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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS IVAN G. RICE, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-187C Senior Judge James F. Merow

DEFENDANT'S MOTION FOR ENTRY OF A PROTECTIVE ORDER Pursuant to Rule 26(c) of the Rules of the United States Court of Federal Claims, defendant, the United States ("the Government"), hereby moves for entry of the Protective Order that is attached hereto as Exhibit A since proprietary data is potentially pertinent. Defendant's counsel discussed this motion with the plaintiff's counsel. Plaintiff's counsel indicated that plaintiff can agree with all proposed terms except those of a paragraph I that define "Qualified Person" but do not include the plaintiff, Ivan G. Rice, as a Qualified Person. Accordingly, the plaintiff will oppose this motion. In this action, the plaintiff seeks compensation pursuant to 28 U.S.C. §§ 1491(a) and 1498 (a) for both an alleged Fifth Amendment taking and infringement of Claim 1 of United States Patent Reexamination Certificate No. B1 4,896,499 (the reexamined `499 patent) arising from the assembly, test and operation of the WR-21 Intercooled Recuperated (ICR) Gas Turbine Engine System (the accused system) in Philadelphia, Pennsylvania, in 1999. Mr. Rice had previously filed suit in this Court, No. 97-246C, alleging that the accused system infringed the reexamined `499 patent. This first suit was voluntarily dismissed by plaintiff after initial discovery. Since proprietary data was involved in the first suit, after a hearing, the Court entered a Protective Order in accord with its ruling reported in Rice v. United States, 39 Fed. Cl. 747 (1997). A copy of the Order entered in the

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first suit is attached as Exhibit B. The terms of the Protective Order sought (Exhibit A) are substantially identical to the terms of the previous Order of Exhibit B.1 The accused system was designed and developed by the Sunnyvale, California, facility of defendant's prime contractor, Northrop Grumman Corporation. The principal subcontractors for components of the accused system were AlliedSignal, Inc., of Torrance California (later Honeywell International, Inc.); CAE Electronics, Ltd., Quebec, Canada; and Rolls-Royce Industrial and Marine

Exhibit A, page 1, first paragraph, first sentence: The first sentence of the first paragraph of Exhibit B has been modified to read: "This Protective Order is entered pursuant to Rule 26(c) of the Rules of the United States Court of Federal Claims (`RCFC') for protecting Restricted Information and Proprietary Information, which are collectively defined below as Protected Information. " This change clarifies that the Court is entering the Protective Order and indicates that the definition of "Protected Information incorporates each of the definitions of "Restricted Information" and "Proprietary Information" as in paragraphs F, G and H at pages 3 and 4 of both Exhibits A and B. Exhibit A, page 1, first paragraph: The following second sentence has been added to the first paragraph on page 1 of Exhibit B: "This Protective Order shall apply to all Protected Information previously provided by the parties or Supplying Owners in the prior action Ivan G. Rice v. United States, Court of Federal Claims No. 97-246 C." Exhibit A, page 3, in last sentence of the definition of "documents" in paragraph C: The terms "statements" and "exhibits" have been added to the last sentence of paragraph C in Exhibit B, page 3, at so that it reads: "Documents shall also include statements, exhibits, legal briefs and memoranda filed with this Court." Exhibit A, page 3, in paragraph F defining "Restricted Information": For accuracy, the phrase "as changed August 18, 1995" has been added in the first incomplete sentence on page 4 of Exhibit B after "Withholding of Unclassified Technical Data from Public Disclosure." Exhibit A, pages 3, 5 and 7: The following underlined words at pages 4, 6, and 9 of Exhibit B have been italicized: "See" in paragraph F, "e.g.," in paragraph I.1., and "not" in paragraph 6. Exhibit A. page 8: In the first sentence of paragraph 9 at page 10 of Exhibit B, the word "residence" has been changed to "address." To avoid confusion, the defendant's signature block on page 20 of Exhibit B and the twopage certificate of service have been eliminated in the Exhibit A proposed order. -2-

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Gas Turbines Limited, Ansty Coventry, England. L-3 Communications MAPPS has recently acquired CAE's Marine Controls division, and asserts that it may be the successor in interest to proprietary information concerning the accused system. Most of the data supplied to the

Government for the accused system is marked with legends that restrict further dissemination and was submitted in confidence. To expedite consideration of the proposed order, the defendant's counsel has served or is concurrently serving each of the above suppliers with copies of the Amended Complaint, Answer, and a copy of this motion and its attachments. The parties agree that a Protective Order is necessary in this case and agree upon essentially all of its terms, but disagree as to whether Mr. Ivan Rice should be a "Qualified Person," who would be given access to "Protected Information." The definition of "Protected Information" includes the potentially pertinent proprietary information that was submitted in confidence to the Government by its suppliers. The proposed Protective Order of Exhibit A expressly provides that Protected Information may be reviewed by plaintiff's counsel and plaintiff's independent experts that are acceptable to both parties and the supplying owners. See Exhibit A, Definition ¶¶ I(1) and (6) at p. 4 and ¶ 9 at p. 8-9. The "Supplying Owners" (or their successors in interest) oppose giving Mr. Ivan G. Rice access to their proprietary information.2

Each of the following has expressly indicated in the indicated attached Exhibits C through G that Mr. Rice should not be a "Qualified Person" with respect to its proprietary information under the Protective Order to be entered in this case: Northrop Grumman Corporation (by its attached letter dated June 22, 2005, from Linda T. Maramba, Senior Counsel- - Litigation, that is marked as Exhibit C); Rolls-Royce Industrial & Marine Gas Turbines, Ltd. (by its attached letter dated June 23, 2005, from its outside counsel, James A. Oliff, that is marked as Exhibit D); Honeywell International, Inc. (by its attached letter dated June 9, 2005, from Mark J. Larsen, Vice President and Chief Litigation Counsel of Honeywell Aerospace), that is marked as Exhibit E); and L-3 Communications MAPPS (by the letters dated May 26, 2005, from Christopher Cambria, Vice President and General Counsel (of the parent corporation) and Bruce Latimer, Vice President of L-3 MAPPS and General Counsel of L-3 Canada) that are marked as Exhibits F and G. -3-

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The issue as to whether Mr. Rice should be a Qualified Person under the Protective Order was previously addressed by this Court in Case No. 97-246C. See Rice v. United States, 39 Fed. Cl. 747 (1997). Therein, after briefing by both parties and several of the government's suppliers, this Court denied Mr. Rice's request to review all protected information in the case. After discussing its terms, the Court entered the protective order submitted by the defendant and ruled that plaintiff's counsel would be allowed to move the Court to designate Mr. Rice as an independent expert "with respect to specific items of protected information" after making a showing that no outside expert could be retained for that capacity by plaintiff's counsel. Rice, 39 Fed. Cl. at 748, 752. As in the previous Rice case, the proposed Protective Order allows the plaintiff's counsel and acceptable independent experts to review Protected Information, thereby preserving Mr. Rice's ability to present his case while at the same time protecting proprietary information. Accordingly, entry of the attached Exhibit A Protective Order is necessary in order to permit the parties to conduct discovery in an orderly fashion. During discovery the parties may seek production of documents containing protected information including proprietary information. The proposed Protective Order has provisions that enable nonparty owners of proprietary information, such as the suppliers of the accused ICR system and its components, to protect their interests. It prescribes the manner in which protected information may be used in this case.

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For the above-stated reasons, the defendant respectfully requests that the attached Protective Order of Exhibit A be entered. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JOHN FARGO Director July 7, 2005 s/B. Frederick Buchan, Jr. B. FREDERICK BUCHAN, JR. Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Phone: (202) 307-0335 Facsimile: (202) 307-0345 [email protected] Attorneys for the United States

OF COUNSEL: KEN B. BARRETT Attorney Department of Justice

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EXHIBIT A

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS IVAN G. RICE, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-187C Senior Judge James F. Merow

PROTECTIVE ORDER This Protective Order is entered pursuant to Rule 26(c) of the Rules of the United States Court of Federal Claims ("RCFC") for protecting Restricted Information and Proprietary Information, which are collectively defined below as Protected Information. This Protective Order shall apply to all Protected Information previously provided by the parties or Supplying Owners in the prior action, Ivan G. Rice v. United States, Court of Federal Claims No. 97-246 C. This Protective Order does not specify the procedures under which access to classified information is to be determined. Access to classified information is to be determined in accordance with existing national security laws and regulations. However, access to classified information containing Proprietary Information may not be denied to any Qualified Person (as defined herein) who is otherwise authorized under the applicable national security laws and regulations to receive such classified information. Accordingly, IT IS HEREBY ORDERED that the following provisions shall govern the conduct of further proceedings in this action.

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Definitions and Comments A. The term "party" shall mean, individually or collectively, Ivan G. Rice ("Rice") and

the Government, and any other entity who appears in this lawsuit as a third party. B. The term "Owner" is a person or entity who is not a party and owns or possesses

Restricted Information or Proprietary Information that is relevant to the subject matter of this litigation or is reasonably calculated to lead to the discovery of admissible evidence. The term "Supplying Owner" is an Owner whose Protected Information is within the possession or control of a party. C. The term "document" includes documents as defined in RCFC 34(a) and shall mean,

without limitation, any document, originals and copies, and is used in a comprehensive sense to include the following items, whether printed, recorded, microfilmed, electronically stored, electrooptically stored, or reproduced by any process, or written or produced by hand, and whether or not claimed to be privileged, confidential or personal: letters; memoranda; reports; records; agreements; working papers; communications (including intradepartmental communications); correspondence; summaries or records of personal conversations; diaries; forecasts; statistical statements; graphs; laboratory or research reports and notebooks; charts; plans; blueprints; drawings; photographs; computer software, programs and printouts; minutes or records of meetings; minutes or records of conferences; expressions or statements of policy; lists of persons attending meetings or conferences; reports or summaries of interviews; reports or summaries of investigations; opinions or reports of consultants; patent appraisals; opinions of counsel; reports or summaries of either negotiations or preparations for such; brochures; pamphlets; advertisements; circulars; press releases; drafts of any documents; books; instruments; accounts; purchase orders; bills of sale; invoices; tapes, computer discs and all other materials of any tangible medium of expression; original or preliminary notes and

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any compilations, listings, summaries, or computer printouts of any of the above. Any comment or notation, appearing on any document, and not a part of the original text, is to be considered a separate "document." Documents shall also include statements, exhibits, legal briefs and

memoranda filed with this Court. D. The term "communication" shall mean any exchange of information other than in

writing, including, without limitation, telephone conversations, oral conversations and meetings. E. The term "thing" shall mean, without limitation, any tangible thing containing or

exhibiting any information or communication or having the ability to convey or exhibit the same through any medium whatsoever. F. The term "Restricted Information" shall mean information, in whatever form, that

is unclassified technical data with military or space application in the possession of, or under the control of, a Department of Defense (DoD) Component, and so designated, and which may not be disclosed pursuant to 10 U.S.C. § 130 and/or DoD Directive No. 5230.25, dated November 6, 1984, entitled "Withholding of Unclassified Technical Data From Public Disclosure" as changed August 18, 1995. The term "Restricted Information" includes, but is not limited to, information relating to equipment cataloged in the Militarily Critical Technologies List, or information categorized as "FOR OFFICIAL USE ONLY (FOUO)," or information that may not be exported lawfully without approval, or authorization or license. See 22 U.S.C. §§ 2751-2799; 50 U.S.C. App. §§ 2401-2420. G. The term "Proprietary Information" shall mean information, in whatever form,

produced by a party or Supplying Owner that contains trade secrets, technical know-how, other business data or any other information which, at the time the information is requested, is maintained in confidence or in which the party or Supplying Owner maintains a proprietary interest. For

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example, documents already marked with a suitable proprietary information legend by a Supplying Owner. The parties and the Supplying Owners shall act in good faith in designating information as "Proprietary Information." H. The term "Protected Information" shall mean Restricted Information or Proprietary

Information, or any combination thereof. I. The term "Qualified Person" shall mean any one of the following: (1) the attorney of record and other outside attorneys for Rice, their legal assistants and support staff members; (2) the attorney of record for the Government and other attorneys of the Department of Justice, their legal assistants and support staff members; (3) counsel for each department or agency of the Government involved with this lawsuit, their legal assistants and support staff members; (4) the outside attorneys of a Supplying Owner, their legal assistants and support staff members; (5) employees of the parties or a Supplying Owner who already have had access to the specified Protected Information as part of their employment duties; (6) designated independent experts, who are neither employed by the parties nor having familial relationships with the parties either by blood or law, retained by each party solely for the purpose of assisting in this action; and (7) any other person agreed to by the parties and/or Supplying Owner, or allowed by the Court. J. The word "any" shall include both "any" and "every."

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K.

The words "and/or" shall be construed conjunctively and disjunctively to bring within

the ambit of this Protective Order the necessary documents and/or things, and information derived therefrom. L. The singular shall include the plural and vice versa, and the words in any gender shall

include the other gender. I. Identification and Marking of Protected Information 1. Any document or other tangible thing that contains or reveals Protected Information

shall be labeled with the legend "PROTECTED INFORMATION, COURT OF FEDERAL CLAIMS NO. 05-187C, SUBJECT TO PROTECTIVE ORDER" or a marking of like import. A party or a Supplying Owner may place the appropriate Protected Information marking (e.g., "Proprietary Information" or "Restricted Information") on any document or thing, at a conspicuous location thereon, that the party or Supplying Owner has determined to contain Protected Information. As for documents, such marking shall appear at least on the first page of each document believed to contain such Protected Information. Any Protected Information that cannot be conveniently labeled as such shall be so designated by the party or Supplying Owner by serving a written notice to the receiving party. In addition to the "Restricted" or "Proprietary" markings, the producing party or Supplying Owner may add further designations such as "FOR OFFICIAL USE ONLY," "FOUO," "LIMITED," "LIMITED DATA RIGHTS," "RESTRICTED RIGHTS," "Business Sensitive," or words of similar import, or export control markings. 2. A party or a Supplying Owner may place the appropriate Protected Information

marking on any deposition exhibit, deposition transcript, trial exhibit, or trial transcript, or portions thereof, at a conspicuous location thereon, that the party or Supplying Owner has determined to contain Protected Information. Such marking shall appear on each page believed to contain such

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Protected Information. Information may be so designated by stating it on the record at the time of the deposition or trial, or by serving a written notification on the other party and/or the Supplying Owner within thirty (30) days of the receipt of the transcript or exhibit by counsel for the designating party or Supplying Owner. A copy of such written notification, which identifies the specific pages and lines of the transcript or exhibit that contain Protected Information, shall be attached to the face of the transcript or exhibit and each copy of the transcript or exhibit in the possession, custody or control of any Qualified Person. All information disclosed during a deposition shall be treated as Protected Information until at least thirty (30) days after the transcript has been received by counsel for the designating party or Supplying Owner. The witness may review the transcript of his or her testimony at any time. 3. When a party initially produces documents or things for inspection, no marking need

be made in advance of the inspection. For the purposes of the inspection, all documents shall be treated as containing Protected Information. After the receiving party has selected specified documents for copying or things for further inspection, the producing party shall appropriately mark the selected documents or the selected things before they are copied or further inspected. 4. Qualified Persons shall be permitted to inspect documents or things in the possession

of defendant which may contain Proprietary Information of a Supplying Owner. For the purposes of the inspection, all documents or things shall be treated as containing Protected Information. After such Qualified Persons have selected specified documents for copying or things for further inspection, defendant shall serve a written notification on the Supplying Owner within ten (10) days of such inspection. The notified Supplying Owner, through its outside or in-house counsel, may then inspect such documents or things originated from that Supplying Owner, and appropriately mark the selected documents or things within twenty (20) days after notification. In the event that

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the selected documents or things contain information proprietary to more than one Supplying Owner, only Qualified Persons of each Supplying Owner can inspect such selected documents or things. If the notified Supplying Owner does not inform defendant as to its objections within twenty (20) days after notification, the photocopies of the selected documents shall be forwarded to such Qualified Persons and the selected things permitted to be further inspected by such Qualified Persons. Defendant is obligated to make a reasonable effort to locate the Supplying Owner(s) of the selected documents or things. As for the selected documents or things originated from those Supplying Owner(s) who cannot be located, such documents or things shall be treated as containing Protected Information, and forwarded to or further inspected by such Qualified Persons, respectively. II. Disclosure of Protected Information 5. The parties, Supplying Owners, and Qualified Persons shall not disclose any

Protected Information obtained in the course of this litigation, and information derived therefrom, to anyone other than to a Qualified Person and in accordance with the provisions set forth in this Protective Order. This Protective Order pertains to disclosure by a recipient of the Protected Information and does not limit the disclosure of the Protected Information by the producing party or Supplying Owner that originally designated such information, documents or things as containing Protected Information. 6. Each person receiving Protected Information shall be informed of this Protective

Order and shall signify assent to the terms of this Protective Order by executing, prior to the receipt of the Protected Information, an acknowledgment statement (similar to that in Form A attached hereto) which indicates that he has read this Protective Order and agrees to be bound in all respects by its terms. The following Qualified Persons need not execute an acknowledgment statement:

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(i) the attorney of record and other outside attorneys for Rice, (ii) the attorney of record for the Government and other attorneys of the Department of Justice, (iii) counsel for each department or agency of the Government involved in this lawsuit, (iv) the outside attorneys for the Supplying Owners, and (v) the legal assistants and support staff members for the above persons. Executed acknowledgment statements shall be retained by the attorneys of record. 7. The restrictions and obligations relating to Proprietary Information shall not apply

to any information which is not so marked, except as set forth in paragraph 4, and shall not apply to any information which the parties or the appropriate Supplying Owner agree, or the Court rules, is public knowledge, or becomes public knowledge other than as a result of disclosure by the recipient or which has come or shall come into possession of the recipient without any obligation of confidentiality other than as a result of disclosure as Proprietary Information in this litigation. 8. A recipient of particular Protected Information and any Qualified Person may discuss

with any other person such Protected Information only to the extent that said person has already had access to such Protected Information, independent of any disclosure as Protected Information in this litigation. Likewise, this Protective Order shall not prohibit any person from reviewing particular Protected Information to the extent that said person had a right to review such Protected Information independent of any disclosure of it as Protected Information in this litigation. 9. In connection with independent experts, each party shall disclose in writing to the

other party and each Supplying Owner the identity, address and curriculum vitae of each independent expert at least fourteen (14) days prior to any disclosure of any information coming under this Protective Order to such expert. Such curriculum vitae shall disclose all current and former employers of the independent expert. If a party or a Supplying Owner objects to the selected expert, it shall make its objections known in writing within fourteen (14) days of notification. If

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agreement on the independent expert cannot be reached, the objecting party or Supplying Owner shall have ten (10) days after making its objections known to seek relief or a protective order from the Court. In such case, no disclosure of the Protected Information shall be made to the expert until the Court has ruled on the objecting party or Supplying Owner's motion for relief or for a protective order. If the objecting party or Supplying Owner fails to seek relief or a protective order within that time, the objection shall be deemed waived and such Protected Information may be disclosed to the independent expert subject only to this Protective Order. 10. A document that contains or reveals Protected Information may be shown to any

person indicated in such document to be its originator or author, or the recipient of a copy. 11. Protected Information may be disclosed to a witness testifying under oath if (a) the

witness was an officer, director, or employee of the party or Supplying Owner who produced such Protected Information and (b) the witness had actual access to such Protected Information during the period of his or her service or employment. 12. Protected Information may be disclosed to stenographic reporters, official court

reporters, and their assistants who are engaged in such proceedings. Although they need not be informed of this Protective Order, they shall acknowledge the confidentiality of the Protected Information and agree to preserve all such information in confidence. 13. A document that contains or reveals Protected Information may be copied by an

independent commercial copying service, and an exhibit based upon such a document may be prepared by an independent printer or illustrator. Although the printer, illustrator, or personnel of such copying service need not be informed of this Protective Order, each shall acknowledge the confidentiality of the Protected Information and agree to preserve all such information in confidence.

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14.

It shall not be a basis, after entry of this Protective Order, for the parties to refuse to

produce documents or things containing information falling within the provisions of this Protective Order, or to divulge information falling within the provisions of this Protective Order, because the document, thing or information is considered Proprietary Information. However, Protected

Information pertaining to a contemplated competitive procurement may be withheld until award of the contemplated contract, provided that plaintiff's counsel reserves his right to seek pursuant to paragraph 27 below an order permitting the earlier release to him of specific protected information. III. Challenging a Designation of Protected Information 15. A party shall not be obligated to challenge the propriety of a Protected Information

designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. In the event that a party disagrees at any time with a Protected Information designation made by another party or Supplying Owner, the parties shall make a good-faith attempt to resolve the dispute on an informal basis. If the parties cannot resolve the dispute, the objecting party may seek appropriate relief from the Court, and the designating party shall have the burden of proving that its Protected Information designation is proper. Any motion or other request seeking relief from a Protected Information designation shall be served on the designating party, and the designating party may appear specially to oppose the motion or other request for relief. 16. If a party disputes or challenges the designation of any information as Protected

Information, such information shall nonetheless be treated as Protected Information in accordance with the provisions of this Protective Order until such designation has been removed by order of the Court or by written consent of the designating party or Supplying Owner. No party hereto waives any right it may have to object on any ground to the admission into evidence at the trial of this action of any Protected Information.

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IV.

Handling and Use of Protected Information 17. All Protected Information, and any information derived therefrom, shall be used only

for the purpose of preparing and conducting this litigation and shall not be used by or on behalf of any party, Supplying Owner, or Qualified Person for any other purpose. 18. Nothing in this Protective Order, however, shall bar or otherwise restrict any attorney

who is a Qualified Person from rendering advice to his client with respect to this litigation, and in the course thereof, from generally referring to or relying upon his examination of materials produced. In rendering such advice or in otherwise communicating with his client, the attorney shall not disclose the content of any Protected Information, and any information derived therefrom, where such disclosure would not otherwise be permitted under the terms of this Protective Order. 19. The Court shall have access to all Protected Information. The Clerk of this Court is

directed to maintain under seal all documents or things which are filed with the Court or offered into evidence, and which have been designated as Protected Information. The Clerk shall permit access to such documents or things only to this Court, personnel of the Court authorized to have access, and the attorneys of record. 20. If, during trial or at any hearing in connection with any motion or other proceeding,

the party that intends to offer into evidence or disclose any information designated as Protected Information shall so inform in writing the other party and Supplying Owner at least fourteen (14) days in advance; and, if the other party or Supplying Owner continues to designate such information as Protected Information, the offering party shall take such steps as are deemed necessary to preserve the protection of such information, except that the offering party may for cause move the Court to remove the designated Protected Information from under the terms of the Protective Order. In any such motion, the party or Supplying Owner asserting that the information is Protected

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Information shall bear the burden of establishing that it in fact continues to meet the definition of Protected Information, as set forth in this Order. No party hereto waives any right it may have to object on any ground to the admission into evidence at the trial of this action of any Protected Information. 21. Before any Protected Information is summarized, discussed or otherwise used at any

deposition, hearing, or the trial of this action, all persons other than stenographic or court personnel and the Qualified Persons shall be excluded from such portion of the deposition, hearing, or trial of this action, unless the parties and Supplying Owner otherwise agree, or the Court otherwise orders. 22. If a party designates information as Protected Information on the record at a

deposition, hearing, or trial of this action, the court reporter, to the extent possible, shall segregate into separate transcripts information designated as Protected Information from information not so designated. The page numbers of the separate transcripts shall be consecutive so as to facilitate the compilation of a complete transcript. 23. All documents and other tangible things including deposition transcripts, exhibits,

answers to interrogatories, answers to document requests, and other documents filed with the Court which comprise or contain Protected Information, or any pleading, brief or memorandum which purports to reproduce or paraphrase such Protected Information, shall be filed in sealed envelopes or other appropriately sealed containers on which shall be endorsed the caption of this litigation, the words "PROTECTED INFORMATION" and "RESTRICTED ACCESS ACCORDING TO COURT ORDER" as an indication of the nature of the contents, and a statement in substantially the following form: This envelope, containing documents which are filed in this case by (name of party), is not to be opened nor are the contents thereof to be displayed or revealed to anyone other than an attorney of record except by order of the Court or consent of the parties. -12-

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24.

Any briefs and memoranda containing Protected Information shall be served in a

wrapper conspicuously marked on the front "'PROTECTED INFORMATION' and 'SUBJECT TO PROTECTIVE ORDER'-- to be opened only by (the name of the attorney of record receiving the brief or memorandum)" and shall be accompanied by a separate copy from which the Protected Information has been deleted. V. General Provisions 25. Neither this Protective Order nor any action taken by any party or Supplying Owner

pursuant to this Protective Order shall be deemed to have the effect of any admission or waiver by such party or Supplying Owner, or of altering the restrictiveness of any information or of altering any existing obligation of any party or Supplying Owner, or the absence thereof. For example, nothing in this Protective Order shall foreclose any party or Supplying Owner from opposing production of any information for lack of relevance, privilege, or any ground other than the assertion that such information is Protected Information. 26. The inadvertent or unintentional disclosure of Protected Information during the

course of this litigation, without designating it as Protected Information at the time of disclosure, shall not be deemed a waiver in whole or in part of a claim that the disclosed information is protected, either as to the specific information disclosed or as to any other information relating thereto. In order to maintain its protected status, any such Protected Information must, however, be so designated within thirty (30) days after learning of the inadvertent or unintentional disclosure. Furthermore, in the event of an unintentional or inadvertent disclosure, counsel shall immediately take appropriate action to cure the violation and retrieve any Protected Information from any person not covered by the Protective Order.

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27.

This Protective Order shall be without prejudice to the right of any party to bring

before the Court upon reasonable notice to each other party and any applicable Supplying Owner the question of whether any Proprietary Information should be protected further than provided in this Protective Order. This Protective Order shall be without prejudice to the right of any party or Supplying Owner to seek a modification hereof, by leave of Court. 28. In the event that a new party is added, substituted, or brought in, this Protective Order

will be binding on and inure to the benefit of the new party, subject to the right of the new party to seek relief from or modification of this Protective Order. 29. At the conclusion of this action (including any appeals thereof), the portions of all

documents, exhibits, trial and deposition transcripts, and things not filed with the Court which are designated as containing Protected Information (including all copies, extracts, and summaries thereof and all documents containing information taken therefrom), shall be returned or destroyed at the option of the party or applicable Supplying Owner that produced the Protected Information; provided, that the United States Department of Justice and the attorney of record for Rice each may retain one (1) set of any documents solely for archive purposes. In accordance with procedures agreed to by the designating party or Supplying Owner, all other Protected Information shall be destroyed or returned no later than ninety (90) days after the unappealed or unappealable final judgment or settlement of the present action, or any unappealed or unappealable appellate order entered therefor. Any portion of the official record that contains Protected Information shall be exempt from this provision. 30. This Protective Order may be amended as to particular Protected Information as need

may arise only by written agreement of the parties and Supplying Owner without prior leave of the Court.

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31. of the Court. 32.

This Protective Order may be amended with leave of the Court or by express order

The provisions of this Protective Order shall survive and remain in full force and

effect after the termination of this suit. 33. All notices under this Protective Order shall be served either by facsimile with a

confirming copy by first class mail, by courier, or by overnight mail addressed to the attorney of record for the parties, as listed below. Upon request, counsel for the United States shall provide the name and address of the point of contact for any surviving Supplying Owner requiring service of notice under this Protective Order.

SIGNED AND ENTERED this

day of

, 2005.

James F. Merow, Senior Judge

-15-

Case 1:05-cv-00187-JFM

Document 12

Filed 07/07/2005

Page 22 of 58

IN THE UNITED STATES COURT OF FEDERAL CLAIMS IVAN G. RICE, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-187 C Senior Judge James F. Merow

ACKNOWLEDGMENT OF PROTECTIVE ORDER REGARDING PROTECTED INFORMATION I have read the attached Protective Order and I agree to be bound in all respects by its terms in relation to the protection of Protected Information. In addition, I hereby submit to the jurisdiction of the United States Court of Federal Claims for the purpose of enforcement of the attached Protective Order.

Date:

-16-

Case 1:05-cv-00187-JFM

Document 12

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Page 23 of 58

EXHIBIT B

Case 1:05-cv-00187-JFM

Document 12

Filed 07/07/2005

Page 24 of 58

IN THE IVAN G. RICE,

UNITED

STATES

COURT

OF FEDERAL

Plaintiff, No.
Vo

97-246C James F. Merow

US.COUR] OF FEDERAL CLAIMS

Judge THE UNITED STATES, Defendant. PROTECTIVE Defendant, submits of the this United the United States ORDER (the

"Government"), to Rule Claims 26 (c)

hereby of the for Rules

Protective States

Order of

pursuant Federal and

Court

("RCFC")

protecting which are This which Access

Restricted defined

Information

Proprietary

Information,

below. Order does not specify is the procedures under

Protective

access

to classified

information is to

to be determined. in regulations. Proprietary (as defined national

to classified with access may is

information national

be determined laws and

accordance However,

existing to not

security

classified be denied

information to any

containing Person

Information herein) security who

Qualified under the such

otherwise and

authorized

applicable classified

laws

regulations

to receive

information. Accordingly, IT govern IS HEREBY the conduct ORDERED of that the following in provisions this action. shall

further

proceedings

Case 1:05-cv-00187-JFM

Document 12

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Page 25 of 58

Definitions A. The term Ivan who The owns "party" G. Rice in shall

and

Comments individually the as or and any

mean, and

collectively, other entity B. party and

("Rice") this is

Government, a third who or

appears

lawsuit

party. is not a

term

"Owner"

a person

or entity Information matter lead to

or possesses is relevant reasonably The

Restricted to the

Proprietary

Information litigation of

that or is

subject to

of this the is discovery an Owner

calculated term is

admissible Protected

evidence.

"Supplying the

Owner" possession

whose

Information

within

or control

of a party. C~ RCFC 34(a) The and and the term shall copies, "document" mean, and includes documents any as defined in

without is used

limitation, in

document, sense to

originals include

a comprehensive printed,

following

items,

whether stored, or written

recorded, stored, hand, or and or

microfilmed, reproduced whether personal: working

electronically by any process, to

electro-optically or produced by

or not

claimed

be

privileged, reports; (including summaries

confidential records;

letters; papers;

memoranda;

agreements;

communications correspondence; diaries;

intradepartmental or records of personal

communications); conversations; graphs; plans; programs or records

forecasts;

statistical and

statements; charts;

laboratory blueprints~ and of

or research drawings;

reports photographs;

notebooks; computer

software, minutes

printouts;

minutes

or records or

of meetings; statements

conferences;

expressions

of policy;

- 2 -

Case 1:05-cv-00187-JFM

Document 12

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Page 26 of 58

lists

of persons of or

attending

meetings reports

or

conferences;

reports

or

summaries opinions of

interviews; reports reports for

or summaries patent of either

of investigations; opinions or

of consultants; or summaries brochures; drafts

appraisals; negotiations

counsel;

preparations circulars; instruments; tapes, medium

such;

pamphlets; of any

advertisements; books; invoices; tangible and any of any

press

releases;

documents; bills

accounts; discs

purchase and all

orders; other or

of sale; of any notes

computer of

materials

expression; listings, Any not

original

preliminary or computer

compilations, of the above. and

summaries,

printouts on any

comment a part

or notation, of the original

appearing text, is

document, considered legal

to be also include

a separate and The

"document." filed

Documents with this

shall Court.

briefs D.

memoranda

term

"communication" in writing, oral

shall

mean

any

exchange

of

information telephone E. tangible

other

than

including,

without and

limitation,

conversations, The thing term

conversations mean,

meetings. limitation, or the same any

"thing" or the

shall

without any

containing or having

exhibiting ability to

information or exhibit

communication through F. information, data under and with the any

convey

medium The in term

whatsoever. "Restricted form, Information" that is shall mean

whatever or of, and

unclassified.technical in the possession (DoD) of, or

military control

space

application

a Department which may

of Defense not

Component~ pursuant to

so designated,

be disclosed

Case 1:05-cv-00187-JFM

Document 12

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Page 27 of 58

i0 U.S.C. November Data From

§ 130 6,

and/or

DoD

Directive "withholding The to,

No.

5230.25,

dated Technical

1984,

entitled

of Unclassified "Restricted relating

Public but

Disclosure." limited in the

term

Information to List,

includes, equipment or

is not

information Critical

cataloged

Militarily as "FOR

Technologies ONLY (FOUO),"

information

categorized may not

OFFICIAL lawfully

USE

information or

that

be exported See

without §§

approval,

authorization App. The

or license. §§ 2401-2420. term "Proprietary form,

22 U.S.C.

2751-2799;

50 U.S.C. G.

Information" producedby technical which, in

shall a party

mean or Supplying other time or the in which

information, Owner that

in

whatever trade other

contains or any

secrets,

know-how, at the

business

data is

information is maintained maintains marked

information the For party

requested,

confidence

or Supplying documents legend Owners as The

Owner already

a proprietary with a suitable The in parties

interest. proprietary and the

example,

information Supplying information H. Information thereof. I. following:

by a Supplying act in good

Owner. faith

shall

designating

"Proprietary term

Information." Information" shall mean Restricted

"Protected

or Proprietary

Information,

or any

combination

The term "Qualified Person" shall mean any one of th@ .............

(i) for Rice, their

the

attorney

of

record and

and

other

outside.attorneys members;

legal

assistants

support

staff

Case 1:05-cv-00187-JFM

Document 12

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(2) attorneys and support of

the the

attorney Department members; for

of

record

for

the their

Government legal

and

other

of Justice,

assistants

staff (3)

counsel

each this

department lawsuit,

or agency legal

of the assistants and

Government support

involved

with

their

staff (4)

members; the outside and attorneys staff of a Supplying Owner, their

legal

assistants (5)

support

members; or a Supplying Protected Owner who as

employees had access

of the to the duties;

parties specified

already part of

have their (6)

Information

employment designated parties by

independent nor having or law,

experts, familial retained action; to by

who

are

neither with solely

employed the for

by the

relationships by each and the parties party

parties the

either of any

blood

purpose (7)

assisting other

in this agreed the

person by shall

and/or

Supplying J. K.

Owner,

or allowed "any"

Court. both "any '' and "every." conjunctively Protective and

The word The words

iDclude

"and/or" within and/or

shall the

be construed ambit of and this

disjunctively the necessary

to bring documents

Order

things,

information

derived

therefrom. L. and the The words singular in any shall include the plural the and vice gender. versa,

gender

shall

include

other

Case 1:05-cv-00187-JFM

Document 12

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Page 29 of 58

I.

Identification i. Any

and

Markin~ or other

of Protected tangible

Information that with NO. contains the legend or

document

thing

reveals

Protected

Information COURT ORDER" Owner may

shall

be labeled CLAIMS of

"PROTECTED SUBJECT party TO

INFORMATION, PROTECTIVE

OF FEDEP~AL or a marking the

97-246C, import. A

like

or a Supplying

place

appropriate

Protected

Informationmarking (.~_~-.-.-.-.-.-.-.-~_., "Proprietaryinformation"or "Restricted conspicuous has Information") location to on any document the or thing, or at Owner

thereon,

that

party

Supplying As the for first

determined such

contain

Protected appear

Information. at least such be on

documents, of each Any such

marking believed

shall

page

document

to contain that by to the cannot the

Protected conveniently or Supplying party. the In

Information. labeled Owner addition by to as

Protected shall

Information designated notice or

be so

party

serving the or

a written

receiving markings,

"Restricted" Supplying USE

"Proprietary" may add further

producing such DATA

party

Owner ONLY," RIGHTS,"

designations "LIMITED or

as "FOR RIGHTS," of similar

OFFICIAL

"FOUO,"

"LIMITED,"

"RESTRICTED import, 2. Protected deposition portions party or

"Business

Sensitive,"

words

or export A party

control

markings. Owner any may place the appropriate

or a Supplying marking trial on

Information transcript, thereof, Supplying Such at

deposition or trial

exhibit, or .... the

exhibit,

transcript, thereon, that

a conspicuous has

location to on

Owner marking

determined appear

contain each

Protected believed to

Information.

shall

page

Case 1:05-cv-00187-JFM

Document 12

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Page 30 of 58

contain

such

Protected

Information. it on or by the

Information at the

may time of

be

so

designated deposition other the party

by stating or trial, and/or of the

record

the on the

serving

a written Owner exhibit within by

notification thirty (30) for

the

Supplying or

days

receipt

transcript or Supplying identifies that face

counsel of

the

designating notification, the

party which or

Owner. the

A copy

such and

written lines of

specific

pages

transcript be copy

exhibit to the

contain of the

Protected transcript in the

Information, or exhibit and custody

shall each

attached of the of any

transcript Qualified shall (30) for the the

or exhibit Person. be treated days after All as

possession,

or control during until

information Protected

disclosed Information has been Owner. at

a deposition at least by thirty

the

transcript

received The any

counsel may

designating transcript of

party his

or Supplying or her

witness time. 3.

review

testimony

When

a party

initially need

produces in all

documents o~ the

or things

for

inspection, For the

no.marking of the

be made

advance

inspection. be receiving for mark are

purposes as

inspection, Protected

documents

shall the or

treated party further the

containing selected

Information. for

After copying

has

specified the

documents patty

things

inspection,

producing or the

shall things

appropriately before they

selected

documents

selected

copied 4.

or further

inspected. Persons in the shall be permitted to inspect which may

Qualified or things

documents

possession

of defendant

- 7

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Document 12

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contain purposes treated Qualified or things

Proprietary of the

Information all

of

a Supplying or

Owner.

For

the be

inspection,

documents

things After

shall such for serve days its or

as containing Persons for have

Protected selected inspection, Supplying

Information. specified defendant within Owner, such

documents shall ten

copying a written of such or

further on the

notification inspection. in-house originated selected

Owner

(I0)

The

notified may that then

Supplying inspect

through

outside

counsel, from

documents

things mark after or things Owner, such Owner (20) the

Supplying

Owner, within

and twenty

appropriately (20) days

documents In

or things the event

notification. contain only

that

the to

selected than

documents one

information

proprietary ofeach things. as to the

more

Supplying inspect

Qualified

Persons or

Supplying If the

Owner

can

selected does days not

documents inform

notified

Supplying within

defendant

its

objections of the

twenty

after

notification, shall things

photocopies to such

selected Persons by and such the

documents selected Qualified effort or to

be forwarded permitted to

Qualified

befurther is

inspected to of the or make

Persons. locate As for

Defendant the the Supplying selected Owner(s)

obligated

a reasonable documents

0wner(s) documents who cannot

selected

things. those

things

originated such ............... such

from

Supplying

be located,

documents

or things'shall and

be treated to or

as containing further

Protected by

Information, Qualified

forwarded

inspected

Persons,

respectively.

Case 1:05-cv-00187-JFM

Document 12

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II.

Disclosure 5. The

of Protected parties, any

Information Owners, and Qualified obtained derived Persons in the to

Supplying Protected and

shall course anyone the

not of

disclose this

Information information Person and

litigation, to

therefrom, with

other

than set

a Qualified in to this

in accordance Order. This of of

provisions Order

forth

Protective

Protective Protected Protected that as

pertains and

disclosure not limit

by a recipient the disclosure or

the the Owner things

Information Information

does

by the

producing

party

Supplying or

originally

designated Protected person

such

information,

documents

containing 6.

Information. receiving Order by an Protected and shall Information signify prior shall assent to the be to the receipt

Each of this

informed terms of the

Protective

of this

Protective

Order

executing, acknowledgment hereto) and agrees

Protected to that this its

Information, in Form

statement indicates in need of of of the that all not

(similar he has

A attached Order

which to

read by an

Protective terms. The

be bound Persons

respects execute and for other the

following statement: for Rice,

Qualified (i) (ii) the the

acknowledgment outside attorneys and

attorney attorney Department agency outside of

record record

Government (iii)

other for

attorneys

of the or the

Justice, Government for the

counsel

each

department (iv)

involved

in this Owners, for

lawsuit, (v) the

attorneys and

Supplying staff

and the

legal persons.

assistants Executed

support

members

above

Case 1:05-cv-00187-JFM

Document 12

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Page 33 of 58

acknowledgment record. 7. Proprietary is not not so The

statements

shall

be

retained

by the

attorneys

of

restrictions

and

obligations not apply in to

relating any

to which shall

Information marked, to any except

shall

information 4, and

as set

forth the

paragraph

apply

information agree, or the

which Court

parties

or the

appropriate knowledge,

Supplying or by of becomes the the as

Owner public

ru~es,

is public of into

knowledge or which

other has come

than or

as a result shall of come

disclosure possession other in this

recipient recipient a result

without of

any

obligation

confidentiality Information

than

disclosure

as Proprietary

litigation. 8. Qualified Information access to A recipient Person only such as this may to of particular discuss the extent with any Protected other Information person has of such and any

Protected had

that

said

person

already any

Protected Protected Protective particular had

Information, Information Order in

independent this not

disclosure Likewise, from ~that

litigation. prohibit to any the person extent Information in

shall

reviewing said

Protected to of

Information such

person of any

a right

review it

Protected

independent this

disclosure

as Protected

Information

litigation. 9. In connection with independent experts, each party .................. in writing to the and other party and each of Supplying each to any

shall Owner

disclose the

identity, expert

residence at least

curriculum (14)

vitae

independent

fourteen

days

prior

- i0 -

Case 1:05-cv-00187-JFM

Document 12

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disclosure to and such

of any

information curriculum of the to

coming vitae

under shall

this

Protective all

Order current or a its

expert.

Such

disclose If it

former

employers Owner known If

independent the selected

expert. expert, (14)

a party shall

Supplying objections

objects in

make

writing

within on the

fourteen independent

days cannot have relief be

notification. reached, ten (I0) the days

agreement party

expert shall

objecting after order

or supplying objections In such

Owner known case, to or

making from the

its

to seek no

a protective of the the

Court. shall objecting

disclosure until Owner's

Protected has

Information on or the

be made party

the

expert

Court for or

ruled

Supplying If the

motion party order such expert

relief

for

a protective fails the to seek

order. relief shall be to

objecting

Supplying that

Owner time,

or a protective deemed the waived and

within Protected subject I0.

objection may be

Information only to this that

disclosed Order. reveals

independent

Protective or

A document may

contains to any

Protected in of to such document

Information to be its I!. testifying director, produced actual his

be shown or

person or the may

indicated recipient

originator Protected under

author,

a copy. a witness

Information oath if of (a) the the

be disclosed was an

witness or

officer, Owner witness the who had period of

or employee such Protected to such

party

Supplying (b) the

Information Protected

and

access

Information

during

or her

service

or employment.

- ii -

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12. reporters, engaged of this

Protected official

Information court

may

be

disclosed their

to

stenographic who are

reporters, Although ihall

and

assistants not the agree to be

in such Protective

proceedings. Order, they

they

need

informed

acknowledge and

confidentiality preserve 13. all

of the such

ProteCted

Information

information that copied

in confidence. or reveals Protected commercial may copying be the need

A document may an an be

contains by an

Information service, prepared printer, not the be and by

independent such or

exhibit

based

upon

a document illustrator. copying each~shall

independent

printer

Although service

illustrator, informed of

or personnel this of Protective the Protected in

of such Order,

acknowledge agree to

confidentiality all It such shall the

Information

and

preserve 14. Order,

information not be to

confidence. after entry of this Protective or things

a basis, refuse

for

parties

to produce within the

documents provisions falling the

containing Protective provisions

information Order, of this is or to

falling divulge

of this within the thing

information Order, because

Protective considered

document,

or information Protected procurement contract, seek

Proprietary

Information.

However,

Information may

pertaining until

to a contemplated award of the

competitive

be withheld that

contemplated his right the to

provided

plaintiff's 27 below specific

couns~l an order

reserves

pursuant release

to paragraph to him of

permitting information.

earlier

protected

- 12

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III.

Challengin~ 15. A party

a Designation shall not

of Protected to

Information challenge at the the time

be obligated

propriety made, and

of a Protected a failure thereto. to do In the

Information so shall event

designation not preclude a party

a subsequent disagrees made by at any

challenge time party attempt parties with

that

a Protected

Information the

designation shall

another

or Supplying to resolve

Owner, the

parties on an

make

a good-faith If the may party seek

dispute the the

informal

basis.

cannot

resolve from

dispute, Court,

the and

objecting the

party

appropriate ~hall have

relief the is

designating Protected request

burden proper.

of

proving motion

that

its

Information seeking be served appear

designation relief on the from

Any

or other

a Protected party, the

Information and the or or

designation designating other request the such

shall party for

designating to If oppose a party

may

specially 16. any

motion

relief. of shall

disputes

challenges

designation information in

information be

as Protected treated

Information,

nonetheless with the

as Protected

Information Order of the

accordance such or by written No party to

provisions has the been

of this removed

Protective by party order or

until Court

designation consent hereto the of

designating any into right

Supplying to object

Owner. on any

waives

it may at

have the

ground

admission

evidence

trial

of this

action

of any

Protected

Information.

13 -

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IV.

Handlinq 17. All

and

Use

of Protected Information, only and for

Information and the any information of preparing used Person by or for derived and

Protected be used

therefrom, conducting of any purpose. 18o otherwise rendering and upon advice attorney in the his

shall this

purpose not be

litigation

shall

on behalf any other

party,

Supplying

Owner,

or Qualified

Nothing restrict advice course

in

this any

Protective who with

Order,

however,

shall Person

bar from

or

attorney client from

is a Qualified respect to this referring In

to

his

litigation~ to or relying such

thereof, of

generally produced. with

examination otherwise not and would

materials communicating the

rendering the

or in

his

client,

shall

disclose

content derived

of any

Protected where the terms such of

Information, disclosure this

any not Order.

information otherwise

therefrom, under

be permitted

Protective !9. The

Court The

shall of

have this

access Court

to all is

Protected to maintain the as such Court ~ .... with Court

Information. under or seal

Clerk

directed are been permit filed

all into

documents evidence,

or things and The to which

which have

with

offered

designated access to

Protected documents authorized 20. any into motion

Information. or things only

Clerk this

shall Court,

personnel of record. in

of the

to have access, If, or during other trial

and the attorneys or at any the

hearing party

connection intends as

proceeding, any

that

to offer Protected

evidence

or disclose

information

designated

- 14

Case 1:05-cv-00187-JFM

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Information Supplying the other

shall Owner party as steps at

so

inform

in writing (14)

the days

other

party

and and, such shall

least

fourteen Owner

in advance; to designate party the

or Supplying Protected as are

continues the

information take such

Information, deemed necessary

offering

to preserve that

protection may for

of such move from the

information, the under party Court the

xc_e_~9~p_~ to remove

the offeringparty Protected Order. that burden in the of of any

cause

the

designated

Information such motion,

terms

of the Owner

Protective asserting bear the the

or Supplying Information fact as set it may

information establishing Protected hereto the

is Protected that it in

shall

continues forth have in to

to meet this object

definition No party to any

Information, any into right

Order. on any

waives

ground of

admission

evidence

at the

trial

of this

action

Protected 21. discussed trial court such unless Court of

Information. Before or this any Protected used all the at Information any is summarized, hearing, stenographic be excluded of this or the or from

otherwise action, and

deposition, than

persons

other Persons hearing, Owner

personnel portion the

Qualified

shall or trial

of the parties

deposition, and Supplying

action,

otherwise

agree,

or the

otherwise 22.

orders° designates record at information a deposition, to the as Protected or trial o~

If a party on the the

Information this action,

hearing,

court

reporter,

extent

possible, designated

shall as

segregate

into

separate

transcripts

information

15 -

Case 1:05-cv-00187-JFM

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Page 39 of 58

Protected page

Information of the the

from separate

information transcripts

not

so

deSignated. be

The so

numbers

shall

consecutive

as to facilitate 23. deposition answers Court All

compilation and other

of a complete tangible answers other

transcript. including

documents

things

transcripts,

exhibits, and

to interrogatories, documents filed with or any or sealed shall the

to document which comprise

requests, or contain

Protected which

Information, to

pleading, paraphrase envelopes be endorsed

brief such

or memorandum Protected

purports shall

reproduce in

Information, sealed

be filed

or other the and of the

appropriately of this

containers the TO and

on which

caption

litigation, ACCORDING contents,

words COURT

"PROTECTED ORDER" as in

INFORMATION" an indication substantially

"RESTRICTED the nature

ACCESS of the

a statement

following

form:

"This envelope, containing documents which are filed in this case by (name of party), not to be opened nor are the contents thereof to be displayed or revealed to anyone other than an attorney of record except by order of the Court or consent of the parties." 24. Any briefs shall and memoranda containing Protected marked on

Information the front

be served

in a wrapper and name and

conspicuously 'SUBJECT of the

"'PROTECTED be the copy opened brief from

INFORMATION' only by (the

TO PROTECTIVE attorney of record by

ORDER'--to receiving separate deleted.

or memorandum)" which the

shall

be accompanied has been

Protected

Information

16 -

Case 1:05-cv-00187-JFM

Document 12

Filed 07/07/2005

Page 40 of 58

V.

General 25.

Provisions this Protective Owner the Order nor any action taken Order waiver by by

Neither or

any

party

Supplying to have Supplying or

pursuant effect or

to this

Protective or

shall such of

be deemed party or

of any

admission the

Owner,

of altering any existing

restrictiveness of any

any

information or Supplying in this Owner

of altering or the

obligation For any

party nothing

Owner,

absence shall

thereof.

example, or for

Protective from

Order

foreclose of any

party

Supplying lack of

opposing privilege, information or

production or any

information than the

relevance, that The such

ground

other

assertion 26. Protected without