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City of Las Cruces v. United States

United States District Court, D. New Mexico

January 21, 2018

CITY OF LAS CRUCES and DONA ANA COUNTY, Plaintiffs,
v.
UNITED STATES OF AMERICA, UNITED STATES DEPARTMENT OF DEFENSE, and NATIONAL GUARD BUREAU, Defendants.

          PRE-TRIAL ORDER PROTECTING CONFIDENTIALITY

          HONORABLE GREGORY J. FOURATT UNITED STATES MAGISTRATE JUDGE

         1. Purpose. To expedite the flow of discovery material, facilitate the prompt resolution of disputes over confidentiality, protect material to be kept confidential, and ensure that protection is afforded only to material entitled to such treatment, pursuant to the Court's inherent authority, its authority under Rule 26(c) of the Federal Rules of Civil Procedure and the judicial opinions interpreting such Rule.

         2. Information. Information includes the contents of documents, data associated with documents (whether physical or in electronic format), oral and written testimony, answers to interrogatories, admissions, and data derived from objects other than documents, produced or disclosed in these proceedings by any party to these proceedings or by any third party (the “Producing Party”) to any other party or parties (the “Receiving Party”).

         3. Condition. This order covers Information that the Producing Party designates “Confidential” or “Highly Confidential”. “Confidential” Information means Information that (a) constitutes or contains sensitive personal, medical, business or proprietary information, trade secrets or other confidential research, development, or commercial information which is in fact confidential, the disclosure of which might adversely affect a Party's competitive position or business operations, and (b) is designated “CONFIDENTIAL” in accordance with the procedures set forth in this Protective Order. Without limiting the foregoing, documents or information, including deposition, hearing or trial transcripts, that are produced in this action and that have previously been marked as confidential and subject to a protective order in any action shall be deemed “Confidential Information” without further need of designation in this action. Information may be designated as “HIGHLY CONFIDENTIAL” when the Producing Party reasonably believes that the disclosure of Confidential Information to third party competitors will result in commercial harm. The parties shall make Confidential and Highly Confidential designations in good faith to ensure that only those documents that merit Confidential or Highly Confidential treatments are so designated.

         4. Procedure.

A. Designation. To designate information as Confidential or Highly Confidential, a Producing Party must mark it or identify it on the record as such. Either designation may be withdrawn.
B. Marking. All or any part of a document, tangible object, discovery response, or pleading disclosed, produced, or filed by a Producing Party may be designated Confidential or Highly Confidential by marking the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”) on the face of the document and each page so designated. With respect to tangible items or electronically stored information produced in native format, the appropriate legend shall be marked on the face of the tangible item or media containing electronically stored information, if practicable, or by written notice to the Receiving Party at the time of disclosure, production or filing that such tangible item or media is Confidential or Highly Confidential or contains such information.
C. Timing. Documents and other objects must be designated before disclosure. In the event that a Producing Party designates some or all of a witness' deposition testimony Confidential or Highly Confidential, the specific page and line designations over which confidentiality is claimed must be provided to all Parties within fourteen (14) days of receipt of the transcript, provided, however, that Parties will consider reasonable requests for an extension of the deadline. Deposition testimony shall be treated as Highly Confidential pending the deadline or, if applicable, extended deadline for designation.
D. Errors. Accidental or inadvertent disclosure of information does not waive the confidential status of such information or any privilege attached thereto. In the event that Confidential or Highly Confidential Information is inadvertently disclosed, the Producing Party may thereafter reasonably assert a claim or designation of confidentiality, and promptly provide replacement media consistent with this Order. Thereafter, the Receiving Party must immediately return the original information and all copies of the same to the Producing Party and make no use of such information.
E. Rights. Nothing contained in this Protective Order shall affect the right of the disclosing Party to disclose or use for any purpose the Information produced and/or designated by it as Confidential or Highly Confidential Information, nor shall anything in this Protective Order affect the right of the receiving Party to disclose or use for any purpose the Information produced without a designation by the designating Party as Confidential or Highly Confidential Information if the receiving Party has received the same material without any designation, requirement, or agreement of confidentiality, unless subsequently designated under Paragraph 4.D above.
F. Care. Each recipient of Information designated as Confidential or Highly Confidential Information shall maintain such material in a secure, safe area and shall exercise the same standard of care with respect to the storage, custody, use and dissemination of such material as is exercised by the recipient with respect to its own Confidential or Highly Confidential Information.

         5. Who. Confidential Information may be used only by:

A. Parties, and their respective officers, directors, in-house counsel (including counsel at EPA, DOD and NGB), employees, former employees, and agents who are required by a Party to work directly in connection with, or who have responsibility with respect to, this action;
B. The Court and its staff, provided that the Confidential Information is filed in accordance with the terms of this Protective Order and in compliance with Local Rule-Civ-5 and the Court's CM/ECF Administrative Procedures Manual §9(h) or, if used orally in a closed hearing, is used with appropriate restrictions consistent with this Order;
C. Special masters or discovery referees appointed by the Court and their staff;
D. Court reporters (including audio and video), interpreters, translators, copy services, graphic support services, document imaging services, and database/coding services retained by counsel, provided these individuals or an appropriate company official with authority to do so on behalf of the ...

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