Thunderhawk et al v. Morton, County of, North Dakota et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Cissy Thunderhawk; Waste Win
Young; Reverend John Floberg and
Jose Zhagfiay, on behalf of themselves
and all similarly-situated persons,
Plaintiffs,
vs.
County of Morton, North Dakota;
Sheriff Kyle Kirchmeier; Governor
Doug Burgum; Former Governor Jack
Dalrymple; Director Grant Levi;
Superintendent Michael Gerhart Jr;
Tigerswan LLC; and Does 1 to 100,
Defendants.
STIPULATED PROTECTIVE ORDER
Case No. 1:18-cv-00212
The parties anticipate that, during the course of this litigation, it may be necessary for the
parties or third parties to disclose certain sensitive, confidential, or personal information
(hereinafter "Confidential Information").
Accordingly, pursuant to Federal Rules of Civil Procedure 5.2 and 26(c) and 5 U.S.C. §
552a(b)(l 1), and upon a showing of good cause in support of the entry of a Protective Order to
govern the production, discovery, and dissemination of Confidential Information, IT IS HEREBY
ORDERED:
1. Scope. This Protective Order shall apply to all documents and materials produced
during this litigation, including, but not limited to, initial disclosures, the production of documents,
responses to discovery requests, deposition testimony and exhibits, and other information derived
directly therefrom or otherwise disclosed pursuant to the Federal Rules of Civil Procedure.
2. Confidential Information. The parties, or any third party producing materials in
response to requests related to this civil action, may in good faith designate documents or
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information as "Confidential." "Confidential Information" includes the following: documents and
information that may be protected by statute, regulation, rule, or other authority; personally
identifying information protected by the Privacy Act of 1974, 5 U.S.C. § 552a (the "Privacy Act");
sensitive law-enforcement or investigative materials; trade secrets or proprietary business
information; medical information concerning any individual; and personnel or employment
records of an individual. By prior written agreement, the parties may amend this list to include
other categories of documents or information prior to disclosure.
3. Privacy Act Order. If the parties, or any third party producing materials in
response to a request related to this civil action, disclose a document or information that would
otherwise be protected by the Privacy Act, this Protective Order is an order of the Court which
allows for such disclosure.
4. Form of Designation. Any party or non-party producing documents or
information may designate as Confidential any document or information that the producing party
or non-party reasonably and in good faith believes to contain "Confidential Information" by
marking or placing the word "Confidential" on each page of the document so-designated. In the
case of Confidential Information disclosed in a non-paper medium or other medium on which a
page-by-page Confidential designation is impracticable (e.g., video tape, audio tape, computer
disks, tapes, or other storage media), the producing party or non-party may designate the
information as Confidential by marking or placing the word "Confidential" on the outside of the
medium or container and/or by identifying the contents or portions thereof as Confidential in the
cover-letter or communication accompanying the production. Any reproduction of Confidential
Information must retain its Confidential designation.
5. Depositions. Deposition testimony and exhibits may be designated as
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Confidential either on the record at the time the deposition is taken or within thirty (30) days after
receipt of the deposition transcript by the designating party. Such designation must be specific as
to the portions of the transcript to be designated as confidential and/or any exhibits to be protected.
6. 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 a reasonable time after discovery of the inadvertent failure.
7. Protection of Confidential Material. Confidential Information shall not be used
or disclosed for any purpose except the litigation of this action.
8. Who May View Designated Confidential Information. Except with the prior
written consent of the designating party or prior order of the Court, designated Confidential
Information may only disclosed to and shared only among the following persons:
a. Attorneys actively working on this matter;
b. Persons regularly employed or associated with the attorneys actively working on
this case, including in-house or agency counsel, whose assistance is required by
said attorneys in the preparation for trial, at trial, or at other proceedings in this case;
c. The employees (including in-house or agency counsel) of any party to whom
disclosure is reasonably necessary for litigation or settlement of these cases;
d. Authors and persons who were the original addressees or recipients of the document
containing Confidential Information;
e. Expert witnesses or consultants specially employed in connection with this
proceeding, to the extent such disclosure is necessary for preparation for trial, at
trial, or at other proceedings in this case;
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f. Personnel providing graphics, design, photocopy, document imaging, document
processing, translation, or database services to the parties' counsel;
g. Any mediator or special master appointed by the Court or agreed upon by parties
and such mediator's or special master's employees and staff;
h. Witnesses and court reporting personnel during or in preparation for depositions or
other testimony;
i. The Court, officers of the Court, and court personnel, including administrative staff
and judicial law clerks; and
j. Other persons by prior written agreement of the parties or order of the Court.
9. Prior to disclosing any information designated as "Confidential" to any person listed
in Paragraph 8(e), (f), or (g), the disclosing party shall provide each such person with a copy of
this Protective Order and obtain from such person a signed written acknowledgment stating that
he or she has read this Protective Order and agrees to be bound by its provisions; such
acknowledgement shall be in substantially the same form as the Acknowledgement and Agreement
to be Bound attached hereto as Attachment A. All such acknowledgments shall be retained and
shall be subject to in camera review by the Court if good cause for review is demonstrated.
10. Use of Confidential Information at Hearing or Trial. A party that intends to
present information designated as Confidential by another party or a third-party at a hearing or
trial shall inform the designating party in advance of the hearing or trial; such disclosure shall be
made in sufficient time to allow the parties to meaningfully confer concerning the intended use in
advance of the hearing or trial; following conferral, the party intending to present information
designated as Confidential by another party or a third-party at a hearing or trial shall raise its intent
to do so with the Court-by motion, pretrial memorandum, or otherwise-and such filing(s) shall
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not disclose the Confidential Information. The Court may thereafter make such orders as are
necessary to govern the use of Confidential Information at the hearing or trial.
11. Permission To Disclose Material Designated As Confidential. In the event that
the Receiving Party wishes to disclose, by filing with the Court or otherwise, any material
designated as CONFIDENTIAL under the terms of this Order, the Receiving Party shall promptly
send a written request to the Producing 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 specific Section of the Order. The parties shall in good faith attempt to resolve the matter
informally within ten (10) days of the date of service of notice. If such attempts do not resolve
the matter by agreement, the Receiving Party seeking to disclose the Confidential Information
shall move the Court to permit the disclosure, and shall submit the material for in camera review.
Any opposition to such motion shall be filed within seven (7) calendar days from the filing of the
motion. Each such motion must be accompanied by a competent declaration affirming that the
movant has complied with the meet and confer requirements imposed in the preceding
paragraph. The disputed Confidential Information shall be treated as Confidential until the Court
rules on the request. At the hearing or submission of any such Motion, the burden to prove the
need to maintain confidentiality shall be on the Producing Party. If the intended use is filing in
court, the standards to be applied are the standards for maintaining material on the Court's docket
under seal. Otherwise, the Court shall determine the need for confidentiality in accordance with
Federal Rule of Civil Procedure 26(c). No party shall file information designated as
CONFIDENTIAL unless (1) the Court orders that the party may file it publicly or (2) it is filed
under seal pursuant to this district's Administrative Policy Governing Electronic Filing and
Service and Guide to Filing Sealed Documents & Motions.
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12. Discovery. Nothing in this Order shall be deemed to affect the scope of discovery
permitted by the Federal Rules of Civil Procedure. The disclosure and designation of any
documents as Confidential pursuant to this Order by any party or non-party shall not, for the
purposes of this proceeding or any other proceeding in any other court, constitute a waiver of any
legally-recognized privilege or protection applicable to those documents. For the avoidance of
doubt, the terms of this Order shall in no way affect the right of any person: (a) to make any
objection to discovery permitted by the Federal Rules of Civil Procedure, or by any statute or other
authority; (b) to withhold information on grounds of immunity from discovery, such as the
attorney-client or deliberative-process privilege or the work-product doctrine; or (c) to raise or
assert any defenses or objections with respect to the use, authenticity, relevance, or admissibility
at trial of any evidence or documents containing Confidential Information produced pursuant to
this Protective Order.
13. Third-party requests for Confidential Information. If information designated
Confidential in this action is requested in a subpoena or other process, including but not limited to
the Freedom of Information Act or the North Dakota Open Records Statute, by someone who is
not a party in this action, the party to whom the subpoena or other process is directed shall: (a)
promptly give written notice to the designating party and include a copy of the subpoena or other
process seeking disclosure; (b) promptly notify in writing the requester who caused the subpoena
or other process to issue that some or all of the requested material is subject to this Order, which
notification shall include a copy of this Order; and (c) cooperate with respect to reasonable
procedures sought to be pursued by the designating party whose Confidential Information has been
requested. Once notified, the designating party seeking to maintain the confidentiality of any
information shall have the sole responsibility for seeking, within a reasonable amount of time, any
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order it believes necessary to prevent disclosure of the information that has been subpoenaed,
requested, or ordered. The party to which the subpoena or other process is directed will not
produce any of the material designated as Confidential while a motion for an order brought by the
designating party pursuant to this paragraph is pending, or while an appeal from or request for
appellate review of such motion is pending, unless a court orders production of materials that are
subject to this agreement, in which case production of such materials pursuant to that order shall
not be deemed a violation of this Protective Order.
14. Obligations on Conclusion of Litigation. Unless otherwise agreed or ordered,
all provisions of this Order will remain in effect and continue to be binding after conclusion of the
litigation. Within 60 days of the conclusion of this litigation, whether by settlement or final order
and judgment of this Court and any appeal(s), all copies of documents that include Confidential
Information shall be destroyed, permanently deleted, or returned to the producing party, except
with respect to: (a) material that becomes a part of the public Court record in this matter or any
appeals; (b) archival copy of all pleadings, motions, discovery responses, deposition transcripts
and exhibits, hearing transcripts and exhibits, correspondence, and expert reports, even if such
materials contain Confidential Information; (c) work product of counsel; (d) any transcripts,
exhibits, or other documents required to be maintained under the Federal Records Act, 44 U.S.C.
§ 3101 et seq., the Department of Justice's record-retention policy, or other legal obligation, to the
extent not covered in sub-section l 5(b); (e) copies of documents containing Confidential
Information that are stored on electronic media that is not reasonably accessible, such as disaster
recovery backup media, but if such data are made accessible (e.g., if a disaster recovery backup
containing Confidential Information is restored), the receiving party must take reasonable steps to
return, destroy, or permanently delete the restored Confidential Information or documents as
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provided herein; and (f) United States' law-enforcement agencies may, if in receipt of Confidential
Information that would otherwise be subject to this Protective Order, retain Confidential
Information for law-enforcement purposes. The termination of this action shall not relieve counsel,
the parties, or other persons obligated hereunder from their responsibility to maintain the
confidentiality of Confidential Information pursuant to this Protective Order. Although the Court
will not retain jurisdiction of this matter following the final disposition of this case, a party or non
party whose information has been designated as Confidential pursuant to this Protective Order may
file a motion to seek leave to reopen the case to enforce the provisions of this Order.
15. Use of a Party's Own Confidential Information. Nothing contained in this
Protective Order shall preclude any party or designating non-party from using its own Confidential
Information in any manner it sees fit.
16. Order Subject to Modification. This Order is subject to modification by the
Court sua sponte or on motion of any party or any other person with standing concerning the
subject matter upon a showing of good cause. If a request or motion for modification is made, then
the non-movant(s) shall receive notice and an opportunity to be heard before the Court rules on the
proposed modification.
17. 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 Federal Rule of Civil Procedure 26(c) or otherwise until such time as the Court may rule on
a specific document or issue.
18. Persons Bound by Protective Order. This Order will take effect when entered
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and is binding upon the parties, all counsel of record, and any party later joined to this lawsuit,
which joined party shall be provided with a copy of this Order.
19. To the extent that the State Defendants obtain confidential records in this case,
this stipulation does not usurp North Dakota Open Records Laws. To the extent there is a conflict
between this stipulation and the obligation of any written assurance by the State Defendants
executed pursuant to this stipulation and North Dakota law as it pertains to public records, North
Dakota law controls.
IT IS SO ORDERED.
Dated this __ day of _________, 2022.
BY THE COURT:
Charles S. Miller, Jr., Magistrate Judge
United States District Court
Stipulated and Agreed to by Counsel for the Parties:
/s/
No-ah�S-m�i�th--D-re�l�ic�h----
Bemard E. Harcourt
Columbia Law School
435 W. 116th St.
New York, NY 10027
(605) 863 0707
Amy P. Knight
Knight Law Firm, PC
3849 E Broadway Blvd #288
Tucson, AZ 85716
(520) 878-8849
Attorneys for Plaintiffs
/s/ ---------
9
Isl
Ra_n_d-al_l_J __ B-akk_e____ _
Shawn A. Grinolds
Special Assistant State's Attorneys for
Morton County
300 West Century A venue
P.O. Box 4247
Bismarck, ND 58502-4247
(701) 751-8188
Attorneys for Defendants Morton County and
SheriffKyle Kirchmeier
Isl-----------
6th September
/s/ Charles S. Miller, Jr.
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Aubrey J. Zuger
Michael S. Raum
Benjamin J. Hasbrouck
FREDRIKSON & BYRON, P.A.
51 Broadway, Suite 400
Fargo, ND 58102-4991
Telephone: (701) 237-8200
Attorneys for Defendant TigerSwan LLC
/s/ ----------
Thomas Kelly
Kasowitz Benson Torres LLP
1633 Broadway
New York, New York 10019
Tel. (212) 506-1872
Attorneys for third party Energy Transfer
Partners
James E. Nicolai
Deputy Solicitor General
Office of Attorney General
500 North 9th Street
Bismarck, ND 58501-4509
(701) 328-3640
Attorneys for Defendants Governor Doug
Burgum, Farmer Governor Jack Dalrymple,
Director Grant Levi, and Superintendent
Michael Gerhart, Jr.
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