Pueblo of Jemez v. United States of America

Filing 116

PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION PRODUCED BY THE UNITED STATES by Magistrate Judge William P. Lynch. (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.

PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION
PRODUCED BY THE UNITED STATES
The Pueblo of Jemez (“Plaintiff”) filed this case against the United States of America
(“Defendant”) on July 20, 2012.
This case relates to the historic use of land that is now the Valles Caldera National
Preserve.
New Mexico Gas Company (“Defendant-Intervenor”) has intervened in this case in order
to protect its interests in certain land that is now part of the Valles Caldera National Preserve.
During discovery, Defendant will disclose information, including documents, data, and/or
other material, pursuant to Federal Rule of Civil Procedure 26(a)(1).
The disclosed documents, data, and/or other materials may contain information regarding
the historic use of the Valles Caldera National Preserve, including information regarding

sensitive cultural resources of Plaintiff and Plaintiff’s members and/or of other Indian Tribes
and/or individuals not parties to this case.
Defendant asserts that such documents, data, and/or other materials may contain
information, including sensitive cultural information and may be subject to protection from
disclosure pursuant, but not limited, to the Privacy Act, 5 U.S.C. § 552a, the Indian Minerals
Development Act, 25 U.S.C. § 2103(c), the Trade Secrets Act (or Act of 1948), 18 U.S.C.
§ 1905, the Archeological Resources Protection Act, 16 U.S.C. § 470hh(a), the Antiquities Act,
54 U.S.C. § 320301, the National Parks Omnibus Management Act, Section 207, 54 U.S.C.
§ 100707, the Surface Mining Control and Reclamation Act, 30 U.S.C. § 1201, the National
Historic Preservation Act, 54 U.S.C. § 300101 et seq., and the Mineral Leasing Act, 30 U.S.C.
§ 181 et seq. The documents, data, and/or other materials may also be subject to protection from
disclosure as confidential resource, commercial, and/or proprietary information under federal law
and/or regulations, and because it relates to Indian Tribes and/or individuals not parties to this
case.
IT IS THEREFORE ORDERED THAT:
1.

Documents, data, and/or other materials, as well as copies or images of such

documents, data, and any notes, dictation tapes, or media containing electronically stored
information, and/or other materials, that are designated as protected from disclosure as outlined
above shall be deemed “Confidential Materials” for purposes of this Order.
2.

This Order governs the Confidential Materials to be provided by Defendant to

Plaintiff and/or to Defendant-Intervenor for all purposes related to this case, including but not
limited to litigation, alternative dispute resolution, or other formal dispute resolution process, and
informal settlement discussions.

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3.

Plaintiff and Defendant-Intervenor shall not use the Confidential Materials, or any

of their contents, for any purpose other than this case and any related administrative proceedings,
if any, before the United States Department of the Interior. Any information designated as
Confidential Materials shall be kept strictly confidential by Plaintiff’s and DefendantIntervenor’s attorney(s), and Plaintiff’s and Defendant-Intervenor’s designated consulting or
retained experts (“Expert Witnesses”), and such information shall not be disclosed, made public,
or made available to anyone, except as specifically provided in this Order or in any further Order
that this Court may enter.
4.

Any materials, such as pottery shards and accompanying information, made

available by Defendant to Plaintiff’s and/or Defendant-Intervenor’s attorney(s) and/or Expert
Witnesses for inspection in this case shall be deemed confidential for purposes of the inspection.
This limitation does not impact the use or dissemination of information that is independently
available in the public domain.
5.

Any images or copies of Confidential Materials that are provided to Plaintiff’s

and/or Defendant-Intervenor’s attorney(s) and/or Expert Witnesses shall include the endorsement
“CONFIDENTIAL MATERIALS—DO NOT DISCLOSE.” Defendants may, in good faith and
with notice to Plaintiff and Defendant-Intervenor, forego Defendant’s review to determine the
confidentiality of certain documents, data, and/or other materials to be provided to Plaintiff and
Defendant-Intervenor in order to provide Plaintiff and Defendant-Intervenor with those
documents on an expedited basis, in which case Defendant shall include on those documents,
data, and/or other materials the endorsement “CONFIDENTIAL MATERIALS—DO NOT
DISCLOSE; PROVIDED ON AN EXPEDITED BASIS AND WITHOUT REVIEW,” before
providing the documents, data, and other materials to Plaintiff and Defendant-Intervenor. All

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documents, data, and/or other materials so endorsed shall be deemed Confidential Materials and
protected as such under this Order. If Plaintiff or Defendant-Intervenor intend to file documents,
data, and/or other materials that have been endorsed as Confidential Materials with the Court as
evidence or for any other purpose, Plaintiff or Defendant-Intervenor shall follow the procedures
set forth in this Order.
6.

Plaintiff or Defendant-Intervenor may request that Defendant review certain

endorsed documents, data, and/or other materials to determine if they contain confidential
information; redact any confidential information; and produce a version of the documents, data
and/or other materials, after the necessary redactions, for filing with the Court without the
Confidential Materials endorsement. After the documents, data, and/or other materials have been
redacted or otherwise determined not to contain Confidential Materials, the documents, data,
and/or other materials shall no longer be considered confidential and subject to this Order.
7.

Confidential Materials may be disclosed without further Court approval only to

the following: (a) the Court or any settlement judge or mediator appointed, designated, or
selected to work with the parties in this case; (b) Plaintiff’s attorney(s) of record in this case, as
well as the attorney(s), paralegal(s), and support staff in his/her/their office(s) who are involved
or may be necessary in the ordinary course to represent Plaintiff herein; (c) DefendantIntervenor’s attorney(s) of record in this case, as well as the attorney(s), paralegal(s), and support
staff in his/her/their office(s) who are involved or may be necessary in the ordinary course to
represent Defendant-Intervenor herein; (d) Plaintiff’s Expert Witnesses in this case; and (e)
Defendant-Intervenor’s Expert Witnesses in this case. Each person receiving access to
Confidential Materials shall execute an Affidavit of Confidentiality, in the form attached hereto,
and provide that executed Affidavit to Plaintiff’s or Defendant-Intervenor’s attorney(s) of record.

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Office support or administrative staff who simply handle or file the Confidential Materials but do
not review their contents or retain copies thereof in any form need not execute an Affidavit of
Confidentiality. Plaintiff’s and Defendant-Intervenor’s attorney(s) of record shall maintain the
executed Affidavits of Confidentiality in his or her files and in accordance with the requirements
of this Order.
8.

Confidential Materials inadvertently provided by Defendant to Plaintiff or

Defendant-Intervenor without the “CONFIDENTIAL MATERIALS—DO NOT DISCLOSE” or
“CONFIDENTIAL MATERIALS—DO NOT DISCLOSE; PROVIDED ON AN EXPEDITED
BASIS AND WITHOUT REVIEW” endorsement shall remain, nonetheless, Confidential
Materials, and the parties shall proceed as follows as to those materials:
a.

If Plaintiff’s or Defendant-Intervenor’s attorney(s) discover(s) that

document(s), data, and/or information should but does not bear the requisite “CONFIDENTIAL
MATERIALS—DO NOT DISCLOSE” endorsement, those attorney(s) shall: (i) treat the
materials as though they bear the endorsement and in accordance with the requirements of this
Order, pending confirmation from Defendant’s counsel about their status; (ii) notify Defendant’s
counsel, as soon as possible, that the materials should but do not bear the endorsement; and (iii)
request that Defendant’s counsel confirm the confidentiality of the materials. Upon receiving
such a request from Plaintiff’s or Defendant-Intervenor’s attorney(s), Defendant’s counsel shall
determine the status of the materials and inform Plaintiff’s or Defendant-Intervenor’s attorney(s)
of that determination within thirty (30) days of receiving such a request, unless otherwise agreed
to by the parties. Nothing in this Order shall be construed to impose on Plaintiff’s or DefendantIntervenor’s attorney(s) or Expert Witnesses the affirmative duty or obligation to conduct a
review to determine the confidentiality of the documents or data provided by Defendant herein.

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b.

If Plaintiff’s or Defendant-Intervenor’s Expert Witnesses discover that

document(s), data, and/or information should but does not bear the requisite “CONFIDENTIAL
MATERIALS—DO NOT DISCLOSE” endorsement, those Expert Witnesses shall (i) treat the
materials as though they bear the endorsement and in accordance with the requirements of this
Order, pending confirmation from Defendant’s counsel about their status; (ii) notify Plaintiff’s or
Defendant-Intervenor’s attorney(s), as soon as possible, about the discovery; and (iii) that
attorney shall then act as provided for in subparagraph 8(a) above. Nothing in this Order shall be
construed to impose on Plaintiff’s or Defendant-Intervenor’s attorney(s) or Expert Witnesses the
affirmative duty or obligation to conduct a review to determine the confidentiality of the
documents, data, or other material provided by Defendant herein.
c.

If Defendant’s counsel learns or discovers that Defendant inadvertently

produced or otherwise disclosed Confidential Materials without the requisite “CONFIDENTIAL
MATERIALS—DO NOT DISCLOSE” endorsement to Plaintiff’s or Defendant-Intervenor’s
attorney(s) or Expert Witnesses, Defendant’s counsel shall notify Plaintiff’s or DefendantIntervenor’s attorney(s), as soon as possible, at which time Plaintiff’s or Defendant-Intervenor’s
attorney(s) shall notify their Expert Witnesses, as soon as possible, and Plaintiff’s or DefendantIntervenor’s attorney(s) and Expert Witnesses shall treat the documents, data, and/or other
materials as though they bear the endorsement and in accordance with the requirements of this
Order. In addition, Defendant’s counsel shall furnish to Plaintiff’s or Defendant-Intervenor’s
attorney(s) copies of the Confidential Materials, with the requisite endorsement, as soon as
possible. Upon receipt of the copies of the Confidential Materials with the requisite endorsement,
Plaintiff’s or Defendant-Intervenor’s attorney(s) and/or Expert Witnesses shall: (i) destroy; (ii)
employ reasonable measures, consistent with this Order, to delete from, degauss, or overwrite on

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any computer, hard drive, server, or other electronic storage media; or (iii) return to Defendant’s
counsel, as soon as possible, any copies of Confidential Materials inadvertently provided without
the requisite endorsement.
9.

Any party filing Confidential Materials with the Court shall request that the Clerk

of Court file such materials under seal. No party shall file with the Court at any time any motion,
application, memorandum or brief, or any other pleading or document that quotes from or
paraphrases Confidential Materials or that contains information obtained solely from
Confidential Materials, unless the confidential portion of any such motion, application,
memorandum or brief, pleading, or other document has been filed under seal with the Clerk of
Court. All filings under seal shall be made in accordance with all applicable court rules, polices,
procedures, and orders.
10.

Plaintiff’s or Defendant-Intervenor’s attorney(s) of record, Expert Witnesses, and

any other persons who have executed an Affidavit of Confidentiality in this case shall employ
reasonable measures, consistent with this Order, to control duplication of, access to, and
distribution of the Confidential Materials.
11.

All Confidential Materials, copies or images thereof, or extracts that constitute

Confidential Materials under this Order shall be (i) returned to Defendant’s counsel; (ii)
destroyed; or (iii) deleted from, degaussed, or overwritten on any computer, hard drive, server, or
other electronic storage media, through the use of reasonable measures, consistent with this
Order, immediately upon the final termination of this case (including the resolution of any
appeals) or the final termination of any related administrative proceedings, if any, before the
United States Department of the Interior, whichever occurs later. Within thirty (30) days of that
time, all individuals who have executed an Affidavit of Confidentiality pursuant to Paragraph 7

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of this Order and who still have access to such Confidential Materials shall certify in writing that
they have returned to Defendant’s counsel, destroyed, or employed reasonable measures,
consistent with this Order, to delete from, degauss, or overwrite on any computer, hard drive,
server, or other electronic storage media, all such Confidential Materials, copies or images
thereof, or extracts that constitute Confidential Materials. Plaintiff’s and Defendant-Intervenor’s
attorney(s) of record shall maintain these certifications and shall provide copies thereof to
Defendant’s counsel upon receiving the certifications. Further, all individuals who execute an
Affidavit of Confidentiality pursuant to Paragraph 7 of this Order and who terminate their
involvement in this case before the final termination of this case (including the resolution of any
appeals) or the final termination of any related administrative proceedings, if any, before the
United States Department of the Interior, whichever occurs later, shall certify in writing that they
have returned to Plaintiff’s or Defendant-Intervenor’s attorney(s), destroyed, or employed
reasonable measures, consistent with this Order, to delete from, degauss, or overwrite on any
computer, hard drive, server, or other electronic storage media, all Confidential Materials to
which they have received access or of which they have received copies. Plaintiff’s and
Defendant-Intervenor’s attorney(s) of record shall maintain the returned Confidential Materials
or the certifications of their destruction from these individuals and provide those items to
Defendant’s counsel after the final termination of this case or the final termination of any related
administrative proceedings, if any, before the United States Department of the Interior,
whichever occurs later.
12.

If Plaintiff or Defendant-Intervenor disputes Defendant’s assertion and

designation that a document, data, and/or other information constitute(s) Confidential Material,
the Plaintiff or Defendant-Intervenor shall notify Defendant in writing and state therein the

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grounds for disputing Defendant’s assertion and designation of confidentiality. Within 30 days of
Defendant’s receipt of such written notification (or a longer period of time, if the parties so
agree), the Parties shall discuss and attempt to resolve the dispute. If the Parties do not resolve
the dispute within 30 days or an extension thereof, Plaintiff or Defendant-Intervenor may file a
motion seeking a ruling from the Court regarding Defendant’s assertion and designation
regarding confidentiality.
13.

Until further order of the Court, this Order shall remain in full force and effect

after the dismissal of the case and regardless of whether the Parties reach settlement.
IT IS SO ORDERED.
___________________________________
William P. Lynch
United States Magistrate Judge

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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.
AFFIDAVIT OF CONFIDENTIALITY
STATE OF _____________________.
1.

My name is ____________________________________________. My home or

office address is _______________________________________________________________.
I am serving as __________________________ (e.g., counsel, an expert, a paralegal, etc.) on
behalf of __________________________________________ in the above-captioned case.
2.

I certify that I have read and understood the entire attached Order, which is

attached hereto and incorporated herewith as Exhibit A. I agree to undertake and abide fully and
completely by the terms of the Order.
3.

In particular, and without limitation of the foregoing, I recognize that the

Confidential Materials to which I have access as part of my work on this case may contain
privileged, proprietary, personal, or otherwise sensitive information; I shall keep confidential the
information contained in the Confidential Materials; I shall not disclose to, reveal to, or discuss
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with any person, in any way, any Confidential Materials, or the facts and information contained
therein, other than as authorized by the attached Order; and I shall not use the Confidential
Materials, or the facts and information contained therein, for any purpose, except as authorized
by the Order.
4.

I agree that, upon (a) the final termination of the above-captioned case, or (b) the

conclusion of my involvement with the above-captioned case, whichever occurs first, I shall
execute an affidavit certifying that I have returned, destroyed, or employed reasonable measures,
consistent with the attached Order, to delete, degauss, or overwrite all such Confidential
Materials, as set forth in the Order.
5.

I understand that, if I disclose or reveal any Confidential Materials, or the facts

and information contained therein, in violation of the attached Order, I may be subject to all
applicable sanctions, including the penalties imposed by the Court for contempt.
______________________________
(NAME OF AFFIANT)

______________________________
(SIGNATURE OF AFFIANT)
SWORN AND SUBSCRIBED BEFORE ME,
THIS _____ DAY OF _________________, ______,

___________________________________
NOTARY PUBLIC

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

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