Dakota Gasification Company v. Sure Steel, Inc.

OCR transcription for search; preserved printed pages are authoritative

Case 1:18-cv-00226-PDW-CRH Document 18 Filed 12/19/18 Page 1 of 8

United States District Court
District of North Dakota
Western Division

Dakota Gasification Company,
No. 1:18-cv-00226-DLH-CSM
Plaintiffs,
STIPULATED CONFIDENTIALITY
v. AGREEMENT AND PROTECTIVE
ORDER
Sure Steel, Inc.,
Defendant.

Following the Parties’ stipulation, it is hereby ORDERED that the following
restrictions shall apply to confidential information and documents produced for
inspection and copying in this case:

1. Purpose. The purpose of this Protective Order is to protect against the
unnecessary disclosure to third parties of information and documents that the
Parties maintain are confidential and proprietary.

2. “Confidential Material” Defined. This Protective Order shall apply to all
information, documents, electronically-stored information, written discovery responses,
and testimony that contain trade secrets, confidential research or development, or
proprietary or commercially-sensitive information including, but not limited to, design,
manufacturing, operations, supplier, customer, distributor, sales, or other non-public
financial or proprietary information (collectively “Confidential Material’).

3. Designating Documents or Information as Confidential Material. Each

Party shall have the right to designate documents and information in the above-

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 1:18-cv-00226-PDW-CRH Document 18 Filed 12/19/18 Page 2 of 8

captioned lawsuit as Confidential Material. Documents, material, and information shall
be designated as Confidential Material in the following manner:

a. | As to documents, by placing or affixing on each page the word:
“CONFIDENTIAL.” Any page or item bearing such notice, and the information
contained on such pages or items, shall be treated as Confidential Material.

b. Deposition testimony may be designated as Confidential Material under
this Order by placing a notice on the transcript pages pursuant to Paragraph 3(a) or by
making a statement as to the confidential nature of the testimony on the record. All
confidential designations for deposition transcripts must be made within thirty (30)
days after receipt of the transcript. For any transcripts received prior to the date of entry
of this Order, confidential designations may be made within thirty (30) days of this
Order.

Cc. All deposition testimony relating to documents identified as
“Confidential” shall be treated as confidential under the terms of this Protective Order.
This testimony does not require separate designation under Paragraph 3(b).

f, Challenges to Designations. Any Party may challenge the designation of
any document or information as Confidential Material by providing written or email
notice to the producing party. If the Parties cannot reach an agreement and the
producing party wishes to maintain the confidential designation, it must, within
fourteen (14) days after receipt of such notice, move the Court for a determination as

to the applicability of the designation. All materials and information designated

Case 1:18-cv-00226-PDW-CRH Document 18 Filed 12/19/18 Page 3 of 8

Confidential shall remain confidential and subject to the terms of this Protective Order
until the Court rules that the information or materials are not confidential.

5. Permissible Access to Confidential Material. Confidential Material shall
be used solely for purposes of this litigation and not be used for any business,
competitive, personal, private, public, or other purpose, except as required by law.
Confidential Material shall not be used in any other litigation. Confidential Material

may be shared with the following:

a. The Parties, including the directors, officers, employees, or employees of
the Parties;
b. The Parties’ attorneys and clerks, paralegals, secretaries, and other

support staff who perform work for the Parties’ attorneys for purposes of this case;

C. The Parties’ insurers, third-party administrators, or other agents of the
insurance companies responsible for handling insurance claims related to this lawsuit;

d. Any deponent, witness, or potential witness, provided that any
disclosure to such person is directly related to that person’s testimony or is warranted
for the investigation of this case and that such person is advised of the terms of this
Confidentiality Order and is not permitted to retain copies of the Confidential Material;

e, Any consulting or testifying expert and his or her employees retained by
any of the Parties or their Counsel to whom disclosure is necessary and solely for the
purpose of the investigation into, and potential prosecution or defense of, claims in this

litigation;

Case 1:18-cv-00226-PDW-CRH Document 18 Filed 12/19/18 Page 4 of 8

f. Courts, court reporters, court officials, court or Party-approved mediators,
and a jury, if any, involved in the prosecution, defense or resolution of claims in this
litigation, except that Confidential Material shall be redacted on all public Court filings
and, if the Confidential Material cannot be redacted, the filing Party must request from
the Court that the Confidential Material be filed under seal; and

g. Focus group participants and jury consultants, provided that such persons
are advised of the terms of this Confidentiality Order and are not permitted to retain
copies of the Confidential Material.

Before disclosure of any Confidential Material is made to any individual
pursuant to Paragraph 5(d), (e) or (g) of this Order, such individual shall execute the
Certification attached hereto as Exhibit A. This written agreement to be bound shall be
deemed work product and the Party that obtains the agreement shall retain it for the
duration of this case.

6. Productions by Non-Parties. Non-parties producing documents in the
course of the above-captioned litigation may also designate documents and information
as “Confidential” subject to the same protections and constraints as the Parties. In
addition, all documents produced by non-parties to this litigation shall be treated as
“Confidential” for a period of 14 days from the date of their production and, during
that period, any Party may designate such documents as “Confidential” pursuant to the
terms of this Order.

7. Use of Confidential Material in Litigation. Any Party seeking to use

Confidential Material in a motion or other filing with the Court in this litigation shall

Case 1:18-cv-00226-PDW-CRH Document 18 Filed 12/19/18 Page 5 of 8

have the burden of filing such Confidential Material under seal, including the
obligation to file an appropriate motion to seal such Confidential Material. The Parties
may seek further protection against public disclosure of Confidential Material prior to
disclosure at trial or a hearing in this case.

8. Inadvertent Failure to Designate. If a Producing Party inadvertently
produces Confidential Material without marking it “Confidential,” the Party may
promptly give written notice that the material is Confidential Material and it shall
thereafter be treated as Confidential. No Party shall be deemed to have violated this
Order if, before receiving notification of the Confidential designation, such material
has been disclosed or used in a manner inconsistent with the Confidential
designation.

9. Return or Destruction of Confidential Material. At the conclusion of
this litigation, including any appeal thereof, all Confidential Material, other than
exhibits of record, shall be returned to the producing Party or, at the producing Party’s
option, be destroyed within sixty (60) days. Counsel for all Parties receiving
Confidential Material shall provide written certification of compliance with this
paragraph on behalf of the Party, the Party’s consultants and experts, and the Party’s
counsel, and shall deliver same to the producing Party within sixty (60) days after final
resolution, including any appeal thereof.

10. Subpoenas and Orders by Other Courts or Agencies. If another court or
an administrative agency subpoenas or orders production of Confidential Material that

a Party obtained under the terms of this Order, the Party shall promptly notify counsel

"24C7!C342 =(.$C4<CA'7'.C"'?!C C B5C2"C!'.$C5!4?! CA'7C7!C5=32!.C24C24 !4C
42 =92.C2"C2."' !.9+C6!4'+C(.C4!532.5!C62CC5=32!.C24C24 !4C5&++C.26C2=4C
=.9+C7!C9-!C++2A! C"24C2)!92.5C&5C!+35! C
26&(.$C'.C7'5C4 !4
5&++C+'-'6C.BC 	!5'$.9.$C4<5C=5!C2"C '65C2A.C 	2=-!.65C 24C 5&++C 34!?!.6C.BC
!5'$.9.$C46BC"42-C '5+25'.$C';C2A.C2/#' !.9+C6!4'+C62C.BC3!452.C
&'5C4 !4C 	2!5C.26C2.56'6>6!C C 	!6!4-(.92.
2"C7!C2."' !.6'+'6BC -'55''+'<C 24C !?' !.94BC"2=. 6'2.C "24C 7!C 	2=-!.65C 24C
C A'?!4C 2"C .BC46B5C2)!92.5C7!4!62C
.BC4<C-BC33+BC62C7!C2=46C"24CC-2 '"'6'2.C2"C7'5
4 !4C. C.27'.$C'.C7!C4 !4C5&++C!C2.564=! C62C34!?!.6CC4<C"42-C5!!'.$C
5=&C"=47!4C342?'5'2.5C!/&.'.$C24C+'-':1$C20"' !.6'+'6BC5C-BC!C334234'6!C
&!C6!4-5C2"C7'5C4 !4C5&++C.26C6!4-'.6!C6C7!C2.+=5'2.C2"
7'5C,'9$6'2.C. C7!C2+'$92.5C. C4!564'92.5C4!$4 '.$C7!C20"' !.9+'<C2"C7!C
-6!4'+C !5'%.6! C&!4!=. !4C5&++C5=4@'?!C6!4-'.92.C2"C8'5C6'2.C
CC
6!C 	   C
&4+!5CC'++!4C4C
/'6! C66!5C$'5646!C= $!C
'564'6C2"C247C26C

Case 1:18-cv-00226-PDW-CRH Document 18 Filed 12/19/18 Page 6 of 8

)* &+#*N%N(N
-C10N 1/1:.1AN N 	N

)/>CDNN!>4<B><N%N-AN  N
(>.5<BN"-?9-<N##&N
N#-)-991NNI1<G1N)G5C1N 	N
$5=<1-?>95BN$%N N
*191?4><1N  	N
-/B5;591N   N
:-59NB7>4<B><A>.5<B8-@9-</>:N
*5:>ELN'N&GA0><N%N-AN N
(>.5<BN"-?9-<N##&N
N,1BCN5I501NI1<G1N)G5C1N 	N
5B:-A/8N%N N
*191?4><1N 	 	N
-/B5:591N   N
:-59NFHA0><A>.5<B8-@9-</>:N
A5/-NN(-:B1LN
(>.5<BN"-?9-<N##&N
N%>AEN&45995?BNI1<G1N)G5C1N N
)5>GKN-99BN)N 	N
*191?4><1N   	N
-/B5:591N   N
:-59N1A-:B1MA>.6<B8-@9-< />;N



-C10N 1/1:.1AN N 	N

*A>LNN,>92N%N-AN N
*L91AN)N-A9B><N%N-AN N
5B41ANA1<NN)41A50-<N##&N
N<0NI1<G1N)>GEN)G5C1N N
-A3>N%N 	N
*191?4><1N 	 N
-/B5:591N 	 N
DJ>9225B41A.A1< />;N
D/-A9B><25B41A.A1< />;N

Case 1:18-cv-00226-PDW-CRH Document 18 Filed 12/19/18 Page 7 of 8


ϴ

Dakota Gasification Company,
Plaintiffs,
v.
Sure Steel, Inc.,
Defendant.
No. 1:18-cv-00226-DLH-CSM
CERTIFICATION OF ACKNOWLEDGEMENT AND CONSENT
I hereby certify that: (1) I have read the Stipulated Confidentiality Agreement
and Protective Order (the “Order”) that has been entered by the Court in this case and
understand its terms; (2) I understand that information and documents designated as
Confidential Material under the Order are being provided to me pursuant to the terms
of the Order; (3) I agree to be bound by the terms of this Order, including its provisions
limiting the use of such Confidential Material to this litigation and the requirement that
all Confidential Material be returned or destroyed within sixty (60) days after final
resolution of this litigation, including any appeal thereof; and (4) I hereby submit to the
jurisdiction of the above-referenced Court for purpose of enforcement of this Order.
Dated: _____________________ 	Signature: ________________________________
United States District Court
District of North Dakota
Western Division
Case 1:18-cv-00226-PDW-CRH Document 18 Filed 12/19/18 Page 8 of 8