ARRIVALSTAR S.A. et al v. USA

Filing 21

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

In The United States Court of Federal Claims
No. 11-784C
(Filed: July 17, 2012)
__________
ARRIVALSTAR S.A. and
MELVINO TECHNOLOGIES LIMITED,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
__________
PROTECTIVE ORDER
__________
Pursuant to Rules 1, 16, and 26(c) of the Rules of the United States Court of Federal
Claims, the court hereby enters this order to protect Protected or Highly Protected Information as
defined below. The parties have stipulated to the entry of this order.
This Protective Order does not specify the procedures under which access to classified
information is to be provided and shall not be construed as requiring the production of any
information that is classified for reasons of national security. Access to such information shall
be governed solely by existing laws and regulations pertaining to national security.
Definitions
For purposes of this Protective Order:
1.

“Party” shall mean ArrivalStar, Melvino, the government, and any other entity
that appears in this lawsuit as an intervenor or third party.

2.

“Entity” means an individual or an entity. For the purposes of this
Protective Order, “Entity” includes the government.

3.

“Producer” means an entity who produces information via the discovery
process in this case.

4.

“Recipient” means an entity who receives information via the discovery
process in this case.

5.

“Protected information” is information concerning an entity’s business
operations, processes, and technical and development information within
the scope of Rule 26(c)(1)(G) of the Rules of the Court of Federal Claims,
the disclosure of which is likely to harm that entity’s competitive position,
or the disclosure of which would contravene an obligation of
confidentiality to a third person or to a court.

6.

“Highly Protected information” is information within the scope of Rule
26(c)(1)(G) that is current or future business or technical trade secrets and
plans more sensitive or strategic than Protected information, the disclosure
of which is likely to significantly harm that entity’s competitive position,
or the disclosure of which would contravene an obligation of
confidentiality to a third person or to a court.

7.

Information is not Protected or Highly Protected if it is disclosed in a
printed publication, is known to the public, was known to the recipient
without obligation of confidentiality before the producer disclosed it, or is
or becomes known to the recipient by means not constituting a breach of
this Protective Order. Information is likewise not Protected if an entity
lawfully obtained it independently of this litigation.
Designation of Information as Protected

8.

An entity’s designation of information as Protected or Highly Protected
means that the entity believes in good faith, upon reasonable inquiry, that
the information qualifies as such.

9.

An entity designates information in a document or thing as Protected or
Highly Protected by clearly and prominently marking it on its face as
“PROTECTED INFORMATION, SUBJECT TO PROTECTIVE
ORDER,” “HIGHLY PROTECTED INFORMATION,”
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL” or a marking of
like import. A producer may make documents or things containing
Protected or Highly Protected information available for inspection and
copying without marking them without forfeiting a claim of
confidentiality, so long as the producer causes of the documents or things
to be marked as Protected or Highly Protected before providing them to
the recipient.

10.

An entity designates information in deposition testimony as Protected or
Highly Protected by stating on the record at the deposition that the
information is Protected or Highly Protected or by advising the opposing
party and the stenographer and videographer in writing, within fourteen
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days after receipt of the deposition transcript, that the information is
Protected or Highly Protected.
11.

An entity’s failure to designate a document, thing, or testimony as
Protected or Highly Protected does not constitute forfeiture of a claim of
confidentiality as to any other document, thing, or testimony.

12.

An entity who has designated information as Protected or Highly
Protected may withdraw the designation by written notification to all
parties in the case.

13.

If a party disputes a producer’s designation of information as Protected or
Highly Protected, the party shall notify the producer in writing of the basis
for the dispute, identifying the specific document[s] or thing[s] as to which
the designation is disputed and proposing a new designation for such
materials. The party and the producer shall then meet and confer to
attempt to resolve the dispute without involvement of the Court. The they
cannot resolve the dispute, the proposed new designation shall be applied
fourteen (14) days after notice of the dispute unless within that fourteen
day period the producer files a motion with the court to maintain the
producer’s designation. The producer bears the burden of proving that the
information is properly designated as Protected or Highly Protected. The
information shall remain subject to the producer’s Protected designation
until the court rules on the dispute. A party’s failure to contest a
designation of information as Protected or Highly Protected is not an
admission that the information was properly designated as such.
Use and Disclosure of Protected or Highly Protected Information

14.

Protected or Highly Protected information may be used exclusively for
purposes of this litigation (including any appeal(s)), subject to the
restrictions of this Protective Order.

15.

Absent written permission from the producer or further order by the Court,
the recipient may not disclose Protected information to any entity other
than the following:
(i)

A party’s outside counsel of record (including attorneys of the
United States Department of Justice), including necessary
paralegal, secretarial and clerical personnel assisting such counsel;

(ii)

A party’s in-house counsel;

(iii)

A party’s officers and employees directly involved in this case
whose access to the information is reasonably required to
supervise, manage, or participate in this case;
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(iv)

A stenographer and videographer recording testimony concerning
the information;

(v)

Subject to the provisions of paragraph 17 of this order, experts and
consultants and their staff whom a party employs for purposes of
this litigation only; and

(vi)

The court and personnel assisting the court.

16.

Absent written permission from the producer or further order by the court,
the recipient may not disclose Highly Protected information to any person
other than those identified in Paragraph 15 (i), (iv), (v), and (vi).

17.

A party may not disclose Protected or Highly Protected information to an
expert or consultant pursuant to Paragraph 15 of this order until after the
expert or consultant has signed an undertaking in the form of Form A to
this order. The party obtaining the undertaking must serve it on all other
parties within ten days after its execution. At least ten days before the first
disclosure of Protected or Highly Protected information to an expert or
consultant (or member of their staff), the party proposing to make the
disclosure must serve the producer with a written identification of the
expert or consultant and a copy of his or her curriculum vitae. If the
producer has good cause to object to the disclosures (which does not
include challenging the qualifications of the expert or consultant), it must
serve the party proposing to make the disclosure with a written objection
within ten days after service of the identification. Unless the parties
resolve the dispute within ten days after service of the objection, the
producer must move the court promptly for a ruling, and the Protected or
Highly Protected information may not be disclosed to the expert or
consultant without the court’s approval.

18.

Notwithstanding Paragraph 15, a party may disclose Protected or Highly
Protected information to any entity indicated by the document containing
Protected or Highly Protected information to be its originator, its author,
or a recipient of a copy.

19.

A party who wishes to disclose Protected or Highly Protected information
to an entity not authorized under Paragraph 15 must first make a
reasonable attempt to obtain the producer’s permission. If the party is
unable to obtain permission, it may move the Court to obtain permission.
Inadvertent Disclosure

20.

The inadvertent or unintentional disclosure of Protected or Highly
Protected information during the course of this litigation, without
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designating it as Protected or Highly Protected information at the time of
disclosure, shall not be deemed a waiver in whole or in part of a claim that
the disclosed information is Protected or Highly Protected, either as to the
specific information disclosed or as to any other information relating
thereto. In order to maintain its Protected or Highly Protected status, any
such Protected or Highly Protected information must, however, be so
designated within ten (10) business days after learning of the inadvertent
or unintentional disclosure.
21.

Upon becoming aware of any loss, theft, and/or unauthorized copying or
disclosure of Protected or Highly Protected information, counsel for the
recipient shall promptly notify the producer and shall immediately take all
reasonably appropriate and available actions to retrieve any Protected or
Highly Protected information and prevent any further unauthorized access
or dissemination.
Filing with the Court

22.

In the event that Protected or Highly Protected information is included in
any electronically-filed document, the party seeking to file such Protected
or Highly Protected information shall seek leave to file it electronically
under seal. all other documents filed with the Court containing Protected
or Highly Protected information shall be filed in sealed envelopes or other
appropriately sealed containers on which shall be endorsed the caption of
this litigation, the words “CONTAINS PROTECTED [or HIGHLY
PROTECTED] INFORMATION” and “SUBJECT TO
PROTECTIVE ORDER” as an indication of the nature of the contents.

23.

If a party wishes to file in the public record a document that another
producer has designated as Protected or Highly Protected, the party must
advise the producer of the document no later than five business days
before the document is due to be filed, so that the producer may move the
Court to require the document to be filed under seal.
Document Disposal

24.

Upon the conclusion of this case, each party must return to the producer
all documents and copies of documents containing the producer’s
Protected or Highly Protected information, and must destroy all notes,
memoranda, or other materials derived from or in any way revealing
Protected or Highly Protected information. Alternatively, the party may
destroy all documents and copies of documents containing the producer’s
Protected or Highly Protected information. The party returning and/or
destroying the producer’s Protected or Highly Protected information must
promptly certify in writing its compliant with the requirements of this

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paragraph. Notwithstanding the requirements of this paragraph, and
remaining subject to all requirements of this Order:
a.

Counsel for each party may retain one complete set of all
documents filed with the Court; and

b.

the United States Department of Justice may retain one set of any
documents solely for archival purposes.
Survival of Obligations

25.

This Order’s obligations regarding Protected or Highly Protected
information survive the conclusion of this case.

IT IS SO ORDERED.

s/ Francis M. Allegra
Francis M. Allegra
Judge

6

(Attachment A)

In The United States Court of Federal Claims
No. 11-784C
__________
ARRIVALSTAR S.A. and
MELVINO TECHNOLOGIES LIMITED,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

APPLICATION FOR ACCESS TO INFORMATION UNDER
PROTECTIVE ORDER BY OUTSIDE OR INSIDE COUNSEL
1.
I, ________________________, hereby apply for access to Protected Information
covered by the Protective Order issued in connection with this proceeding.
2.
a. I [outside counsel only] am an attorney with the law firm of _____________________
and have been retained to represent _____________________, a party to this proceeding.
b. I [inside counsel only] am in-house counsel (my title is: ____________________) for
_______________________, a party to this proceeding.
3.
I am [ ] am not [ ] a member of the bar of the United States Court of Federal Claims (the
“Court”).
4.
My professional relationship with the party I represent in this proceeding and its
personnel is strictly one of legal counsel. I am not involved in competitive decision-making as
discussed in U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of
the party I represent, any entity that is an interested party to this proceeding, or any other firm
that might gain a competitive advantage from access to the information disclosed under the
Protective Order. I do not provide advice or participate in any decisions of such parties in
matters involving similar or corresponding information about a competitor. This means that I do
not, for example, provide advice concerning, or participate in decisions about, marketing or
advertising strategies, product research and development, product design or competitive
structuring and composition of bids, offers, or proposals with respect to which the use of
Protected Information could provide a competitive advantage.

5.
I [outside counsel only] identify here (by writing "none" or listing names and relevant
circumstances) those attorneys in my firm who, to the best of my knowledge, cannot make the
representations set forth in the preceding paragraph:
___________________________________
___________________________________
___________________________________
6.
I identify here (by writing "none" or listing names, position, and responsibilities) any
member of my immediate family who is an officer or holds a management position with an
interested party in the proceeding or with any other firm that might gain a competitive advantage
from access to the information disclosed under the Protective Order:
___________________________________
___________________________________
___________________________________
7.
I identify here (by writing "none" or identifying the name of the forum, case number,
date, and circumstances) instances in which I have been denied admission to a protective order,
had admission revoked or been found to have violated a protective order issued by any
administrative or judicial tribunal:
___________________________________
___________________________________
___________________________________
8.
I [inside counsel only] have attached a detailed narrative providing the following
information:
a. my position and responsibilities as in-house counsel, including my role in providing
advice in procurement-related matters;
b. the person(s) to whom I report and their position(s) and responsibilities;
c. the number of in-house counsel at the office in which I work and their involvement, if
any, in competitive decision making and in providing advice in procurement-related
matters;
d. my relationship to the nearest person involved in competitive decision making (both
in terms of physical proximity and corporate structure); and
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e. measures taken to isolate me from competitive decision making and to protect against
the inadvertent disclosure of Protected Information to persons not admitted under the
Protective Order.
9.
I have read the Protective Order issued by the court in this proceeding. I will comply in
all respects with that order and will abide by its terms and conditions in handling any Protected
Information produced in connection with the proceeding.
10.
I acknowledge that a violation of the terms of the protective order may result in the
imposition of such sanctions as may be deemed appropriate by the Court and in possible civil
and criminal liability
***
By my signature, I certify that, to the best of my knowledge, the representations set forth above
(including attached statements) are true and correct.

______________________________
Signature

__________________________
Date Executed

______________________________
Typed Name and Title
______________________________
Telephone Number
______________________________
Fax Number
______________________________
Signature of Attorney of Record

__________________________
Date Executed

______________________________
Typed Name and Title
______________________________
Telephone Number
______________________________
Fax Number

3

(Attachment B)

In The United States Court of Federal Claims
No. 11-784C
__________
ARRIVALSTAR S.A. and
MELVINO TECHNOLOGIES LIMITED,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

APPLICATION FOR ACCESS TO INFORMATION UNDER
PROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS
1.
I, the undersigned, am a________________________with ________________________
and hereby apply for access to Protected Information covered by the Protective Order issued in
connection with this proceeding.
2.
I have been retained by ____________________________ and will, under the direction
and control of ________________________________, assist in the representation of
_____________________________ in this proceeding.
3.
I hereby certify that I am not involved in competitive decision making as discussed in
U.S. Steel Corp. v. United States, 730 F.2d 1465 (Fed. Cir. 1984), for or on behalf of any party to
this proceeding or any other firm that might gain a competitive advantage from access to the
information disclosed under the protective order. Neither I nor my employer provides advice or
participates in any decisions of such parties in matters involving similar or corresponding
information about a competitor. This means, for example, that neither I nor my employer
provides advice concerning, or participates in decisions about, marketing or advertising
strategies, product research and development, product design or competitive structuring and
composition of bids, offers, or proposals with respect to which the use of protective materials
could provide a competitive advantage.
4.
My professional relationship with the party for whom I am retained in this proceeding
and its personnel is strictly as a consultant on issues relevant to the proceeding. Neither I, nor
any member of my immediate family holds office or a management position in any company that
is a party in this proceeding or in any competitor or potential competitor of a party.
5.

I have attached the following information:

a. a current resume describing my education and employment experience to date;
b. a list of all clients for whom I have performed work within the two years prior to the
date of this application and a brief description of the work performed;
c. a list of all clients for whom I have performed work within the two years prior to the
date of this application and for whom the use of protected material could provide a
competitive advantage and a brief description of the work performed;
d. a statement of the services I am expected to perform in connection with this
proceeding;
e. a description of the financial interests that I, my spouse, and/or my family, has in any
entity that is an interested party in this proceeding or whose Protected Information
will be reviewed; if none, I have so stated;
f. a list identifying by name of forum, case number, date, and circumstances all
instances in which I have been granted admission or been denied admission to a
protective order, had a protective order admission revoked, or have been found to
have violated a protective order issued by an administrative or judicial tribunal; if
none, I have so stated; and
g. a list of the professional associations to which I belong, including my identification
numbers.
6.
I have read a copy of the Protective Order issued by the Court in this proceeding. I will
comply in all respects with all terms and conditions of that order in handling any Protected
Information produced in connection with the proceeding. I will not disclose any Protected
Information to any individual who has not been admitted under the Protective Order by the court.
7.
For a period of two years after the date this application is granted, I will not engage or
assist in the preparation of a proposal to be submitted to any agency of the United States
government for _________________________ when I know or have reason to know that any
party to this proceeding, or any successor entity, will be a competitor, subcontractor or teaming
member.
8.
For a period of two years after the date this application is granted, I will not engage or
assist in the preparation of a proposal or submission to __________________________ nor will
I have any personal involvement in any such activity.
9.
I acknowledge that a violation of the terms of the protective order may result in the
imposition of such sanctions as may be deemed appropriate by the Court and in possible civil
and criminal liability.

***

-2-

By my signature, I certify that, to the best of my knowledge, the representations set forth above
(including attached statements) are true and correct.

__________________________
Signature

_______________________
Date Executed

__________________________
Typed Name and Title
__________________________
Telephone Number
__________________________
Fax Number

__________________________
Signature of Attorney of Record

_______________________
Date Executed

______________________
Typed Name and Title
______________________
Telephone Number
______________________
Fax Number

-3-