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Entergy, state seek to keep lawsuit documents confidential

VERNON—Entergy Corp. and the state have filed a joint protective order as part of the discovery portion of the Entergy v. Vermont case.

The order allows both parties to stamp documents and evidence as “confidential.”

Entergy, owner of the Vermont Yankee (VY) nuclear power station in Vernon, took the state to court in April. The company has claimed pre-emption, saying the Vermont Senate tread on the feds’ toes in 2010 when it voted to deny the plant a Certificate of Public Good (CPG).

The U.S. Nuclear Regulatory Commission renewed VY’s operating license in March until 2032. Without the CPG, however, the state says the 40-year old plant must close once its current license expires in March 2012.

In July, federal judge J. Garvan Murtha denied Entergy’s request for a preliminary injunction to allow the plant continued operation while the case winds through the legal system. The hearing on the merits begins Sept. 12.

Protective orders during the discovery leg of a trial are “common,” said Donald Kreis, an assistant professor at the Vermont Law School and associate director of Institute for Energy and the Environment.

Civil court cases represent public resolution of a private dispute, said Kreis.

Lawyers use the discovery process to prepare for trial, he said. It allows litigants to request information from each side. Courts want this flow of data as “open as possible” without the lawyers “fighting over public disclosure” pre-trial.

At this stage, he said, the protective order “has nothing to do with” what information the lawyers will eventually enter as evidence at trial.

According to Kreis, most of the data Entergy receives from the state will be public information. But businesses, like Entergy, routinely file protective orders to protect “trade secrets.”

Trade secrets include anything companies use to maintain their “competitive advantage,” like Coca-Cola’s secret recipe, or non-trademarked business practices like negotiations.

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Originally published in The Commons issue #115 (Wednesday, August 24, 2011).

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