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KLX Energy Services LLC v. Telos Industries, Inc.

United States District Court, D. North Dakota, Western Division

December 19, 2019



          Clare R. Hochhalter, Magistrate Judge

         Plaintiff KLX Energy Services LLC (“Plaintiff”) and Defendants Telos Industries, Inc. and Dustin Adams (collectively, “Defendants, ” and together with Plaintiff, the “Parties” or individually “a Party”) anticipate that documents, testimony, information and tangible property containing or reflecting confidential, proprietary, commercially sensitive and/or trade secret information will be disclosed or produced during the course of discovery and disclosures in the above captioned lawsuit (the “Lawsuit”). To facilitate disclosure and production and to protect the relative interests of the Parties, the Parties stipulate to and request that this Court enter this Agreed Protective Order (“Protective Order”) pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, setting forth the conditions for obtaining, treating, and using such disclosures and productions.


         (a) Under the terms of this Protective Order, Protected Material (defined below) received by a Receiving Party (defined below) shall be used only for purposes of the prosecution and defense of this Lawsuit, shall not be used for any business purpose or other purpose whatsoever, and shall not be used or shown, disseminated, copied, or otherwise disclosed to anyone not entitled to such Protected Material as provided in this Protective Order. All Protected Material shall be carefully maintained by the Receiving Party to preclude access by persons who are not entitled to receive such Protected Material.

         (b) The Parties acknowledge that this Protective Order does not confer blanket protections on all disclosures during discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential or trade secret treatment under the applicable legal principles. Designations under this Protective Order shall be made with both care and a good faith belief that the Protected Material satisfies the criteria set forth below. If it comes to a Producing Party's attention that Protected Material does not qualify for the level of protection initially asserted or for protection at all under this Protective Order, the Producing Party must promptly notify all other Parties that the designation is changed or withdrawn.

         2. DEFINITIONS

         (a) “AEO Material” means Discovery Material that is designated as “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” as provided for in this Protective Order.

         (b) “Confidential Material” means Discovery Material that is designated as “CONFIDENTIAL” as provided for in this Protective Order.

         (c) “Designated Employees” means an officer or employee of the Receiving Party whose knowledge of AEO Material is necessary to the prosecution or defense of one or more claims in the Lawsuit.

         (d) “Discovery Material” means all items or information, including from a Non-Party, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible items) that are produced, disclosed, created or generated in connection with discovery or Rule 26(a) disclosures in this Lawsuit.

         (e) “In-House Counsel” means (i) licensed attorneys employed in the capacity of an attorney within the Party, and (ii) their immediate paralegals and staff to whom disclosure is reasonably necessary.

         (f) ““Non-Parties” or “a Non-Party” means a person, organization or entity which is not a party to this Lawsuit.

         (g) “Outside Counsel” means (i) outside counsel of record for a Party, (ii) partners, associates, attorneys, and employees of the law firm of such counsel to whom it is reasonably necessary to disclose the information for this Lawsuit, and (iii) their immediate paralegals and staff, and any copying or clerical litigation support services working at the direction of such counsel, paralegals, and staff.

         (h) “Party” means any party to this Lawsuit, including all of its or his officers, directors, and employees.

         (i) “Producing Party” means any Party or Non-Party that discloses or produces any Discovery Material in this Lawsuit.

         (j) “Protected Material” means any Discovery Material that is designated as Confidential Material or AEO Material as provided for in this Protective Order. Protected Material shall not include any item or information that (i) is or has become publicly known through no fault of the Receiving Party; (ii) is lawfully acquired by or known to the Receiving Party independent of the Producing Party; or (iii) was previously produced, disclosed and/or provided by the Producing Party to the Receiving Party or a Non-Party without an obligation of confidentiality and not by inadvertence or mistake. The descriptions in (i)-(iii) in this section (h) are not exhaustive of Discovery Material that may be excluded from Protected Material.

         (k) “Receiving Party” means any Party who receives Discovery Material from a Producing Party or Non-Party.

         (1) “Retained Expert” means an individual retained by a Party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial in this Lawsuit, regardless of whether such person is a consulting or testifying expert.


         The computation of any period of time prescribed or allowed by this Protective Order shall be governed by the provisions for computing time set forth in Federal Rule of Civil Procedure 6 and the Local Rules for the District of North Dakota.

         4. SCOPE

         (a) The protections conferred by this Protective Order apply not only to all Discovery Material, but also to any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by Parties or their counsel in court or in other settings relating to this Lawsuit that might reveal Protected Material.

         (b) Nothing in this Protective Order shall prevent or restrict a Producing Party's own disclosure or use of its own Discovery Material for any purpose.

         (c) Nothing in this Protective Order shall be construed to prejudice any Party's right to use any Discovery Material in court or in any court filing with the consent of the Producing Party or by order of the Court.

         (d) This Order is without prejudice to the right of any Party to seek further or additional protection of any Discovery Material or to seek to modify this Order in any way, including, without limitation, an order that certain matter not be produced at all.

         5. DURATION

         The confidentiality obligations imposed by this Protective Order shall remain in effect even after the termination of this Lawsuit until a Producing Party agrees otherwise in writing or a court order otherwise directs.


         (a) Basic Principles. All Protected Material shall be used only as set forth in this Protective Order, and such use shall be solely for this Lawsuit and any related appellate proceeding, and not for any other purpose. Protected Material shall not be distributed, disclosed or made available to any persons, organizations or entities except as expressly provided in this Protective Order.

         (b) AEO Material. Absent the written consent of the Producing Party, no person other than Outside Counsel, In-House Counsel, Retained Experts, and Designated Employees of each Party, may receive AEO Material. Recipients of AEO Material under this provision understand and agree that they may not keep or retain copies of AEO Material after the conclusion of the Lawsuit, and that that their use is limited for purposes of this Lawsuit only. Disclosure of AEO Material received from any Party shall not be made to any person who is a designated employee under this paragraph until seven (7) days after (1) said person been provided with a copy of this Protective Order, agreed to be bound by it, and signed an agreement in the same form as Exhibit A to this Protective Order; and (2) a copy of such agreement(s) has been provided to the designating party.

         In the absence of an objection at the end of the seven (7) day period, the designated employee(s) shall be deemed approved under this Protective Order.

         If the designating party has an objection to the designated employee(s) receipt of AEO Material, said party must make a timely objection in writing setting forth the objection(s) within the seven (7) days. If the parties cannot resolve the dispute regarding the designated employee, the party seeking to preclude the disclosure to the designated employee may seek relief from the Court. If relief is not sought from the Court within that time, the objection shall be deemed withdrawn. If relief is timely sought, Protected Materials shall not be disclosed to the Potential Recipient in question until the Court resolves the objection.

         (c) Secure Storage. Protected Material must be stored and maintained by a Receiving Party in a manner that ensures that access is limited to the ...

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