PRESTOP HOLDINGS, LLC et al v. USA

Filing 66

PROTECTIVE ORDER. Signed by Judge Francis M. Allegra. (si) Copy to parties.

In The United States Court of Federal Claims
No. 05-576 T
(Filed: April 13, 2011)
__________
PRESTOP HOLDINGS, LLC,
JL INVESTMENT TRUST,
JOHN M. LARSON, GRANTOR/TRUSTEE,
TAX MATTERS PARTNER FILING AS
NOTICE PARTNER,
Petitioner,
v.
THE UNITED STATES,
Respondent.
_________
PROTECTIVE ORDER
_________
By agreement of the parties, petitioner, JL Investment Trust, the tax matters partner of
Prestop Holdings, LLC (petitioner) and respondent, United States of America (United States or
respondent) (each, a party and together, the parties), and non-party, KPMG LLP (KPMG), by
and through their attorneys, and in order to protect certain information during the discovery
phase of this litigation that non-party, KPMG, may be required to produce during the course of
this action while recognizing the “vital public interest in open judicial proceedings,” 28 C.F.R.
§50.9, it is hereby ORDERED that:
1.

KPMG may designate material as protected information only if it falls within the
protections of Rule 26(c) of the Rules of the Court of Federal Claims (RCFC). Unless
otherwise stated in this Protective Order, a declaration setting forth KPMG’s good faith
basis for designating the information as protected information must be sent to all of the
parties prior to, or contemporaneously with, the production or disclosure of that
information. Any dispute regarding whether particular material falls within the
protections of RCFC 26(c) shall not serve as the basis for refusing to produce the
particular material. All copies, duplicates, extracts, summaries, or descriptions
(hereinafter referred to collectively as copies) of documents or information designated as
protected information under this order, or any portion thereof, must be immediately

affixed with the words: “CONFIDENTIAL: Subject to Protective Order in Prestop
Holdings, LLC v. United States, Fed. Cl. 05-576T.” Electronically Stored Information
(ESI) may be designated as protected information. The physically produced storage
device containing protected information in the form of ESI must be immediately affixed
with the words: “CONFIDENTIAL: Subject to Protective Order in Prestop Holdings,
LLC v. United States, Fed. Cl. 05-576T.” Notwithstanding any other provisions of this
order, the parties and KPMG understand and agree that documents or information
produced by KPMG in response to subpoenas in this case, and that are otherwise publicly
available, are not entitled to treatment as protected information pursuant to this order, and
may be treated by the parties as not being protected information without the need for any
further order of this court. The presumptions concerning the designation of protected
information identified by this paragraph are subject to the objection provisions of
paragraph 7. The issuance of this Protective Order does not constitute a finding by the
court (or an admission by any party) that any protected information is relevant,
admissible, or otherwise not subject to challenge on evidentiary grounds.
2.

Protected information may be used in any and all discovery proceedings in this case
including, but not limited to, document requests, requests for admission, depositions,
interrogatories, and discovery motions, but shall not otherwise be publicly disclosed
except as permitted by this order. Protected information may be used by the parties in
connection with the prosecution or defense of this action (including, but not limited to, all
uses associated with motions filings and all uses associated with offering protected
information into evidence or eliciting/offering testimony at trial or an appeal), but not for
any other pending or threatened civil litigation, nor any business or other purpose, except
as otherwise provided for in this order. The United States may use protected information
in other civil litigation, provided that the United States provides written notification to
KPMG or its counsel in advance of any intended use in other civil litigation and provided
that such advance written notification confirms the agreement of the United States that (i)
the protected information will be used solely for purposes of such other civil litigation
and (ii) access to the protected information will be limited in the same manner and
subject to the same limitations as provided in this order.

3.

The parties and counsel for the parties shall not disclose or permit the disclosure of any
documents or information designated as protected information under this Protective
Order to any other person or entity, except that disclosures may be made in the following
circumstances:
(a)

Disclosure may be made to employees of counsel for the parties, or to employees
of the parties to properly accomplish any purpose or activity described in 26
U.S.C. §§ 6103(h) or (k) and the regulations thereunder, which is appropriate in
handling this case;

(b)

Disclosure may be made to the court and its personnel;

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(c)

(d)

Disclosure may be made to independent experts or consultants retained by
counsel for the parties for the purpose of assisting in this litigation, including any
of their staff to whom it is necessary to disclose protected information in order to
assist in their participation in this litigation;

(e)

Disclosure may be made to any potential witness in this litigation identified in the
Complaint, identified during discovery or by the parties’ witness lists, or planned
to be called as a witness by a party at deposition or during trial or to be
interviewed about a matter at issue in this case, as well as any counsel for such
witness and any person(s) present during such testimony or interview. For
purposes of this paragraph 4(e), the parties and KPMG understand and agree that
documents or information produced by KPMG in response to subpoenas in this
case, and that are otherwise available to a potential witness described in this
paragraph 4(e), shall not be treated as protected information with respect to such
potential witness. Individuals identified by this paragraph may be provided with a
copy of any relevant protected information for their review in preparation for or
during the witness’s deposition or testimony, either at trial or other hearing in this
litigation. Upon completion of their review, the protected information provided
shall be returned to counsel for the party that supplied it;

(f)

Disclosure may be made to any mediators, arbitrators, or other outside parties and
their staff enlisted by all parties to assist in the resolution of this matter;

(g)

Disclosure may be made to outside or contracted litigation-support services,
including commercial copying services;

(h)

Disclosure may be made to any court reporter, transcriber or videographer who
reports, transcribes or records testimony in this action at a deposition; and

(i)

4.

Disclosure may be made to the parties themselves (for purposes of the United
States, this includes all persons employed by the United States Department of
Justice or the Internal Revenue Service whose duties include assisting with, or
reviewing, matters concerning this litigation);

Disclosure may be made to employees of the Department of Justice and the
Internal Revenue Service who are assigned to any pending criminal investigation
or matter, for their unrestricted use in such criminal investigation or matter.

No party shall disclose protected information or copies of protected information to any of
the persons identified in paragraphs 3(d) or 3(f) without first having obtained an executed
acknowledgment from such person, substantially in the form attached hereto or, in the
case of depositions, an acknowledgement on the record that such person agrees to be
bound by the terms of this Protective Order. No party shall disclose protected
information or copies of protected information to any of the persons identified in
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Paragraphs 3(e) or 3(h) without first seeking to have such persons execute the Certificate
of Compliance with the Protective Order, Attachment A, in the case of depositions, an
acknowledgement on the record that such person agrees to be bound by the terms of this
Protective Order.
5.

Notwithstanding any provision of this Protective Order, where counsel believe protected
information, either on its face or in conjunction with other information, indicates a
violation or potential violation of law – criminal, civil, or regulatory in nature – the
relevant information may be disclosed to the appropriate federal, state, local, foreign, or
tribal, law enforcement authority or other appropriate agency charged with the
responsibility of investigating or prosecuting such a violation or enforcing or
implementing such law.

6.

The parties and KPMG agree that the inadvertent or unintentional disclosure by a party of
protected Information shall not be deemed a waiver in whole or in part of any claim of
confidentiality or protected status. This paragraph applies to both the specific
information disclosed as well as any other information relating thereto or on the same or
related subject matter.

7.

Any party may serve a written objection to any designation of protected information
made by KPMG. This notice shall specifically identify the material or information to
which the objecting party wishes to have the designation removed. Within fourteen (14)
days of receipt of such objection, KPMG shall (i) review the material to which the
objection applies; (ii) notify the objecting party in writing whether KPMG will agree to
remove the designation as requested; and (iii) if it will not agree to remove the
designation, KPMG will state with specificity its reasons for not agreeing. If an
agreement cannot be reached, KPMG may move for a ruling from the court, designating
the material as protected information or for other similar protection, within fourteen (14)
days of the expiration of the fourteen (14) day period referenced above. The material at
issue will be treated as protected information until the court decides the motion. If the
parties disagree about whether the information is protected information and KPMG does
not timely move the court, then the document is deemed to be not protected information.

8.

Should either party be commanded pursuant to a valid subpoena issuing from any federal
or state court, administrative agency or other governmental authority to disclose protected
information, such party will promptly notify KPMG and its counsel in advance of any
disclosure pursuant to such a subpoena in order to afford KPMG an opportunity to object
or move to quash the subpoena.

9.

Within ninety (90) days after the final conclusion of this litigation, including all appeals,
each party will provide written certification to KPMG that all originals and/or copies of
all protected information (including both paper and electronic versions) in the possession
of the party, its counsel or other agents, have been either returned to KPMG or destroyed.
Each party’s counsel may retain any attorney work product even though it contains
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protected information, but such retained work product shall remain subject to the terms of
this Protective Order. Respondent’s counsel may retain its work product, copies of court
filings and official transcripts and exhibits and other documents required to be retained
by written Department of Justice record-retention policy, provided that all such retained
documents designated as protected information continue to be treated as provided herein.
10.

This Protective Order shall be effective immediately, and shall remain in effect after
conclusion of this litigation. The court may enforce the terms of this agreement and may
disclose any protected information as part of a court order or memorandum.

11.

Counsel for the parties shall promptly report any willful breach of the provisions of this
Protective Order to counsel for KPMG. Upon discovery of any breach of this Protective
Order, counsel for the breaching party shall immediately take appropriate action to cure
the violation and retrieve any protected information that may have been disclosed to
persons not covered by this Protective Order. The parties and KPMG shall reasonably
cooperate in determining the existence of any such breach and whether there is reason to
report the breach to the court.
IT IS SO ORDERED.

s/ Francis M. Allegra
Francis M. Allegra
Judge

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Attachment A

In The United States Court of Federal Claims
No. 05-576T
__________
PRESTOP HOLDINGS, LLC,
JL INVESTMENT TRUST,
JOHN M. LARSON, GRANTOR/TRUSTEE,
TAX MATTERS PARTNER FILING AS
NOTICE PARTNER,
Petitioner,
v.
THE UNITED STATES,
Respondent.

CERTIFICATE OF COMPLIANCE WITH PROTECTIVE ORDER
The undersigned has been provided with a copy of the foregoing Protective Order entered
in the case captioned Prestop Holdings, LLC v. United States, No. 1:05-cv-0576T; has had an
opportunity to review the Protective Order; and is fully familiar with all of the terms of the
Protective Order. By executing this Acknowledgment, the undersigned agrees to be bound by
the terms of the Protective Order.

Date: _______________________

Name (Print): ____________________________

Signature: _______________________________

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