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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Wells Fargo Bank, N.A.,

Plaintiff,

v.

WYO TECH Investment Group, LLC; CWT 

Canada II Limited Partnership; Resources 

Recovery Corporation; and Jean Noelting,

Defendants.

WYO TECH Investment Group, LLC,

Cross-Claimant,

v.

CWT Canada II Limited Partnership, 

Resources Recovery Corporation, and Jean 

Noelting,

Cross-Claim Defendants.

WYO TECH Investment Group, LLC,

Third Party Plaintiff,

v.

Schlam Stone & Dolan, LLC, a New York 

Limited Liability Partnership; and Jeffrey M. 

Eilender,

Third Party Defendants.

Case No.: 2:17-CV-04140-DWL

PROTECTIVE ORDER

The Court, having reviewed the parties’ Stipulation and Joint Motion for Protective Order 

and good cause therefor appearing, 

IT IS HEREBY ORDERED that any documents or information produced by any Party in 

this case in response to discovery requests, during any deposition or as part of any disclosure

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statement or produced by any third party in response to any Subpoena, shall be subject to the 

protections described herein below:

Purpose of Protective Order.

It is the purpose of this Protective Order to prevent the unwarranted disclosure of 

confidential, sensitive, and/or privileged information of the Parties in this lawsuit without frequent 

resort to determinations of discoverability by the Court.

I. Definitions.

A. Party. “Party” means any party to this action, including officers, employees, and 

agents of such parties.

B. Counsel. “Counsel” means counsel for any Party and any stenographic, clerical, 

and paralegal employees, or outside copy services whose duties and responsibilities in the conduct 

of this action require access to Protected Material. 

C. Discovery Material. “Discovery Material” means:

(1) any information, document, including electronic media, tangible thing, 

response to discovery requests pursuant to FED. R. CIV. P. 33, 34, or 36;

(2) any deposition testimony or transcript revealed during depositions upon 

oral or written examination pursuant to FED. R. CIV. P. 30 or 31;

(3) any document, thing, or premises made available for inspection or 

produced to the Receiving Party pursuant to the Mandatory Initial 

Discovery Pilot Project, FED. R. CIV. P. 26, 33(c), or 34;

(4) any document, thing, or premises made available for inspection or 

produced to the Receiving Party in response to a subpoena pursuant to 

FED. R. CIV. P. 45; and

(5) any other similar materials or portions thereof.

D. Producing Party. “Producing Party” means a Party or any third party that 

produces or otherwise makes available Discovery Material to a Receiving Party. This Order shall 

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apply to and may be invoked by a Party with respect to any third party that is required to produce 

or otherwise make Discovery Material available to a Receiving Party.

E. Receiving Party. “Receiving Party” means a party to this action, including all 

employees, agents, and directors (other than Counsel) of the party, who receives Discovery 

Material from a Producing Party.

F. Materials Marked CONFIDENTIAL. “CONFIDENTIAL” means information 

or material that constitutes or contains proprietary or other confidential business information, or 

sensitive or privileged information such as non-public financial information, the public disclosure 

of which would be detrimental to that Party. Information and materials are not properly 

designated CONFIDENTIAL if they are in the public domain.

G. Protected Material. “Protected Material” means any Discovery Material, and any 

copies, abstracts, or summaries of Discovery Material, and any notes or other records embodying 

or disclosing the contents of such Discovery Material, that is designated as CONFIDENTIAL.

H. Professional Vendor. “Professional Vendor” means an established professional 

that provides litigation support services (e.g., photocopying, court reporting, videotaping, 

translating, preparing exhibits or demonstrations, organizing, storing, retrieving data in any form 

or medium, etc.) and its respective secretarial, clerical and other assistants to whom it is necessary 

or useful to disclose Protected Material for the purpose of this action.

I. Independent Expert. “Independent Expert” means an expert and/or independent 

consultant actually retained or employed to advise or to assist a Party and/or their Counsel in the 

preparation and/or trial of this action and who is not employed by any Party or affiliate of any 

Party, and its assistants who are not employed by a Party, to whom it is necessary or useful to 

disclose Protected Material for the purpose of this action.

II. Designation of Protected Material.

Any document, any information produced on computer-related media, and any portion 

of oral testimony produced or given in this action that is asserted by a Party to contain or constitute 

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CONFIDENTIAL INFORMATION shall be so designated by that Party. Each page of each 

document, and the front of each disk, that contains CONFIDENTIAL information shall be marked 

on its face with a legend substantially in the form “CONFIDENTIAL – SUBJECT TO 

PROTECTIVE ORDER.” In the event of oral testimony, the Party or non-party offering or 

sponsoring the testimony shall identify on the record, before the close of the deposition, hearing, 

or other proceeding, whether any of the testimony may be subject to this Protective Order, and 

shall, if possible, specify those portions of the testimony that qualify as “CONFIDENTIAL 

INFORMATION.” When it is impractical to identify separately each portion of testimony that is 

entitled to protection and when it appears that substantial portions of the testimony may qualify 

for protection any Party or the witness who gives the testimony may invoke on the record (before 

the deposition or proceeding is concluded) a right to have up to 10 days after receipt of the 

transcript to identify the specific portions of the testimony as to which protection is sought. 

Transcript pages containing or constituting CONFIDENTIAL INFORMATION shall be 

separately bound by the court reporter and marked “CONFIDENTIAL” on each page. If the 

Receiving Party wishes to show non-CONFIDENTIAL portions of a document or transcript 

containing CONFIDENTIAL information to a person not described below in Paragraph 4(a), it 

shall first redact all pages designated CONFIDENTIAL.

III. Access to Protected Material.

A. In the absence of written permission from the Producing Party, the Party who 

designated materials as CONFIDENTIAL or an Order of the Court, any CONFIDENTIAL 

information produced in accordance with the provisions of Paragraph II above shall be used solely 

for purposes of the prosecution and defense of the above-entitled litigation and shall not be 

disclosed to or discussed with any person other than: (i) Counsel for the Receiving Party, as 

defined above; (ii) employees of the Receiving Party whose review of such information is 

reasonably required for the conduct of the above-entitled litigation; (iii) Professional Vendors who 

are engaged for the purpose of this action by the Receiving Party and their support personnel; (iv) 

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Independent Experts who are engaged for the purpose of this action and their support personnel; 

(v) the individual who authored, prepared or received the information, or who—based on the face 

of the CONFIDENTIAL information—already saw the CONFIDENTIAL information; (vi) 

certified court reporters and videographers taking testimony involving such CONFIDENTIAL 

information; (vii) authorized court personnel (of this Court or any appellate court in the event of 

an appeal of this action) and jurors or prospective jurors in this action; (viii) potential witnesses—

provided they have first signed an agreement to be bound by the terms of this Protective Order 

and are not allowed to retain copies of Protected Material, as provided under Paragraph III(B) 

below; (ix) mock jurors and jury consultants retained to assist Counsel in this action—provided 

those individuals have first signed an agreement to be bound by the terms of this Protective Order

and are not allowed to retain copies of Protected Material, as provided under Paragraph III(B) 

below; (x) witnesses (including their separate Counsel and, in the case of testifying experts, their 

assistants and clerical staff), whose testimony relates to the CONFIDENTIAL information—

provided they are not allowed to retain copies of Protected Material, as provided under Paragraph 

III(B) below; (xi) private investigators and other consultants, including their assistants and clerical 

staff, that Counsel retain, engage, or consult to assist them in this action; (xii) subpoena recipients 

whom a Party reasonably believes to be relevant to the case and whom a Party subpoenas (or 

attempts to subpoena) in the good-faith prosecution or defense of this action—provided no copies 

of any part of any Protected Material are attached to or made part of any subpoenas unless the 

subpoena recipient is otherwise permitted to see the Protected Material under this Order; and 

(xiii) any law enforcement agency, to whom any Party may provide CONFIDENTIAL 

information if that Party reasonably believes that the CONFIDENTIAL information is evidence 

of a crime. Counsel and their private investigators, consultants and retained experts are prohibited 

from directly contacting any persons identified in any CONFIDENTIAL information unless that 

contact is done for a valid, good-faith purpose related to a Party’s prosecution or defense of claims 

in this litigation and subject to all ethical rules governing and limiting contact with represented 

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parties. The foregoing restriction shall not apply to or restrict a Party’s ability to issue any 

appropriate subpoenas to persons identified in Protected Material.

B. Custody of Protected Material. All documents containing information designated 

CONFIDENTIAL and notes or other records regarding that information shall be maintained in 

the custody of Counsel for the Parties only, and no partial or complete copies thereof containing 

Protected Material shall be retained by anyone else, except that outside experts and consultants 

may retain documents on a temporary basis for purposes of study, analysis, and preparation of the 

case. A person with custody of Protected Material shall maintain it in a manner that limits access 

to persons authorized pursuant to this Order to have access to Protected Material.

C. Outside experts and Consultants. Subject to the provisions of this Order, all 

Protected Material may be disclosed to an Independent Expert or Consultant who has agreed in 

writing or on the record of a deposition to be bound by this Order. In addition, subject to the 

provisions of this Order, all Protected Material may be disclosed to Professional Vendors who 

have agreed in writing to be bound by this Order.

D. The limitation on disclosure contained in this Protective Order shall not apply to 

documents or information that (i) were already in the possession of the Receiving Party without a 

restriction from any party to this litigation; (ii) are received from a non-party without restriction; 

or (iii) are or become published or available in a manner that is not in violation of this Protective 

Order.

Nothing in this Protective Order affects the rights of a Party to use and disclose its own 

Protected Materials.

Nothing in this Protective Order prohibits any person from disclosing 

CONFIDENTIAL information in accordance with a subpoena, court order, or other legal process. 

Within two business days of receiving a subpoena, court order, or other legal process requiring 

the disclosure of CONFIDENTIAL information, the person who receives such a subpoena, court 

order, or other legal process will provide a copy to the party whose CONFIDENTIAL information 

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is requested.

IV. Court Procedures.

For applications and motions to the Court in which a party submits Protected Material, 

all documents containing CONFIDENTIAL information which are submitted to the Court shall 

be filed with the Court in sealed envelopes or other appropriate sealed containers which shall 

indicate the nature of the contents of the sealed envelope or other container and a statement 

substantially in the following form:

“FILED UNDER SEAL – CONFIDENTIAL, THIS ENVELOPE CONTAINS 

INFORMATION THAT IS SUBJECT TO A PROTECTIVE ORDER ISSUED BY THE 

COURT AND IS NOT TO BE OPENED OR THE CONTENTS REVEALED EXCEPT 

BY ORDER OF THE COURT.”

Documents containing CONFIDENTIAL information, may be openly submitted to the 

Court without regard to the foregoing procedure if and only if all CONFIDENTIAL information 

in the documents has been fully redacted.. Any unredacted versions of such documents must be 

filed with the Court under seal as described above. Notwithstanding the foregoing, a party filing 

documents under seal or in redacted form can and should provide unredacted copies of said 

documents to the Court via email or hand delivery directly to the Judge or his/her staff.

Any Party may make an application to the Court to hold any Court hearing which refers to 

or describes CONFIDENTIAL information in camera, and to keep any transcripts or recordings 

thereof under seal.

At any trial of this action, any Party may make an application to the Court to continue 

confidentiality with such added and consistent confidentiality orders as the Court may deem 

warranted in advance thereof.

Notwithstanding the above, any Party may apply to the Court for an order allowing the 

filing of the papers containing CONFIDENTIAL information, if that Party believes the filing of 

the papers is necessary for a complete record. Any such papers shall be placed by the submitting 

party in a sealed envelope labeled as set forth above. Any papers containing Protected Material 

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shall be returned to the Producing Party upon dismissal or final judgment in the action.

V. Handling of Protected Material.

A. Nothing herein shall restrict a person authorized to have access pursuant to 

Paragraphs III(A) or III(B) from making working copies, abstracts, digests, and/or analyses of 

Protected Material for use in connection with this action. Such working copies, abstracts, digests, 

and analyses shall be deemed to have the same level of protection as the original Protected 

Material under the terms of this Protective Order. Further, nothing herein shall restrict an 

authorized recipient from converting or translating such information into machine-readable form 

for incorporation in a data retrieval system used in connection with this action, provided that 

access to such information, in whatever form stored or reproduced, shall be limited to authorized 

recipients.

B. If a Party through inadvertence produces any CONFIDENTIAL information 

without labeling or marking or otherwise designating it as such in accordance with the provisions 

of this Order, the Producing Party shall give written notice to the Receiving Party within thirty 

(30) days of the inadvertent production that the document or thing produced is deemed 

CONFIDENTIAL and should be treated as such in accordance with the provisions of this 

Protective Order. Promptly upon providing such notice to the Receiving Party, the Producing 

Party shall provide the Receiving Party with another copy of the documents or things that bear the 

new designation under this Order, at which time the Receiving Party shall return the originallyproduced documents and things to the Producing Party. The Receiving Party’s disclosure, prior 

to the receipt of notice from the Producing Party of a new designation, to persons not authorized 

to receive such information shall not be deemed a violation of this Protective Order. However, 

the Receiving Party shall make a good faith effort to immediately retrieve such information from 

such persons not authorized to receive such information and to obtain agreement from the person 

to whom the disclosure was made to be bound by this Protective Order. If such efforts are 

unsuccessful, the Receiving Party shall notify the Producing Party of the disclosure and the 

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identity of the person or entity to whom the disclosure was made. If the Producing Party fails to 

give written notice as described above within thirty (30) days, it shall be deemed to have waived 

any right to later designate unmarked information or documents as being CONFIDENTIAL.

VI. Designation not Determinative of Status.

A Party shall not be obligated to challenge the propriety of a confidentiality designation 

at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. The 

designation or failure to designate material as CONFIDENTIAL shall not be determinative of that 

material’s status as confidential, sensitive, privileged, and/or proprietary information. All 

challenges to the propriety of a confidentiality designation shall first be made in writing by a letter 

or other document identifying the specific material challenged. Within five (5) court days of such 

a challenge, the Producing Party shall substantiate the basis for such designation in writing to the 

other Party, or forever waive the protections of this Order with respect to the challenged 

information. The Parties shall first attempt to resolve such challenge in good faith on an informal 

basis. If the dispute cannot be resolved, the Party challenging the designation may seek 

appropriate relief from the Court. The burden of proof shall be on the Party claiming 

confidentiality. Any document designated in good faith as CONFIDENTIAL shall enjoy the 

protection of such designation until the issue relating to the propriety of the designation has been 

resolved.

VII. Right to Further Relief.

Nothing in this Protective Order shall abridge the right of any person to seek judicial 

modification or amendment of this Order.

VIII. Right to Assert Other Objections.

This Protective Order shall not be construed as waiving any right to assert a claim of 

privilege, relevance or other grounds for not producing Discovery Material.

. . .

. . .

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IX. Final Disposition.

Within ninety (90) days after final termination of this action after appeal, if any, each 

Party shall assemble all documents and things furnished and designated by any other party or nonparty as containing Protected Material, and all copies, summaries and abstracts thereof, and shall 

either (a) return such documents and things to the Producing Party, or (b) destroy the documents 

and things; provided, however, that the parties and their counsel shall be entitled to retain all 

pleadings, motion papers, legal memoranda, work product and attorney-client communications 

that include or are derived from Protected Material. If a Party elects to destroy the documents, a 

Certificate of Destruction shall be served on Counsel for the other Parties within ninety (90) days 

of final termination of the action.

X. Survival of Obligations.

The obligations created by this Protective Order shall survive the termination of this 

lawsuit unless otherwise modified by the Court. The Court shall retain jurisdiction, even after 

termination of this lawsuit, to enforce this Protective Order and to make such amendments and 

modifications to this Order as may be appropriate.

DATED this _____ day of ___________________, 2019.

Judge Dominic Lanza

United States District Judge

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