SOUTH WESTERN OKLAHOMA DEVELOPMENT AUTHORITY v. USA

Filing 13

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

In The United States Court of Federal Claims
No. 12-127C
(Filed: October 22, 2012)
__________
SOUTH WESTERN OKLAHOMA
DEVELOPMENT AUTHORITY,
Plaintiff,
v.
THE UNITED STATES,
Defendant.
__________
PROTECTIVE ORDER
__________
This case is before the court pursuant to defendant’s motion for Protective Order pursuant
to Rule 26(c) of the Rules of this Court and the Privacy Act of 1974, 5 U.S.C. § 552a.
IT IS ORDERED that:
1.

Subject to the provisions of this Protective Order, defendant is authorized to
release Government records, or information derived from such records, to plaintiff
and its representatives, the release of which would be otherwise prohibited by the
Privacy Act, but is not objectionable upon grounds other than the Privacy Act.

2.

“Protected Information,” as used herein, means any information that is both:
(a)

(b)

3.

required to be kept confidential pursuant to the Privacy Act of
1974, 5 U.S.C. § 552a, i.e., any item, collection, or grouping of
information about an individual that is maintained by an agency
and is contained in a system of records; and
designated protected by defendant, pursuant to paragraphs 5 or 8 of
this order, based upon the reasonable belief that the public release
of such information by plaintiff would be contrary to the public
interest.

Defendant shall not designate information protected that has already been
in the possession of plaintiff or was derived from information that was
already in the possession of plaintiff.

4.

An “Authorized Person” under this protective order includes only:
(a)

personnel of the Court, the Department of Justice, the Department
of Defense, and any Executive Branch personnel involved with or
affected by this litigation;

(b)

personnel of the plaintiff, including plaintiff’s counsel and
administrative personnel supporting plaintiff’s counsel in this
litigation;

(c)

experts and consultants retained by a party or a party’s counsel for
this litigation, whether or not designated as testifying experts; and

(d)

any person agreed to by the parties in writing or allowed by the
Court.

5.

Authorized Persons shall use protected information solely for purposes of
this litigation, may provide protected information only to other Authorized
persons, and shall not give, show, make available, discuss, or otherwise
communicate protected information in any form except as provided herein.
This order shall not prevent a party from using or disclosing information
that it is in its possession independent of this litigation, even if the
information has been designated protected pursuant to this order.

6.

Before being provided access to protected information under this Order,
any Authorized Persons shall personally review this Order and shall
execute and date an acknowledgment as follows:
I acknowledge that I have read the Protective Order which was
approved and entered by the United States Court of Federal
Claims in South Western Oklahoma Development Authority v.
United States, No. 12-127C, on October 22, 2012. I
understand the Order and agree to comply with its
requirements for all record access or disclosure that is
provided to me pursuant to the Order.
Promptly upon termination of involvement in this action, such persons
shall return to the respective attorney of record or destroy any records
produced pursuant to this Order and in such persons’ possession or any
documents that contain confidential information derived therefrom and
shall certify in writing to the respective attorney of record such return or
destruction. The attorneys of record shall retain all such
acknowledgments and certifications and shall provide copies thereof to
opposing counsel upon request.

7.

Protected information must be identified as follows:
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(a)

if provided in electronic form, the subject line of the electronic
transmission shall read “CONTAINS PROTECTED
INFORMATION”; or

(b)

if provided in paper form, the document must be sealed in a parcel
containing the legend “PROTECTED INFORMATION
ENCLOSED” conspicuously marked on the outside.

The first page of each document containing protected information,
including courtesy copies for use by the judge, must contain a banner
stating “Protected Information to Be Disclosed Only in Accordance With
the U.S. Court of Federal Claims Protective Order.”
8.

Pursuant to this order, a document containing protected information may
be filed electronically under the court’s electronic case filing system using
the appropriate activity listed in the “SEALED” documents menu. If filed
in paper form, a document containing protected information must be
sealed in the manner prescribed in paragraph 5(b) and must include as an
attachment to the front of the parcel a copy of the certificate of service
identifying the document being filed.

9.

If a party determines that a previously produced or filed document
contains protected information, the party may give notice in writing to the
court and the other parties that the document is to be treated as protected,
and thereafter the designated document must be treated in accordance with
this Protective Order.

10.

Information disclosed in a deposition or at trial may be designated as
protected information by indicating on the record the portion of the
testimony that contains protected information, or by serving a written
notification upon the party that elicited or proffered the information within
30 days of the receipt of the transcript by counsel for the designating
party. A copy of the written notification, identifying the specific pages
and lines of the transcript subject to this protective order, shall be attached
to the transcript and every copy of the transcript possessed by any party or
its agents, and the transcript shall be protected information.

11.

Redacting Protected Documents For the Public Record.
(a)

After filing a document containing protected information in
accordance with paragraph 5, or after later sealing a document
pursuant to paragraph 7, a party may serve on the other parties a
proposed redacted version marked “Proposed Redacted Version”
in the upper right-hand corner of the first page with the claimed
protected information deleted.

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(b)

If a party seeks to include additional redactions, it must advise the
filing party of its proposed redactions within two (2) business days
after receipt of the proposed redacted version, or such other time as
agreed upon by the parties. The filing party must then provide the
other parties with a second redacted version of the document
clearly marked “Agreed-Upon Redacted Version” in the upper
right-hand corner of the page with the additional information
deleted.

(c)

At the expiration of the time period noted in (b) above, or after an
agreement between the parties has been reached regarding
additional redactions, the filing party may file with the court the
final redacted version of the document clearly marked “Redacted
Version” in the upper right-hand corner of the first page. This
document will be available to the public.

(d)

Any party at any time may object to another party’s designation of
certain information as protected. If the parties are unable to reach
an agreement regarding redactions, the objecting party may submit
the matter to the court for resolution. Until the court resolves the
matter, the disputed information must be treated as protected.

12.

If defendant makes available documents for inspection, then prior to
copying, all documents and things made available shall be treated as
protected information for purposes of the inspection only. If plaintiff then
selects any documents for copying, or things for further inspection,
defendant shall, before the copying or further inspection, label any
documents or things it wishes to designate as protected information.

13.

Each person covered by this Protective Order shall take all necessary
precautions to prevent disclosure of protected information, including but
not limited to physically securing, safeguarding and restricting access to
the protected information. Whenever any such person is provided access
to or disclosure of confidential records by electronic means, such means
shall be reasonably secure using available technology (including firewall
and server security measures as appropriate). The confidentiality of
information learned pursuant to this Protective Order shall be maintained
in perpetuity.

14.

Defendant may at any time waive the protection of this Protective Order
with respect to any and all information by so advising the Court and
counsel for all parties in writing, identifying with specificity the
information to which this Protective Order shall no longer apply.

15.

Nothing contained in this Protective Order shall preclude a party from
seeking relief from this Protective Order through the filing of an

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appropriate motion with the Court that sets forth the basis for the relief
sought.
16.

Counsel for the parties shall promptly report any breach of the provisions
of this Protective Order to counsel for the opposing party. Upon discovery
of any breach, counsel 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
shall reasonably cooperate in determining the reasons for any such breach.

17.

The parties shall negotiate promptly and in good faith to try to resolve all
disputes or objections arising under or concerning any provision of this
Order. If the parties cannot mutually resolve a dispute or objection,
including without limitation through the use of redactions, either party
may seek a further order of the Court seeking appropriate relief.

18.

Within 270 days after final disposition of this action, including any
appeals, plaintiff shall identify records produced by defendant pursuant to
this Order that it wishes to retain and shall return or destroy all other
records produced by defendant pursuant to this Order. Within 120 days
after plaintiff identifies the records that it wishes to retain, defendant shall
review those records and propose redactions. Within 90 days after
receiving defendant’s proposed redactions, plaintiff shall provide any
proposed revisions or objections thereto, stating the bases therefor.
Plaintiff may retain records identified as above either for which defendant
has not proposed redactions or which have been redacted by agreement of
the parties or by order of the Court. Each party shall timely certify to the
other party regarding completion of the above actions. Records retained
by plaintiff pursuant to this paragraph shall no longer be subject to this
Order.

IT IS SO ORDERED.

s/ Francis M. Allegra
Francis M. Allegra
Judge

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