Agreed Confidentiality and Protective Order

Full text

1

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
__________________________________________

)
UNITED STATES OF AMERICA ex rel.

)
PAUL PIETSCHNER,

)

)

Plaintiff,

)

)

v.

)
CIVIL NO. 4:21-CV-110-SDJ
)
KATHRYN PETRALIA; ROBERT FROHWEIN; )
and SPENCER ROBINSON,

)

)
Defendants.

)
__________________________________________)

AGREED CONFIDENTIALITY AND PROTECTIVE ORDER
By agreement of the parties the United States of America (“United States” or
“Government”), Relator Paul Pietschner (“Relator”), and Defendants Katherine Petralia, Robert
Frohwein, and Spencer Robinson (collectively, “Defendants”), the following Order is entered with
respect to all information or material that a party to this action designates as confidential
(“Confidential Material”) or highly confidential (“Highly Confidential Material”).
1.
The purpose of this Order is to provide for the prompt, efficient, and orderly
conduct of discovery proceedings, to preserve and maintain the confidentiality of certain
documents and information produced or exchanged in this litigation by the parties or by any
nonparties for which good cause exists to prevent revelation of such material, and to comply with
all applicable state and federal regulations.
2.
This Order applies to any material designated as Confidential Material or Highly
Confidential Material in accordance with this Order.
a)
Documents and information produced or exchanged in this litigation may
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 1 of 14 PageID #:  855

2

be designated as Confidential Material if, in the good faith judgment of the party
designating the material as Confidential Material, such documents or information
contain trade secrets; proprietary financial or commercial material; other
competitively sensitive information; sensitive personal identification or financial
information, including such information relating to Paycheck Protection Program
borrowers and their principals; or other information the disclosure of which, in the
good faith judgment of the party designating the material as confidential, would be
detrimental to the party or another person.
b)
Documents and information may be designated as Highly Confidential
Material if, in the good faith judgment of the party designating the material as
Highly Confidential Material, such documents or information contain  sensitive
investigatory information, including law-enforcement sensitive information, any
information that may be subject to protections under the Bank Secrecy Act (BSA);1
information relating to the investigation or supervision of a financial institution, or
that is subject to any bank examiner’s privilege; or other information the disclosure
of which to persons permitted access to Confidential Material could cause significant
competitive or investigatory harm.
3.
A producing party may designate as Confidential Material or Highly Confidential
Material either entire documents or certain portions of documents by:
a)
conspicuously
marking
“CONFIDENTIAL”
or
“HIGHLY
CONFIDENTIAL” on the face of the document and on each successive page that contains

1
The BSA is codified at 12 U.S.C. §§ 1829b, 1951-1960, and 31 U.S.C. §§ 310,
5311-14, 5316-5336, and including notes thereto, with implementing regulations at 31 C.F.R.
Chapter X.
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 2 of 14 PageID #:  856

3

Confidential Material or Highly Confidential Material;
b)
indicating to undersigned counsel of record, in writing and with adequate
specificity, that a certain document or category of documents, whether in part or in full, is
Confidential Material or Highly Confidential Material; or
c)
employing any other reasonable method to which the parties agree.
4.
Where a party produces Confidential Material or Highly Confidential Material
stored or recorded in electronic or magnetic media (including information, databases, or programs
stored on computers, discs, networks, or tapes (“Electronically Stored Data” or “ESI”)) such that,
due to the format, it is not reasonably feasible to mark the material with a “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL” brand, the producing party shall designate the material as
Confidential Material or Highly Confidential Material by marking “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL” directly on the media that contains the Confidential Material or
Highly Confidential Material.  If a party that receives ESI designated as Confidential Material or
Highly Confidential Material then reduces that material to hard-copy form for purposes of
disclosure to anyone other than counsel of record and their respective employees and support
personnel, that party must mark any hard-copy material according to the terms set forth in
Paragraph 4.
5.
Except as otherwise permitted by this Order or required by law, Confidential
Material or Highly Confidential Material shall not be disclosed or used for any purpose other than
litigation of this case.
6.
Further, Confidential Material may only be disclosed to the following persons:
a)
the Defendants;
b)
counsel of record for Defendants and Relator and their respective
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 3 of 14 PageID #:  857

4

employees, and agents of counsel for Defendants and Relator who have responsibility for
the defense or prosecution of the action;
c)
counsel of record for the United States and the employees, contractors, and
agents of the United States Department of Justice, the U.S. Attorney’s Office for the Eastern
District of Texas, and the U.S. Small Business Administration, who have responsibility for
the prosecution of the action, and the employees, contractors, and agents of the Board of
Governors of the Federal Reserve and the U.S. Department of Treasury;
d)
experts and consultants of the parties (and the employees of those experts
and consultants) retained or consulted by any counsel of record for the sole purpose of
assisting in this action;
e)
employees of contracted or supportive copying, imaging, translating,
organizing, or computing services;
f)
the Court and court employees, court reporters, and stenographers;
g)
any person indicated on the face of a document—or an accompanying cover
letter, email, or other communication—to be the author, addressee, or a copy recipient of
the document;
h)
in the case of meeting or teleconference minutes, an attendee of the meeting
or participant in the teleconference;
i)
any deponent in the course of a deposition in this action; and
j)
other persons only by written consent of the producing party or upon order
of the Court and on such conditions as may be agreed or ordered.
7.
Further, Highly Confidential Material may only be disclosed to the following
persons:
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 4 of 14 PageID #:  858

5

a)
the Defendants;
b)
counsel of record for Defendants and Relator and their respective
employees, and agents of counsel for Defendants and Relator who have responsibility for
the defense or prosecution of the action;
c)
counsel of record for the United States and the employees, contractors, and
agents of the United States Department of Justice, the U.S. Attorney’s Office for the Eastern
District of Texas, and the U.S. Small Business Administration, who have responsibility for
the prosecution of the action, and employees, contractors and agents of the Board of
Governors of the Federal Reserve and the U.S. Department of Treasury;
d)
employees of contracted or supportive copying, imaging, translating,
organizing, or computing services;
e)
the Court and court employees, court reporters, and stenographers; and
f)
other persons—including experts and consultants of the parties (and the
employees of those experts and consultants) retained or consulted by any counsel of
record—only by written consent of the producing party or upon order of the Court and on
such conditions as may be agreed or ordered.
8.
Confidential Material may not be disclosed to any person referred to in
Subparagraphs 6(d), 6(i), and 6(j) unless that person has read and agreed to be bound by this Order
by signing the attached Nondisclosure Agreement (Exhibit A) before they are granted access to
Confidential Material.  Counsel must ensure that all employees and personnel referred to in
Subparagraph 6(d) are familiar with this Order.  Counsel must also instruct those personnel that
they are bound by this Order.  If multiple personnel from a single company, firm, or Government
office are to be granted access to Confidential Material, the signature of one will comply with this
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 5 of 14 PageID #:  859

6

Order and will bind all personnel.  Highly Confidential Material may not be disclosed to any person
referred to in Subparagraph 7(f) unless that person has read and agreed to be bound by this Order
by signing the attached Nondisclosure Agreement (Exhibit A) before they are granted access to
Highly Confidential Material.  If multiple personnel from a single company, firm, or Government
office are to be granted access to Highly Confidential Material, the signature of one will comply
with this Order and will bind all personnel.
9.
Confidential Material or Highly Confidential Material must be stored and
maintained by a receiving party at a location and in a secure manner that ensures access is limited
to persons authorized under this Order.
10.
By reviewing Confidential Material or Highly Confidential Material, all persons
governed by this Order agree to the jurisdiction of this Court over their person for any action that
seeks to enforce this Order, or for any action for contempt that alleges violation of this Order.
11.
Any nonparty from whom discovery is sought must be informed of, and may obtain
the protections of, this Order.  The party seeking discovery must give a copy of this Order to
nonparties from whom discovery is sought.  The nonparty may invoke this Order’s protections by
so advising the parties in writing or by asserting those protections on the record during a deposition
or similar proceeding.  A nonparty invoking this Order’s terms will have standing to appear in this
action to file motions and oppose motions, as necessary, to protect the nonparty’s rights in its
information.
12.
A party may designate as Confidential Material or Highly Confidential Material
any documents in the possession of a nonparty from whom discovery is sought.  But that party
must have a good-faith belief that the documents they wish to designate as Confidential Material
or Highly Confidential Material contain the party’s confidential information or contain information
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 6 of 14 PageID #:  860

7

the disclosure of which to persons permitted access to Confidential Material could cause significant
competitive or investigatory harm.  Disputes over designation of third-party material as
Confidential Material or Highly Confidential Material must be made according to the process
outlined in paragraph 18.
13.
The inadvertent failure to designate any information or documents containing
information as Confidential Material or Highly Confidential Material will not be deemed to waive
a later claim that such information is Confidential Material or Highly Confidential Material or to
stop the Producing Party from designating such information as Confidential Material or Highly
Confidential Material at a later date in writing and with particularity.  The information must be
treated by the Receiving Party as Confidential Material or Highly Confidential Material from the
time the Receiving Party is notified in writing of the change in the designation.  Within three (3)
days of receiving a written request to do so from the Producing Party, the Receiving Party shall
return to the Producing Party or destroy, and certify in writing such destruction, any documents or
tangible items that the Producing Party represents were inadvertently or mistakenly produced
without the Confidential Material or Highly Confidential Material designation.  The Receiving
Party shall also destroy all copies of any such inadvertently or mistakenly undesignated
information.  At the same time this request is made, the Producing Party must reproduce to the
Receiving Party the mistakenly undesignated information with the proper Confidential Material or
Highly Confidential Material designation.
14.
This Protective Order is intended to be an order within the meaning of Federal
Rules of Evidence 502(d) and 502(e) and to be accorded scope to the fullest extent permitted
thereunder.  Nothing in this Protective Order shall be construed to require disclosure of
information, documents, or tangible items that counsel contends are protected from disclosure by
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 7 of 14 PageID #:  861

8

the attorney-client privilege, the attorney work product immunity, or any other applicable privilege
or immunity.
15.
The procedures for use of Confidential Material or Highly Confidential Material
during any hearing or the trial of this action will be determined by the parties and the Court in
advance of any hearing or trial.  At such time, several points will be considered, including but not
limited to: (a) the redacting of Confidential Material or Highly Confidential Material to remove
confidential information; (b) the submission of Confidential Material or Highly Confidential
Material under seal; (c) the coding of Confidential Material or Highly Confidential Material to
substitute a numerical or other designation for confidential information; (d) the placing of any
exhibits under seal; (e) the introduction of summary evidence where practicable, which may be
more easily redacted; and (f) the removal of all Social Security numbers associated with the names
of individuals.
16.
The parties may use and disclose Confidential Material during depositions.  The
parties may use and disclose Highly Confidential Material during depositions provided such
Materials are only disclosed to persons identified in paragraph 7 above.  (Individuals not
authorized to view Highly Confidential Material must leave the room where the deposition is
taking place while such Highly Confidential Material is being used or disclosed.)  Any party may
designate the portion of deposition transcripts (including exhibits) that contain Confidential
Material or Highly Confidential Material with a statement to that effect on the record in the course
of the deposition.  The party may so advise the reporter.  In addition, within thirty (30) days after
counsel’s receipt of the transcript of a deposition, counsel for a party is permitted to designate in
good faith certain portions of that deposition’s transcript as Confidential Material or Highly
Confidential Material by identifying the page and line numbers containing Confidential Material
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 8 of 14 PageID #:  862

9

or Highly Confidential Material. Regardless of whether a Confidential Material or Highly
Confidential Material designation has been made, all parties must treat deposition transcripts as
Highly Confidential Material for thirty (30) days following the deposition, unless the parties
otherwise agree.  Any court reporter or transcriber who reports or transcribes testimony in this
action shall agree that all “confidential” information designated as such under this Order shall
remain “confidential” and shall not be disclosed by them, except pursuant to the terms of this
Order, and that any notes or transcriptions of such testimony (and any accompanying exhibits) will
be retained by the reporter or delivered to counsel of record.
17.
In the event that any Confidential Material or Highly Confidential Material is used
in any Court proceeding in this action or any appeal therefrom, such Confidential Material or
Highly Confidential Material shall not lose its status through such use so long as it is approved by
the Court as meriting confidential treatment.  See Procter & Gamble Co. v. Bankers Trust Co., 78
F.3d 219, 227 (6th Cir. 1996) (“Rule 26(c) allows the sealing of court papers only ‘for good cause
shown’ to the court that the particular documents justify court-imposed secrecy.”); L.R. CV-5(a)(7)
(procedure for sealing of court records).  Without prior Order of the Court, if Confidential Material
or Highly Confidential Material is to be filed or otherwise submitted to the Court, the party seeking
to file documents under seal must: (a) electronically file a motion for leave of Court to do so via
the Court’s Electronic Filing System; and (b) by separate entry immediately thereafter, submit the
proposed sealed documents by selecting the “Sealed Document” event option in the Court’s
Electronic Filing System.  Within thirty (30) days after the filing of a motion for leave pursuant to
this procedure, a producing party wishing to retain the confidentiality of any Confidential Material
or Highly Confidential Material must file an appropriate affidavit establishing why the material
merits confidential treatment.   Any response to such affidavit shall be filed within thirty (30) days
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 9 of 14 PageID #:  863

10

after the filing of the affidavit.  If no such affidavit is filed, the documents will automatically
become part of the public record.  Nothing in this Protective Order shall affect the right of any
party to oppose motions to seal or to seek greater protection than that provided for herein for any
information.
18.
To avoid the unnecessary filing of documents under seal, counsel for the parties
will discuss, in good faith, the need to file Confidential Materials or Highly Confidential Material
under seal.  If the parties agree that a document which has been designated as Confidential Material
or Highly Confidential Material may be publicly filed, such filing will not be a breach of this Order.
In addition, the party that had marked such document as Confidential Material or Highly
Confidential Material shall, as promptly as reasonably possible, reproduce that document to all
other parties with the CONFIDENTIAL or HIGHLY CONFIDENTIAL marking removed.
19.
The parties agree that the Court is ultimately responsible for determining whether
there is sufficient justification for the non-public filing of documents designated by the parties as
Confidential Material or Highly Confidential Material.  Should the Court deny a party’s request to
file a particular document under seal, it will be not be a breach of this Order for a party to publicly
file such document.
20.
If any party to this litigation disputes a Confidential Material or Highly Confidential
Material designation, the parties must attempt to resolve by agreement whether or on what terms
the relevant material is entitled to confidential treatment before seeking Court involvement.  If the
parties cannot agree, counsel for the party objecting to the designation shall call the Court’s
chambers to schedule a telephone conference regarding the subject matter of the dispute in
accordance with procedures set forth in the Court’s Order Governing the Proceeding.  If the Court
is unable to resolve the dispute and parties are ordered to file a motion, counsel for the party
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 10 of 14 PageID #:  864

11

objecting to the designation may file an appropriate motion with the Court seeking an order stating
that the disputed designation is improper.  The party that made the Confidential Material or Highly
Confidential Material designation has the burden to demonstrate that its designation is proper.
Until a final resolution of the dispute is achieved, whether by consent or court order, all parties
must treat the designated material as either Confidential Material or Highly Confidential Material,
as designated.
21.
To avoid prompting unnecessary disputes, the parties agree that disputes regarding
Confidential Material or Highly Confidential Material designations can be raised at any time and
that no party waives its right to dispute a Confidential Material or Highly Confidential Material
designation by not raising that dispute promptly upon receiving material marked
CONFIDENTIAL or HIGHLY CONFIDENTIAL.  The parties further agree that, in connection
with disputes regarding Confidential Material or Highly Confidential Material designations, no
party will claim or argue that the party challenging a designation has delayed in raising that
challenge.
22.
Nothing in this Order prevents any person or entity from using or disclosing its own
documents or information.
23.
Compliance with this Order will not operate as an admission that any particular
document is or is not confidential, privileged, or admissible in evidence at trial.
24.
This Order survives termination of the action, and except as it otherwise provides,
a)
all Confidential Material or Highly Confidential Material—including any
copies, extractions, excerpts, summaries, or compilations—must be returned to the
producing person or entity, or destroyed within sixty (60) days of the conclusion of the
action, whether by settlement, judgment, or otherwise.
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 11 of 14 PageID #:  865

12

b)
despite provision a) above, counsel of record may keep for archival
purposes copies of all deposition transcripts, court filings, and attorney work product that
contains or explicitly references Confidential Material or Highly Confidential Material,
provided these documents are treated in accordance with this Order; and
c)
this Order shall not be interpreted in a manner that would violate any
applicable canons of ethics or codes of professional responsibility.  Nothing in this Order
prohibits or interferes with the ability of counsel for any party, or of experts specially
retained for this case, to represent any individual, corporation, or other entity adverse to
any party or its affiliate(s) in connection with any other matters.
25.
Nothing contained in this Order shall prevent or in any way limit or impair the right
of the United States to disclose to any agency or department of the United States, or any division
of any such agency or department, designated Confidential Material or Highly Confidential
Material relating to any potential violation of law or regulation, or relating to any matter within
that agency’s jurisdiction, nor shall anything contained in this Order prevent or in any way limit
or impair the use of any such designated Confidential Material or Highly Confidential Material by
an agency in any proceeding relating to any potential violation of law or regulation, or relating to
any matter within that agency’s jurisdiction; provided, however, that the agency shall maintain the
confidentiality of the designated Confidential Material or Highly Confidential Material consistent
with the terms of this Order.
26.
Nothing contained in this Order shall prevent or in any way limit or impair the right
of the United States to provide designated Confidential Material or Highly Confidential Material
to a Congressional entity; provided, however, that the United States shall notify the Congressional
entity requesting the documents that the designated Confidential Material or Highly Confidential
Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 12 of 14 PageID #:  866

13

Material has been produced pursuant to this Order and shall, if there are no objections interposed
by the Congressional entity requesting the documents, use reasonable efforts to notify the
producing party or non-party of the Congressional entity’s request and the United States’ response
thereto.
27.
In the event of a request by a non-party (excluding Congress or any agency of the
United States) for disclosure of an opposing party’s Confidential Material or Highly Confidential
Material, the party receiving the request will protect the opposing party’s Confidential Material or
Highly Confidential Material to the fullest extent permitted by law.  The party receiving the request
will take reasonable steps to provide notice to the legal counsel of the opposing party whose
Confidential Material or Highly Confidential Material is requested, as is allowable under the law,
prior to the disclosure of the Confidential Material or Highly Confidential Material to a non-party
who requests disclosure under any provision of law.
28.
This Order may be modified or amended by order of the Court for good cause
shown or by agreement of the parties.
29.
Nothing in this Order precludes the parties from seeking entry of a subsequent
protective order regarding documents to be filed with the Court under seal.
30.
If any person or party subject to this Order violates or threatens to violate any term
or condition of this Order, the party whose interests in confidentiality are at risk may apply to the
Court for relief under the Federal Rules of Civil Procedure and the Local Rules of the United States
District Court for the Eastern District of Texas.

Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 13 of 14 PageID #:  867
____________________________________
SEAN D. JORDAN
UNITED STATES DISTRICT JUDGE
So ORDERED and SIGNED this 30th day of April, 2025.

EXHIBIT A
__________________________________________

)
UNITED STATES OF AMERICA ex rel.

)
PAUL PIETSCHNER,

)

)

Plaintiff,

)

)

v.

)
Civil Action No. 4:21-cv-110-SDJ
)
KATHRYN PETRALIA; ROBERT FROHWEIN; )
and SPENCER ROBINSON,

)

)

Defendants.

)
__________________________________________)

NON-DISCLOSURE AGREEMENT

I certify that I have read and am familiar with the terms and conditions contained in the
Agreed Confidentiality and Protective Order entered by the Court on ________ _____, 2025, in
the above-captioned case, and I agree to be bound by the terms and conditions of that Order.

Name (print or type)

Company (if not a party)

Position/Title (if not a party)

Business Address (if not a party)

Signature

Case 4:21-cv-00110-SDJ     Document 82     Filed 04/30/25     Page 14 of 14 PageID #:  868

File and source

File

gov.uscourts.txed.204031.82.0.pdf

Size

785,960 bytes

SHA-256

abd261a7413aec97af1072e266884d65a80f3050217b8603a3d65888688b0a52

Our copy

gov.uscourts.txed.204031.82.0.pdf

Original

PACER (login required)