Penman v. Hess Bakken Investments II, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
RONALD PENMAN AND 	)
ADELANTE OIL & GAS, LLC 	)
on behalf of themselves and a Class 	)
of similarly situated royalty owners, 	)
) 	Case No.: 1:22-cv-00097
Plaintiffs, 	) 	(Lead Case)
)
vs. 	)
)
HESS BAKKEN INVESTMENTS 	)
II, LLC 	)
)
Defendant. 	)
)
____________________________________)
)
SANDY RIVER RESOURCES, LLC and )
SANDY RIVER ENERGY, LLC 	)
River Energy, LLC on behalf of 	)
themselves and classes of similarly 	)
situated royalty owners, 	) 	Case No.: 1:22-cv-108
)
Plaintiffs, 	)
)
vs. 	)
)
HESS BAKKEN INVESTMENTS, 	)
II, LLC 	)
PROTECTIVE ORDER
Before the Court is the parties’ Stipulated Proposed Protective Order. The parties agree
during the course of discovery it may be necessary to disclose certain confidential information
relating to the subject matter of this action. They agree certain categories of such information
should be treated as confidential, protected from disclosure outside this litigation, and used only
for purposes of prosecuting or defending this action and any appeals. The parties jointly request
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entry of a protective order to limit the disclosure, dissemination, and use of certain identified
categories of confidential information.
The parties assert in support of their request that protection of the identified categories of
confidential information is necessary because they believe the documents contain information that
relates to commercial financial information that would provide competitors with a financial or
competitive advantage; contain commercial trade secrets, if publicly released would impair
security and safety of the producing party; or would violate a legally protected privacy interest.
For good cause shown under Fed. R. Civ. P. 26(c), the Court grants the parties’ joint request
and hereby enters the following Protective Order:
1. 	Scope. All documents and materials produced in the course of discovery of this
case, including initial disclosures, responses to discovery requests, all deposition testimony and
exhibits, and information derived directly therefrom (hereinafter, collectively, “documents”), are
subject to this Order concerning Confidential Information as set forth below.
2. 	Definition of Confidential Information. As used in this Order, “Confidential
Information” is defined as information that the producing party designates in good faith has been
previously maintained in a confidential manner and should be protected from disclosure and use
outside the litigation because its disclosure and use are restricted by statute or could potentially
cause harm to the interests of the disclosing party or nonparties. Information or documents that are
available to the public, including but not limited to the oil and gas leases, may not be designated
as Confidential Information.
3. 	Form and Timing of Designation. The producing party may designate documents
as containing Confidential Information and therefore subject to protection under this Order by
marking or placing the words “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER”
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(hereinafter, “the marking”) on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries, or descriptions that contain the Confidential Information. The
marking will be applied prior to or at the time the documents are produced or disclosed. Applying
the marking to a document does not mean that the document has any status or protection by statute
or otherwise, except to the extent and for the purposes of this Order. Copies that are made of any
designated documents must also bear the marking, except that indices, electronic databases, or lists
of documents that do not contain substantial portions or images of the text of marked documents
and do not otherwise disclose the substance of the Confidential Information are not required to be
marked. By marking a designated document as Confidential, the designating attorney or party
appearing pro se thereby certifies that the document contains Confidential Information as defined
in this Order.
4. 	Inadvertent Failure to Designate. 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 long as a claim of confidentiality is asserted
within 30 days after discovery of the inadvertent failure.
5. 	Depositions. Deposition testimony will be deemed Confidential only if designated
as such on the record when the when the deposition is taken or within 30 days after receipt of the
deposition transcript. Such designation must be specific as to the portions of the transcript and/or
any exhibits to be protected. 	Exhibits that a producing party designated as Confidential in
discovery will retain that designation.
6. 	Protection of Confidential Material.
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(a) General Protections. Designated Confidential Information must be used or
disclosed solely for purposes of prosecuting or defending this lawsuit, including
any appeals or any other related legal proceeding brought by one of the parties to
this litigation. For the purpose of this subsection, “party” shall mean any named
plaintiffs and defendants and does not include any putative or unnamed class
members.
(b) Who May View Designated Confidential Information. Except with the prior
written consent of the designating party or the prior order of the Court, designated
Confidential Information may only be disclosed to the following persons:
1) 	The 	parties 	to 	this 	litigation, 	including 	any 	employees, 	agents, 	and
representatives of the parties;
2) 	Counsel for the parties and employees and agents of counsel;
3) 	The Court, court staff, including any special master appointed by the Court,
witnesses, and the jury in any trial or hearing in case;
4) 	Court 	reporters 	or 	other 	official 	personnel 	reasonably 	required 	for 	the
preparation of transcripts of testimony;
5) 	Any mediator appointed by the Court or jointly selected by the parties;
6) 	Any expert witness, outside consultant, or investigator retained in connection
with this litigation, but only after such persons have completed the certification
contained in Attachment A, Acknowledgment and Agreement to be Bound;
7) 	Fact witnesses in this case, provided that the particular witness has a need for
such disclosure in order to respond to questions in a deposition or at trial in this
case, and only after such persons have completed the certification contained in
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Attachment A. However, nothing in this Order shall require a fact witness to
execute a certification with respect to documents/materials generated by that
individual or where the individual had contemporaneous personal involvement
in the completion of such material;
8) 	Any author or recipient of the document (not including a person who received
the document in the course of the litigation);
9) 	Independent providers of document reproduction, electronic discovery, or other
litigation services retained or employed specifically in connection with this
litigation; and
10) Other persons only upon consent of the producing party and on such conditions
as the parties may agree.
(c) Control 	of 	Documents. 	The 	parties 	must 	take 	reasonable 	efforts 	to 	prevent
unauthorized 	or 	inadvertent 	disclosure 	of 	documents 	designated 	as 	containing
Confidential Information pursuant to the terms of this Order. Counsel for the parties
must maintain a record of those persons, including employees of counsel, who have
reviewed or been given access to the documents, along with the originals of the forms
signed by those persons acknowledging their obligations under this Order.
7. 	Highly Confidential Information. If specific confidential documents contain
highly sensitive trade secrets or other highly sensitive competitive or confidential information, and
the disclosure of those particular documents to another party or non-party would create a
heightened risk of harm to the competitive, commercial, financial, or business position of the
producing party, the parties may stipulate or move for the production of such specific documents
under 	a 	Highly 	Confidential 	- 	Attorneys’ 	Eyes 	Only 	designation 	(or 	other 	appropriate
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confidentiality protections) that limits disclosure of such documents or information only to counsel
for the parties; the Court and its staff; experts, consultants, and vendors retained for this litigation;
and other specifically designated individuals whose assistance is reasonably necessary to the
conduct of the litigation who agree to be bound by the terms of the Order.
8. 	Filing of Confidential Information. If a party seeks to file any document
containing Confidential Information subject to protection under this Order, that party must take
appropriate action to ensure that the document receives proper protection from public disclosure,
such as: (a) filing a redacted document with the consent of the party who designated the document
as Confidential ; or (b) seeking permission to file the document under seal by filing a motion for
leave to file under seal. Nothing in this Order will be construed as a prior directive to allow any
document to be filed under seal. The mere designation of information as confidential pursuant to
this Order is insufficient to satisfy the Court’s requirements for filing under seal in light of the
public’s qualified right of access to court dockets. See IDT Corp. v. eBay, 709 F.3d 1220, 1222
(8th Cir. 2013). The parties understand that the requested documents may be filed under seal only
with the permission of the Court after proper motion. If the motion is granted and the requesting
party permitted to file the requested documents under seal, only counsel of record and
unrepresented parties with CM/ECF filing privileges will have access to the sealed documents. Pro
hac vice attorneys must obtain sealed documents from local counsel.
9. 	Discovery Disputes; Challenges to a Confidential Designation. The designation
of any material or document as Confidential Information is subject to challenge by any party.
When a party elects to challenge a confidentiality designation, the challenging party will notify the
designating party of such challenge. The designating party will, within 7 days of such notification
meet and confer in good faith with the objecting party to resolve the objection informally without
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judicial intervention. In the event the parties are unable to resolve the challenge informally,
pursuant to L.R. 37.1(B) the parties will schedule a telephone conference with the undersigned
magistrate judge. If such good faith efforts are still unsuccessful in resolving the dispute, the
designating party will within 10 days of the telephone conference file a motion that identifies the
challenged material and sets forth in detail the basis for the designation. The burden of proving the
necessity of a confidentiality designation remains with the party asserting confidentiality. Until the
Court rules on the challenge, all parties must continue to treat the materials as Confidential
Information under the terms of this Order.
10. 	Use of Confidential Documents or Information at Trial or Hearing. Nothing in
this Order will be construed to affect the use of any document, material, or information at any trial
or hearing. A party that intends to present or anticipates that another party may present Confidential
Information at a hearing or trial must bring that issue to the attention of the Court and the other
parties without disclosing the Confidential Information. The Court may thereafter make such
orders as are necessary to govern the use of such documents or information at the hearing or trial.
11. 	Obligations on Conclusion of Litigation.
(a) 	Order Remains in Effect. Unless otherwise agreed or ordered, all provisions
of this Order will remain in effect and continue to be binding after conclusion
of the litigation.
(b) 	Return of Confidential Documents. After the final termination of this
proceeding, including any appeals, a party may request the destruction or return
of all Confidential Information and all excerpts and extracts, therefrom. After
receiving such a request, the possessing party shall have 30 days in which to
either return all such information (including copies and electronic files) to the
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party that produced it or certify under oath that such materials have been
destroyed. Regardless of whether the producing party sends such notice, all
Confidential Information shall remain subject to the terms and protections of
this Protective Order. Subject to the above-referenced section, it is understood
that counsel may retain their work product, a copy of all court filings and
official transcripts, exhibits, and a complete set of their file provided that the
party that retains the materials designated as “Confidential” continues to treat
them in the manner provided herein.
12. 	Order Subject to Modification. This Order is subject to modification by the Court
on its own motion or on motion of any party or any other person with standing concerning the
subject matter. The Order must not, however, be modified until the parties have been given notice
and an opportunity to be heard on the proposed modification.
13. 	No 	Prior 	Judicial 	Determination. 	This 	Order 	is 	entered 	based 	on 	the
representations and agreements of the parties and for the purpose of facilitating discovery. Nothing
in this Order will be construed or presented as a judicial determination that any document or
material designated as Confidential Information by counsel or the parties is entitled to protection
under Fed. R. Civ. P. 26(c) or otherwise until such time as the Court may rule on a specific
document or issue. Further, the parties, by entering into this Agreement, do not waive, and
specifically reserve, any and all objections to either the discovery of, or introduction at trial of,
that material and evidence which is the subject of this Order. 	Nothing in this Order may be
construed to be a waiver of any right or privilege of any person or entity, including but not limited
to the work-product doctrine and the attorney-client privilege.
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14. 	Persons Bound by Protective Order. This Order will take effect when entered
and is binding upon all counsel of record and their law firms, the parties, and persons made subject
to this Order by its terms
15. 	Applicability to Parties Later Joined. If additional persons or entities become
parties to this lawsuit, they must not be given access to any Confidential Information until they
execute and file their written agreement to be bound by the provisions of this Order.
16. 	Protections Extended to Third-Party’s Information. The parties agree to extend
the provisions of this Protective Order to Confidential Information produced in this case by third
parties, if timely requested by the third party.
17. 	Confidential 	Information 	Subpoenaed 	or 	Ordered 	Produced 	in 	Other
Litigation. If a receiving party is served with a subpoena or an order issued in other litigation that
could compel disclosure of any material or document designated in this action as Confidential
Information, the receiving party must so notify the designating party, in writing, promptly and in
no event more than seven business days after determining the subpoena or order could require the
disclosure of such information. Such notification must include a copy of the subpoena or court
order.
The receiving party also must promptly inform in writing the party who caused the
subpoena or order to issue in the other litigation that some or all of the material covered by the
subpoena or order is the subject of this Order and deliver a copy of this Order promptly to the party
in the other action that caused the subpoena to issue.
The purpose of imposing these duties is to alert the interested persons to the existence of
this Order and to afford the designating party in this case an opportunity to try to protect its
Confidential Information in the court from which the subpoena or order issued. The designating
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party bears the burden and the expense of seeking protection in that court of its Confidential
Information, and nothing in these provisions should be construed as authorizing or encouraging a
receiving party in this action to disobey a lawful directive from another court. The obligations set
forth in this paragraph remain in effect while the party has in its possession, custody, or control
Confidential Information designated by the other party to this case.
18. 	Disclosure of Confidential Information Covered by Attorney-Client Privilege
or Work Product. Whether inadvertent or otherwise, the disclosure or production of any
information or document that is subject to an objection on the basis of attorney-client privilege or
work-product protection, including, but not limited to, information or documents that may be
considered Confidential Information under the Protective Order, will not be deemed to waive a
party’s claim to its privileged or protected nature or estop that party or the privilege holder from
designating the information or document as attorney-client privileged or subject to the work
product doctrine at a later date. Any party receiving any such information or document must
immediately return or destroy all copies of the produced protected information upon independent
discovery of the inadvertent production or upon request of the producing party. The party returning
produced protected information may thereafter seek re-production of any such documents pursuant
to applicable law. Although the provisions of this section constitute an order pursuant to Rule
502(d) and (e) of the Federal Rules of Evidence, and will be construed in a manner consistent with
the maximum protection provided by said rule, nothing in this Order is intended or will be
construed to limit a party’s right to conduct a review of documents, including electronically-stored
information, for relevance, responsiveness, or segregation of privileged or protected information
before production.
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19. 	Disputes. Should there be any dispute concerning the terms or application of this
Order, counsel for the parties shall attempt to resolve such dispute between themselves before
seeking Court intervention.
Approved by:
Dated: February 2, 2024
BARTON AND BURROWS, LLC
/s/ Stacy A. Burrows
Stacy A. Burrows, admitted pro hac vice
George A. Barton, admitted pro hac vice
5201 Johnson Drive, Ste. 110
Mission, KS 66205
(913) 563-6253
stacy@bartonburrows.com
george@bartonburrows.com
HORN AYLWARD & BANDY, LLC
/s/ Joseph A. Kronawitter
Joseph A. Kronawitter, admitted pro hac vice
Taylor P. Foye, admitted pro hac vice
Horn Aylward & Bandy, LLC
2600 Grand Boulevard, Ste. 1100
Kansas City, Missouri 64108
(816) 421-0700
jkronawitter@hab-law.com
tfoye@hab-law.com
VOGEL LAW FIRM
/s/ Joshua A. Swanson
Joshua A. Swanson, ND Bar No. 06788
R.J. Pathroff, ND Bar No. 07759
218 NP Avenue
Fargo, ND 58102
(701) 237-6983
jswanson@vogellaw.com
rpathroff@vogellaw.com
Attorney for Plaintiff(s)
Dated: February 2, 2024
CROWLEY FLECK PLLP
/s/ Paul J. Forster
Paul J. Forster (ND ID #07398)
Zachary R. Eiken (ND ID #07832)
100 W. Broadway, Suite 250
P.O. Box 2798
Bismarck, ND 58502-2798
(701) 224-7546
(701) 222-4853
pforster@crowleyfleck.com
zeiken@crowleyfleck.com
KIRKLAND & ELLIS LLP
/s/ Ragan Naresh
Daniel T. Donovan
Ragan Naresh
K. Ross Powell
Gabi Durling
1300 Pennsylvania Avenue, NW
Washington, DC 20004
(202) 389-5000
daniel.donovan@kirkland.com
ragan.naresh@kirkland.com
ross.powell@kirkland.com
gabi.durling@kirkland.com
Attorneys for Defendant
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IT IS SO ORDERED.
___________________________________
Honorable Clare R. Hochhalter
United States Magistrate Judge
Dated:______________________	February 2, 2024
/s/ Clare R. Hochhalter
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ATTACHMENT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the lead case captioned, Penman, et al. v. Hess Bakken Investments II, LLC,
Case No. 1:220-cv-00097, United States District Court District of North Dakota, and attached
hereto, understands the terms thereof, and agrees to be bound by its terms. The undersigned
submits to the jurisdiction of the United States District Court for the District of North Dakota in
matters relating to this Protective Order and understands that the terms of the Protective Order
obligate him/her to use materials designated as Confidential Information in accordance with the
order solely for the purposes of the above-captioned action, and not to disclose any such
Confidential Information to any other person, firm, or concern, except in accordance with the
provisions of the Protective Order.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name: 	______________________________________
Job Title: 	______________________________________
Employer: 	______________________________________
Business Address: 	______________________________________
______________________________________
Date: _____________ 	______________________________________
Signature
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