KCS STB Protective order issued

33560 SERVICE DATE ­ MAY 13, 2003
SEC
SURFACE TRANSPORTATION BOARD
DECISION
STB Finance Docket No. 34342
KANSAS CITY SOUTHERN
­CONTROL­
THE KANSAS CITY SOUTHERN RAILWAY COMPANY,
GATEWAY EASTERN RAILWAY COMPANY,
AND
THE TEXAS MEXICAN RAILWAY COMPANY

PETITION FOR PROTECTIVE ORDER
Decision No. 1

Decided: May 12, 2003
By petition filed April 21, 2003 (KCS-1/TM-1) and an amendment
filed April 29, 2003 (KCS-2/TM-2), Kansas City Southern (KCS), The Kansas
City Southern Railway Company (KCSR), Gateway Eastern Railway Company
(Gateway), and The Texas Mexican Railway Company (Tex Mex) (collectively,
Applicants) seek a Protective Order in connection with the filing of their
notice of intent to file a joint application seeking Surface Transportation
Board (Board) authority under 49 U.S.C. 11323-25 for KCS to acquire control
of Tex Mex by acquiring 51% of the stock of Tex Mex¹s parent, Mexrail, Inc.

Applicants state that the proposed Protective Order, as amended,
clarifies that all parties are required to file simultaneously a public
version of any Highly Confidential or Confidential submission filed with the
Board. Applicants note, in their proposed Protective Order, that the
Confidential Version may be served on other parties in electronic format
only. Applicants also note that, in lieu of preparing a Confidential
Version, the filing party may provide to outside counsel for any other party
a list of all ³highly confidential² 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.

Applicants explain that a Protective Order is necessary for two
reasons. First, they maintain that, in order to prepare the application,
personnel of Applicants and their affiliates must exchange information,
including shipper-specific material such as traffic data and tapes, and the
Protective Order is necessary to protect confidential information and to
facilitate compliance with 49 U.S.C. 11323 and 11904 and other relevant
provisions of the ICC Termination Act of 1995. Second, Applicants maintain
that the proposed Protective Order will facilitate any necessary discovery
at subsequent stages of the proceeding by protecting the confidentiality of
materials reflecting the terms of contracts, shipper-specific traffic data,
and other confidential and/or proprietary information in the event such
materials are sought or produced.

The request is similar to those for protective orders in other
control cases. Good cause exists to grant the petition. Unrestricted
disclosure of confidential, proprietary or commercially sensitive
information and data could cause serious competitive injury to the parties.
Issuance of the requested Protective Order ensures that such information and
data produced by any party in response to a discovery request or otherwise
will be used solely for purposes of this proceeding and not for any other
business or commercial use. The requested Protective Order will facilitate
the prompt and efficient resolution of this proceeding.

The Board appreciates that Applicants have addressed
confidentiality matters in this merger proceeding in a way that is
consistent with past practices in merger proceedings and with the agency¹s
clarification of 49 CFR 1104.14(a) and 1104.3(b)(4), as provided in STB Ex
Parte No. 638. Specifically, paragraph 19 of the Protective Order specifies
that a public version must be filed with the Board simultaneously with any
filing designated Highly Confidential or Confidential. It further states
that, when filing a Highly Confidential Version, the filing party does not
need also to file a Confidential Version with the Board, but must make
available (simultaneously with the party¹s submission to the Board of its
Highly Confidential Version) a Confidential Version reviewable by any other
party¹s in-house counsel or a list of all ³highly confidential² information
that must be redacted from its Highly Confidential Version prior to review
by in-house counsel.

This action will not significantly affect either the quality of
the human environment or the conservation of energy resources.

It is ordered:

1. The petition for a protective order is granted and the
parties to this proceeding must comply with the Protective Order in the Appendix.

2. This decision is effective on the service date.

By the Board, Vernon A. Williams, Secretary.
Vernon A. Williams

 

I wondered about that- especially since KCSI has closed the deal to buy enough shares to get 51% ownership of TFM.

Unless UP or BNSF goes & buys some Mexican trackage, this makes KCS the first north-south routing from Chicago to Mexico City, and with interchange with CP and CN/IC, gives us the first NAFTA right-of-way.