Free Motion for Protective Order - District Court of Federal Claims - federal

Case 1:01-cv-00570-MCW

Document 169

Filed 08/14/2007

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THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ BLUE LAKE FOREST PRODUCTS, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) __________________________________________ TIMBER PRODUCTS COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant ) __________________________________________) CLR TIMBER HOLDINGS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 01-570C (Judge Williams)

No. 01-627C (Judge Williams)

No. 04-501C (Judge Williams)

DEFENDANT'S UNOPPOSED MOTION FOR A PROTECTIVE ORDER Pursuant to Rule 26(c) of the Rules of the United States Court of Federal Claims, defendant respectfully requests that this Court enter the accompanying proposed protective order prohibiting the disclosure of information in accordance with the terms and conditions set forth in the proposed protective order. Plaintiff consents to this motion.

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The protective order relates to six documents defendant is withholding from production and plaintiff seeks to review each of these documents. The documents contain privileged information for these or other cases for which defendant believes privilege has not been waived. Thus, we request the protective order for the six documents. For the foregoing reasons, defendant respectfully requests that this Court issue the attached proposed protective order. Respectfully submitted,

PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Kathryn A. Bleecker____ KATHRYN A. BLEECKER /s/ Ellen M. Lynch________ ELLEN M. LYNCH Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20005 Tel: (202) 353-7994 Fax: (202) 514-8624 Attorneys for Defendant

Dated: August 14, 2007

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THE UNITED STATES COURT OF FEDERAL CLAIMS __________________________________________ BLUE LAKE FOREST PRODUCTS, INC., ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant. ) __________________________________________) __________________________________________ TIMBER PRODUCTS COMPANY, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant ) __________________________________________) CLR TIMBER HOLDINGS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 01-570C (Judge Williams)

No. 01-627C (Judge Williams)

No. 04-501C (Judge Williams)

PROTECTIVE ORDER In the course of discovery in these consolidated actions, plaintiffs seek to review six documents defendant is withholding from production under the Court's March 29, 2007 Order Granting Plaintiffs' Revised Motion to Compel in Part ("March 29, 2007 Order"). Defendant is 1

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withholding the documents on the grounds that they contain privileged information and are not within the scope of the waivers of the attorney-client and work product privileges the Court found in its March 29, 2007 Order. For information sought by plaintiffs that is or may be considered by defendant privileged or otherwise nonresponsive to the Court's March 29, 2007 Order, defendant is hereby authorized to release to plaintiffs' counsel in these cases the six documents, subject to the terms of this Protective Order. This Protective Order will govern plaintiffs' access to information covered by the terms of this Protective Order. It is therefore ORDERED: 1. For the purpose of this Protective Order, the term "Protected Information" shall include

the six documents described above that defendant believes are nonresponsive to the Court's March 29, 2007 Order, including, but not limited to, information related to this case or other cases for which defendant believes privilege has not been waived. 2. Defendant, at the time of producing documents, shall designate each document that it

reasonably believes to contain Protected Information as described in paragraph 1 of this Protective Order. Defendant, after production, may designate such documents if it determines that Protected Information was inadvertently produced without being properly designated. Such documents (or portions thereof) shall be used only in preparing for and conducting this litigation. 3. Notwithstanding this Protective Order, plaintiffs reserve the right to challenge on any

grounds defendant's designation of documents (or portions thereof) as Protected Information. Should plaintiffs object to defendant's designation of any information as Protected Information,

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counsel for plaintiffs shall notify counsel for defendant of the objection. If the disagreement is not resolved after counsel for the parties confer in good faith, plaintiffs may move the Court for an order that the designated documents (or portions thereof) shall not be protected by this Protective Order. If plaintiffs file such a motion, the Government, as the party requesting protection, shall bear the burden of establishing that information designated as Protected Information is eligible for protection to the extent required by the rules of the Court of Federal Claims, provided, however, that any challenged documents (or portions thereof) shall be treated as Protected Information and subject to the terms of this Protective Order pending resolution by further order of the Court. 4. By producing Protected Information pursuant to this Protective Order, defendant is not

waiving and reserves the right to assert any appropriate privileges and protections with respect to the Protected Information. By receiving Protected Information pursuant to this Protective Order, plaintiffs are not agreeing that any document designated as Protected Information is entitled to any protection from disclosure. Nothing in this Protective Order shall require the production or disclosure of any documents, information, or other matters (including but not limited to Protected Information) as to which defendant, under applicable law or rules of the Court of Federal Claims, may assert a privilege.
5.

Persons receiving or obtaining access to the Protected Information may use such material

solely for the purpose of preparing for and conducting this litigation, or any subsequent appeals in these cases, and not for other purposes. Protected Information shall not be given, shown, made available, discussed, or otherwise communicated in any form to persons to whom disclosure is not authorized herein.

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6.

Access to or disclosure of Protected Information shall be limited to: (a) the Court of

Federal Claims and the Court of Appeals for the Federal Circuit, if these cases are appealed, as well as personnel employed by these courts; (b) counsel for plaintiffs and employees of counsel; and (c) independent experts and consultants (pursuant to paragraph 7), including their clerical personnel, who have been retained by plaintiffs to provide testimony or consultation in connection with this litigation. All individuals having access to Protected Information shall be instructed that their use of the Protected Information is governed by the terms of this Protective Order. 7. If counsel for plaintiffs desires to disclose Protected Information to independent experts

or consultants under paragraph 6 of this Protective Order, counsel shall first obtain a signed statement from such person stating that he or she shall comply with all provisions of this Protective Order. See Exhibit A. 8. Should plaintiffs wish to disclose Protected Information that is subject to this Protective

Order to any additional persons other than those indicated in paragraph 6 of this Protective Order, plaintiffs' counsel will first inform defendant. If defendant consents to disclosure of Protected Information to such additional person(s), counsel for plaintiffs shall first obtain a signed statement from such person stating that he or she shall comply with all provisions of this Protective Order. See Exhibit A. If defendant does not consent to the disclosure, then plaintiffs may, on motion, seek modification of this Protective Order from the Court. The Government shall bear the burden of proving that information designated as Protected Information is eligible for protection to the extent required by the rules of the Court of Federal Claims, provided, however, that any challenged documents (or portions thereof) shall be treated as Protected

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Information and subject to the terms of this Protective Order pending resolution by further order of this Court. 9. Nothing in this Protective Order shall bar or otherwise restrict plaintiffs' counsel from

rendering advice with respect to this litigation to their clients who are plaintiffs in this litigation and, in the course thereof, generally relying upon counsel's examination of the information designated as Protected Information. 10. After termination of these actions or any subsequent appeals, this Protective Order shall

continue to be binding upon the parties hereto and upon all persons to whom Protected Information has been disclosed. 11. In the event of a breach, the party alleging breach shall be entitled to apply to this Court

for appropriate relief. 12. This Protective Order does not constitute a ruling upon the question of whether any

particular record is properly discoverable and does not constitute a ruling upon any potential objection to the discoverability or admissibility of any record.

IT IS SO ORDERED.

MARY ELLEN COSTER WILLIAMS Judge

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EXHIBIT A UNDERTAKING RE: PROTECTIVE ORDER IN BLUE LAKE FOREST PRODUCTS, INC., V. UNITED STATES, FED. CL. 01-570C; TIMBER PRODUCTS COMPANY V. UNITED STATES, FED. CL. 01-627C; AND CLR TIMBER HOLDINGS, INC. V. UNITED STATES, FED. CL. 04-501C.

OF _________________________ I, __________________________, declare:

1. My address is ________________________________________________________ ________________. My present occupation is _______________________________________ _______________________.

2. I have received a copy of the Protective Order in this litigation. I have examined and understand the provisions of the Protective Order.

3. I will comply with all of the provisions of the Protective Order. I will hold in confidence, will not disclose to anyone other than those persons specifically authorized by the Protective Order, and will not copy or use except for the purposes of this litigation, any Protected Information (as defined in the Protective Order) which I receive in this action.

Executed this ___ day of ______, ____, at _______________________________.

I declare under penalty of perjury that the foregoing is true and correct.

___________________________________