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Pueblo of Jemez v. United States

United States District Court, D. New Mexico

March 17, 2017

PUEBLO OF JEMEZ, a federally recognized Indian tribe, Plaintiff,
UNITED STATES OF AMERICA, Defendant, and NEW MEXICO GAS COMPANY, Defendant-in-Intervention.


          William P. Lynch United States Magistrate Judge

         This Order addresses the disclosure and exchange in this litigation of potentially sensitive, religious information of the Pueblo of Jemez (“Plaintiff”) that Plaintiff contends is prohibited from disclosure by its traditional law, or information that may trigger the American Indian Religious Freedom Act of 1978 (“AIRFA”), or archaeological information that may be subject to confidentiality under the Archaeological Resource Protection Act (“ARPA”), 16 U.S.C. § 470hh. It is not intended to cover potentially sensitive cultural information of other pueblos or tribes that may be subject to confidentiality under Section 304 of the National Historic Preservation Act, 54 U.S.C. § 307103. If necessary and appropriate, Plaintiff, Defendant United States (“Defendant”), or Defendant-Intervenor New Mexico Gas Company (“Defendant-Intervenor”) (collectively, “Parties”), unilaterally or jointly, may move for entry of an additional protective order for Section 304 information belonging to other pueblos or tribes. In order to protect the confidential information in connection with this case, the Court orders as follows:

         1. For purposes of this Order, the term “Confidential Information” means: (a) potentially sensitive, religious information belonging to Plaintiff, including, but not limited to, the location of religious sites, shrines, offerings, trails, or details of certain religious practices; or (b) archaeological information subject to confidentiality under the ARPA.

         2. This Order applies to all documents or information produced in any manner by Plaintiff.

         3. Plaintiff may designate any document as “Confidential” by stamping each page of the document as “Confidential” or designating any written response to a discovery request as “Confidential.” Documents containing Confidential Information will be produced separately from other non-confidential materials. The disc, thumb drive, cover page, pdf or other medium containing Confidential Information will also be marked “Confidential.” Plaintiff may designate information disclosed during a deposition as confidential by stating so on the record at the deposition and requesting preparation of a separate transcript of such material. In addition, Plaintiff or a deponent may designate in writing, within twenty (20) days after receipt of the deposition transcript, specific pages of the transcript and/or specific responses to be treated as “Confidential Information.”

         4. No documents stamped “Confidential” shall be publicly filed with the Court. Documents stamped “Confidential” shall be submitted to the Court under seal using the following procedures:

a. The original signed copy of any pleading containing, referring to, or otherwise disclosing Confidential Information shall be filed with the Clerk of the Court in the normal manner under the Local Rules of this Court, but the Confidential Information contained, referred to, or otherwise disclosed therein shall be redacted (and bear the stamp “REDACTED”) so that it does not appear in the filed copy of the pleading or filing; and
b. A second copy of the pleading or filing, containing an unredacted version of the Confidential Information, shall be filed with the Clerk of the Court by selecting the “Accessible by all case participants but not the public” option in step 5 (access level) of the CM/ECF filing system and should be “sealed” by whatever process required by the Court.

         5. All Confidential Information produced by Plaintiff in the course of this case (not including information that is publicly available or otherwise previously in the possession of the Defendant or Defendant-Intervenor) shall be used by the Parties, their counsel, or any other person to whom the information is produced or provided solely for the purpose of this case and shall be held in strict confidence. The Valles Caldera National Preserve (“VCNP”) may not use any Confidential Information for educational or academic purposes, or include any Confidential Information in any materials, presentations or tours, study or research not conducted as part of the Defendant's defense of the litigation, or for recording or memorializing information for purposes other than defense of this case. All Confidential Information produced or otherwise provided by Plaintiff, and any documents containing Confidential Information produced or otherwise provided by Plaintiff during this litigation, shall be destroyed or returned at the end of the litigation as described below. Nor shall Defendant, through the VCNP or otherwise, use Confidential Information in any manner to identify sites for excavation sites or to identify, record, or collect ceremonial objects identified by Confidential Information. If the VCNP maintains that it has previously and specifically identified such sites or ceremonial objects through information available prior to this litigation, Defendant shall so notify Plaintiff at least thirty days prior to any action being taken by the VCNP unrelated to this litigation so that the Plaintiff may seek appropriate relief from the Court if necessary. Subject to the provisions of Paragraph 6, Confidential Information will not be furnished, shown, or disclosed to any person except:

a. Designated legal counsel for the Defendant and Defendant-Intervenor and paralegal, secretarial, and clerical employees of such designated counsel;
b. Employees designated as experts or outside experts or consultants retained for the purpose of assisting counsel in this litigation;
c. The following current employees of the United States Department of the Interior: (1) Anastasia Steffen; and (2) Hannah Van Vlack; and
d. Any person designated by the Court in the interest of justice, upon such terms as the Court may deem proper.

         6. Before disclosing Confidential Information produced or otherwise provided by Plaintiff to any persons identified in Paragraph 5(a), (b), or (c), counsel shall require such persons to read a copy of this Order and sign a copy of the Confidentiality Agreement, attached hereto, affirming that the recipient: (a) has read this Order and understands all of its terms; (b) agrees to abide by and to be bound by the terms of this Order; (c) agrees to submit to the Court's jurisdiction for purposes of enforcement of this Order by proceedings from contempt and/or proceedings for legal and/or equitable relief, including damages, should any breach of this Agreement occur. Office support or administrative staff who simply handle or file the Confidential Information but do not review their contents or retain copies thereof in any form need not execute a Confidentiality Agreement. Counsel shall retain such Confidentiality Agreement(s) until such time as the litigation, including all appeals, is concluded and counsel has retrieved all Confidential Information ...

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