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

Case 1:00-cv-00697-JFM

Document 241

Filed 06/09/2006

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 00-697C (Senior Judge Merow)

DEFENDANT'S UNOPPOSED MOTION FOR ENTRY OF ORDER REGARDING PROPRIETARY DOCUMENTS AND SECURITY MATERIALS Defendant, the United States, respectfully submits this unopposed motion and proposed order seeking special protection regarding proprietary documents developed and created by Holtec International, Inc. ("Holtec") and to secured information in documents provided by the Nuclear Regulatory Commission ("NRC"). Counsel for the Government has spoken with counsel for the plaintiff, Wisconsin Electric Power Company ("WEPCO"), and WEPCO's counsel has represented that it does not oppose this motion. The Government and WEPCO have previously sought to have the protective order modified in this case to address certain proprietary materials that WEPCO is producing. Pursuant to a joint stipulation, the Court granted a request for special protection for Holtec's computer software rack price estimating software on May 31, 2006. On June 5, 2006, WEPCO filed an unopposed motion requesting the Court to vacate the May 31, 2006 order and issue a new order protecting additional Holtec proprietary information, including: (1) the computer software rack price estimating program; (2) a computer software rack weight estimating program; and (3) a generic wet storage specification (collectively, "Proprietary Documents"). That motion is currently pending before the Court.

Case 1:00-cv-00697-JFM

Document 241

Filed 06/09/2006

Page 2 of 5

Pursuant to WEPCO's discovery requests, the Government has sought to gather information that is in the custody of the NRC. Some of the documents requested by WEPCO are contained in a database that the NRC keeps from public view for national security or other reasons. Consequently, the parties have agreed that certain materials that the NRC has informed us must not be made available to the public at large and over which it needs to maintain control and accountability (hereafter referred to as "Security Materials") may be released only upon the limited distribution to designated individuals in accordance with a modified protective order in this case. This modification would also limit distribution of the particular documents designated as Security Materials to those involved in this particular case, restricting the general right under the existing protective order to share documents in spent nuclear fuel cases. Because the Security Materials that the NRC has currently designated for production are related to WEPCO's Point Beach nuclear reactor, they do not appear relevant to other spent fuel cases pending in this Court. Accordingly, the Government requests that the Court vacate the order issued on May 31 2006. Pursuant to paragraph 7 of the Protective Order entered in this case on May 9, 2002, the Government requests and that the following protection with respect to the Proprietary Documents and to Security Materials: Any expert or consultant that views or uses the Proprietary Documents or Security Materials must execute an appropriate acknowledgment on one of the forms attached (Attachments 1 and 2), affirming that: a. the expert or consultant will use the Proprietary Documents and/or Security Materials solely for consideration in connection with the instant action (Wisconsin Electric Power Company v. United States, 00-697C); the expert or consultant will not disclose the Proprietary Documents and/or Security Materials to any third party or make any other use of the -2-

b.

Case 1:00-cv-00697-JFM

Document 241

Filed 06/09/2006

Page 3 of 5

Proprietary Documents and/or Security Materials, including any commercial use; and c. upon final resolution of the action Wisconsin Electric Power Company v. United States, 00-697C, the Proprietary Documents must be provided back to plaintiff, Wisconsin Electric Power Company, for return to Holtec; the Security Materials must be provided back to the Government; the Proprietary Documents must be removed from the computers and from any other data recording devices used by the Government and its expert or consultants; the Security Materials must be removed from the computers and from any other data recording devices used by the WEPCO and its expert or consultants.

The parties will provide copies of each of the executed acknowledgments to opposing counsel within ten days of execution. A proposed order is attached as part of this motion. (Attachment 3). Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director

-3-

Case 1:00-cv-00697-JFM

Document 241

Filed 06/09/2006

Page 4 of 5

OF COUNSEL: JANE K. TAYLOR Office of General Counsel U.S. Department of Energy 1000 Independence Ave., S.W. Washington, D.C. 20585

June 9, 2006

s/ Kevin B. Crawford KEVIN B. CRAWFORD Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Phone: (202) 305-9640 Fax: (202) 307-2503 Attorneys for Defendant

-4-

Case 1:00-cv-00697-JFM

Document 241

Filed 06/09/2006

Page 5 of 5

CERTIFICATE OF FILING I hereby certify under penalty of perjury that on June 9, 2006 a copy of this "DEFENDANT'S UNOPPOSED MOTION FOR ENTRY OF ORDER REGARDING PROPRIETARY DOCUMENTS AND SECURED MATERIALS" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ Kevin B. Crawford

Case 1:00-cv-00697-JFM

Document 241-2

Filed 06/09/2006

Page 1 of 3

Attachment 1

Case 1:00-cv-00697-JFM

Document 241-2

Filed 06/09/2006

Page 2 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 00-697C (Senior Judge Merow)

PROPRIETARY DOCUMENTS ACKNOWLEDGMENT 1. 2. My name is My business address is . 3. My present employer is . 4. My present occupation or job description is . 5. I have received a copy of the order entered by the Court in connection with the .

above-captioned matter pursuant to the Unopposed Motion for Entry of Order Regarding Protection of Proprietary Documents and Secured Materials relating to the Holtec International, Inc. ("Holtec") (1) computer software rack price estimating program, (2) computer software rack weight estimating program, and (3) generic wet storage specification (collectively, the "Proprietary Documents").

Case 1:00-cv-00697-JFM

Document 241-2

Filed 06/09/2006

Page 3 of 3

6.

I have carefully read and understand the provisions of the Order granting the Unopposed

Motion for Entry of Order Regarding Protection of Proprietary Documents and Secured Materials. 7. I certify that I am eligible to have access to the Confidential Material under paragraph 4

of the Protective Order. 8. I will comply with all of the provisions of the Order granting the Unopposed Motion for

Entry of Order Regarding Protection of Proprietary Documents and Secured Materials. 9. I will use the Proprietary Documents solely for consideration in connection with the

action Wisconsin Electric Power Company v. United States, 00-697C. 10. I will not disclose the Proprietary Documents to any third party or make any other use of

the Proprietary Documents, including any commercial use. 11. Upon final resolution of the action Wisconsin Electric Power Company v. United States,

00-697C, I will return any originals or copies of the Proprietary Documents to the Government for return to Plaintiff Wisconsin Electric Power Company for return to Holtec, and I will remove the Proprietary Documents from the computers and any other data recording devices used by the Government and its experts or consultants.

_______________________________ (signature)

DATED: _______________________

-2-

Case 1:00-cv-00697-JFM

Document 241-3

Filed 06/09/2006

Page 1 of 3

Attachment 2

Case 1:00-cv-00697-JFM

Document 241-3

Filed 06/09/2006

Page 2 of 3

IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 00-697C (Senior Judge Merow)

SECURITY MATERIALS ACKNOWLEDGMENT 1. 2. My name is My business address is . 3. My present employer is . 4. My present occupation or job description is . 5. I have received a copy of the Order entered by the Court in connection with the .

above-captioned matter pursuant to the Unopposed Motion for Entry of Order Regarding Protection of Proprietary Documents and Secured Materials relating to documents contained in a database that the Nuclear Regulatory Commission ("NRC") keeps from public view for national security or other reasons which must not be made available to the public at large and over which the NRC needs to maintain control and accountability (hereafter referred to as "Security Materials").

Case 1:00-cv-00697-JFM

Document 241-3

Filed 06/09/2006

Page 3 of 3

6.

I have carefully read and understand the provisions of the Order granting the Unopposed

Motion for Entry of Order Regarding Protection of Proprietary Documents and Secured Materials. 7. I certify that I am eligible to have access to the Confidential Material under paragraph 4

of the Protective Order. 8. I will comply with all of the provisions of the Order granting the Unopposed Motion for

Entry of Order Regarding Protection of Proprietary Documents and Secured Materials. 9. I will use the Security Materials solely for consideration in connection with the action

Wisconsin Electric Power Company v. United States, 00-697C. 10. I will not disclose the Security Materials to any third party or make any other use of the

Security Materials, including any commercial use. 11. Upon final resolution of the action Wisconsin Electric Power Company v. United States,

00-697C, I will return any originals or copies of the Security Materials to the Government and I will remove the Security Materials from the computers and any other data recording devices used by Wisconsin Electric Power Company and its experts or consultants.

_______________________________ (signature)

DATED: _______________________

-2-

Case 1:00-cv-00697-JFM

Document 241-4

Filed 06/09/2006

Page 1 of 3

Attachment 3

Case 1:00-cv-00697-JFM

Document 241-4

Filed 06/09/2006

Page 2 of 3

PROPOSED ORDER IN THE UNITED STATES COURT OF FEDERAL CLAIMS WISCONSIN ELECTRIC POWER COMPANY, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) ) ORDER Pursuant to the unopposed motion for entry of order regarding proprietary documents and secured materials, the May 31, 2006 Order granting additional protection to the computer software program developed by Holtec International, Inc. ("Holtec") is hereby vacated. Additionally, paragraph 7 of the Protective Order, entered in this case on May 9, 2002, is amended to provide special protection regarding the proprietary documents developed and created by Holtec (collectively, the "Proprietary Documents") and to provide special protection to the secured information in documents provided by the Nuclear Regulatory Commission (collectively, the "Security Materials"). In order to protect the information in the Proprietary Documents and Security Materials, any expert or consultant that views or uses the Proprietary Documents or Security Materials must execute an acknowledgment affirming that: a. the expert or consultant will use the Proprietary Documents and/or Security Materials solely for consideration in connection with the instant action (Wisconsin Electric Power Company v. United States, 00-697C); the expert or consultant will not disclose the Proprietary Documents and/or Security Materials to any third party or make any other use of the

No. 00-697C (Senior Judge Merow)

b.

Case 1:00-cv-00697-JFM

Document 241-4

Filed 06/09/2006

Page 3 of 3

Proprietary Documents and/or Security Materials, including any commercial use; and c. upon final resolution of the action Wisconsin Electric Power Company v. United States, 00-697C, the Proprietary Documents must be provided back to plaintiff, Wisconsin Electric Power Company, for return to Holtec; the Security Materials must be provided back to the Government; the Proprietary Documents must be removed from the computers and from any other data recording devices used by the Government and its expert or consultants; the Security Materials must be removed from the computers and from any other data recording devices used by the WEPCO and its expert or consultants.

The parties will provide copies of each of the executed acknowledgments to opposing counsel within ten days of execution.

James F. Merow Senior Judge

-2-