Spirit Lake Tribe et al v. Jaeger

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Spirit Lake Tribe, on its own behalf and 	)
on behalf of its members, 	)
Standing Rock Sioux Tribe, on its own 	) 	PROTECTIVE ORDER
behalf and on behalf of its members, 	)
Dion Jackson, Kara Longie, Kim Twinn, 	)
Terry Yellow Fat, Leslie Peltier, and 	)
Clark Peltier, 	) 	Case No. 1:18-cv-222
)
Plaintiffs, 	)
)
vs. 	)
)
Alvin Jaeger, in his official capacity as the 	)
Secretary of State, 	)
)
Defendant. 	)
On January 24, 2020, defendant filed an Assented Motion for Protective Order, a supporting
memorandum, and a Stipulation for Protective Order.
The court GRANTS the motion (Doc. No. 72), ADOPTS the stipulation (Doc. No. 73-1, and
ORDERS:
(1) 	Any and all documents and records, including but not limited to the following: voter
records and any proprietary information, or other sensitive, private or confidential
information and records, and the like, may be produced by the parties in this action
to the extent permitted by law pursuant to discovery requests or otherwise, and may
be designated by any party as Confidential pursuant to Paragraph (2), in which case
those documents and records shall be deemed Confidential under this Protective
Order and subject to its requirements and protections. If any party believes that
applicable law prevents disclosure of voter information or records, the party may
seek a Court order on the discoverability of the information or records. If the Court
orders disclosure, the Court may order the disclosure to be pursuant to the terms of
this Protective Order.
(2) 	Basis For Designation Of Material As Confidential.
A Party may designate documents, records, and materials (collectively “documents”)
as “Confidential” based upon a good faith belief that the documents:
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(a) 	constitute private, sensitive, protected, exempt or confidential information as
set forth by state, federal, local or other law, rule, ordinance, policy, or
regulation;
(b) 	are subject to confidential settlement agreements and/or negotiations, or are
treated as proprietary or as a trade secret;
(c) 	fall under any of the categories of confidential and private records as set forth
above at Paragraph 1; and/or
(d) 	are 	otherwise 	sensitive, 	confidential 	or 	private 	and 	not ordinarily
disseminated to or shared with any third party. The Parties will act in good
faith in designating any material as “Confidential”.
(3) 	Procedures For Designating Confidential Material.
Documents. Written notice of confidentiality to the receiving Party or marking a
document as “Confidential” shall suffice to designate documents produced by a Party
as Confidential.
Interrogatory Answers, Responses To Document Requests, And Responses To
Requests For Admissions. Specific Interrogatory answers, responses to document
requests and responses to requests for admissions may be designated by the
responding Party as Confidential by identifying the specific answer or response with
“Confidential” or by written notice of confidentiality to the receiving Party.
Deposition Testimony. A Party may designate portions of deposition testimony as
Confidential by noting same on the record during the deposition or by giving written
notice to the other Party after receipt of the deposition transcript.
Copies of Confidential. All copies of any document which is designated as
“Confidential” shall be treated as confidential and subject to the terms of this
Agreement.
(4) 	Confidential documents, and copies thereof, and any information contained therein
or derived therefrom, shall be made available only to the following persons when
needed by them in the conduct of this action:
(a) 	The parties to this action and/or their insurers and, in the case of sovereign
parties, only to their officials to the extent they are assisting counsel in the
conduct of this litigation.
(b) 	Attorneys of record in this action and their partners or associate attorneys.
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(c) 	Any persons regularly employed by such attorneys or their firms, when
working in connection with this action under the direct supervision of
partners or associate attorneys of said firm.
(d) 	Any independent expert, consultant, or similar person who has been
consulted for the purpose of being retained, or who has been retained by
counsel to provide assistance, expert advice, technical consultation, or
testimony in this action, and the employees of such experts, consultants, or
similar persons when working in connection with this action under the direct
supervision of said persons.
(e) 	Any witness whose testimony or assistance is required for a claim or defense.
(f) 	The Court and its staff.
(5) 	Confidential documents shall be securely maintained and kept confidential, not
disseminated to third persons, and will be used solely in connection with the
preparation and trial of this lawsuit, and for no other purpose.
(6) 	Counsel for the parties agree that before showing or divulging the contents of any
Confidential document to anyone entitled to see or hear it under paragraph (4)(d) &
(e) above, to first obtain a signed statement from that person, in the form of Exhibit
A, indicating that the person is familiar with the terms of the Protective Order and
promises to abide by its contents. A copy of the Protective Order shall be provided
and/or discussed with all persons to whom confidential materials and information is
disclosed, and those persons shall be subject to its terms by the act of signing
Exhibit A. These persons agree to jurisdiction in North Dakota over their person for
the purposes of any action seeking to enforce the terms and conditions of the
Protective Order or any action for contempt or claimed violation of its terms. For
purposes of monitoring compliance with and enforcing the Protective Order, counsel
for the parties shall maintain copies of all the signed statements from the persons to
whom confidential documents or information are disclosed.
(7) 	No copies of any such Confidential documents shall be made or furnished, and no
information contained therein shall be disclosed, to any person, firm, or corporation
except those identified in this Protective Order, without prior written consent of the
parties.
(8) 	In the event that any such Confidential documents are included with, or the contents
thereof are in any way disclosed by, any pleading, motion, deposition transcript, or
other paper filed with the Court, such materials shall be impounded and kept
confidential and under seal until further order of the Court.
(9) 	The information and materials covered by this Order may be used at trial, subject to
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this Order and subject to any further protective order which this Court might for
good cause then enter.
(10) 	All documents designated as Confidential under this Order and all copies thereof,
except for one copy to be maintained as confidential by each party’s counsel, shall
be destroyed at the conclusion of this litigation, and no other copies thereof shall be
retained, for any reason whatsoever, by any person, firm or corporation, including
attorneys, without the written consent of the parties.
(11) 	If a party to this action wishes to modify the Protective Order or its application to
certain documents or information, that party shall first request such modification
from the other party herein, and, if no satisfactory agreement is reached, that party
may petition the Court for modification. Until modification is granted by agreement
or order, the terms of the Protective Order will govern.
(12) 	A party may object to or challenge the designation of a document as Confidential by
giving written notice to all parties (including written notice to any nonparty that have
made the challenged designation). In challenging the designation of any document
as Confidential, the challenging party must identify in the written notice the
document or documents challenged and must provide the legal basis for said
challenge. Following such notice, the parties must first meet and confer in good faith
in order to attempt informal resolution of their differences over the challenged
designation. If they cannot agree on an informal resolution to the challenged
designation, they may present the issue to the Court. The party asserting that the
material is Confidential shall have the burden of proving that the information in
question is within the scope of protection afforded by this Protective Order.
Documents designated as Confidential which are subject to challenge shall maintain
their designation and protected status under the terms of this Protective Order until
such time as the Court rules on the challenge. The party seeking to maintain the
confidentiality of challenged documents shall have the burden of filing a motion with
the Court, within ten days of having met and conferred, seeking to preserve the
confidentiality designation. If no such motion is timely filed, the documents at issue
will cease being deemed Confidential.
(13) 	A party may elect to rescind or alter the designation of any document as Confidential
by providing written notice to all parties of record of such election.
Dated this 27th day of January, 2020.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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