USA v. Schlumberger Technology Corp. et al

Filing 45

PROTECTIVE ORDER. Signed by Magistrate Judge Donald G. Wilkerson on 5/22/2012. (hbs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
Plaintiff,
v.
SCHLUMBERGER TECHNOLOGY CORP.
and GENERAL DYNAMICS ORDNANCE
AND TACTICAL SYSTEMS, INC.,
Defendants.

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Case No. 3:11-cv-399-JPG-DGW

PROTECTIVE ORDER
WILKERSON, Magistrate Judge:
Currently pending before the Court is the parties’ Second Joint Motion for a Protective
Order, filed May 18, 2012 (Doc. 44). The Court, being fully advised and having determined that
good cause exists for entry of a protective order, GRANTS the motion.
THEREFORE, IT IS HEREBY STIPULATED AND ORDERED:
This Stipulated Protective Order Regarding Confidential Information and Documents
(“Protective Order”) shall apply with respect to certain documents and other information produced
and/or disclosed in connection with the above-captioned action (“the Action”).
The Court finds that, under applicable Seventh Circuit precedent contained in Union Oil
Co. of California v. Leavell, 220 F.3d 562 (7th Cir. 2000) and Citizens First National Bank of
Princeton v. Cincinnati Ins. Co., 178 F.3d 943 (7th Cir. 1999), good cause exists for entry of this
Protective Order because discovery in this Action will involve the production of documents and
information that a Party, or non-Party, has reasonably claimed as trade secrets and/or confidential
business information, including trade secrets and/or confidential business information entitled to

protection under the Trade Secrets Act, 18 U.S.C. § 1905 and federal regulations at 40 C.F.R. §
2.310(g)(6). This includes Confidential Information which has been submitted to the United
States Environmental Protection Agency (“EPA”), the United States Department of the Interior
(“DOI”), the United States Army Corps of Engineers (“COE”), Schlumberger Technology
Corporation (“STC”) and General Dynamics Ordnance and Tactical Systems, Inc. (“GD-OTS”) by
various third party contractors and consultants (listed in Appendix A to this Order (hereinafter
“Submitters”)) and documents obtained by EPA and DOI through the authority of Section 104(e)
of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”),
42 U.S.C. § 9604(e).
This Order is necessary because EPA may not disclose information subject to federal
regulations at 40 C.F.R. § 2.310(g)(6) absent a protective order from this Court. In addition, this
Order is necessary because GD-OTS and STC anticipate that they will produce information that
includes confidential trade secret information.

To prevent unauthorized disclosure of such

information and to allow discovery to proceed in this case, this Order establishes a procedure for
disclosing Confidential Information to the Parties, imposes obligations on persons receiving
Confidential Information to protect it from unauthorized use or disclosure, and establishes a
procedure for challenging confidentiality designations. The Parties intend for such Confidential
Information to be disclosed only under the terms of this Protective Order.
By entering this Order the Court does not warrant that any Discovery Material filed in this
action or presented at trial or hearing is entitled to protection as Confidential Information.

This

Order only establishes: 1) the procedures by which a Party or non-Party may assert that Discovery
Material should be designated as Confidential Information solely for purposes of this action, and

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2) the procedures for treating such Discovery Material as Confidential Information until such time
as this Court determines that the material is not entitled to confidential status.

Nothing in this

Order, and no action taken pursuant to it, should be construed as an admission by any Party or
non-Party that any Discovery Material exchanged between the Parties is entitled to protection
under this Order as Confidential Information.
Further, nothing in this Protective Order alters or affects a Party’s obligations or burdens to
establish good cause for moving to seal any document contained in public record of this matter.
1.

Definitions. As used in this Protective Order,
a. the term “Confidential Information” means Discovery Material

which has been claimed as confidential commercial information or trade secret
information by its author or Submitter or is otherwise entitled to confidential
treatment pursuant to 18 U.S.C. § 1905 or 40 C.F.R. Part 2;
b. the term “Designating Party” means a Party or non-Party that
designates Discovery Material as “Confidential Information”;
c. the term “Discovery Material” shall mean all documents (regardless
of the medium or manner generated, stored, or maintained), deposition testimony,
tangible things or other information produced, subpoenaed, transcribed from
depositions, or otherwise given to any Party in this Action by another Party or by a
non-Party in connection with discovery (whether in the form of deposition
transcripts, interrogatory answers, document productions, responses to requests for
admissions or other discovery).

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Discovery Material shall also include any

documents, things or information produced voluntarily or by agreement without the
receipt of a formal discovery request;
d. the term “Expert and Consultant” means any person who has been
retained by a Party or its counsel to serve as an expert who may testify at trial; and
any expert or litigation consultant or trial consultant employed to assist a Party in
any way in this Action. The term “Expert” also includes persons, firms or
corporations (including their employees) engaged by a Party or a Party's counsel on
a contract basis to assist in the preparation and trial of this litigation;
e. the term “Party” shall mean any party to this Action, including all of
its officers, directors, employees, consultants, retained experts, and outside counsel
(and their support staff);
f. the term “Producing Party” means a Party or non-Party that
produces Discovery Material in this Action;
g. the term “Receiving Party” means a Party that receives Discovery
Material from a Producing Party;
h. the term “Submitter” means an entity listed in Appendix A to this
Protective Order that has submitted Confidential Information to EPA, DOI, COE,
GD-OTS, or STC.
2.

Designation.

Any Confidential Information to be produced by a

Designating Party pursuant to this Protective Order shall be stamped conspicuously with
the word “CONFIDENTIAL – SUBJECT TO PROTECTIVE ORDER” by the
Designating Party legibly on each page of each document prior to production to the

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Receiving Party, except for documents produced in their native electronic format pursuant
to the Stipulation Regarding Preservation and Production of Documents and
Electronically-Stored Information. Documents produced in native format shall either 1)
be designated as Confidential Information by adding the word “CONFIDENTIAL” to the
filename or 2) be segregated from documents not designated as confidential on separate
media (e.g. DVD, thumb drive) that is clearly labeled “CONFIDENTIAL – SUBJECT TO
PROTECTIVE ORDER.” The transmittal of Confidential Information shall be done by
letter from the Designating Party stating that Confidential Information is being produced
and is subject to this Protective Order.
3.

Limited Use. Confidential Information shall not be used or disclosed by

the Receiving Party or any other person subject to Paragraph 4 below for any purpose other
than the preparation for, and trial of, this Action and any appeal therein.
4.

No Disclosure. Each Receiving Party and Receiving Party’s counsel who

obtains Confidential Information, and any non-Party subject to this Protective Order who
obtains Confidential Information in accordance with this Protective Order, shall not
disclose or permit disclosure of this Confidential Information to any other person,
including without limitation any officer, director, employee, agent, or representative of
each Receiving Party, each Receiving Party’s counsel, or any non-Party, except in the
following circumstances:
a. Disclosure may be made to Receiving Party’s counsel, to an
employee of the Receiving Party or of the Receiving Party’s counsel, if the
employee has need for access to the Confidential Information for this Action.

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b. Disclosure may be made to Experts and Consultants, if prior to
disclosure, the Expert or Consultant, as applicable, agrees to be bound by the terms
of this Protective Order by executing the Confidentiality Agreement annexed
hereto.
c. Disclosure may be made to contractors engaged for the limited
purpose of making copies of documents or organizing or processing documents.
d. Disclosure may be made to the Court and its employees, including
without limitation, court reporters, employees in the Clerk’s Office, and law clerks,
provided that the Confidential Information is filed in accordance with the terms of
this Protective Order.
e. Disclosure may be made to witnesses or potential witnesses who
have a need for access to the Confidential Information in this Action.
f.

Disclosure may be made to court reporters, videographers,

stenographers, or other persons recording or preparing transcripts of testimony, and
their staffs.
5.

Protection of Confidential Information.

Each Receiving Party,

Receiving Party's counsel, and any other person subject to this Protective Order who
obtains Confidential Information, shall take all necessary and appropriate measures to
maintain the confidentiality of the Confidential Information, shall share such Confidential
Information only with persons authorized to receive it pursuant to this Protective Order,
and shall retain the Confidential Information in a secure manner. Except as provided in

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Paragraph 4 above, no other person shall be permitted access to the Confidential
Information.
6.

Copies, Duplicates.

Any person who obtains access to Confidential

Information may make copies, duplicates, extracts, summaries, or descriptions of the
Confidential Information or any portion thereof only for the purpose of preparation for
litigation in this Action. All copies, duplicates, extracts, summaries, or descriptions of the
Confidential Information or any portion thereof shall be subject to the terms of this
Protective Order to the same extent and manner as original documents.
7.

Testimony. A deposition or other testimony that contains reference to

Confidential Information may be designated as Confidential Information by so stating
orally on the record of the deposition or testimony or by so advising opposing counsel in
writing within thirty (30) days after (i) a rough transcript is available or; (ii) if a rough
transcript is not provided or available to the Parties, receipt of the final transcript (the
“Transcript”). The entire content, transcript and exhibits to each deposition shall be
treated as if it had been designated as Confidential Information in accordance with the
provisions of this Order until thirty (30) days after all parties have received the Transcript
and exhibits, after which only the portions specifically designated as Confidential
Information pursuant to the first sentence of this Paragraph shall be so treated. Whenever
Confidential Information is to be referred to or disclosed in a deposition, any Party may
exclude from the room during such testimony any person who is not authorized to receive
such information under this Protective Order.

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8.

Objections. If any Receiving Party objects to the designation of any

Discovery Material as Confidential Information, the Receiving Party shall state the
objection in writing to counsel for the Designating Party. The Receiving Party and the
Designating Party shall attempt to resolve the dispute among themselves in a timely
manner.

In the absence of such resolution, the Receiving Party objecting to the

designation of Discovery Material as Confidential Information may seek a Court Order
with respect to such challenged Discovery Material. Once a Designating Party has made
such a request, the Discovery Material shall be deemed and treated as Confidential
Information under the terms of the Order unless and until (i) the Court rules otherwise, or
(ii) the Designating Party agrees in writing to withdraw the confidentiality designation.
9.

Subsequent Request for Information. In the event that a Receiving

Party or Receiving Party’s counsel or Expert and Consultant that is authorized to have
access to Confidential Information is served with a request, subpoena, demand, or other
legal process that seeks production of Confidential Information, such person (the
“Requested Person”) shall, unless otherwise prohibited by law, give written notice to the
Designating Party within five (5) days of the receipt of such request, subpoena, demand, or
other legal process, furnish the Designating Party with a copy of said subpoena or other
process or order, and cooperate with respect to any procedure sought to be pursued by the
Designating Party. The Requested Person, unless otherwise required by law, shall not
produce the Confidential Information until the earlier of: (i) receipt of prior written consent
from the Designating Party; (ii) the return date of the subpoena or other process (in the
event the Designating Party does not object to, seek to quash, or seek a protective order

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from the subpoena); or (iii) five (5) business days after a decision on any motion to quash
or motion for a protective order or such shorter period as the Court may direct. Unless the
Designating Party waives its claim of confidentiality over the requested documents or
elects at its discretion, without waiving its claim of confidentiality, to consent to
production of its Confidential Information, the Requested Person will inform the non-Party
seeking disclosure that the information requested is Confidential Information protected by
this Protective Order and that such non-Party will have to seek an appropriate ruling from
this Court. In any action seeking disclosure, the Designating Party shall bear all costs and
have the burden of proof to establish that the designated material is in fact Confidential
Information and is entitled to confidential treatment pursuant to the terms of this Protective
Order.
10.

Use at Trial or Hearing. This Order does not, by itself, authorize the

filing of any document under seal. Any party wishing to file a document designated as
Confidential Information in connection with a motion, brief or other submission to the
Court must: (i) meet its burden to show that good cause exists for filing the particular
document under seal; (ii) move to file the document electronically under seal in accordance
with the procedures in S.D. Ill. L.R. 5.2(d); and (iii) file electronically at the same time a
public-record version of the document with the Confidential Information excluded. Any
document served on another party and any paper courtesy copy provided to the Court shall
be a complete, unredacted version. Nothing in this Order shall limit or affect a Party’s
obligation to comply with Fed. R. Civ. P. 5.2 and any applicable local court rules
governing the filing of documents. Whenever Confidential Information is to be referred

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to or disclosed in a hearing or trial proceeding, any Party may move in accordance with the
Federal Rules of Civil Procedure, the Federal Rules of Evidence, and/or this Protective
Order that the Court exclude from the room those persons who are not authorized to receive
the Confidential Information under this Protective Order.
11.

Admissibility. Nothing herein shall be construed to affect in any way the

admissibility of any document, testimony, or other evidence at the trial of the Action.
12.

Use by Designating Party. Nothing in this Order shall restrict, or be

construed as restricting a Designating Party’s use of its own Confidential Information;
however, if a Designating Party files Confidential Information with the Court, the
Confidential Information must be filed in accordance with the provisions in Paragraph 10
of this Order. Confidential Information shall lose its confidential designation if the
Designating Party fails to comply with these procedures.
13.

Further Requests. Nothing in this Order prohibits or prevents any Party

from applying to the Court for a further protective order relating to any Confidential
Information or for an Order permitting disclosure of Confidential Information. The
provisions hereof may also be modified on the Court’s own motion, by motion by any
Party upon notice, or by written agreement between the applicable Parties.
14.

Disclosure. Any accidental, inadvertent or unauthorized disclosure of

Confidential Information shall not result in a waiver of any Submitter's or, as applicable,
Designating Party’s claim of confidentiality or the applicability of any privilege attached
thereto. In the event of such an inadvertent disclosure, the Submitter or the Designating
Party may thereafter reasonably assert a claim or designation of confidentiality and

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promptly provide replacement media containing Discovery Material properly marked as
Confidential Information. Thereafter, the Receiving Party must immediately return the
original Discovery Material and all copies of the same to the Designating Party and make
no use of such Discovery Material.
15.

Amendment. If a Party desires to add Submitters to the list in Appendix

A, that Party may file written notice with the Court and the other Parties of the identities of
such Submitters. If no Party objects within three days of receipt of such notice, the
Submitters will be added to Appendix A. The listing of an entity or individual as a
Submitter in Appendix A does not obligate a Party to search for or collect that Submitter’s
documents or to produce that Submitter’s documents in response to general discovery
requests.
16.

Destruction or Return.

Within sixty (60) days after termination of this

action by judgment, settlement or otherwise, or as may be determined by the court:
a.

All Information designated as confidential hereunder shall

be destroyed, including all copies, duplicates, extracts, summaries, or
descriptions of the Information or portions thereof, and the party in possession
shall certify that it has done so;
b.

All Confidential Information covered by this Protective

Order which constitutes the work product of counsel for the Receiving Party
shall be destroyed; and,
c.

The Clerk of the Court shall maintain under seal all papers

filed under seal until the Court orders otherwise.

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IT IS SO ORDERED.
DATED: May 22, 2012

DONALD G. WILKERSON
United States Magistrate Judge

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APPENDIX A—LIST OF CONTRACTORS AND CONSULTANTS
For the United States:
W.W. Engineering and Sciences
Donohue & Associates
Roy F. Weston
Lockheed Environmental Systems & Tech. Co.
Ecology and Environment
CH2M Hill
Techlaw, Inc.
Planning Research Corporation
Jacobs Engineering
Resource Applications, Inc.
Metcalf & Eddy
Arctic Slope Regional Corp.
ASRC Management Services, Inc.
Laucks Testing Labs, Inc.
URS
Pangea
Rick Newill
Kate Power
MCG - Geotechnical Engineering Inc.
Hi Shots
Manpower International or Manpower Temporary Services.
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Peoria Disposal Co.
Katherine Svanda Csr
Southern Reporting
Morales & Associates LLC
Renee's Trucking
E H Inc
Laboratory & Environmental
Texas A&M Foundation
French Studios (aerials)
Tina Yee & Associates PC
Woodward Clyde
Woodward Clyde URS Greiner
Severn Trent
CASU
CNS - Diana Cardon
Jim Lawrence
University of Illinois-Champagne
PH Associates, LLC
Freeman Environmental Service
Montgomery Watson or James Montgomery
CDM
Golder Associates

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Test America
Budget, Manpower & Mgmnt.
DPRA
PACE Analytic Services Inc.
Texas A&M Research Foundation
Texas A&M University
Terra Drill Inc.
Environmental Management Alternatives, Inc.
Associated Professionals, Inc.
Freeman Environmental
Severn Trent Laboratories
Lakeland Corp.
Southern Illinois Regional Landfill
Ahrens Contracting
Roberts Environmental Drilling
Triangle Laboratories
AMEC Northwest Bioassay Laboratory
NVL Laboratory

For Schlumberger Technology Corporation
AECOM f/k/a Rust Environmental and Infrastructure, Inc.
Burns & McDonnell
CH2MHill
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Envirocon, Inc.
Environ Corp.
Fluor Corporation f/k/a Fluor Daniels
IT Corporation
Rogers & Callcott
TRC Environmental Services f/k/a RMT, Inc.
For General Dynamics Ordnance and Tactical Systems, Inc.
NewFields
Conestoga-Rovers & Associates
Shannon & Wilson, Inc.
USA Environmental, Inc.
Cardno Entrix

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