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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 5-30-18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

STIPULATED PROTECTIVE ORDER

WHEREAS, Petitioners Julio Miguel Orlandini-Agreda and Compañia Minera Orlandini

Ltda. have sought discovery from Gibson, Dunn & Crutcher LLP (“Gibson Dunn”) for use in an

investment treaty arbitration against the Plurinational State of Bolivia (“Bolivia”), as set out in

the Petition for Discovery (Dkt. 1 ¶ 4) (the “Investment Treaty Arbitration”);

WHEREAS, this Court granted Bolivia the right to intervene in the above-captioned

action for purposes of participating in discovery (Dkt. 18);

WHEREAS, all parties to this Stipulated Protective Order (each a “Party,” and

collectively, the “Parties”) request that this Court issue a protective order pursuant to Federal

Rule of Civil Procedure 26(c) to protect the confidentiality of nonpublic or competitively

sensitive information that they may need to disclose in connection with discovery in this action;

WHEREAS, the Parties, through counsel, agree to the following terms; and

WHEREAS, this Court finds that good cause exists for the issuance of an appropriately

tailored confidentiality order governing any materials that may be produced in this action;

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NOW THEREFORE, it is hereby ordered that any person subject to this Stipulated

Protective Order, including without limitation the Parties (including their respective corporate

parents, successors, and assigns, their representatives, agents, experts and consultants), all third

parties providing discovery in this action, and all other interested persons with actual notice of

this Stipulated Protective Order, will adhere to the following terms, upon pain of contempt:

1. With respect to “Discovery Material” (i.e., information of any kind produced or

disclosed in the course of discovery in this action) that a Party or person has designated as

“Confidential” pursuant to this Stipulated Protective Order (“Confidential Discovery Material”),

no person subject to this Stipulated Protective Order may disclose such Confidential Discovery

Material to anyone else except as this Stipulated Protective Order expressly permits.

2. The Party or person producing or disclosing Discovery Material (“Producing

Party”) may designate such Discovery Material as Confidential if, according to the Producing

Party’s reasonable and good faith belief, it (1) has not been publicly disclosed, or otherwise is the

subject of a duty of confidentiality borne by the Producing Party pursuant to Rule 1.6 of the New

York Rules of Professional Conduct or any other applicable federal, state, and/or foreign-law

equivalent imposing such an obligation, and (2) consists of: (a) non-public proprietary business

information, including but not limited to material relating to business strategy or guidelines,

operational data and/or other commercially sensitive information; (b) non-public financial

information (including without limitation non-public financial statements, performance metrics,

profitability reports or estimates); (c) non-public information relating to ownership or control of

any non-public company; (d) non-public information relating to business plans, product-

development information, contract terms, negotiation of contract terms, or marketing plans; (e)

information the Producing Party is contractually or legally obligated to keep confidential, after

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showing the other Parties the documents or legal provisions under which the Producing Party is

obligated to keep the information confidential; or (f) any other category of information this Court

by order in this case may afford confidential status.

3. With respect to the Confidential portion of any information or documents, the

Producing Party or its counsel may designate such portion as Confidential by stamping or

otherwise clearly marking the protected portion “Confidential” in a manner that will not interfere

with legibility or audibility.

4. The Producing Party may designate Discovery Material as Attorneys’ Eyes Only

if the Producing Party can show good cause that the materials contain highly sensitive

Confidential information, the disclosure of which to another Party or Non-Party would create an

unfair substantial risk of injury to the Producing Party, any current or former client of the

Producing Party, or any person to whom the Producing Party or any such current or former client

owes any duty or obligation of confidentiality, that could not be avoided by less restrictive

means.

5. With respect to the portion of any information or documents that is Attorneys’

Eyes Only Discovery Material, the Producing Party or its counsel may designate it as such by

providing written notice to all recipients, and/or by stamping or otherwise clearly marking the

protected portion “Confidential – AEO” in a manner that will not interfere with legibility or

audibility.

6. If a Party or Producing Party realizes that Confidential or Attorneys’ Eyes Only

Discovery Material has been produced without designation as such, the Party or Producing Party

may so designate such material by so apprising all prior recipients (each such recipient, and any

future recipient, a “Receiving Party”) in writing within the later of (a) fourteen business days

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after the production or disclosure of the Discovery Material at issue, or (b) seven business days

after discovering that such Discovery Material has been produced without designation as

Confidential or Attorneys’ Eyes Only Material. Thereafter, this Court and all persons subject to

this Stipulated Protective Order will treat such designated portion(s) of the Discovery Material as

Confidential or Attorneys’ Eyes Only, in accordance with the designation(s) made pursuant to

this Paragraph. Upon receipt of any designation of Discovery Material as Confidential or

Attorneys’ Eyes Only Material pursuant to this Paragraph, each Party in possession of such

Discovery Material shall promptly take reasonable steps to ensure that the Discovery Material so

designated is treated in accordance with such designation going forward (including, wherever

practicable, by requesting the return of any copies of such Discovery Material disclosed to any

non-party), but shall bear no liability under this Stipulated Protective Order for any disclosure of

such Discovery Material lawfully made by the disclosing Party prior to its receipt of such

designation from the Producing Party. The failure to designate any non-privileged Discovery

Material as Confidential or Attorneys’ Eyes Only within the later of (x) fourteen business days

after its disclosure or (y) seven days after learning that such Discovery Material has been

produced without designation as Confidential or Attorneys’ Eyes’ Only Material waives any

designation of such non-privileged Discovery Material as Confidential or Attorneys’ Eyes Only,

unless the Producing Party can in good faith establish to the Receiving Party that it has learned of

new information not previously available to it that requires that the Discovery Material should

have been designated as Confidential or Attorneys’ Eyes Only.

7. Subject to the requirements of Paragraph 6, nothing contained in this Stipulated

Protective Order will be construed as: (a) a waiver by any Party or person of its right to object to

any discovery request; (b) a waiver by any Party or person of any privilege or protection; (c) a

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waiver by any Party or person of any claim of confidentiality; or (d) a ruling regarding the

relevance of any document, testimony, or other evidence.

8. With respect to Confidential Discovery Material, persons subject to this Stipulated

Protective Order may disclose such information only to the following persons:

a) the Parties to this Stipulated Protective Order;

b) in-house counsel with responsibility for overseeing, or outside counsel retained

specifically for, any of this action, the Investment Treaty Arbitration, any

proceeding seeking discovery or disclosure in aid of the Investment Treaty

Arbitration, any proceeding seeking recognition and/or enforcement of any award

or determination rendered in the Investment Treaty Arbitration, any proceeding

seeking to set aside or declare invalid or unenforceable any award or

determination rendered in the Investment Treaty Arbitration, any application or

petition to a court in aid of the Investment Treaty Arbitration, including

enforcement of the arbitration agreement and requests for interim measures,

and/or any appeals or other applications to review any determination rendered in

any such proceeding (collectively, the “Relevant Proceedings”), including any

paralegal, clerical personnel, or other assistant that such in-house or outside

counsel employs and assigns to this Action or the Relevant Proceedings;

c) Subject to the requirements of paragraph 16 below, in-house counsel with

responsibility for overseeing, or outside counsel retained specifically for, any

action involving a Party to this Stipulated Protective Order that is based on facts

or legal theories similar or related to those in the Relevant Proceedings (any such

action, an “Additional Proceeding”), including any paralegal, clerical personnel,

or other assistant that such in-house or outside counsel employs and assigns to an

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Additional Proceeding;

d) outside vendors or service providers (such as copy-service providers and

document-management consultants) that counsel hire and assign to any of the

Relevant Proceedings or, subject to the requirements of Paragraph 16 below, any

Additional Proceedings;

e) as to any document, its author, its addressee, any other person indicated on the

face of the document as having received a copy;

f) as to any document executed or exchanged by or on behalf of a corporation,

business entity, or government entity (each an “Entity”) in connection with a

transaction undertaken by or on behalf of that Entity, any person who, by virtue of

(i) his or her position as an officer, director, executive, controlling stakeholder, or

employee of said Entity at the time when the document was created or the

transaction was undertaken, or (ii) any contractual, statutory, or regulatory

obligation of such Entity to provide such person access to the document in

question, reasonably would be expected to have received a copy of the document,

except that this Subparagraph (f) shall not apply if the Party seeking to make

disclosure pursuant to this Subparagraph (f) in good faith becomes aware of facts

demonstrating that such person did not in fact receive a copy of the document at

issue. Notwithstanding the foregoing, nothing in this Stipulated Protective Order

limits the right of a Party to request that a particular document may be shared with

another individual or entity, or the ability of the Producing Party to agree to such

a request, which shall be made in writing and considered in good faith by the

Producing Party;

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g) any witness who counsel reasonably and in good faith believes will testify, orally

or in writing, at a trial, hearing, or deposition in connection with any of the

Relevant Proceedings or, subject to the requirements of Paragraph 16 below, any

Additional Proceedings, provided such person has first executed an appropriate

Non-Disclosure Agreement;

h) any person a Party retains to serve as an expert witness or otherwise provide

specialized advice to counsel in connection with any of the Relevant Proceedings

or, subject to the requirements of Paragraph 16 below, any Additional

Proceedings, provided such person has first executed an appropriate Non-

Disclosure Agreement;

i) stenographers engaged to transcribe depositions and hearings conducted by the

Parties in any of the Relevant Proceedings or, subject to the requirements of

Paragraph 16 below, any Additional Proceedings; and

j) this Court and the court or tribunal presiding over any of the Relevant

Proceedings or, subject to the requirements of Paragraph 16 below, any

Additional Proceedings, including any appellate court, its support personnel, and

court reporters.

9. Before disclosing any Confidential Discovery Material to any person referred to

in Paragraph 8 other than the Parties, their in-house or outside counsel working on any of the

Relevant Proceedings or, subject to the requirements of Paragraph 16 below, any Additional

Proceedings, and any courts or tribunals, counsel must provide a copy of this Stipulated

Protective Order to such person, who must sign an appropriate Non-Disclosure Agreement

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stating that he or she has read this Stipulated Protective Order and agrees to be bound by its

terms.

10. With respect to Attorneys’ Eyes Only Discovery Material, such material shall be

subject to the same restrictions as Confidential Discovery Material, except that Attorneys’ Eyes

Only Discovery Material may be disclosed only to the following:

a) in-house counsel with responsibility for overseeing any of the Relevant

Proceedings or, subject to the requirements of Paragraph 16 below, any

Additional Proceedings, or outside counsel retained specifically for any of the

Relevant Proceedings or, subject to the requirements of Paragraph 16 below, any

Additional Proceedings, including any paralegal, clerical personnel, or other

assistant that such in-house or outside counsel employs and assigns to this matter;

b) outside vendors or service providers (such as copy-service providers and

document-management consultants) that counsel hire and assign to any of the

Relevant Proceedings or, subject to the requirements of Paragraph 16 below, any

Additional Proceedings;

c) as to any document, its author, its addressee, any other person indicated on the

face of the document as having received a copy;

d) as to any document executed or exchanged by or on behalf of a corporation,

business entity, or government entity (each an “Entity”) in connection with a

transaction undertaken by or on behalf of that Entity, any person who, by virtue of

(i) his or her position as an officer director, executive, controlling stakeholder, or

employee of said Entity at the time when the document was created or the

transaction was undertaken or (ii) any contractual, statutory, or regulatory

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obligation of such Entity to provide such person access to the document in

question, reasonably would be expected to have received a copy of the document,

except that this Subparagraph (d) shall not apply if the Party seeking to make

disclosure pursuant to this Subparagraph (d) in good faith becomes aware of facts

demonstrating that such person did not in fact receive a copy of the document at

issue. Notwithstanding the foregoing, nothing in this Stipulated Protective Order

limits the right of a Party to request that a particular document may be shared with

another individual or entity, or the ability of the Producing Party to agree to such

a request, which shall be made in writing and considered in good faith by the

Producing Party;

e) any person a Party retains to serve as an expert witness or otherwise provide

specialized advice to counsel in connection with any of the Relevant Proceedings

or, subject to the requirements of Paragraph 16 below, any Additional

Proceedings, provided that the Discovery Material in question is necessary for the

testimony and/or preparation of such person, and such person has first executed

an appropriate Non-Disclosure Agreement;

f) stenographers engaged to transcribe depositions conducted by the Parties in any of

the Relevant Proceedings or, subject to the requirements of Paragraph 16 below,

any Additional Proceedings; and

g) this Court and any court or tribunal presiding over any of the Relevant

Proceedings or, subject to the requirements of Paragraph 16 below, any

Additional Proceedings, including any appellate court, its support personnel, and

court reporters.

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11. If any Confidential or Attorneys’ Eyes Only Discovery Material is used or

introduced in any action, including but not limited to this action and the Investment Treaty

Arbitration, the Parties shall have the right to seek permission to seal or otherwise keep

confidential such material, subject to what is set forth elsewhere in this Stipulated Protective

Order and subject to whatever other rules may apply in the other action or proceedings.

12. The inadvertent production of privileged materials shall not be deemed a waiver,

in whole or in part, of any party’s or person’s claim of privilege. If a Producing Party identifies

an inadvertently produced privileged document, it shall notify the Receiving Party’s counsel in

writing within seven business days of learning of the inadvertent disclosure, and identify the

inadvertently produced document. Upon receipt of notification that privileged material was

inadvertently produced, the Receiving Party shall immediately return the privileged material

identified, and any copies thereof, and confirm to the Producing Party in writing that all

electronic copies of the document have been deleted. Within five business days of notifying the

Receiving Party that a privileged document was inadvertently produced, the Producing Party

shall provide the Receiving Party with a privilege log identifying the document and the

Producing Party’s basis for the privilege assertion. The Receiving Party may challenge the

Producing Party’s assertion that a privileged document was inadvertently produced; such

challenge and opposition shall be subject to the procedure set forth in Paragraph 14 of this

Stipulated Protective Order. If a Receiving Party or its counsel becomes aware that it is in

receipt of information or materials which it knows or reasonably should know are privileged,

counsel for the Receiving Party shall immediately take steps to (i) stop reading such information

or materials, (ii) notify counsel for the Producing Party of such information or materials, (iii)

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collect all originals and copies of such information or materials, and (iv) return such information

or materials to the Producing Party.

13. Subject to the requirements of this Stipulated Protective Order, the production of

a document shall not operate as a waiver on the part of any Party or third party that such

document is confidential.

14. The designation of any Discovery Material as Confidential or Attorneys’ Eyes

Only is subject to challenge by any Party. The following procedure shall apply to such

challenge.

a) Meet and Confer. A Party challenging the designation of Confidential or

Attorneys’ Eyes Only Discovery Material (“Challenging Party”) must do so in

good faith and must begin the process by conferring directly with counsel for the

Producing Party. In conferring, the Challenging Party must explain the basis for

its belief that the Confidential or Attorneys’ Eyes designation was not proper and

must give the Producing Party an opportunity to review the designated material

and to reconsider the designation and, if no change in designation is offered, to

explain the basis for the designation. The Producing Party must respond to the

challenge within five business days.

b) Judicial Intervention. A Party that elects to challenge a designation of

Confidential or Attorneys’ Eyes Only Discovery Material may file and serve a

motion or other appropriate application to this Court, in accordance with

applicable Court rules and practices, that identifies the challenged material and

sets forth the basis for the challenge. Each such motion or application must be

accompanied by a competent declaration, or a statement in writing signed by

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counsel of record for the Party seeking relief, that affirms that the Party seeking

relief has complied with the meet and confer requirements of this procedure. The

burden of persuasion in any such challenge proceeding shall be on the Producing

Party. Until the Court rules on the challenge, the Parties shall continue to treat the

at-issue materials as Confidential or Attorneys’ Eyes Only Discovery Material

under the terms of this Stipulated Protective Order.

15. Any Party who requests additional limits on disclosure may serve upon counsel

for the recipient Parties a written notice stating with particularity the grounds of the request.

The Parties shall then, within five business days, confer in an effort to resolve the issues without

Court intervention. If the Parties cannot reach agreement, the Party requesting additional limits

on disclosure shall, within an additional five business days, seek appropriate relief from this

Court in accordance with all applicable Court rules and practices.

16. Recipients of Confidential or Attorneys’ Eyes Only Discovery Material under this

Stipulated Protective Order may use such Discovery Material solely in this action, in any

Relevant Proceedings, or following compliance with the requirements of this Paragraph in any

Additional Proceedings, and not for any other purpose. Nothing in this Stipulated Protective

Order shall be construed as limiting in any respect the right of any Party to contest whether any

action or proceeding falling beyond the scope of the Relevant Proceedings constitutes an

Additional Proceeding. In the event that a Receiving Party desires to use Confidential or

Attorneys’ Eyes Only Discovery Material in any putative Additional Proceedings, the Receiving

Party shall first serve upon counsel for the Producing Party a written notice of its intent to do so.

The Parties shall then, within five business days, confer in an effort to resolve the issue without

Court intervention. If the Parties cannot reach agreement regarding the appropriateness of the

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use of the Confidential or Attorneys’ Eyes Only Discovery Material in the putative Additional

Proceedings, the Producing Party may, within an additional five business days, seek relief from

this Court in accordance with all applicable Court rules and practices. If the Producing Party

fails to timely seek such relief, the putative Additional Proceedings in which the Receiving Party

seeks to use the Confidential or Attorneys’ Eyes Only Discovery Material shall be deemed to be

Additional Proceedings for purposes of this Paragraph. No portion of this Stipulated Protective

Order shall be construed as limiting in any respect the authority of the Court, in the lawful

exercise of its discretion, to grant or deny such relief regarding any further use of the

Confidential or Attorneys’ Eyes Only Discovery Material, including in any putative Additional

Proceedings, subject to such limitations or restrictions as it may deem appropriate, if any, in the

circumstances.

17. Nothing in this Stipulated Protective Order will prevent any Party from producing

any Confidential or Attorneys’ Eyes Only Discovery Material (1) in its possession in response to

a lawful subpoena or other compulsory process, or (2) if required to produce such material by

law or by any court, arbitral tribunal, or government agency having jurisdiction, provided that

such Party gives written notice to the Producing Party as soon as reasonably possible, and, if

permitted by the time allowed under the request, at least 10 business days before any disclosure.

Upon receiving such notice, the Producing Party will bear the burden to oppose compliance with

the subpoena, other compulsory process, or other legal notice if the Producing Party deems it

appropriate to do so.

18. Each person who has access to Confidential or Attorneys’ Eyes Only Discovery

Material pursuant to this Stipulated Protective Order must take all reasonable precautions to

prevent the unauthorized or inadvertent disclosure of such material.

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19. This Stipulated Protective Order will survive the termination of this action and

will continue to be binding upon all persons to whom Confidential or Attorneys’ Eyes Only

Discovery Material is produced or disclosed.

20. Within the later of (a) two (2) years and sixty (60) days after the termination of

the Investment Treaty Arbitration, or (b) sixty (60) days after the termination of any Relevant

Proceeding commenced within two (2) years after the termination of the Investment Treaty

Arbitration, the Receiving Party shall either destroy or return to the Producing Party, at the

Receiving Party’s election, all documents designated as Confidential or Attorneys’ Eyes Only,

and all copies of such documents (including but not limited to any copies disclosed to any other

person pursuant to Paragraphs 8 or 10 of this Stipulated Protective Order), and shall destroy all

extracts and/or data taken from such documents, except that: (i) outside counsel for each Party

may maintain in its files copies of any of the following that contain Confidential or Attorneys’

Eyes Only Discovery Material: (1) each pleading and litigation document filed with this Court

or with the court or tribunal overseeing any of the Relevant Proceedings, (2) each written

discovery request and written response thereto served in connection with this Action or any of

the Relevant Proceedings, (3) any transcripts of testimony given in connection with any of the

Relevant Proceedings, together with any exhibits thereto, (4) any trial or hearing exhibits

designated in connection with any of the Relevant Proceedings, and (5) any other documents

filed with this Court or with the court or tribunal overseeing any of the Relevant Proceedings that

contain Confidential or Attorneys’ Eyes Only Discovery Material; and (ii) a Receiving Party

may retain Discovery Material designated Confidential or Attorneys’ Eyes Only that is auto-

archived or automatically “backed up” on electronic management and communications systems

or servers, or as may be required in accordance with any applicable regulatory recordkeeping

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obligations borne by the Receiving Party, provided that such retained Discovery Material shall

continue to be treated as provided in this Order. The Receiving Party shall, upon written request,

within the period specified by this Paragraph, provide to the Producing Party written certification

that the Receiving Party has complied with its obligations pursuant to this Paragraph. In the

event that a Receiving Party in good faith determines that it has reason to maintain possession of

Confidential or Attorneys’ Eyes Only Discovery Material for an additional period of time after

expiration of the period provided for in this Paragraph, the Receiving Party may seek permission

from the Producing Party in writing to retain the Confidential or Attorneys’ Eyes Only Discovery

Material, and the Producing Party shall consider in good faith all such requests. If the parties,

after meeting and conferring in good faith, are unable to reach an agreement, the Receiving Party

may seek relief from this Court to extend the date by which it must comply with the provisions

of this Paragraph. No portion of this Stipulated Protective Order shall be construed as limiting in

any respect the authority of the Court, in the lawful exercise of its discretion, to grant or deny

such relief regarding the request to retain the Confidential or Attorneys’ Eyes Only Discovery

Material for an additional period of time after expiration of the period provided for in this

Paragraph subject to such limitations or restrictions as it may deem appropriate, if any, in the

circumstances.

21. This Court will retain jurisdiction over all persons subject to this Stipulated

Protective Order to the extent necessary to enforce any obligations arising hereunder or to impose

sanctions for any contempt thereof.

22. Nothing herein shall be construed to modify any previously existing

confidentiality obligations of the Parties.

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DATED: May 24, 2018

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DATED: ____________, 2018

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DATED: ____________, 2018