USA v. CONAGRA GROCERY PRODUCTS COMPANY LLC
Filing
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MEMORANDUM DECISION ON MOTIONS FOR ENTRY OF CONFIDENTIALITY ORDER granting in part and denying in part 30 Motion for Confidentiality Order; granting in part and denying in part 32 Motion for Confidentiality Order. By MAGISTRATE JUDGE JOHN H. RICH III. (dfr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
Plaintiff
v.
CONAGRA GROCERY PRODUCTS
COMPANY, LLC,
Defendant
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No. 2:11-cv-455-NT
MEMORANDUM DECISION ON MOTION FOR ENTRY OF CONFIDENTIALITY
ORDER
The defendant, ConAgra Grocery Products Company, LLC, moves for the entry of a
confidentiality order that it has drafted, departing from the language of the court’s form
confidentiality order.1 Motion for Entry of Confidentiality Order (“Motion”) (ECF No. 30). The
plaintiff government responds with a motion and draft of its own. Response to Defendant’s
Motion for Entry of Confidentiality Order and Motion for a Protective Order Regarding
Confidential Business Information (“Response”) (ECF No. 31).
After several rounds of
proposed modifications, which could have better been accomplished before either party filed a
motion, only a few disputes remain. Using the government’s most recent draft (ECF No. 34-2), I
address each dispute in turn.
I. Introductory Paragraph
The defendant asserts that the language proposed by the government “would only give
confidential treatment to EPA’s documents, not [the defendant’s] (or any other third party that
1
See Appendix II to this court’s Local Rules.
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may produce documents).” Reply in Support of Motion for Entry of Confidentiality Order and
Response to Plaintiff’s Motion for Confidentiality Order (“Defendant’s Reply”) (ECF No. 33) at
2.
The introductory paragraph submitted by the government clearly allows confidential
treatment of any documents produced by the defendant. Beyond this, it would be inappropriate
to create a confidentiality order covering documents that might be produced in the future by a
currently unidentified third party. This is a lawsuit to which there are only two parties at present,
and there is thus no entity other than the plaintiff to whom or which the defendant could produce
documents.
The language proposed by the government is adopted.
II. Paragraph 2
The government has agreed to delete its proposed paragraph 2. Reply in Support of
United States’ Motion for a Protective Order Regarding Confidential Business Information
(“Plaintiff’s Reply”) (ECF No. 34) at 3. However, it asks for modification of the second
sentence in the third paragraph of this court’s form confidentiality order to require that any
confidentiality designation made by the plaintiff must be consistent with 40 C.F.R. Part 2,
Subpart B. Id.2 That request is reasonable under the circumstances of this case, and that
modification will be adopted.
III. Paragraph 6(b)(1) and 6(b)(2)
The defendant objects to that plaintiff’s addition of a requirement that employees of the
law firms representing both parties execute an Acknowledgement of Understanding and
Agreement to be Bound by the confidentiality order because the plaintiff “does not offer a
compelling reason [] why the employees of a law firm should be required to sign a document to
2
Subpart B of 40 C.F.R. Part 2 deals with the circumstances under which the government may reveal confidential
business information and requires that any confidentiality agreement to which the EPA is a party contain certain
specific information.
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add a potential violation of the Court’s Order.” Defendant’s Reply at 3. It cites no authority that
would require a party seeking such a term to produce a “compelling” reason for its request.
The plaintiff responds that “the information contained in the documents of United States’
contractors includes sensitive business information that the United States[] is obligated to
protect” and “[o]ne indiscretion by an employee, whether intentional or inadvertent, could result
in serious consequences[.]” Plaintiff’s Reply at 3. However, that is true of any information
subject to a confidentiality order, and signing an explicit agreement would do little to prevent
“inadvertent” disclosure of confidential information. This may be a “small administrative step,”
as the plaintiff contends, but it has not demonstrated a need for it. The law firms continue to be
responsible for the actions and omissions of their employees in this regard.
IV. Paragraph 10(a)
The government has agreed to delete this paragraph. Plaintiff’s Reply at 4.
V. Paragraph 10(b)
The defendant contends that, since the plaintiff “will no doubt abide by” the regulations
to which the proposed language refers, adding the language to the order is “unnecessary and
problematic.” Defendant’s Reply at 4. It again asserts that the plaintiff must demonstrate a
“compelling reason” to add the proposed language, and asks whether the parties will be held in
contempt by this court if they “enter into an agreement that is not consistent with EPA’s FOIA
regulations.” Id.
As the plaintiff points out, the regulations at issue are not general “FOIA regulations,”
but rather regulations governing the EPA’s handling of confidential business information in all
forums, including litigation.
Plaintiff’s Reply at 4-5. The plaintiff’s request to include a
reference to these regulations in the protective order is a reasonable one. Contrary to the
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defendant’s implication, Defendant’s Reply at 4, the proposed additional language does not limit
this court’s inherent powers in any significant way.
The proposed language for paragraph 10(b) is adopted.
VI. Conclusion
The plaintiff shall file with the court, within the 10 business days following the entry of
this order, a final confidentiality order consistent with the terms of this decision to be executed
and adopted by the court.
Dated this 31st day of July, 2012.
/s/ John H. Rich III
John H Rich III
United States Magistrate Judge
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