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CAUSE NO.

DC-14-01443
TRINITY EAST ENERGY, LLC,
Plaintiff,
v.
CITY OF DALLAS, TEXAS,
Defendant.

IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS


192nd JUDICIAL DISTRICT

STIPULATION AND PROTECTIVE ORDER


REGARDING CONFIDENTIAL INFORMATION
The Plaintiff and Defendant (collectively, the Parties and each a Party),
through their respective counsel of record as reflected by their signatures hereto, have
stipulated to the following terms of this protective order to govern the disclosure of
documents, things, and information of the Parties or non-parties in the above-captioned
cause (the Lawsuit), and have further moved this Court to enter this Protective Order
(the Protective Order); and
The Court, having reviewed the terms and conditions of this Protective Order and
the Parties stipulation hereto, and for good cause shown, hereby ORDERS that:
1.

This Protective Order shall govern the handling, use, and disclosure of certain

discovery material, which shall include documents, depositions and deposition exhibits,
interrogatory answers, responses to requests for admissions, and other written, recorded,
electronically stored, or graphic matter or information, including the contents of any of
the foregoing, produced (whether pursuant to an Order from Court, the Texas Rules of

Civil Procedure, subpoena, agreement, or otherwise) during these proceedings hereinafter


referred to as Discovery Material.
2.

Except with the prior written consent of the producing Party, any Discovery

Material produced to any Party in this Lawsuit shall be used solely for purposes of this
Lawsuit and shall not be used for any other purpose, personal or commercial or
otherwise, or disclosed to any person or used for any purpose, except as described below.
3.

Except with the prior written consent of the producing Party, any Discovery

Material that the producing Party or entity designates as Confidential shall be treated as
Protected Discovery Material, shall be used solely for purposes of this Lawsuit, and
shall not be used for any other purpose, personal or commercial or otherwise, or disclosed
to any person, published in any manner or media, including without limitation electronic
or print media, blogs, social media, social networking sites, newspapers, newsletters, listserves, chat rooms, radio, or television, or used for any purpose, except as described in
paragraphs 6 through 9 below. Any Party producing documents may designate them as
Confidential Information by marking the pages, either through the Bates labeling process
or original document creation, Confidential. A designation of Confidential shall be
made by stamping (or affixing) Confidential (a) on each page of the Discovery
Material to be treated as Confidential or Outside Counsel Only or (b) in the case of
electronically stored information, on the medium (e.g. CD or DVD) containing the
information. In addition, such designation may be made (but is not required) with respect
to electronically stored information by use of any electronic or other means reasonably
calculated to provide notice that electronically stored information is claimed to be
STIPULATION AND PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

PAGE 2

Protected Discovery Material by the producing Party, provided such electronic


designation does not alter the metadata or other properties of the electronically stored
information.

Each designation should further indicate the Party claiming Protected

Discovery Material treatment for each document, either by Bates number identifying the
Party or as part of the designation itself.
4.

A Party shall designate information, documents, or things as Confidential only

after a good faith evaluation and belief that such documents and/or things are, in fact,
entitled to such protection under law. Confidential information shall include sensitive
commercial, financial, or proprietary information or documentation.
5.

In the case of deposition testimony that contains information claimed to be entitled

to protection as Protected Discovery Material hereunder, counsel for the Party asserting
such protection shall state on the record the specific portion or information that is claimed
to be entitled to protection by this Protective Order as Confidential. Counsel shall have
the right to exclude from the deposition any person who is not authorized by this
Protective Order to receive the designated Protected Discovery Material, but such right of
exclusion shall apply only during periods of examination or testimony constituting,
involving, or relating to such designated Protected Discovery Material. Upon preparation
of the transcript of the deposition, the stenographic reporter shall segregate the testimony
transcribed and designated as Protected Discovery Material into a separate transcript
temporarily designated as Confidential. The designating Party shall thereafter, within ten
(10) business days after receipt of the full transcript (with the pages containing the
Protected Discovery Material excluded) and segregated transcript, ratify or amend, in
STIPULATION AND PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

PAGE 3

writing, the oral designation of Protected Discovery Material, including designating any
additional testimony as Confidential to the extent the designating Party believes in
good faith that such testimony warrants such designation. In so doing, the designating
Party will only designate as Confidential those pages or parts of pages of the transcript,
and any exhibits thereto, that actually contain information claimed to be entitled to such
designation. After the passage of the ten-business-day period described herein, any
portion of the transcript and exhibits not confirmed to be Confidential or not identified
for the first time as being Confidential in writing as containing Protected Discovery
Material shall cease to be so designated and so protected, and the deposition transcript
shall be corrected accordingly.
6.

Under no circumstances, other than those specifically provided for in this or

subsequent Court orders, shall Discovery Material designated as Confidential or its


contents in any way whatsoever be revealed, disclosed, or otherwise made known to
persons other than the following:
(a)

the Parties legal counsel (including counsels office attorneys,


paralegals and clerical assistants, as well as in-house counsel);

(b)

the Parties themselves (including any officer, director, partner,


member, or employee; or, in the case of the Defendant, any
councilmember, manager, or employee (each a Party
Representative)), provided that any such Party Representative has
complied with Paragraph 7, including signing the Acknowledgement
attached hereto as Exhibit A; except that the Party Representative
need not comply with Paragraph 7 and sign the Acknowledgement in
Exhibit A if the Protected Discovery Material indicates on its face
that the Party Representative has received, prepared, reviewed, or
sent the Protected Discovery Material or that the Protected
Discovery Material is an agreement to which the Party
Representative is a signatory. Any Party may also show to any Party

STIPULATION AND PROTECTIVE ORDER


REGARDING CONFIDENTIAL INFORMATION

PAGE 4

Representative, without first obtaining from the Party Representative


an executed Acknowledgement, Protected Discovery Material that
reflects a communication or agreement to which the Party
Representative was a party or in privity;

7.

(c)

deponents or witnesses, provided that any such deponent or witness


has complied with Paragraph 7, including signing the
Acknowledgement attached hereto as Exhibit A; except that the
deponent or witness need not comply with Paragraph 7 and sign the
Acknowledgement in Exhibit A if the Protected Discovery Material
indicates on its face that the deponent, witness, or his or her agent,
has received, prepared, reviewed, or sent the Protected Discovery
Material or that the Protected Discovery Material is an agreement to
which the deponent, witness, or his or her agent is a party or is in
privity with a party. Any Party may also show to a deponent or
witness, without first obtaining from the deponent or witness an
executed Acknowledgement, Protected Discovery Material that
reflects a communication or agreement to which the deponent,
witness, or his or her agent was a party or in privity;

(d)

persons specially retained with respect to this Lawsuit by any Party


or by counsel for any named Party as experts or consultants, subject
to the provisions of paragraph 7;

(e)

the Court, stenographic reporters, and its and their support


personnel, and the jury, if there is a jury trial in this lawsuit;

(f)

subject to paragraph 7, a third party for the limited purpose of


copying documents or providing messenger service for documents to
the extent reasonably necessary for use in preparation for and
participation in hearings, trial, discovery, or other proceedings in this
Lawsuit; and

(g)

subject to paragraph 7, other persons, as agreed to in writing or on


the record during any hearing in this lawsuit by the producing Party,
or as otherwise ordered by the Court, after opportunity for all Parties
to be heard.

Prior to disclosure of Protected Discovery Material to any person pursuant to

paragraphs 6(b), 6(c), 6(d), 6(f) or 6(g), counsel for the Party seeking to make such
disclosure shall inform each such person that the material is Protected Discovery Material

STIPULATION AND PROTECTIVE ORDER


REGARDING CONFIDENTIAL INFORMATION

PAGE 5

and may not be disclosed or used except as provided in this Protective Order.
Furthermore, prior to disclosure of any Protected Discovery Material to any person
pursuant to paragraph 6(b), 6(c), 6(d), or 6(g) hereof, the person shall first:

8.

(a)

read this Protective Order; and

(b)

sign a copy of the Acknowledgement attached hereto as Exhibit A


and thereby become subject to this Protective Order. A copy of the
signed Acknowledgement is to be retained by counsel for the Party
making disclosure to the person , and a copy is to be provided upon
request to counsel for any other Party.

The restrictions on disclosure of Protected Discovery Material in this Order extend

to any disclosure pursuant to any request under any open records statute, rule, ordinance,
or policy, including without limitation the Texas Public Information Act (the PIA) or
the federal Freedom of Information Act (FOIA) (collectively, an Open Records
Request), each of which includes an exception for information that is related to pending
litigation and information that may be considered confidential or proprietary. To the
extent a Party receives an Open Records Request, the Party must advise the producing
Party whose Protected Discovery Material is potentially covered by the Open Records
Request of the receipt and terms of the Open Records Request within five (5) days of its
receipt and must use all reasonable means available to assert any applicable exception to
disclosure, up to and including requesting an opinion from the Office of the Attorney
General of Texas as to the applicability of the exceptions to the Protected Discovery
Material. The Party subject to the Open Records Request shall include the producing
Party on any non-privileged correspondence or notices relating to the Open Records
Request and shall, within three business days of receipt of any non-privileged
STIPULATION AND PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

PAGE 6

communications from other parties relating to the Open Records Request, forward such
communications or notices to the producing Party.
9.

Protected Discovery Material may be introduced as evidence subject to any

hearing or trial procedures established by the Court for the protection of such Protected
Discovery Material. Counsel intending to offer Protected Discovery Material to the
Court as evidence or otherwise shall ensure that, before disclosing the Protected
Discovery Material to any person other than the Court and its personnel, such person is
first provided with a copy of this Protective Order and agrees to be bound by it as set
forth in Paragraph 7.
10.

In the event that any Party to this Lawsuit disagrees with the designation by the

designating Party of any information as Protected Discovery Material, the Parties shall
first try to resolve such dispute in good faith on an informal basis. If the dispute cannot
be resolved informally, the Party challenging the Protected Discovery Material
designation shall seek appropriate relief from the Court within 20 days of notification that
the designating Party refuses to withdraw the designation.

The Confidential

designation shall remain in place until the Court rules otherwise.


11.

Nothing shall be regarded as Protected Discovery Material if:


(a)

The information is in the public domain at the time of the disclosure


as evidenced by written documents made at the time of disclosure;

(b)

The receiving Party can show by written documents that the


information was already in its rightful and lawful possession at the
time of disclosure; or

(c)

The receiving Party receives such information at a later date from a


third party provided the receiving Party has no reason to believe that

STIPULATION AND PROTECTIVE ORDER


REGARDING CONFIDENTIAL INFORMATION

PAGE 7

such third party obtained the document in any illegal manner, and
the disclosure will not violate any non-disclosure agreement in
which the third party is bound.
12.

If a Party through inadvertence or mistake fails to designate or produces Protected

Discovery Material without marking it with the legend or other marking as


Confidential, the producer may give written notice to the receiving Party, within 10
days of discovery of the failure to designate the Protected Discovery Material as
Confidential, that the exhibit, pleading, discovery response, document or thing, or
testimony contains Protected Discovery Material and should be treated as such in
accordance with the provisions of this Protective Order. Upon receipt of such timely
notice, and upon receipt of properly marked materials, the receiving Party shall return or
destroy said unmarked materials that should have been marked and not retain any copies
thereof, and must treat such exhibits, pleadings, discovery responses, documents or
things, or testimony as Protected Discovery Material and shall cooperate in restoring the
confidentiality of such Protected Discovery Material. The inadvertent or unintentional
disclosure by a Party of Protected Discovery Material, regardless of whether the
information was so designated at the time of disclosure, shall not be deemed a waiver in
whole or in part of a Partys claim of confidentiality either as to the specific information
disclosed or as to any other information relating thereto or on the same or related subject
matter, provided that the nonproducing Party is notified and properly marked documents
are supplied as provided herein. Inadvertent production of any privileged materials or
other materials exempt from production by any Party making production of materials in
this proceeding shall not be deemed a waiver or impairment of any claim of privilege or
STIPULATION AND PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

PAGE 8

exemption (including under the attorney-client privilege or work-product doctrine)


concerning any such materials or the subject matter thereof. The terms of this paragraph
shall govern the inadvertent production of any privileged information by a Party and shall
supplement the requirements of Tex. R. Civ. P. 193.3(d).
13.

In the event a Party produces two or more identical or substantially identical

copies of a document and any such copy or substantially identical copy is designated with
a lesser degree of confidentiality than any other copy, all such identical or substantially
identical documents shall be treated in accordance with the most restrictive designation
on any copy or substantially identical copy once the inconsistent designation is known.
The producing Party shall be responsible for informing the Party receiving the
inconsistently designated information of the inconsistent designation.

Absent such

notification the Party receiving the inconsistently designated information shall not be
deemed to have violated this Protective Order should said Party fail to treat the unmarked
material as Protected Discovery Material; however, if the Party receiving the
inconsistently designated information has knowledge of the inconsistent designation, it
shall so inform the producing Party and treat all copies or substantially identical copies in
accordance with the most confidential designation.
14.

The provisions of this Protective Order shall continue to be effective after the

conclusion of this Lawsuit. This Protective Order may not be modified except upon
written agreement by all the Parties hereto or by further order of the Court.
15.

In the event of a proven violation of this Protective Order by any of the Parties in

this Lawsuit or others designated in Paragraph 6 above, all Parties acknowledge that the
STIPULATION AND PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

PAGE 9

offending Party or persons may be subject to sanctions determined in the discretion of the
Court.
16.

Nothing in this Protective Order shall be deemed to preclude any Party from

seeking and obtaining, upon an appropriate showing, additional protection with respect to
the confidentiality of documents. Nothing in this Protective Order shall prevent any
Party from using its own Protected Discovery Material in any manner.
17.

Neither this Protective Order, the production of any Discovery Material, nor the

designation of any items as Protected Discovery Material shall be construed as an


admission that such material, or any testimony in respect to such material in a deposition
transcript or otherwise, would be admissible as evidence in this Lawsuit.
18.

Within 90 days of the conclusion of this Lawsuit, including all appeals or the

running of all time to appeal, a producing Party may request the return or destruction of
any Protected Discovery Material it produced. In response to such a request, all such
Discovery Material, including all originals and copies, shall be either returned or
destroyed within 45 days; and, if destroyed, an affidavit to that effect shall be provided
by the receiving Partys attorney to the producing Party within 15 days.
19.

The requirements of this Protective Order shall apply to any designated documents

produced in this Lawsuit before the date this Protective Order is executed.

IT IS SO ORDERED on this ___ day of ______________________, 2014.

HON. JUDGE PRESIDING


STIPULATION AND PROTECTIVE ORDER
REGARDING CONFIDENTIAL INFORMATION

PAGE 10

APPROVED AND STIPULATED AS TO


FORM AND SUBSTANCE
WARREN M. S. ERNST
CITY ATTORNEY FOR THE CITY OF
DALLAS

DATE: October 29, 2014.

By: /s/ Christopher J. Caso


PATRICIA M. DE LA GARZA
Executive Assistant City Attorney
State Bar No. 13897900
patricia.medrano@dallascityhall.com
CHRISTOPHER J. CASO
State Bar No. 03969230
chris.caso@dallascityhall.com
1500 MARILLA STREET, 7DN
Dallas, Texas 75201
214.670.3519
214.670.0622 (FAX)

MOSES, PALMER & HOWELL, L.L.P.


SHAYNE D. MOSES
State Bar No. 14578980
smoses@mph-law.com
DAVID A PALMER
State Bar No. 00794416
dpalmer@mph-law.com
TIMOTHY D. HOWELL
State Bar No. 24002315
thowell@mph-law.com
Oil & Gas Building
309 West 7th Street, Suite 815
Fort Worth, Texas 76102
817.255.9100
817.255.9199 (FAX)
ATTORNEYS FOR DEFENDANT
CITY OF DALLAS

STIPULATION AND PROTECTIVE ORDER


REGARDING CONFIDENTIAL INFORMATION

PAGE 11

APPROVED AND STIPULATED AS TO


FORM AND SUBSTANCE
WINSTEAD PC

DATE: October 29, 2014.

By: /s/ Christopher A. Brown


Arthur J. Anderson
State Bar No. 01165957
aanderson@winstead.com
Christopher A. Brown
State Bar No. 24040583
cabrown@winstead.com
500 Winstead Building
2728 N. Harwood Street
Dallas, Texas 75201
(214) 745-5745 Phone
(214) 745-5390 Fax
-- and -Jeffrey C. King
State Bar No. 11449280
jking@winstead.com
301 Throckmorton
Suite 1700
Fort Worth, Texas 76102
(817) 420-8200 Phone
(817) 420-8201 Fax
ATTORNEYS FOR PLAINTIFF
TRINITY EAST ENERGY, LLC

STIPULATION AND PROTECTIVE ORDER


REGARDING CONFIDENTIAL INFORMATION

PAGE 12

EXHIBIT A

CAUSE NO. DC-14-01443


TRINITY EAST ENERGY, LLC,
Plaintiff,
v.
CITY OF DALLAS, TEXAS,
Defendant.

IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS


192nd JUDICIAL DISTRICT

ACKNOWLEDGEMENT REGARDING STIPULATION AND PROTECTIVE


ORDER REGARDING PROTECTED DISCOVERY MATERIAL
The undersigned hereby acknowledges that he or she has read the Stipulation and
Protective Order Regarding Protected Discovery Material (the Protective Order) in the
above-captioned cause (the Lawsuit); that he or she fully understands the terms thereof;
that he or she agrees to be bound by each of the terms thereof, including but not limited
to, the provisions that he or she shall not use any materials subject to said Protective
Order except for the purpose of his or her participation in the above-captioned Lawsuit;
that he or she will not disclose Protected Discovery Material or its terms, contents, or
substance to any person not expressly entitled to receive it under the terms of the
Protective Order; that he or she will not publish Protected Discovery Material or its
terms, contents, or substance in any manner or media, including without limitation
electronic or print media, blogs, social media, social networking sites, newspapers,
newsletters, listserves, chatrooms, radio, or television; that he or she will not use
Protected Discovery Material for any purpose other than the prosecution or defense of the
Lawsuit (excluding any information which properly came into his or her possession

independent of any work on the Lawsuit); and that he or she agrees to submit to the
jurisdiction of the Court in the Lawsuit for the sole purpose of enforcement of the terms
of the Protective Order.
My name is

; my date of birth is

; and

my address is

I declare under penalty of perjury that the foregoing statements are true and correct.
Executed in
of

County, State of
, 201__.

DECLARANT

ACKNOWLEDGEMENT REGARDING STIPULATION AND PROTECTIVE


ORDER REGARDING PROTECTED DISCOVERY MATERIAL PAGE 2
6380470v.8 56620-1

, on the

day

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