Downwind LLC et al v. United States Department of Energy et al

Filing 34

ORDER: The Court appreciates the parties' proposed protective order. The Court's requested changes are noted on the attachment. Signed by Judge D. P. Marshall Jr. on 2/1/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
DOWNWIND, LLC and GOLDEN
BRIDGE, LLC

v.

PLAINTIFFS

No. 3:16-cv-207-DPM

UNITED STATES DEPARTMENT
OF ENERGY; GRACE BOCHENEK, in her
official capacity as Acting Secretary of the
United States Department of Energy;
SOUTHWESTERN POWER ADMINISTRATION;
and SCOTT CARPENTER, in his official
capacity as Administrator of the Southwestern
Power Administration

DEFENDANTS

PLAINS AND EASTERN CLEAN
LINE HOLDINGS, LLC

INTERVENOR

ORDER
The Court appreciates the parties' proposed protective order. The
Court's requested changes are noted on the attachment.
So Ordered.

k

D.P. Marshall
United States District Judge

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS

DOWNWIND, LLC and GOLDEN BRIDGE,
LLC,
Plaintiffs,

)
)
)
)
) Case No. 3: 16-cv-00207-DPM
)

v.

)
)

UNITED STATES DEPARTMENT OF
ENERGY; GRACE BOCHENEK, in her
official capacity as Acting Secretary of the
United States Department of Energy;
SOUTHWESTERN POWER
ADMINISTRATION; SCOTT
CARPENTER, in his official capacity as
Administrator of the Southwestern Power
Administration,

)
)
)
)
)
)
)
)
)
)

Defendants,
PLAINS AND EASTERN CLEAN LINE
HOLDINGS , LLC

)
)
)
)
)

Defendant-Intervenor.

)

STIPULATED CONFIDENTIALITY ORDER
Pursuant to Rules 5.2 and 26(c) of the Federal Rules of Civil Procedure and Local Rule
7.4, this Stipulated Confidentiality Order ("Confidentiality Order") establishes special protection
for confidential information to prevent public disclosure and use of such information for any
purpose other than prosecuting this litigation. Rule 5.2 of the Federal Rules of Civil Procedure
sets forth the procedures that must be followed when a party seeks to file material under seal.
Plaintiffs in this case are Downwind LLC of Harrisburg, Arkansas, and Golden Bridge

LLC of Fort Smith, Arkansas. Federal Defendants are the United States Department of Energy
("DOE"); Grace Bochenek, Acting Secretary of the United States Department of

Energy,~ er

official capacity; the Southwestern Power Administration; and Scott Carpenter, Administrator,
Southwestern Power Administration, in his official capacity. Defendant-Intervenor is Plains and
Eastern Clean Line Holdings LLC ("Clean Line").
Hereinafter, Plaintiffs, Federal Defendants, and Defendant-Intervenor are referred to
individually as "a party" and collectively as "the parties."
In defense of Plaintiffs' claims, Federal Defendants will lodge with the Court and serve
on Plaintiffs and Defendant-Intervenor an Administrative Record . With respect to the
Administrative Record to be filed , Federal Defendants will produce certain documents that
contain confidential, proprietary or personal information that is exempt from public disclosure
pursuant to the Freedom of Information Act, 5 U.S .C . § 552(b)(4), (6), & (7); information that
has been or may be designated as critical electric infrastructure information pursuant to Section
215A of the Federal Power Act, 16 U.S.C. § 8240-l or critical energy infrastructure information
pursuant to the rules and regulations of the Federal Energy Regulatory Commission, 18 C.F.R. §
388.113; and information subject to withholding from public disclosure under Section 304 of the
National Historic Preservation Act. The parties stipulate to this Confidentiality Order in order to
allow for efficient handling of documents designated as containing Confidential Information and
to preserve the confidentiality of such documents during the course of this litigation.
Thus, for good cause having been shown, IT IS HEREBY ORDERED:

cedure 25(d), a p
o hold of
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1.

Confidential Information : " Confidential Information "

as-ttSe~all

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be

defined as and refer to, information, data, and documents, in any form , the production of which
would, in the good faith belief of the Federal Defendants or Defendant-Intervenors, result in the
disclosure of one of the following categories of information : information exempt from public
disclosure under 5 U.S.C . § 552(b)(4) & (6) or Rule 26(c)(l)(G) ; information exempt from
public disclosure under 5 U.S.C. § 552(b)(7) or applicable state or federal privacy law;
information which has been or may be properl y designated as Critical Electric Infrastructure
Information pursuant to Section 215 A of the Federal Power Act, 16 U.S .C . § 8240-l or Critical
Energy Infrastructure Information under the rules and regulations of the Federal Energy
Regulatory Commission, 18 C.F.R. § 388.113, collectively "CEII" ; information the disclosure of
which is prohibited or limited by statute, or court order and/or other applicable rule; and
information which has been withheld from disclosure pursuant to Section 304 of the National
Historic Preservation Act, 16 U.S.C. § 470w-3. Federal Defendants will identify information in
the Administrative Record as Confidential Information by marking it as "Confidential Document Subject to Confidentiality Order," either in writing or on the record. Confidential
Information includes, but is not limited to, paper documents or information stored or recorded in
the form of electronic or magnetic media. If the material designated as Confidential Information
contains CEii, Federal Defendants shall additionall y mark each page containing CEil with the
words "Contains CEii - Do Not Release. "
2.

Scope: The protections conferred by this Confidentiality Order cover not only

Confidential Information, as defined above, but also any information copied or extracted"
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copies, excerpts, summaries, or compilations, as well as conversations or

presentations by the parties or counsel to or in court or in other settings where Confidential

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Information might be revealed.
3.

Use of Confidential Information: A recipient of Confidential Information may use

Confidential Information that is disclosed or produced by another party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation. ~

Confidential

Information may be disclosed only to the categories of persons and under the conditions
described in this Confidentiality Order. When the litigation has been terminated, a recipient of
Confidential Information must comply with the provisions of Paragraph 9, below (Final
Disposition).
Confidential Information must be stored and maintained by the recipient at a location and
in a secure manner that ensures that access is limited to the persons authorized under this
Confidentiality Order. The parties shall not make or issue any public announcements or press
releases (including, but not limited to, posts on websites, social media, biogs, "Tweets" on
Twitter, or any other Internet-based or electronic means) that include, refer to, or rely on
Confidential Information. An announcement is public if it is accessible to individuals who have
not agreed to be bound by this Confidentiality Order and who are not employed by a party to this
litigation . In the event that, after the filing of the public and non-public versions of the
Administrative Record, information that has been included in the public version of the
Administrative Record is determined to be Confidential Information, all parties shall meet their
obligation to secure and maintain r

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equeu.ti.;- determined Confidential Information by

removing the Confidential Information from the public domain and, to the extent that a party
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previously provided or gave access to the

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determined Confidential Information to

any person or entity not listed in Paragraph 4 of this agreement, the party shall inform &Heh
receiving person or entity of the change in the status of the information and request the
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immediate return, or destruction, of such information.
4.

Access to Confidential Information: Access to Confidential Information

designated in this Confidentiality Order, as specified in Paragraph 2, above, and to any portion of
any transcript, brief, affidavit, memorandum, or other paper that contains or reveals Confidential
Information will be limited to:
(a)

the parties to this litigation including their employees and counsel who are
consulted to work on this litigation--the term "the parties" a.s-ttSed-he ·
includes Downwind LLC and Golden Bridge LLC and their respective
Boards of Managers, but does not include individual members unless there
is a need for an individual member to have access to Confidential
Information specifically for purposes of this litigation;

(b)

the parties ' outside legal counsel and consultants retained specifically for
this litigation ;

(c)

the assistants to

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s~ outside

counsel and consultants (including

secretaries, paralegals, and clerks) actually assisting

~ounsel)~trrtt....~

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Inpreparation of this case, provided however, that S\:tefl. -1/..i..

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consultant)

assistants are subject to the terms of this Confidentiality Order and have
access to Confidential Information only to the extent necessary to perform
their duties ;

(d)

of-..h·~o-1.

the court, or court personnel involved with the case, andA
court reporters
involved in transcribing any proceedings in this litigatio~~

individuals employed by the parties or their counsel to assist in this
5

litigation in outside photocopying, data processing, document imaging or
graphic production services;
(g)

any other person who is designated by Order of the Court, after notice to
all the parties; and

(h)
5.

~other persons as the parties shall agree to in writing.

Filing Protected Material : Any document or data covered under this

Confidentiality Order that is attached to any pleading, motion, brief or other document filed with
the Court, or any pleading, motion, brief or document that relies on and discloses Confidential
Information, shall be filed with the Confidential Information redacted from it. A complete,
unredacted copy of the document shall be filed with the Court under seal.
"Under seal" means that any documents covered under this Confidentiality Order
submitted to the Clerk must be in a securely sealed envelope or box affixed conspicuously with
the legend " DOCUMENT UNDER SEAL" or "DOCUMENTS SUBJECT TO
CONFIDENTIALITY ORDER.
6.

No Waiver for Inadvertent Disclosure: Any inadvertent or unintentional

disclosure of Confidential Information that should have been designated as such, regardless of
whether the information, document or thing was so designated at the time of disclosure, shall not
be construed as a waiver, in whole or in part, of the Federal Defendants ' or DefendantIntervenors ' assertion of confidentiality as to specific information disclosed, the document
containing the disclosed information, the specific subject matter of the disclosed information, or
the right to designate the disclosed information as confidential pursuant to this Confidentiali7i
~
Jdde [JI.ItW,, I M-€-1
Order, provided that disclosure of stieh information that occur · rior to it . designation as
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Confidential Information will not constitute a breach under Paragraph 10.

6

7.

Process for Subpoena: If any party that has obtained Confidential Information

receives a subpoena or other process from any court, tribunal, person or entity seeking disclosure
of any Confidential Information, that party shall promptly give written notice by electronic mail
or facsimile to the party whose Confidential Information has been requested, enclosing a copy of
the subpoena or process; and shall also inform the party issuing the subpoena or process that the
documents sought are subject to this Confidentiality Order and may not be disclosed without the
consent of the party whose Confidential Information has been requested, or order of this Court or
a court with jurisdiction. Absent this consent or order, the parties who have obtained
Confidential Information shall not produce it.

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Duration : T-he protections affurded by.-this Confidentiality Otd~
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after te.rmination of thi~ litigation and shall ~emain in effect until th
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writing, or a courcorders-otherwrs@. The United States District Court gHh~tem District of- -h
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Final Disposition: Upon conclusion of this litigation, including appeals, and

unless ordered or otherwise agreed to in writing by the Federal Defendants or DefendantIntervenors, a party receiving Confidential Information must return all Confidential Information
described under Paragraph I of this Confidentiality Order to the party which produced the
Confidential Information no later than sixty

c calendar days after the conclusion of this action.
7cf)

All Confidential Information that must be returned includes all copies, compilations, summaries
or any other form of reproduction of the Confidential Information. Notwithstanding this
provision, Counsel for a party are entitled to retain Confidential Information that is included or
contained in court pleadings, motion papers, transcripts, legal memoranda, correspondence or
7

attorney work product.

~tratirrfo1111ati on

ttris-Gonfidentiali~e i:. 110til

10.

shall reliiai11

subjecttcrthe-preteetie· f't'. i~­
-

termination of:.th.i-s-G A-fitietttta+ity-6r

Breach: The parties acknowledge and agree that, in the event of any breach of

this Confidentiality Order, the party whose Confidential Information is improperly disclosed
("the Harmed Party") may seek such relief as to which the Harmed Party may be entitled at law
or in equity.
11.

In the event that a need arises for further measures beyond those prescribed in this

Confidentiality Order to protect the Confidential Information from unauthorized disclosure, such
as during a hearing or oral argument in this case, the Court shall prescribe such procedures as it
deems necessary to protect Confidential Information from disclosure.
12.

Notwithstanding any other provision of this Confidentiality Order, the parties may

agree in writing to waive the application of any or all restrictions on disclosure or other
provisions of this Confidentiality Order to certain Confidential Information specifically
identified in writing and approved by all the parties.
13.

Challenging Confidentiality Designations: A party that elects to initiate a

challenge to a confidentiality designation must do so in good faith and must advise the Federal
Defendants and Defendant-Intervenors in writing that the party objects to the designation. For
purposes of the Administrative Record, the Federal Defendants shall receive all notices related to
disputes regarding the confidentiality designation. If the confidentiality designation involves the
information of a non-party in the Administrative Record (for example, the Tennessee Valley
Authority), the Federal Defendants shall notify the non-party of the challenge. The parties shall
have fourteen (14) days to resolve the dispute (the "Resolution Period"). During the Resolution
Period, the parties shall meet and confer, and the Federal Defendants or Defendant-Intervenors

8

must explain with particularized facts the basis for its belief that the confidentiality designation is
proper. If, following the Resolution Period, there is no resolution of the challenge, the Federal
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Defendants anclf9! efendant-Intervenorsf\shall have fourteen ),14) calendar days to apply to the
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Court by motion for a protective order designating the challenged material as confidential. The
challenging party may file a response within sever f olendar days ; there will be no reply. The .
burden of establishing confidentiality in any such challenge proceeding shall be on the

P-eder~Wt-]f ~7:

A.

Befendants-a~ant-Interv etrof-s15ursuant to prevailing legal authority applicable to a
request for a protective order under Rule 26(c) and other applicable law. Until the challenge is
resolved, whether during the Resolution Period or by order of the Court, all the parties shall
continue to afford the Confidential Information in question the level of protection to which it is
entitled under this Confidentiality Order. In the event that the Court determines the challenged
material is not confidential, the Federal Defendants shall reproduce copies of all materials so dedesignated without the " Confidential" labeling, at the expense of the Federal Defendants, within
fourteen days after the determination. A party does not waive its right to challenge a
confidentiality designation by electing not to mount a challenge promptly after the original
designation is disclosed .
14.

Notwithstanding designation of certain information as Confidential Information

t i Fs
pursuant to this Confidentially Order, nothing herein shall be construed as a waiver of Plaintiffs '
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right to seek disclosure of documents subject to this Confidentiality Order in any other
proceedings pursuant to the Freedom of Information Act, 5 U.S.C. § 552.
ORDERED this __ day ofJanuary 2017.

D. P. Marshall Jr.
United States District Judge
9

qvi. n.c.?

STIPULATION OF THE PARTIES
FOR PLAINTIFFS:
Dated: January 27th, 2017

Isl Jordan P. Wimpy
JORDAN P. WIMPY
CHRISTOPHER L. TRAVIS
GILL RAGON OWEN , PA.
425 West Capitol Avenue, Suite 3800
Little Rock, Arkansas 7220 l
[phone] -Telephone
[phone]-Facsimile
[e-mail]

FOR FEDERAL DEFENDANTS :
Dated: January 27th, 2017
JEFFERY H. WOODS
Acting Assistant Attorney General
Environment & Natural Resources Division

Isl James J. Dubois
JAMES J. DUBOIS
U.S. Department of Justice Environment &
Natural Resources Division
Natural Resources Section
999 18th Street, South Terrace, Suite 3 70
Denver, CO 80202
Tel: [phone]
[e-mail]
STEPHEN FINN
U.S. Department of Justice Environment &
Natural Resources Division
Natural Resources Section
601 D Street, NW,
Washington, D .C . 20004
202-305-3284
Stephen. fi nn({vusdo j .gov
READE E. WILSON
U.S. Department of Justice Environment &
Natural Resources Division
Land Acquisition Section
60 l D Street, NW
Washington, D.C . 20004
202-305-0299
reacle. wi lso nl@ usdo j.gov

Counsel for Def ndants
e
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FOR DEFENDANT-INTERVENOR:
Dated: January 27th, 2017

Isl Micheal B. Heister
STEVEN W. QUATTLEBAUM, Ark. Bar #84127
JOHN E. TULL III, Ark. Bar #84150
MICHAEL B. HEISTER, Ark. Bar #2002091
QUATTLEBAUM, GROOMS & TULL PLLC
111 Center Street, Suite 1900
Little Rock, AR 72201
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
Counsel for Defendant-lntervenors

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