ARRIVALSTAR S.A. et al v. USA

Filing 24

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

In The United States Court of Federal Claims
No. 11-784C
(Filed: August 16, 2012)
__________
ARRIVALSTAR S.A. and
MELVINO TECHNOLOGIES LIMITED,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
__________
REVISED 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. This order replaces the Protective Order of July 17, 2012, issued in this case.
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. If 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 Attachment
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 compliance 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

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(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.

ACKNOWLEDGMENT OF PROTECTIVE ORDER
REGARDING PROTECTED [OR HIGHLY PROTECTED] INFORMATION
I, ______________________________, state the following under penalties of perjury as
provided by law:
I have been retained by ____________________________ as an expert or consultant in
connection with this case. I will be receiving Protected or Highly Protected information that is
covered by the Court’s Protective Order dated ______________________, 2012. I have read the
Court’s Protective Order and understand that the Protected or Highly Protected information is
provided pursuant to the terms and conditions in that Order.
I agree to be bound by the Court’s Protective Order. I agree to use the Protected or
Highly Protected information solely for purposes of this case. I understand that neither the
Protected or Highly Protected information nor any notes concerning that information may be
disclosed to anyone that is not bound by the Court’s Protective Order. I agree to return the

Protected or Highly Protected information and any notes concerning that information to the
attorney for _________________________________ or to destroy the information and any notes
at that attorney’s request.
I submit to the jurisdiction of the United States Court of Federal Claims for the purpose
of enforcement of this Protective Order.

____________________________
(Date)

______________________________
(Signature)

______________________________
(Printed Name)

__________________________________________________________________
(Address)

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