JORDAN POND COMPANY, LLC v. USA
Filing
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PROTECTIVE ORDER. Signed by Judge Lynn J. Bush. (TQ) Copy to parties.
In the United States Court of Federal Claims
No. 13-913 C
(Filed November 22, 2013)
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JORDAN POND COMPANY, LLC,
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Plaintiff,
v.
THE UNITED STATES,
Defendant,
DAWNLAND, LLC,
Intervenor-Defendant.
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PROTECTIVE ORDER
The court finds that certain information likely to be disclosed orally or in
writing during the course of this litigation may be competition-sensitive or
otherwise protectable and that entry of a Protective Order is necessary to safeguard
the confidentiality of that information. Accordingly, the parties shall comply with
the terms and conditions of this Protective Order.
I.
1.
Protected Information Defined. “Protected information” as used in this
order means information that must be protected to safeguard the competitive
process, including source selection information, proprietary information, and
confidential information 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)
2.
any deposition, sealed testimony or argument, declaration, or
affidavit taken or provided during this litigation.
Restrictions on the Use of Protected Information. Protected information
may be used solely for the purposes of this litigation and may not be given,
shown, made available, discussed, or otherwise conveyed in any form except
as provided herein or as otherwise required by federal statutory law.
II.
3.
Individuals Permitted Access to Protected Information. Except as provided
in paragraphs 7 and 8 below, the only individuals who may be given access
to protected information are counsel for a party and independent consultants
and experts assisting such counsel in connection with this litigation.
4.
Applying for Access to Protected Information. An individual seeking access
to protected information pursuant to Appendix C, Section VI of this court’s
rules must read this Protective Order; must complete the appropriate
application form (Form 9—“Application for Access to Information Under
Protective Order by Outside or Inside Counsel,” or Form 10—“Application
for Access to Information Under Protective Order by Expert Consultant or
Witness”); and must 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 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, Department of Justice, and
Agency Personnel. Personnel of the court, the procuring agency, and the
Department of Justice are automatically subject to the terms of this
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Protective Order and are entitled to access to protected information without
further action.
8.
Access to Protected Information by Support Personnel. Paralegal, clerical,
and administrative support personnel assisting any counsel who has been
admitted under this Protective Order may be given access to protected
information by such counsel if those personnel have first been informed by
counsel of the obligations imposed by this Protective Order.
III.
9.
Identifying Protected Information. Protected information may 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.
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” and the portions of any
document containing protected information must be clearly identified.
10.
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”
documents menu. If filed in paper form, a document containing protected
information must be sealed in the manner prescribed in paragraph 9(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.
11.
Protecting Documents Not Previously Sealed. If a party determines that a
previously produced or filed document contains protected information, the
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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.
IV.
12.
Redacting Protected Documents For the Public Record.
(a) Initial Redactions. After filing a document containing protected
information in accordance with paragraph 10, or after later
sealing a document pursuant to paragraph 11, a party must
promptly 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.
(b) Additional Redactions. 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) 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 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) Objecting to Redactions. 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.
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V.
13.
Copying Protected Information. No party, other than the United States, may
for its own use make more than three (3) copies of a protected document
received from another party, except with the consent of all other parties. A
party may make additional copies of such documents, however, for filing
with the court, service on the parties, or use in discovery and may also
incorporate limited amounts of protected information into its own documents
or pleadings. All copies of such documents must be clearly labeled in the
manner required by paragraph 9.
14.
Waiving Protection of Information. A party may at any time waive the
protection of this order with respect to any information it has designated as
protected by advising the court and the other parties in writing and
identifying with specificity the information to which this Protective Order
will no longer apply.
15.
Safeguarding Protected Information. Any individual admitted under this
Protective Order must 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.
16.
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 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 reasonably cooperate in determining the reasons for any such
breach.
17.
Seeking Relief From the Protective Order. Nothing contained in this order
shall preclude a party from seeking relief from this Protective Order through
the filing of an appropriate motion with the court setting forth the basis for
the relief sought.
VI.
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18.
Maintaining Filed Documents Under Seal. The court will maintain properly
marked protected documents under seal throughout this litigation.
19.
Retaining Protected Information After the Termination of Litigation. Upon
conclusion of this action (including any appeals and remands), the original
version of the administrative record and any other materials that have been
filed with the court under seal will be retained by the court pursuant to
RCFC 77.3(c). Copies of such materials may be returned by the court to the
filing parties for disposition in accordance with paragraph 20 of this
Protective Order.
20.
Disposing of Protected Information. Within thirty (30) days after the
conclusion of this action (including any appeals and remands), each party
must destroy all protected information received pursuant to this litigation
and certify in writing to each other party that such destruction has occurred
or must return the protected information to the parties 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 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/Lynn J. Bush
LYNN J. BUSH
Senior Judge
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