Case 1:05-cv-01394-DFH-TAB Document 56 Filed 01/18/2006 Page 1 of 12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RWJ COMPANIES, INC.
Plaintiff,
v. Case No.: 1:05-cv-1394-DFH-TAB
EQUILON ENTERPRISES LLC, d/b/a SHELL
OIL PRODUCTS US,
Defendant.
STIPULATED PROTECTIVE ORDER
This matter comes before the Court on joint motion and stipulation by Plaintiff RWJ
Companies, Inc. ("RWJ") and Defendant Equilon Enterprises LLC, d/b/a Shell Oil Products US
("Shell") pursuant to Rule 26(c)(7) of the Federal Rules of Civil Procedure. The purpose of this
Order is to limit the disclosure and use of information contained in documents exchanged during
the discovery process which pertains to the parties' trade secrets and confidential research,
development or commercial information, as set forth below.
1. The parties anticipate that they will exchange documents and things during the
course of this litigation which may contain trade secrets, proprietary information and other
confidential research, development or commercial information (hereinafter “Confidential” or
“Highly Confidential” information).
2. If Confidential or Highly Confidential information were to be disseminated to the
public or provided to the parties' competitors, it would harm the parties in the following manner:
a. The Non-Binding Indication of Interest for 54 Shell Branded Locations
Indianapolis Region, dated June 30, 2005, is Highly Confidential because it contains the
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successful bid in an open offering for the purchase/sale of Shell’s Indianapolis real estate,
including the offer price and other confidential terms. Dissemination of this information
to RWJ and the public would be harmful to Shell because of the proprietary nature of the
information, particularly in light of the fact that the transaction has not yet closed.
Because of the possibility that the transaction between the successful bidder and Shell
may never close, dissemination of the information contained within the successful bid
would be harmful to Shell because Shell may wish to place the real estate on the market
again. If third parties are privy to this information, it would put Shell at a disadvantage
for receiving an acceptable bid which, because of the passage of time and the incurrence
of additional expenses, may be higher than the current successful bid.
b. Documents designated by Shell as “Confidential” are confidential and
should not be disseminated to the public because they contain Shell’s trade secrets,
confidential research and development, and other commercial information, including
information concerning the nature of Shell’s business and the process by which Shell
conducts business. In particular, the following documents may contain Shell’s
confidential trade practices: Shell marketing materials, guides and brochures; Customer
Value Proposition (CVP) manuals and guides; Shell Brand manuals, guides and
brochures; Shell MSO University materials and practice guides; MSO Site Operations
manuals and guides and other training materials; Shell Health, Safety & Environment
Manual; MSO Operator meeting agenda and materials; Shell’s private website materials,
accessible only with a password; and Shell’s contracts with RWJ. Dissemination of this
material to the public will result in Shell’s competitors becoming privy to Shell’s
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confidential and proprietary information, and will put Shell at a disadvantage in the
competitive fuel industry.
3. Based upon the parties' uncontested representations, the Court finds that good
cause has been shown for entry of a protective order pursuant to Rule 26(c)(7) of the Federal
Rules of Civil Procedure, as follows.
4. This Protective Order applies only to:
a. the materials or things (including copies, transcriptions, or other
reproductions of materials) produced by a party in this action pursuant to the
discovery provisions of the Federal Rules of Civil Procedure, an order of this
Court, or otherwise; and
b. portions of deposition or hearing transcripts discussing or revealing
such materials or things;
which are designated as “Confidential” or “Highly Confidential” by the producing party under
the terms of this Order (sometimes collectively referred to herein as "Confidential Material").
5. Any party may designate as “Confidential” or “Highly Confidential” any
materials produced in this action, or any portion thereof, as well as any transcript of proceedings
such as depositions or hearings, which contain, describe, evidence, identify, or refer to
Confidential Material. Materials previously produced without being stamped “Confidential" or
“Highly Confidential” may be so designated by written notice from the producing party which
identifies the documents by Bates number or other specific description. Except where expressly
stated otherwise herein, all documents, things or transcript portions designated as Confidential
Materials shall be treated as such for all purposes of this Protective Order.
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6. Any document or thing produced in this action may be designated as Confidential
Material by marking each page that contains such Confidential Material with the word
"CONFIDENTIAL" or “HIGHLY CONFIDENTIAL.” In lieu of marking the original of a
document, if the original is not produced, the designating party may mark the copy or copies that
are produced or exchanged.
7. Confidential Materials shall be used for purposes of this action only and for no
other purpose, and shall not, without leave of this Court, be disclosed to any person or entity
except in accordance with the terms of this Order.
8. Materials marked “Confidential” shall not be disclosed or made available to
persons other than "Qualified Persons."
9. The term "Qualified Persons" includes and is limited to:
(a) Attorneys for a party (in-house or outside counsel) in this litigation, and
the law clerks, paralegals, clerical, secretarial or administrative staff of the
attorneys to whom it is appropriate that the material be shown for purposes
of this litigation;
(b) The Court, personnel of the Court (including personnel in the Clerk's
office), deposition stenographers, and deposition videographers;
(c) The directors, officers, partners, principals, employees, or agents of any
corporation or other organization that is a Party and who are assisting the
parties' attorneys in the litigation; and
(d) Expert witnesses or consultants employed by the parties or their counsel
for purposes of this litigation.
10. Materials marked “Highly Confidential” shall not be disclosed or made available
to persons other than in-house or outside counsel for a party who have signed an Affidavit in the
form of Exhibit A hereto; current or former employees of the designating party during the course
of a deposition; or the Court, provided that such materials are filed under seal.
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11. Expert Witnesses.
a. Current Employees of a Competitor of Shell: To the extent that RWJ retains an
expert witness which is currently employed by a competitor of Shell's, RWJ shall provide Shell
fifteen (15) days advance notice prior to providing that person Confidential Materials, as well as
sufficient information to enable Shell to (1) determine whether it has an objection to such
disclosure and the use of said witness and (2) seek relief from this Court. If Shell consents to
RWJ’s retention of the expert witness or the Court overrules an objection by Shell to such
retention, and RWJ does not, in fact, retain such expert witness to testify on behalf of RWJ, then
Shell and its counsel of record in this matter agree not to contact such disclosed expert witness
regarding the subject matter of the above-captioned lawsuit and regarding RWJ’s operation of
the Indianapolis Cluster, as defined in RWJ’s Complaint.
b. Former Employees of a Competitor of Shell: To the extent that RWJ retains an
expert witness which was formerly employed by a competitor of Shell's, the following process
shall apply:
i. RWJ may retain an expert witness which was formerly employed by a
competitor of Shell's without any additional notification to Shell; provided, however, that
counsel for RWJ obtains an attestation in writing from such expert witness that he/she
meets the following profile characteristics:
a. not currently or formerly involved in litigation with Shell
individually or as an owner of a business;
b. with the exception of an expert testifying on behalf of RWJ as to
its alleged damages, not subject to any other Protective Order entered in a lawsuit
involving Shell as a party;
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c. not engaged personally or through a firm as a business expert or
consultant with respect to competitors of Shell regarding alternative channels of
trade, such as the multi-site contract-operator model or other similar contract-
operator model;
d. not engaged personally or through a firm as a business expert or
consultant on behalf of any competitor of Shell concerning distribution methods
and/or channels of trade;
e. agrees not to provide expert or consultant services to any
competitor of Shell concerning distribution methods and/or channels of trade until
after the final conclusion of this action; and
f. executes the undertaking required by this Protective Order.
ii. If RWJ retains an expert witness which was formerly employed by a
competitor of Shell's that does not attest to all of the foregoing profile characteristics,
RWJ shall notify Shell of the retention of such expert witness and identify the profile
characteristics that such expert witness fails to meet. Shell shall have fifteen (15) days to
petition the Court to perform an in camera review of RWJ’s retention of the expert
witness, without disclosure to Shell of the identify of such expert witness. RWJ shall
have fifteen (15) days thereafter to respond to Shell’s objections. The Court may
consider whether suitable protections can be implemented to preserve Shell’s legitimate
concerns regarding confidentiality and may impose such protections in allowing the
expert witness to gain access to Confidential Materials. If the Court finds that the expert
witness fails to meet the foregoing profile characteristics and that there is an inadequacy
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of other measures to preserve Shell’s legitimate concerns regarding confidentiality, then
such expert witness shall be barred from gaining access to Confidential Materials.
As used in this paragraph, the phrase “employed by” shall mean “provided with a job that pays
wages or a salary.”
12. Anyone who provides Confidential Materials to a Qualified Person shall ensure
that such person has received and reviewed this Protective Order. If anyone discloses
Confidential Material to a Qualified Person described in section 10(d), they shall obtain from
said person an Affidavit in the Form of Exhibit A hereto prior to, and as a condition of, said
disclosure.
13. If Confidential Materials are used or referenced at a deposition in this case, the
parties may designate those portions of the deposition during which such Confidential Materials
are discussed as Confidential or Highly Confidential. Only "Qualified Persons" shall be present
during the discussion of any Confidential Materials. The portion of the transcript of any
deposition taken in this action which has been designated as Confidential or Highly Confidential
shall be treated as Confidential Material under the terms of this Protective Order.
14. Any member of the public or any party may challenge the designation of a
document, thing or transcript as Confidential Material at any time. In the event of such a
challenge, the challenger shall first make a reasonable attempt to resolve the dispute through
good faith negotiation with the designating party or non-party. If the matter cannot be resolved,
the challenger may file an appropriate motion with this Court. The designating party or non-
party shall have the burden to establish that its designation is supported by good cause and fits
within the terms of this Order.
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15. Nothing in this Protective Order shall be construed to preclude the party
producing Confidential Materials from seeking additional protection for such materials or the
contents of such materials. Likewise, nothing in this Protective Order shall prejudice the right of
any party or member of the public to seek relief from or modification to the requirements of this
Order for any purpose deemed sufficient by the Court.
16. Any non-party which produces documents in this case may receive the benefits of
and be bound by the terms of this Protective Order by completing an Affidavit in the form of
Exhibit A, filing it with this Court and serving it upon all parties of record.
17. Nothing in this Protective Order shall be construed to prevent this Court from
disclosing any facts relied upon by it in making or rendering any finding, ruling, order,
judgment, or decree of whatever description.
18. The Clerk of this Court is directed to maintain under seal all Confidential
Materials that are filed in Court in this litigation.
19. In the event that a party wishes to use any Confidential Materials in any
affidavits, briefs, memoranda of law, or other papers filed in Court in this litigation after the
entry of this Protective Order, such Confidential Materials shall be filed in a sealed envelope
bearing the following designation:
CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER
IN ACCORDANCE WITH THE AGREED PROTECTIVE ORDER OF THE
COURT, THE CONFIDENTIAL MATERIAL INSIDE THIS ENVELOPE
SHALL BE TREATED AS CONFIDENTIAL AND MUST NOT BE SHOWN
TO A PERSON OTHER THAN COURT PERSONNEL AND COUNSEL OF
RECORD IN THIS ACTION.
The sealed envelope containing the Confidential Material shall be maintained under seal by the
Court.
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20. Whenever Confidential Material is introduced or used at a hearing or other
proceeding, excluding trial, the portions of the proceeding that concerns such Confidential
Material shall be conducted under circumstances to ensure that only Qualified Persons have
access to such Confidential Materials. Upon the request of any party, the portions of the
transcript of any such proceeding, along with associated exhibits, that concern Confidential
Materials shall be sealed and kept confidential pursuant to the provisions of this Order.
21. This Order does not govern the handling of Confidential Material at trial. The
parties may later apply to the Court for an order governing the use of Confidential Material in
trial proceedings.
22. Except as to materials filed with the Court, within sixty (60) days after final
conclusion of this action, whether by settlement, trial, or appeal, the portions of any documents
and all reproductions of any documents produced by a party and all deposition transcripts and all
summaries that contain information designated as Confidential Material under this Order shall
either be surrendered to the designating party or destroyed, unless the Court otherwise orders.
23. This Order and any others entered in this action which restrict the communication
and use of any documents or information produced in this action shall continue to be binding
after the conclusion of this action except (a) that there shall be no restriction on documents that
are used as exhibits in Court (unless such exhibits were admitted under seal), and (b) that a party
or member of the public may seek written permission from the designating party or an order of
the Court with respect to dissolution or modification of this Order or any other protective order.
SO ORDERED:
Dated: January 18, 2006
Judge
United States District Court,
_______________________________
Southern District of Indiana
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
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Accepted and Agreed:
By /s/ David M. Harris By /s/ Thomas A. Barnard
David M. Harris Thomas A. Barnard
Michelle M. Drake Debra McVicker Lynch
Greensfelder, Hemker & Gale, P.C. Sommer Barnard Attorneys, PC
2000 Equitable Building One Indiana Square
10 South Broadway Suite 3500
St. Louis, MO 63102 Indianapolis, IN 46204
By /s/ Philip A. Whistler By /s/ Richard Shevitz
Philip A. Whistler Richard Shevitz
ICE MILLER Cohen & Malad, LLP
One American Square, Box 82001 One Indiana Square, Suite 1400
Indianapolis, Indiana 46282-0200 Indianapolis, IN 46204
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EXHIBIT A
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RWJ COMPANIES, INC.
Plaintiff,
v. Case No.: 1:05-cv-1394-DFH-TAB
EQUILON ENTERPRISES LLC, d/b/a SHELL
OIL PRODUCTS US,
Defendant.
AFFIDAVIT OF
________________________, being duly sworn, states:
1. That he/she resides at _______________________________ in the City/County
of ______________________ and State of __________________. That he/she is an employee
of __________________________.
2. That he/she has read the Stipulated Protective Order dated
____________________, 2005, in RWJ Companies, Inc. v. Equilon Enterprises LLC d/b/a Shell
Oil Products US, Case No. 1:05-cv-1394-DFH-TAB in the United States District Court for the
Southern District of Indiana.
3. That he/she is familiar with, understands and agrees to comply with and be bound
by the terms of said Protective Order.
4. That he/she will not disclose to persons other than those specifically authorized by
said Order, and will not copy or use except for the purposes of this litigation as defined in the
Protective Order, any documents or information obtained pursuant to said Order, and
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5. That he/she consents to the jurisdiction of the United States District Court for the
Southern District of Indiana, and to venue in that Court, even after final adjudication, including
settlement or other disposition, of this case, to enforce the Protective Order, to punish
disobedience of the Protective Order, and to decide all issues involving the Protective Order,
even if he/she resides or is employed outside the State of Indiana.
______________________________
(signature)
______________________________
(printed name)
______________________________
(title/position)
SWORN TO BEFORE ME and subscribed in my presence this ____ day of
_____________, 200__.
______________________________
Notary Public
840698v6
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