Protective order application seeking admission of principal as protester’s expert witness is granted in part and denied in part, where the protester’s request failed to include required certifications for unrestricted access to protected material, and where the protester failed to demonstrate that the principal’s unrestricted access was essential to the case.
In its bid protest at the Court of Federal Claims challenging the Air Force’s award of a contract, Plaintiff Zeidman Technologies Inc. filed an application for access to protected material on behalf of its principal, Mr. Robert Zeidman.
The application requested that Mr. Zeidman be permitted access to all protected material involved in the case, which the court had already acknowledged was sensitive information. The plaintiff asserted that Mr. Zeidman has complied with the application requirements and that informed consultation is essential because Mr. Zeidman is an expert witness with specialized knowledge about the technology at issue in the protest. The plaintiff further asserted that Mr. Zeidman’s admission to the protective order is necessary for the court’s full and fair resolution of the matter. The plaintiff also argued that the court should not require the certification because competitive advantage will not result because the company is no longer functioning and because Mr. Zeidman is not involved in technological development.
The government the request in its Motion to Dismiss on the basis that the application was deficient, and that Mr. Zeidman is a competitive decision maker who was intimately involved with the plaintiff’s proposal and protests. In response to the application, the government specifically identified relevant pages of the administrative record that contained competitive sensitive information to which it argued Mr. Zeidman should not have access. The government further argued that Mr. Zeidman attempted to seek further information about the award outside the context of litigation.
The court granted in part and denied in part the application for access to protected material and the defendant’s motion to deny access, giving Mr. Zeidman limited access to only certain pages in the government’s request. The court concluded that the plaintiff failed to establish that Mr. Zeidman’s unrestricted access to protected material was necessary to support its allegation that the Army applied unstated evaluation criteria for the procurement.
The court determined that the request omitted the certification required in its Rules for Applications for Access to Information Under Protective Order. The court explained that in the instant case the certification was required because Mr. Zeidman remained active in patents and held a management position in the company – which is expressly restricted by the standard Application form. Finally, the Court found that Mr. Zeidman’s knowledge and expertise as an expert was not critical to the case, and that unrestricted access to protected information was necessary to the case.
Zeidman Technologies Inc. is represented by Elizabeth Pipkin and James Giachetti. The government is represented by Erin K. Murdock-Park, Chad A. Readler, Robert E. Kirschman, Jr., and Claudia Burke of the Department of Justice; and Christopher S. Cole of the Air Force.
