L-3 Communications Corporation et al v. Jaxon Engineering & Maintenance, Inc. et al

Filing 162

ORDER granting in part and denying in part 148 Motion to Amend/Correct/Modify. Plaintiffs shall submit a form of Amended Protective Order in its entirety containing the revised paragraph five which shall be entered as the Amended Protective Order a pplicable to this case. The Plaintiffs shall submit said Amended Protective Order to [e-mail] in Word or Word Perfect format on or before February 10, 2012. For further information, please see Order. By Magistrate Judge Kathleen M. Tafoya on 2/7/2012.(kmtcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10–cv–02868–MSK–KMT

L-3 COMMUNICATIONS CORPORATION, and
L-3 SERVICES, INC.,
Plaintiffs,
v.
JAXON ENGINEERING & MAINTENANCE, INC.,
JONI ANN WHITE,
RANDALL K. WHITE,
SCOTT WHITE,
SUSAN RETTIG,
CHARLES RETTIG,
JAMES YOUNGMAN,
JERRY LUBELL,
KELLY RICE,
JOHN MCCLURE, and
JOHN DOES 1-25, said names being fictitious as such names are unknown at this time,
Defendants.

ORDER

This matter is before the court on Plaintiffs’ L-3 Communications Corporation and L-3
Services, Inc.’s “Motion to Amend the Protective Order” [Doc. No. 148] filed December 22,
2012. Defendants responded on January 3, 2012 [Doc. No. 154] (“Resp.”) and Plaintiffs replied
on January 6, 2012 [Doc. No. 156].

The parties do not disagree on the proposed amendment to paragraph five of the
Protective Order. Therefore it is ORDERED that paragraph five of the Protective Order [Doc.
No. 82] is amended as follows:
5. Counsel for any party subject to discovery in the Action may designate any
Litigation Materials that it produces or discloses in the course of the Action as
“SUBJECT TO PROTECTIVE ORDER” when the Producing Party in good faith
believes that the Litigation Materials constitute, contain, or reveal, or a
compilation of which would constitute, contain, or reveal, confidential,
non-public, technical, or financial information, including but not limited to:
business plans or projections, trade secrets, compensation plans, proprietary
information, technical specifications, business and marketing information, plans,
strategies, studies or analysis by internal or outside experts, financial data or
results, tax data, assets, liabilities, competitive analyses, personal financial
information, or other commercially or personally sensitive or proprietary
information. If a Producing Party produces Litigation Materials pertaining to any
part of a contract or prospective contract with departments or agencies of the
United States of America, including the United States Air Force (“Government”),
the Producing Party must designate such Litigation Materials as “SUBJECT TO
PROTECTIVE ORDER,” “ATTORNEYS EYES ONLY - SUBJECT TO
PROTECTIVE ORDER,” or “ATTORNEYS EYES ONLY - SUBJECT TO
PROTECTIVE ORDER - TECHNICAL,” as appropriate. The Air Force has
acknowledged that this designation of Litigation Materials for production under
the Protective Order complies with the requirement set forth in Paragraph 12 of
DD Form 254 applicable to Contract No. FA2517-04-D-0001. The Producing
Party shall use the appropriate markings on Litigation Materials that contain
unclassified technical data with military or space application in the possession of,
or under the control of, a Department of Defense (“DoD”) Component and so
designated, and which may not be disclosed pursuant to 10 U.S.C. 130 and/or
DoD Directive No. 5230.25, dated November 6, 1984, entitled “Withholding of
Unclassified Technical Data From Public Disclosure.” Such information includes,
but is not limited to, information relating to equipment cataloged in the Military
Critical Technologies List, or information categorized as “FOR OFFICIAL USE
ONLY (FOUO),” or information that may not be exported lawfully without
approval, or authorization or license. See 22 U.S.C. 2751-2799; 50 U.S.C. App.
2401-2420. If any Party wishes to release such designated Litigation Materials to
the public, that Party must submit the designated Litigation Materials to the Air
Force for approval as required by Paragraph 12 of Form DD 254. In no event

2

shall this Protective Order be construed to authorize access to or production of
national security classified information.
It is further ORDERED that Plaintiffs shall submit a form of Amended Protective Order
in its entirety containing the revised paragraph five which shall be entered as the Amended
Protective Order applicable to this case. The Plaintiffs shall submit said Amended Protective
Order to [e-mail] in Word or Word Perfect format on or before
February 10, 2012.
It is further ORDERED that defendants shall produce documents which have been
withheld as lacking approval for dissemination under the DD-254 applicable to Contract No.
FA2517-04-D-001 within five days of the entry of the Amended Protective Order.
It is further ORDERED that defendants shall file, on or before February 15, 2011,
pursuant to D.C.COLO.LCivR 7.2(B)(5) restricted access Level 1, a document fully explaining,
with date annotations, any and all attempts made with each of the prime contractors and
government agencies identified in the un-redacted version of Resp., Attach B, [Doc. No. 154-3],
to obtain approval pursuant to DD-254 contractual restrictions for release of certain documents
for production as discovery in this case. As to each of the prime contractors and government
agencies, the defendants may use a generic reference, e.g. “Prime contractor No. 1” or
“Government Agency A” as a substitute for the actual contractor name or agency in the filing
required by this Order. The defendants shall simultaneously produce to plaintiffs – but not file
with the court – a list correlating the generic references in the court filing to the actual prime
contractor and/or government agency identified in the court filing. Such list shall be tendered

3

subject to the appropriate designation pursuant to the Amended Protective Order. This Order
shall not be interpreted as requiring revelation of the identity of any contractor or government
agency as to which such information would be classified. (See Resp. at ftnt. 4.)
Additionally, as part of the same filing, Defendants shall indicate whether any documents
responsive to discovery in this case are being withheld pending approval by the specified
government agency or prime contractor. If so, the Defendants shall indicate the approximate
volume of such withheld production.
It is further ORDERED
The plaintiffs may file, on or before February 24, 2012, any motion to compel with
respect to documents withheld as noted defendants’ required filing above. If such motion is
filed, Defendants’ response shall be due on or before March 2, 2012 and plaintiffs’ reply, if any,
shall be filed on or before March 9, 2012.
It is further ORDERED that all other relief requested in the Motion is denied .
Wherefore, it is the Order of the Court that Plaintiffs’ “Motion to Amend the Protective
Order” [Doc. No. 148] is GRANTED in part and DENIED in part consistent with this Order.
Dated this 7th day of February, 2012.

4