McMillan v. Saej Enterprises, L.L.C.

OCR transcription for search; preserved printed pages are authoritative

Case 1:19-cv-00091-DLH-CRH Document 10 Filed 07/01/19 Page 1 of 7

UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
WESTERN DIVISION

RYAN McMILLAN, individually and on | Case No. 1:19-cv-00091-DLH-CRH
behalf of all others similarly situated, FLSA Collective Action

FED. R. CIV. P. 23 Class Action

V.
Judge Daniel L. Hovland
SAEJ ENTERPRISES, L.L.C. d/b/a SAEJ
ENTERPRISES Magistrate Judge Clare R. Hochhalter

STIPULATED PROTECTIVE ORDER

In order to preserve and maintain the confidentiality of certain materials to be
produced and testimony to be given in this action, it is ordered that:

1. Documents, electronically stored information (including writings, drawings,
charts, photographs, sound recordings, video recordings, images, and other data or data
compilations), other tangible items produced in discovery,’ and testimony in this litigation
that contain confidential information shall hereafter be referred to as “Protected Materials.”
The Party seeking to mark Protected Materials shall hereafter be referred to as the
“Designating Party.” Except as otherwise indicated below, documents, electronically stored
information, other tangible items produced in discovery, and testimony designated
“Confidential” or “Subject to Protective Order” that are produced or delivered to the Parties
and/or the Parties’ attorneys, consultants, agents, or experts in this action, shall be Protected
Materials and given confidential treatment as described below.

2. For purposes of this Protective Order, Protected Materials includes any
document, electronically stored information, other tangible items produced in discovery, and
testimony that the Designating Party believes in good faith to contain confidential or sensitive
information as defined by Federal Rule of Civil Procedure 26(c)(1)(G), including trade secrets

or other confidential research, development, or commercial information; protected health

' The Parties intend to include any writing, recording, photograph or other written material
as defined by Federal Rule of Evidence 1001(a) through (c).

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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information (“PHI”); or other personal information that is protected by law. Protected
Materials shall not contain or consist of any information generally available to the public.

3. For documents, electronically stored information, and other tangible items
produced in discovery to be designated as Protected Materials, at the time of production, the
Designating Party will designate each individual document by clearly stamping on each such
document, “Confidential” or “Subject to Protective Order.” Such stamping shall not obscure
any written or printed information on the materials. In the event that material is produced in
a format that is not capable of being stamped, the material should be clearly marked or
identified “Confidential” or “Subject to Protective Order” on the media itself or within the
file structure of electronically stored information. Such marking shall not otherwise alter the
media, its file structure, or its contents.

4. Deposition testimony may also be designated as Protected Materials.

(a) The Designating Party must designate the protected testimony within
30 days of service of the final transcript of the testimony to be
designated. In designating such testimony, the Designating Party must
specifically identify (by page and line) the discrete portions of the
testimony to be protected.

(b) Testimony may be designated as subject to this Protective Order by
declaration of a Party or Party’s Counsel on the record during a
deposition. If testimony is designated as protected on the record during
a deposition, the testimony will be subject to this Protective Order until
30 days after service of the final transcript of the testimony to be
designated, unless the Designating Party has otherwise designated the
testimony as protected in accordance with paragraph 4(a).

5. To the extent that Protected Materials or information contained therein are
used in the taking of depositions, such Protected Materials or information shall remain subject
to the provisions of this Protective Order.

6. Prior to designating any material or testimony as subject to this Protective
Order, the Designating Party must make a good faith determination that the material or
testimony is subject to protection under Federal Rule of Civil Procedure 26(c)(1)(G) and/or
contains personal information that is protected by law.

7. If any Party disagrees with the designation of any material or testimony as

being subject to this Protective Order, that Party will so notify the Designating Party in

2 Bg, 45 CER. § 160.103.

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writing. The Parties may meet-and-confer to resolve any dispute. If the Parties are unable to
resolve their dispute, the Designating Party may, within 14 days of receipt of such notice,
apply to the Court to determine whether the disputed materials are entitled to protection in
accordance with the Federal Rules of Civil Procedure. If the Designating Party does not so
move within the allowed time, then the disputed materials shall lose their status as Protected
Materials automatically at the expiration of the allowed time. Until the Court rules on the
application, the Parties shall consider any disputed materials subject to this Protective Order.

8. Both the Protected Materials and the information contained therein shall be
treated as confidential. The Protected Materials or information contained therein may be

shown, disseminated, or disclosed only to the following persons:

(a) The Parties to this action;

(b) Ifaparty is a business entity, then that party’s current officers, directors,
and partners;

(c) Counsel of record for any party in this case, including other attorneys
and supporting personnel in Counsel’s law firms;

(d) | Experts and consultants retained by a party for the preparation or trial
of this case (including their employees, associates, and support staff),
provided that no disclosure shall be made to any expert or consultant
who is employed by a competitor of the Designating Party;

(e) The Court and Court personnel (including Special Masters appointed
by the Court);

(f) Mediators or Special Masters jointly retained by the parties;
(g) | Any witness giving deposition testimony in this case;

(h) A third party who is employed by a party for litigation support (such as
document coding, image scanning, exhibit preparation, copying or
management of discovery materials, court reporting services,
translation services, mock trial, and/or jury profiling), but who is not
the competitor of any party;

(i) Any other person to whom the Designating Party provides prior, written
consent; and

G) Such other person as this Court may order after notice and an
opportunity to be heard.

9. Unless the Designating Party agrees otherwise, persons receiving access to
Protected Materials pursuant to subparagraphs 8(g) and (i) may view Protected Materials, but

may not retain any copies.

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10. Before giving access to any of the Protected Materials or the information
contained therein, each person described in subparagraphs 8(d), (g), (1), and (j) above shall be
advised of the terms of this Protective Order, shall be given a copy of this Protective Order,
and shall agree in writing to be bound by its terms and to submit to the jurisdiction of this
Court by signing a copy of the attached Acknowledgement Form (Exhibit A to this Protective
Order). A copy of each executed Acknowledgement Form shall be retained by the Counsel
providing access to the Protected Materials.

11. Counsel for the party providing access to Protected Materials shall provide
copies of the signed Acknowledgement Forms to the Court and the Designating Party upon
request if there are specific questions about potential violations of, or compliance with, this
Protective Order. Except that, for an Expert Witness under subparagraph 8(d), the
Acknowledgement Form shall not be provided in advance of the timeline set forth in
paragraph 12 unless there are specific questions about potential violations of, or compliance
with, this Protective Order by an Expert Witness. In such circumstance, the Designating Party
may provide evidence of such violation to the party providing access to the Protected
Materials and request that a copy of the corresponding Acknowledgement Form be produced
in advance of the paragraph 12 timeline. Upon receiving such evidence, the party providing
access to the Protected Materials shall produce the corresponding Acknowledgement Form
unless the disclosing party has a good faith basis for refusing to do so, in which case either
party may seek court intervention.

12. For an Expert Witness provided Confidential Information pursuant to
subparagraph 8(d), the Party or Party’s Counsel retaining that Expert Witness and receiving
a copy of the Acknowledgement Form shall provide each Designating Party a copy of the
Expert Witness’s completed and signed Acknowledgement Form upon request of the
Designating Party either: (a) at the time of that person’s expert designation or deposition, for
an Expert Witnesses whose opinions may be presented at trial; or (b) at the conclusion of the
above-captioned litigation, for an Expert Witness who is not expected to be called as a witness
at trial.

13. Documents, electronically stored information, other tangible items produced
in discovery, and testimony that would otherwise qualify as Protected Materials under this

Protective Order, but which are unintentionally produced without being designated as subject

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to this Protective Order, may later be designated as Protected Materials upon written notice
by the Designating Party. After such written notice, the designated materials shall be treated

as Protected Materials and subject to the provisions of this Protective Order.

14. Protected Materials designated under Federal Rule of Civil Procedure
26(c)(1)(G) and produced pursuant to this Protective Order are deemed authentic under the
Federal Rules of Evidence, and no further proof of authentication as to such Protected
Materials shall be required.

15. Protected Materials, when filed with the Court, shall be filed under seal in
accordance with applicable local rules and Court procedures. Protected Materials filed under
seal in this manner shall be filed separately and contemporaneously as attachments to a
motion for leave to file the materials under seal. When this procedure is invoked, the
Protected Materials shall remain under seal until further order of the Court. The Party filing
the Protected Materials may file the sealing motion as unopposed, but the nonopposition shall
not be construed as a waiver of any other rights or a concession that the Protected Materials
are properly designated.

16. This Protective Order shall not apply to the disclosure of Protected Materials
or the information contained therein at the time of trial, through the receipt of Protected
Materials into evidence, or through the testimony of witnesses. The closure of trial
proceedings and sealing of the record of a trial involve considerations not presently before the
Court. These issues may be taken up as a separate matter upon the application of any of the
patties.

17. Disclosure of Protected Materials other than in accordance with the terms of
this Protective Order may subject the disclosing person to such sanctions and remedies as the
Court may deem appropriate, including without limitation, contempt, injunctive relief and
damages.

18. This Protective Order shall be binding upon the Parties hereto, upon their
attorneys, and upon the parties’ and their attorneys’ successors, executors, personal
representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions,
employees, agents, independent contractors, or other persons or organizations over which

they have control.

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Case 1:19-cv-00091-DLH-CRH Document 10 Filed 07/01/19 Page 6 of 7

Date Clare Rr. Hochhalter

United States Magistrate Judge

IT IS SO STIPULATED:

/s/ Matthew S. Parmet
By:

Matthew S. Parmet
Texas Bar # 24069719
PARMET PC
PO Box 540907
800 Sawyer St. (77007)
Houston, TX 77254
phone 713 999 5228
fax 713999 1187
matt@parmet.law

Edmond S. Moreland, Jr.
Texas Bar # 24002644
MORELAND VERRETT, P.C.
700 West Summit Dr.
Wimberley, TX 78676
phone 512 782 0567

fax 512 782 0605
edmond@morelandlaw.com

Attorneys for Plaintiff

/s/ William C. Black
By:

William C. Black (07284)
LARSON LATHAM HUETTL LLP
1100 College Dr.

PO Box 2056

Bismarck, ND 58502-2056
phone (701) 223-5300
wblack@bismarcklaw.com

Attorneys for Defendant

Protective Order Page 6 of 6

UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
RYAN McMILLAN, individually and on Case No. 1:19-cv-00091-DLH-CRH
behalf of all others similarly situated, FLSA Collective Action
FED. R. CIV. P. 23 Class Action
V.
Judge Daniel L. Hovland
SAEJ ENTERPRISES, L.L.C. d/b/a SAEJ
ENTERPRISES Magistrate Judge Clare R. Hochhalter
PROTECTIVE ORDER-EXHIBIT A
ACKNOWLEDGMENT FORM
I, acknowledge that I have received and read a copy of the attached Protective Order,
and I agree to be bound by the terms of such Order. I further agree to be subject to the
jurisdiction of this Court including, but not limited to, its contempt powers.
Date Signature
Printed Name
Relationship to litigation for which documents requested:
Scope of Protected Materials requested:
Protective Order - Exhibit A Page 1 of 1
Case 1:19-cv-00091-DLH-CRH Document 10 Filed 07/01/19 Page 7 of 7