Filed: Jul. 12, 2016
Latest Update: Jul. 12, 2016
Summary: STIPULATED PROTECTIVE ORDER VALERIE P. COOKE , Magistrate Judge . This Stipulated Protective Order has been agreed to by the Plaintiffs and Defendants in the above-captioned action. The Intervenor Defendants have advised that they do not need to see the information that has been identified as confidential, agree they will not be provided the confidential information, will not be subject to this Stipulated Protected Order, and do not object to the filing of this Stipulated Protective Order w
Summary: STIPULATED PROTECTIVE ORDER VALERIE P. COOKE , Magistrate Judge . This Stipulated Protective Order has been agreed to by the Plaintiffs and Defendants in the above-captioned action. The Intervenor Defendants have advised that they do not need to see the information that has been identified as confidential, agree they will not be provided the confidential information, will not be subject to this Stipulated Protected Order, and do not object to the filing of this Stipulated Protective Order wi..
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STIPULATED PROTECTIVE ORDER
VALERIE P. COOKE, Magistrate Judge.
This Stipulated Protective Order has been agreed to by the Plaintiffs and Defendants in the above-captioned action. The Intervenor Defendants have advised that they do not need to see the information that has been identified as confidential, agree they will not be provided the confidential information, will not be subject to this Stipulated Protected Order, and do not object to the filing of this Stipulated Protective Order without their signatures. This Stipulated Protective Order is agreed to by and among Plaintiff Western Exploration, LLC, and Defendants U.S. Department of the Interior et al. ("Party" and/or collectively, the "Parties") in the case captioned Western Exploration, LLC vs. U.S. Department of the Interior, et al., pending as Docket No. 3:15-cv-00491-MMD-VPC in the United States District Court for the District of Nevada (the "Litigation"), and their respective counsel. Each of these Parties to the Litigation and their respective counsel hereby agree to be bound by the terms of this Stipulated Protective Order.
1. Plaintiff Western Exploration, LLC ("WEX") filed a Motion to File Exhibit to Plaintiffs' Reply in Support of Motion for Summary Judgment Under Seal on June 13, 2016 (ECF 81) which seeks an order allowing WEX to file an unredacted copy of the Declaration of Marceau Schlumberger ("Declaration") under seal, and to publicly file a redacted copy of the Declaration, because the declaration contains confidential business information of WEX that if disclosed would cause competitive harm to WEX, and confidential business information of third parties. Defendants are required to protect this confidential information in accordance with applicable laws and regulations, including Exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4), and the Trade Secrets Act, 18 U.S.C. § 1905. Nothing in this Protective Order shall be construed to limit the authority of the United States to undertake any action pursuant to applicable law or regulation.
2. This Protective Order is intended to cover said sensitive information which is contained in the Declaration (hereinafter, the "Confidential Information").
3. The Parties and their respective counsel shall hold in trust and confidence, and not disclose to others, any Confidential Information which has been or is disclosed by WEX. Confidential Information shall not be used by counsel or any other person for any purpose other than the defense of this action. This paragraph shall survive and continue after any expiration or termination of this Protective Order and shall bind the Parties.
A. The undertakings and obligations of the Parties under this Protective Order shall not apply to any information which is produced that is available to the public, or is otherwise in the public domain through no action or fault of the Parties.
B. The Parties agree to store the Confidential Information securely and to ensure appropriate measures are taken to protect against the unauthorized or unintended access, use or disclosure of the Confidential Information.
C. The Parties agree that, except as provided in this Protective Order, they will not copy or reproduce the Confidential Information mechanically, digitally or otherwise, or disseminate the Confidential Information to any third party other than their respective counsel unless required to do so in connection with a submission to the Court in camera.
D. In the event the Parties are required to disclose the Confidential Information to experts they may hire or agency personnel, the Parties may disclose the Confidential Information to their experts or agency personnel only after such experts agree in writing to be bound by this Protective Order, pursuant to the form attached hereto as Exhibit A, affirming that the recipient: (i) has read this Order and understands all of its terms; (ii) agrees to abide by and to be bound by the terms of this Order; (iii) agrees to submit to the Court's jurisdiction, for purposes of enforcement of this Order by proceedings for contempt and/or proceedings for legal and/or equitable relief, including damages, for a breach thereof. Counsel shall retain such Confidentiality Agreement until such time as the litigation, including all appeals, is concluded and counsel has retrieved all Confidential Information from the recipient pursuant to this Order. Counsel are responsible for ensuring that their legal, paralegal, clerical staff, and their experts or consultants and any agency personnel comply with this Order.
E. The Parties hereto further agree to the following terms and conditions:
i. Any breach by the Parties (or their counsel or their experts) of any obligations under this Protective Order may result in irreparable injury to WEX for which damages and other legal remedies could be inadequate. In seeking enforcement of any of these obligations, WEX may seek (in addition to other remedies) to preliminary and permanent injunctive and other equitable relief to prevent, discontinue and/or restrain the breach of this Protective Order.
ii. Subject to the procedures set forth herein, no documents containing, or otherwise disclosing Confidential Information shall be publicly filed with the Court. Confidential Information shall be submitted to the Court under seal as follows: (a) the original signed copy of any pleadings containing, referring to, or otherwise disclosing Confidential Information shall be electronically filed with the Clerk of the Court in the normal manner under the Local Rules of this Court, but the Confidential Information contained, referred to, or otherwise disclosed therein shall be redacted (and bear the stamp "redacted") so that it does not appear in the publicly filed copy of the pleading or filing; and (ii) unless otherwise permitted by statute, rule or prior court order, the party shall electronically file the unredacted document under seal, along with a contemporaneous motion for leave to file those documents under seal, consistent with and following the court's electronic filing and service procedures in Local Rule IA 10-5. Notwithstanding any agreement among the parties, the party seeking to file a paper under seal bears the burden of overcoming the presumption in favor of public access to papers filed in court. Kamakana v. City and County of Honolulu, 447 F.2d 1172 (9th Cir. 2006); Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 677-78 (9th Cir. 2010). After filing the document under seal, the filing party shall file a Notice of Filing Under Seal.
iii. This Protective Order in no way affects or relieves any party of its responsibility to comply with any federal, state or local law or regulation. Nothing in this Protective Order alters the rights and/or liabilities of the parties with respect to the litigation.
iv. This Protective Order shall govern all proceedings in this action and survive the termination of the case and is binding on all parties until further notice of the Court.
v. Within ninety (90) days of the closing or dismissal of the Litigation, the Defendants and Intervenors and any of the Defendants' and Intervenors' experts who have executed Exhibit A to the Protective Order shall return to WEX, through WEX's undersigned counsel, all hard copies of the Confidential Information and shall certify in writing to WEX that they have made their best efforts to permanently delete or otherwise destroy all electronic copies in the possession or control of that party to the Protective Order. All counsel of record who received Confidential Information shall make certification of compliance herewith and shall deliver the same to the producing party not more than 90 days after final termination of this litigation, including all appeals. Counsel, including any person who obtained access to the Confidential Information pursuant to this Order, shall be barred from disclosing such information thereafter.
vi. The Court may sanction counsel, their staff, or any person who obtained access to the Confidential Information pursuant to this Order, as appropriate for violation of this Order.
vii. Subject to the Federal Rules of Evidence, Confidential Information may be offered at any court hearing, provided that the proponent of the evidence gives reasonable notice to all counsel and to the Court. Any party may move the Court for an order that the evidence be received in camera or under other conditions to prevent unauthorized disclosure.
IN WITNESS WHEREOF, the parties have executed this Protective Order as of the date first above written.
Respectfully submitted this 22nd day of June, 2016.
DATED: June 22, 2016 DATED: June 22, 2016
Davis Graham & Stubbs LLP
By: /s/ Lawrence VanDyke
By: /s/ Laura K. Granier Adam Paul Laxalt, Esq. (SBN 12426)
Laura K. Granier, Esq. (SBN 7357) Attorney General
50 W. Liberty Street, Suite 950 Lawrence VanDyke (NSB 13643C)
Reno, NV 89501 Solicitor General
(Tel) 775-229-4219 C. Wayne Howle (NSB 3443)
(Fax) 775-403-2187 Chief Deputy Attorney General
100 North Carson Street
Attorneys for Counties and Private Plaintiffs Carson City, NV 89701
(Tel/Fax) 775-684-1100/684-1108
Attorneys for Plaintiff State of Nevada
DATED: June 22, 2016 DATED: June 22, 2016
JOHN C. CRUDEN
By: /s/ Michael W. Large Assistant Attorney General
Christopher Hicks, Esq. (NSB 7747)
District Attorney
Michael W. Large, Esq. (NSB 10119) By: /s/ Luther L. Haiek
Deputy District Attorney LUTHER L. HAJEK, Trial Attorney
1 South Sierra Street, South Tower, 4th Floor BARCLAY SAMFORD, Trial Attorney
Reno, Nevada 89501 U.S. Department of Justice
775-328-3200 (Telephone) Environment and Natural Resources Division
Natural Resources Section
Attorneys for Plaintiff Washoe County, Nevada 999 18th Street
South Terrace, Suite 370
Denver, CO 80202
Tel: 303-844-1376/303-844-1475
Fax: 303-844-1350
E-mail: Luke.Hajek@usdoj.gov
Clay.Samford@usdoj.gov
TANYA NESBITT, Trial Attorney
U.S. Department of Justice
Environment and Natural Resources Division
Natural Resources Section
601 D Street, NW
Washington, DC 20004
Tel: 202-305-0457/Fax: 202-305-0274
E-mail: Tanya.Nesbitt@usdoj.gov
Attorneys for Defendants
IT IS SO ORDERED.
EXHIBIT A
CONFIDENTIALITY AGREEMENT
I, _________________________ hereby acknowledge, agree and certify under penalty of perjury that:
1. I have read the Stipulated Protective Order entered in the Western Exploration, LLC vs. U.S. Department of the Interior, et al., pending as Docket No. 3:15-cv-00491-MMD-VPC in the United States District Court for the District of Nevada (the "Litigation") (the "Order").
2. I understand the terms of the Order.
3. I hereby agree to be bound by the terms of the Order and understand that a violation thereof may subject me to contempt proceedings and to legal and equitable remedies, including damages.
4. I understand and agree that money damages would not be a sufficient remedy for breach of this Order and that a party that asserts the confidential interest shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. I agree to waive any requirement for the securing or posting of any bond in connection with such remedy. Such remedy shall not be deemed to be the exclusive remedy for breach of this order but shall be in addition to all remedies available at law or equity.
5. I hereby irrevocably submit to the jurisdiction of the United States District Court for the District of Nevada, or any other court of competent jurisdiction, for purposes of ensuring compliance with the terms and conditions of the Order and for civil remedies in the form of legal and equitable relief, including damages, for any breach thereof.
Date: _________________________
Printed Name: _________________
Signature: ____________________
