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

Case 1:06-cv-00943-LMB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ________________________________)

Case No. 06-943L Judge Lawrence M. Baskir

(Electronically filed 07/03/08)

DEFENDANT'S SUPPLEMENTAL PROPOSED CHANGE TO THE PROVISIONAL PROTECTIVE ORDER ISSUED ON JUNE 25, 2008 On July 3, 2008, the Parties filed their Joint Proposed Changes to the Provisional Protective Order Issued on June 25, 2008. In the process of negotiating the Joint Proposed Changes, Defendant proposed one provision on which the Parties were unable to reach an agreement. Accordingly, Defendant hereby files its last remaining proposed change to the provisional protective order. The provision hereby proposed by

Defendant is intended to supplement the Joint Proposed Changes to the Provisional Protective Order and is not intended to alter or amend any of the proposed changes contained in that proposal. Plaintiff is opposed to the inclusion of the language proposed below.

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Defendant proposes that Section 9 be revised with a second paragraph that reads: Plaintiff assumes all liability for the disclosure of any Protected Information and/or Materials to its designees, including any liability that may arise from any claims brought by individuals or tribes (other than Plaintiff) that may be based on or stem from the disclosure of Protected Information and/or Materials related to those individuals or those other tribes. Defendant (including the Departments of the Interior and of the Treasury) and DOJ shall be held harmless for any disclosures of any Protected Materials and/or Information by Plaintiff or its designees. Defendant requests this provision in order to limit its liability for disclosures of Protected Information by Plaintiff or its designees, over whom Defendant has no control. Given the types of documents Plaintiff is expected to request during discovery in this case, Defendant will be forced to allow Plaintiff and/or its designees to inspect and obtain copies of numerous documents which will likely contain information relating to other tribes or individuals not affiliated with Plaintiff. In the event that Plaintiff or their designees disclose that third-party Protected Information (as defined in the Provisional Protective Order) in some way that affects the rights (whether privacy rights or other rights) of those other tribes or individuals not affiliated with Plaintiff, Defendant seeks to limit its liability to those third parties resulting from actions by Plaintiff or its designees in handling third-

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party Protected Information obtained from Defendant in this action.1 As one specific example, Defendant is concerned with potential liability under the Privacy Act, 5 U.S.C. § 552a, and the language above is intended to protect Defendant from an assertion of liability under that act by a thirdparty whose information has been misused by Plaintiff or its designee. WHEREFORE, Defendant respectfully requests that the Court adopt Defendant's proposed change in Section 9 issuing the "Revised Provisional Protective Order" attached hereto in place of the June 25 Order. This 3rd day of July, 2008. Respectfully submitted, RONALD J. TENPAS Assistant Attorney General /s/ Brian M. Collins Brian M. Collins United States Dept. of Justice Environment Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Tel: (202) 305-0258 Fax: (202) 353-2021

Defendant has entered the proposed language in at least two other protective orders in tribal cases in the Court of Federal Claims. See Ex. A, ¶ 7 (Protective Order entered in Quechan Tribe of the Fort Yuma Indian Reservation v. United States, case no. 06-cv-00888-SGB); Ex. B, ¶ 8 (Protective Order entered in Makah Indian Tribe of the Makah Indian Reservation v. United States, case no. 06-cv-00889-LJB).
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Attorney for Defendant The United States of America OF COUNSEL: JOHN H. MARTIN ANTHONY P. HOANG United States Department of Justice Environment Division Natural Resources Section Washington, D.C. 20044-0663 PAUL SMYTH TOM BARTMAN Office of the Solicitor Department of the Interior Washington, D.C. 20240 TERESA E. DAWSON Office of the Chief Counsel Financial Management Service Department of the Treasury Washington, D.C. 20270

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Case 1:06-cv-00943-LMB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS THE SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, ) ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA ) ) Defendant. ) ________________________________ )

Case No. 06-943L Judge Lawrence M. Baskir Electronically Filed 07/03/08

CERTIFICATE OF SERVICE I hereby certify that the foregoing DEFENDANT'S PROPOSED CHANGES IN THE PROVISIONAL PROTECTIVE ORDER ISSUED ON JUNE 25, 2008 was electronically filed using the Court's ECF system and that the below-listed counsel are ECF users and will be served via the ECF System: KEITH HARPER D.C. Bar No. 451956 E-mail: [email protected] G. WILLIAM AUSTIN D.C. Bar No. 478417 E-mail: [email protected] CATHERINE F. MUNSON Georgia Bar No. 529621 Email:[email protected] Kilpatrick Stockton LLP 607 14th Street, N.W. Washington, D.C. 20005 Phone: (202) 508-5800

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Attorneys for Plaintiff The Salt River Pima-Maricopa Indian Community This 3rd day of July, 2008.

/s/ Brian Collins Brian M. Collins, Esq. United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 663, PHB 3607 Washington, D.C. 20044-0663 Attorney for Defendant

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