Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:03-cv-02684-CFL

Document 511-2

Filed 07/19/2007

Page 1 of 5

THE UNITED STATES COURT OF FEDERAL CLAIMS _____________________________________ SHELDON PETER WOLFCHILD, et al., ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) ) Defendant. ) _____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow

[PROPOSED] MODIFICATION TO PRIVACY ACT PROTECTIVE ORDER On May 5, 2006, the Court entered a Privacy Act Protective Order, pursuant to 5 U.S.C. § 552a(b)(11), to protect certain material being produced to Plaintiffs' counsel of record by Defendant pursuant to the Court's December 16, 2005, Order, solely for the purpose of mailing notice to potential plaintiffs, as set forth in paragraph (2) of the May 5, 2006, Privacy Act Protective Order. Defendant produced that material to Plaintiffs' counsel under cover of a letter dated May 11, 2006. Since the date the Privacy Act Protective Order was issued, a number of persons filed Motions to Intervene, and certain Motions were granted, as set forth in the Court's August 22, 2006 Opinion and Order, and the Court's April 27, 2007, Opinion and Order. Plaintiff-Intervenors have filed a Motion to Modify the May 5, 2006 Privacy Act Protective Order so their counsel of record in the above-captioned lawsuit can be provided copies of the same material Plaintiffs' counsel received. Upon consideration of Plaintiff-Intervenors' Motion, the record in this case, and the applicable law, the Privacy Act Protective Order entered May 5, 2006, is hereby modified as follows: (1) Defendant may provide to counsel of record for persons granted intervention in the above-captioned lawsuit copies of the materials provided to Plaintiffs' counsel under the existing Privacy Act Protective Order entered May 5, 2006. Those lists and other materials, and any portion of them, including the private information contained therein, are hereinafter referred to as "the Privacy Act Material," and they maintain their status as Privacy Act Material under the existing Privacy Act Protective Order entered May 5, 2006.

Case 1:03-cv-02684-CFL

Document 511-2

Filed 07/19/2007

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(2)

Counsel of record for Plaintiff-Intervenors shall use the Privacy Act Material solely for their research and investigation of whether their clients are lineal descendants of persons listed on the 1886 and 1889 censuses or lineal descendants of loyal Mdewakanton not listed on the 1886 census or 1889 supplement. Nothing in this Order shall prevent the parties from negotiating or entering into an appropriate Confidentiality Agreement respecting further use in the above-captioned litigation of the Privacy Act Material, should Plaintiff-Intervenors later wish to use the Privacy Act Material for some other purpose in the above-captioned litigation. The Privacy Act Material shall not be disclosed by anyone who receives the information pursuant to the May 5, 2006, Privacy Act Protective Order or this modification of that Order, to anyone not entitled to receive it under the terms of this Order or the May 5, 2006, Privacy Act Protective Order (including parties to this case), unless the individual whose name or other identifying information or personal information is referenced in the materials agrees to the disclosure in writing prior to the date of disclosure, or by order of this court. In connection with the research and investigation of whether their clients are lineal descendants of persons listed on the 1886 and 1889 censuses or lineal descendants of loyal Mdewakanton not listed on the 1886 census or 1889 supplement, Plaintiff-Intervenors' counsel of record may disclose Privacy Act Material to: a. co-counsel in the above-captioned litigation and necessary secretarial, clerical, and litigation support or copy service personnel assisting those attorneys; and outside consultants or other expert witnesses performing services for Plaintiff-Intervenors' counsel in connection with the research and investigation of their clients' lineal descendancy together with their clerical or support personnel, provided that Plaintiffs-Intervenors' counsel discloses the identity of the consultant or expert to the parties seven (7) days before disclosing the Privacy Act Material to the expert or consultant.

(3)

(4)

b.

(5)

Before having access to these records, all individuals (except the Court and Court personnel) having access to these records and all individuals to whom these records or the information therein are disclosed shall be required to sign a copy of the Acknowledgment of Modified Privacy Act Protective Order form attached hereto as Exhibit A indicating that they have read and agree to abide by the terms of this Order. Signed acknowledgment forms shall be retained by Plaintiffs' and Plaintiff-

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Case 1:03-cv-02684-CFL

Document 511-2

Filed 07/19/2007

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Intervenors' counsel and be available upon request to Defendant's counsel of record and the court. (6) Defendant shall mark all materials pursuant to this Order as follows: a. Each document shall be stamped or otherwise marked with the words "CONFIDENTIAL--ATTORNEY EYES ONLY", or an equivalent phrase. That marking shall be placed on the first page of the document and on each subsequent page, with "bates" or similar numbering on each page in sequential numerical order. b. Although Defendant does not presently contemplate producing material in a magnetic medium (such as a floppy diskette), should it do so, it will mark or label the medium or the medium's container with the words "CONFIDENTIAL-ATTORNEY EYES ONLY" or an equivalent phrase. If any person or entity who receives such a magnetic medium then prints or otherwise transfers to another medium any of the information contained on the magnetic medium, that other medium or all pages of any resulting document, shall be marked with the words "CONFIDENTIAL--ATTORNEY EYES ONLY", or an equivalent phrase, by the person or entity generating the document or other medium from the magnetic medium provided by the Defendant. (7) Upon the termination of the above-captioned litigation, including any appeals therefrom or the expiration of any time to appeal, Plaintiffs' counsel and counsel for Plaintiff-Intervenors shall either (a) collect and return to Defendant's counsel of record in the above-captioned litigation, no later than 30 days after the termination of the litigation, all copies made of the Privacy Act Material produced by Defendant pursuant to this Order; or, upon the written consent of Defendant's counsel of record, (b) collect and destroy all copies made of those documents, within 30 days after the termination of the litigation, and (also within that 30-day period), certify in writing that the documents have been destroyed. (8) This Order shall survive the termination of this case and is binding for all time, except as the parties may agree in writing and as such written agreement may be approved by an Order of the Court. Nothing in this Order shall prohibit Plaintiffs, Plaintiff-Intervenors or Defendant from making a motion to the Court to modify the protection given to documents produced under this Order or to modify the Order itself.

(9)

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Case 1:03-cv-02684-CFL

Document 511-2

Filed 07/19/2007

Page 4 of 5

(10)

Nothing in this Order shall be construed to remove or diminish the obligations of Plaintiffs or Plaintiffs' counsel with respect to the Privacy Act Material, as set forth in the existing Privacy Act Protective Order entered May 5, 2006. SO ORDERED. ENTERED:____________________ _____________________________ Honorable Charles F. Lettow Judge

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Case 1:03-cv-02684-CFL

Document 511-2

Filed 07/19/2007

Page 5 of 5

THE UNITED STATES COURT OF FEDERAL CLAIMS _____________________________________ SHELDON PETER WOLFCHILD, et al., ) ) ) Plaintiffs, ) ) v. ) ) THE UNITED STATES OF AMERICA, ) ) ) Defendant. ) _____________________________________)

Case No. 03-2684L Hon. Charles F. Lettow

ACKNOWLEDGMENT OF PRIVACY ACT PROTECTIVE ORDER AND MODIFICATION OF PRIVACY ACT PROTECTIVE ORDER I, _________________________________, hereby acknowledge that I have read, and understand, (1) the May 5, 2006 Privacy Act Protective Order and (2) the Modification to Privacy Act Protective Order entered in this action on ___________________, 2007 (collectively, "the Orders"). I hereby agree to be bound by the terms of the Orders. Dated: ____________________ ________________________ (Signature) ________________________ (Printed Name)

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