Mitzel Builders, Inc. v. Auto-Owners Insurance Company et al

IN THE UNITED STATES DISTRICT COURT
FOR DISTRICT OF NORTH DAKOTA
Mitzel Builders, Inc. d/b/a 	)
North Valley Homes, 	)
) 	PROTECTIVE ORDER
Plaintiff, 	)
)
vs. 	)
)
Auto-Owners Insurance Company 	) 	Case No. 1:20-cv-198
and American Modern Home 	)
Insurance Company, 	)
)
Defendants. 	)
Upon consideration of the Stipulation by the parties for a Protective Order [Docket No. 12]
pursuant to Federal Rule of Civil Procedure 26(c):
IT IS HEREBY ORDERED:
1. 	As used in the Protective Order, these terms have the following meanings:
“Attorneys” means counsel of record;
“Confidential” documents are documents designated pursuant to paragraph 2;
“Documents” are all materials within the scope of Fed. R. Civ. P. 34;
“Outside Vendors” means messenger, copy, coding, and other clerical-services vendors not
employed by a party or its Attorneys; and
“Written Assurance” means an executed document in the form attached as Exhibit A.
2. 	A Party may designate a document “Confidential”, to protect information within the
scope of Fed. R. Civ. P. 26(c).
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3. 	All Confidential documents, along with the information contained in the documents,
shall be used solely for the purpose of this action, and no person receiving such documents shall,
directly or indirectly, use, transfer, disclose, or communicate in any way the documents or their
contents to any person other than those specified in paragraph. Any other use is prohibited.
4. 	Access to any Confidential document shall be limited to:
(a) 	the Court and its staff;
(b) 	Attorneys, their law firms, and their Outside Vendors;
(c) 	persons shown on the face of the document to have authored or received it;
(d) 	court reporters retained to transcribe testimony;
(e) 	the parties;
(f) 	outside independent persons (i.e., persons not currently or formerly employed
by, consulting with, or otherwise associated with any party) who are retained by a party or its
Attorneys to provide assistance as mock jurors or focus group members or the like, or to furnish
technical or expert services, and/or to give testimony in this action.
5. 	Third parties producing documents in the course of this action may also designate
documents as “Confidential”, subject to the same protections and constraints as the parties to the
action. A copy of the Protective Order shall be served along with any subpoena served in connection
with this action. All documents produced by such third parties 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 the Protective Order.
6. 	Each person appropriately designated pursuant to paragraphs 4(f) to receive
Confidential information shall execute a “Written Assurance” in the form attached as Exhibit A.
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Opposing counsel shall be notified at least 14 days prior to disclosure to any such person who is
known to be an employee or agent of, or consultant to, any competitor of the party whose designated
documents are sought to be disclosed. Such notice shall provide a reasonable description of the
outside independent person to whom disclosure is sought sufficient to permit objection to be made.
If a party objects in writing to such disclosure within 14 days after receipt of notice, no disclosure
shall be made until the party seeking disclosure obtains the prior approval of the Court or the
objecting party.
7. 	All depositions or portions of depositions taken in this action that contain confidential
information may be designated “Confidential” and thereby obtain the protections accorded other
“Confidential” documents. Confidentiality designations for depositions shall be made either on the
record or by written notice to the other party within 14 days of receipt of the transcript. Unless
otherwise agreed, depositions shall be treated as “Confidential” during the 14-day period following
receipt of the transcript. The deposition of any witness (or any portion of such deposition) that
encompasses Confidential information shall be taken only in the presence of persons who are
qualified to have access to such information.
8. 	Any party who inadvertently fails to identify documents as “Confidential” shall,
promptly upon discovery of its oversight, provide written notice of the error and substitute
appropriately-designated documents. Any party receiving such improperly designated documents
shall retrieve such documents from persons not entitled to receive those documents and, upon receipt
of the substitute documents, shall return or destroy the improperly-designated documents.
Inadvertent failure to designate any document or material as containing Confidential information
will not constitute a waiver of an otherwise valid claim of confidentiality pursuant to this Order, so
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long as a claim of confidentiality is asserted within 7 days after discovery of the inadvertent failure.
9. The parties are advised that designation by a party of a document as protected pursuant
to the terms of this Order cannot be used as the sole basis for filing the document under seal in
connection with either trial or non-dispositive, dispositive, or trial related motion. Only those
documents and portions of a party’s submission, or any part thereof, which otherwise meets the
elements for protection from public filing (including, but not limited to, a statute, rule or regulation
prohibiting public disclosure, or protection under the attorney-client privilege or work product
doctrine, or the standards for protection set forth in Fed. R. Civ. P. 26(c)), as first determined by the
Court upon motion and a showing of good cause, shall be filed under seal.
10. If a party seeks to file documents designated as “Confidential,” 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
(1) 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.
11. Any party may request a change in the designation of any information designated
“Confidential”. Any such document shall be treated as designated until the change is completed. If
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the requested change in designation is not agreed to, the party seeking the change may move the
Court for appropriate relief, providing notice to any third party whose designation of produced
documents as “Confidential” in the action may be affected. 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 Fed. R. Civ. P. 26(c).
12. 	Within 60 days of the termination of this action, including any appeals, each party
shall either destroy or return to the opposing party all documents designated by the opposing party
as “Confidential”, and all copies of such documents, and shall destroy all extracts and/or data taken
from such documents. Each party shall provide a certification as to such return or destruction within
the 60-day period. However, Attorneys shall be entitled to retain a set of all documents filed with
the Court and all correspondence generated in connection with the action.
13. 	Any party may apply to the Court for a modification of the Protective Order, and
nothing in this Protective Order shall be construed to prevent a party from seeking such further
provisions enhancing or limiting confidentiality as may be appropriate.
14. 	No action taken in accordance with the Protective Order shall be construed as a
waiver of any claim or defense in the action or of any position as to discoverability or admissibility
of evidence.
15. 	The obligations imposed by the Protective Order shall survive the termination of this
action.
Dated this 23rd day of March, 2021.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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8275060
EXHIBIT A
WRITTEN ASSURANCE
_________________________________________ declares that:
I 	reside 	at 	_______________________________________ 	in 	the 	City 	of
__________________, County of __________________, State of ______________ . My
telephone number is __________________________________.
I am currently employed by ___________________________________, located at
_____________________________________________________, 	and 	my 	current 	job
title is ____________________________________________________.
I 	have 	read 	and 	I 	understand 	the 	terms 	of 	the 	Protective 	Order 	dated
________________, filed in Case No. 1:20-CV-198 (DMT/CRH) pending in the United
States District Court for the District of North Dakota. 	I agree to comply with and be
bound by the provisions of the Protective Order. 	I understand that any violation of the
Protective Order may subject me to sanctions by the Court.
I 	shall 	not 	divulge 	any 	documents, 	or 	copies 	of 	documents, 	designated
“Confidential” obtained pursuant to such Protective Order, or the contents of such
documents, to any person other than those specifically authorized by the Protective
Order. I shall not copy or use such documents except for the purposes of this action and
pursuant to the terms of the Protective Order.
As soon as practical, but no later than 30 days after final termination of this action,
I shall return to the attorney from whom I have received them, any documents in my
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8275060
possession designated “Confidential”, and all copies, excerpts, summaries, notes, digests,
abstracts, and indices relating to such documents.
I submit myself to the jurisdiction of the United States District Court for the
District of North Dakota for the purpose of enforcing or otherwise providing relief
relating to the Protective Order.
Executed on _______________________ 	______________________________
(Date) 	(Signature)
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