Protective Order
- Date
- 2024-03-13
Summary
A Protective Order entered by Senior Judge Charles F. Lettow of the United States Court of Federal Claims in AirBoss Defense Group, LLC v. United States, No. 24-365, filed March 13, 2024. The court finds that information disclosed in the litigation may be competition-sensitive and defines protected information to include source selection, proprietary and confidential information. The order limits access to counsel and their independent consultants and experts who apply on Form 9 or Form 10, with objections due within two business days, and gives court, agency and Department of Justice personnel automatic access. It sets rules for marking, sealed filing, redacted public versions, copying, breaches, and destroying or returning protected information within thirty days after the action concludes.
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In the United States Court of Federal Claims
No. 24-365
(Filed: March 13, 2024)
)
AIRBOSS DEFENSE GROUP, LLC, )
)
Plaintiff, )
)
v. )
)
UNITED STATES, )
)
Defendant. )
)
PROTECTIVE ORDER
The court finds that certain information likely to be disclosed orally or in writing during
the course of this litigation may be competition-sensitive or otherwise protectable and that entry
of a Protective Order is necessary to safeguard the confidentiality of that information.
Accordingly, the parties shall comply with the terms and conditions of this Protective Order.
I.
1. Protected Information Defined. “Protected information” as used in this order means
information that must be protected to safeguard the competitive process, including source
selection information, proprietary information, and confidential information contained in:
(a) any document (e.g., a pleading, motion, brief, notice, or discovery request or
response) produced, filed, or served by a party to this litigation; or
(b) any deposition, sealed testimony or argument, declaration, or affidavit taken or
provided during this litigation.
2. Restrictions on the Use of Protected Information. Protected information may be used
solely for the purposes of this litigation and may not be given, shown, made available,
discussed, or otherwise conveyed in any form except as provided herein or as otherwise
required by federal statutory law.
II.
3. Individuals Permitted Access to Protected Information. Except as provided in paragraphs
7 and 8 below, the only individuals who may be given access to protected information are
counsel for a party and independent consultants and experts assisting such counsel in
connection with this litigation.
4. Applying for Access to Protected Information. An individual seeking access to protected
information pursuant to Appendix C, Section VI of this court’s rules must read this
Protective Order; must complete the appropriate application form (Form 9—“Application
for Access to Information Under Protective Order by Outside or Inside Counsel,” or
Form 10—“Application for Access to Information Under Protective Order by Expert
Consultant or Witness”); and must file the executed application with the court.
5. Objecting to an Application for Access. Any objection to an application for access must
be filed with the court within two (2) business days of the objecting party’s receipt of the
application.
6. Receiving Access to Protected Information. If no objections have been filed by the close
of the second business day after the other parties have received the application, the
applicant will be granted access to protected information without further action by the
court. If any party files an objection to an application, access will be granted only by
court order.
7. Access to Protected Information by Court, Department of Justice, and Agency Personnel.
Personnel of the court, the procuring agency, and the Department of Justice are
automatically subject to the terms of this Protective Order and are entitled to access to
protected information without further action.
8. Access to Protected Information by Support Personnel. Paralegal, clerical, and
administrative support personnel assisting any counsel who has been admitted under this
Protective Order may be given access to protected information by such counsel if those
personnel have first been informed by counsel of the obligations imposed by this
Protective Order.
III.
9. Identifying Protected Information. Protected information may be provided only to the
court and to individuals admitted under this Protective Order and must be identified as
follows:
(a) if provided in electronic form, the subject line of the electronic transmission shall
read “CONTAINS PROTECTED INFORMATION”; or
(b) if provided in paper form, the document must be sealed in a parcel containing the
legend “PROTECTED INFORMATION ENCLOSED” conspicuously marked
on the outside.
The first page of each document containing protected information, including courtesy
copies for use by the judge, must contain a banner stating “Protected Information to Be
Disclosed Only in Accordance With the U.S. Court of Federal Claims Protective
Order” and the portions of any document containing protected information must be
clearly identified.
10. Filing Protected Information. Pursuant to this order, a document containing protected
information may be filed electronically under the court’s electronic case filing system
using the appropriate activity listed in the “SEALED” documents menu. If filed in paper
form, a document containing protected information must be sealed in the manner
prescribed in paragraph 9(b) and must include as an attachment to the front of the parcel a
copy of the certificate of service identifying the document being filed.
11. Protecting Documents Not Previously Sealed. If a party determines that a previously
produced or filed document contains protected information, the party may give notice in
writing to the court and the other parties that the document is to be treated as protected,
and thereafter the designated document must be treated in accordance with this Protective
Order.
IV.
12. Redacting Protected Documents for the Public Record.
(a) Initial Redactions. After filing a document containing protected information in
accordance with paragraph 10, or after later sealing a document pursuant to
paragraph 11, a party must promptly serve on the other parties a proposed
redacted version marked “Proposed Redacted Version” in the upper right-hand
corner of the first page with the claimed protected information deleted.
(b) Additional Redactions. If a party seeks to include additional redactions, it must
advise the filing party of its proposed redactions within two (2) business days
after receipt of the proposed redacted version, or such other time as agreed upon
by the parties. The filing party must then provide the other parties with a second
redacted version of the document clearly marked “Agreed-Upon Redacted
Version” in the upper right-hand corner of the page with the additional
information deleted.
(c) Final Version. At the expiration of the period noted in (b) above, or after an
agreement between the parties has been reached regarding additional redactions,
the filing party must file with the court the final redacted version of the document
clearly marked “Redacted Version” in the upper right-hand corner of the first
page. This document will be available to the public.
(d) Objecting to Redactions. Any party at any time may object to another party’s
designation of certain information as protected. If the parties are unable to reach
an agreement regarding redactions, the objecting party may submit the matter to
the court for resolution. Until the court resolves the matter, the disputed
information must be treated as protected.
V.
13. Copying Protected Information. No party, other than the United States, may for its own
use make more than three (3) copies of a protected document received from another
party, except with the consent of all other parties. A party may make additional copies of
such documents, however, for filing with the court, service on the parties, or use in
discovery and may also incorporate limited amounts of protected information into its own
documents or pleadings. All copies of such documents must be clearly labeled in the
manner required by paragraph 9.
14. Waiving Protection of Information. A party may at any time waive the protection of this
order with respect to any information it has designated as protected by advising the court
and the other parties in writing and identifying with specificity the information to which
this Protective Order will no longer apply.
15. Safeguarding Protected Information. Any individual admitted under this Protective Order
must 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.
16. Breach of the Protective Order. If a party discovers any breach of any provision of this
Protective Order, the party must promptly report the breach to the other parties and
immediately take appropriate action to cure the violation and retrieve any protected
information that may have been disclosed to individuals not admitted under this
Protective Order. The parties must reasonably cooperate in determining the reasons for
any such breach.
17. Seeking Relief from the Protective Order. Nothing contained in this order shall preclude a
party from seeking relief from this Protective Order through the filing of an appropriate
motion with the court setting forth the basis for the relief sought.
VI.
18. Maintaining Filed Documents Under Seal. The court will maintain properly marked
protected documents under seal throughout this litigation.
19. Retaining Protected Information After the Termination of Litigation. Upon conclusion of
this action (including any appeals and remands), the original version of the administrative
record and any other materials that have been filed with the court under seal will be
retained by the court pursuant to RCFC 77.4(c). Copies of such materials may be returned
by the court to the filing parties for disposition in accordance with paragraph 20 of this
Protective Order.
20. Disposing of Protected Information. Within thirty (30) days after the conclusion of this
action (including any appeals and remands), each party must destroy all protected
information received pursuant to this litigation and certify in writing to each other party
that such destruction has occurred or must return the protected information to the parties
from which the information was received. With respect to protected electronically stored
information (ESI) stored on counsel’s computer network(s), destruction of such ESI for
purposes of compliance with this paragraph shall be complete when counsel takes
reasonable steps to delete all such ESI from the active email system (such as, but not
limited to, the “Inbox,” “Sent Items,” and “Deleted Items” folders) of admitted counsel
and of any personnel who received or sent emails with protected information while
working under the direction and supervision of such counsel, and by deleting any
protected ESI from databases under counsel’s control. Compliance with this paragraph
does not require counsel to search for and remove ESI from any computer network back-
up tapes, disaster recovery systems, or archival systems. Each party may retain one copy
of such documents, except when the retention of additional copies is required by federal
law or regulation, provided those documents are properly marked and secured.
It is so ORDERED.
s/ Charles F. Lettow
Charles F. Lettow
Senior Judge
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