ORDER:  July 10, 2015
CBCA 3350, 3672, 4658, 4659
YATES-DESBUILD JOINT VENTURE,
Appellant,
v.
DEPARTMENT OF STATE,
Respondent.
Douglas L. Patin and Thomas Lynch of Bradley Arant Boult Cummings LLP,
Washington, DC, counsel for Appellant.
Thomas D. Dinackus, Office of the Legal Adviser, Department of State, Rosslyn, VA,
counsel for Respondent.
Laura A. Otenti of Posternak Blankstein & Lund LLP, Boston, MA, counsel for AES
International Corporation.
 
LESTER, Board Judge.
This order relates to the designation by a third party, AES International Corporation
(AES), of documents as subject to the protective order in these appeals.  
Background
The protective order, which the Board issued on February 28, 2014, provides that the
parties to these appeals may designate information produced during discovery as “Protected

CBCA 3350, 3672, 4658, 4659 2
Information” by affixing a legend indicating that the information may be disclosed only in
accordance with the terms of the protective order.  Information designated as protected “may
be used solely for the purposes of th[ese] Appeal[s] and may be provided only to the Board
and to individuals admitted under this Protective Order.”  Protective Order ¶ 2.
On May 9, 2014, the Department of State (DOS) served a subpoena upon AES, in
response to which AES produced documents.  On May 30, 2014, AES produced
approximately 190 scanned documents and approximately 200 e-mail messages in response
to the subpoena.  Subsequently, in response to DOS’s request for a more thorough search,
AES produced approximately 1300 e-mail messages.  The Board understands that AES
stamped every document that it produced as subject to the protective order.1  DOS has
represented that approximately 150 of the AES-produced documents (all of which are
stamped with a protective order legend) are now a part of the appeal file that DOS filed with
the Board in these appeals.
On June 20, 2014, AES, through its counsel, sought an order from the Board that
would require DOS to reimburse AES for costs that it had incurred in responding to the
subpoena.  The Board issued an order granting that unopposed request on June 25, 2014.
A three-week hearing in these appeals – a hearing in which AES was not a participant
– commenced on June 15, 2015.  On June 16 and 17, 2015, counsel for DOS sought to elicit
testimony from two different witnesses using five documents that AES had produced, which
were labeled with the following Bates numbers:  (1) AES_MUM_00000592 to
AES_MUM_00000593; (2) AES_MUM_00002563 to AES_MUM_00002565;
(3) AES_MUM_000002589 to AES_MUM_00002591; (4) AES_MUM_00002592 to
AES_MUM_00002594; and (5) AES_MUM_00002598 to AES_MUM_00002600.  Because
AES had stamped the five documents as subject to the protective order, those portions of the 
hearing transcripts involving testimony about those five documents and their contents were
temporarily made subject to the protective order.
Nevertheless, the Board was unable to see any basis for AES’s decision to label the
five documents as protected.  Paragraph 1 of the Board’s protective order only permits
designation of documents as protected if the documents contain “sensitive information,”
1   The particular protective order at issue here, which was issued by a predecessor
judge, does not appear to contain language expressly indicating that non-parties can invoke
its protections.  Nevertheless, DOS apparently indicated to counsel for AES that it could
produce documents under the auspices of the protective order, and, in fairness to AES, we
will apply it to AES.

CBCA 3350, 3672, 4658, 4659 3
which is defined in the protective order as “including but not limited to:  (i) information that
must be protected to safeguard the competitive process (including source selection
information); and (ii) information with regard to the job performance of certain individuals.” 
There was nothing that the Board could see in the five documents that appeared to fit within
the meaning of “sensitive information.”  Accordingly, by order dated June 18, 2015, the
Board requested that AES justify its decision to subject these documents to protection under
the Board’s protective order.  In response, on June 24, 2015, AES conceded that the five
documents “are not sensitive information, as defined by the Protective Order,” but asserted
that it wished to maintain protection over all other documents that it produced.
Subsequently, additional documents that AES produced were introduced at the hearing
of these appeals.  On June 25, 2015, an AES-produced protected document (Exhibit 15981,
with Bates number AES_MUM_00001081) was used with a witness, and, even though the
document did not appear on its face to contain sensitive or confidential information, the
Board asked the parties to limit distribution of the hearing transcript addressing that
document and its contents until after counsel for AES had opined on the need for
confidentiality.   Counsel for appellant subsequently informed the Board during the hearing
that counsel for AES had represented that Exhibit 15981 did not need to be protected.
Then, on June 30, 2015, six more AES-produced documents containing protective
order legends were introduced and discussed at the hearing:  (1) AES_MUM_00000520
(Exhibit 12950); (2) AES_MUM_00000521-22 (Exhibit 14866); (3) AES_MUM_00000568
(Exhibit 12956); (4) AES_MUM_00000592-93 (Exhibit 12928); (5) AES_MUM_00003175
(Exhibit 14790); and (6) AES_MUM_00004146 (Exhibit 16345).  From the Board’s review,
none of the documents appeared on their faces to contain confidential or competition
sensitive information, but the Board has asked the parties temporarily to treat those portions
of the transcripts discussing those six documents as subject to the protective order.
Discussion
Blanket protective orders, like the one at issue here, “are frequently employed,” both
by the Board and by courts, “to facilitate discovery in complex cases.”  AmerGen Energy Co.
v. United States, 115 Fed. Cl. 132, 138 (2014).2  Such orders give parties the ability to
2   We are authorized to issue blanket protective orders pursuant to Board Rule 9(c),
48 CFR 6101.9(c) (2014).  This rule is a corollary to Federal Rule of Civil Procedure 26(c),
which addresses the issuance of protective orders in Federal courts.  As such, we look to
decisions interpreting the Federal rule as guidance in interpreting our own Board rule.  See
Innovative (PBX) Telephone Services, Inc. v. Department of Veterans Affairs, CBCA 12, et

CBCA 3350, 3672, 4658, 4659 4
exchange confidential or sensitive documents in discovery, but, simultaneously, to limit
distribution to only a narrow group of individuals (without the need for seeking any review
by or further permission of the tribunal):
Blanket protective orders place upon the parties themselves, or others from
whom discovery is sought, the initial burden of determining what information
is entitled to protection.  Normally, a blanket protective order requires that
counsel for a producing party review the information to be disclosed and
designate the information it believes, in good faith, is confidential or otherwise
entitled to protection.  The designated information is thereafter entitled to the
protections afforded by the blanket protective order unless the designation is
objected to by an opposing party.  Judicial review of a party’s designation as
confidential occurs only when there is such an objection which the parties
cannot resolve by agreement.
Gillard v. Boulder Valley School District RE-2, 196 F.R.D. 382, 386 (D. Colo. 2000).3  Such
orders are “designed to encourage and simplify the exchanging of large numbers of
documents, volumes of records and extensive files without concern of improper disclosure. 
After this sifting, material can be ‘filed’ for whatever purpose consistent with the issues
being litigated whether by pretrial hearing or an actual trial.”  In re Alexander Grant & Co.
Litigation, 820 F.2d 352, 356 (11th Cir. 1987).  As such, these orders “serve the interests of
a just, speedy, and less expensive determination of complex disputes by alleviating the need
for and delay occasioned by extensive and repeated judicial intervention.”  Gillard, 196
F.R.D. at 386.
Nevertheless, the entry of a blanket protective order “do[es] not relieve the [producing
entities] of their burden to consider vigilantly the need for protection of each document.” 
Minter v. Wells Fargo Bank, N.A., No. 07-3442, et al., 2010 WL 5418910, at *3 (D. Md.
Dec. 23, 2010).  To the contrary, the producing entity is permitted to designate as protected
only “th[at] information [which] it believes, in good faith, is confidential or otherwise
al., 07-2 BCA ¶ 33,685, at 166,758; 48 CFR 6101.1(c).
3   A “blanket” protective order differs from an “umbrella” protective order, which
automatically limits distribution of all documents produced in discovery to individuals
admitted to the protective order.  Bayer AG & Miles, Inc. v. Barr Laboratories, Inc., 162
F.R.D. 456, 465 (S.D.N.Y. 1995).  The blanket protective order at issue here, unlike an
umbrella protective order, permits the parties to protect specific documents “that they in good
faith believe contain trade secrets or other confidential commercial information.”  Id.

CBCA 3350, 3672, 4658, 4659 5
entitled to protection.”  Mahavisno v. Compendia Bioscience, Inc., No. 13-12207, 2015 WL
248798, at *13 (E.D. Mich. Jan. 20, 2015) (quoting Gillard, 196 F.R.D. at 386).  “Anything
less than a document-by-document or very narrowly drawn category-by-category assessment
fails to satisfy the initial good-faith review requirement.”  Minter, 2010 WL 5418910, at *2. 
Courts “have repeatedly condemned the improper use of confidentiality designations.”  In
re Violation of Rule 28(d), 635 F.3d 1352, 1358 (Fed. Cir. 2011).
Further, “[e]fficiency should never be allowed to deny public access to court files or
material of record unless there has been an appropriate predicate established.”  In re
Alexander Grant, 820 F.2d at 357.  Regardless of whatever agreement litigating parties may
reach to protect documents produced during discovery while they remain in the parties’
hands, once such documents are filed with the tribunal, the access restrictions that the
protective order creates can conflict with the general rule requiring openness of judicial
proceedings:
Accessibility of judicial documents and proceedings to the public is a
centuries-old component of our legal system.  United States v. Amodeo, 44
F.3d 141, 145 (2d Cir. 1995) . . . . Openness of judicial workings is, among
other things, crucial to the citizenry’s ability to “keep a watchful eye on the
workings of public agencies,” Nixon v. Warner Communications, Inc., 435
U.S. 589, 598, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978) . . . . Thus, while public
access to court records and proceedings is not absolute, there has been a
long-standing presumption in its favor and against sealing.  See id.
Encyclopedia Brown Productions, Ltd. v. Home Box Office, Inc., 26 F. Supp. 2d 606, 610
(S.D.N.Y. 1998); see Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp.
866, 896 (E.D. Pa. 1981) (“‘openness, fairness, and the perception of fairness’ are directly
linked to one another”) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570
(1980) (plurality decision)); 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice and Procedure § 2035, at 150 (3d ed. 2010) (“At least as to material filed
in court, . . . there is a limit to the power of courts to accede to the parties’ agreement that
these materials be held under seal.”).  “Documentary exhibits and trial testimony are . . .
strongly presumed to be public, since they are a direct part of the process of adjudication.” 
Encyclopedia Brown, 26 F. Supp. 2d at 612.
It is the burden of the entity seeking to protect documents in the appeal record and to
limit their distribution under a “blanket” protective order to establish good cause for that
protection.  See, e.g., In re Violation of Rule 28(d), 635 F.3d at 1357; Forest Products
Northwest, Inc. v. United States, 453 F.3d 1355, 1361 (Fed. Cir. 2006); Miles v. Boeing Co.,
154 F.R.D. 112, 114 (E.D. Pa. 1994).  See generally 8A C. Wright, A. Miller & R. Marcus,

CBCA 3350, 3672, 4658, 4659 6
supra, § 2043, at 244 (“Besides showing that the information qualifies for protection, the
moving party must also show good cause for restricting dissemination on the ground that it
would be harmed by its disclosure.”).  If a protected information designation is questioned,
“the party seeking the protection shoulders the burden of proof in justifying retaining the
confidentiality designation.”  Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania
House Group, Inc., 121 F.R.D. 264, 268 (M.D.N.C. 1988).  “To overcome the presumption”
that documents filed with a tribunal should be publicly available and establish “good cause”
for keeping documents under a protective order, “the party seeking the protective order must
. . . demonstrat[e] a particular need for protection.”  Cipollone v. Liggett Group, Inc., 785
F.2d 1108, 1121 (3d Cir. 1986).  “Broad allegations of harm, unsubstantiated by specific
examples or articulated reasoning,” are insufficient.  Id.; see United States v. Hooker
Chemicals & Plastics Corp., 90 F.R.D. 421, 425 (W.D.N.Y. 1981) (refusing to issue
protective order based upon “conclusory” allegations of the harm of disclosure). 
Specifically, “the party seeking to limit the disclosure of discovery materials must show that
‘specific prejudice or harm will result if no protective order is granted.’”  In re Violation of
Rule 28(d), 635 F.3d at 1357-58 (quoting Phillips v. General Motors Corp., 307 F.3d 1206,
1210-11 (9th Cir. 2002)).  “Moreover, harm must be significant, not a mere trifle.” 
Cipollone, 785 F.2d at 1121.  “Where good cause is shown, the presumption of public access
‘dissipates, and the [tribunal] can exercise its sound discretion’ to limit disclosure.”  In re
Violation of Rule 28(d), 635 F.3d at 1357 (quoting Harris v. Amoco Production Co., 768 F.2d
669, 684 (5th Cir. 1985)).
AES’s wholesale designation of every document that it produced as subject to the
Board’s protective order directly conflicts with the producing entity’s obligation to make
individualized determinations regarding the need for a document’s protection and with the
historically open nature of judicial documents and proceedings.  “The utility of [the blanket
protective order] approach is eviscerated when parties liberally over-designate in the first
instance,” Minter, 2010 WL 5418910, at *3, “undermining the utility” of the order.  Id. at *7. 
It is counsel’s “responsibility to ensure that the proper confidential designations are assigned
to the documents produced.”  TKH America, Inc. v. NSK Co., 157 F.R.D. 637, 644 (N.D. Ill.
1993).  To the extent that an entity simply designates every document that it is producing as
protected, it fails in that responsibility.
We can understand the desire of a non-party, like AES, to minimize the costs that it
must incur and the time that it must expend in responding to a subpoena seeking the
production of documents, given that the non-party most likely has no financial interest in the
outcome of the litigation.  That desire, however, does not eliminate or reduce the non-party’s
obligation to invoke the protections of the blanket protective order only for the purposes that
the order was intended to serve and only with regard to those documents as to which the
non-party, following an individualized review of its documents, believes in good faith meet

CBCA 3350, 3672, 4658, 4659 7
the standard for protection.  Further, even though “subpoenaed parties can legitimately be
required to absorb reasonable expenses of administrative subpoenas,” Heritage Reporting
Corp., GSBCA 10396, 90-3 BCA ¶ 22,977, at 115,388 (quoting Securities & Exchange
Commission v. Arthur Young & Co., 584 F.2d 1018, 1033 (D.C. Cir. 1978)), AES, relying
upon Board Rule 16(g), applied for (with the consent of DOS) and was granted recovery of
the reasonable costs that it incurred in producing the subpoenaed documents, costs that it
specified in its cost-reimbursement request.  See 48 CFR 6101.16(g); see also Cogefar-
Impresit U.S.A., Inc., DOT BCA 2721, 94-3 BCA ¶ 27,117, at 135,156 (“If the non-party has
no interest in the litigation, or if costs are unreasonable, generally the party seeking document
production would be required to advance the costs of such production.”).  Had AES timely
conducted an appropriate protected material review when producing those documents, it
could have included those costs in its unopposed cost-reimbursement request.  AES’s ability
to recover its original costs of complying with the subpoena weighs against any argument
that AES might otherwise have had for reducing its burden of review or for an expansive
view of its right to stamp documents as protected.
  One proper remedy for the over-designation of documents is to require the producing
entity to undertake the effort to re-classify the documents at issue.  Quotron Systems, Inc. v.
Automatic Data Processing, Inc., 141 F.R.D. 37, 40 (S.D.N.Y. 1992).  We exercise our
discretion to require that here, but limit that requirement to those documents that are a part
of the record before the Board.  AES has already acknowledged that the Board can remove
the protection originally assigned to the six documents addressed during the hearing on
June 16, 17, and 24, 2015.  With regard to the additional six documents about which a
witness testified at the hearing on June 30, 2015, we will order AES to review and report
upon those documents quickly so that, if no good cause for their protection exists, the
transcript of the hearing, which is currently being prepared, will not have to be sealed upon
its receipt by the Board.
There then remain approximately 150 documents in the appeal file, which the
Government filed with the Board, that are stamped with AES’s protective order legend and
that the Board is expected to protect from public disclosure.  For reasons discussed during
the hearing, the Government may be reevaluating and resubmitting document protection
designations for other documents in the appeal file unrelated to AES’s production.  That
provides a good opportunity simultaneously to reconsider the AES designations. 
Understanding that AES is a stranger to this litigation, we will impose upon the party that
submitted the documents to the Board in the first place – the Department of State – the initial
burden of identifying to AES the specific documents from AES’s production that are now
in the record of these appeals (and, if necessary, providing AES with copies of those
documents), and we will provide AES ample time to evaluate – at its own cost – the viability
of its protective order designations, after which we will address whether to maintain

CBCA 3350, 3672, 4658, 4659 8
protection on any of the AES documents contained in the appeal file.  We will not consider
a new request for cost reimbursement from AES.
With regard to the remaining 1200 or so documents that AES produced to the
Government but that were not submitted to the Board as part of the appeal file, we leave
those designations to the parties’ agreement, absent a challenge filed with the Board to those
designations.  No such challenge is pending.
Order
For the foregoing reasons, the Board hereby orders as follows:
(1) The AES-produced documents identified above as having been discussed by
witnesses at the hearing of these appeals on June 16, 17, and 24, 2015, are removed from the
protection of the February 28, 2014, protective order.
(2) On or before July 21, 2015, AES shall file with the Board a justification for
continuing protection of the six AES-produced documents identified above that were
discussed at the hearing on June 30, 2015.  If no justification is filed, or if the Board finds
the justification deficient, the Board will order those six documents removed from the
protective order and will remove any restrictions on the distribution of those portions of the
June 30, 2015, hearing transcript involving those AES documents.
(3) On or before July 28, 2015, the Government shall provide counsel for AES a
list of all documents that AES produced in response to the Government’s subpoena that are
now contained in the appeal file.  To the extent that counsel for AES subsequently requests
copies of those documents, the Government shall provide them to AES.
(4) AES shall have until September 14, 2015, to provide the Board with a
justification for maintaining protection over the AES-produced documents are in the appeal
file.  If no justification is filed, or if the Board finds the justification deficient, the Board will
order those documents removed from the protective order.
_____________________________
HAROLD D. LESTER, JR.
Board Judge