Walden et al v. Shire et al

Filing 25

STIPULATED PROTECTIVE ORDER by Magistrate Judge Clare R. Hochhalter (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
ANTONIA WALDEN, individually and as
Personal Representative of the ESTATE OF
SCOTT WALDEN,

STIPULATED PROTECTIVE ORDER

Plaintiff,

Civil No. 1:22-CV-00086

v.
HASHI SHIRE, AJ LOGISTICS, INC., and
FEDEX GROUND PACKAGE SYSTEM, INC.,
Defendants.

The parties, by their respective counsel, hereby agree to this Stipulation of
Confidentiality and Protective Order (this “Order”). To expedite the flow of discovery
material, facilitate the prompt resolution of disputes over confidentiality, protect material
entitled to be kept confidential, and ensure that protection is afforded only to material
entitled to such treatment, the parties agree as follows:
I.
A.

DEFINITIONS

“Confidential Information” is defined herein as a trade secret or other confidential

research, evaluation, development or commercial information or material, or material
that solely involves other parties, the disclosure of which is likely to prejudice the right
of one or more parties or non-parties hereto, including information concerning proprietary
research and development; business and marketing strategy; regulatory compliance and
communication; financial results and projections; employee records; company policies
and procedures; and similar documentation which is designated as “Confidential” by the
Producing Party (or, in the case of medical records by the party securing the records),
whether it be a Document, information contained in a Document, information revealed
during a deposition, information revealed in an interrogatory answer, etc. In construing
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the scope of what constitutes “Confidential Information” as defined herein, reference is
to be made to applicable case law regarding confidential or protected material. To the
extent a Party is producing Confidential Information, the Party designating documents as
confidential shall review all documents marked as confidential before marking them as
such. The designating party shall also exercise discretion and good faith in designating
documents as confidential. No Party shall designate documents as confidential without a
reasonable basis for doing so pursuant to the definition of “confidential” as defined in this
Order.
B.

“Stamped Confidential Document” means any Document which bears the mark

“CONFIDENTIAL”– or which shall otherwise have had the mark recorded on it in a way
that brings its attention to a reasonable examiner – to signify that it contains Confidential
Information subject to protection under any this Order.
C.

“Document” means all written, recorded, or graphic material, whether produced

or created by a party or another person, and whether produced pursuant to subpoena,
by agreement, or otherwise. Interrogatory answers, responses to requests for admission,
deposition transcripts and exhibits, pleadings, motions, affidavits, and briefs that quote,
summarize, or contain Confidential Information may be accorded status as a Stamped
Confidential Document, but, to the extent feasible, shall be prepared in such a manner
that the Confidential Information is bound separately from that not entitled to protection.
D.

“Producing Party” means the party that produced the Confidential Information.

II.
NON-DISCLOSURE
INFORMATION
A.

OF

DOCUMENTS

CONTAINING

CONFIDENTIAL

Except with the prior written consent of the Producing Party, or as provided in this

Order, Confidential Information and Stamped Confidential Documents may not be
disclosed to any person.

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B.

A Producing Party may, in its discretion, disclose its Confidential Information

and/or designated Stamped Confidential Documents to any person.
C.

Confidential Information and Stamped Confidential Documents may be disclosed

to:
(1)

The parties, including all employees, agents, third party administrators,

insurers and investigators, as well as counsel of record for the parties in this action,
including the partners, associates, “contract attorneys,” secretaries, paralegal assistants,
and employees of such counsel, to the extent reasonably necessary to render professional
services in the litigation.
(2)

Judges, court reporters, court personnel, or videographers present at trial,

hearings, arguments, or depositions held in this matter.
(3)

Other persons who may be designated by written consent of the Producing

Party or pursuant to a court order.
D.

Subject to sub-paragraph E, Confidential Information and Stamped Confidential

Documents may also be disclosed to:
(1)

Persons noticed for depositions or designated as trial witnesses, to the

extent reasonably necessary to prepare such persons to testify;
(2)

Consultants or experts retained for the purpose of assisting counsel of

record in this action; and
(3)

Third-party contractors retained for the purpose of organizing, filing,

coding, converting, storing, or retrieving data or designing database programs for
handling Documents.
E.

Before disclosing Confidential Information or Stamped Confidential Documents to

any person pursuant to paragraph D, the party proposing such disclosure shall show a

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copy of this Order to such person, and he/she shall sign the Undertaking attached as
Exhibit 1.
F.

Before disclosing Confidential Information or Stamped Confidential Documents

pursuant to paragraph D to any person who is a competitor (or an employee of a
competitor) of the Producing Party, the party proposing to make such disclosure shall
give at least twenty-one (21) days advance notice in writing, which shall identify the
person(s) to whom the disclosure will be made and a detailed explanation of why
disclosure to such person(s) is necessary, to counsel for the Producing Party. If, within
fourteen (14) days, after receiving advanced notice, the Producing Party objects in writing
to the proposed disclosure, disclosure shall not be made until the parties have resolved
the matter or the court has ruled on it.
G.

A recipient of Confidential Information and/or Stamped Confidential Documents

shall exercise due care to restrict access to those persons described in II(C)(1). Any
summary, copy of, or excerpt from a Stamped Confidential Document shall be subject to
this Order to the same extent as the Stamped Confidential Document itself, and must be
labeled as Confidential.

A recipient shall not duplicate any Stamped Confidential

Document or excerpt therefrom except for use as working copies and for filing in court.
III.

DECLASSIFICATION OF STAMPED CONFIDENTIAL DOCUMENT

A party may challenge, by motion, the propriety of a confidential designation at
any time within 90 days of the production of the Confidential Information and/or Stamped
Confidential Document. If a Document is declassified either by agreement of the parties
or by a court order, the terms of this Order will no longer apply to future handling or
production or dissemination of declassified Documents.
IV.

CONFIDENTIAL INFORMATION IN DEPOSITIONS

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A.

A deponent, other than a current employee of the Producing Party, shall be shown

a copy of this Order and shall be asked to sign the undertaking attached as Exhibit 1
before being shown or examined about Confidential Information and/or Stamped
Confidential Documents, except that any deponent may be shown and examined about
Stamped Confidential Documents or other Documents without being shown this Order
and being asked to sign the undertaking if the Document reflects that the deponent was
the author or recipient. Regardless of whether a deponent signs the undertaking, this
Order shall apply to any deponent who is shown or examined about Confidential
Information and/or Stamped Confidential Documents.
B.

Parties and deponents, may, within 45 days after receiving the deposition

transcript from the court reporter, designate pages of the transcript (and exhibits thereto)
as confidential by underlining or otherwise designating the portions of the pages that are
confidential. The parties and the court reporter shall thereafter mark such pages in all
copies of the transcript with the following legend, “CONFIDENTIAL – SUBJECT TO
CONFIDENTIALITY ORDER.” Upon expiration of the 45-day period, the entire deposition
will be treated as subject to this Order. If the deposition transcript is filed and a timely
designation made, the confidential portions and exhibits shall be filed under seal.
V.

SUBPOENA FOR STAMPED CONFIDENTIAL DOCUMENTS

If Stamped Confidential Documents or other Documents containing Confidential
Information are subpoenaed by any person, court, administrative or legislative body, the
party to whom the subpoena is directed shall not, to the extent permitted by applicable
law, provide or otherwise disclose such Documents or information until twenty-one (21)
days after giving counsel for the Producing Party notice in writing of the subpoena,
accompanied by a copy of the subpoena. If the Producing Party objects to the subpoena,

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the party to whom the subpoena is directed agrees not to produce Documents in response
to it until the resolution of the objection by the appropriate court.
VI.
PURPOSES
A.

FILING AND USE OF STAMPED CONFIDENTIAL DOCUMENTS FOR PRETRIAL

Stamped Confidential Documents shall be filed under seal and shall remain sealed

in the Clerk’s office so long as they retain their status as Stamped Confidential
Documents.
B.

To the extent that any party wishes to use Stamped Confidential Documents during

a hearing in this action, such party agrees to notify the Producing Party and the court at
least fourteen (14) days in advance of the hearing so that the hearing can be conducting
in camera, and agrees to submit any Stamped Confidential Documents to the court for
its in camera inspection. In the event that, during any hearing in which a party submits
Stamped Confidential Documents, the court cannot ensure the continued confidentiality
of such information, or any party or person objects to the procedures set forth in this
paragraph, the parties agree to the entry of a temporary sealing order until a motion to
seal court records permanently is filed and ruled upon. Any transcript of an in-camera
hearing shall be treated as confidential pursuant to this Order.
VII.

USE OF CONFIDENTIAL INFORMATION AT TRIAL

Use of Confidential Information and/or Stamped Confidential Documents at trial
shall be determined by subsequent agreement of the parties or an order of court.
VIII.

PROPER USE OF CONFIDENTIAL INFORMATION

Persons obtaining access to Confidential Information and/or Stamped Confidential
Documents pursuant to this Order shall use the information for preparation and trial of
this litigation only – including appeals and retrials – and shall not use such information
for any other purpose, including business, governmental, commercial, or administrative
or judicial proceedings.

Should any Person wish to attach a Stamped Confidential
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Document to a Pleading or any like document to be filed of record or served in this case,
it must first be brought to the attention of the court that the documents must be filed
under seal.
IX.

NON-TERMINATION

The provisions of this Order shall not terminate at the conclusion of this action.
Within 120 days after final conclusion of all aspects of this litigation, all Documents,
including Stamped Confidential Documents, and all copies of same (other than exhibits
of record), shall be returned to the party or person which produced such documents or,
at the option of the Producing Party, destroyed.

All counsel of record shall make

certification of compliance herewith and shall deliver the same to counsel for the
Producing party not more than 150 days after final termination of this litigation.
X.

MODIFICATION PERMITTED

Nothing in this Order shall prevent any party or other person from objecting to
discovery that it believes to be otherwise improper or from seeking modification of this
Order, including further provisions for categories of Documents requiring heightened
protection.
XI.
A.

INADVERTENT DISCLOSURE

Any inadvertent disclosure of confidential, proprietary, or privileged material will

not be construed as a waiver, in whole or in part, of (1) the Producing Party’s claims of
confidentiality or privilege either as to the specific information inadvertently or
unintentionally disclosed or more generally as to the subject matter of the information
disclosed, or (2) the party’s right to designate the material as confidential pursuant to
this Order. A written representation by counsel for the Producing Party that the disclosure
was inadvertent shall be deemed prima facie evidence of that fact.

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B.

The Producing Party shall promptly notify the other party of an inadvertent

disclosure following discovery of the inadvertent production, and that other party (i) shall
in the case of a privileged Document, return the inadvertently disclosed Document
forthwith, as well as any and all copies; or (ii) in the case of a confidential, proprietary
Document, shall mark it and all copies, “CONFIDENTIAL – SUBJECT TO CONFIDENTIALITY
ORDER.” In the event that the other party cannot comply with these requirements –
because, for example, the inadvertently produced Document has been given to a third
party – the other party shall provide the Producing Party with the name, address, and
telephone number of such person(s) as well as the date of and reason for the transmission
of the Document.
C.

Notice of inadvertent disclosure shall apply to all copies of the Document

inadvertently disclosed including Documents inadvertently produced in cases other than
CASE No. 1:22-CV-00086 (such that inadvertent disclosure of a confidential or privileged
Document in another jurisdiction shall not constitute a waiver of privilege under this
Order).
Dated: October 25, 2022.
Lowe Law Group
6028 S. Ridgeline Drive, Suite 200
Ogden, UT 84405
801-917-8500
[e-mail]
[e-mail]
By:
Jason Harmon, Lawyer #09507
Eric Hinckley, Lawyer #07766
LAWYERS FOR PLAINTIFF

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Ebeltoft . Sickler . Lawyers PLLC
2272 9th Street West
Dickinson, North Dakota 58601
70L.22s,LAWS (5297)
7AL.225.9650 fax
com
cpresthus
By

Lawyer #0674L
McAnany, Van Cleave & Phillips, P.A.
10 East Cambridge Circle Drive, Suite 300
Kansas City, Kansas 66103
913-371-3838
9L3-37L-4722 fax
[e-mail]
[e-mail]
By
V

ron

Hac Vice
FS,
Bowles, Pro Hac Vice

LAWYERS FOR DEFENDANTS

)

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ORDER
The court ADOPTS the parties' Stipulation for Protective Order. However, the parties should
appreciate that while they may declare information confidential pursuant to the protective order, that
designation does not necessarily tie the court’s hands going forward. And while the protective order
governs the discovery process, once the case moves into the summary judgment stage and beyond,
the public filing of material obtained during the discovery process, save for the most sensitive of
documents, should come as no surprise as a qualified right of access attaches to dispositive
documents and materials filed in conjunction with dispositive motions. Romero v. Drummond Co.,
480 F.3d 1234, 1245 (11th Cir. 2007); Webster Groves Sch. Dist. v. Pulitzer Publ’g Co., 898 F.2d
1371, 1376 (8th Cir. 1990).
IT IS SO ORDERED.
Dated this 18th day of November, 2022.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court

Exhibit 1
______________________________________________________________________
UNDERTAKING PURSUANT TO CONFIDENTIALITY ORDER
______________________________________________________________
STATE OF ___________________)
) SS
COUNTY OF _________________ )
I, ___________________, the undersigned, declare and say:
1.
I am ___________________________________________. I am
employed by __________________________ as ________________________. My
business address is ______________________________; telephone number
__________________.
2.
I have read and understand the Stipulation of Confidentiality and
Protective Order (the “Order”).
3.
I understand that I may be receiving Confidential Information and/or
Stamped Confidential Documents, as defined in the Order, and by executing this
Undertaking I agree to be bound by all the provisions of the Order. I agree not to
disclose Confidential Information or Stamped Confidential Documents to any person not
entitled to receive it and agree not to use such information except in connection with
this litigation.
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I am informed and understand, and therefore acknowledge, that I may be
subject to contempt of court or any other penalties authorized by law or statute if I fail
to comply with each of the provisions of the Order.
5.
I consent to and accept, generally and unconditionally, the jurisdiction of
the State of New York, or the enforcement of the provisions of the Order.
I declare under penalties of perjury that the foregoing is true and correct.
Executed on ___________________ at ___________________________.
___________________________________
Declarant
Subscribed and sworn to before me this
_______ day of _______________, 202__.
______________________________
Notary Public
My Commission Expires:

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