County of Amador v. The United States Department of the Interior et al

Filing 39

PROTECTIVE ORDER signed by District Judge Troy L. Nunley on 4/29/2013 GRANTING 37 Stipulation for Protective Order, governing inclusion of privileged documents in the administrative record; this order shall remain in full force after resolution of the case.(Reader, L)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
COUNTY OF AMADOR, CALIFORNIA,

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Plaintiff,
v.
THE UNITED STATES DEPARTMENT OF THE
INTERIOR; SALLY JEWELL, Secretary of the United
States Department of the Interior; KEVIN
WASHBURN, Assistant Secretary of Indian Affairs,
United States Department of Interior,

PROTECTIVE ORDER
GOVERNING INCLUSION OF
PRIVILEGED DOCUMENTS
IN THE ADMINISTRATIVE
RECORD

Hon. Troy L. Nunley

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CASE NO. 2:12-cv-01710-TLNCKD

Defendants.

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Proposed Protective Order Governing Inclusion of Privileged Documents in AR
Case No. 2:12-cv-01710-TLN-CKD

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This matter is before the Court on the “Parties’ Stipulation for Dismissal of FOIA

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Claims and for Protective Order Governing Release of Privileged Documents,” dismissing Cathy

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Christian’s FOIA claim, which was allowed to be joined with Amador County’s Administrative

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Procedure Act challenge by order of this Court on April 1, 2013, ECF No. 31. Pursuant to that

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Stipulation, Federal Defendants have agreed to include, un-redacted, five documents in the

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Administrative Record of the agency decision challenged by the County that the Federal

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Defendants contend are otherwise confidential and privileged. Upon consideration of the Parties’

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Stipulation and for good cause shown, it is hereby ORDERED that

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1. The Stipulation for Dismissal is APPROVED and Count V (Injunctive Relief—FOIA)
is dismissed with prejudice;
2. This Order, entered pursuant to Local Rule 141.1 and Federal Rule of Evidence 502,

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shall govern the scope of Federal Defendants’ release of documents for inclusion in the

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Administrative Record being filed in this and related cases, which Federal Defendants contend

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are otherwise confidential and privileged, and the use of these documents by nonfederal parties

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in any other federal or state court or administrative proceeding beyond this lawsuit.

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3. The documents governed by this Order, which the Federal Defendants contend are

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otherwise confidential and privileged, are: (1) the January 16, 2009 opinion authored by former

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Solicitor David Bernhardt, which opinion Federal Defendants contend was a draft opinion only;

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(2) the July 10, 2009 letter from then Acting General Counsel Penny Coleman to Solicitor Hilary

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Tompkins; (3) a draft legal opinion prepared by the National Indian Gaming Commission

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enclosed with such letter; (4) the July 26, 2011 legal memorandum authored by Solicitor

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Tompkins; and (5) the May 23, 2012 briefing memorandum from Bryan Newland, Senior Policy

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Advisor to the Acting Assistant Secretary—Indian Affairs, Donald Laverdure.

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4. The above-referenced documents, or their contents, may not be used by any non-

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federal parties in any court or administrative proceeding, whether federal or state, for any

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purpose other than for litigating the merits of Plaintiff Amador County’s APA lawsuit. The

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parties contemplate that a stipulated protective order similar to this one may allow use of the

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above-referenced documents or their contents by non-federal parties in the related case.

Proposed Protective Order Governing Inclusion of Privilege Documents in AR
Case No. 2:12-cv-01710-TLN-CKD

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The release of these documents, which the Federal Defendants contend are otherwise

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confidential and privileged, does not establish a precedent for the release of confidential and

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privileged documents generally by the Department of the Interior or the National Indian Gaming

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Commission.

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5. The Federal Defendants’ inclusion of these documents in the Administrative Record

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shall not in any way be deemed a waiver of any privileges attaching to any subject matter beyond

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the documents themselves.

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6. The County of Amador and Ms. Christian contest the Federal Defendants’
characterization of the documents identified in paragraph (3) as privileged and confidential. This

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agreement and order constitute a settlement of contested FOIA claims and are not an admission

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by the County or Ms. Christian that the documents in question are privileged and confidential.

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7. This Order is necessary, among other reasons, because of the importance of the

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attorney-client relationship between the Solicitor and the Secretary of the United States

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Department of the Interior, the privileged nature of the legal counsel provided by the former

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to the latter, the importance of protecting the Department of the Interior’s ability to freely and

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candidly deliberate under the deliberative process privilege, and because of the dictate of Fed. R.

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Evid. 502(e) that an “agreement on the effect of disclosure in a federal proceeding is binding

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only on the parties to the agreement, unless it is incorporated into a court order.”

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8. This Order shall remain in full force after resolution of the case.

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IT IS SO ORDERED.

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DATED: April 29, 2013

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Troy L. Nunley
United States District Judge

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Proposed Protective Order Governing Inclusion of Privilege Documents in AR
Case No. 2:12-cv-01710-TLN-CKD

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