The opinion of the court was delivered by: Lamberth, District Judge.
Now before the Court are several issues related to the
parties' access to and use of information. The plaintiffs seek
discovery of materials outside the administrative record, and
seek to share with their experts certain proprietary information
that is already in the record. The defendants oppose the
plaintiffs' motions for discovery, and demand a protective order
limiting the circumstances under which the plaintiffs' experts
may view portions of the administrative record. After a full
consideration of the parties' memoranda, the applicable law, and
for the following reasons, the Court DENIES the plaintiffs'
discovery motions, and GRANTS in part and DENIES in part the
defendants' motion for a protective order.
The plaintiffs in these cases have been concessioners at
various national parks throughout the United States for over 30
years. Although their concession contracts expire at the close
of this year, they are interested in continuing as
concessioners. To this end, they have been participating in the
National Park Service ("NPS") bidding process. It is this
process to which the plaintiffs object, and seek to reform by
the instant suit.
The plaintiffs' suits allege that the NPS's contracting
process violates the Administrative Procedure Act ("APA") and
the Tucker Act in that it
(1) denies the plaintiffs a preferred status in the
contract renewal process;
(2) undervalues the plaintiffs' capital investment in
their concession stores; and
(3) permits the NPS to review corporate transfers of
"any controlling interest in a concessioner."
See, e.g., Complaint for Aramark, Dec. 22, 2000, at 3, 18.
From the outset of these cases, a chief area of dispute has
been the information available to the plaintiffs. Although an
official administrative record has been filed with the Court,
the plaintiffs seek information beyond the record which they
believe bolsters their cases. Specifically, the plaintiffs seek
two main classes of information:*fn1 (1) information related
to the plaintiffs' preferred status in contract renewal, and (2)
information related the NPS's possessory interest valuation
With regard to the valuation issue, the plaintiffs claim that
discovery is necessary to show that NPS's calculation of
franchise fees and possessory interests is arbitrary and
capricious. These calculations form an important part of the
concession contract negotiation process, and an understanding
how these values are calculated, argue the plaintiffs, is
essential to challenging their validity. Although the
administrative record includes a 13-page summary of the
valuation process, the plaintiffs still claim that further
information is necessary.
Besides seeking discovery, the plaintiffs also seek to share
the aforementioned 13-page summary with their experts.
Currently, the defendant argues that the summary contains
important proprietary information, and that any expert who views
it must agree never again to serve as an expert in a concession
contract case against the NPS. The plaintiffs argue that such a
condition prevents them from retaining an expert for their
cases. They therefore propose a protective order that would
permit limited disclosure to their experts.
A. The Plaintiffs' Demand for Discovery
Although the parties have characterized this as a discovery
dispute, it is more properly understood as a dispute over the
sufficiency of the administrative record. For, in cases brought
under the APA and the Tucker Act, judicial review is normally
confined to the administrative record.*fn2 Thus, any
discovery request is necessarily predicated on the notion that
the record is insufficient.*fn3 The Court below undertakes ...