Hystad Ceynar Minerals, LLC v. Whiting Oil and Gas Corporation

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UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
HYSTAD CEYNAR MINERALS, LLC,
on behalf of itself and a class of similarly
situated persons,
Plaintiff,
vs.
WHITING OIL and GAS
CORPORATION,
Defendant.
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Civil No: 1:22:cv-00138-DLH-CRH
PROTECTIVE ORDER
Before the Court is the parties’ Stipulated Proposed Protective Order. The parties agree
during the course of discovery it may be necessary to disclose certain confidential information
relating to the subject matter of this action. They agree 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. The parties jointly request
entry of a protective order to limit the disclosure, dissemination, and use of certain identified
categories of confidential information.
The parties assert in support of their request that protection of the identified categories of
confidential information is necessary because they believe the documents contain information
that relates to commercial financial information that would provide competitors with a financial
or competitive advantage; contain commercial trade secrets, if publicly released would impair
security and safety of the producing party; or would violate a legally protected privacy interest.
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For good cause shown under Fed. R. Civ. P. 26(c), the Court grants the parties’ joint
request and hereby enters the following Protective Order:
1. Scope. All documents and materials produced in the course of discovery of this
case, including initial disclosures, responses to discovery requests, all deposition testimony and
exhibits, and information derived directly therefrom (hereinafter, collectively, “documents”), are
subject to this Order concerning Confidential Information as set forth below.
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 are restricted by statute or could potentially
cause harm to the interests of the disclosing party or nonparties. Information or documents that
are available to the public, including but not limited to recorded oil and gas leases, may not be
designated as Confidential Information.
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 - SUBJECT TO PROTECTIVE
ORDER” (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,
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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,
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
valid claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is
asserted within 30 days after discovery of the inadvertent failure.
5. Depositions. Deposition testimony will be deemed Confidential only if
designated as such on the record when the when the deposition is taken or within 30 days 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. Exhibits that a producing party designated as
Confidential in discovery will retain that designation.
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 legal proceeding brought by one
of the parties to this litigation. For the purpose of this subsection, “party”
shall mean any named plaintiffs and defendants and does not include any
putative or unnamed class members.
(b) Who May View Designated Confidential Information. Except with the
prior written consent of the designating party or the prior order of the
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Court, designated Confidential Information may only be disclosed to the
following persons:
1) The parties to this litigation, including any employees, agents, and
representatives of the parties;
2) Counsel for the parties and employees and agents of counsel;
3) The Court, court staff, including any special master appointed by
the Court, witnesses, and the jury in any trial or hearing in case;
4) Court reporters or other official personnel reasonably required for
the preparation of transcripts of testimony;
5) Any mediator appointed by the Court or jointly selected by the
parties;
6) Any expert witness, outside consultant, or investigator retained in
connection with this litigation, but only after such persons have
completed the certification contained in Attachment A,
Acknowledgment and Agreement to be Bound;
7) Fact witnesses in this case, provided that the particular witness has
a need for such disclosure in order to respond to questions in a
deposition or at trial in this case, and only after such persons have
completed the certification contained in Attachment A. However,
nothing in this Order shall require a fact witness to execute a
certification with respect to documents/materials generated by that
individual or where the individual had contemporaneous personal
involvement in the completion of such material;
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8) Any 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
discovery, or other litigation services retained or employed
specifically in connection with this litigation; and
10) Other persons only upon consent of the producing party and on
such conditions as the parties may agree.
(c) Control of Documents. The parties must take reasonable efforts to
prevent unauthorized or inadvertent disclosure of documents designated as
containing Confidential Information pursuant to the terms of this Order.
Counsel for the parties must maintain a record of those persons, including
employees of counsel, who have reviewed or been given access to the
documents, along with the originals of the forms signed by those persons
acknowledging their obligations under this Order.
7. Highly Confidential Information. If specific confidential documents contain
highly sensitive trade secrets or other highly sensitive competitive or confidential information,
and the disclosure of those particular documents to another party or non-party would create a
heightened risk of harm to the competitive, commercial, financial, or business position of the
producing party, the parties may stipulate or move for the production of such specific documents
under a Highly Confidential - Attorneys’ Eyes Only designation (or other appropriate
confidentiality protections) that limits disclosure of such documents or information only to
counsel for the parties; the Court and its staff; experts, consultants, and vendors retained for this
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litigation; and other specifically designated individuals whose assistance is reasonably necessary
to the conduct of the litigation who agree to be bound by the terms of the Order.
8. Filing of Confidential Information. If a party seeks to file any document
containing Confidential Information subject to protection under this Order, that party must take
appropriate action to ensure that the document receives proper protection from public disclosure,
such as: (a) filing a redacted document with the consent of the party who designated the
document as Confidential ; or (b) seeking permission to file the document under seal by filing a
motion for leave to file under seal. Nothing in this Order will be construed as a prior directive to
allow any document to be filed under seal. The mere designation of information as confidential
pursuant to this Order is insufficient to satisfy the Court’s requirements for filing under seal in
light of the public’s qualified right of access to court dockets. See IDT Corp. v. eBay, 709 F.3d
1220, 1222 (8th Cir. 2013). The parties understand that the requested documents may be filed
under seal only with the permission of the Court after proper motion. If the motion is granted and
the requesting party permitted to file the requested documents under seal, only counsel of record
and unrepresented parties with CM/ECF filing privileges will have access to the sealed
documents. Pro hac vice attorneys must obtain sealed documents from local counsel.
9. Discovery Disputes; Challenges to a Confidential Designation. The
designation of any material or document as Confidential Information is subject to challenge by
any party. When a party elects to challenge a confidentiality designation, the challenging party
will notify the designating party of such challenge. The designating party will, within 7 days of
such notification meet and confer in good faith with the objecting party to resolve the objection
informally without judicial intervention. In the event the parties are unable to resolve the
challenge informally, pursuant to L.R. 37.1(B) the parties will schedule a telephone conference
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with the undersigned magistrate judge. If such good faith efforts are still unsuccessful in
resolving the dispute, the designating party will within 10 days of the telephone conference file a
motion that identifies the challenged material and sets forth in detail the basis for the designation.
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.
10. 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 anticipates that another party may present
Confidential Information at a hearing or trial must bring that issue to the attention of the Court
and the other parties without disclosing the Confidential Information. The Court may thereafter
make such orders as are necessary to govern the use of such documents or information at the
hearing or trial.
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. After the final termination of this
proceeding, including any appeals, a party may request the destruction or
return of all Confidential Information and all excerpts and extracts,
therefrom. After receiving such a request, the possessing party shall have
30 days in which to either return all such information (including copies
and electronic files) to the party that produced it or certify under oath that
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such materials have been destroyed. Regardless of whether the producing
party sends such notice, all Confidential Information shall remain subject
to the terms and protections of this Protective Order. Subject to the above-
referenced section, it is understood that counsel may retain their work
product, a copy of all court filings and official transcripts, exhibits, and a
complete set of their file provided that the party that retains the materials
designated as “Confidential” continues to treat them in the manner
provided herein.
12. Order Subject to Modification. This Order is subject to modification by the
Court on its own motion or on motion of any party or any other person with standing concerning
the subject matter. The Order must not, however, be modified until the parties have been given
notice and an opportunity to be heard on the proposed modification.
13. No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing in this Order will be construed or presented as a judicial determination that any
document or material designated as Confidential Information by counsel or the parties is entitled
to protection under Fed. R. Civ. P. 26(c) or otherwise until such time as the Court may rule on a
specific document or issue. Further, the parties, by entering into this Agreement, do not waive,
and specifically reserve, any and all objections to either the discovery of, or introduction at trial
of, that material and evidence which is the subject of this Order. Nothing in this Order may be
construed to be a waiver of any right or privilege of any person or entity, including but not
limited to the work-product doctrine and the attorney-client privilege.
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14. Persons Bound by Protective Order. This Order will take effect when entered
and is binding upon all counsel of record and their law firms, the parties, and persons made
subject to this Order by its terms
15. 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 their written agreement to be bound by the provisions of this Order.
16. Protections Extended to Third-Party’s Information. The parties agree to
extend the provisions of this Protective Order to Confidential Information produced in this case
by third parties, if timely requested by the third party.
17. 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 could 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,
promptly and in no event more than seven business days after determining the subpoena or order
could require the disclosure of such information. Such notification must include a copy of the
subpoena or court order.
The receiving party also must promptly 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 and 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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party bears the burden and the expense of seeking protection in that court of its Confidential
Information, and nothing in these provisions should be construed as authorizing or encouraging a
receiving party in this action to disobey a lawful directive from another court. The obligations set
forth in this paragraph remain in effect while the party has in its possession, custody, or control
Confidential Information designated by the other party to this case.
18. Disclosure of Confidential Information Covered by Attorney-Client Privilege
or Work Product. Whether inadvertent or otherwise, the disclosure or production of any
information or document that is subject to an objection on the basis of attorney-client privilege or
work-product protection, including, but not limited to, information or documents that may be
considered Confidential Information under the Protective Order, will not be deemed to waive a
party’s claim to its privileged or protected nature or estop that party or the privilege holder from
designating the information or document as attorney-client privileged or subject to the work
product doctrine at a later date. Any party receiving any such information or document must
immediately return or destroy all copies of the produced protected information upon independent
discovery of the inadvertent production or upon request of the producing party. The party
returning produced protected information may thereafter seek re-production of any such
documents pursuant to applicable law. Although the provisions of this section constitute an order
pursuant to Rule 502(d) and (e) of the Federal Rules of Evidence, and will be construed in a
manner consistent with the maximum protection provided by said rule, nothing in this Order is
intended or will be construed to limit a party’s right to conduct a review of documents, including
electronically-stored information, for relevance, responsiveness, or segregation of privileged or
protected information before production.
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19. Disputes. Should there be any dispute concerning the terms or application of this
Order, counsel for the parties shall attempt to resolve such dispute between themselves before
seeking Court intervention.
Dated: February 5, 2024
BARTON AND BURROWS, LLC
/s//Seth K. Jones
George A. Barton (Mo. Bar No. 26249)
Seth K. Johnes (KS Bar No. 26262)
Stacy A. Burrows (CO Bar No. 49199)
BARTON AND BURROWS, LLC
5201 Johnson Drive, Suite 110
Mission, Kansas 66205
Phone: (913) 563-6250
george@bartonburrows.com
seth@bartonburrows.com
stacy@bartonburrows.com
VOGEL LAW FIRM
Joshua A. Swanson (Bar ID #06788)
218 NP Avenue
P.O. Box 1389
Fargo, North Dakota 58107-1389
Phone: (701) 237-6983
jswanson@vogellaw.com
Attorneys for Plaintiff
Dated: February 5, 2024
CROWLEY FLECK PLLP
/s/Paul Forster
Paul J. Forster (Bar ID #07398)
Zachary R. Eiken (Bar ID #07832)
100 West Broadway Ave., Suite 250
P.O. Box 2798
Bismarck, North Dakota 58502-2798
Phone: (701) 223-6585
pforster@crowleyfleck.com
zeiken@crowleyfleck.com
Anna Rotman, P.C.
Kenneth A. Young
KIRKLAND & ELLIS LLP
609 Main Street
Houston, TX 77002
Telephone: (713) 836-3600
Facsimile: (713) 836-3601
anna.rotman@kirkland.com
kenneth.young@kirkland.com
Ragan Naresh, P.C.
Charles S. Nary
KIRKLAND & ELLIS LLP
1301 Pennsylvania Avenue N.W.
Washington, DC 20004
(202) 389-5000
(202) 389-5200 (fax)
ragan.naresh@kirkland.com
charles.nary@kirkland.com
Attorneys for Defendant
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IT IS SO ORDERED.
Dated this 22nd day of February, 2024.
__________________________________
Clare R. Hochhalter, Magistrate Judge
United States District court
/s/ Clare R. Hochhalter
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ATTACHMENT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the lead case captioned, Hystad Ceynar Minerals, LLC v. Whiting Oil and
Gas Corporation, Case No. 1:22-cv-00138, United States District Court for the District of North
Dakota, and attached hereto, understands the terms thereof, and agrees to be bound by its terms.
The undersigned submits to the jurisdiction of the United States District Court for the District of
North Dakota in matters relating to this Protective Order and understands that the terms of the
Protective Order obligate him/her to use materials designated as Confidential Information in
accordance with the order solely for the purposes of the above-captioned action, and not to
disclose any such Confidential Information to any other person, firm, or concern, except in
accordance with the provisions of the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name: ______________________________________
Job Title: ______________________________________
Employer: ______________________________________
Business Address: ______________________________________
______________________________________
Date: _____________ ______________________________________
Signature
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