Weslease 2018 Operating LP v. Behan et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:19-cv-00157-DLH-CRH Document 51 Filed 01/08/21 Page 1of13

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA

WESLEASE 2018 OPERATING LP;
Plaintiffs,
Vv.

DALE BEHAN, LINDALE PIPELINE LLC,
and BULL MOOSE PIPELINE LLC,

Case No. 1:19-cv-157

Defendants.

me Nee ee ee ee ee

AGREED PROTECTIVE ORDER

NOW on this It. day of December, 2020, the Court, noting that Plaintiff, Weslease 2018
Operating LP (“Plaintiff”), and non-party Continental Resources, Inc. (“CLR”), have agreed to the
provisions of this Agreed Protective Order in this action, the Court, upon a showing of good cause
under F.R.Civ.P. 26(c), hereby enters this Agreed Protective and orders as follows:

IT IS HEREBY ORDERED THAT:

Plaintiff acknowledges and agrees certain information, documents, communications,
electronically stored information, and tangible items of Plaintiff, and third parties subject to
discovery in this action, may constitute confidential information. Further, the disclosure of
information held by Plaintiff or by third parties may be subject to other agreements, laws,
regulations, and/or treatises. Plaintiff agrees 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. Plaintiff and CLR jointly request entry

of this proposed Agreed Protective Order to limit the disclosure, dissemination, and use of certain

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identified categories of confidential information.

Plaintiff and CLR assert in support of their request that protection of the identified
categories of confidential information is necessary because certain documents contain confidential,
proprietary, trade secret, commercially sensitive business information, non-public personal
information, and information that, if disclosed, would cause injury to Plaintiff or CLR’s businesses
and/or business relationships. A protective order will facilitate production of discovery materials
and information, promote the prompt resolution of disputes over confidentiality, adequately protect
material entitled to be kept confidential, and ensure protection is afforded only to material so
entitled.

1. Scope — Documents Produced by CLR. The terms and conditions of this Agreed
Protective Order (also referenced as “Order”) shall be applicable to and shall govern all
information, documents, and electronically stored information produced by CLR regardless of
medium or format, and all tangible things produced by CLR: (a) under the Federal Rules of Civil
Procedure; (b) in response to any discovery request in this action, including without limitation all
answers to interrogatories pursuant to F.R.Civ.P. 33, all responses to requests for production
pursuant to F.R.Civ.P. 34, all responses to requests for admissions pursuant toF.R.Civ.P. 36, all
deposition testimony, all responses to subpoenas, and all other discovery engaged in pursuant to
the Federal Rules of Civil Procedure; and (c) in connection with this action informally and/or
voluntarily or pursuant to a rule, order, or other requirement.

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 is restricted by statute or could potentially
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cause harm to the interests of the disclosing party or of nonparties. For purposes of this Order,
CLR will limit their designation of “Confidential Information” to information that (a) if disclosed,
would cause injury to the Party’s business or business relationships with others; (b) contains trade
secrets or other confidential and non-public research, development, and/or proprietary
information; (c) contains non-public personal information; or (d) contains other information for
which a good faith claim of the need for protection from disclosure can be made under the Federal
Rules of Civil Procedure or other applicable law.

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” (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, 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 Information, 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
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valid claim of confidentiality pursuant to this Order, so long as a claim of confidentiality is asserted
within fourteen (14) days after discovery of the inadvertent failure. Upon timely notification by
the producing party, the non-producing party will either return or destroy the original unmarked
material and will make a good faith effort to retrieve the unmarked material from unauthorized
recipients. The producing party will promptly produce the confidential information with the
marking.

5. Depositions. Deposition testimony by any representative, employee, manager,
agent, or designee of CLR will be deemed confidential only if designated as such when the
deposition is taken or within a reasonable time period 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.

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 future legal proceeding brought by any party to this litigation.

(b) | Who May View Designated Confidential Information. Except with the
prior written consent of the designating party or prior order of the Court, designated Confidential
Information may only be disclosed to the following persons:

(1) Plaintiff and the above-captioned Defendants in this litigation,

including any employees, agents, and representatives of the Plaintiff
whose assistance is required in preparing for trial and who need
access to such material to render such assistance;

(2) | Counsel for the Plaintiff and the above-captioned Defendants and

their legal assistants, secretaries, and support personnel who are

directly employed by counsel and who are assisting them in this

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action;

(3) | The Court and Court personnel, including any court-appointed
magistrate, special master, officer, agent, or receiver, and members
of the jury;

(4) | Court reporters, recorders, and videographers engaged for
depositions;

(5) Any mediator appointed by the Court or jointly selected by the
Plaintiff;

(6) Any expert witness, outside consultant, or investigator retained
specifically in connection with this litigation;

(7) _ Any potential, anticipated, or actual fact witness and his or her coun-
sel, but only to the extent such confidential documents or
information will assist the witness in recalling, relating, or
explaining facts or in testifying and only if these individuals are not
allowed to retain a copy of the disclosed document;

(8) | Theauthor 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 discov-
ery, or other litigation services retained or employed specifically in
connection with this litigation;

(10) Other persons only upon consent of the producing party and on such
conditions as the Plaintiff and CLR may agree;

(11) Parties to the case, if disclosure is required under the Federal Rules
of Civil Procedure or other applicable law governing discovery.

(c) | Control of Documents. Each person described in subparagraphs (6), (7)
,(10), and (11) of subparagraph (b) to whom Confidential Information is to be disclosed shall first
be provided with a copy of this Agreed Protective Order by the disclosing party and shall signify
his or her agreement to be bound by its terms by signing a copy of an Acknowledgement and

Agreement to be Bound by Agreed Protective Order, in a form attached hereto as Attachment “A,”

of which the original shall be retained by the attorneys for the disclosing party and produced to the
attorneys for the non-disclosing party upon request. Plaintiff must take reasonable efforts to
prevent unauthoriz�d or inadvertent disclosure of documents designated as_ containing Confidential
Information pursuant to the terms of this Order.
7. Filing of Confidential Information. In the event a party seeks to file any
document containing Confidential Information, subject to protection under this Order with the
Court, that party must: (a) seek a stipulation from the parties to this action that the Confidential
Information be filed under seal; (b) or, if the other parties will not agree to such a stipulation, notify
CLR and bring the issue to the attention of the Court and motion to allow the Confidential
Information to be filed under seal.
8. Challenges to a Confidential Designation. The designation of any material or
document as Confidential Information is subject to challenge by any party. Before filing any
motion or objection to a confidential designation, the objecting party must meet and confer in good
faith to resolve the objection informally without judicial intervention. A party that elects to
challenge a confidentiality designation may file and serve a motion that identifies the challenged
material and sets forth in detail the basis for the challenge. 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.
9. 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 that anticipates that another party may present
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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.

10. Use of Documents Not Obtained in Discovery. Nothing in this Order shall be
deemed to restrict in any way any party or its attorneys with respect to the use of that party’s own
documents or materials, from documents or materials obtained from parties other than CLR, or of
documents or materials obtained outside discovery or other than through court disclosures.

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. Within sixty (60) days after this
litigation concludes by settlement, final judgment, or final order, including all appeals, all
documents designated as containing Confidential Information, including copies as defined above,
must be returned to the party who previously produced the document unless: (1) the document has
been offered into evidence or filed without restriction as to disclosure; or (2) the Plaintiff agrees
to destruction of the document to the extent practicable in lieu of return, in which case the Plaintiff
will certify to the fact of destruction.. Counsel of record may retain one copy of any such
Confidential Information produced by the other party solely for purposes of complying with ethical
requirements or defending malpractice claims, and agrees not to use or disclose such Confidential

Information in any other matter.

(c) Retention of Work Product. Notwithstanding the above requirements to
return or destroy documents, counsel may retain attorney work product, including an index which
refers or relates to designated Confidential lnfonnation, so long as that work product doe.s not
duplicate verbatim substantial portions of the text or images of designated documents. This work
product will continue to be confidential under this Order. An attorney may use his or her own
work product in subsequent litigation provided that its use does not disclose Confidential
lnfonnation.
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 Plaintiff and CLR 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 Plaintiff and CLR and for the purpose of facilitating
discovery. Nothing in this Order will be construed or presented as a judicial detennination that
any document or material designated as Confidential Information by counsel, Plaintiff or CLR is
entitled to protection until such time as the Court may rule on a specific document or issue.
14. Persons Bound by Agreed Protective Order. This Order will take effect when
entered and is binding upon all counsel of record and their law finns, the Plaintiff, the above
captioned Defendants, and persons made subject to this Order by its tenns.
15. Jurisdiction. The Court's jurisdiction to enforce the provisions of this Order will
tenninate on the final disposition of this case. A party may, however, file a motion to seek leave
to reopen the case to enforce the provisions of this Order.
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16. 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 with the Court their written agreement to be bound by the provisions of this Order,
unless disclosure is required under the Federal Rules of Civil Procedure or other applicable law.
17. Protections Extended to Third-Party's Confidential Information. The Plaintiff
agrees to extend the provisions of this Agreed Protective Order to Confidential Information
produced in this case by third parties, if timely requested by the third party.
18. 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
would 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, immediately and
in no event more than three business days after receiving the subpoena or order. Such notification
must include a copy of the subpoena or court order.
The receiving party also must immediately 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. In addition, the receiving party must 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
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
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Dated this 8th day of January, 2021.
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Case 1:19-cv-00157-DLH-CRH Document 51_ Filed 01/08/21 Page 11 of 13

Approved as to form and content:

——

MCGEE Law FiRM ;
2400 East Burdick Expy. Ste. 100
PO Box 998

Minot, ND 58702-0998
Telephone: (701) 852-2544
egrant@mcgeelaw.com

Attorneys for Plaintiff Weslease 2018
Operating LP

G aD eo
Michael L. Forman (ND ID No. 06773)
Brown Pruitt Wambsganss Dean Forman &
Moore, P.C.

201 Main Street, Suite 801
Fort Worth, TX 76102
Telephone: (817) 338-4888
mforman@brownpruitt.com

Attorneys for Dale Behan, Lindale Pipeline
LLC and Bull Moose Pipeline LLC

(OBA #22294)
Oklahoma City, Oklahoma 73126
Telephone: (405) 774-5948
Jenn.Kaise com

Attorney for Continental Resources, Inc.

1]

Case 1:19-cv-00157-DLH-CRH Document 51 Filed 01/08/21 Page 12 of 13

Approved as to form and content:

Haba —

Erich M. Grant (ND ID No. 07593)
McGEE Law FIRM

2400 East Burdick Expy. Ste. 100
PO Box 998

Minot, ND 58702-0998

Telephone: (701) 852-2544
egrant@mcgeelaw.com

Attorneys for Plaintiff Weslease 2018
Operating LP

r~ > _
Michael L. Forman (ND ID No. 06773)
Brown Pmitt Wambsganss Dean Forman &
Moore, P.C.

201 Main Street, Suite 801

Fort Worth, TX 76102

Telephone: (817) 338-4888

mforman@pbrownpruitt.com
Attorneys for Dale Behan, Lindale Pipeline

LLC and Bull Moose Pipeline LLC
er (OBA #22294)
POBox 269000

Oklahoma City, Oklahoma 73126
Telephone: (405) 774-5948
Jenn.Kaiser@clr.com

Attorney for Continental Resources, Inc.

Case 1:19-cv-00157-DLH-CRH Document 51 Filed 01/08/21 Page 13 of 13

ATTACHMENT A

ACKNOWLEDGMENT
AND
AGREEMENT TO BE BOUND BY AGREED PROTECTIVE ORDER

The undersigned hereby acknowledges that he/she has read the Agreed Protective Order
dated in the case captioned, Weslease 2018 Operating, LP v. 640water, LLC

and Keith Morlock, Case No. CJ-2019-73, District of North Dakota, Case No. 1:19-cv-0153, and
attached hereto, understands the terms thereof, and agrees to be bound by its terms. The
undersigned submits to the jurisdiction of the Federal District of North Dakota in matters relating
to this Agreed Protective Order and understands that the terms of the Agreed 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 Agreed Protective Order.

The undersigned acknowledges that violation of the Agreed Protective Order may result in
penalties for contempt of court or actual damages resulting from any such violation.

Name:

Job Title:

Employer:

Business Address:

Signature