Western Alliance Bank v. Jefferson
Filing
326
ORDER granting 313 Motion for Protective Order; denying 316 Motion to Quash; granting 322 Motion to Amend/Correct. See PDF. Signed by Judge John W Sedwick on 11/13/16.(JWS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Western Alliance Bank,
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Plaintiff,
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vs.
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Richard Jefferson,
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Defendant.
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Richard Jefferson,
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Counter-claimant,
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vs.
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Western Alliance Bank,
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Counter-defendant.
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Richard Jefferson,
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Third-party plaintiff,
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vs.
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Theodore Kritza & Michelle Lee
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Kritza,
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Third-party defendants. )
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2:14-cv-0761 JWS
ORDER AND OPINION
[Re:
Motions at Dockets 313, 316,
and 322]
I. MOTIONS PRESENTED
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Before the court are three motions. First, at docket 313 plaintiff Richard
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Jefferson (“Jefferson”) and non-party the United States of America move pursuant to
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the Privacy Act and Rule 26(c) for a Privacy Act order and a protective order to permit
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the release of records that include information subject to the Privacy Act. Defendants
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Theodore Kritza and Michelle Lee Kritza (collectively, “Kritza”) oppose at docket 315.
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The United States replies at docket 320.
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Second, at docket 316 Kritza moves pursuant to Rules 16(f) and 45 to quash
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Jefferson’s subpoena to the FBI. Jefferson opposes at docket 321. Kritza replies at
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docket 324.
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And third, at docket 322 Jefferson moves pursuant to Rule 16(b)(4) for an order
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modifying the Scheduling and Planning Order to reopen discovery into the FBI’s
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criminal investigation of Kritza. Kritza opposes at docket 323. Jefferson replies at
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docket 325.
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Oral argument was requested on Kritza’s motion at docket 316 and Jefferson’s
motion at docket 322, but oral argument would not assist the court.
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II. BACKGROUND
After the close of discovery, Jefferson issued a subpoena to the FBI requesting
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production of 21 categories of documents that pertain to a criminal investigation
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relevant to this case. 1 The FBI agreed to produce documents responsive to some, but
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not all, of Jefferson’s requests.2 Because the responsive information “had been
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obtained pursuant to an ongoing criminal investigation and was acquired pursuant to
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Grand Jury subpoenas,” the FBI sought and obtained an order from the judge presiding
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over the Grand Jury permitting their disclosure.3
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III. DISCUSSION
Jefferson’s present motions seek an order extending the discovery deadline to
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allow limited discovery into the FBI’s criminal investigation of Kritza, a Privacy Act order,
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and a protective order. Kritza opposes these requests because discovery has already
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closed. Rule 16(b) provides that a pretrial scheduling order may be modified “for good
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Doc 301-8 at 2-9.
Doc 313 at 2.
Id.
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cause and with the judge’s consent.”4 As the court discussed in its order at docket 183,
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the court’s inquiry focuses on the moving party’s diligence. Based on the
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circumstances set out in Jefferson’s motion papers, the court finds that Jefferson has
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demonstrated adequate diligence, and good cause exists to modify the scheduling
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order to permit discovery into the FBI’s responses to Jefferson’s subpoena.
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IV. CONCLUSION
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Based on the preceding discussion, the motions at docket 313 and 322 are
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GRANTED; the motion at docket 316 is DENIED. The Scheduling Order is hereby
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modified for the limited purpose of allowing the parties 60 days from the date the FBI
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produces the records to conduct limited discovery regarding the records produced by
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the FBI.
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IT IS FURTHER ORDERED that the United States is authorized to disclose the
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documents and information sought by the subpoena as described in the motion at
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docket 313 as follows:
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1. The United States is authorized to release to the parties in this action, and the
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parties in this action are authorized to disclose and use, documents and information
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protected by the Privacy Act, 5 U.S.C. § 552a, without obtaining the prior consent of the
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individuals to whom such documents and information pertain, on the terms and
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conditions set forth in this Order.
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2. Government records that identify specific individuals or contain sensitive law
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enforcement information, as determined by the United States, shall be marked
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“PRODUCED SUBJECT TO PROTECTIVE ORDER” or “SUBJECT TO PROTECTIVE
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ORDER” or contain a similar marking, and once so designated, the documents and
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information shall be deemed “protected Information” subject to this Order.
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Fed. R. Civ. P. 16(b)(4).
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3. Protected Information may be used only for purposes of the above-captioned
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litigation and any appellate proceedings in this action, and for no other proceeding or
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purpose.
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4. No person having access to Protected Information shall disclose such
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information to any person except as provided in this Order. Protected Information may
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be disclosed only to (a) the parties in this action, (b) legal counsel to the parties in this
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action and such counsel’s law clerks, paralegals, assistants, experts and consultants to
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the extent reasonably necessary to render professional services in this case, (c) legal
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counsel to the United States appearing in this action and such counsel’s law clerks,
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paralegals, assistants, (d) licensed court reporters used in this action, (e) this Court and
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its staff, and (f) the jury in this action.
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5. Except as provided herein, no person having access to the Protected
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Information shall make public disclosure of those records or that information without
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further Order of this Court. Any Protected Information filed within this matter must be
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filed under seal pursuant to paragraph 9.
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6. If a marked document is (other than the marking) identical to a previously
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disclosed unmarked document in this litigation, that document (either marked or
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unmarked) shall be subject to this order.
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7. All individuals to whom documents or information subject to this order are
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disclosed shall be informed of and shall agree with the terms of this Order and shall not
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otherwise disclose the documents or information subject to this Order to the public or to
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any person or entity.
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8. The United States and Mr. Jefferson reserve the right to move the Court to
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modify the terms of this Protective Order at any time, and each reserves the right to
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oppose any motion to modify the terms of the Protective Order.
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9. Unless this Court has previously ruled that a document or information is not
subject to the Privacy Act and/or the Privacy and Protective Order, or not otherwise
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within the scope of this Order, Protected Information may be presented to the Court
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only under seal.
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10. Within sixty (60) days of the termination of this case, including any
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subsequent appeals, all Protected Information shall be destroyed or returned to the
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United States, and all documents that contain or refer to Protected Information shall be
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destroyed or redacted. Any person having access to Protected Information shall, upon
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request of the United States, promptly certify in writing that all Protected Information in
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his or her possession, custody or control has been returned to the United States,
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destroyed, or redacted in accordance with this Order. Provided, however, that no party
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is required to destroy or redact any document that has been filed with this Court or with
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a court of appeals of competent jurisdiction in connection with this case, or as
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necessary to be retained as per attorney ethical obligations.
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11. Neither the United States, nor any of its officers, employees, or attorneys,
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shall bear any responsibility or liability for any unauthorized disclosure of any
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documents obtained under this Order, or of any information contained in such
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documents.
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12. This Order does not constitute any ruling on the question of whether any
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particular document or category of information is properly discoverable and does not
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constitute any ruling on any potential objection to the discoverability, relevance, or
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admissibility of any record, other than objections based on the Privacy Act.
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13. The terms and conditions set forth herein shall not apply to the disclosure of
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any classified national security information or any information subject to a claim of
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privilege or other basis of exclusion, and this Order shall not be precedent f or adopting
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any procedure.
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14. The Court may modify this Order in the interests of justice or for public policy
reasons.
Accordingly, pursuant to 5 U.S.C. § 552a(b)(11), the United States is authoriz ed
to disclose protected records relevant to this litigation, without obtaining prior written
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consent of the individuals to whom those records pertain. Such documents shall be
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marked “SUBJECT TO PROTECTIVE ORDER.”
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DATED this 13th day of November 2016.
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/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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