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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
WESTERN DIVISION
FA ND CHEV, LLC and FA ND SUB,
LLC
Plaintiffs,
)
) AMENDED
) PROTECTIVE ORDER
)
)
v. 	)
) 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. 	)
_________________________________________ )
)
BAPTKO, Inc., 	)
)
Plaintiff and Counterclaim Defendant, 	)
)
v. 	)
)
Foundation Automotive Corp, an Alberta 	)
Corporation, FA ND CHEV, LLC, and FA ND 	)
SUB, LLC 	)
)
Defendants and Counterclaimants 	)
)
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
Amended Protective Order (“Protective Order”) pursuant to Fed. R. Civ. P. 26(c).
A. 	Procedural Background
1. 	This consolidated action involves two related cases, styled FA ND CHEV, LLC, et al.
v. Robert Kupper, et al. (the “Kupper Litigation”), and BAPTKO, Inc. v. Foundation Automotive
Corp., 	et 	al. 	(the 	“BAPTKO 	Litigation,” 	and 	collectively 	with 	the 	Kupper 	Litigation, 	the
“Consolidated Cases”).
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2. 	On March 19, 2021, the Court adopted the Parties’ proposed Stipulated Protective
Order in the Kupper Litigation. (Doc. 30.)
3. 	On May 11, 2023, the Court consolidated the two cases. (Doc. 218.)
4. 	As of the date of entry of this Amended Protective Order, discovery in the Kupper
Litigation has concluded and discovery in the BAPTKO Litigation is underway.
5. 	In an effort to avoid further discovery disputes, the Parties agree that: (1) discovery
completed in the Kupper Litigation applies and can be used in the BAPTKO Litigation; and (2)
discovery taken or to be taken in the BAPTKO Litigation only applies in the BAPTKO Litigation.
6. 	As set forth herein, this Amended Protective Order shall apply in both the Kupper
Litigation and the BAPTKO Litigation.
B. 	Scope of the Protective Order
7. 	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 the Consolidated Cases, 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.
8. 	This Protective Order applies to all Parties (and their attorneys, agents, and
representatives) in the Consolidated Cases and to non-parties who provide discovery
information pursuant to subpoenas from the Parties or as part of depositions in the
Consolidated Cases. It also applies to any individual who executes the attached Exhibit 1.
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C. 	Definitions
9. 	“Party” or “Parties” means a named party or parties in the Consolidated Cases.
“Person” means an individual or an entity. “Producer” means a Person who produces information via
the discovery process in these Consolidated Cases. “Recipient” means a Person who receives
information via the discovery process in these Consolidated Cases.
D. 	Designation and Protection of Confidential Information
10. 	The Parties in the Consolidated Cases anticipate that discovery and disclosure will
include the exchange of Confidential Information. In the event a Party or non-party produces
Confidential Information, a Party may designate it in the following manner:
(a) 	By imprinting the word(s) “Confidential” 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” on each page of the document produced;
(c) 	By imprinting the word “Confidential” 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” 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 transcript as if it had been
designated as “Confidential.” Testimony that has been designated “Confidential” on
the record of the deposition shall be transcribed in a separate booklet marked
accordingly on each page.
11. 	Any Party may designate as “Confidential” any documents, materials, and
information provided or produced in the Consolidated Cases, that the Party believes in good
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15. 	A Producer may make documents or things containing Confidential Information
available for inspection and not mark them as “Confidential” without forfeiting a claim of
confidentiality, so long as the Producer causes copies of the documents or things to be marked in
faith contains the following information: Sensitive commercial information, proprietary
information, financial information, private information, and otherwise confidential
information (collectively, the “Confidential Information”).
12. A non-party that produces documents or appears for a deposition in the
Consolidated Cases, whether formally or informally, may designate documents, materials,
or information as “Confidential” 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 Consolidated Cases contain Confidential
Information, that Party may so designate.
13. The categorization, designation, and restrictions on the use of information
designated as “Confidential” 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.
14. Information is not entitled to be designated as Confidential 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 if a Person lawfully obtained it independently of these Consolidated Cases and that
Person had the unrestricted right to do so when it was obtained by that Person.
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such a manner before providing them to the Recipient in hard copy or electronic form.
E. 	Use and Disclosure of Protected Material
16. 	Information that is designated as “Confidential” shall not be used for any purpose
except for the prosecution or defense of these Consolidated Cases 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 their disclosure in these
Consolidated Cases, 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.
17. 	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.
18. 	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 these Consolidated Cases;
(d) paralegals, assistants, clerks, secretaries, and other such personnel working under
the supervision of legal counsel of record for the Parties in these Consolidated
Cases;
(e) expert witnesses and consultants, and their employees, hired by a Party to assist
in the preparation and/or trial of these Consolidated Cases , who agreed to be bound
by the terms of this Protective Order by executing Exhibit 1;
(f) representatives, agents, officers, directors, or employees of the Parties to the
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extent such disclosure is necessary for the prosecution or defense of 	these
Consolidated Cases;
(g) the Court and its personnel;
(h) court reporters involved in transcribing proceedings in these Consolidated Cases;
(i) witnesses and potential witnesses who either (i) 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 these Consolidated Cases, (iv) are the Person(s) about
whom the Confidential Information pertains (and their counsel if in the context
of a 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 these Consolidated Cases, 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
(l) Such other Persons by further order of the Court.
19. 	Other than as allowed in this Protective Order, prior to disclosing to any non-party
any information designated as “Confidential” 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-party with a copy of this Protective Order, and obtain from the non-party a written
acknowledgment in the form attached as Exhibit 1, 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
in violation of this Protective Order.
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F. 	Procedure for Filing Protected Material
20. 	Any Party bound by this Protective Order that wishes to file a document with the
Court containing information designated as “Confidential” must explore all alternatives to
seeking leave to file a document under seal.
21. 	To that end, any Party bound by this Protective Order that wishes to file a document
with the Court containing information designated as “Confidential” by another Party shall send a
written request to the designating Party. 	To avoid ambiguity as to whether a request has been
made, the written request must recite that the request to disclose is being made in accordance
with this Paragraph 21 of the Protective Order (the “Disclosure Request”). The Parties shall, in
good faith, attempt to resolve the matter informally within ten (10) days of the date of service of
the Disclosure Request, and specifically, must confer during that timeframe to determine whether
they can agree upon non-confidential redacted or excerpted pages for filing so as to avoid the
need to file under seal, or whether the designating Party will withdraw the “Confidential”
designation.
22. 	If such attempts do not resolve the matter by agreement, the Party seeking to file
the Confidential Information shall file a motion or stipulated motion for leave file the
Confidential Information under seal. 	The motion for leave to file under seal, even if it is a
stipulated motion, must include a certification that the filing Party has met and conferred with the
designating Party in an attempt to reach agreement on the need to file the document under seal,
to minimize the amount of material filed under seal, and to explore alternatives to filing under
seal.
23. 	For any and all motions for leave to file Confidential Information under seal, the
Parties shall comply with the Court’s procedures for filing documents under seal.
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G. 	Challenges to Designations
24. 	A 	Party 	may 	object 	to 	or 	challenge 	the 	designation 	of 	information 	as
“Confidential” by giving written notice to all Parties (including written notice to any non-party
that has made the challenged designation). In challenging the designation of any information as
“Confidential,” 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” which is subject to challenge shall maintain
its designation and protected status under the terms of this Protective Order until such time as the
Court rules on the challenge.
25. 	A Party may elect to rescind or alter the designation of any information as
“Confidential” by providing written notice to all Parties of record of such election.
H. 	Inadvertent Production
26. 	If Confidential Information is inadvertently produced without the legend (e.g.,
“Confidential”) attached, or with an incorrect or improper designation, such information shall be
treated nevertheless as Confidential 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
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documents, and provide notice to the Producer of said return or destruction.
27. 	If 	a Party learns that, either by inadvertence or otherwise, it has disclosed
Confidential 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
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 1. Compliance with the foregoing shall not prevent
a Party from seeking further relief from the Court.
28. 	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 these Consolidated Cases 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.
I. 	Return or Destruction of Protected Material
29. 	Within ninety (90) days after the final resolution of these Consolidated Cases,
including the expiration of any appellate review, all documents designated as “Confidential” shall
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be returned to the Party or non-party that produced such documents, or destroyed.
30. 	Notwithstanding the foregoing, counsel for each Party may retain an archivalcopy
of all pleadings, motion papers, transcripts, legal memoranda, correspondence, and attorney work
product, even if such materials contain information designated as “Confidential.” Any such
archival copies that contain or constitute information designated “Confidential” remain subject
to this Protective Order.
J. 	Survival and Jurisdiction
31. 	The terms of this Protective Order shall survive any settlement, discontinuance,
dismissal, judgment or other disposition of these Consolidated Cases.
32. 	Each Person that is shown information designated “Confidential” 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.
33. 	Other than as addressed above in Paragraph 28 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
applicable law of privilege or immunity.
K. 	Legal Process
34. 	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 these
Consolidated Cases as “Confidential,” that Party or non-party must:
(a) 	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
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subpoena or court order;
(b) 	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
(c) 	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 1 agreeing
to be bound by the terms of this Protective Order.
35. 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” 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” 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 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 directive from another court.
Dated this 31st day of August, 2023.
So ordered:
______________________________________
Clare R. Hochhalter, Magistrate Judge
United States District Court
/s/ Clare R. Hochhalter
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So stipulated:
Dated this 29th day of August, 2023.
By: 	/s/ Anna S. Day
Anna S. Day (Pro Hac Vice)
Kensye N. Wood (Pro Hac Vice)
HOLLAND & KNIGHT LLP
1801 California Street, Suite 5000
Denver, Colorado 80202
(303) 974-6647
Anna.Day@hklaw.com
Kensye.Wood@hklaw.com
Maxwell N. Shaffer (Pro Hac Vice)
LELAND SHAFFER LLP
8694 E. 28th Avenue
Denver, Colorado 80238
(720) 556-1872
Maxwell.Shaffer@lelandshaffer.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 and Defendants-
Counterclaimants Foundation Automotive
Corp, an Alberta Corporation, FA ND CHEV,
LLC, and FA ND SUB, LLC
Dated this 29th day of August, 2023.
BAKKE GRINOLDS WIEDERHOLT
By: 	/s/ Randall J. Bakke
Randall J. Bakke (#03989)
Shawn A. Grinolds (#05407)
300 West Century Avenue
P.O. Box 4247
Bismarck, ND 58502-4247
(701) 751-8188
rbakke@bgwattorneys.com
sgrinolds@bgwattorneys.com
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Attorneys for Defendant Robert Kupper and
Plaintiff-Counterclaim Defendant BAPTKO,
Inc.
Dated this 29th day of August, 2023.
ES ATTORNEYS
By: 	/s/ William Behrmann
William Behrmann (#07579)
Ryan Joyce (#09549)
1100 College Drive, Suite 5
Bismarck, ND 58501
(701) 751-1243
wbehrman@esattorneys.com
rjoyce@esattorneys.com
Attorneys for Defendant Bismarck Motor
Company
Dated this 29th day of August, 2023.
NILLES LAW FIRM
By: 	/s/ Anthony Anderson
William Harrie (#04411)
Anthony Anderson (#08744)
Nicholas Mino (#09902)
1800 Radisson Tower
201 North Fifth Street
P.O. Box 2626
Fargo, ND 58108-2626
(701) 237-5544
wharrie@nilleslaw.com
aanderson@nilleslaw.com
nmino@nilleslaw.com
Attorneys for Defendant BMC Marine LLC
d/b/a Moritz Sport & Marine
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EXHIBIT 1
ACKNOWLEDGMENT
I certify that I have read and I understand the provisions of the Amended Protective Order
(“Protective Order”) entered on the ___ day of 	, 2023 by the 	Court 	in 	the 	civil
lawsuits 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 and BAPTKO, Inc. v.
Foundation Automotive Corp.; FA ND CHEV, LLC; and FA ND SUB, LLC (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” 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
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