40840                           SERVICE DATE – LATE RELEASE JUNE 4, 2010

DO

 

SURFACE TRANSPORTATION BOARD

 

DECISION

 

Docket No. NOR 42122

 

NRG POWER MARKETING LLC

v.

CSX TRANSPORTATION, INC.

 

MOTION FOR PROTECTIVE ORDER

 

Decided:  June 4, 2010

 

This decision establishes a protective order for this proceeding.

            NRG Power Marketing LLC (NRG) challenges the reasonableness of rates established by CSX Transportation, Inc. (CSXT), for the transportation of coal from Chicago, Ill., to 2 NRG coal-fired generating plants:  the Huntley Power LLC, located in Tonawanda, N.Y.; and the Dunkirk Power LLC, located at Dunkirk, N.Y.  NRG alleges that CSXT possesses market dominance over the traffic and requests that maximum reasonable rates be prescribed pursuant to the Board’s Stand-Alone Cost test.

 

            On May 25, 2010, NRG filed a motion for protective order with respect to evidentiary submissions and discovery.  On May 28, 2010, NRG and CSXT (the parties) filed a letter stating that they had agreed on terms for a protective order in this proceeding that differed from those originally proposed by NRG in its May 25, 2010 motion.  NRG withdrew the proposed protective order attached to its motion, and the parties jointly request that the Board enter a protective order in the form provided as an appendix to the parties’ May 28, 2010 letter.

 

The proposed protective order, as set out in the appendix to this decision, is consistent with the protective orders entered by the Board in recent rate proceedings.[1]  It includes provisions governing the production of highly confidential material and other related provisions required by Procedures to Expedite Resolution of Rail Rate Challenges to Be Considered Under the Stand-Alone Cost Methodology, 6 S.T.B. 805 (2003) and EP 638 (STB served June 6, 2003).  The protective order also stipulates that the protected exchange of material will not be deemed a violation of 49 U.S.C. § 11904.  Finally, as an adaptation designed to avoid the need for routine, unopposed motions to compel the disclosure of confidential contracts related to the dispute, the protective order (at paragraph 7) specifically provides for the production of such contracts to enable a more efficient discovery process.

 

            Good cause exists to grant the request for protective order.  The unrestricted disclosure of confidential, proprietary, or commercially sensitive material could cause serious competitive injury.  Issuance of the requested protective order will ensure that the material, produced in response to a discovery request or otherwise, will be used only in connection with this proceeding and not for any other business or commercial purpose.  The motion conforms with 49 C.F.R. § 1104.14 governing requests for protective orders to maintain confidentiality of materials submitted to the Board, and 49 C.F.R. § 1114.21(c) governing protective orders regarding discovery.  Accordingly, the request for protective order will be granted.

 

This decision will not significantly affect either the quality of the human environment or the conservation of energy resources.

 

            It is ordered:

 

            1.  The parties’ request for protective order is granted.

 

            2.  The parties are directed to comply with the protective order in the appendix to this decision.

 

            3.  This decision is effective on its service date.

 

            By the Board, Rachel D. Campbell, Director, Office of Proceedings.

 

APPENDIX

 

PROTECTIVE ORDER

 

1.         Any party producing information, data, documents or other material (hereinafter collectively referred to as “material”) in discovery to another party to this proceeding, or submitting material in pleadings, that the party in good faith believes reflects proprietary or confidential information, may designate and stamp such material as “CONFIDENTIAL,” and such material must be treated as confidential.  Such material, any copies, and any data or notes derived therefrom:

(a)     Shall be used solely for the purpose of this proceeding and any judicial review proceeding arising herefrom, and not for any other business, commercial, or competitive purpose.

(b)     May be disclosed only to employees, counsel, or agents of the party requesting such material who have a need to know, handle, or review the material for purposes of this proceeding and any judicial review proceeding arising herefrom, and only where such employee, counsel, or agent has been given and has read a copy of this Protective Order, agrees to be bound by its terms, and executes the attached Undertaking for Confidential Material prior to receiving access to such materials.

(c)     Must be destroyed by the requesting party, its employees, counsel, and agents, at the completion of this proceeding and any judicial review proceeding arising herefrom.  However, outside counsel and consultants for a party are permitted to retain file copies of all pleadings filed with the Board.

(d)     If contained in any pleading filed with the Board shall, in order to be kept confidential, be filed only in pleadings submitted in a package clearly marked on the outside “Confidential Materials Subject to Protective Order.”  See 49 C.F.R. § 1104.14.

 

2.         Any party producing material in discovery to another party to this proceeding, or submitting material in pleadings, may in good faith designate and stamp particular material, such as material containing specific rate, traffic, or cost data or other competitively sensitive information, as “HIGHLY CONFIDENTIAL.”  If any party wishes to challenge such designation, the party may bring such matter to the attention of the Board.  Material that is so designated may be disclosed only to outside counsel or outside consultants of the party requesting such materials who have a need to know, handle, or review the materials for purposes of this proceeding and any judicial review proceeding arising herefrom, provided that such outside counsel or outside consultants have been given and have read a copy of this Protective Order, agree to be bound by its terms, and execute the attached Undertaking for Highly Confidential Material prior to receiving access to such materials.  Material designated as “HIGHLY CONFIDENTIAL” and produced in discovery under this provision shall be subject to all of the other provisions of this Protective Order, including without limitation paragraph 1.

 

3.         In the event that a party produces material which should have been designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” and inadvertently fails to designate the material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” the producing party may notify the other party in writing within 5 days of the producing party’s discovery of its inadvertent failure to make the confidentiality designation.  The party who received the material (“receiving party”) without the confidentiality designation will return the non-designated portion (including any and all copies in any form or format) or destroy it, as directed by the producing party, or take such other steps as the parties agree to in writing.  The producing party will promptly furnish the receiving party with properly designated material.

 

4.         In the event that a party inadvertently produces material that is protected by the attorney client privilege, work product doctrine, or any other privilege or protection from discovery or disclosure, the producing party may make a written request, within a reasonable time after the producing party discovers the inadvertent disclosure, that the receiving party return the inadvertently produced privileged document(s).  The receiving party will either return the inadvertently produced document(s) (including any and all copies in any form or format) to the producing party or destroy that (those) document(s) immediately upon receipt of the written request, as directed by the producing party.  By returning or destroying the document, the receiving party is not conceding that the document is privileged and is not waiving its right to later challenge the substantive privilege claim, provided that it may not challenge the privilege claim by arguing that the inadvertent production waived the privilege.

 

5.         If any party intends to use “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material at hearings in this proceeding, or in any judicial review proceeding arising herefrom, the party so intending shall submit any proposed exhibits or other documents setting forth or revealing such “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material to the Board, or the court, as appropriate, with a written request that the Board or the court:  (a) restrict attendance at the hearings during discussion of such “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material; and (b) restrict access to the portion of the record or briefs reflecting discussion of such “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material in accordance with the terms of this Protective Order.

 

6.         If any party intends to use “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material in the course of any deposition in this proceeding, the party so intending shall so advise counsel for the party producing the materials, counsel for the deponent, and all other counsel attending the deposition, and all portions of the deposition at which any such “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material is used shall be restricted to persons who may review the material under this Protective Order.  All portions of deposition transcripts and/or exhibits that consist of or disclose “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material shall be kept under seal and treated as “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material in accordance with the terms of this Protective Order.

 

7.         Each party is ordered to produce to the other party contracts (including but not limited to, rail transportation contracts) or other documents or information which, because of confidentiality provisions, cannot be produced without a Board order directing their production to the extent that (1) the other party has requested that the documents be produced in discovery, and (2) the parties agree that the requested documents would be properly discoverable in this proceeding but for the confidentiality provision(s).  Such documents shall be required to be produced only after the other party(ies) to a contract (or other document subject to a confidentiality provision) who are entitled to prior notice have been provided written notice and a reasonable opportunity to object to that production and obtain a ruling from the Board on that objection.  Any documents (including, without limitation, contracts) produced pursuant to this Section 7 shall be treated as “HIGHLY CONFIDENTIAL” and shall otherwise be subject to the terms of this Protective Order.  To the extent that material reflecting the terms of contracts, shipper-specific traffic data, other traffic data, or other proprietary information is produced by a party in this or any related proceedings and is held and used by the receiving person in compliance with this Protective Order, such production, disclosure, and use of the material and of the data that the material contains will be deemed essential for the disposition of this and any related proceedings and will not be deemed a violation of 49 U.S.C. § 11904.

 

8.         Except for this proceeding, the parties agree that if a party is required by law or order of a governmental or judicial body to release “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material produced by the other party or copies or notes thereof as to which it obtained access pursuant to this Protective Order, the party so required shall notify the producing party in writing within 3 working days of the determination that the “CONFIDENTIAL” material, “HIGHLY CONFIDENTIAL” material, or copies or notes are to be released, or within 3 working days prior to such release, whichever is soonest, to permit the producing party the opportunity to contest the release.

 

9.         Information that is publicly available or obtained outside of this proceeding from a person with a right to disclose it shall not be subject to this Protective Order even if the same information is produced and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” in this proceeding.

 

10.       Each party has a right to view its own data, information and documentation (i.e., information originally generated or compiled by or for that party), even if that data, information and documentation has been designated as “HIGHLY CONFIDENTIAL” by a producing party, without securing prior permission from the producing party.  If a party (the “filing party”) files and serves upon the other party (the “reviewing party”) a pleading or evidence containing the filing party’s “HIGHLY CONFIDENTIAL” material, the filing party shall also prepare and serve contemporaneously upon the reviewing party a “CONFIDENTIAL” version of the pleading or evidence from which the filing party’s “HIGHLY CONFIDENTIAL” material has been redacted.  The “CONFIDENTIAL” version may be provided in hardcopy or electronic format at the option of the filing party, and may be disclosed to those personnel employed by the reviewing party who have read a copy of this Protective Order and executed the attached Undertaking for Confidential Material (“In-house Personnel”).

 

11.       Any party filing with the Board a “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pleading in this proceeding should simultaneously file a public version of the pleading.

UNDERTAKING

CONFIDENTIAL MATERIAL

 

            I, _______________________________, have read the Protective Order served on June 4, 2010, governing the production of confidential documents in STB Docket No. NOR 42122 understand the same, and agree to be bound by its terms.  I agree not to use or permit the use of any data or information obtained under this Undertaking, or to use or permit the use of any techniques disclosed or information learned as a result of receiving such data or information, for any purposes other than the preparation and presentation of evidence and argument in STB Docket No. NOR 42122 or any judicial review proceeding arising herefrom.  I further agree not to disclose any data or information obtained under this Protective Order to any person who has not executed an Undertaking in the form hereof.  At the conclusion of this proceeding and any judicial review proceeding arising herefrom, I will promptly destroy any copies of such designated documents obtained or made by me or by any outside counsel or outside consultants working with me, provided, however, that outside counsel may retain file copies of pleadings filed with the Board.  I understand and agree that money damages would not be a sufficient remedy for breach of this Undertaking and that parties producing confidential documents shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and I further agree to waive any requirement for the securing or posting of any bond in connection with such remedy.  Such remedy shall not be deemed to be the exclusive remedy for breach of this Undertaking but shall be in addition to all remedies available at law or equity.

 

 

Signature: __________________________________            Date: ___________________

UNDERTAKING

HIGHLY CONFIDENTIAL MATERIAL

 

            As outside [counsel] [consultant] for _______________________________, for which I am acting in this proceeding, I have read the Protective Order served on June 4, 2010, governing the production of confidential documents in STB Docket No. NOR 42122, understand the same, and agree to be bound by its terms.  I further agree not to disclose any data, information or material designated “HIGHLY CONFIDENTIAL” to any person or entity who: (i) is not eligible for access to “HIGHLY CONFIDENTIAL” material under the terms of the Protective Order, or (ii) has not executed a “HIGHLY CONFIDENTIAL” undertaking in the form hereof.  I also understand and agree, as a condition precedent to my receiving, reviewing, or using copies of any documents designated “HIGHLY CONFIDENTIAL,” that I will limit my use of those documents and the information they contain to this proceeding and any judicial review proceeding arising herefrom, that I will take all necessary steps to assure that said documents and information will be kept on a confidential basis by any outside counsel or outside consultants working with me, that under no circumstances will I permit access to said documents or information by personnel of my client, its subsidiaries, affiliates, or owners, and that at the conclusion of this proceeding and any judicial review proceeding arising herefrom, I will promptly destroy any copies of such designated documents obtained or made by me or by any outside counsel or outside consultants working with me, provided, however, that outside counsel may retain file copies of pleadings filed with the Board.  I further understand that I must destroy all notes or other documents containing such highly confidential information in compliance with the terms of the Protective Order.  Under no circumstances will I permit access to documents designated “HIGHLY CONFIDENTIAL” by, or disclose any information contained therein to, any persons or entities for which I am not acting in this proceeding.  I understand and agree that money damages would not be a sufficient remedy for breach of this Undertaking and that parties producing confidential documents shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and I further agree to waive any requirement for the securing or posting of any bond in connection with such remedy.  Such remedy shall not be deemed to be the exclusive remedy for breach of this Undertaking but shall be in addition to all remedies available at law or equity.

 

____________________________________

OUTSIDE [COUNSEL][CONSULTANT]

 

 

 

 

Dated: _____________________________