Iowa Administrative Code › Agency 129 - Chief Information Officer, Office of The › Title I - General Office Procedures › Chapter 11 - Vendor Appeals › Rule 129-11.11 - Protective Orders

Current through Register Vol. 47, No. 3, July 24, 2024
(1)
General rule/purpose.
To facilitate the fair and objective
				evaluation of proposals and cost-effective administration of vendor appeal
				processes, information and materials of or related to procurement processes or
				awards will not be released or otherwise available for public inspection prior
				to the issuance of the notice of intent to award or final disposition of any
				vendor appeal taken in accordance with this chapter, whichever occurs later. By
				submitting materials, documents, or information to the office as part of a
				competitive selection process or other award process, the vendor agrees and
				consents to the purchasing entity's distribution of such materials, documents,
				or information to third parties, including other vendors that may be the
				submitting vendor's competitors, as part of an appeal process, including,
				subject to the entry of a protective order in accordance with this rule,
				materials, documents, or information comprised, in whole or in part, of
				confidential or proprietary information. For purposes of any materials,
				documents, or information disclosed as part of a vendor appeal, parties are
				only entitled to materials, documents, or information comprised, in whole or in
				part, of confidential or proprietary information after a protective order has
				been entered in accordance with this rule. By filing a notice of appeal in
				accordance with rule 129-11.3 (8B) or a written justification in accordance
				with rule 129-11.4 (8B), the appellant or the awardee, as applicable, agrees
				and consents to the entry of a protective order in substantially the same form
				as set forth in this rule as a condition precedent to receiving any documents
				or information containing or comprised of, in whole or in part, confidential or
				proprietary information related to the appeal. In the absence of a protective
				order, parties will only receive public, redacted copies of materials or
				information.
(2)
How
				issued.
In order to facilitate the exchange of information and
				materials as is necessary to facilitate an efficient and effective appeal
				process, the purchasing entity may enter a protective order(s) on its own
				motion or on the request of any party seeking access to confidential or
				proprietary information. The purchasing entity generally will not issue a
				protective order where an appellant is not represented by counsel, in which
				case the parties will only receive a public, redacted copy(ies) of information
				and materials.
(3)
Form of
				protective order.
Protective orders entered in accordance with this
				rule shall be issued in substantially the following form and shall establish
				procedures for access to confidential and proprietary information,
				identification and safeguarding of that information, and submission of redacted
				copies of documents omitting confidential and proprietary information.
(NAME OF PURCHASING ENTITY)
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Certain information that may be exchanged in discovery
				  involves the production of trade secrets, confidential business information, or
				  other confidential or proprietary information. Accordingly, (Name of Purchasing
				  Entity) ("Purchasing Entity") enters the following protective order ("Order")
				  to govern the proceedings. Where the term "Purchasing Entity" as used herein
				  refers to the Purchasing Entity serving in an adjudicatory capacity in
				  connection with this Action, such reference, to the extent the procedural
				  posture of the Action at the time necessitates such an understanding, shall be
				  understood as referring to any tribunal serving as an agent of the Purchasing
				  Entity in connection with this Action and its personnel.
1. Each Party may designate as confidential
				for protection under this Order, in whole or in part, any document, information
				or material that constitutes or includes, in whole or in part, confidential or
				proprietary information or trade secrets of the Party or a Third Party to whom
				the Party reasonably believes it owes an obligation of confidentiality with
				respect to such document, information or material ("Protected Material").
				Protected Material shall be designated by the Party producing it by affixing a
				legend or stamp on such document, information or material as follows:
				"CONFIDENTIAL" or "RESTRICTED - ATTORNEYS' EYES ONLY" (referred to both
				individually and collectively as "Label"). A Label shall be placed clearly on
				each page of the Protected Material (except native files, deposition and
				hearing transcripts) for which such protection is sought. A Label shall be
				included in the title of the designated native files. For any deposition and
				hearing transcripts, a Label shall be placed on the cover page of the
				transcript (if not already present on the cover page of the transcript when
				received from the court reporter) by each attorney receiving a copy of the
				transcript after that attorney receives notice of the designation of some or
				all of that transcript as "CONFIDENTIAL" or "RESTRICTED - ATTORNEYS' EYES
				ONLY."
2. With respect to
				documents, information or material designated "CONFIDENTIAL" or "RESTRICTED -
				ATTORNEYS' EYES ONLY" (referred to both individually and collectively as
				"DESIGNATED MATERIAL"), subject to the provisions herein and unless otherwise
				stated herein or provided by applicable law or rule, this Order governs,
				without limitation:
(a) all documents,
				electronically stored information, and/or things as defined by the Iowa Rules
				of Civil Procedure;
(b) all
				prehearing and hearing or deposition testimony, or documents marked as exhibits
				or for identification in depositions and hearings;
(c) pleadings, exhibits to pleadings and
				other filings;
(d) affidavits;
				and
(e) stipulations. All copies,
				reproductions, extracts, digests and complete or partial summaries prepared
				from any DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and
				treated as such under this Order.
3. Protected Material (i.e., "CONFIDENTIAL"
				or "RESTRICTED - ATTORNEYS' EYES ONLY") may be designated as such at any time.
				Inadvertent or unintentional production of documents, information or material
				that has not been designated as DESIGNATED MATERIAL or Labeled shall not be
				deemed a waiver in whole or in part of a claim for confidential treatment. Any
				party that inadvertently or unintentionally produces Protected Material without
				designating it as DESIGNATED MATERIAL may request destruction of that Protected
				Material by notifying the recipient(s) as soon as reasonably possible after the
				producing Party becomes aware of the inadvertent or unintentional disclosure
				and providing replacement Protected Material that is properly designated. The
				recipient(s) shall then destroy all copies of the inadvertently or
				unintentionally produced Protected Material and any documents, information or
				material derived from or based on such Protected Material.
4. "CONFIDENTIAL" documents, information and
				material may be disclosed only to the following persons, except upon receipt of
				the prior written consent of the producing party, upon order of the Purchasing
				Entity, or as set forth in paragraph 12 herein:
(a) outside counsel of record in this Action
				for the Parties. The Attorney General's Office shall be considered outside
				counsel of the Purchasing Entity for purposes of this Order;
(b) employees of such outside counsel
				assigned to and reasonably necessary to assist such counsel in the litigation
				of this Action;
(c) in-house
				counsel for the Parties who either have responsibility for making decisions
				dealing directly with the litigation of this Action, or who are assisting
				outside counsel in the litigation of this Action, provided the names and titles
				of such in-house counsel have been disclosed to the designating
				party;
(d) up to and including
				three (3) designated representatives of each of the Parties to the extent
				reasonably necessary for the litigation of this Action, except that either
				party may in good faith request the other Party's consent to designate one or
				more additional representatives, the other Party shall not unreasonably
				withhold such consent, and the requesting Party may seek leave to designate
				such additional representative(s) if the requesting Party believes the other
				Party has unreasonably withheld such consent;
(e) outside consultants or experts (i.e., not
				existing employees or affiliates of a Party or an affiliate of a Party)
				retained for the purpose of this litigation, provided that:
(1) such consultants or experts are not
				presently employed by the Parties hereto for purposes other than this Action;
				and
(2) before access is given, the
				consultant or expert has completed the Acknowledgment Form attached as Exhibit
				A hereto and the same is served upon the producing Party with a current
				curriculum vitae of the consultant or expert at least ten (10) days before
				access to the Protected Material is to be given to that consultant or expert to
				afford the producing Party an opportunity to object to and notify the receiving
				Party in writing that it objects to the disclosure of the Protected Material to
				the consultant or expert. The Parties agree to promptly confer and use good
				faith to resolve any such objection. If the Parties are unable to resolve any
				objection, the objecting Party may file a motion with the Purchasing Entity
				within fifteen (15) days of the notice, or within such other time as the
				Parties may agree, seeking resolution of the dispute with respect to the
				proposed disclosure. No disclosure shall occur until all such objections are
				resolved by agreement of the Parties or order of the Purchasing
				Entity;
(f) independent
				litigation support services, including persons working for or as court
				reporters, graphics or design services, jury or trial/hearing consulting
				services, and photocopy, document imaging, and database services retained by
				counsel and reasonably necessary to assist counsel with the litigation of this
				Action; and
(g) the Purchasing
				Entity serving in an adjudicatory capacity in connection and its personnel or
				tribunal serving as an agent of the Purchasing Entity in connection with this
				Action and its personnel.
5. A Party shall designate documents,
				information or material as "CONFIDENTIAL" only upon a good faith belief that
				the documents, information or material contains confidential or proprietary
				information or trade secrets of the Party or a third party to whom the Party
				reasonably believes it owes an obligation of confidentiality with respect to
				such documents, information or material.
6. Documents, information or material
				produced pursuant to any discovery request in this Action, including but not
				limited to Protected Material designated as DESIGNATED MATERIAL, shall be used
				by the Parties only in the litigation of this Action and shall not be used for
				any other purpose. Any person or entity who obtains access to DESIGNATED
				MATERIAL or the contents thereof pursuant to this Order shall not make any
				copies, duplicates, extracts, summaries or descriptions of such DESIGNATED
				MATERIAL or any portion thereof except as may be reasonably necessary in the
				litigation of this Action. Any such copies, duplicates, extracts, summaries or
				descriptions shall be classified DESIGNATED MATERIALS and subject to all of the
				terms and conditions of this Order.
7. To the extent a producing Party believes
				that certain Protected Material qualifying to be designated CONFIDENTIAL is so
				sensitive that its dissemination deserves even further limitation, the
				producing Party may designate such Protected Material "RESTRICTED - ATTORNEYS'
				EYES ONLY."
8. For Protected
				Material designated RESTRICTED - ATTORNEYS' EYES ONLY, access to, and
				disclosure of, such Protected Material shall be limited to individuals listed
				in paragraphs 4(a), 4(b), 4(e), 4(f) and 4(g).
9. Nothing in this Order shall require
				production of documents, information or other material that a Party contends is
				protected from disclosure by the attorney-client privilege, the work product
				doctrine, or other privilege, doctrine, or immunity. If documents, information
				or other material subject to a claim of attorney-client privilege, work product
				doctrine, or other privilege, doctrine, or immunity is inadvertently or
				unintentionally produced, such production shall in no way prejudice or
				otherwise constitute a waiver of, or estoppel as to, any such privilege,
				doctrine, or immunity. Any Party that inadvertently or unintentionally produces
				documents, information or other material it reasonably believes are protected
				under the attorney-client privilege, work product doctrine, or other privilege,
				doctrine, or immunity may obtain the return of such documents, information or
				other material by promptly notifying the recipient(s) and providing a privilege
				log for the inadvertently or unintentionally produced documents, information or
				other material. The recipient(s) shall gather all copies of such documents,
				information or other material and return them to the producing Party, except
				for any pages containing privileged or otherwise protected markings by the
				recipient(s), which pages shall instead be destroyed and certified as such to
				the producing Party within ten (10) business days.
10. There shall be no disclosure of any
				DESIGNATED MATERIAL by any person authorized to have access thereto to any
				person who is not authorized for such access under this Order. The Parties are
				hereby ORDERED to safeguard all such documents, information and material to
				protect against disclosure to any unauthorized persons or entities.
11. Nothing contained herein shall be
				construed to prejudice any Party's right to use any DESIGNATED MATERIAL in
				taking testimony at any deposition or hearing provided that the DESIGNATED
				MATERIAL is only disclosed to a person(s) who is:
(i) eligible to have access to the DESIGNATED
				MATERIAL by virtue of his or her employment with the designating party;
(ii) identified in the DESIGNATED
				MATERIAL as an author, addressee, or copy recipient of such
				information;
(iii) although not
				identified as an author, addressee, or copy recipient of such DESIGNATED
				MATERIAL, has, in the ordinary course of business, seen such DESIGNATED
				MATERIAL;
(iv) a current or former
				officer, director or employee of the producing Party or a current or former
				officer, director or employee of a company affiliated with the producing Party;
(v) counsel for a Party, including
				outside counsel and in-house counsel (subject to paragraphs 8 and 9 of this
				Order);
(vi) an independent
				contractor, consultant, and/or expert retained for the purpose of litigating
				this Action (subject to paragraph 4 of this Order);
(vii) court reporters and
				videographers;
(viii) the Purchasing
				Entity serving in an adjudicatory capacity in connection and its personnel or
				tribunal serving as an agent of the Purchasing Entity in connection with this
				Action and its personnel; or
(ix)
				other persons entitled hereunder to access to DESIGNATED MATERIAL. Such
				DESIGNATED MATERIAL shall not be disclosed to any other persons unless prior
				authorization is obtained from counsel representing the producing Party or in
				an order issued by the Purchasing Entity or tribunal serving as an agent of the
				Purchasing Entity in connection with this Action.
12. Parties may, at the deposition or hearing
				or within thirty (30) days after receipt of a deposition or hearing transcript,
				designate the deposition or hearing transcript or any portion thereof as
				"CONFIDENTIAL" or "RESTRICTED - ATTORNEYS' EYES ONLY" pursuant to this Order.
				Access to the deposition or hearing transcript so designated shall be limited
				in accordance with the terms of this Order. Until expiration of the 30-day
				period, the entire deposition or hearing transcript shall be treated as
				"Confidential" in accordance with this Order.
13. Any DESIGNATED MATERIAL that is filed in
				connection with this Action shall be filed under seal and shall remain under
				seal until further order of the Purchasing Entity. The filing party shall be
				responsible for informing the Purchasing Entity or tribunal serving as an agent
				of the Purchasing Entity in connection with this Action that the filing should
				be sealed and for placing the legend "FILED UNDER SEAL PURSUANT TO PROTECTIVE
				ORDER" above the caption and conspicuously on each page of the filing. Exhibits
				to a filing shall conform to the labeling requirements set forth in this Order.
				If a prehearing pleading filed with the Purchasing Entity or tribunal serving
				as an agent of the Purchasing Entity in connection with this Action, or an
				exhibit thereto, discloses or relies on confidential documents, information or
				material, such confidential portions shall, except to the extent otherwise
				provided for or required by applicable law or rule, be redacted to the extent
				necessary and the pleading or exhibit filed publicly with the Purchasing Entity
				or tribunal serving as an agent of the Purchasing Entity in connection with
				this Action.
14. The Order applies
				to prehearing discovery. Nothing in this Order shall be deemed to prevent the
				Parties from introducing any DESIGNATED MATERIAL into evidence at any hearing
				of this Action, or from using any information contained in DESIGNATED MATERIAL
				at any hearing of this Action, subject to any prehearing order issued by the
				Purchasing Entity or tribunal serving as an agent of the Purchasing Entity in
				connection with this Action.
15. A
				Party may request in writing to the other Party that the designation given to
				any DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does
				not agree to redesignation within ten (10) business days of receipt of the
				written request, the requesting Party may apply to the Purchasing Entity for
				relief. Upon any such application to the Purchasing Entity, the burden shall be
				on the designating Party to show why its classification is proper. Such
				application shall be treated procedurally as a motion to compel pursuant to
				Iowa Rule of Civil Procedure 1.517, subject to that Rule's provisions relating
				to sanctions. In making such application, the requirements of the Iowa Rules of
				Civil Procedure shall be met. Pending the Purchasing Entity's ruling or order
				on such application, or the ruling or order by the tribunal serving as an agent
				of the Purchasing Entity in connection with this Action, the original
				designation of the designating Party shall be maintained and respected.
16. Each outside consultant or
				expert to whom DESIGNATED MATERIAL is disclosed in accordance with the terms of
				this Order shall be advised by counsel of the terms of this Order, shall be
				informed that he or she is subject to the terms and conditions of this Order,
				and shall sign an acknowledgment that he or she has received a copy of, has
				read, and has agreed to be bound by this Order. A copy of the Acknowledgment
				Form is attached as Exhibit A.
17.
				To the extent that any discovery is taken of persons who are not Parties to
				this Action and in the event that such third parties contended the discovery
				sought involves trade secrets, confidential business information, or other
				proprietary information, such third parties may agree to be bound by this
				Order.
18. To the extent that
				discovery or testimony is taken of third parties, the third parties may
				designate as "CONFIDENTIAL" or "RESTRICTED - ATTORNEYS' EYES ONLY" any
				documents, information, or other material, in whole or in part, produced or
				given by such third parties. The third parties shall have ten (10) business
				days after production of such documents, information, or other materials to
				make such a designation. Until that time period lapses or until such a
				designation has been made, whichever occurs sooner, all documents, information
				or other material so produced or given shall be treated as "CONFIDENTIAL" in
				accordance with this Order.
19.
				Within thirty (30) days of final termination of this Action, including any
				appeals, all DESIGNATED MATERIAL, including all copies, duplicates, abstracts,
				indexes, summaries, descriptions, and excerpts or extracts thereof (excluding
				excerpts or extracts incorporated into any privileged memoranda of the Parties
				and materials which have been admitted into evidence in this Action), shall be
				returned to the producing Party or, where agreed to by the producing Party,
				destroyed by the receiving Party. The receiving Party shall verify the return
				or destruction, as applicable, by affidavit furnished to the producing Party
				upon the producing Party's request.
20. The failure to designate documents,
				information, or material in accordance with this Order and the failure to
				object to a designation at a given time shall not preclude the filing of a
				motion at a later date seeking to impose such designation or challenging the
				propriety thereof. The entry of this Order and/or the production of documents,
				information, and material hereunder shall in no way constitute a waiver of any
				objection to the furnishing thereof, all such objections being hereby
				preserved.
21. Any Party knowing or
				believing that any other Party subject to this Order is in violation of or
				intends to violate this Order and after raising the question of violation or
				potential violation with the opposing Party and having been unable to resolve
				the matter by agreement, such Party may move the Purchasing Entity or tribunal
				serving as an agent of the Purchasing Entity in connection with this Action for
				such relief as may be appropriate in the circumstances. Pending disposition of
				the motion by the Purchasing Entity or tribunal serving as an agent of the
				Purchasing Entity in connection with this Action, the Party alleged to be in
				violation of or intending to violate this Order shall discontinue the
				performance of and/or shall not undertake the further performance of any action
				alleged to constitute a violation of this Order.
22. Production of DESIGNATED MATERIAL by each
				of the Parties shall not be deemed a publication of the documents, information
				and material (or the contents thereof) produced so as to void or make voidable
				whatever claim the Parties may have as to the proprietary and confidential
				nature of the documents, information or other material or its
				contents.
23. Nothing in this Order
				shall be construed to effect an abrogation, waiver, or limitation of any kind
				on the rights of each of the Parties to assert any applicable discovery or
				hearing privilege.
24. Each of the
				Parties shall also retain the right to file a motion with the Purchasing Entity
				or tribunal serving as an agent of the Purchasing Entity in connection with
				this Action:
(a) to modify this Order to
				allow disclosure of DESIGNATED MATERIAL to additional persons or entities if
				reasonably necessary to prepare and present this Action and
(b) to apply for additional protection of
				DESIGNATED MATERIAL.
25.
				Nothing in this Order applies to a Party's use of its own DESIGNATED MATERIAL
				which it designated as such pursuant to this Order, or to material which the
				Party had available to it through means other than discovery in this
				proceeding.
26.
(SAMPLE
				REGULATORY COMPLIANCE PROVISION-INSERT ALTERNATE OR ADDITIONAL LANGUAGE IF
				NATURE OF DATA OR INFORMATION POTENTIALLY INVOLVED IN ACTION REQUIRES AS
				MUCH)
The Parties recognize that they may be required to produce in
				response to discovery requests patient information protected by the Health
				Insurance Portability and Accountability Act of 1996 and its implementing
				regulations found at 45 C.F.R. parts 160, 162, and 164 ("HIPAA"). Any such
				information exchanged shall be subject to this Order, shall be used solely for
				the purpose of the litigation of this Action, and shall at all relevant times
				be protected by the Parties from further redisclosure by the Parties. Any
				document containing information protected by HIPAA shall be filed under seal
				and shall not be open to public examination. At the conclusion of the
				litigation of this Action, all documents exchanged that contain information
				protected by HIPAA shall be either returned to the disclosing Party or
				destroyed, with the exception that copies of such records may be retained for
				document retention purposes only. At the end of any relevant document retention
				obligation, the documents protected by this provision of this Order shall be
				either returned to the disclosing Party or destroyed.
EXHIBIT A-(NAME OF PURCHASING ENTITY)
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