U.S. Commodity Futures Trading Commission v. Arrington et al

Filing 57

PROTECTIVE ORDER regarding motion for protective order filing 56 . The Court hereby GRANTS the motion. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
OMAHA DIVISION
U.S. COMMODITY FUTURES
TRADING COMMISSION,
Plaintiff,
v.

JONATHAN W. ARRINGTON;
MICHAEL B. KRATVILLE;
MICHAEL J. WELKE;
ELITE MANAGEMENT HOLDINGS CORP.;
and MJM ENTERPRISES LLC,
Defendants.
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Civil Action No.
8:11-cv-00181-LSC-FG3

ORDER RELATING TO THE PRODUCTION OF CONFIDENTIAL INFORMATION
BY THE U.S. COMMODITY FUTURES TRADING COMMISSION
Pursuant to the parties’ agreed motion [Docket # 56] for Approval of an Order Relating
to the Production of Confidential Information by the U.S. Commodity Futures Trading
Commission (CFTC), and upon a showing of good cause, the Court hereby GRANTS the motion
and ORDERS that:
1. Purpose. This Order is a court order within the meaning of the Privacy Act,
5 U.S.C. § 552a(b)(11), and implementing regulations. Its primary purpose is to expedite the
flow of discovery material, facilitate the prompt resolution of disputes over confidentiality,
protect material to be kept confidential, and ensure that protection is afforded only to material
entitled to such treatment, pursuant to the Court’s inherent authority, its authority under
Rule 26(c) of the Federal Rules of Civil Procedure, and the judicial opinions interpreting that
rule.

Except as otherwise stated in this Order, the CFTC shall produce, in response to a valid
discovery request, discoverable information in its possession, custody, or control in accordance
with the Rule 16 Scheduling Order (DE#36). If a party requests otherwise discoverable
information from the CFTC that includes confidential material, the CFTC shall, based upon the
claimed grounds of confidentiality, redact or designate such information as Sensitive Personally
Identifiable Information (SPII) pursuant to this Order.
2. Applicability. This Order covers information that the CFTC, as the producing party,
redacts or designates as SPII. Information may be redacted or designated as SPII when the
CFTC reasonably believes the information disclosed constitutes, reflects, discloses, or contains
information subject to protection under the Privacy Act, 5 U.S.C. § 552a(b)(11), and
implementing regulations; Rules 26(c) and 5.2 of the Federal Rules of Civil Procedure;
Rule 5.0.3 of the Civil Rules for the District of Nebraska; and the judicial opinions interpreting
such rules.
3. Good Faith. The CFTC shall redact and make designations of SPII in good faith to
ensure that only those documents most likely to merit confidential treatment are so redacted or
designated. In doing so, it may employ technology, including the implementation of search
protocols designed to identify such documents.
4. Definitions.
a. “Party” or “Parties” refer to the individuals and entities named as parties to this
litigation.
b. “Information” refers to the contents of documents, data associated with
documents (whether physical or in electronic format), oral and written testimony,

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answers to interrogatories, admissions, disclosures, and data derived from objects
other than documents, produced or disclosed in this litigation by the CFTC.
c. “Receiving Party” refers to any party to this litigation to which the CFTC
provides or discloses information in connection with discovery and/or other
orders of this Court.
d. “Submitting Entity” refers to any third-party entity or individual that has
submitted information, including SPII, to the CFTC.
e. “Confidential Information” refers to information that the CFTC or a submitting
entity claims is protected from public disclosure by applicable federal law, the
release of which could result in harm to a person or entity.

This includes

sensitive personally identifiable information such as social security numbers,
dates of birth, driver’s license numbers, passport numbers, account numbers,
names of minors, medical records, and other types of information, the release of
which could result in the compromise of an individual’s or entity’s identity.
5. Procedures.
a. Redactions. Where practicable, the CFTC will redact Confidential Information
from documents, leaving the last two or the last four digits of social security
numbers, driver’s license numbers, passport numbers, and account numbers, as
well as minor’s initials and the year of dates of birth before producing the
documents to the receiving party or parties. The redactions will bear the mark
SPII.
b. Designation. For all other documents with Confidential Information that have not
been redacted, the CFTC will, along with those documents, provide a list of the

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designated documents (by Bates number) and include the designation SPII in the
file name of each document that is subject to the protection of this Order.
c. Errors. Accidental or inadvertent disclosure of Confidential Information does not
waive the confidential status of such information or any privilege attached thereto.
In the event Confidential Information is inadvertently disclosed, the CFTC may
thereafter reasonably assert a claim or designation of SPII and promptly provide
replacement media consistent with this Order. Thereafter, the receiving party
must immediately return the original information and all copies to the CFTC
and/or destroy such information, and make no use of such Confidential
Information.
d. Who. Unredacted documents designated as SPII (in accordance with 5b above)
may only be provided to:
i. Parties—including the parties’ counsel and their staff, vendors,
contractors, and agents hired in connection with this litigation—who agree
to be bound by this Order as evidenced by signing the certificate attached
as Appendix A;
ii. Any other person to whom the CFTC, in writing, authorizes disclosure and
who signs the certificate attached as Appendix A.
e. Where. Confidential information must be used only in this proceeding.
f. How.
i. Filings. If a document designated as SPII (in accordance with 5b above)
must be filed, then the party seeking to file the document must redact the
relevant portions or file under seal.

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ii. Depositions, Hearings, and Trial. If a party intends to utilize a document
designated as SPII (in accordance with 5b above) during a deposition, pretrial hearing, or trial, it must redact the information from the document
according to the procedures described in 5a above. If the Confidential
Information itself is relevant, the party shall provide written notice no less
than five business days prior to the hearing, deposition, or final pre-trial
conference (if the party intends to use the confidential information during
trial) to the CFTC and the Court. The use of such Confidential
Information during the hearing, deposition, or trial shall be determined by
agreement of the parties or by order of the Court.
g. Challenges.
i. Any receiving party may object to the propriety of the redaction or
designation of SPII by serving a written objection upon the CFTC. Within
five business days, the CFTC shall respond to such objections in writing
by either: (i) agreeing to remove the redaction or designation; or
(ii) stating the reasons for such redaction or designation. If the parties are
unable to agree on the terms and conditions of disclosure for the subject
material, the objecting party may move the Court for an order withdrawing
the redaction or designation as to the specific redactions or designations
on which the parties could not agree. On such a motion, the CFTC shall
have the burden of proving that “good cause” exists for the redaction or
designation at issue and that the material is entitled to protection as

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confidential under applicable law. The information shall continue to be
protected until the Court can rule on the merits of the motion.
ii. If the basis for the redaction or designation is because a submitting entity
claims it is protected from public disclosure by applicable federal law, and
a receiving party objects to the redaction or designation, the CFTC shall,
within five business days, send notice to the submitting entity. The CFTC
shall not be required to respond to the objection until ten business days
after such notice has been sent to the submitting entity. The submitting
entity shall be permitted to intervene to defend the redaction or
designation pursuant to the procedures and standards set forth in this
Order.
h. Return. Within 45 days of the termination of any party from this action, that
party—including the parties’ counsel and their direct staff, vendors, contractors,
and agents hired in connection with this litigation—must destroy or return all
originals and/or copies of documents designated as SPII (in accordance with 5b
above). At the written request of the CFTC, any person or entity having custody
or control of documents designated as SPII (in accordance with 5b above), and all
copies thereof, shall provide an affidavit certifying that reasonable efforts have
been made to insure that all such information has been destroyed or delivered in
accordance with the terms of this Order. This Order survives the termination of
this proceeding.

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6. Exclusions.
a. Nothing in this Order shall be construed to compel the CFTC to produce
information that, under law or agreement, it is prohibited from producing,
including, among other things, information protected from disclosure under
Section 8(a)(1) of the Commodity Exchange Act, 7 U.S.C. § 12(a)(1).
b. This Order shall not govern the production or designation of classified
information, sensitive security information, technical data with military or space
application, information on classified computer systems, or enforcement-sensitive
government documents related to ongoing investigations.
7. Protections.
a. Pursuant to Federal Rule of Evidence 502(d), production of any record by the
CFTC in this litigation does not waive any Privacy Act protection of that record
outside of this proceeding and any such record produced in this proceeding must
be strictly protected in accordance with this Order.
b. Notwithstanding any federal statute or regulation, no agency, officer, employee,
or attorney of the CFTC shall be subject to any civil or criminal penalty or
sanction related to the disclosure of non-public information, provided that such
disclosure is made pursuant to the terms of this Order.
IT IS SO ORDERED on this 5th day of July, 2012.

BY THE COURT:
s/ F.A. GOSSETT, III
UNITED STATES MAGISTRATE JUDGE

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