UNITED LAUNCH SERVICES, LLC et al v. USA

Filing 35

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

In The United States Court of Federal Claims
No. 12-380C
(Filed: May 30, 2013)
__________
UNITED LAUNCH SERVICES, LLC,
and THE BOEING COMPANY,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
__________
PROTECTIVE ORDER
__________
The court finds that certain information likely to be disclosed orally or in writing during
the course of this litigation may be sensitive or otherwise confidential and protectable and that
entry of a Protective Order is necessary to safeguard the confidentiality of that information.
Accordingly, the court hereby ORDERS that parties shall comply with the terms of this
Protective Order.
Any party producing information, documents, or other material in this case (the
designating party) may designate as Protected Information any information, document, or
material that meets the definition of Protected Information set forth in this Protective Order. The
producing party shall act in good faith when designating discovery material as protected pursuant
to this Protective Order and act to minimize the number of documents designated as protected.
1.

Protected Information Defined. “Protected Information” as used in this order
means proprietary, business, financial, technical, trade secret, or commercially
sensitive information, as well as confidential information that is otherwise
protected from disclosure under applicable law. Protected Information as used in
this order shall not include information that is attorney-client privileged, protected
from disclosure by the work product doctrine, or otherwise immune from
discovery; the parties’ rights with respect to such documents, including rights
with respect to inadvertent production of those documents, shall be governed by
Federal Rule of Evidence 502 and the terms of any separately entered Federal
Rule of Evidence 502(d) Order. Protected Information may be contained in:
(a)

any document (e.g., a pleading, motion, brief, notice, or discovery request
or response) produced, filed, or served by a party to this litigation; or

(b)

any deposition, sealed testimony or argument, declaration, or affidavit
taken or provided during this litigation.

2.

Restrictions on the Use of Protected Information. Protected Information shall be
used solely for the purposes of this litigation, including any appellate proceedings.
Protected Information produced by an opposing party may not be given, shown,
made available, discussed, or otherwise conveyed in any form, except as provided
in this Protective Order, discovery orders prescribed by the court for this
litigation, or as otherwise required by federal statutory law.

3.

Individuals Permitted Access to Protected Information. Except as provided in
paragraphs 7 and 8, the only individuals who may be given access to Protected
Information produced by an opposing party are current personnel of the parties
(defined as persons who are employees of a party at the time access to Protected
Information is provided), counsel for a party (including outside and in-house
counsel), independent consultants, experts, and staff assisting such persons in
connection with this litigation, as well as any witnesses or deponents if the
Protected Information is, in good faith, determined to be necessary to prepare or
take the witness or deponent’s testimony.

4.

Applying for Access to Protected Information. An individual seeking access to
Protected Information, other than current personnel of the parties, outside and inhouse counsel, or as provided in paragraphs 7 and 8, must read this Protective
Order; complete the application form (attached hereto as Attachment A) or
applicable sections of the application form (such as in the case of individuals
other than expert consultants or witnesses); and file the executed application with
the court.

5.

Objecting to an Application for Admission. Any objection to an application for
access must be filed with the court on the court’s electronic case filing system
within two (2) business days of the objecting party’s receipt of the application.

6.

Receiving Access to Protected Information. If no objections have been filed by
the close of the second business day after the other parties have received the
application, the applicant will be granted access to Protected Information without
further action by the court. If any party files an objection to an application, access
will only be granted by court order.

7.

Access to Protected Information by Court Personnel. Personnel of the court,
videographers, and court reporters working on the case are automatically subject
to the terms of this Protective Order and are entitled to access Protected
Information without further action.

8.

Access to Protected Information by Support Personnel. Paralegal, clerical, and
administrative support personnel, and vendors assisting any counsel admitted
under this Protective Order may be given access to protected information by such

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counsel if those personnel have first been informed by counsel of the obligations
imposed by this Protective Order.
9.

Identifying Protected Information for Use in the Case. Protected Information
shall be provided only to the court and to individuals admitted under this
Protective Order and must be identified as follows:
(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; or

(c)

if provided on electronic media (i.e., a CD, DVD, etc.), the electronic
media shall be marked with a legend stating “CONTAINS PROTECTED
INFORMATION.”

The first page of each document, deposition transcript, or exhibit containing
Protected Information, including courtesy copies for use by the court, must
contain a banner stating “Protected Information to Be Disclosed Only in
Accordance With the Protective Order.”
10.

Materials for Inspection. In the event that a party makes documents or materials
available for inspection, rather than delivering copies to another party, no marking
need be made in advance of the initial inspection. For purpose of initial
inspection, all documents made available for inspection shall be considered
Protected Information. Upon production of the inspected documents, or portions
thereof, the party shall designate, in writing, within five (5) business days of
production, which of the produced or copied documents and materials contain
Protected Information.

11.

Filing Protected Information. 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 menu. If filed
in paper form, with the court’s permission, a document containing Protected
Information must be sealed and must include as an attachment to the front of the
parcel a copy of the certificate of service identifying the document being filed.

12.

Redacting Protected Documents For the Public Record.
(a)

Initial Redactions. After filing a document containing Protected
Information, or after later sealing a document which contains Protected
Information, a party must promptly serve on the other parties a proposed
redacted version marked Proposed Redacted Version in the upper righthand corner of the first page with the claimed Protected Information
deleted.
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(b)

Additional Redactions. If a party seeks to include additional redactions, it
must advise the filing party of its proposed redactions within seven (7)
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)

Final Version. At the expiration of the period noted in (b) above, or after
an agreement between the parties has been reached regarding additional
redactions, the filing party must file with the court on the court’s
electronic case filing system 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 on the court’s
electronic case filing system.

(d)

Objecting to Redactions. Any party at any time may object to another
party’s designation of certain information as protected. The parties shall
first work together to informally resolve any disagreements about whether
information is properly redacted. If the parties are unable to reach
agreement, 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 Information.

13.

Safeguarding Protected Information. Any individual admitted under this
Protective Order must take all necessary precautions to prevent unauthorized
disclosure of Protected Information, including, but not limited to, physically
securing, safeguarding, and restricting access to the Protected Information.

14.

Inadvertent Disclosure. The inadvertent or unintentional disclosure of Protected
Information shall not be deemed to be a waiver of a party’s claim of protection.
Any dispute regarding a party’s waiver shall be governed by this Protective
Order. Unless a motion challenging the protected status of the document(s) is
filed with the court for resolution, within seven (7) business days of receiving
written notification of an inadvertent or unintentional disclosure from the
producing party, the receiving party shall destroy all prior copies of the material
or information and shall thereafter treat such material or information as Protected
Information under this Protective Order.

15.

Duty to Inform. A party receiving information that it believes contains, reflects,
reveals, or otherwise discloses Protected Information that has not been identified
as such pursuant to paragraph 9 shall promptly notify the producing party of the
information it believes should be designated as Protected Information.

16.

Waiving Protection of Information. A party may at any time waive the protection
of this Protective Order with respect to any information it has designated as
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protected by advising the court and the other parties in writing and identifying
with specificity the Protected Information to which this Protective Order will no
longer apply. Any such voluntary waiver of protection shall be limited to the
specific Protected Information identified in the written notification to the court
and other parties.
17.

Inadvertent Disclosure Of Classified Material. In the event that the receiving
party receives material either marked as “Classified,” or that the receiving party
believes is Classified, but not marked as such, the receiving party shall
immediately notify the producing party, secure the document(s) (and not forward
or transmit the document(s) via any means), and abide by all appropriate
Department of Defense and Air Force directives and instructions on handling
classified information.

18.

Breach of the Protective Order. If a party discovers any breach of any provision
of this Protective Order, the party must promptly report the breach to the other
parties and to the court, and immediately take appropriate action to cure the
violation and retrieve any Protected Information that may have been disclosed to
individuals not admitted under this Protective Order. The parties must cooperate
to determine the reasons for any such breach.

19.

Maintaining Filed Documents Under Seal. The court will maintain properly
marked protected documents under seal throughout this litigation.

20.

Retention of Protected Information By the Court After the Termination of
Litigation. Upon conclusion of this action (including any appeals and remands),
any materials that have been filed with the court under seal will be retained by the
court pursuant to Rule 77.3(c) of the Rules of the United States Court of Federal
Claims. In addition, within 30 days of the conclusion of this action (including any
appeals and remands), the parties shall review previously designated Protected
Information, and shall propose to the court, in a joint motion, what information
requires continued protection, for what period of time, and the rationale for
continuing protection.

21.

Disposing of Protected Information. Within thirty (30) days of the conclusion of
this action (including any appeals and remands), all parties must destroy all
Protected Information and certify, in writing, to each other party involved that
such destruction has occurred or must return the Protected Information to the
party from which the information was received. With respect to protected
electronically stored information (ESI) stored on counsel’s computer network(s),
destruction of such ESI for purposes of compliance with this paragraph shall be
complete when counsel takes reasonable steps to delete all such ESI from the
active email system (such as, but not limited to, the “Inbox,” “Sent Items,” and
“Deleted Items” folders) of admitted counsel and of any personnel who received
or sent emails with protected information while working under the direction and
supervision of such counsel, and by deleting any protected ESI from databases
under counsel’s control. Compliance with this paragraph does not require counsel
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to search for and remove ESI from any computer network back-up tapes, disaster
recovery systems, or archival systems. Each party may retain one copy of such
documents, except when the retention of additional copies is required by federal
law or regulation, provided those documents are properly marked and secured.
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. 12-380C
UNITED LAUNCH SERVICES, LLC,
and THE BOEING COMPANY,
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 protected information
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.

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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 statement of the services I am expected to perform in connection with this
proceeding;

d.

a description of the financial interests that I, my spouse, and/or my family has in any
entity thatis an interested party in this proceeding or whose protected information
will be reviewed; if none, I have so stated;

e.

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

f.

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.

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

Date Executed

Typed Name and Title
Telephone & Facsimile Numbers
E-mail Address
Signature of Attorney of Record

Date Executed

Typed Name and Title

Telephone & Facsimile Numbers

E-mail Address

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