SURFACE TRANSPORTATION BOARD DECISION DOCUMENT | |||
Decision Information | ![]() | ![]() | |
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Docket Number:   | NOR_42161_0 | ![]() | ![]() |
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Case Title:   | AMEROPAN OIL CORPORATION v. CANADIAN NATIONAL RAILWAY COMPANY, | ||
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Decision Type:   | Decision | ||
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Deciding Body:   | Director Of Proceedings | ||
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Decision Summary | ![]() | ![]() | |
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Decision Notes:   | DECISION GRANTED A MOTION FOR PROTECTIVE ORDER IN THIS PROCEEDING. | ||
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Decision Attachments | |||
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Full Text of Decision | ![]() | ![]() | ![]() |
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46812 SERVICE DATE –
FEBRUARY 11, 2019 DO SURFACE TRANSPORTATION BOARD DECISION Docket No.
NOR 42161 AMEROPAN OIL
CORPORATION v. CANADIAN
NATIONAL RAILWAY COMPANY MOTION FOR PROTECTIVE ORDER Decided: February 8, 2019 On
December 17, 2018, Ameropan Oil Corporation (Ameropan) filed a complaint
against Canadian National Railway Company (CN).
Among other things, Ameropan alleges that CN reduced rail service to
Ameropan’s facilities from five days per week to two days per week. (Compl. 3.) Ameropan argues that the alleged service
reduction violates 49 U.S.C. § 11101(a) and (c), and 49 U.S.C.
§ 10702(2). (Id. at 5.) Ameropan asks the Board to order CN to
restore service to five days per week and requests damages for the alleged
statutory violations. (Id.) On
January 28, 2019, Illinois Central Railroad Company (IC)[1] submitted,
among other pleadings, a motion for protective order. IC requests a protective order to govern
access to certain confidential material submitted under seal in this
proceeding, including a transportation contract between Ameropan and certain
affiliates and IC and certain affiliates.
IC asserts that this contract contains commercially sensitive and
confidential information the public release of which could cause competitive or
other injury to Ameropan or IC. Good
cause exists to grant the motion for protective order, which conforms to the
Board’s rules at 49 C.F.R. § 1104.14 governing protective orders to maintain
the confidentiality of materials submitted to the Board. Issuance of a protective order will ensure
that confidential and highly confidential information will be protected. Accordingly, the motion for protective order
will be granted, and the modified protective order and undertakings in the
Appendix to this decision will be adopted. It
is ordered: 1. The motion for protective order is granted and the modified protective order and undertakings
in the Appendix to this decision are adopted. 2. Materials designated as confidential or highly confidential will be kept under seal by the
Board and not placed in the public docket or otherwise disclosed to the public,
unless the appropriate attached undertaking is executed and the terms of the
protective order are followed, or unless otherwise ordered by the Board. 3. The decision is effective on its service date. By
the Board, Allison C. Davis, Acting Director, Office of Proceedings. APPENDIX 1. Any party producing information, data,
documents or other material (hereinafter collectively referred to as “material”)
in discovery to another party to this proceeding, or submitting material in
pleadings, that the party in good faith believes reflects proprietary or
confidential information, may designate and stamp such material as “CONFIDENTIAL,”
and such material must be treated as confidential. Such material, any copies, and any data or
notes derived therefrom: A. Shall be
used solely for the purpose of this proceeding and any judicial review
proceeding arising herefrom, and not for any other business, commercial, or
competitive purpose. B. May be disclosed only to employees, counsel, or agents of the party requesting such material who have a need to know, handle,
or review the material
for purposes of this proceeding and any judicial
review proceeding arising
herefrom, and only where such employee, counsel, or agent has been given and has read a copy of this Protective Order, agrees to be bound by its terms, and executes
the attached Undertaking for Confidential Material,
prior to receiving
access to such materials. C. Must be
destroyed by the requesting party, its employees, counsel, and agents, at the
completion of this proceeding and any judicial review proceeding arising
herefrom. However, outside counsel and
consultants for a party are permitted to retain file copies of all pleadings
filed with the Board. D. If contained
in any pleading filed with the Board shall, in order to be kept confidential,
be filed only in pleadings submitted in a package clearly marked on the outside
“Confidential Materials Subject to Protective Order.” See 49 C.F.R. § 1104.14. 2. Any party producing material in discovery to
another party to this proceeding, or submitting material in pleadings, may in
good faith designate and stamp particular material,
such as material containing shipper-specific rate or cost data or other
competitively sensitive information, as “HIGHLY CONFIDENTIAL.” If any party wishes to challenge such
designation, the party may bring such matter to the attention of the Board. Material that is so designated may be disclosed
only to outside counsel or outside consultants of the party requesting such
materials who have a need to know, handle, or review the materials for purposes
of this proceeding and any judicial review proceeding arising herefrom,
provided that such outside counsel or outside consultants have been given and
have read a copy of this Protective Order, agree to be bound by its terms, and
execute the attached Undertaking for Highly Confidential Material prior to
receiving access to such materials. Material designated as “HIGHLY CONFIDENTIAL” and produced in discovery
under this provision shall be subject to all of the
other provisions of this Protective Order, including without limitation Section
1(a), (c), and (d). 3. In the event that a party produces
material which should have been designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” and inadvertently fails to designate
the material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” the producing party may
notify the other party in writing within
five days of discovery of its inadvertent failure to make the confidentiality designation. The
party who received the material
without the confidentiality designation will return
the non-designated portion
(including any and all copies) or destroy
it, as directed by the producing party, or take such other steps as the parties
agree to in writing.
The producing
party will promptly
furnish the receiving
party with properly designated material. 4. In the event that a party inadvertently
produces material that is protected by the attorneyclient privilege, work product
doctrine, or any other privilege, the producing party may make a written
request within a reasonable time after the producing party discovers the
inadvertent disclosure that the other party return the inadvertently produced
privileged document. The party who
received the inadvertently produced document will either return the document to
the producing party or destroy the document immediately upon receipt of the
written request, as directed by the producing party. By returning or destroying the document, the
receiving party is not conceding that the document is privileged and is not
waiving its right to later challenge the substantive privilege claim, provided that it may not challenge the privilege claim by
arguing that the inadvertent production waived the privilege. 5. If any party intends to use “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material at hearings
in this proceeding, or in any judicial
review proceeding arising herefrom, the party so intending shall submit any proposed exhibits or other documents setting forth or revealing such “CONFIDENTIAL” and/or
“HIGHLY CONFIDENTIAL” material
to the Board, or the court, as appropriate, with a written
request that the Board or the court: (a) restrict attendance at the hearings
during discussion of such “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material; and (b) restrict access
to the portion of the record or briefs reflecting discussion of such “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material in accordance
with the terms of this Protective Order. 6. If any party
intends to use “CONFIDENTIAL” and/or
“HIGHLY CONFIDENTIAL” material
in the course of any deposition in this proceeding, the party so intending shall so advise counsel for the party producing the materials, counsel for the deponent, and all other counsel attending
the deposition, and all portions
of the deposition at which any such “CONFIDENTIAL” and/or “HIGHLY CONFIDENTIAL” material is used shall
be restricted to persons who may
review the material under this Protective Order. All portions of deposition transcripts and/or exhibits that consist of or disclose
“CONFIDENTIAL” and/or “HIGHLY
CONFIDENTIAL” material shall be kept under seal and treated
as “CONFIDENTIAL” and/or
“HIGHLY CONFIDENTIAL” material
in accordance with the terms of this Protective Order. 7. Each party is ordered to produce to the other
party documents or information which,
because of confidentiality provisions, cannot be produced
without a Board order directing
their production to the extent that (1) the other party
has requested that the documents
be produced in discovery, and (2) the parties agree that the requested documents
would be properly discoverable in this proceeding but for the confidentiality provision(s). Such documents shall be
required to be produced only after
the other party(ies) who are entitled
to prior notice have been provided written notice
and a reasonable opportunity to object to that production and obtain a ruling from the Board on that objection. Any documents
produced pursuant to this Section
7 shall be treated as “HIGHLY CONFIDENTIAL” and shall otherwise be subject to the terms of
this Protective Order.
To the extent that material reflecting the terms of contracts, shipper-specific data, traffic data,
or other proprietary information is produced
by a party in this or any related proceedings and is held and used by the receiving
person in compliance with this Protective Order, such production, disclosure, and use of
the material and of the data that the
material contains will be deemed
essential for the disposition of this and any related
proceedings and will not be deemed a violation of 49 U.S.C. §
11904. 8. Except for this proceeding, the parties agree that if a
party is required by law or order of a governmental or judicial body to release
“CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” material produced
by the other party or copies
or notes thereof as to which it obtained access pursuant to this Protective Order, the party
so required shall notify the producing party in writing
within three working
days of the determination that the “CONFIDENTIAL” material, “HIGHLY CONFIDENTIAL” material, or copies
or notes are to be released, or within three working days prior to such release, whichever
is soonest, to permit the producing party the opportunity to contest the release. 9. Information that is publicly available or
obtained outside of this proceeding from a person with a right to disclose it
shall not be subject to this Protective Order even if the same information is
produced and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” in this proceeding. 10. Each party
has a right to view its own data, information and documentation (i.e., information originally generated or compiled by or for that
party), even if that data, information and documentation has been designated as Highly Confidential by a producing party, without securing
prior permission from the producing party. If a party (the “filing party”)
files and serves upon the other party (the “reviewing party”) a pleading or evidence containing
the filing party's Highly Confidential material,
the filing party shall also prepare and serve
contemporaneously upon the reviewing party a Confidential Version of the pleading or evidence from which the filing party’s
Highly Confidential material has been redacted. The Confidential Version may be provided in hardcopy or electronic format at the option of the filing
party, and may be disclosed to those personnel
employed by the reviewing party who have read a copy of this Protective Order and executed
the attached Undertaking for Confidential Material (“In-house Personnel”). In lieu of preparing a “CONFIDENTIAL” version,
the filing party may (simultaneously with the party’s submission to the Board of its “HIGHLY
CONFIDENTIAL” version) make available to outside counsel
for any other party a list
of all “HIGHLY CONFIDENTIAL” information
that must be redacted from its “HIGHLY CONFIDENTIAL” version prior to review by
in-house personnel, and outside counsel for any other party must then redact
that material from the “HIGHLY CONFIDENTIAL” version before permitting any
clients to review the submission. 11.
Any party filing with the Board a “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pleading in this proceeding shall
simultaneously file a public version of the pleading. UNDERTAKING CONFIDENTIAL
MATERIAL I,
_______________________________, have read the Protective Order governing the filing
of confidential documents in Docket No. NOR 42161, understand the same,
and agree to be bound by its terms. I
agree not to use or permit the use of any data or information obtained under
this Undertaking, or to use or permit the use of any techniques disclosed or
information learned as a result of receiving such data or information, for any
purposes other than the preparation and presentation of evidence and argument
in Docket No. NOR 42161 or any judicial review proceeding arising
herefrom. I further agree not to
disclose any data or information obtained under this Protective Order to any
person who has not executed an Undertaking in the form hereof. At the conclusion of this proceeding and any
judicial review proceeding arising herefrom, I will promptly destroy any copies
of such designated documents obtained or made by me or by any outside counsel
or outside consultants working with me, provided, however, that outside counsel
may retain file copies of pleadings filed with the Board. I
understand and agree that money damages would not be a sufficient
remedy for breach of this Undertaking and that parties producing confidential
documents shall be entitled to specific performance and injunctive or other
equitable relief as a remedy for any such breach, and I further agree to waive
any requirement for the securing or posting of any bond in connection with such
remedy. Such remedy shall not be deemed
to be the exclusive remedy for breach of this Undertaking but shall be in addition
to all remedies available at law or equity. Signed: ___________________________________ Dated: ___________________________________ UNDERTAKING HIGHLY
CONFIDENTIAL MATERIAL As
outside [counsel] [consultant] for , for which I am acting in this proceeding, I have read
the Protective Order governing the filing of confidential documents in Docket No. NOR 42161, understand the same, and agree
to be bound by its terms. I further
agree not to disclose any data, information or material designated “HIGHLY
CONFIDENTIAL” to any person or entity who: (i) is not eligible for access to HIGHLY
CONFIDENTIAL material under the terms of the Protective Order, or (ii) has not
executed a HIGHLY CONFIDENTIAL undertaking in the form hereof. I also understand and agree, as a condition
precedent to my receiving, reviewing, or using copies of any documents designated
“HIGHLY CONFIDENTIAL,” that I will limit my use of those documents and the
information they contain to this proceeding and any judicial review proceeding
arising herefrom, that I will take all necessary steps to assure that said
documents and information will be kept on a confidential basis by any outside
counsel or outside consultants working with me, that under no circumstances
will I permit access to said documents or information by personnel of my
client, its subsidiaries, affiliates, or owners, and that at the conclusion of
this proceeding and any judicial review proceeding arising herefrom, I will
promptly destroy any copies of such designated documents obtained or made by me
or by any outside counsel or outside consultants working with me, provided, however,
that outside counsel may retain file copies of pleadings filed with the
Board. I further understand that I must
destroy all notes or other documents containing such highly confidential
information in compliance with the terms of the Protective Order. Under no circumstances will I permit access
to documents designated “HIGHLY CONFIDENTIAL” by, or disclose any information
contained therein to, any persons or entities for which I am not acting in this
proceeding. I
understand and agree that money damages would not be a sufficient
remedy for breach of this Undertaking and that parties producing confidential documents
shall be entitled to specific performance and injunctive or other equitable
relief as a remedy for any such breach, and I further agree to waive any
requirement for the securing or posting of any bond in connection with such
remedy. Such remedy shall not be deemed
to be the exclusive remedy for breach of this Undertaking but shall be in
addition to all remedies available at law or equity. Signed: ___________________________________ OUTSIDE
[COUNSEL] [CONSULTANT] TO ___________________________________
[Party
Name] Dated: ___________________________________ [1] On
January 28, 2019, IC and CN filed a motion to dismiss the complaint on
jurisdictional grounds. They also state
that CN, which is IC’s ultimate corporate parent, is a Canadian corporation
that does not own or operate rail lines in Illinois and does not provide rail
service to Ameropan in Chicago. (Mot. to
Dismiss 1 n.1, 5.) IC and CN argue that,
even if the Board does not dismiss the complaint in its entirety, the Board
should dismiss CN as a party defendant.
(Id. at 5.) On February 6,
2019, Ameropan filed a petition for leave to amend its complaint to voluntarily dismiss CN as a defendant with prejudice and name
IC as the defendant. These requests
will be addressed in a later decision. |