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

Case 1:96-cv-00408-LAS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) INNOVAIR AVIATION LIMITED, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) )

DOCKET NO. 96-408C (Senior Judge Loren A. Smith)

JOINT MOTION FOR ENTRY OF CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER Plaintiff Innovair Aviation Ltd., and defendant United States jointly move for entry of the Confidentiality Stipulation and Protective Order ("Protective Order") submitted herewith. The parties seek the requested order at the request of a non-party to facilitate the disclosure of confidential or proprietary information in connection with this action under conditions intended to protect such information from public dissemination. Respectfully submitted, /s/ Ty Cobb by H.C.B. TY COBB Hogan & Hartson Columbia Square 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Tele: (202) 637-5600 Facsimile: (202) 637-5610 OF COUNSEL:

PETER D. KEISLER Assistant Attorney General /s/ Jeanne E. Davidson JEANNE E. DAVIDSON Director /s/ Sheryl L. Floyd SHERYL L. FLOYD Senior Trial Counsel

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H. CHRISTOPHER BARTOLOMUCCI AUDREY MOOG Hogan & Hartson Columbia Square 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109. DATE: July 31, 2007

Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 616-8278 Facsimile: (202) 514-8624 DATE: July 31, 2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) INNOVAIR AVIATION LIMITED, ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) Defendant. ) )

DOCKET NO. 96-408C (Senior Judge Loren A. Smith)

CONFIDENTIALITY STIPULATION AND PROTECTIVE ORDER WHEREAS plaintiff Innovair Aviation Limited and defendant United States of America (collectively, "the Parties") recognize that non-party witnesses may possess highly sensitive and confidential information that may be disclosed in responding to discovery requests or otherwise in this action and that must be protected in order to preserve their legitimate business interests, and WHEREAS documents or information containing confidential proprietary and business information and/or trade secrets of non-parties may be disclosed or produced during the course of this litigation, public dissemination and disclosure of which could injure or damage the disclosing non-parties' competitive advantage, and WHEREAS the Parties have, through counsel, stipulated to the entry of this Protective Order, to prevent unnecessary dissemination or disclosure of such highly sensitive and confidential information, during the course of this litigation.

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STIPULATION THEREFORE, THE PARTIES STIPULATE that the following may be entered as the Order of the Court without further notice: Definitions 1. The following definitions shall apply to this Stipulation and

Protective Order: (a) The term "Confidential Information" means documents or

information containing confidential proprietary and business information and/or trade secrets. Confidential Information may include documents or things produced in this action (during formal discovery or otherwise), information produced by non-parties, responses to discovery requests, and information or items disclosed during depositions, hearings or at trial. Information originally designated as "Confidential Information" shall not retain that status after any ruling by the Court denying such status to it. (b) The term "designating party" means the party producing or

designating information as Confidential Information under this Stipulation and Protective Order. (c) The term "receiving party" shall mean the party to whom

Confidential Information is produced. Designation of Confidential Information 2. Each designating party who produces or discloses any material that

it in good faith believes constitutes Confidential Information shall designate it as 2
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such. In designating Confidential Information, the designating party shall mark the item or each page of a document "Confidential" or "Confidential-Attorney's Eyes Only." (a) Confidential Information may be designated as "Confidential-

Attorney's Eyes Only" when, in the reasonable judgment of the designating party, the information is Confidential Information, but is too sensitive, valuable, or difficult to protect from misuse to allow a wider circulation. (b) When documents or things are produced for inspection, they

may be collectively designated as "Confidential" or "Confidential-Attorney's Eyes Only" for purposes of the inspection, by letter or otherwise, without marking each document or thing "Confidential" or "Confidential-Attorney's Eyes Only." Once specific documents have been selected for copying, any documents containing confidential information may then be marked "Confidential" or "ConfidentialAttorney's Eyes Only" after copying but before delivery to the party who inspected and selected the documents. There will be no waiver of confidentiality by the inspection of confidential documents before they are copied and marked "Confidential" pursuant to this procedure. (c) Portions of depositions may be designated "Confidential" if

they are designated as such at the time the deposition is taken or within 30 days after the deposition transcript is received by the designating party or its counsel. 3. The parties recognize that during the course of this litigation,

Confidential Information that originated with or is maintained by a non-party may 3
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be produced. Such information may be designated as "Confidential" or "Confidential-Attorney's Eyes Only" and shall be subject to the restrictions contained in this Stipulation and Protective Order. If any Confidential Information is produced by a non-party to this litigation, such a non-party shall be considered a "designating party" within the meaning of that term as it is used in this Stipulation and Protective Order and the parties will each be treated as a "receiving party." 4. Except for testimony, documents and things disclosed in open court,

in the event any designating party produces Confidential Information that has not been correctly designated, the designating party may redesignate the information to the same extent as it may have designated the information before production, by a subsequent notice in writing specifically identifying the redesignated information, except that the designating party shall not be entitled to designate information, testimony or documents as Confidential Information if the designating party disclosed the information, testimony or documents prior to entry of this Stipulation and Protective Order. The parties shall treat such information in accordance with this Stipulation and Protective Order, and shall undertake reasonable efforts to correct any disclosure of such information contrary to the redesignation. No proof of error, inadvertence, or excusable neglect shall be required for such redesignation. Disclosure of the Confidential Information 5. following: 4
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Information designated "Confidential" may be disclosed only to the

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(a)

The attorneys and staff of any law firm acting as outside

counsel for a party to this action, and those persons specifically engaged for the limited purpose of making photocopies of documents. (b) Independent consultants or experts and their staff not

employed by or affiliated with a party who are retained either as consultants or expert witnesses for the purpose of this litigation. (c) Employees of either party who provide actual assistance in

the conduct of the litigation in which the information is disclosed, but only to the extent necessary to allow them to provide that assistance. (d) The Court and Court personnel, and Official Court Reporters

to the extent that Confidential Information is disclosed at a deposition or court session which they are transcribing. (e) The list of persons to whom Confidential Information may be

disclosed identified in this Paragraph 5 may be expanded or modified by mutual agreement in writing by counsel for the parties to this action without the necessity of modifying this Stipulation and Protective Order. (f) Information designated as "Confidential-Attorney's Eyes

Only" shall be disclosed only to those persons described in Paragraphs 5(a), (b) or (d), or as agreed in accordance with Paragraph 5(e).

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Use and Control of the Confidential Information 6. All information designated "Confidential" or "Confidential-

Attorney's Eyes Only" shall be used by its recipient solely for the purposes of this litigation and not for any business, competitive or other purpose. 7. If Confidential Information is contained in trial testimony, the

portion of transcript containing such material may be designated as containing Confidential Information and shall be treated in accordance with this Stipulation and Protective Order. 8. All Confidential Information that is filed with the Court, and any

pleadings, motions or other papers filed with the Court disclosing any Confidential Information, shall be filed and kept under seal until further order of the Court. Where possible, only confidential portions of filings with the Court shall be filed under seal. 9. No person designated in accordance with Paragraphs 5(b), (c) and

(e) above shall be provided with access to Confidential Information without first signing an Acknowledgement of Stipulation and Protective Order in the form attached as Exhibit 1 ("Acknowledgment"). Counsel for the party obtaining the Acknowledgments shall maintain a file of all signed, original Acknowledgments. 10. Any party may disclose its own Confidential Information in any

manner that it considers appropriate. Confidential Information may be disclosed to any person no longer affiliated with a party who either authored or received the Confidential Information prior to the initiation of the litigation. Prior to any 6
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disclosure, such person must agree to be bound by this Stipulation and Protective Order and execute the Acknowledgement as stated in paragraph 9 above. 11. No information may be withheld from discovery on the basis that the

information requires greater protection than that afforded by this Stipulation and Protective Order, unless the party claiming the need for greater protection moves for and obtains an order for such special protection from the Court. 12. Receiving parties shall keep all Confidential Information received

from others in a secure area to prevent disclosure of Confidential Information to persons not authorized under this Stipulation and Protective Order. Duration of Order, Objection, Modifications 13. This Stipulation and Protective Order shall remain in full force and

effect until modified, superseded or terminated by order of this Court, which may be entered pursuant to agreement of the Parties to this action. This Stipulation and Protective Order shall continue in effect after termination of this action and continue to be binding upon all persons to whom Confidential Information is disclosed. 14. Upon final termination of this action (including all appeals), the

designating party may demand that the receiving party either return to the designating party (at the designating party's expense) or destroy all Confidential Information received from the designating party within 30 days of the demand. However, outside counsel for the receiving party may retain one copy of the

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Confidential Information, which shall remain subject to this Stipulation and Protective Order. 15. If the receiving party learns that Confidential Information produced

to it is disclosed to or comes into the possession of any person other than in the manner authorized by this Stipulation and Protective Order, the receiving party responsible for the disclosure must immediately inform the designating party of all pertinent facts relating to such disclosure and shall make reasonable efforts to prevent disclosure by each unauthorized person who received such information. 16. Any receiving party may at any time request that the designating

party cancel the "Confidential" or "Confidential-Attorney's Eyes Only" designation on any information produced. Such request shall be served on counsel for the designating party, and shall particularly identify the designated Confidential Information that the receiving party contends should not be designated as confidential and the reasons supporting its contention. If the designating party does not agree to remove the "Confidential" or "ConfidentialAttorney's Eyes Only" designation, then the party contending that such information should not be designated "Confidential" may file a motion to be relieved from the restrictions of this Stipulation and Protective Order with respect to the information in question. On motion to be relieved from the restrictions of this Stipulation and Protective Order, the burden of demonstrating that the information is Confidential Information shall be on the designating party.

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No Waiver of Privileges 17. Production of documents and things shall not constitute a waiver of

confidentiality, privilege or immunity from discovery as to such information. Other Remedies 18. Nothing in this Stipulation and Protective Order shall prevent any

party or non-party from seeking additional relief from the Court. ORDER Based upon the above Stipulation of the parties, and good cause having been shown (as described in that Stipulation), IT IS ORDERED THAT the above Stipulation of the parties shall stand as and for the Order of the Court in each and every respect. Dated this ____ day of _____, 2007.

Hon. Loren A. Smith, Senior Judge United States Court of Federal Claims

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ACKNOWLEDGMENT I acknowledge that I have read the attached Stipulation and Protective Order entered by the United States Court of Federal Claims in the case entitled Innovair Aviation Limited v. United States, Case No. 96-408C, and understand that I am authorized to receive Confidential Information subject to that Stipulation and Protective Order. I agree to abide by the obligations and conditions of that Stipulation and Protective Order. I agree to submit to the jurisdiction of the United States Court of Federal Claims for all disputes arising out of or relating to the Stipulation and Protective Order and/or the disclosure or receipt of Confidential Information under that Stipulation and Protective Order. Dated: _____________

Signature: Printed Name: Company: Title/Position:

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CERTIFICATE OF FILING I hereby certify that on this 31st day of JULY, 2007, a copy of this "JOINT MOTION FOR ENTRY OF CONFIDENTIALITY STIPULATION AND 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/ Sheryl L. Floyd

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