Arc Ecology, et al v United States Maritime Administration, et al

Filing 71

STIPULATION and PROTECTIVE ORDER signed by Magistrate Judge Gregory G. Hollows on 8/13/09: STIPULATION for PROTECTIVE ORDER is APPROVED.(Kaminski, H)

JOHN C. CRUDEN 2 Acting Assistant Attorney General LESLIE M. HILL 3 MICHELLE LAMBERT Trial Attorneys 4 United States Department of Justice Environment and Natural Resources Division 5 Environmental Defense Section P.O. Box 23986 6 Washington, D.C. 20044-3986 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] 8 Attorneys for Defendants 9 MICHAEL E. WALL (Cal. Bar No. 170238) 10 NATURAL RESOURCES DEFENSE COUNCIL 111 Sutter Street, 20th Floor 11 San Francisco, California 94104 Telephone: [phone] Facsimile: [phone] E-mail:[e-mail] 13 14 Attorneys for Plaintiffs [Additional Counsel listed on signature page] 15 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 16 SACRAMENTO DIVISION 17 ARC ECOLOGY, et al., 18 Plaintiffs, v. 19 Case No.: 2:07-cv-2320-GEB-GGH UNITED STATES MARITIME 20 ADMINISTRATION, et al., STIPULATION AND PROTECTIVE ORDER Defendants. 21 22 CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SAN 23 FRANCISCO BAY REGION, 24 25 Plaintiff-Intervenor,

1

v. UNITED STATES MARITIME 26 ADMINISTRATION, et al., 27 28 Defendants.

1 // 2 3 4

Plaintiffs Arc Ecology, San Francisco Baykeeper, and Natural Resources Defense Council, Inc.

(collectively "Environmental Plaintiffs"), Plaintiff-Intervenor California Regional Water Quality Control Board, San Francisco Bay Region, and defendants United States Maritime Administration

5 ("MARAD"), James E. Caponiti, in his official capacity as Acting Deputy Maritime Administrator, 6 United States Department of Transportation, and Ray H. LaHood, in his official capacity as Secretary 7 of Transportation (collectively "Defendants"), by and through their respective counsel, stipulate and 8 agree that a protective order should be entered in this action to protect confidential and 9 10 11 12 13 14 I. that a protective order be entered, subject to the approval of the Court, as follows: Materials Covered Disclosure of the following documents, or highlighted portions thereof, consist of commercially sensitive information that may be produced or otherwise disclosed by MARAD. To facilitate production and receipt of information during discovery, the parties stipulate and agree

15 one or more of the following categories: Proprietary and Source Selection Data ­ information 16 related to the government decision making process (including the decision itself) for an award of a 17 18 19 20 contract to industry. Consistent with FAR Part 3.104.5 this Proprietary and source selection information may only be disclosed to individuals authorized by the head of an agency. Further, some of these documents contain confidential business information ("CBI"). Disclosure of these

21 data would impair Defendants' ability to gather this type of information in the future. Further, 22 there is likelihood of substantial competitive harm in the event information contained in the 23 following documents is disclosed in that competitors could use this information to undercut future 24 offers, especially in regards to vessel recycling services. 25 26 27 28
MARAD001639 MARAD001730 MARAD001731
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

-2-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MARAD002116 MARAD002124 MARAD002187 MARAD004978 MARAD005366 MARAD025007-13 MARAD025017-22 MARAD025111-12 MARAD025117-29 MARAD025142-43 MARAD025144-45 MARAD025146-47 MARAD025148-49 MARAD025158-59 MARAD025160-65 MARAD025166-67 MARAD025191-92 MARAD025229-30 MARAD025240-43 MARAD025326-27 MARAD025375-76 MARAD025455-56 MARAD025467-68 MARAD025561-63 MARAD025564-65 MARAD025566-68 MARAD025569-70 MARAD025573-75 MARAD025671-72 MARAD025674-75 MARAD026009-10 MARAD026181-82 MARAD026194-207 MARAD026483-84 MARAD026615-16 MARAD026617-18 MARAD026620-21 MARAD026931-32
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

-3-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

MARAD026973-74 MARAD027029-41 MARAD027042-51 MARAD029494-514 MARAD062893-94 MARAD062896-97 MARAD062899-900 MARAD062901-03 MARAD062905-06 MARAD063767-875 MARAD063858-916 MARAD064077-228 MARAD064229-231 MARAD000045-47

·

Transcript of United States' Maritime Administration Designated Representative Curt Michanczyk at 509-512, Arc Ecology et al v. U.S. Maritime Administration, et al., No. 2:07-cv-2320 (E.D. Cal. June 10, 2009). Method of Designation II. Defendants may designate as "Confidential" the entirety of or any portion of the

documents listed in Section I above, provided the designation is made in good faith, as follows: A. Section I. B. Documents or other tangible documents or information produced by Confidential" materials are any materials containing information listed in

22 MARAD may be designated as "Confidential" by stamping, attaching, or writing the legend 23 "Confidential" on the document or other information at or before production; including the legend 24 "Confidential" on the cover of any multipage document shall designate all pages of the document 25 26 27 28
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

as confidential, unless otherwise indicated.

-4-

1

C.

Where only portions of documents or information are designated as

2 "Confidential," MARAD shall designate the parts of said materials for which confidentiality is 3 4 5 6 7 8 9 III. at the time of production or disclosure shall not operate to waive the right to later seek an order of the Court designating such Documents or information as "Confidential." Treatment of "Confidential" Documents or Information No copies of "Confidential" documents or information shall be made except to the claimed, and only those parts shall be subject to this Stipulation and Protective Order. D. Inadvertent failure to designate documents or information as "Confidential"

10 extent necessary for the preparation of and conduct of this litigation, including discovery, motion 11 12 13 14 practice, trial, or appeal. Any person responsible for making such copies must ensure that the copies adequately reflect the "Confidential" designation. IV. Documents or information designated as "Confidential," including any copies,

15 notes, abstracts or summaries thereof, shall be maintained in confidence by the person to whom 16 such materials are produced or disclosed, and shall not be disclosed to any person except the 17 following and such disclosures shall only be made to the extent necessary: 18 19 20 21 22 23 24 25 26 27 28 V. A. the Court; B. court reporters who record depositions or other testimony in this action; C. counsel of record to the parties in this litigation, and the legal associates, paralegals and support staff who are employed by such counsel and are actually involved in assisting in this litigation; D. any other person upon the written agreement of MARAD, or pursuant to Court order. All persons authorized by this Protective Order to receive information from
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

documents or information designated as "Confidential" shall maintain such information in

-5-

1 accordance with this Protective Order, and shall use such information solely for the purpose of 2 preparing for and conducting the above-captioned litigation and for no other purpose. Documents 3 4 5 6 7 restrictions placed by this Order on a party in possession of documents or information shall not apply to materials that were in the receiving party's lawful possession prior to disclosure in this or information designated as "Confidential" and the contents thereof shall not be used for any business, commercial or competitive purpose, or used in any other litigation or proceeding. The

8 litigation unless the receiving party previously received the information under an obligation of 9 confidentiality. 10 11 12 13 14 VI. All persons authorized to receive "Confidential" documents or information under

this Protective Order (other than the Court and court reporter), shall be shown a copy of this Protective Order, and, if not a lawyer acting as counsel to a party in this action or an employee of such counsel, shall, in a written and signed certificate in the form attached hereto as Appendix A,

15 state that he or she has read this Protective Order and agrees to be bound by its terms. Counsel of 16 record for that party shall then retain the Certificate until the conclusion of the litigation, and shall 17 make such Certificates available to other counsel upon written request after the conclusion of the 18 litigation. 19 20 21 22 VII. Inadvertent Disclosure In the event that information from documents or information designated as

"Confidential" is disclosed to someone not authorized to receive such information under this

23 Protective Order, counsel of record for the party involved shall immediately give notice of such 24 unauthorized disclosure to counsel of record for MARAD, and also shall describe the 25 circumstances of the unauthorized disclosure. 26 27 28
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

-6-

1 2 3 4 5 6 7 VIII.

Filing and Use in Court If documents or information designated as "Confidential" or quotes from or

references to such materials are to be included in papers filed with or otherwise disclosed to the Court, such papers shall be labeled "Confidential Subject to Protective Order." If any party includes documents or information designated as "Confidential" or quotes from or references to such materials in papers filed with or otherwise disclosed to the Court, such party shall notify each

8 of the other parties hereto of the use of such documents, information, quotes or references. Within 9 60 days of receiving such notice, any party to this agreement may move the Court for an order 10 directing that all or any part of any documents or information designated as "Confidential" or any 11 12 13 14 quotes from or references to such materials in papers filed with or otherwise disclosed to the Court shall be maintained under seal and not be available for public review. Any such motion must demonstrate a particularized showing of good cause. Means to preserve the confidentiality of

15 information presented at a hearing or the trial of this matter shall be considered and implemented 16 prior to the beginning of such hearing or trial. 17 IX. Nothing herein shall prevent any of the parties from using "Confidential"

18 documents or information in connection with any trial, hearing or other proceeding in this matter 19 20 21 22 23 X. or from seeking further protection with respect to the use of any "Confidential" documents or information in connection with such trial, hearing or other proceeding in this matter. Conclusion of Litigation Within thirty (30) days of the conclusion of the above captioned matter, including

24 any post-trial motions or appellate proceedings, counsel of record for the parties shall secure the 25 return to the producing party of all documents or information designated as "Confidential" (and all 26 27 28 copies thereof and notes, abstracts or summaries made therefrom) from all persons to whom such materials were disclosed under the terms of this Protective Order, and shall either destroy all such
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

-7-

1 materials or return them to counsel for the party or non-party who initially produced the 2 documents or information, except that counsel may retain their work product copies of court 3 4 5 6 7 8 9 XI. of this Protective Order shall survive the conclusion of this action, and the Court will retain jurisdiction to enforce them. Amendment of this Agreement/Counterparts The provisions of this Protective Order may only be modified at any time by filings and official transcripts and exhibits, provided that the party that retains the "Confidential" documents or information continues to treat them in the manner provided herein. The provisions

10 written stipulation of the parties approved by order of the Court. In addition, a party may at any 11 12 13 14 15 16 XII. time apply to the Court for modification of this Protective Order pursuant to a motion brought in accordance with the rules of the Court. This Protective Order may be signed in counterparts, and may include a facsimile signature as an original. Reservation of Rights Nothing in this Protective Order shall constitute: (a) any agreement by the parties to

17 produce any documents or supply any information in discovery not otherwise agreed upon or 18 required by Court order; (b) a waiver by any person or party of any right to object to or seek a 19 20 21 22 further Protective Order with respect to any discovery request in this or in any other action; (c) a waiver of any claim or immunity or privilege with regard to any testimony, document, or information; or (d) an admission or concession by any party that the information designated

23 "Confidential" hereunder is, in fact, confidential, proprietary, a trade secret or otherwise 24 protectable. 25 STIPULATED AND AGREED TO: 26 Dated: August 6, 2009 27 28
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

-8-

1 For Environmental Plaintiffs: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 August 6, 2009 27 28 By: For Plaintiff-Intervenor: EDMUND G. BROWN JR. Attorney General of the State of California s/ Tara L. Mueller (as authorized on 08/06/2009) CHRISTIANA TIEDEMANN (Cal. Bar No. 105299) Supervising Deputy Attorney General
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

August 6, 2009

By:

s/ Sarah Lipton-Lubet (as authorized on 08/06/2009) MICHAEL E. WALL (Cal. Bar No. 170238) NATURAL RESOURCES DEFENSE COUNCIL 111 Sutter Street, 20th Floor San Francisco, California 94104 Tel.: [phone]; Fax: [phone] E-mail: [e-mail] THOMAS CMAR (admitted pro hac vice) NATURAL RESOURCES DEFENSE COUNCIL 2 North Riverside Plaza, Suite 2250 Chicago, IL 60606-9997 Tel.: [phone]; Fax: [phone] E-mail: [e-mail] SARAH LIPTON-LUBET (admitted pro hac vice) NATURAL RESOURCES DEFENSE COUNCIL 1200 New York Ave., NW, Suite 400 Washington, DC 20005 Tel.: [phone]; Fax: [phone] E-mail: [e-mail] SCOTT ALLEN (Cal. Bar No. 178925) LARIVIERE, GRUBMAN & PAYNE 19 Upper Ragsdale Drive, Suite 200 Monterey, CA 93940 Tel.: [phone]; Fax: [phone] Email: [e-mail] DAVID A. NICHOLAS (admitted pro hac vice) 20 Whitney Road Newton, MA 02460 Tel.: [phone]; Fax: [phone] E-mail: [e-mail] Attorneys for plaintiffs Arc Ecology, San Francisco Baykeeper, and Natural Resources Defense Council, Inc.

-9-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 August 6, 2009 16 17 18 19 20 21 22 23 24 Dated: _August 13, 2009._____ 25 . 26 27 28 IT IS SO ORDERED. By: For Defendants:

TARA L. MUELLER (Cal. Bar No. 161536) Deputy Attorney General 1515 Clay Street, 20th Floor P. O. Box 70550 Oakland, CA 94612-0550 Telephone: [phone] (Mueller) [phone] (Tiedemann) Fax: [phone] Attorneys for the California Regional Water

LAWRENCE G. BROWN Acting United States Attorney TODD A. PICKLES Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: [phone] Fax: [phone] JOHN C. CRUDEN Acting Assistant Attorney General Environment & Natural Resources Division s/ Michelle R. Lambert .

LESLIE M. HILL MICHELLE R. LAMBERT Trial Attorneys United States Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box 23986 Washington, DC 20026-3986 Telephone: [phone] Facsimile: [phone]

/s/ Gregory G. Hollows United States Magistrate Judge

ARC.po
STIPULATION AND PROTECTIVE ORDER CASE NO. 2:07-CV-2320-GEB-GGH

-10-