Pueblo of Jemez v. United States of America

Filing 114

ORDER by Magistrate Judge William P. Lynch granting in part and denying in part 105 Motion for Protective Order and 108 cross motion for protective order. (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

PUEBLO OF JEMEZ, a federally
recognized Indian tribe,
Plaintiff,
v.

CV 12-800 RB/WPL

UNITED STATES OF AMERICA,
Defendant,
and
NEW MEXICO GAS COMPANY,
Defendant-in-Intervention.

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION TO COMPEL AND FOR PROTECTIVE ORDER
AND DEFENDANT’S MOTION FOR PROTECTIVE ORDER
Plaintiff Pueblo of Jemez filed a motion for protective order and motion to compel (Doc.
105) and the United States filed a cross motion for protective order (Doc. 108). The parties
essentially agree that two protective orders are necessary: one covering the treatment of
culturally sensitive and confidential information disclosed by the Pueblo, and one covering the
treatment of culturally sensitive and confidential information disclosed by the United States. The
parties were, however, unable to agree on the terms of those orders. Both parties submitted two
sets of proposed protective orders. I have reviewed the proposed protective orders, the points of
contention, the record, and the relevant law. Both motions are granted in part and denied in part.
Federal Rule of Civil Procedure 26(c) allows courts, for “good cause,” to issue a
protective order regarding discovery “to protect a party or person from annoyance,

embarrassment, oppression, or undue burden or expense.” The rule also serves to protect parties’
privacy interests. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n.21 (1984). Protective orders
are highly customizable. The “good cause” standard is “highly flexible, having been designed to
accommodate all relevant interests as they arise.” Rohrbough v. Harris, 549 F.3d 1313, 1321
(10th Cir. 2008) (quoting United States v. Microsoft Corp., 165 F.3d 952, 959 (D.C. Cir. 1999)).
In this case, protective orders are appropriate to limit disclosure of confidential or sensitive
religious, cultural, archeological, and other information in the course of this litigation.
While the parties agree that protective orders are appropriate, they were unable to
stipulate to any such order. The points of contention are as follows: 1) the Pueblo of Jemez
would like clarification as to whether and how the National Historic Preservation Act or other
federal statutes apply to this case; 2) the United States would like thorough and detailed
protective orders that separately cover information produced or otherwise provided by the United
States and information produced or otherwise provided by the Pueblo of Jemez; 3) the Pueblo of
Jemez would like the United States to individually review, in the first instance, any and all
materials produced or otherwise provided by the United States to determine if those materials
should be considered confidential; and 4) the United States asserts that complying with a
notification provision regarding the use of confidential information is impossible/unnecessary,
and further asserts that it would be offensive to Dr. Anastasia Steffen and Ms. Van Vlack—two
employees of the United States Department of the Interior—to sign a confidentiality agreement.
As to Pueblo of Jemez’s contention that only the National Historic Preservation Act
should be considered, and then only on limited grounds, I am not persuaded. The United States is
bound be all existing and applicable federal law. If and when the parties have a concrete dispute

2

about the applicability of a particular statute on a particular issue, they may file the appropriate
motions.
I agree with the United States that thorough orders are appropriate, and have adopted
modified versions of the parties’ proposed orders.
One of the biggest issues appears to be who bears the burden, in the first instance, of
designating discovery material produced or otherwise provided by the United States as
confidential. The United States asserts that it will produce tens of thousands of pages of
discovery in this case, and that reviewing each document for confidentiality before responding to
discovery requests would unnecessarily slow the process. I agree. Under the unique
circumstances of this case, I find it appropriate for the United States to designate batches of
documents or other discovery material as confidential, with notice to the opposing parties that
the United States has not thoroughly reviewed the materials and an opportunity for the opposing
parties to challenge the confidential designation. In any event, the opposing parties will have to
sift through the discovery materials and allowing the United States to designate batches of
discovery materials as confidential with minimal initial review will not substantially alter the
burdens of discovery.
Finally, I find it somewhat disingenuous that the United States objects to having two
Department of the Interior employees sign a confidentiality agreement when the United States
has specifically requested that opposing counsel sign a confidentiality agreement. Confidentiality
agreements are standard practice in litigation of this magnitude and it is not a remark on any
individual’s professionalism to require a confidentiality agreement.

3

I have slightly modified the proposed confidentiality orders. Accordingly, the motions for
protective order are both granted in part and denied in part, and the Pueblo of Jemez’s motion to
compel is denied as moot. The protective orders will be filed simultaneously with the filing of
this Order. Counsel and the parties are reminded of their overarching obligation to participate in
this litigation and carry out these Orders in good faith.
IT IS SO ORDERED.
______________________________
William P. Lynch
United States Magistrate Judge

4