Free Reply to Response to Motion - District Court of Federal Claims - federal

Case 1:02-cv-01795-JFM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

THE SWEETWATER, A WILDERNESS LODGE, L.L.C., Plaintiff, v. THE UNITED STATES, Defendant.

) ) ) ) ) ) ) ) ) ) ) )

No. 02-1795C (Judge Merow)

DEFENDANT'S REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER Defendant, the United States, respectfully files this reply in support of its motion for a protective order. Since filing our motion for a protective order on May 25, 2005, defendant's counsel has conducted further discussions with plaintiff's counsel and with owners of the other lodges on the North Fork of Shoshone River, whose financial information is at issue. As a result, we are filing with this reply a revised version of the protective order that the parties have agreed should be entered in this case to prevent disclosure of confidential financial information produced by The Sweetwater and the other lodges. We reject plaintiff's unfounded assertion that we made any misrepresentation to the Court regarding the lodge owners' concerns about disclosure of their financial information to Mr. Mummery. Several weeks before filing our motion for a protective order, defendant's counsel spoke with three of the six North Fork lodge owners who had agreed to provide financial information to the parties' experts: Debbie Carlton of Blackwater Lodge, Teresa Boyd of Absaroka Mountain Lodge, and Hamilton Bryan of UXU Guest Ranch. All three

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owners stated that they did not want Mr. Mummery to gain access to their confidential financial information. The basis for defendant's motion for a protective order were these communications, and previous communications that Forest Service representatives had conducted with lodge owners who expressed concerns about Mr. Mummery gaining access to their confidential financial information. After plaintiff filed its May 25, 2005 opposition to our motion for a protective order, defendant's counsel contacted the lodge owners, and over the course of several days succeeded in reaching all six of them. Gary Fales of Rimrock Ranch, Phil Lamb of Elephant Head Lodge, and Buck Norris of Crossed Sabres Lodge all confirmed that they had spoken to plaintiff's counsel, and that they did not object to Mr. Mummery gaining access to their annual profit and loss statements that were filed with the Forest Service. In the intervening weeks since defendant's counsel had last spoken to Hamilton Bryan, Mr. Bryan had sold the UXU Guest Ranch, and he no longer objected to providing the annual profit and loss statements for the UXU to Mr. Mummery. Plaintiff referred in its opposition to our motion for a protective order to two unidentified lodge owners who plaintiff's counsel was unable to reach. Pl. Opp. at 2 n.1. Defendant's counsel learned from subsequent telephone conversations that these were Teresa Boyd at Absaroka Mountain Lodge and Debbie Carlton at Blackwater Lodge. Ms. Boyd confirmed that she did not want any current financial information disclosed to Mr. Mummery, but she agreed that Mr. Mummery could be provided access to the 2003 profit and loss statement for Blackwater Lodge because that information pre-dated her ownership of the lodge.

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Ms. Carlton reiterated her concerns about Mr. Mummery gaining access to any profit and loss statements. We have informed plaintiff's counsel that our experts will provide amended reports that do not rely upon information from Blackwater Lodge, which will avoid the need to provide that information to Mr. Mummery. Our motion for a protective order was intended to protect the interests of the other North Fork lodge owners, and was not intended to "increase the cost to plaintiff in presenting its case and rebutting the government's arguments," as plaintiff contends. Pl. Opp. 3. We took appropriate steps before filing our motion to ascertain the views of the other North Fork lodge owners. As a result of further discussions among the parties and the lodge owners, the parties have arrived at a solution that addresses all interests involved. Indeed, plaintiff itself intends to seek the benefits of the protective order, and has designated its own financial statements as "Confidential," despite its assertion in its opposition brief that the other lodge owners' information did not meet the standard of RCFC 26(c) for entry of a protective order. Pl. Opp. 1. In these circumstances, plaintiff's request that the Court award plaintiff its costs and attorneys fees in opposing our motion for a protective order is unwarranted. CONCLUSION For the foregoing reasons, we respectfully request that the Court enter the revised proposed protective order that is attached, and deny plaintiff's request for its costs and attorneys fees in opposing our motion for a protective order.

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Respectfully submitted,

PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/ Kathryn A. Bleecker KATHRYN A. BLEECKER Assistant Director

s/ John H. Williamson JOHN H. WILLIAMSON Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice ATTN: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel.: (202) 307-0277 Fax:: (202) 307-0972 June 9, 2005 Attorneys for Defendant

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CERTIFICATE OF SERVICE

I hereby certify that on June 9, 2005, a copy of the foregoing DEFENDANT'S REPLY IN SUPPORT OF ITS MOTION FOR PROTECTIVE ORDER 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/John H. Williamson

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Case 1:02-cv-01795-JFM

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) )

THE SWEETWATER, A WILDERNESS LODGE, L.L.C., Plaintiff, v. THE UNITED STATES, Defendant.

No. 02-1795C (Judge Merow)

PROTECTIVE ORDER The parties have agreed that certain information that may necessarily be disclosed orally or in writing during this action may be competition sensitive, proprietary, confidential, or otherwise protectable. To address these concerns, it is ORDERED that protected information, provided formally or informally during the course of this action, including before the filing of this Order, shall be disclosed by the parties only as follows: 1. "Protected Information" means: (a) Non-public information, including proprietary, confidential, or sensitive information contained in any document produced, filed, or served by the parties or a third party (including any pleading, motion, brief, notice, or discovery request or response) that is designated as protected by a party or third party; and Non-public information, including proprietary, confidential, or sensitive information contained in any deposition, testimony, affidavit, or declaration taken or provided during this litigation that is designated by a party or third party. However, Protected Information does not include any documents that have been or become part of the public domain by publication or otherwise and not because of any unauthorized act or omission on the part of the receiving party or any of its authorized representatives under this protective order. Moreover, if a party designates a document as containing Protected Information, this is not a determination by the Court (see Section 10 below). In the event a party wishes to designate as Protected Information documents produced by non-parties to this action, it will do so by marking any such document as required by Section 3, and providing copies of the documents so stamped to the opposing party within 30 days of receiving the documents

(b)

(c)

(d)

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provided by the non-party. Until the 30 day period has expired, the documents shall be treated as Protected Information. (e) The parties shall have 30 days from the date of this Order to designate documents already produced in this action as Protected Information. In designating information as protected, the designating party will make such designation only as to the information that the designating party in good faith believes (and that counsel for that party certifies) contains information entitled to protection in conformity with the standards of RCFC 26(c).

(f)

2.

Protected Information shall be used by private parties solely for the purposes of this litigation and shall not be given, shown, made available, discussed, or otherwise communicated in any form except as provided in this Order. (a) Except as provided in paragraphs 2(c) and (d), the only persons who may be given access to protected information are (i) legal counsel for plaintiff and plaintiff's managing member, Mr. Jeffrey Mummery; and (ii) independent consultants and experts assisting plaintiff's counsel in connection with the litigation. Any persons seeking access to Protected Information shall first read this protective order and if an attorney, execute a copy of Appendix A, the Application for Access to Materials Under Protective Order for Outside Counsel, or, if an expert consultant or witness, execute a copy of Appendix B, the Application for Access to Materials Under Protective Order by Expert Consultant Witness or, if Mr. Mummery, execute a copy of Appendix C, Application for Access to Materials Under Protective Order By Jeffrey C. Mummery. Such person shall, without further action by the Court, be permitted access to Protected Information at the close of the second business day after the other parties have received the application, unless, in the interim, any party informs the requesting party in writing of an objection. If the parties are unable to reach agreement regarding the objection, the party seeking access may present the matter to the Court by application. The person for whom access is sought shall not be given access unless and until the Court authorizes such access. Paralegal, clerical, and administrative support personnel assisting any counsel who has been admitted under this protective order may be given access to protected information is such personnel have first been informed by such counsel of the obligations imposed by this protective order. Court of Federal Claims, Department of Agriculture, and Department of Justice personnel are automatically subject to the terms of this protective order and are entitled to access to Protected Information, without further action. Notwithstanding anything to the contrary in this Order, any party may use without restriction:

(b)

(c)

(d)

(e)

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(i) (ii)

its own documents or information documents or information concerning or reflecting transactions or communications to which it was a party; and documents or information developed or obtained independently of discovery in this action, irrespective of whether such document or information has been designated as Protected Information.

(iii)

3.

(a)

Protected Information filed, served, or provided as courtesy copies, and proposed redacted documents (other than a pleading, to which paragraphs 4(a) and (b) apply), shall be in a sealed parcel containing the legend "PROTECTED MATERIAL ENCLOSED" conspicuously placed on the outside of the parcel. A copy of the certificate of service identifying documents being filed should be attached to the front of each envelope. The first page of each document containing Protected Information shall be clearly marked as follows: CONFIDENTIAL ­ SUBJECT TO PROTECTIVE ORDER. The Clerk of the Court will maintain properly marked protected pleadings or materials under seal. The Clerk is further directed to file as a public document any filing not in conformity with these requirements.

(b)

(c)

4.

A party that files a pleading, motion, brief, notice, affidavit, declaration, or similar document in accordance with paragraph 3 of this protective order shall promptly serve on each other party a proposed redacted copy of the document with the claimed protected information deleted and clearly marked "Proposed Redacted Copy" in the upper righthand corner of the first page. (a) Within two business days after their receipt of the proposed redacted copy, other parties shall advise the party originating the document of any additional redactions they require. The originating party shall promptly provide each party with a copy of the document from which all information that any party has requested be redacted has been redacted and clearly marked, "Agreed-Upon Redacted Copy ­ May Be Made Public" in the upper right-hand corner of the first page. During the two-day period, the proposed redacted copy shall be treated as protected. At the expiration of the two-day period, or when agreement is reached, the agreed-upon redacted copy shall be filed with the court by the originating party, with a copy for filing under seal that highlights or otherwise conspicuously marks the Protected Information that has been redacted from the agreed-upon redacted copy. Any party at any time may serve on the other parties a proposed redacted copy of any other type of documents (other than a pleading, motion, brief, notice, affidavit, declaration, or similar document) that is served, generated, or produced

(b)

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in discovery, and shall clearly mark the document in the manner provided in paragraph 4(a). The other parties shall respond promptly, advising the serving party of any additional redactions they require. The serving party shall proceed as provided in the last sentence of paragraph 4(a). 5. a. Any party may, at any time, object to another party's designation of particular information as protected. If the parties are unable to resolve the matter by agreement, counsel for the objecting party may submit the matter to the Court for resolution. Until the Court resolves this matter, the disputed information shall be treated as protected. The party seeking to maintain the confidentiality of the information shall have the burden of establishing that the document or testimony is entitled to protected treatment.

b.

6.

Without the consent of the other parties, no private party may make more than three (3) copies of any document containing Protected Information received from another party. Private parties may make additional copies for filing with the Court, service on the parties or use in discovery and may also incorporate limited amounts of protected information in their pleadings. All copies of such documents and of pleadings referring to Protected Information shall be clearly labeled in the manner required by paragraph 3 of this protective order. Each person covered by this protective order shall take all necessary precautions to prevent disclosure of Protected Information, including but not limited to physically securing, safeguarding and restricting access to the protected information. The confidentiality of information learned pursuant to this protective order shall be maintained until the Court provides otherwise. a. Within thirty (30) days after the conclusion of this action (including any and all appeals and remands), counsel for each private party shall (i) destroy all documents filed or served in this action that contain Protected Information, and certify in writing to all other parties that destruction has occurred; or (ii) return the documents filed or served in this action that contain Protected Information to the parties from which the documents containing Protected Information were received. Counsel for each party may retain one copy, properly marked and secured, of the unredacted submissions to the Court.

7.

8.

b.

9.

Any party whose information has been designated as protected may at any time waive the protection of this protective order by advising counsel for all parties in writing, identifying with specificity the information to which this protective order shall no longer apply. Nothing contained in this protective order shall preclude a party from seeking relief from

10.

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this protective order through the filing of an appropriate motion with the Court that sets forth the basis for the relief sought. 11. If a party gives notice in writing that a document inadvertently not marked protected does in fact contain Protected Information, the specified document shall then be treated in accordance with this protective order. Counsel for the parties shall promptly report any breach of the provisions of this protective order to counsel for the other parties. Counsel shall immediately take appropriate action to cure the violation and retrieve any Protected Information that may have been disclosed to persons not admitted to this protective order. The parties shall cooperate in determining the reasons for the breach. a. If a subpoena or document demand in another action is served upon a party to this action that seeks Protected Information in this action, the recipient shall provide the party whose Protected Information is sought notice by telephone within twenty four (24) hours of receipt, and written notice by mail, hand or facsimile within forty-eight (48) hours of receipt. If the other party objects, the recipient shall not disclose that information except by Court Order. The defendant shall take all proper steps necessary to prevent any other disclosure of such Protected Information, whether pursuant to the Freedom of Information Act, or otherwise.

12.

13.

b.

14.

This protective order does not waive any objection or claim of privilege.

IT IS SO ORDERED.

________________________________ James F. Merow Judge

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) )

THE SWEETWATER, A WILDERNESS LODGE, L.L.C., Plaintiff, v. THE UNITED STATES, Defendant.

No. 02-1795C (Judge Merow)

APPLICATION FOR ACCESS TO INFORMATION UNDER PROTECTIVE ORDER BY OUTSIDE COUNSEL 1. I, Kevin R. Garden, hereby apply for access to protected information covered by

the Protective Order issued in connection with this proceeding. 2. I am an attorney-at-law, and have been retained to represent the

plaintiff in this proceeding. 3. 4. I am a member of the bar of the United States Court of Federal Claims. There are no instances in which I have been denied admission to a protective

order, had admission revoked, or been found to have violated a protective order issued by any administrative or judicial tribunal. 5. I have read the protective order issued by the Court in this proceeding. I will

comply in all respects with that order and will abide by its terms and conditions in handling any documents that are designated during this proceeding as containing Protected Information. 6. I acknowledge that a violation of the terms of the protective order may result in

the imposition of such sanctions as may be deemed appropriate by the court and in possible civil and criminal liability. APPENDIX A

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By my signature, I certify that, to the best of my knowledge, the representations set forth above are true and complete.

__________________________________ Kevin R. Garden

__________________ Date

APPENDIX A

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) )

THE SWEETWATER, A WILDERNESS LODGE, L.L.C., Plaintiff, v. THE UNITED STATES, Defendant.

No. 02-1795C (Judge Merow)

APPLICATION FOR ACCESS TO INFORMATION UNDER PROTECTIVE ORDER BY EXPERT CONSULTANT OR WITNESS 1. I, _____________________, hereby apply for access to protected information

covered by the Protective Order issued in connection with this proceeding. 2. I have been retained by ____________________, and will assist as an expert

consultant or witness in this proceeding. 3. There are no instances in which I have been denied admission to a protective

order, had admission revoked, or been found to have violated a protective order issued by any administrative or judicial tribunal. 4. I have read the protective order issued by the Court in this proceeding. I will

comply in all respects with that order and will abide by its terms and conditions in handling any documents that are designated during this proceeding as containing Protected Information. 5. I acknowledge that a violation of the terms of the protective order may result in

the imposition of such sanctions as may be deemed appropriate by the court and in possible civil and criminal liability.

APPENDIX B

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By my signature, I certify that, to the best of my knowledge, the representations set forth above are true and complete.

__________________________________

__________________ Date

APPENDIX B

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) ) ) ) ) ) ) ) ) )

THE SWEETWATER, A WILDERNESS LODGE, L.L.C., Plaintiff, v. THE UNITED STATES, Defendant.

No. 02-1795C (Judge Merow)

APPLICATION FOR ACCESS TO INFORMATION UNDER PROTECTIVE ORDER BY JEFFREY C. MUMMERY 1. I, Jeffrey C. Mummery, hereby apply for access to protected information covered

by the Protective Order issued in connection with this proceeding. 2. I am the managing member of the plaintiff in this proceeding, The Sweetwater, A

Wilderness Lodge L.L.C. 3. There are no instances in which I have been denied admission to a protective

order, had admission revoked, or been found to have violated a protective order issued by any administrative or judicial tribunal. 4. I have read the protective order issued by the Court in this proceeding. I will

comply in all respects with that order and will abide by its terms and conditions in handling any documents that are designated during this proceeding as containing Protected Information. 5. I acknowledge that a violation of the terms of the protective order may result in

the imposition of such sanctions as may be deemed appropriate by the court and in possible civil and criminal liability.

APPENDIX C

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By my signature, I certify that, to the best of my knowledge, the representations set forth above are true and complete.

__________________________________ Jeffrey C. Mummery

__________________ Date

APPENDIX B