United States District Court, D. North Dakota, Western Division
AGREED PROTECTIVE ORDER
R. Hochhalter, Magistrate Judge
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.
PURPOSES AND LIMITATIONS
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
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designation is changed or withdrawn.
“AEO Material” means Discovery
Material that is designated as “HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY” as
provided for in this Protective Order.
“Confidential Material” means
Discovery Material that is designated as
“CONFIDENTIAL” as provided for
in this Protective Order.
“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.
“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.
“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.
“a Non-Party” means a person,
organization or entity which is not a party to this Lawsuit.
“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.
“Party” means any party to this
Lawsuit, including all of its or his officers, directors, and
“Producing Party” means any
Party or Non-Party that discloses or produces any Discovery
Material in this Lawsuit.
“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.
“Receiving Party” means any
Party who receives Discovery Material from a Producing Party
“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.
COMPUTATION OF TIME
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.
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.
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.
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.
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.
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.
ACCESS TO AND USE OF PROTECTED MATERIAL
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.
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.
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.
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.
Secure Storage. Protected Material must be stored
and maintained by a Receiving Party in a manner that ensures
that access is limited to the ...