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

Case 1:06-cv-00305-MBH

Document 41-2

Filed 08/22/2007

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EXHIBIT A

Case 1:06-cv-00305-MBH

Document 41-2

Filed 08/22/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
)

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. & SUBSIDIARIES,

) ) )
) )

Plaintiff,

No. 06-305 T

v. .
THE UNITED STATES,

) ) ) ) ) ) )

Judge Marian Blank Horn

Defendant.

NON-PARTY AGREED PROTECTIVE ORDER
Plaintiff

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. &

SUBSIDIARIES, Defendant UNITED STATES, and third pary CHASE EQUIMENT

LEASING, INC., (Lk.a. BANC ONE LEASING CORP) (hereinafter "CHASE") stipulate as
follows:
I. Designation of confidential information by CHASE will be made by placing or

affixing on the document in a manner that will not interfere with its legibility the words:

"CONFIDENTIAL: Subject to Protective Order in
Consolidated Edison Company v. United States, No. 06-305T (CLCL)"

CHASE may designate material as confidential only when it in good faith believes the material
contains nonpublic technical, commercial, financial, personal, or business information. Unless

otherwise stated In this stipulation, a designation of confidential information must be made

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prior to, or contemporaneously with, the production or disclosure of that information.
2. Except as otherwise provided in this stipulation, information or documents

designated as confidential by CHASE under this stipulation shall not be used or disclosed by the
remaining parties or their counselor any persons identified in Paragraph 3 of this stipulation for any

purposes whatsoever other than preparng for and conducting the litigation in this lawsuit
(including any appeals).
3. The parties and counsel for the parties shall not disclose or permit the

disclosure of any documents or information designated as confidential under this stipulation
to any other person or entity, except that disclosures may be made in the following

circumstances:
(i) Disclosure may be made to employees of counsel for the paries, or to

employees of the paries, who have direct functional responsibility, or
supervisory authority, for the preparation and trial of the above-

captioned lawsuit. Any such employee to whom counsel for the parties makes a disclosure must be advised of, and become subject to, the provisions of this stipulation requiring that the documents and information be held in confidence.
(ii) Disclosures may be made to the Court and its employees.

(iii) Disclosure may be made to court reporters engaged for depositions and

those persons, if any, specifically engaged for the limited purpose of making photocopies of documents. Prior to disclosure to any such court reporter or person engaged in making photocopies of documents, such person must agree to be bound by the terms of this stipulation.

(iv) Disclosure may be made to eonsultants, Investigators, or experts
(hereinafter referred to eollectively as "experts") employed by the parties or counsel for the parties to assist in the preparation and trial

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of the above-captioned lawsuit. Prior to disclosure to any expert, the expei1 must be infOimed of and agree in writing to be subject to the

provisions of this stipulation requiring that the documents and information be held In confidence. Each party shall certify to the other party that each expert to whom it has disclosed information that is confidential under this stipulation has so agreed. Such certification
shall be delivered to the other pary at the close of expert witness discovery.

(v) aisclosures may be made to any fact witnesses or potenti~1 fact
witnesses when a good faith determination is made that the documents would be relevant to their testimony or potential testimony. Such witnesses shall be informed of this Order, that it applies to them and be given a copy of the Order if requested.
4. Except as provided otherwise in this stipulation, counsel for the parties shall keep

all documents designated as confidential which are received under this stipolation secure within

their exclusive possession and must place such documents in a secure area.

5. All copies, duplicates, extracts, summaries, or descriptions (hereinafter

referred to collectively as "copies") of documents or information designated as confidential under

this rule, or any portion thereof, must be immediately affixed with the words:

"CONFIDENTIAL: Subject to Protective Order in Consolidàted Edison Company v. United States, No. 06-305T (Ct.CI.)"
if those words do not already appear and shall be treated as confidential under this stipulation.
6. Nothing in this stipulation limits the right of any party to seek any protection it
deems necessary for any documents or information, in accordance with Rule of the United States
Court of Federal Claims 26(c).

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7. Any party may serve a written objection to any designation of confidentiality made

by CHASE. This objection shall specifically identify the material or information to which the
objecting pary wishes to have the designation removed. Within fourteen (14) days of receipt of
such objection, CHASE (i) shall review the material to which the objection applies, (ii) notify

the objecting party in writing whether CHASE will agree to remove the designation as requested,

and (iii) if, it will not agree to remove the designation, CHASE wil state with specificity its

reasons for not agreeing. If an agreement cannot be reached, CHASE may move for a ruling from
the Court, designating the material as confidential or for other similar protection, within fourteen
(14) days of the expiration of

the fourteen (14) day period referenced above. The material at issue

will be treated as confidential until the Court decides the motion. If the parties disagr about

whether the information is confidential and CHASE does not timely move the Court, then the
document is deemed to be not confidentiaL.
8. To the extent that a party intends to file any document or information with the

Court that reveals or tends to reveal information that CHASE has designated as confidential
and for which the Court has not yet had reason to consider, the filing party must notify CHASE
fourteen (14) days prior to the filing to give CHSE an opportunity to prepare and file a motion

and order to seal that information. The parties agree not to argue for a favorable ruling against

one another for failure to attach a document or otherwise identify information identified by
CHASE as confidential pending a determination by the Court regarding the confidentiality of

the information.

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9. Nothing in this stipulation shall prevent disclosure of any confidential information if the designating party consents, in writing, to the disclosure.
10. Notwithstanding any provision of this stipulation, counsel for the United States

may disclose confidential information or documents to other government Agencies or
Departments provided 'that such disclosure is not in contravention of 26 U.S.C. § 6103. If any

confidential information is disclosed to other governmental Agencies or Deparments, counsel
for the United States shall notify CHASE of such disclosure in writing and provide a list of the

Agencies and/or Deparments and the Bates numbers of the documents disclosed.
i i. Notwithstanding any provision of this stipulation, the parties may disclose

confidential information or documents if necessar to comply with a subpoena or court
order, whether or not originating with the Court in this captioned stipulation. However, within seven days of when it is recognized that disclosure of confidential information or documents is

required to comply with a subpoena or court order, the pary shall give written notice to CHASE

of the potential disclosure.

12. Within thirty (30) days of the conclusion of the above-captioned lawsuit, and
except to the extent that information is required to be maintained by federal law or a Department

of Justice (or Tax Division) directive or order, materials designated by CHASE as
confidential (and any copies thereof) that are in the possession, custody, or control of the parties
to the lawsuit or their counsel shall be either (i) returned to the party who designated the materials

as confidential or (ii) destroyed, in which case the destroying party must provide a certificate --

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signed by the destroying party's counsel -- to CHASE that certifies that all materials designated
by a party as confidential (and any copies thereof) that are in the possession, custody, or control

of the opposing pary have been destroyed. This provision does not apply to confidential
information or documents disclosed pursuant to Paragraphs 9 or i i of this stipulation.
13. Nothing in this stipulation shall be grounds for excluding a document from

evidence.

Respectfully submitted this

IT is SO ORDERED.

Dated:

By the COUi1:

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Stipulated and Agreed to:

hase Equipment Leasing, Inc
f.k.a. Banc One Leasing Corp.

¿~~
DA VID N. GEIER, Trial JOSEPH A. SERGI, Trial Attorney ADAM R. SMART, Trial Attorney United States Department of Justice Tax Division Court of Federal Claims Section P.O. Box 26 - Ben Franklin Station

DANIEL A. DUMEZICH, Esquire Mayer, Brown. Rowe & Maw, LLP Drive 71 Sòuth Wacker Chicago, Ilinois 60606 (312) 701-7822 phone

Washington, D.C. 20044 (202) 616-3448 phone

Ð",) ./r J#4 g)
DA VID ABBOTT Mayer, Brown, Rowe & Maw, LLP 1675 Broadway New York, NY 10019-5820 (212) 506-2642

p4/d W~~ (';)
RICHARD T. MotRISON Assistant Attorney General
DA VID GUSTAFSON

Chief, Court of Federal Claims
Attorneys for Defendant

THOMAS KITTLE-KAMP Mayer, Brown, Rowe & Maw, LLP Drive 71 South Wacker Chicago, Ilinois 60606
(3 t2) 701-7028 phone

At/orneysfor Plain/if(

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CONFIDENTIALITY AGREEMENT
I have received and read all the terms of

the Stipulation and Protective Order in the action

captioned Consolidated Edison Companv of New York. Inc. & Subsidiaries v. United States,
No. 06-305T (Ct. CI.), and understand and hereby agree to be bound by all the terms thereof with respect to the use and disclosure of inforration and materials designated as "CONFIDENTIAL:

Subject to Protective Order in Consolidated Edison Companv v. United States, No. 06-305T
(Ct.CL)." I further expressly agree that I will not in any way use, disclose, discuss, summarize,

reveal or rcfer to any inforration or material designated "CONFIDENTIAL: Subject to
Protective Order in Consolidated Edison Companv v. United States, No. 06-305T (Ct.CI.)" for
any purpose whatsoever other than in assisting in the conduct of the above-referenced action.

Dated:

Signature
Print Name

Address and Phone Number of Company or Firr: