DoD has introduced a new contract clause (see DFARS 252.204-7014) based on a provision in the 2012 National Defense Authorization Act that authorizes DoD "covered litigation support contractors" to have access to and use of any technical, proprietary, or confidential data delivered under a contract for the sol purpose of providing litigation support.
The basic objective of the rule is to expressly authorize DoD to provide its litigation support contractors with access to certain types of non-public information, provided that the litigation support contractors are required to protect that information from any unauthorized disclosure, and are prohibited from using that information for any purpose other than providing litigation support services to DoD.
Under the new interim rule DoD is authorized to release litigation information, including sensitive information, to its litigation support contractors provided that the litigation support contractors are subject to appropriate requirements and restrictions that comply with the requirements of 10 U.S.C. Section 129d.
The new regulation requires litigation support contractors to treat any and all information provided to, or obtained by, the litigation support contractor as sensitive information, regardless of whether that information is marked with a restrictive legend. While not obviating the need, desire, or value of using restrictive legends on sensitive information, this approach ensures the protection of all sensitive information, even when inadvertent error or oversight results in a restrictive legend being omitted from the information.
Litigation support means administrative, technical or professional services provided in support of the Government during or in anticipation of litigation. A litigation support contractor is a contractor (including an expert or technical consultant) providing litigation support under a contract with the Department of Defense. Litigation information means any information, including sensitive information, that is furnished to the contractor by or on behalf of the Government, or that is generated or obtained by the contractor in the performance of litigation support work. Finally, sensitive information means confidential information of a commercial, financial, proprietary, or privileged nature. The term includes technical data and computer software, but does not include information that is lawful publicly available without restrictions.