STB Protective order issued

friscobob May 13, 2003

  1. friscobob

    friscobob Staff Member

    33560 SERVICE DATE ­ MAY 13, 2003
    STB Finance Docket No. 34342

    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

    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
  2. cthippo

    cthippo TrainBoard Member

    Thats pretty common. It prevents commercially sensitive information becomeing public through a Freedom of Information act filing.
  3. friscobob

    friscobob Staff Member

    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.

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