Protester’s Counsel Sanctioned for Sharing Information Subject to Protective Order; COFC No. 17-1662C, Zeidman Technologies Inc. v. United States

Protester’s counsel is sanctioned for providing the plaintiff with information subject to a protective order. The court allowed the plaintiff limited access to a redacted version of the administrative record, and plaintiff’s counsel argued that because the order identified the specific pages that were denied to the plaintiff, it was reasonable to assume that other documents could be shared. The court found this an unreasonable interpretation, noting that the order clearly gave access to only a redacted version of the AR, yet plaintiff’s counsel shared information from motions under seal. Though plaintiff’s counsel redacted information from those motions, the court held that counsel’s concerns about the confidentiality of this information should have been resolved with the court or defendant’s counsel.

The government alleged that counsel for protester Zeidman Technologies Inc. and Zeidman’s principal, Robert Zeidman, violated a protective order issued in relation to the company’s protest of an Army procurement.

After the protective order was granted, plaintiff’s counsel filed an application for access to protected material on behalf of Robert Zeidman. The plaintiff argued that this access was needed to allow Mr. Zeidman to act as an expert witness in the litigation with regard to the technology at issue and to explain technical issues to his counsel. The plaintiff also argued that the government had not shown the information in the administrative record was confidential business information or explained how Zeidman Technologies could use the information to its competitive advantage.

The government objected to the motion for access, and cited specific pages of the record it deemed sensitive. The court granted the plaintiff’s motion in part, giving Zeidman limited access to the record, but not the pages identified by the government. The court’s order identified the pages that would remain under seal and were to be restricted from Mr. Zeidman’s view. The order also stated that plaintiff’s counsel could request additional access later. The government provided the plaintiff with a redacted version of the administrative record.

During the proceedings, plaintiff filed a motion to unseal the declaration of Mr. David Shahady, which had been filed as an attachment to the government’s motion to supplement the administrative record. The government opposed, stating that the request appeared to be an attempt to improperly use the protest as a public records request and that it appeared that Zeidman’s counsel may have shared the declaration or its contents with Mr. Zeidman—a violation of both the language and the spirit of the protective order.

During a status conference call, plaintiff’s counsel stated that providing full responses to the court’s inquiries would require the disclosure of privileged information. In order to preserve any potentially applicable privilege, the court directed plaintiff’s counsel to submit the answers to specific questions for in camera review. The court also directed plaintiff’s counsel to provide appropriately redacted versions of the two declarations counsel had previously submitted to the court; and a copy of each document that was disclosed to Mr. Zeidman, in the form in which it was provided to him. Before plaintiff’s counsel complied with this order, Mr. Zeidman made several unsuccessful attempts to insert himself further into this litigation.

The parties’ present conflict stemmed from differing interpretations of the order entered by the court in ruling on plaintiff’s application for Mr. Zeidman’s access to protected material.

The court found no dispute that the information at issue qualified as protected. According to plaintiff, the effect of the court’s ordering language was to allow Mr. Zeidman access to all protected material in the case except the specifically restricted pages of the administrative record. According to the government, however, the effect of the ordering language was more restrictive, allowing Mr. Zeidman access to only the redacted administrative record provided by the government.

The court viewed the government’s interpretation as correct, and therefore held that the disclosure to Mr. Zeidman of any protected material beyond the corrected redacted administrative record was a violation of its order and the protective order. The court noted that it stated its intention in the order itself and during a status conference with the parties. During the conference, the court confirmed that because Mr. Zeidman had not made some of the representations in his application for access that were necessary for full access to the protective order, he would be allowed only limited access to the record. This was intended to strike the balance between affording him the opportunity to function as an expert witness and not giving him an unfair competitive advantage in this particular litigation. The court emphasized that Mr. Zeidman should not see all the documents that counsel sought, which still had some protection.

The court also noted that some of the protected documents provided to Zeidman discussed and cited the very records to which the court denied access.

After concluding the information was protected and was not released by its order, the court reviewed its order to determine if any ambiguity existed that would render the plaintiff’s reading of the order reasonable.

As noted, the court attempted to balance the parties’ competing interests by allowing Mr. Zeidman to access portions of the record, minus those deemed too sensitive by the government. The court acknowledged that the language in the order could have been more precise, but nonetheless concluded the plaintiff’s interpretation was unreasonable. The purpose of the plaintiff’s request for access was to allow Mr. Zeidman to explain technological issues. This fact should have informed plaintiff’s counsel’s resolution of any ambiguity. Alternatively, counsel could have sought clarification from the court before disclosing information outside the redacted AR provided by the government.

Further, even assuming plaintiff’s reading of the order was reasonable, the court held that the disclosures to Mr. Zeidman were inappropriate. In addition to the redacted AR, plaintiff’s counsel disclosed: (1) the government’s motion to dismiss or, in the alternative, cross motion  for judgment on the administrative record, redacted in part by plaintiff’s counsel; (2) the government’s motion to correct the administrative record, and the supporting declaration, which included the proposed corrected pages of the record, and (3) the plaintiff’s motion to unseal the declaration of David Shahady, which contained summaries of defendant’s motion to supplement the administrative record, and the supporting declarations.

Each of those docket entries was under seal and designated as containing protected information, and the government’s motion for summary judgment was still pending. The other motions were pending as of the date the court convened a status conference to discuss the improper disclosures.

The court noted that by its nature, the government’s motion for summary judgment contained protected information. The court found it presumptuous in the extreme for plaintiff’s counsel, knowing that Mr. Zeidman was restricted from reviewing information in portions of the administrative record, to take it upon herself to determine what sections of that document should be redacted. Plaintiff’s counsel argued that she redacted the document to avoid any risk that Mr. Zeidman would receive competition-sensitive information from the administrative record that was discussed in the document. However, the court said that if caution was warranted, so was a conference with defendant’s counsel.

The court found the disclosure of the second set of documents, the government’s motion to correct the administrative record, and its attachments, even more troubling. The government filed the motion to correct the record to replace several pages of the administrative record that were inadvertently produced as a blank form. The completed form was attached as an exhibit to the motion. Plaintiff’s counsel knew that both defendant and the court had concerns about Mr. Zeidman’s full access to the administrative record, and yet she chose to disclose the proposed corrected pages to Mr. Zeidman without conferring with defendant’s counsel and before the court ruled on defendant’s motion. The court found no reasonable basis for such a disclosure.

The third document, plaintiff’s motion to unseal the declaration of Mr. Shahady, contained summaries of the government’s motion to supplement the administrative record, as well as the supporting declarations. Like the disclosure of the motion to correct, this third disclosure involved a yet-unresolved request by defendant to add information to the administrative record. And for the same reasons, the court held that plaintiff’s counsel unreasonably overstepped her bounds by sharing such information with Mr. Zeidman without permission from the court to do so.

Having concluded that plaintiff’s counsel violated the protective order, the court held that sanctions were warranted. The court revoked Mr. Zeidman’s access to the protected material in the case and directed him to return or destroy any such documents. The court also reminded Mr. Zeidman of his responsibility not to disclose any of the information he learned. The court directed plaintiff’s counsel to pay the government’s reasonable fees arising from the dispute. The court warned that additional violations could lead to contempt and dismissal of the case.

Zeidman Technologies Ic. is represented by Elizabeth Pipkin and James Giachetti. The government is represented by Erin K. Murdock-Park, Trial Attorney, with whom were Joseph H. Hunt, Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Claudia Burke, Assistant Director, Commercial Litigation Branch, Civil Division, Department of Justice, and Christopher S. Cole, United States Air Force, Commercial Law & Litigation Directorate.