Filing 18

ORDER granting 17 Stipulated Confidentiality Agreement and Protective Order as stated more fully in order. Signed by Judge Gary L. Lancaster on 7/8/09. (map)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA KINGSLY COMPRESSION, INC., Plaintiff, v. MOUNTAIN V OIL & GAS, INC., Defendant. The Honorable Gary L. Lancaster Electronically filed CIVIL ACTION No. 09-316 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER This Stipu lated Conf identiality Agr eement a nd Protec tive Order is entered in to by and between the parties to the above-captioned acti on, and by the Court, for the purpose and under the terms and conditions herein set forth. WHEREAS, the parties in this action and certain non-party w itnesses, who m ay become bound by this Stipulated Confidentiality Agreement and Protective Order, may from time to time be required to produce documents or provide testimony pursuant to the initial disclosure or other rules of the Federal Rules of Civil Procedure or to discovery requests made by the parties herein; WHEREAS, som e of t hese documents or this testim ony m ay contain confidential information within the scope of this protective order; and WHEREAS, the parties and/or non-party witnesses desire to preserve the protected status of any suc h m aterial and/or inform ation wh ile com plying with their respec tive discover y obligations; NOW THEREFORE, the undersigned partie s, by their respect ive counsel, hereby stipulate, agree and consent to the entry of the following order: It is hereby STIPULATED AND AGREED by the Parties and ORDER ED, ADJUDGED and DECREED by the Court that: MATERIALS COVERED 1. This Stipulated Confidentiality Agreement and Protective Order shall apply to all confidential and proprietary inform ation and documents produced or disclosed by any party during the course of the above-captioned action, including information and documents disclosed: a. b. c. d. writing; or e. in testimony given in a deposition, hearing or trial, and any copies, notes, in initial disclosures pursuant to Rule 26; through discovery; at any hearing; in any pleading, document, affidavit, brief, motion, transcript, or other abstracts or summaries of such information. The infor mation and docum ents described in this paragraph shall hereinafter be referred to as "Litigation Materials." 2. "Confidential" information shall m ean and be limited to an y Litigation Materials that contain or refer to the Producing Party' s trade secrets, nonpublic business inform ation, or other financial inform ation, or any other inform ation of a confidential or proprietary nature, the disclosure of which would or m ight be harmful to the Producing Party' s proprietary or business interests. The term "Producing Pa rty" shall m ean any party and/ or non-party witness who either produces or testif ies as to Conf idential inf ormation or who asser ts a co nfidentiality intere st in information produced or testim ony given by another in this action. As us ed in Paragraph 1 and elsewhere, the term "document" shall include written, electronic, recorded or graphic material of any type, including computer software and databases. METHOD OF DESIGNATION 3. Any Producing Party m ay designate as "Confidential" any Litigation Materials in the following manner: a. The Producing Party shall m ark a ny Litigation Materials it wishes to designate a s "Conf idential" with a conf identiality m arking or s tamp at the tim e of production; b. Deposition or other testimony taken in this action, including any document marked for identification during a deposition, may be designated "Confidential" by any one of the following means; (i) by stating or "Confidential" on the day the testimony is gi ally on the re cord that th e inf ormation is ven; (ii) by sending wr itten notice to the other party designating inform ation as "Conf idential" within five (5) bu siness days after the transcript of the testim ony is delivered to the party designa ting the testim ony as "Confidential"; or (iii) by stam ping or writi ng the legend "Confidential" on the relevant portion of the transcript or docum ent at or be fore the signing of the transcript by the witness or as soon thereafter as practicable. All information disclosed during a deposition shall be deem ed to have been des ignated "Confidential" for fi ve (5) business days after the transc ript of the de position has been deliv ered, wheth er or no t an y portion of the transcript or docum ent has been so de signated previously. Written notices of "Confidential" information contained in a deposition transcript shall be attached by each party to the face of the relevant transcript and each copy thereof in its possession, custody or control. c. Any party may designate a document produced by a non­party pursuant to subpoena, order of court, or otherwise as "Confidential" by sending written notice to all parties herein designating such docum ent as "Confidential" within five (5) business days after the document is delivered to the party designating the document as confidential. All documents produced by non-parties shall be deem ed to have been designated ents have been delivered, "Confidential" for five (5) business days after the docum whether or not any portion of the document has been so designated previously. TREATMENT OF ALL CONFIDENTIAL MATERIALS 4. No copies of Confidential m aterials shall be made except to the extent n ecessary tigation, including discov ery, m otion practice, for making such copies m ust for the preparation and conduct of this li evidentiary hearings, trial and appeal. Any person responsible ensure that the copies adequately reflect any "Confidential" stamp or legend thereon 5. All Conf idential m aterials, includ ing any copies, notes, abst racts o r s ummaries thereof, shall be m aintained in confidence, and shall not be disclosed to any person, except as follows: a. b. case; c. any attorney of record for the parties in the above -captioned action, and any court and its staff in connection with this civil litigation; any court reporter who records a ny deposition or othe r testimony in this the parties' corporate counsel; d. any paralegal, clerical em ployee, and/or clerk retained or em ployed a nd this supervised by counsel of record w ho is wo rking on the prosecution or defense of action; e. any corporate em ployee of either p arty who has been directed to assist counsel's preparation with respect to litigation between the parties; and f. any actual or prospective expert or consultant identified and/or retained by either party to assist it in the litigation between the parties. In the event that any pa rty desires to disclose to any person not included in (a) through (f) above any Confidential m aterials, it shall provide at least five (5) business days advance notice in of such Confidential writing. Should the Produci ng Party object in writi ng to the disclosure materials to that person, the party seeking to disclose may seek an order from the Court. Until the Court resolves the application, no such disclosure shall be made. 6. Each person to whom Confidential m aterials are revealed, disclosed or m ade available for inspection (except the persons identified in Paragr aphs 5(a) through 5(e) above) shall, prior to having access to such information, sign the Nondisclosu re Agreement in the for m annexed hereto marked as Exhibit A. 7. All persons authorized by this S tipulated Conf identiality Agreem ent and Protective Order to receive cop ies of Confidential materials and/or inf ormation therefrom shall maintain such inform ation as "Confidential" in accordan ce with this Stipulated Con fidentiality Agreement and Protective Order, and shall us e such inform ation solely for the purpose of preparing for and conducting the above-captioned litigation. CLAWBACK FOR INADVERTENT PRODUCTION OF PRIVILEGED INFORMATION 8. The inadvertent production of docum ents, inform ation, or electronically stored information ("ESI") subject to the attorney-clien t privilege, work product doctrine, or any other applicable p rivilege o r immunity (c ollectively, th e "Pro tected Material") sha ll no t constitute a waiver of s uch privileg e(s). Inadv ertent p roduction of Pro tected Material shall be handled as follows, which the parties hereby agree constitu tes "reasonable steps" under Rule 502(b)(3) of the Federal Rules of Evidence: a. In the event that (1) the Producing Party produces documents or materials that appears on its face to be or otherwise contain Protected Material or (ii) the Producing Party provid es written n otice th at it has ina dvertently produ ced Protec ted Material, the receiving p arty sha ll p romptly return all co pies of the Protected Material (including electronic copies of ESI) or de stroy them at the Producing P arty's request. The receiving party shall also refrain from disclos ing th e substance of the Prote cted Mater ials to any person. If the Producing Party requests that the Protected Material be destroyed, the receiving party shall pro vide a written certifi cate of compliance within thir ty (30) d ays stating that the Protected Material has been destroyed. b. If the receiving party believes that it has a good faith basis for challenging advertently-disclosed do cuments or m aterial is privileged or the claim that the in otherwise protected from discovery, the receiving party shall provide the Producing Party with a written explanation of the good faith basis for its belief that the inadvertently- produced documents or material is not privileg ed or otherwise protected from discovery. This written explanation shall be provided wi thin f ive (5) business da ys af ter the f irst even occurs under Paragraph 8(a)(1) or (ii). The Producing Party shall respond in writing to the receiving party' s written explanation within five (5) business days after receiv ing that written explanation. c. In the even t that the parties can not agree to the privileged or non- privileged status of the inadvertently-produced documents or material, the receiving party may promptly file a motion with the court for the sole purpose of seeking a determination of the is sue pursuant to Rule 26(b)(5)(B) of the Federal Rule s of Civil Procedure. The receiving party must file its supporting brief and/or exhibits under seal if it intends to file the inadvertently-produced docum ent or m aterial or otherwise describe its substance. If the receiving party files such a m otion, the Producing Party shall have the burden of proving that the documents or materials constitute Protected Material. 9. Any Protected Material that is ina dvertently disclosed by the Producing Party pursuant to this S tipulated Confidentially Agreement and Protective Order shall be and rem ain the property of the Producing Party. INADVERTENT DISCLOSURE OF CONFIDENTIAL INFORMATION 10. In the event any party inadvertently di scloses Confidential materials to som eone not authorized to receive such information under this Stipulated Confidentiality Agreement and Protective Order, that party shall upon learning of the disclosure: a. made that it m immediately notify the person to w hom the in advertent d isclosure wa s ay contain "Co nfidential" inf ormation subjec t to this Stipu lated Confidentiality Agreement and Protective Order; b. immediately make all reasonable effo rts to preclude further dissem ination or use by the person to whom disclosure was inadvertently made; and c. immediately notify the Producing P arty of the identity of the person(s) to whom disclosure was inadvert ently made, the circumstances surrounding disclosure, and the steps taken to ensure against the dissemination or use of the information. 11. If infor mation subject to a claim of attorney-client privilege or work product immunity is inadvertently or m istakenly produced by any party, such production shall in no way prejudice or otherwise constitu te a waiver of, or estoppel as to, any claim of privilege or work - product immunity for such information. If info rmation subject to a cl aim of immunity or privilege is advertently or m istakenly pr oduced, upon written request m ade by the producing party within twenty-one (21) days of discovery of such inadvert ent or m istaken production, the information for which a claim of ina dvertent production is m ade, including all copies, shall be returned within seven (7) business days of such reques t unless th e party th at received th e of privilege or immunity. In information intends to challenge the Producing Party's assertion addition to return all copies of the inadve rtently or m istakenly produced docum ents, the receiving party shall destroy a nd/or expunge any docum ent, m aterial or infor mation reflecting the contents of the inad vertently produced inform ation. If a r eceiving party objects to the return of such inform ation within the seven (7) bus iness day period described above, the Producing Party may move the Court for an order com pelling the return of such inform ation. Pending the Court's ruling, a receiving party m ay retain the inadvertently or mistakenly produced documents in a sealed envelope and shall not make any use of such information. FILING OF CONFIDENTIAL MATERIALS 12. If Confidential m aterials or quotes from or r eferences to such m aterials are included in papers or motions filed with or othe rwise disclosed to the Court, such papers or motions shall be labeled "Confidential Subject to Protective Order." 13. Nothing contained herein shall prevent any of the parties from using "Confidential" inform ation in connection with any m otion file d with the Cour t (as long as motions that contain or refer to Confidential m aterials are filed in accord ance with Paragraph 10 above), or in trial, a hearing, or any other proceeding in this action. 14. Nothing contained herein shall preven t any party from seeking further protection with respect to the use of any "Confidential" information in connection with any trial, hearing, or other proceeding in this action. OBJECTIONS TO CONFIDENTIALITY 15. If any party disputes the confidentialit y of any Confidential m aterials, that party shall state the objection by letter to opposing counsel. If the parties are then unable to resolve any such objection, any party m ay m ove the Court to do so. Until th e Court ru les o n any such motion, the Confidential materials shall continue to be deemed "Confidential" under the terms of this Stipula ted Conf identiality Agr eement and Protec tive Order, an d all o ther term s and conditions of this Stipulated C onfidentiality Agreement and Protective Order shall remain in full force and effect. SUBPOENA BY THIRD PARTY 16. If any party receives a subpoena or document request from a non-party to this Stipulated Confidentiality Agreem ent and Pr otective Order seeking production or other disclosure of a Producing Party's Confidential materials, the party shall give written notice to the other within five (5) business days, identifying the Confidential materials sought and enclosing a copy of the subpoena or docum ent request. Subject to the duty to com ply with such subpoena or document request, no production or disclosure of Confidential materials shall be made until the Producing Party has received a reasonable opportun ity to consider or re spond to the subpoena or document request. AMENDMENT TO THIS STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER 17. The provisions of this Stipulated Co nfidentiality Agreement and Protective Order may be m odified at any tim e by written stipulation of the par ties as approved by an Order of Court. In addition, a party m ay at any time apply to the Court for m odification of this Stipulated Confidentiality Agreement and Protective Order pursuant to a motion brought in accordance with the rules of the Court. RESERVATION OF RIGHTS 18. Nothing co ntained in this Stipu lated Confidentiality Agre ement and Protective Order shall prevent any party from disclosing its own "Confidential" information to any person. 19. Nothing co ntained in this Stipu lated Confidentiality Agre ement and Protective ission by a ny party that any info rmation contained in Order shall constitute: (a) an adm Confidential m aterials is, in f act, conf idential, even if th e party ha s not ob jected to the "Confidential" status of the Confidential m aterials; (b) an agreem ent by the parties to produce any documents or supply any inform ation or testim ony in discovery not otherwise agreed upon, or required by rules of Court or by Court Order; (c) a waiver by any person or party of any right to object to or seek a further protective order with respect to any discovery request in this or in any other action; (d) a waiver of any claim of immunity or p rivilege with reg ard to an y testimony, docum ents or inform ation; or (e) a w aiver by any party of its right to apply to the Court for an order designed to preserve the confidentiality of its confidential information at trial. 20. Nothing co ntained in this Stipu lated Confidentiality Agre ement and Protective Order shall prevent: (i) any part y from moving the court to modify the term(s) of this Stipulated Confidentiality Agr eement and Protective Ord er if the m oving pa rty believ es tho se te rms (as originally agreed upon) are hampering its efforts to prepare for trial; (ii) any party from applying to the court for further or additi onal protections; or (iii ) the parties from agreeing to modify any terms contained herein, subject to court approval. CONCLUSION OF THE LITIGATION 21. Within sixty (60) days of the conclu sion of this action, including any post-trial motions or appellate proceedings, every party shall secure the return to the Producing Party of all of their Con fidential m aterials (and all cop ies th ereof and n otes, abs tracts or summaries m ade therefrom) from all pers ons to whom such m aterials were disclosed, and sh all either destroy all such m aterials or return them to the Producin g Party. Counsel m ay retain their w ork product, court filings and official transc ripts and exhibits, provided that counsel and the parties continue to treat them in the manner provided herein. CONTINUING EFFECT 22. Insofar as the provisions of this Stipulated Confidentiality Agreem ent and Protective Order restrict the use or comm unication of any docum ent or inform ation produced hereunder, such Order shall continue to be bindi ng after the conclusion of this litigation, except that a party may seek the written perm ission of the Producing Party or further o rder of the Court with respe ct to disso lution or m odification of this Stipu lated Conf identiality Agr eement and Protective Order and the Court shall retain jurisdiction of all parties bound hereby for the purposes of this Stipulated Confidentiality Agreement and Protective Order. IT IS SO STIPULATED: Respectfully submitted, MORELLA & ASSOCIATES A PROFESSIONAL CORPORATION Alan E. Cech, Esquire PA ID. No. 32504 /s/ Albert N. Peterlin, Esquire PA ID No. 84180 706 Rochester Road Pittsburgh, PA 15237 (412) 369-9696 (412) 369-9990 (fax) Respectfully submitted, BUCHANAN INGERSOLL & ROONEY PC Gregory J. Krock, Esquire PA I.D. No. 78308 /s/ Benjamin A. Mathews, Esquire PA I.D. 207091 One Oxford Centre 301 Grant Street, 20th Floor Pittsburgh, PA 15219-1410 (412) 562-3983/1314 (412) 562-1041 (fax) Attorneys for Plaintiff, Kingsly Compression, Attorneys for Defendant, Mountain V Oil & Gas, Inc. Inc. SO ORDERED: BY THE COURT: DATE: July 8, 2009 s/Gary L. Lancaster THE HONORABLE GARY L. LANCASTER UNITED STATES DISTRICT JUDGE

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