Miller v. Equinor Energy LP

Neil Miller,
vs.
Equinor Energy LP,
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
)
)
Plaintiff, )
)
)
)
)
)
Defendant. )
Case No. I :21-cv-00176-DLH-CRH
STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER
IT APPEARING that certain information and documents subject to discovery in these
proceedings may contain secret, confidential, or proprietary information, the parties to the
captioned action, by and through their undersigned attorneys, HEREBY STIPULATE AND
AGREE as follows:
I. SCOPE AND IMPLEMENTATION OF THE PROTECTIVE ORDER
1. This Stipulated Confidentiality Agreement and Protective Order ("Protective
Order"), will govern the handling and dissemination of all Documents and Information (e.g.,
contained in documents produced pursuant to the Federal Rules of Civil Procedure, contained in
documents produced pursuant to a request for production of documents, provided in an answer to an
interrogatory or contained in a document produced in lieu thereof, produced in response to a subpoena
duces tecum, provided by way of testimony or affidavit, presented in any pleading or memorandum,
contained in responses to requests for admission, or produced with any correspondence) produced or
disclosed, formally or informally, in any manner during the course of the above-captioned action
("Action").
2. All Documents and Information produced or disclosed pursuant to this Protective
Order shall be used solely for the purpose of this litigation and only in the manner specified in this
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Protective Order, and not in connection with any other litigation or judicial proceeding or for any
business, commercial, competitive, personal, or other purpose whatsoever.
II. DESIGNATION OF CONFIDENTIAL INFORMATION
1. "Confidential Information" is any non-public Document or information that a party
reasonably and in good faith would not normally reveal to others unless such others would
maintain it in confidence. "Confidential Information-Attorney's Eyes Only" is Confidential
Information that a Producing Party contends in good faith to be highly sensitive Confidential
Information that could result in irreparable harm to the Producing Party if disclosed to the
Receiving Party.
2. Before the production of any Document or Information containing Confidential
Information or Confidential Information-Attorney's Eyes Only, the party producing the
Document or disclosing the Information ("Producing Party"), shall mark each page containing
such Confidential Information or Confidential Information-Attorney's Eyes Only with a legend
substantially in the following form: "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS'
EYES ONLY." The legend shall be placed as to not physically impede the view of text or
characters on the produced document in any way. If any Confidential Information or Confidential
Information-Attorney's Eyes Only is disclosed in deposition testimony, the party claiming
confidentiality shall notify the other parties of the portion of the testimony for which such
treatment is sought within 21 days after receipt of the transcript, and each page of the transcript
which contains Confidential Information or Confidential Information-Attorney's Eyes Only shall
be marked with such a legend and delivered by the party claiming confidentiality to all other parties
within a reasonable time period thereafter. Deposition transcripts shall be considered Confidential
Information in their entirety until the expiration of the 21-day period.
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3. With regard to non-written materials, such as recordings, magnetic media,
photographs, and things, containing Confidential Information or Confidential Information
Attorney's Eyes Only, the legend shall be affixed to the material, or a container for it, at the time
of production.
4. Confidential Information or Confidential Information-Attorney's Eyes Only shall
not be given, shown, made available, or communicated in any way to anyone except as described
in Section III, Paragraphs 1 and 2, below.
III. DISCLOSURE OR USE OF CONFIDENTIAL INFORMATION
1. The party to whom Confidential Information is produced ("Receiving Party"), may
disclose, summarize, describe, reveal or otherwise make available the Confidential Information,
in whole or in part, only in accordance with the terms of this Protective Order, and only to the
following persons:
a) the attorneys of record in this Action and their associates and staff;
b) the Court and Court personnel;
c) deposition and trial witnesses and court reporters;
d) the parties and their officers, directors, or managers to the extent necessary
for the prosecution of this Action; and
e) independent experts and consultants to the extent necessary for the
prosecution of this action, and provided that they first fully execute an exact copy
of the document entitled "DECLARATION OF INTENT TO COMPLY WITH
PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION,"
which is attached hereto and marked as Exhibit A.
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2. The parties shall have the right to designate Confidential Information as
"CONFIDENTIAL-ATTORNEYS' EYES ONLY," if said information is believed in good faith
to be highly sensitive Confidential Information that could result in irreparable harm to the
Producing Party if disclosed to the Receiving Party. Disclosure of such information shall be
limited to the persons designated in Paragraphs I (a), (b), and (e) of this Section.
3. If a party seeks to file documents designated as "Confidential Information" or
"Confidential Information - Attorney's Eyes Only," the party must first file a motion for leave to
file under seal, accompanied by a memorandum in support, setting forth the legal basis for sealing
the documents, in accordance with the Administrative Policy Governing Electronic Filing and
Service. If only portions of the documents designated as "Confidential" contain sensitive
information, and a party seeks to file the documents with the court, that party must (I) file a motion
for leave to file under seal and a memorandum in support of the motion, which provides an
explanation of the legal basis for redacting information from the document, and (2) attach to the
motion for leave to file under seal an unredacted copy of the document and a proposed redacted
copy of the document. The proposed redactions shall be highlighted or otherwise identified in a
manner that enables the Court and the other party to easily review the proposed redactions.
4. In the event that the Receiving Party is required, by court or administrative or
regulatory order, or other similar process outside of this litigation, to disclose any of the
Confidential Information or Confidential Information-Attorney's Eyes Only, the receiving party,
shall, if possible, provide the Producing Party with prompt written notice within five (5) days of
receiving any request for Confidential Information or Confidential Information-Attorney's Eyes
Only and at least fifteen (15) days prior to the disclosure of Confidential Information or
Confidential Information-Attorney's Eyes Only, such that the Producing Party may seek a
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protective order or other appropriate remedy to prohibit or to limit such disclosure. If, in the
absence of a protective order, the Receiving Party is nonetheless compelled to disclose
Confidential Information or Confidential Information-Attorney's Eyes Only, the Receiving Party
may, without liability hereunder, disclose such portions of the Confidential Information or
Confidential Information-Attorney's Eyes Only that are legally required to be disclosed. The
Receiving Party shall as soon as practicable thereafter advise Producing Party of the Confidential
Information or Confidential Information-Attorney's Eyes Only so disclosed and the persons to
whom it was so disclosed.
IV. OBJECTIONS TO CONFIDENTIAL DESIGNATIONS
1. If any party objects to the designation of any Document or Information as
Confidential Information or as Confidential Information-Attorney's Eyes Only and the parties
are unable to resolve such objection, the objecting party may move the Court for an Order declaring
that the information so designated is not entitled to protection. During the pendency of such
motion, and until a determination on the merits has been made by the Court, the material claimed
to be Confidential Information or Confidential Information-Attorney's Eyes Only shall continue
to be treated as ifsuch designation is appropriate under the terms ofthis Protective Order.
2. The parties are not obligated to challenge the designation of any Confidential
Information or Confidential Information-Attorney's Eyes Only at the time ofreceipt, disclosure,
or designation thereof, and a failure to do so shall not preclude a subsequent challenge.
V. INADVERTENT PRODUCTION OF DOCUMENTS OR INFORMATION
1. Inadvertent failure to designate any Document or Information that the Producing
Party later determines should have been designated Confidential Information or Confidential
Information-Attorney's Eyes Only will not be deemed a waiver of the right to make that
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designation at a later time. The party to whom such inadvertent disclosure is made shall, upon
written request by the Producing Party, treat such material as Confidential Information or
Confidential Information-Attorney's Eyes Only in accordance with this Protective Order. Upon
receipt of such written notice, the party who received the previously undesignated Confidential
Information or Confidential Information-Attorney's Eyes Only shall make all reasonable efforts
under the circumstances to: (1) retrieve all such material disclosed to persons other than those so
authorized pursuant to this Protective Order; (2) prevent further use or disclosure of the Documents
or Information contained in the previously undesignated Confidential Information or Confidential
Information-Attorney's Eyes Only by or to persons other than those so authorized herein. The
party who made the inadvertent disclosure shall provide all parties to the case new copies of the
subject documents affixed with the appropriate Confidential Information or Confidential
Information- Attorney's Eyes Only legend. Upon receipt of such properly marked documents,
the recipient shall destroy all unmarked versions of such documents.
2. Inadvertent production of Documents or Information subject to work product
immunity or the attorney-client privilege shall not constitute a waiver of this immunity or privilege,
provided that the Producing Party shall notify the Receiving Party of such inadvertent production
no later than the first time the Producing Party knows or should have known of its use by the
Receiving Party. Those inadvertently produced Documents or Information shall be returned to the
Producing Party upon request, and the Receiving Party shall destroy all copies thereof, including
electronic copies, as well as all notes, memoranda, or other documents that summarize, discuss, or
quote the Documents or Information. No use shall be made of such Documents or Information
during deposition or at trial, nor shall they be shown to anyone who has not already been given
access to them after the request to return them. With respect to the application of any claim of
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privilege or immunity for inadvertently produced materials, if the parties are unable to reach a
satisfactory agreement within fifteen business (15) days, the Producing Party may, within fifteen
(15) business days thereafter, petition the Court to resolve the matter. The Receiving Party shall
not disclose the document, for which the belated claim of immunity or privilege is being made, to
any persons, other than those persons who have had it in their possession before the receipt of
notification from the Producing Party, until the expiration of the fifteen (15) day period identified
in this paragraph or, if the matter is submitted to the Court, until disposition of the matter. Nothing
in this Protective Order precludes either party from petitioning the Court for return of later
discovered, inadvertently produced attorney work product or attorney-client privileged documents.
VI. MAINTENANCE OF CONFIDENTIAL INFORMATION AND CONFIDENTIAL
INFORMATION-ATTORNEY'S EYES ONLY
1. All persons who receive Confidential Information or Confidential Information-
Attorney's Eyes Only in accordance with the terms of this Protective Order shall maintain the
same, at all times, in secure facilities with reasonable precautions taken to ensure that access to
such material is restricted to persons entitled to have such access pursuant to this Protective Order.
It is stipulated that the offices of counsel for both parties constitute suitable secure facilities.
2. Within 45 calendar days after the conclusion of this Action in its entirety, including
all appeals, all parties or persons having received Confidential Information or Confidential
Information-Attorney's Eyes Only shall dispose of all designated materials either by destruction
or by returning such materials to counsel of record for the Producing Party. Notwithstanding this
provision, external legal counsel of record are entitled to retain an archival copy of all pleadings,
motion papers, transcripts, deposition transcripts, legal memoranda, correspondence, documents
produced, or attorney work product, even if such materials contain Confidential Information or
Confidential Information-Attorney's Eyes Only. Any such archival copy that contains or
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constitutes Confidential Information or Confidential Information-Attorney's Eyes Only shall
remain confidential and subject to this Protective Order.
VII. UNAUTHORIZED DISCLOSURE
1. In the event of disclosure of any Confidential Information or Confidential
Information-Attorney's Eyes Only to a person not authorized for access to such material in
accordance with the provisions hereof, the party responsible for having made, and any party with
knowledge of, such disclosure shall immediately inform counsel for the Producing Party whose
Confidential Information or Confidential Information-Attorney's Eyes Only has thus been
disclosed of all known relevant information concerning the nature and circumstances of the
disclosure. The party responsible shall also promptly take all reasonable measures to ensure that
no further unauthorized disclosure or use of the Confidential Information or Confidential
Information-Attorney's Eyes Only is made. Each party shall cooperate in good faith in that
effort.
2. Nothing herein is intended to limit or expand remedies available at law, if any, for
a breach of this protective order.
VIII. LIMITS AND DURATION OF THIS PROTECTIVE ORDER
1. Entering into, agreeing to, or otherwise complying with the terms of this Protective
Order, including producing or receiving Confidential Information or Confidential Information
Attorney's Eyes Only, shall not:
a) prevent the parties to this Protective Order from agreeing to alter or waive the
provisions or protections provided for herein with respect to any Confidential
Information or Confidential Information-Attorney's Eyes Only;
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b) prejudice in any way the rights of a party to object to any discovery request
seeking production of material it considers not subject to discovery;
c) prejudice in any way the rights of a party to seek a determination by the Court
that any requested discovery be made; or
d) prejudice in any way the rights of a party to apply to the Court for further
protective orders or modifications of this Protective Order.
2. This Protective Order shall govern the parties' actions and will survive the
termination of this Action.
3. The foregoing is agreed and stipulated to by the parties, through their counsel, as
indicated below.
DATED this 10th day of May, 2022.
MEYER, SHAFFER & STEPANS, PLLP
Isl Ryan Shaffer
Ryan Shaffer
430 Ryman Street
Missoula, MT 59803
PH: (406) 543-6929
Attorney for Plaintiff
CROWLEY FLECK PLLP
Isl Beniamin Sand
Benjamin Sand, ND Bar #07891
Amy M. Oster, ND Bar #06593
100 West Broadway Avenue, Suite 250
P.O. Box 2798
Bismarck, ND 58502-2798
PH: (701) 223-6585
Attorneys for Defendant Equinor Energy LP
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ORDER
The court ADOPTS the parties’ Stipulated Confidentiality Agreement and Protective Order
without any additions or modifications.
IT IS SO ORDERED.
Dated this 11th day of May, 2022.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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EXHIBIT A
DECLARATION OF INTENT TO COMPLY WITH PROTECTIVE
ORDER REGARDING CONFIDENTIAL INFORMATION
Occupation -job title
Horne address
CHECK ONE
Printed Name & Signature
Employer
Employer address
Work telephone number
Independent Expert or Consultant
Other (Explain:------�
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