Buffalo River Watershed Alliance et al v. Department of Agriculture et al

Filing 27

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIALITY. Signed by Judge D. P. Marshall Jr. on 2/13/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

BUFFALO RIVER WATERSHED ALLIANCE;
ARKANSAS CANOE CLUB; NATIONAL PARKS
CONSERVATION ASSOCIATION; and OZARK
SOCIETY,
Plaintiffs,

v.
UNITED STATES DEPARTMENT OF
AGRICULTURE; UNITED STATES SMALL
BUSINESS ADMINISTRATION; TOM VILSACK, in
his official capacity as Secretary, United States
Department of Agriculture; JEANNE HULIT,in her
official capacity as Acting Administrator, Small
Business Administration; JUAN GARCIA, in his
official capacity as Administrator, Farm Service
Agency; LINDA NEWKIRK, in her official capacity as
Arkansas State Executive Director, Farm Service
Agency; and LINDA NELSON, in her official capacity
as Arkansas District Director, Small Business
Administration,

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Civil No. 4: 13-cv-0450 DPM

STIPULATED
PROTECTIVE ORDER
REGARDING
CONFIDENTIALITY

Defendants.

Pursuant to Rules 5.2 and 26(b)(5) ofthe Federal Rules of Civil Procedure and Rule
502(d) of the Federal Rules of Evidence, the parties have agreed to, and seek the Court's
approval of, this Stipulated Protective Order Regarding Confidentiality. This Protective Order
applies to the documents produced by the Federal Defendants as part of the Administrative
Record and establishes protections from public disclosure of confidential business information
("CBI") and materials covered by the Privacy Act, 5 U.S.C. § 552a.

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1.

The parties agree that litigation of this matter will be based on administrative

records prepared by the Farm Service Agency ("FSA") and the Small Business Administration
("SBA") (collectively the "Administrative Record").
2.

FSA and SBA are preparing the Administrative Record for this matter and have

determined that it contains extensive CBI as well as materials covered by the Privacy Act,
including personal addresses, telephone numbers, tax identification numbers, social security
numbers and personal financial information. Due to the extraordinary nature of this record, the
agencies believe a procedure to avoid public disclosure of these materials is appropriate in this
case.
3.

To avoid public disclosure ofCBI or materials covered by the Privacy Act the

parties have agreed to the following process for the production of the Administrative Record in
this case.
a.

Production of Administrative Record and Index. FSA and SBA will

make a good faith effort to redact and withhold from the Administrative Record materials that
constitute CBI or which are covered by the Privacy Act. The documents withheld in full or
redacted in part because they constitute CBI, or are covered by the Privacy Act, or under any
other claim of privilege will be listed on an Index to the Administrative Record with an
explanation of the reason for the withholding or the redaction. Federal Defendants will lodge
with the Court the Index for the Administrative Record, and will provide to counsel for Plaintiffs
the Index as well as an electronic copy of the portions of the Administrative Record being
produced.

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b.

Designation of Additional Privileged or Confidential Materials.
(i)

If Federal Defendants determine that they have included in the

Administrative Record a document containing CBI, subject to the Privacy Act, or for which they
wish to make a claim of privilege, they shall provide notice to Plaintiffs' counsel within fifteen
days of that determination. If Defendants claim that only a portion of any document is
privileged, they shall provide, along with the notice of the claim of privilege, a new copy of the
document with the portions asserted to be privileged redacted.
(ii)

The parties agree that Plaintiffs are under a good-faith obligation

not to disclose Privacy Act-protected information or CBI included in the Administrative Record
and to notify Defendants upon identifying a document in the Administrative Record that appears
on its face or in light of facts known to Plaintiffs to contain CBI, information subject to the
Privacy Act, or that is otherwise privileged. This notification shall not waive Plaintiffs' ability
to later challenge any assertion of privilege with respect to the identified document. If Federal
Defendants believe a document so identified by Plaintiffs to be privileged, they shall provide
notice to Plaintiffs within five business days of Plaintiffs' notification to Defendants of
potentially privileged material.
(iii)

Upon receiving notice of a claim of privilege on a document

served or lodged by Defendants, Plaintiffs, consistent with Fed. R. Civ. P. 26(b)(5)(B), whose
procedures this Order incorporates by reference, will promptly sequester the specified
information and any copies they have. Plaintiffs may not use or disclose the information
contained therein until the Defendants' claim of privilege is resolved. IfPiaintiffs disclosed the
information before being notified, they must take reasonable steps to prevent further use of such
information until the claim is resolved.
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c.

Filing the Administrative Record. Federal Defendants will incorporate

any additional designations of confidential or privileged materials in a Revised Index. The
Revised Index and the portions of the Administrative Record being produced will be filed with
the Court on February 25, 2014, the Court-endorsed deadline for Plaintiffs' filing of any motions
relating to the adequacy of the Administrative Record, if Plaintiffs file such a motion. If
Plaintiffs do not file a motion relating to the adequacy of the Administrative Record, Federal
Defendants will file the Revised Index and the portions of the Administrative Record being
produced on March 6, 2014, the Court-endorsed deadline for Plaintiffs' filing of a motion for
summary judgment.
d.

Neither Plaintiffs nor their counsel will make public any materials in the

Administrative Record before the Federal Defendants' filing of the portions of the
Administrative Record being produced with the Court. Notwithstanding the eventual expiration
of this Order, the parties agree that neither Plaintiffs nor their counsel will at any time make
public any information from the Administrative Record which they have reason to believe is
protected by the Privacy Act or constitutes CBI. The Court does not retain jurisdiction to
adjudicate any dispute about any alleged post-Order disclosure.

4.

No Waiver of Inadvertently Disclosed Materials. Consistent with Federal Rule
'

of Evidence 502(d), any inadvertent or unintentional disclosure of CBI or otherwise privileged
information in the Administrative Record will not be construed as a waiver, in whole or in part,
of Federal Defendants' claims of confidentiality or privilege as to specific information disclosed,
the general topic of the disclosed information, or the right to designate the disclosed information
as confidential pursuant to this protective Order.

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5.

This Order shall remain in effect until one year after this litigation ends, including

all appeals.
Agreed on 13 February, 2014.
ROBER G. DREHER
Acting Assistant Attorney General
U.S. Department of Justice

Is/ Barclay T. Samford
BARCLAY T. SAMFORD
Trial Attorney, Natural Resources Section
United States Department of Justice
Environment & Natural Resources Division
999 18th Street
South Terrace, Suite 370
Denver, CO 80202
[phone]; I Phone
[phone] I Fax
Clay.Samford@usdoj .gov
Counsel for Defendants

Is/ Hannah Chang
Hannah Chang
Marianne Engelman Lado
Earthj ustice
48 Wall Street, 19th Floor
New York, NY 10005
212-845-7382
hchang@earthj ustice.org
[e-mail]
Hank Bates, ABN 98063
Carney Bates Pulliam PLLC
11311 Arcade Dr.
Little Rock, AR 72212
501-312-8500
hbates@cbplaw .com
Monica Reimer
Earthjustice
111 South Martin Luther King Jr. Blvd.
Tallahassee, FL 32301
850-681-0031
[e-mail]
5

Kevin Cassidy
Earthrise Law Center
P.O. Box 445
Norwell, MA 02061
781-659-1696
[e-mail]

Counsel for Plaintiffs

SO ORDERED.

D.P. Marshall Jr.
Z7
UNITED STATES DISTRICT JUDGE
I3

Date

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