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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) STOCKTON EAST WATER DISTRICT, ) et al., ) ) Plaintiffs, ) No. 04-541 L ) v. ) Judge Christine Odell Cook Miller ) UNITED STATES, ) ) Defendant. ) ____________________________________) MOTION FOR A PROTECTIVE ORDER Pursuant to Rule 26(c) of the Rules of the Court of Federal Claims and the stipulation of counsel for the parties, Plaintiffs hereby move for a protective order regarding the production of the Microsoft Excel based model entitled "NMmodel-v5.xls" prepared by Plaintiffs' expert witness Avry Dotan. Mr. Dotan asserts that the Model is proprietary and that Mr. Dotan maintains intellectual property rights to the Model and the methodology of the Model. Attached hereto are a copy of the proposed stipulated protective order and a copy of the parties' stipulation. Respectfully submitted,

s/ Roger J. Marzulla Roger J. Marzulla Nancie G. Marzulla MARZULLA & MARZULLA 1350 Connecticut Ave., N.W. Suite 410 Washington, DC 20036 (202) 822-6760 (202) 822-6774 (facsimile) Dated: September 14, 2006 Counsel for Plaintiffs

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Of Counsel: Jeanne M. Zolezzi Jennifer L. Spaletta HERUM CRABTREE BROWN 2291 West March Lane, Suite B100 Stockton, CA 95207 (209) 472-7700 (209) 472-7986 (facsimile)

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ____________________________________ ) STOCKTON EAST WATER DISTRICT, ) et al., ) ) Plaintiffs, ) No. 04-541L ) v. ) Judge Christine Odell Cook Miller ) UNITED STATES, ) STIPULATED PROTECTIVE ) ORDER ) Defendant. ) ____________________________________) Pursuant to RCFC 26(c) and the stipulation of counsel for the parties, it is hereby ordered as follows: 1. This Protective Order shall apply to the production of the Excel based model

entitled "NMmodel-v5.xls" by Plaintiffs' expert witness Avry Dotan (the "Model"). The Model includes the Excel based file itself, any portion thereof, any printout from the file, any graph, image or data generated by the file, and the methodology used in the Model. 2. Mr. Dotan asserts that the Model is proprietary and that Mr. Dotan maintains

intellectual property rights to the Model and the methodology of the Model. 3. The Model shall be treated as Confidential by the United States unless and until

this Court rules to the contrary or the Plaintiffs and Mr. Dotan agree otherwise in writing. Until then, access to or disclosure of the Model shall be limited to: (a) The judge in this case and personnel of the Court in which event such materials shall be filed under seal (and kept under seal until further order of the court); The following identified attorneys and legal staff: Jeanne Zolezzi, Karna Harrigfeld, Jennifer Spaletta, of the law firm of Herum Crabtree Brown, Nancie 1

(b)

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Marzulla and Roger Marzulla of the law firm of Marzulla and Marzulla, Kristine Tardiff, William Shapiro, Judith Ragonesi, Luke Hajek, Felicia Lesesne and Deedee Sparks of the United States Department of Justice, Shelly Randal and James Turner of the Office of the Soliciter. (c) The following identified representatives of the parties: Avry Dotan, Peggy Manza, Jeff Sanberg, Paul Fujitani, Lloyd Peterson, andChester Bowling; and Antonia Kirk, Court Reporter.

(d) 4.

Each person identified in Paragraph 3 shall sign a copy of the Undertaking

attached hereto as Exhibit A prior to review of the Model, a copy of which shall be served upon counsel for the Plaintiffs' within 5 days of signature. Counsel for the United States desiring to disclose the Model to any person other than those designated in Paragraph 3 ("Proposed Disclosee") shall first obtain from each Proposed Disclosee a signed undertaking in the form of Exhibit A hereto, and serve a copy of the undertaking upon counsel for the Plaintiffs. No disclosure of Model shall be made without the prior written consent of counsel for the Plaintiffs. If counsel for the Plaintiffs does not give his written consent within three (3) working days, there shall be no disclosure to such Proposed Disclosee except by order of the above Court pursuant to a motion with notice to Plaintiffs' counsel of not less than five (5) working days brought by counsel for the United States. On any such motion, the United States shall bear the burden of showing why such disclosure is necessary to the preparation of the United States' case, and the burden of showing the lack of continued need for confidentiality pursuant to the terms of this order. 5. The Model shall be used by the United States and persons to whom it is disclosed

pursuant to Paragraph 3 or 4 solely for the pending litigation proceedings concerning the matters

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in issue between the parties in this action. The Model shall not be used by such party or persons for any other purpose or function. No person shall divulge information subject to this Order to the public or shall give information subject to this Order to any person not entitled under this Order to receive it. 6. The restrictions on use of the Model set forth in this Protective Order shall survive

the conclusion of this litigation and, after conclusion of this litigation, the Court shall retain jurisdiction for the purpose of enforcing this Protective Order. 7. After final termination of this action, counsel for the United States shall return all

physical or electronic copies of the Model to counsel for the Plaintiffs, or shall destroy such copies and certify the destruction to counsel for the Plaintiffs, except to the extent that the Model has been incorporated into any document filed with the court or adjudicator or entered as an exhibit. Dated: Sept. 15, 2006 s/ChristineO.C.Miller Christine Odell Cook Miller Judge

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STIPULATION It is hereby stipulated that the foregoing Protective Order may be made and entered by the Court.

Dated: September 14, 2006

s/ Roger J. Marzulla Roger J. Marzulla Nancie G. Marzulla MARZULLA & MARZULLA 1350 Connecticut Avenue, N.W. Suite 410 Washington, D.C. 20036 (202) 822-6760 (202) 822-6774 (facsimile) Counsel for Plaintiffs

Dated: September 14, 2006

s/ William J. Shapiro William J. Shapiro Trial Attorney United States Department of Justice Environment and Natural Resources Division Natural Resources Section 501 I Street, Room 9-700 Sacramento, CA 95814 (916)930-2207 Attorneys for the Defendant, United States

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EXHIBIT A

UNDERTAKING RE PROTECTIVE ORDER

UNDERTAKING OF ______________________ I, _______________, declare: 1. My address is _______________________________________________. My present occupation is ___________________________________. 2. I have received a copy of the Protective Order in this action. I have carefully read and understand the provisions of the Protective Order. 3. I will comply with all of the provisions of the Protective Order. I will hold in confidence, will not disclose to anyone other than those persons specifically authorized by the Protective Order, and will not copy or use except for the proceedings concerning the matters in issue between the parties, the Model that I receive in this action, and will return all copies of the Model I receive to counsel for the United States as defined in the Protective Order, for destruction or return to counsel for Plaintiffs. Executed this _________ day of ___________________, 2006, at _____________________. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. ______________________________________ Dated: _____________

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