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American Farm Bureau Federation v. U.S. Environmental Protection Agency

United States District Court, D. Minnesota

February 6, 2015

American Farm Bureau Federation, National Pork Producers Council, Plaintiffs,
v.
U.S. Environmental Protection Agency Gina McCarthy, Administrator of the U.S. Environmental Protection Agency, Defendants, and Food & Water Watch, Environmental Integrity Project, and Iowa Citizens for Community Improvement, Intervenors

For American Farm Bureau Federation, Plaintiff: Jay C Johnson, Kathryn K Floyd, Meredith L Boylan, LEAD ATTORNEYS, PRO HAC VICE, Venable LLP, Washington, DC; Matthew C Berger, LEAD ATTORNEY, Dustan J Cross, Gary W Koch, Gislason & Hunter LLP - New Ulm, New Ulm, MN.

For National Pork Producers Council, Plaintiff: Jay C Johnson, Meredith L Boylan, LEAD ATTORNEYS, PRO HAC VICE, Venable LLP, Washington, DC; Matthew C Berger, LEAD ATTORNEY, Gary W Koch, Gislason & Hunter LLP - New Ulm, New Ulm, MN.

For Gina McCarthy, Administrator of the U.S. Environmental Protection Agency, U.S. Environmental Protection Agency, Defendants: Chad A Blumenfield, Pamela Marentette, LEAD ATTORNEYS, United States Attorney's Office, Minneapolis, MN.

For Food & Water Watch, Environmental Integrity Project, Iowa Citizens for Community Improvement, Intervenors: David J Warden, LEAD ATTORNEY, Daniel Q Poretti, Nilan Johnson Lewis PA, Mpls, MN; Jeffrey S Gulley, LEAD ATTORNEY, PRO HAC VICE, Government Accountability Project, Washington, DC.

AMENDED PROTECTIVE ORDER

ANN D. MONTGOMERY, UNITED STATES DISTRICT JUDGE.

Based on the undersigned's discretion and inherent power to modify a protective order, and in light of the agreement reached by Plaintiffs and Defendants, the Protective Order [Docket No. 66] governing this case is hereby amended.[1]

Pursuant to Fed.R.Civ.P. 26(c), confidential information shall be disclosed only in designated ways:

1. Plaintiffs American Farm Bureau Federation and the National Pork Producers Council (collectively the " Plaintiffs") have filed a Complaint against Defendants United States Environmental Protection Agency and its Administrator, Gina McCarthy (collectively the " EPA" or " Defendants").

2. Pursuant to their Complaint, Plaintiffs seek preliminary and permanent injunctive relief prohibiting the release of certain information relating to farms and their operations (" Farm Information") (as defined below) which has been collected by the Defendants. By their Complaint, Plaintiffs have asserted that under the Freedom of Information Act (" FOIA"), the EPA has released, and intends to continue releasing, Farm Information that includes, among other things " farmers' names, home addresses, telephone numbers, email addresses, and GPS coordinates." Compl. ¶ 79. Plaintiffs also have alleged that this Farm Information is protected as " [p]ersonnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" under FOIA Exemption 6 and should not be released. Defendants deny any violation of the FOIA or the Administrative Procedure Act.

3. Food & Water Watch, Environmental Integrity Project, and Iowa Citizens for Community Improvement (collectively " Intervenors") have filed a FOIA request with the EPA which includes a request for Farm Information which is at issue in this action, and which request has been deferred by the EPA pending the outcome of the instant case. In addition, Food & Water Watch is currently in possession of all records that were provided to Earthjustice, the Natural Resources Defense Council, and the Pew Charitable Trust in response to their September 11, 2012 and October 24, 2012 FOIA requests and has made these records available to the general public upon request.

4. The Parties have agreed that this is a case for review based upon the EPA's administrative record (the " Administrative Record").

5. The Administrative Record contains Farm Information, as defined below.

6. The parties agree that the entry of a Stipulated Protective Order (the " Protective Order") is warranted during the pendency of the litigation to protect against the disclosure of documents and information constituting Farm Information.

7. As used in the Protective Order, these terms have the following meanings:

" Attorneys" means counsel of record;

" Confidential-Attorney Eyes Only" documents are documents and material designated pursuant to the provisions listed below;

" Confidential-File Under Seal" documents are documents and material designated pursuant to the provisions listed below;

" Documents" are all materials within the scope of Fed.R.Civ.P. 34;

" Farm Information" means and includes: farmers' names and names of family members, addresses, telephone numbers, Social Security numbers, email addresses, GPS coordinates, inspection records, communication records (between a farmer and EPA and/or the relevant state), enforcement records, owner or operators of farms, and other CAFO information and farm data, all of which the EPA collected pursuant to the EPA's effort to collect data as discussed in EPA's Withdrawal of the Proposed NPDES CAFO Reporting Rule, 77 Fed. Reg. 42679 (July 20, 2012).

8. Subject to the limitations described in paragraphs 25 and 26 below, the EPA shall not disclose Farm Information in response to any request submitted under the Freedom of Information Act pending a final resolution of this litigation, including any appeals.

9. The Parties hereby agree that those parts of the Administrative Record which contain Farm Information that was not disclosed by the Defendant, EPA, in its April 30, 2013 FOIA response, shall be deemed CONFIDENTIAL-ATTORNEYS EYES ONLY. In designating certain Farm Information as CONFIDENTIAL-ATTORNEY EYES ONLY in compliance with this protective order, Defendants' designation shall not be construed as an admission that such information is subject to FOIA Exemption 6 or an admission that such information is not or should not be publicly available.

10. Subject to the limitations described in paragraphs 25 and 26 below, all documents or portions thereof designated as CONFIDENTIAL-ATTORNEY EYES ONLY pursuant to paragraph 8 above shall be released solely for the purpose of this action, and pursuant to the terms of this protective order, and no person receiving such documents shall, directly or indirectly, use, transfer, disclose, or communicate in any way the documents or their contents to any person other than those specified in paragraph 10.

11. Subject to the limitations described in paragraphs 25 and 26, access to any CONFIDENTIAL-ATTORNEY EYES ONLY document or material shall be limited to:

(a) the Court and its staff;
(b) named attorneys to the proceeding and their law firms; and
(c) court reporters retained to transcribe testimony; and
(d) no more than 3 staff members of each Intervenor provided that, prior to having access to any CONFIDENTIAL-ATTORNEY EYES ONLY document or material, the staff member execute a Written Assurance as attached hereto as Exhibit A.

12. With the exception of certain Farm Information specifically referenced in paragraph 8, the portions of the Administrative Record containing Farm Information that was disclosed by the Defendant, EPA, in its April 30, 2013 FOIA release shall be marked CONFIDENTIAL-FILE UNDER SEAL. Documents marked CONFIDENTIAL-FILE UNDER SEAL shall not be filed on the Court's ECF system, but shall instead be filed under seal. In designating certain Farm Information as CONFIDENTIAL-FILE UNDER SEAL in compliance with this protective order, Defendants' designation shall not be construed as an admission that such information is subject to FOIA Exemption 6 or an admission that such information is not or should not be publicly available.

13. Defendants shall designate as CONFIDENTIAL-ATTORNEY EYES ONLY any part or all of the Administrative Record that contains Farm Information deemed CONFIDENTIAL-ATTORNEYS EYES ONLY pursuant to paragraph 8 above. Defendants shall designate as CONFIDENTIAL-FILE UNDER SEAL any part or all of the Administrative Record that contains Farm Information deemed CONFIDENTIAL-FILE UNDER SEAL pursuant to paragraph 11 above. These designations shall be made by stamping or affixing the legend CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL on the face of the document, and on each page a portion thereof that contains Farm Information which shall subject the material to this Protective Order without any further act on the part of the designating Party. All Farm Information designated as CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL pursuant to this agreement shall be handled in strict accordance with the terms of this Protective Order.

14. Plaintiffs, Intervenors, or third parties producing documents in the course of this action, if any, may also designate documents as CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL, subject to the same protections and constraints as the parties to the action. A copy of the Protective Order shall be served along with any subpoena served in connection with this action. All documents produced in this manner shall be treated as CONFIDENTIAL-ATTORNEY EYES ONLY for a period of 14 days from the date of their production, and during that period any party may designate such documents as CONFIDENTIAL-ATTORNEYS EYES ONLY pursuant to the terms of the Protective Order.

15. All depositions or portions of depositions taken in this action, if any, that contain Farm Information deemed CONFIDENTIAL-ATTORNEYS EYES ONLY under paragraph 8 or CONFIDENTIAL-FILE UNDER SEAL under Paragraph 11 above may be designated CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL and thereby obtain the protections accorded by this protective order. Such designations for depositions shall be made either on the record or by written notice to the other party within 14 days of receipt of the transcript. Unless otherwise agreed, depositions shall be treated as CONFIDENTIAL-ATTORNEY EYES ONLY during the 14-day period following receipt of the transcript. The deposition of any witness (or any portion of such deposition) that encompasses Farm Information designated as CONFIDENTIAL-ATTORNEYS EYES ONLY shall be taken only in the presence of persons who are qualified to have access to such information.

16. Any party who inadvertently fails to properly designate documents or portions thereof as CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL pursuant to this agreement shall, promptly upon discovery of its oversight, provide written notice of the error and substitute appropriately-designated documents. Any party receiving such improperly-designated documents shall retrieve such documents from persons not entitled to receive those documents and, upon receipt of the substitute documents, shall return or destroy the improperly-designated documents.

17. If a party files a document containing Farm Information subject to a CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL designation with the Court, such document shall be filed both (1) on the public docket, redacting the CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL information, and (2) under seal with the Clerk of Court in compliance with the applicable local rules governing the filing of such information. Counsel shall provide the Court with two courtesy copies of the unredacted documents with the redacted information highlighted in yellow. For purposes of this Order, the sealing of entire pleadings, memoranda of law, exhibits, and the like is strongly discouraged. No document shall be filed under seal unless such document or information therein is genuinely confidential and/or there are compelling reasons to do so. Any party seeking to file a document under seal shall specifically review each document and the information therein to limit sealing only to the extent necessary. Prior to disclosure at trial or a hearing of materials or information designated CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL, the parties may seek further protections against public disclosure from the Court.

18. Any party may request a change in the designation of any information designated CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL. Any such document shall be treated as designated until the change is completed. If a party in good faith disagrees with a designating Party's designation of any information as CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL material, that party shall inform counsel for the designating party in writing of that disagreement. Upon written notification that a Party disagrees with the designation of any material as CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL, counsel for the objecting party and the designating party shall confer in a good faith effort to resolve the dispute without Court intervention. If the requested change in designation is not agreed to, the party seeking the change may move the Court for appropriate relief, providing notice to any third party whose designation of produced documents as CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL in the action may be affected. The party asserting that the material is CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL shall have the burden of proving that the information in question is within the scope of protection afforded by Fed.R.Civ.P. 26(c).

19. Subject to the limitations in paragraphs 25 and 26 below, within 60 days of the termination of this action, including any appeals, each party shall either destroy or return to the opposing party all documents designated as CONFIDENTIAL-ATTORNEYS EYES ONLY and CONFIDENTIAL-FILE UNDER SEAL, and all copies of such documents, and shall destroy all extracts and/or data derived from such documents. Each party shall provide a certification as to such return or destruction within the 60 day period. However, attorneys shall be entitled to retain a set of all documents filed with the Court and all correspondence generated in connection with this action.

20. Any party may apply to the Court for a modification of the Protective Order, and nothing in this Protective Order shall be construed to prevent a party from seeking such further provisions enhancing or limiting confidentiality as may be appropriate.

21. The Protective Order shall become binding on the parties upon the Court's entry of the same. The Protective Order shall be binding upon any party joined in this litigation unless and until the Court, pursuant to a request by a party or on its own accord, orders that the party is not subject to the terms of the Protective Order. The Protective Order shall be binding upon any non-party in this litigation who invokes this protection and authority, unless and until the Court, pursuant to a request by a party or a non-party, or, on its own accord, orders that a party or non-party is not subject to the terms of the Protective Order.

22. No action taken in accordance with the Protective Order shall be construed as a waiver of any claim or defense in the action or of any position as to discoverability or admissibility of evidence.

23. Because a violation of the Protective Order could cause irreparable injury, and there may be no adequate remedy at law for such violation, any party shall have the right, in addition to any other remedies available at law or in equity, to seek to enjoin any other person, entity, or party from any intentional violation of the Protective Order.

24. If Defendants receive a subpoena (or other process) from any person (including natural persons, corporations, partnership, firms, governmental agencies, departments or bodies, boards or associations) who is not a party to this Order, which subpoena seeks production or other disclosure of such CONFIDENTIAL-ATTORNEY EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL information, Defendants shall promptly give written notice by email to the parties to this Order identifying the materials sought and enclosing a copy of the subpoena or other process.

25. The obligations imposed by this Protective Order shall survive the termination of this action. Notwithstanding the above provisions, to the extent any obligations imposed by this Protective Order are inconsistent with any subsequent ruling of the Court following summary judgment or otherwise, including any ruling of an appellate court, the parties shall abide by the Court's Order regarding treatment of Farm Information, including Farm Information that was designated as CONFIDENTIAL-ATTORNEYS EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL.

26. Notwithstanding the above provisions, this Protective Order shall in no way affect the rights of any individuals or entities, including the parties and their representatives, to maintain, disclose, or otherwise use in any way, any documents or information obtained independently of this litigation, regardless of whether such documents and information are identical to documents and information deemed and designated as CONFIDENTIAL-ATTORNEYS EYES ONLY or CONFIDENTIAL-FILE UNDER SEAL pursuant to the above provisions of this Protective Order, with the exception that EPA shall not disclose Farm Information in response to any request submitted under the Freedom of Information Act pending a final resolution of this litigation, including any appeals. EPA's obligation not to disclose Farm Information in response to Freedom of Information Act requests terminates upon the entry of any subsequent ruling of this Court or any appellate court that is inconsistent with this Protective Order.

27. All prior consistent orders remain in full force and effect.

28. Failure to comply with any provision of this Order or any other prior consistent Order shall subject the non-complying party, non-complying counsel and/or the party such counsel represents to any and all appropriate remedies, sanctions and the like, including without limitation: assessment of costs, fines and attorneys' fees and disbursements; waiver of rights to object; exclusion or limitation of witnesses, testimony, exhibits and other evidence; striking of pleadings; complete or partial dismissal with prejudice; entry of whole or partial default judgment; and/or any other relief that this Court may from time to time deem appropriate.

IT IS SO ORDERED.


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