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Case 1:06-cv-00305-MBH Document 42 Filed 08/30/2007 Page 1 of 7

IN THE UNITED STATES COURT OF FEDERAL CLAIMS












CONSOLIDATED EDISON COMPANY






OF NEW YORK, INC. &
SUBSIDIARIES,




Plaintiff,
























v.


UNITED STATES,










Defendant.























No. 06-305T

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PROTECTIVE ORDER

Plaintiff Consolidated Edison Company of New York, Inc. and Subsidiaries,
defendant United States, and third party Chase Equipment Leasing, Inc. (f.k.a. Banc One
Leasing Corporation, hereinafter Chase), have stipulated as follows:


1.



Designation of confidential information by Chase will be made by placing
or affixing on the document in a manner that will not interfere with its legibility the
words:


CONFIDENTIAL: Subject to Protective Order in

Consolidated Edison Company v. United States, No. 06-305T (Fed. Cl.)

Chase may designate material as confidential only when it in good faith believes the
material contains nonpublic technical, commercial, financial, personal, or business
information. Unless otherwise stated in this stipulation, a designation of confidential
information must be made prior to, or contemporaneously with, the production or
disclosure of that information.


2.

Except as otherwise provided in this stipulation, information or documents

Case 1:06-cv-00305-MBH Document 42 Filed 08/30/2007 Page 2 of 7

designated as confidential by Chase under this stipulation shall not be used or disclosed
by the remaining parties or their counsel or any persons identified in paragraph 3 of this
stipulation for any purposes whatsoever other than preparing for and conducting the
litigation in this lawsuit (including any appeals).


3.

The parties and counsel for the parties shall not disclose or permit the
disclosure of any documents or information designated as confidential under this
stipulation to any other person or entity, except that disclosures may be made in the
following circumstances:


(a) Disclosure may be made to employees of counsel for the parties, or to
employees of the parties, who have direct functional responsibility, or supervisory
authority, for the preparation and trial of the above-captioned lawsuit. Any such
employee to whom counsel for the parties makes a disclosure must be advised of, and
become subject to, the provisions of this stipulation requiring that the documents and
information be held in confidence.



(b) Disclosures may be made to the court and its employees.

(c) Disclosure may be made to court reporters engaged for depositions and

those persons, if any, specifically engaged for the limited purpose of making
photocopies of documents. Prior to disclosure to any such court reporter or person
engaged in making photocopies of documents, such person must agree to be bound by
the terms of this stipulation.


(d) Disclosure may be made to consultants, investigators, or experts (hereinafter
referred to collectively as "experts") employed by the parties or counsel for the parties to
assist in the preparation and trial of the above-captioned lawsuit. Prior to disclosure to
any expert, the expert must be informed of and agree in writing to be subject to the
provisions of this stipulation requiring that the documents and information be held in
confidence. Each party shall certify to the other party that each expert to whom it has
disclosed information that is confidential under this stipulation has so agreed. Such
certification shall be delivered to the other party at the close of expert witness discovery.

(e) Disclosures may be made to any fact witnesses or potential fact witnesses
when a good faith determination is made that the documents would be relevant to their
testimony or potential testimony. Such witnesses shall be informed of this order, that it
applies to them and be given a copy of the order if requested.

Case 1:06-cv-00305-MBH Document 42 Filed 08/30/2007 Page 3 of 7

4.

Except as provided otherwise in this stipulation, counsel for the parties shall
keep all documents designated as confidential which are received under this stipulation
secure within their exclusive possession and must place such documents in a secure
area.

5.

All copies, duplicates, extracts, summaries, or descriptions (hereinafter
referred to collectively as "copies") of documents or information designated as confidential
under this rule, or any portion thereof, must be immediately affixed with the words:


CONFIDENTIAL: Subject to Protective Order in

Consolidated Edison Company v. United States, No. 06-305T (Fed. Cl.)

if those words do not already appear and shall be treated as confidential under this
stipulation.



7.

6.

Nothing in this stipulation limits the right of any party to seek any protection
it deems necessary for any documents or information, in accordance with Rule 26 of the
Rules of the United States Court of Federal Claims.


Any party may serve a written objection to any designation of confidentiality
made by Chase. This objection shall specifically identify the material or information
to which the objecting party wishes to have the designation removed. Within fourteen
(14) days of receipt of such objection, Chase (i) shall review the material to which the
objection applies, (ii) notify the objecting party in writing whether Chase will agree to
remove the designation as requested, and (iii), if it will not agree to remove the designation,
Chase will state with specificity its reasons for not agreeing. If an agreement cannot be
reached, Chase may move for a ruling from the court, designating the material as
confidential or for other similar protection, within fourteen (14) days of the expiration of
the fourteen (14) day period referenced above. The material at issue will be treated as
confidential until the court decides the motion. If the parties disagree about whether the
information is confidential and Chase does not timely move the court, then the document
is deemed to be not confidential.



8.

To the extent that a party intends to file any document or information
with the court that reveals or tends to reveal information that Chase has designated
as confidential and for which the court has not yet had reason to consider, the filing
party must notify Chase fourteen (14) days prior to the filing to give Chase an opportunity
to prepare and file a motion and order to seal that information. The parties agree not

Case 1:06-cv-00305-MBH Document 42 Filed 08/30/2007 Page 4 of 7

to argue for a favorable ruling against one another for failure to attach a document or
otherwise identify information identified by Chase as confidential pending a
determination by the court regarding the confidentiality of the information.

Nothing in this stipulation shall prevent disclosure of any confidential

information if the designating party consents, in writing, to the disclosure.


9.


10.


11.

Notwithstanding any provision of this stipulation, counsel for the United
States may disclose confidential information or documents to other government
agencies or departments provided that such disclosure is not in contravention of 26
U.S.C. § 6103 (2000). If any confidential information is disclosed to other
governmental Agencies or Departments, counsel for the United States shall notify
Chase of such disclosure in writing and provide a list of the agencies and/or
departments and the Bates numbers of the documents disclosed.

Notwithstanding any provision of this stipulation, the parties may
disclose confidential information or documents if necessary to comply with a subpoena
or court order, whether or not originating with the court in this captioned stipulation.
However, within seven days of when it is recognized that disclosure of confidential
information or documents is required to comply with a subpoena or court order, the
party shall give written notice to Chase of the potential disclosure.


12. Within thirty (30) days of the conclusion of the above-captioned lawsuit, and
except to the extent that information is required to be maintained by federal law or a
Department of Justice (or Tax Division) directive or order, materials designated by
Chase as confidential (and any copies thereof) that are in the possession, custody, or
control of the parties to the lawsuit or their counsel shall be either (i) returned to the party
who designated the materials as confidential or (ii) destroyed, in which case the
destroying party must provide a certificate -- signed by the destroying party's counsel --
to Chase that certifies that all materials designated by a party as confidential (and any
copies thereof) that are in the possession, custody, or control of the opposing party have
been destroyed. This provision does not apply to confidential information or
documents disclosed pursuant to paragraphs 9 or 11 of this stipulation.

13.

Nothing in this stipulation shall be grounds for excluding a document from
evidence. In this regard, protected material filed with the court will be retained by the
clerk’s office under seal. However, information may lose its sensitivity over time, such
that it is not necessary for the court to retain material under seal forever. Therefore, on
or before thirty (30) days after the conclusion of the action before this court, the parties
shall review previously protected information filed with the court, confer with Chase,

Case 1:06-cv-00305-MBH Document 42 Filed 08/30/2007 Page 5 of 7

and propose to the court in a joint written motion what information needs continued
protection, and for what period of time.


IT IS SO ORDERED.



MARIAN BLANK HORN
Judge

s/Marian Blank Horn

Case 1:06-cv-00305-MBH Document 42 Filed 08/30/2007 Page 6 of 7

Case 1:06-cv-00305-MBH Document 42 Filed 08/30/2007 Page 7 of 7

CONFIDENTIALITY AGREEMENT



I have received and read all the terms of the Stipulation and Protective Order in the

above-captioned Consolidated Edison Company of New York, Inc. & Subsidiaries v.

United States, No. 06-305T (Fed. Cl.), and understand and hereby agree to be bound by

all the terms thereof with respect to the use and disclosure of information and materials

designated as “CONFIDENTIAL: Subject to Protective Order in Consolidated Edison

Company v. United States, No. 06-305T (Fed. Cl.).” I further expressly agree that I will

not in any way use, disclose, discuss, summarize, reveal or refer to any information or

material designated "CONFIDENTIAL: Subject to Protective Order in Consolidated

Edison Company v. United States, No. 06-305T (Fed. Cl.)" for any purpose whatsoever

other than in assisting in the conduct of the above-referenced action.

Dated:













Signature



Print Name

Address and Phone Number of Company or

































Firm: