FA ND Chev, LLC et al v. Kupper et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page1of15

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

WESTERN DIVISION
FA ND CHEV, LLC and FA ND SUB, )
LLC ) PROTECTIVE ORDER
)
Plaintiffs, )
)
Vv. )
) Civil Action No. 1:20-cv-00138-DMT-CRH
Robert Kupper; Bismarck Motor Company; )
and BMC Marine LLC d/b/a Moritz Sport )
& Marine )
)
Defendants. )
)

In order to protect information entitled to be kept confidential and to ensure that
protection is afforded only to information entitled to protection, the Court hereby enters this
Stipulated Protective Order (‘Protective Order’) pursuant to Fed. R. Civ. P. 26c)

A. Scope of the Protective Order

1. This Protective Order shall govern the protection and exchange of confidential
documents, materials, and information disclosed, produced, given, or exchanged by and among
the Parties and any non-parties in this case, including without limitation: documents and records
produced, Fed. R. Civ. P. 26 disclosures by any Party, answers to interrogatories, responses to
requests for admission, information obtained from inspection of premises or things,
deposition testimony, information produced in any other form in response to discovery, and
information disclosed pursuant to a subpoena or as part of any motions, briefs, or other
filings. The terms “documents”, “information”, and “materials” used in this Protective
Order refer to all such methods for the exchange of information described in this
paragraph. This Protective Order applies to all Parties (and their attorneys, agents, and

representatives) to this litigation and to non-parties who provide discovery information

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

pursuant to subpoenas from the Parties or as part of depositions in the case. It also applies to
any individual who executes the attached Exhibit I.
B. Definitions
3. "Party" or "Parties" means a named party or parties in this case. "Person" means an
individual or an entity. "Producer" means a Person who produces information via the discovery
process in this case. "Recipient" means a Person who receives information via the discovery process
in this case.
C. Designation and Protection of Confidential Information and Confidential Attorneys'
Eyes Only Information
4. The Parties anticipate that discovery and disclosure will include the exchange of
Confidential Information, including Confidential Attorneys' Eyes Only Information (as defined below
in paragraphs 5 and 6, respectively). In the event a Party or non-party produces Confidential or
Confidential Attorneys' Eyes Only Information, a Party may designate it in the following manner:
(a) By imprinting the word(s) "Confidential" or "Confidential Attorneys' Eyes Only" on
the first page or cover of any document produced, accompanied by a reference to the
range(s) of Bates-numbered pages to which that designation refers;
(b) By imprinting the word(s) "Confidential" or "Confidential Attorneys' Eyes Only" on
each page of the document produced;
(c) By imprinting the word "Confidential" or "Confidential Attorneys' Eyes Only" next
to or above any response to a discovery request; and
(d) With respect to transcribed testimony, by giving written notice to opposing counsel
designating such portions as "Confidential" or "Confidential Attorneys' Eyes Only"
no later than twenty-one (21) calendar days after receipt of the transcribed testimony.
During the twenty-one (21) day period, counsel for the Parties shall treat the entire
2
Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page 2 of 15

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page3of15

transcript as if it had been designated as “Confidential” or “Confidential Attorneys’
Eyes Only.” Testimony that has been designated “Confidential” or “Confidential
Attorneys’ Eyes Only” on the record of the deposition shall be transcribed in a
separate booklet marked accordingly on each page.

5. Any Party may designate as “Confidential” any documents, materials, and
information provided or produced in the case, that the Party believes in good faith contains
the following information: Sensitive commercial, proprietary, financial, business
information, private information, and otherwise confidential information (collectively, the
“Confidential Information’’).

6. Certain Confidential Information that constitutes sensitive personal
confidential information or sensitive business or trade secrets that the designating Party
believes in good faith is entitled to a higher level of protection because its disclosure of would
be highly damaging to the Producer (the “Confidential Attorneys’ Eyes’ Only Information’),

may be designated in writing by the Party as “Confidential Attorneys’ Eyes Only.”

7. A non-party that produces documents or appears for a deposition in this
litigation, whether formally or informally, may designate documents, materials, or
information as “Confidential” or “Confidential Attorneys’ Eyes Only” pursuant to the
standards described in the proceeding paragraphs. Further, if a Party determines in good faith
that discovery documents, materials, or information produced by a non-party in the case
contain Confidential Information or Confidential Attorneys’ Eyes Only Information, that
Party may so designate.

8. The categorization, designation, and restrictions on the use of information

3

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page4of15

designated as “Confidential” and “Confidential Attorneys’ Eyes Only” are made without
prejudice to further categorization, designation, and additional restrictions. In the event discovery
proceeds into documents and information that a Party believes warrant further protections, the
Parties will meet and confer to discuss appropriate additional protections. If they cannot agree on
such protections, they may present the issue to the Court.

9. Information is not entitled to be designated as Confidential Information or
Confidential Attorneys’ Eyes Only Information if it is generally disclosed in a printed publication
disseminated to other Persons or entities; is generally known to the public; or was generally
known to another Person or entity without obligation of confidentiality before the Producer
disclosed it. Information is likewise not Confidential Information or Confidential Attorneys’
Eyes Only Information if a Person lawfully obtained it independently of this litigation and that
Person had the unrestricted right to do so when it was obtained by that Person.

10. A Producer may make documents or things containing Confidential Information
or Confidential Attorneys’ Eyes Only Information available for inspection and not mark them as
“Confidential” or “Confidential Attorneys’ Eyes Only” without forfeiting a claim of
confidentiality, so long as the Producer causes copies of the documents or things to be marked in
such a manner before providing them to the Recipient in hard copy or electronic form.

D. Use and Disclosure of Protected Material

11. Information that is designated as “Confidential” or “Confidential Attorneys’ Eyes
Only” shall not be used for any purpose except for the prosecution or defense of this litigation
unless authorized by further order of this Court. Nothing in this Protective Order shall preclude
the Parties from requiring a separate protective order in any other litigation arising from the same

or similar operative facts. But this restriction shall not apply to information that, at or prior to

4

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page5of15

their disclosure in this action, was generally known to the Recipients without obligation of
confidentiality before the Producer disclosed it, is public knowledge, or which later becomes
publicly disclosed by one having the unrestricted right to do so, or which is otherwise in the public
domain.

12. A Party receiving information designated as “Confidential” shall treat such
material as it treats its own Confidential Information, and shall use commercially reasonable
efforts to prevent any inadvertent release of such Confidential Information.

13. Except as the Court may otherwise expressly direct and subject to the further
conditions imposed by this Protective Order, information that is designated as “Confidential” may
be disclosed only to:

(a) the Parties;
(b) in-house counsel for any Party;
(c) legal counsel of record for the Parties in this action;

(d) paralegals, assistants, clerks, secretaries, and other such personnel working under
the supervision of legal counsel of record for the Parties in this action;

(e) expert witnesses and consultants, and their employees, hired by a Party to assist
in the preparation and/or trial of the lawsuit, who agreed to be bound by the terms
of this Protective Order by executing Exhibit /;

(f) representatives, agents, officers, directors, or employees of the Parties to the
extent such disclosure is necessary for the prosecution or defense of this
litigation;

(g) the Court and its personnel;
(h) court reporters involved in transcribing proceedings in this matter;

(i) witnesses and potential witnesses who either (1) previously executed Exhibit 1;
(ii) prepared the Confidential Information; (iii) have reviewed or seen the
Confidential Information other than by virtue of the formal production of the
Confidential Information in this litigation, or (iv) are the Person(s) about whom
the Confidential Information pertains (and their counsel if in the context of a

5

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page6of15

deposition or preparation for a deposition or trial);

(j) employees of copying, imaging, and computer services providers for the purpose
of copying, imaging, or organizing documents necessary to the prosecution or
defense of this litigation, and who agreed to be bound by the terms of this
Protective Order by executing Exhibit 1;

(k) any other Person to whom disclosure is expressly authorized in writing by the
Party or non-party who designated the information; and

(1) Such other Persons by further order of the Court.
14. Information that is designated as “Confidential Attorneys’ Eyes Only” shall be treated
in all respects as information designated as “Confidential,’ with the added restriction that the
information therein may not be disclosed by counsel of the Recipients to any Person other than:

(a) legal counsel of record for the Parties in this action;

(b) paralegals, assistants, clerks, secretaries, and other such personnel working under
the supervision of legal counsel of record for the Parties in this action;

(c) the Court and its personnel;

(d) Court reporters involved in transcribing proceedings in this matter;

(e) any retained or consulting expert, and their employees, hired by a Party to assist
in the preparation and/or trial of the lawsuit, and who are not employed or otherwise
associated with the Party, and have agreed to be bound by the provisions of this
Protective Order;

(f) Deposition witnesses who either (i) prepared the Confidential Attorneys’ Eyes Only
Information, (ii) have reviewed or seen the Confidential Attorneys’ Eyes Only
Information other than by virtue of the formal production in this litigation, or (iii) 1s
the Person about whom the Confidential Attorneys’ Eyes Only Information pertains;

and

(g) Any other Person or entity as to whom counsel for the designating Party or non-party
agrees in writing.

15. Prior to disclosing to any non-party any information designated as “Confidential
or “Confidential Attorneys’ Eyes Only” as permitted herein, and who must agree to the terms of

the Protective Order (as set forth above), counsel for the disclosing Party shall provide the non-

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page /7of15

party with a copy of this Protective Order, and obtain from the non-party a written
acknowledgment in the form attached as Exhibit J, stating that the non-party has read this
Protective Order and agrees to be bound by its provisions. Counsel shall retain all such
acknowledgments. If a non-party does not agree to be bound by this Protective Order, disclosure
of the information at issue to such non-party is prohibited. However, nothing herein should be
interpreted to mean that counsel accepts liability for, or indemnification on behalf of, the Parties or
any third party with regard to that Party or third party’s disclosure of such Confidential Information,
including Confidential Attorneys’ Eyes Only Information, in violation of this Protective Order.
E. Procedure for Filing Protected Material

16. Any Party bound by this Protective Order that files a document with the Court
containing information designated as “Confidential” or “Confidential Attorneys’ Eyes Only,” is
authorized and required to file the document under seal. The Parties shall comply with the Court’s
procedures for filing documents under seal.

17. The designation of documents to be filed under seal shall be made by placing on
each page of the document (in such manner as will not interfere with its legibility) the words
“FILED UNDER SEAL” in addition to any other designations under this Protective Order.
Alternatively, the “FILED UNDER SEAL” designation shall be made on the first page or cover
page of the document, accompanied by a reference to the range(s) of Bates-numbered pages to
which that designation refers.

F. Challenges to Designations

18. A Party may object to or challenge the designation of information as

“Confidential” or “Confidential Attorneys’ Eyes Only” by giving written notice to all Parties

(including written notice to any non-party that has made the challenged designation). In

7

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page 8of15

challenging the designation of any information as “Confidential” or “Confidential Attorneys’
Eyes Only,” the challenging party must identify in the written notice the document(s) or
information challenged and must provide the legal basis for said challenge. The Part(ies) and
non-part(ies) receiving the objection shall respond within ten (10) business days. If the Parties,
including any non-parties that produced the information at issue, cannot resolve their challenges
or objections within ten (10) business days from the notice of challenge, then the challenging
Party may file with the Court a motion challenging the designation and bears the burden of going
forward. Information designated as “Confidential” and “Confidential Attorneys’ Eyes Only”
which are subject to challenge shall maintain their designation and protected status under the

terms of this Protective Order until such time as the Court rules on the challenge.

19. A Party may elect to rescind or alter the designation of any information as
“Confidential” or “Confidential Attorneys’ Eyes Only” by providing written notice to all Parties
of record of such election.

G. Inadvertent Production

20. If Confidential Information or Confidential Attorneys’ Eyes Only Information is
inadvertently produced without the legend (e.g., “Confidential” or “Confidential Attorneys’ Eyes
Only”’) attached, or with an incorrect or improper designation, such information shall be treated
nevertheless as Confidential Information or Confidential Attorneys’ Eyes Only Information from
the time the Producer advises the Recipient(s) in writing that such information should have been
so designated. The Producer that made the inadvertent disclosure shall also provide all Parties
with an appropriately labeled replacement document providing the designation or proper
designation as the case may be. The Recipient(s) shall either return promptly or destroy the

unmarked or incorrectly designated documents, and provide notice to the Producer of said return

8

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page9of15

or destruction.

21. If a Party learns that, either by inadvertence or otherwise, it has disclosed
Confidential Information or Confidential Attorneys’ Eyes Only Information to any Person or in
any circumstance not authorized under the Protective Order, that Party must immediately: (a)
notify in writing counsel for the all Parties of the unauthorized disclosures, including all pertinent
facts; (b) make every reasonable effort to prevent further unauthorized disclosure, including
retrieving all copies of the Confidential Information or Confidential Attorneys’ Eyes Only
Information from the recipient(s) thereof; (c) inform the Person or Persons to whom unauthorized
disclosures were made of all the terms of this Order; and (d) request such Person or Persons to
execute the Acknowledgment attached hereto as Exhibit I. Compliance with the foregoing shall
not prevent a Party from seeking further relief from the Court.

22. The production of documents, electronically stored information, or information
protected from disclosure under the attorney-client privilege, work product doctrine, or any other
applicable privilege or immunity, whether produced inadvertently or otherwise, is not a waiver
of the privilege or protection from discovery in this case or in any other federal or state
proceeding. This Protective Order shall be interpreted to provide the maximum protection
allowed by Federal Rule of Evidence 502(d). In the event such a disclosure is discovered, the
receiving Party shall, without further reviewing the documents at issue, return all copies of such
documents to the producing Party and shall not use such materials for any purpose. The return of
any document to the inadvertently producing Party shall not preclude the receiving Party from
moving the Court for a ruling that the document or information is not subject to any privilege or

protection.

Case 1:20-cv-00138-DMT-CRH Document 30 _ Filed 03/19/21 Page 10of15

H. Return or Destruction of Protected Material

23. Within ninety (90) days after the final resolution of this action, including the
expiration of any appellate review, all documents designated as “Confidential” and “Confidential
Attorneys’ Eyes Only” shall be returned to the Party or non-party that produced such documents,
or destroyed. All counsel of record shall, upon request, make certification of compliance with
this requirement and shall deliver the same to counsel for the Party or non-party that produced
the documents not more than fourteen (14) business days after any such request.

24. Notwithstanding the foregoing, counsel for each Party may retain an archival
copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence, and attorney
work product, even if such materials contain information designated as “Confidential” and
“Confidential Attorneys’ Eyes Only.” Any such archival copies that contain or constitute
information designated “Confidential” or “Confidential Attorneys’ Eyes Only” remain subject to
this Protective Order.

I. Survival and Jurisdiction

25. The terms of this Protective Order shall survive any settlement, discontinuance,
dismissal, judgment or other disposition of this action.

26. Each Person that is shown information designated “Confidential” or
“Confidential Attorneys’ Eyes Only” or to whom such information is disclosed hereby submits
him or herself to the personal jurisdiction of this Court, wherever he or she may reside, but only
for the purpose of enforcing the terms of this Protective Order.

27. Other than as addressed above in paragraph 22 as to inadvertent production,
nothing in this Protective Order shall affect any question of attorney-client privilege, work

product protection, or any other privilege or immunity, as these matters shall be governed by the

10

Case 1:20-cv-00138-DMT-CRH Document 30 _ Filed 03/19/21 Page11of15

applicable law of privilege or immunity.

J. Legal Process

28.

If a Party or non-party bound by the terms of this Protective Order is served with

a subpoena, process, or court order issued in other litigation or similar proceedings, which order,

process, or subpoena compels or requires disclosure of information designated in this case as

“Confidential” or “Confidential Attorneys’ Eyes Only”, that Party or non-party must:

(a)

(b)

(c)

29.

promptly notify the designating Party or non-party regarding the order or
subpoena. Such notification must be in writing and shall include a copy of the
subpoena or court order;

promptly notify the litigant that caused the subpoena or order to issue in the
other litigation or proceedings that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification must be
in writing and must include a copy of this Protective Order; and

reasonably cooperate in the protections and procedures the designating Party or
non-party may reasonably wish to pursue, including but not limited to requesting
the litigant in the other litigation or similar proceedings to sign Exhibit agreeing
to be bound by the terms of this Protective Order.

If the designating Party or non-party timely objects or seeks a protective order in

the other litigation or proceedings after being served a subpoena, process, or court order, the Party

or non-party so served shall not be required to produce any information designated as

“Confidential” or “Confidential Attorneys’ Eyes Only” unless and until a determination is made by

the court and only in compliance with any court order, unless the litigant seeking the information

designated “Confidential” or “Confidential Attorneys’ Eyes Only” has first obtained the designating

Party’s or non-party’s permission. The designating Party or non-party shall bear the burden and

expense of seeking protection of its own Confidential Information or Confidential Attorneys’

Eyes Only Information and nothing in these provisions should be construed as authorizing or

encouraging a Party or non-party bound by the terms of this Protective Order to disobey a lawful

11

/s/ Clare R. Hochhalter
United States District Court
Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page 12 of 15

Case 1:20-cv-00138-DMT-CRH Document 30 _ Filed 03/19/21 Page13o0f15

Agreed to and submitted this 18" day of March, 2021.

By: /s/Anna S. Day
Maxwell N. Shaffer (PHV admission)
Anna S. Day (PHV admission)
Holland & Knight LLP
1801 California Street, Suite 5000
Denver, CO 80202
(303) 974-6647
maxwell.shaffer@hklaw.com
anna.day@hklaw.com

Robin Wade Forward (#05324)
Stinson, LLP

811 East Interstate Avenue
Bismarck, ND 58503

(701) 221-8603
rob.forward@stinson.com

Attorneys for Plaintiffs FA ND CHEV, LLC and
FA ND SUB, LLC

Agreed to and submitted this 18" day of March, 2021.
BAKKE GRINOLDS WIEDERHOLT

By: /s/Bradley N. Wiederholt
Randall J. Bakke (#03989)
Shawn A. Grinolds (#05407)
Bradley N. Wiederholt (#06354)
Grant T. Bakke (#09106)

300 West Century Avenue

P.O. Box 4247

Bismarck, ND 58502-4247
(701) 751-8188
rbakke@bewattorneys.com
sgrinolds@bgwattorneys.com
bwiederholt@bgwattorneys.com
gbakke@bgwattorneys.com

Attorneys for Defendant Robert Kupper

13

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page 14of15

Agreed to and submitted this 18" day of March, 2021.
EVENSON SANDERSON PC

By: /s/Paul R. Sanderson
Paul R. Sanderson (#05830)
1100 College Drive, Suite 5
Bismarck, ND 58501
(701) 751-1243
psanderson@esattorneys.com

Attorneys for Defendant Bismarck Motor
Company

Agreed to and submitted this 18" day of March, 2021.
NILLES LAW FIRM

By: /s/ William Harrie
William Harrie (#04411)
1800 Radisson Tower
201 North Fifth Street
P.O. Box 2626
Fargo, ND 58108-2626
(701) 237-5544
wharrie@nilleslaw.com

Attorneys for Defendant BMC Marine LLC d/b/a
Moritz Sport & Marine

14

Case 1:20-cv-00138-DMT-CRH Document 30 Filed 03/19/21 Page 15of15

EXHIBIT 1

ACKNOWLEDGMENT

I certify that I have read and I understand the provisions of the Stipulated Protective Order
(“Protective Order’) entered on the __ day of , 2020 by the Court in the civil lawsuit
entitled FA ND CHEV, LLC; and FA ND SUB, LLC v. Robert Kupper; Bismarck Motor
Company: and BMC Marine LLC d/b/a Moritz Sport & Marine, (Civil No. Civil No. 1:20-CV-
00138-DMT-CRH) venued in the United States District Court for the District of North Dakota,
Western Division.

As a condition precedent to my receipt and examination of information designated as
“Confidential” or “Confidential Attorneys’ Eyes Only” pursuant to the Protective Order, or of
obtaining information derived from such, I agree that the Protective Order shall be deemed to
be directed to and shall include me, and that I shall be bound by, shall observe, and shall comply
with the terms and provisions of the Protective Order. I further agree that I shall be subject to
the Court’s enforcement and jurisdiction for any violation or attempted violation of the
provisions of the Protective Order.

Dated:
Name (Printed)
Relationship to this Litigation
SUBSCRIBED AND SWORN BEFORE ME THIS ___ DAY OF , 20

Notary Public

15