MBI Oil and Gas, LLC v. Royalty Interests Partnership, LP et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
MBI OIL AND GAS, LLC,
Plaintiff/Counter-Defendant,
vs.
ROYALTY INTEREST PARTNERSHIP, LP
AND OVINTIV USA INC.,
Defendants/Counter-Plaintiffs.
Case No. 1:22-CV-00187
CONFIDENTIALITY AND PROTECTIVE ORDER
Before the court is the joint motion of the parties for the entry of a confidentiality
and protective order (“Protective Order”). Based on the parties’ submissions and the
record in this matter, the court finds that disclosure and discovery activity in this action
are likely to involve production of confidential, sensitive, or private information for
which special protection from public disclosure and from use for any purpose other than
prosecuting this litigation would be warranted. Accordingly, a protective order for such
information is justified in this matter:
 	to expedite the flow of information;
 	to facilitate the prompt resolution of disputes over confidentiality of discovery
materials;
 	to adequately protect information the parties are entitled to keep confidential;
 	to ensure that the parties are permitted reasonably necessary uses of such material
in preparation for and in the conduct of trial;
 	to address the handling of confidential materials at the end of the litigation; and
 	to serve the ends of justice.
This Protective Order does not confer blanket protections on all disclosures of
responses to discovery, and the protection it affords extends only to the limited
information or items that are entitled under the applicable legal principles to be treated
as confidential.
After careful consideration, it is ORDERED that the motion is granted, and the
court ORDERS the following:
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1. 	Confidential Information
“Confidential information” means any information of any type, kind, or character
that is designated as “Confidential” by any of the supplying or receiving persons, whether
it be a document, information contained in a document, information revealed during
discovery, or otherwise.
2. Qualified Persons
“Qualified Persons” means:
a. 	the party, if a natural person;
b. 	if the party is an entity, such officers or employees of the party who are
actively involved in the prosecution or defense of this case who, by their
receipt of Confidential information, are bound by the terms of this
Protective Order;
c. 	retained counsel for the parties in this litigation and their respective staff;
d. 	this court and its staff and any other tribunal, special master, or dispute
resolution officer duly appointed or assigned in connection with this
litigation;
e. 	actual 	or 	potential 	independent 	experts 	or 	consultants 	(and 	their
administrative or clerical staff) engaged in connection with this litigation
(which shall not include the current employees, officers, members, or agents
of parties or affiliates of parties) who, by their receipt of Confidential
information are bound by the terms of this Protective Order;
f. 	jury and trial consultants and their staff and mock jurors who, by their
receipt of Confidential information are bound by the terms of this Protective
Order;
g. 	litigation vendors, court reporters, video camera operators, translators, and
other litigation support personnel;
h. 	any person who was an author, addressee, or intended or authorized
recipient of the Confidential information and who agrees to keep the
information confidential, provided that such persons may see and use the
Confidential information but not retain a copy; and
i. 	such other person or persons as this court may designate after notice and
an opportunity to be heard.
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3. Designation Criteria
a. 	A party shall designate as “Confidential” only such information that the
party in good faith believes in fact is confidential. Information that is
generally 	available 	to 	the 	public, 	such 	as 	public 	filings, 	catalogues,
advertising materials, and the like, shall not be designated as Confidential.
Information 	and 	documents 	that 	may 	be 	designated 	as 	Confidential
information include, but are not limited to, trade secrets, confidential or
proprietary financial information, operational data, business plans, and
competitive analyses, personnel files, personal information that is protected
by law, and other sensitive information that, if not restricted as set forth in
this order, may subject the producing or disclosing person to competitive or
financial injury or potential legal liability to third parties.
Correspondence and other communications between the parties or with
nonparties 	may 	be 	designated 	as 	Confidential 	information 	if 	the
communication 	was 	made 	with 	the 	understanding 	or 	reasonable
expectation that the information would not become generally available to
the public.
b. 	Confidential information shall not include information that either:
i. 	is in the public domain at the time of disclosure, as evidenced by a
written document;
ii. 	becomes part of the public domain through no fault of the recipient,
as evidenced by a written document;
iii. 	the 	receiving 	party 	is 	entitled 	to 	receive 	independent 	of 	this
litigation;
iv. 	the receiving party can show by written document was in its rightful
and lawful possession at the time of disclosure; or
v. 	lawfully comes into the recipient’s possession subsequent to the time
of 	disclosure 	from 	another 	source 	without 	restriction 	as 	to
disclosure, provided such third party has the right to make the
disclosure to the receiving party.
4. Use of Confidential Information
All Confidential information provided by any party or nonparty in the course of
this litigation shall be used solely for the purpose of preparation, trial, and appeal of this
litigation and for no other purpose, and shall not be disclosed except in accordance with
the terms of this Order.
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5. Marking of Documents
Documents provided in this litigation may be designated by the producing person
or by any party as Confidential information by marking each page of the documents so
designated 	with 	a 	stamp 	indicating 	that 	the 	information 	is 	“Confidential.” 	The
designation should be made in a fashion or form that is conspicuous yet allows the
Confidential information to remain legible. In lieu of marking the original of a document,
if the original is not provided, the designating party may mark the copies that are
provided. Originals shall be preserved for inspection.
6. Disclosure at Depositions
Information disclosed at (a) the deposition of a party or one of its present or former
officers, directors, employees, agents, consultants, representatives, or independent
experts retained by counsel for the purpose of this litigation, or (b) the deposition of a
nonparty may be designated by any party as Confidential information by indicating on
the record at the deposition that the testimony is “Confidential.”
Any party also may designate information disclosed at a deposition as Confidential
information by notifying all parties in writing not later than 30 days of receipt of the
transcript of the specific pages and lines of the transcript that should be treated as
Confidential information. All deposition transcripts shall be treated as Confidential
information for a period of 30 days after initial receipt of the transcript.
To the extent possible, the court reporter shall segregate into separate transcripts
information designated as Confidential information with blank, consecutively numbered
pages being provided in a non-designated main transcript. The separate transcript
containing Confidential information shall have page numbers that correspond to the
blank pages in the main transcript.
Counsel for a party or a nonparty witness shall have the right to exclude from
depositions any person who is not authorized to receive Confidential information
pursuant to this Protective Order, but such right of exclusion shall be applicable only
during periods of examination or testimony during which Confidential information is
being used or discussed.
7. Disclosure to Qualified Persons
Confidential information shall not be disclosed or made available by the receiving
party to persons other than Qualified Persons except as necessary to comply with
applicable law or the valid order of a court of competent jurisdiction. But if a disclosure
is compelled by law or court order, the receiving party will notify the producing party as
promptly as practicable (if at all possible, before making such disclosure). The receiving
party shall seek a protective order or confidential treatment of such information or
cooperate with the producing party to protect the information.
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8. Unintentional Disclosures
Documents 	unintentionally 	produced 	without 	designation 	as 	Confidential
information later may be designated and shall be treated as Confidential information
from the date written notice of the designation is provided to the receiving party.
If 	a 	receiving 	party 	learns 	of 	any 	unauthorized 	disclosure 	of 	Confidential
information, the party shall immediately upon learning of such disclosure inform the
producing party of all pertinent facts relating to such disclosure and shall make all
reasonable efforts to prevent disclosure by each unauthorized person who received such
information.
9. Documents Produced for Inspection Prior to Designation
In the event documents are produced for inspection prior to designation, the
documents shall be treated as Confidential information during inspection. At the time of
copying for the receiving parties, Confidential information shall be marked prominently
“Confidential” by the producing party.
10. 	Consent to Disclosure and Use in Examination
Nothing in this order shall prevent disclosure beyond the terms of this order if each
party designating the information as Confidential information consents to such disclosure
or if the court, after notice to all affected parties and nonparties, orders such disclosure.
Nor shall anything in this order prevent any counsel of record from utilizing Confidential
information in the examination or cross-examination of any person who is indicated on
the document as being an author, source, or recipient of the Confidential information,
irrespective of which party produced such information.
11. Challenging the Designation of Confidential Information
A party shall not be obligated to challenge the propriety of a designation
Confidential information at the time such designation is made, and a failure to do so shall
not preclude a subsequent challenge to the designation. In the event that any party to this
litigation disagrees at any stage of these proceedings with the designation of any
information as Confidential information, the parties shall first try to resolve the dispute
in good faith on an informal basis, such as by production of redacted copies. If the dispute
cannot be resolved, the objecting party may invoke this Protective Order by objecting in
writing to the party who designated the document or information as Confidential
information. The designating party shall then have 14 days to move the court for an order
preserving the designated status of the disputed information. The disputed information
shall remain Confidential information unless the court orders otherwise. Failure to move
for an order shall constitute a termination of the status of such item as Confidential
information.
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12. Challenging Release of Confidential Information to Qualified Persons
In the event that any party in good faith believes that a particular Qualified Person
or the disclosure of particular Confidential information to such person should be
precluded, the objecting party shall give written notice to the opposing party and the
parties shall first try to resolve the dispute in good faith on an informal basis. If the dispute
cannot be resolved, the objecting party shall have 21 days from the date of the written
notice to move the court for an order denying the disputed person (a) status as a Qualified
Person, or (b) access to particular Confidential information. The objecting party shall
demonstrate that disclosure to the disputed person would expose the objecting party to a
substantial risk of harm. Upon the timely filing of such a motion, no disclosure of
Confidential information shall be made to the disputed person unless the court enters an
order preserving the designation.
13. Manner of Use in Proceedings
In the event a party wishes to use any Confidential information in affidavits,
declarations, briefs, memoranda of law, or other papers filed in this litigation, the party
shall do one of the following: (1) with the consent of the producing party, file only a
redacted copy of the information; (2) where appropriate (e.g., in connection with
discovery and evidentiary motions) provide the information solely for in camera review;
or (3) file such information under seal with the court consistent with the sealing
requirements of the court.
Nothing in this Order shall limit the parties’ rights or ability to offer evidence at a
hearing or trial. The manner of using any Confidential information at a hearing or trial
and the status of Confidential information resulting from any such use will be determined
by the court.
14. Return of Documents
Not later than 120 days after conclusion of this litigation and any appeal related
to it, any Confidential information, all reproductions of such information, and any notes,
summaries, or descriptions of such information in the possession of any of the persons
specified in paragraph 2 shall be returned to the producing party or destroyed, except as
this court may otherwise order or to the extent such information has been used as
evidence at any trial or hearing. Notwithstanding this obligation to return or destroy
information, counsel may retain attorney work product, including document indices, so
long as that work product does not duplicate verbatim substantial portions of the text of
any Confidential information.
15. Ongoing Obligations
Insofar as the provisions of this Protective Order, or any other protective orders
entered in this litigation, restrict the communication and use of the information protected
by it, such provisions shall continue to be binding after the conclusion of this litigation,
except that (a) there shall be no restriction on documents that are used as exhibits in open
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court unless such exhibits were filed under seal, and (b) a party may seek the written
permission of the producing party or order of the court with respect to dissolution or
modification of this, or any other, protective order.
16. Duty to Ensure Compliance
Any party providing Confidential information to a Qualified Person shall have the
duty to reasonably ensure that such person observes the terms of this Protective Order
and shall be responsible upon breach of such duty for the failure of such person to observe
the terms of this Protective Order.
17. Waiver
Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor
work-product protection is waived by disclosure connected with this litigation.
18. Modification and Exceptions
The parties may, by stipulation, provide for exceptions to this order and any party
may seek an order of this court modifying this Protective Order.
It is SO ORDERED this 	day of 	, 2022.
UNITED STATES MAGISTRATE JUDGE
19th December
/s/ Clare R. Hochhalter
CLARE R. HOCHHALTER
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