, summaries or descriptions
that contain the Confidential Information. The marking will be applied prior to or at the time the
documents are produced or disclosed. Applying the marking to a document does not mean that
the document has any status or protection by statute or otherwise except to the extent and for the
purposes of this Order. Copies that are made of any designated documents must also bear the
marking, except that indices, electronic databases, or lists of documents that do not contain
substantial portions or images of the text of marked documents and do not otherwise disclose the
substance of the Confidential Information are not required to be marked. By marking a designated
document as Confidential Information, the designating attorney or party appearing pro se thereby
certifies that the document contains Confidential Information as defined in this Order.
4.

Inadvertent Failure to Designate. Inadvertent failure to designate any document

or material as containing Confidential Information will not constitute a waiver of an otherwise
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valid claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is asserted
within fourteen (14) days after discovery of the inadvertent failure. Upon timely notification by
the producing party, the non-producing party will either return or destroy the original unmarked
material and will make a good faith effort to retrieve the unmarked material from unauthorized
recipients.

The producing party will promptly produce the confidential information with the

marking.
5.

Depositions. Deposition testimony by any representative, employee, manager,

agent, or designee of EQUINOR will be deemed confidential only if designated as such when the
deposition is taken or within a reasonable time period after receipt of the deposition transcript.
Such designation must be specific as to the portions of the transcript and/or any exhibits to be
protected.
6.

Protection of Confidential Material.
(a)

General Protections. Designated Confidential Information must be used

or disclosed solely for purposes of prosecuting or defending this lawsuit, including any appeals or
any other related future legal proceeding brought by any party to this litigation.
(b)

Who May View Designated Confidential Information. Except with the

prior written consent of the designating party or prior order of the Court, designated Confidential
Information may only be disclosed to the following persons:
(1)

Plaintiff and the above-captioned Defendants in this litigation,
including any employees, agents, and representatives of the Plaintiff
whose assistance is required in preparing for trial and who need
access to such material to render such assistance;

(2)

Counsel for the Plaintiff and the above-captioned Defendants and
their legal assistants, secretaries, and support personnel who are
directly employed by counsel and who are assisting them in this

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(3)

The Court and Court personnel, including any court-appointed
magistrate, special master, officer, agent, or receiver, and members
of the jury;

(4)

Court reporters, recorders, and
depositions;

(5)

Any mediator appointed by the Court or jointly selected by the
Plaintiff;

(6)

Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation;

(7)

Any potential, anticipated, or actual fact witness and his or her coun­
sel, but only to the extent such confidential docwnents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying and only if these individuals are not
allowed to retain a copy of the disclosed document;

(8)

The author or recipient of the document (not including a person who
received the document in the course of the litigation);

(9)

Independent providers of document reproduction, electronic discov­
ery, or other litigation services retained or employed specifically in
connection with this litigation;

(10)

Other persons only upon consent of the producing party and on such
conditions as the Plaintiff and EQUINOR may agree;

(11)

Parties to the case, if disclosure is required under the Federal Rules
of Civil Procedure or other applicable law governing discovery.

(c)

Control of Documents. Each person described in subparagraphs (6), (7),

videographers

engaged

for

( 10), and (11) of subparagraph (b) to whom Confidential Information is to be disclosed shall first
be provided with a copy of this Agreed Protective Order by the disclosing party and shall signify
his or her agreement to be bound by its terms by signing a copy of an Acknowledgement and
Agreement to be Bound by Agreed Protective Order, in a form attached hereto as Attachment "A,"
of which the original shall be retained by the attorneys for the disclosing party and produced to the
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attorneys for the non-disclosing party upon request.

Plaintiff must take reasonable efforts to

prevent unauthorized or inadvertent disclosure of documents designated as containing Confidential
Information pursuant to the terms of this Order.
7.

Filing of Confidential Information.

In the event a party seeks to file any

document containing Confidential Information, subject to protection under this Order with the
Court, that party must: (a) seek a stipulation from the parties to this action that the Confidential
Information be filed under seal; (b) or, if the other parties will not agree to such a stipulation, notify
EQUINOR and bring the issue to the attention of the Court and motion to allow the Confidential
Information to be filed under seal.
8.

Challenges to a Confidential Designation. The designation of any material or

document as Confidential Information is subject to challenge by any party. Before filing any
motion or objection to a confidential designation, the objecting party must meet and confer in good
faith to resolve the objection informally without judicial intervention.

A party that elects to

challenge a confidentiality designation may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. The burden of proving the necessity of
a confidentiality designation remains with the party asserting confidentiality. Until the Court rules
on the challenge, all Parties must continue to treat the materials as Confidential Information under
the terms of this Order.
9.

Use of Confidential Documents or Information at Trial or Hearing. Nothing

in this Order will be construed to affect the use of any document, material, or information at any
trial or hearing. A party that intends to present or that anticipates that another party may present
Confidential Information at a hearing or trial must bring that issue to the attention of the Court and

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the other parties without disclosing the Confidential Infonnation. The Court may thereafter make
such orders as are necessary to govern the use of such documents or infonnation at the hearing or
trial.
10.

Use of Documents Not Obtained in Discovery. Nothing in this Order shall be

deemed to restrict in any way any party or its attorneys with respect to the use of that party's own
documents or materials, from documents or materials obtained from parties other than EQUINOR,
or of documents or materials obtained outside discovery or other than through court disclosures.
11.

Obligations on Conclusion of Litigation.
(a)

Order Remains in Effect.

Unless otherwise agreed or ordered, all

provisions of this Order will remain in effect and continue to be binding after conclusion of the
litigation.
(b)

Return of Confidential Documents.

Within sixty (60) days after this

litigation concludes by settlement, final judgment, or final order, including all appeals, all
documents designated as containing Confidential Infonnation, including copies as defined above,
must be returned to the party who previously produced the document unless: (1) the document has
been offered into evidence or filed without restriction as to disclosure; or (2) the Plaintiff agrees
to destruction of the document to the extent practicable in lieu of return, in which case the Plaintiff
will certify to the fact of destruction. Counsel of record may retain one copy of any such
Confidential Infonnation produced by the other party solely for purposes of complying with ethical
requirements or defending malpractice claims, and agrees not to use or disclose such Confidential
lnfonnation in any other matter or for any other purpose.
(c)

Retention of Work Product. Notwithstanding the above requirements to

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16.

Applicability to Parties Later Joined. If additional persons or entities become

parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file with the Court their written agreement to be bound by the provisions of this Order,
unless disclosure is required under the Federal Rules of Civil Procedure or other applicable law.
17.

Protections Extended to Third-Party's Confidential Information. The Plaintiff

agrees to extend the provisions of this Agreed Protective Order to Confidential Information
produced in this case by third parties, if timely requested by the third party. By its terms, this Order
expressly applies to Confidential Information produced by non-party EQUINOR and its affiliates,
without requiring any further request by EQUINOR or any of its affiliates.
18.

Confidential Information Subpoenaed or Ordered Produced in Other

Litigation. If a receiving party is served with a subpoena or an order issued in other litigation that
would compel disclosure of any material or document designated in this action as Confidential
Information, the receiving party must so notify the designating party, in writing, immediately and
in no event more than three business days after receiving the subpoena or order. Such notification
must include a copy of the subpoena or court order.
The receiving party also must immediately inform in writing the party who caused the
subpoena or order to issue in the other litigation that some or all of the material covered by the
subpoena or order is the subject of this Order. In addition, the receiving party must deliver a copy
of this Order promptly to the party in the other action that caused the subpoena to issue.
The purpose of imposing these duties is to alert the interested persons to the existence of
this Order and to afford the designating party in this case an opportunity to try to protect its
Confidential Information in the court from which the subpoena or order issued. The designating
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Dated this 8th day of January, 2021.

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