Yith et al v. Johnson et al

Filing 114

PROTECTIVE ORDER, signed by Magistrate Judge Sheila K. Oberto on 6/21/2019. (Kusamura, W)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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SEANLIM YITH and SEAK LEANG YITH,

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Plaintiffs,

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v.
KEVIN K. MCALEENAN, in his Capacity
as Acting Secretary of Homeland Security,
et al.,
Defendants.

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) Case No.: 1:14-cv-01875-LJO-SKO
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) PROTECTIVE ORDER
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Pursuant to the provisions of Federal Rule of Civil Procedure 26(c), the Court enters this

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Protective Order upon motion of Defendants, for the purpose of protecting Confidential Material

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disclosed by the Parties.
IT IS ORDERED, ADJUDGED, AND DECREED that the following procedures will

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govern the production and/or use of Confidential Material in this action:

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1.

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produced in accordance with the Federal Rules of Civil Procedure or any order of the Court, by

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any Party to any other Party in this matter.

This Protective Order governs the treatment and handling of all Confidential Material

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discoverable are authorized to be produced. 5 U.S.C. § 552a(b)(11).

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other materials, in whatever form, which, in the opinion of that Party contains information

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protected by the Privacy Act, 5 U.S.C. § 552a, the Freedom of Information Act, 5 U.S.C. § 552,

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and/or the law enforcement, investigatory files, informant privilege, or any other privilege under

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federal or state law, may designate such material as subject to this Protective Order by marking

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each page of the document as “Subject to Protective Order,” whether it be a document,

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information contained in a document, information revealed during an interrogatory answer, or

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Confidential Materials subject to protection under the Privacy Act which are otherwise

Any Party furnishing Confidential Material, defined as documents, things, information or

otherwise.

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Any Party receiving Confidential Material which in the opinion of the designating party

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contains information protected by the Privacy Act, 5 U.S.C. § 552a, the Freedom of Information

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Act, 5 U.S.C. § 552, and/or the law enforcement, or investigatory files privilege(s), and/or any

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other privilege under federal or state law, may designate such material as subject to this

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Protective Order by marking each page of the document as either “Subject to Protective Order,”

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provided that the Party provides notice of such designation within 14 days of receipt to counsel

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for all other Parties.

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4.

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shall be used by a Party only for purposes related to this action and for no other purpose, under

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other restrictions as explained elsewhere in this Order, and under no circumstances, other than

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those specifically provided for in this or a subsequent Order of this Court, shall any Party

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disclose it to persons or entities other than the following:

Confidential Material designated “Subject to Protective Order” pursuant to this Order

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a.

The Court and Court personnel;

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b.

A Party and Counsel of record for a Party;

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c.

Secretarial, clerical, paralegal or paraprofessional staff, or other members of the

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legal team, provided such counsel deems the disclosure reasonably necessary for the

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conduct of this litigation;

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d.

Experts or consultants who have been retained by a Party for the purpose of

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assisting in the conduct of this action;

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e.

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provided that counsel of record for a Party deems the disclosure reasonably necessary for

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the conduct of this litigation and that no disclosure is made to persons outside the

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authorization of this Order; and

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f.

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designated the Confidential Material in question as “Subject to Protective Order”

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Before any Confidential Material subject to this Protective Order is disclosed to a Party,

Fact witnesses during their deposition, or in preparation for their deposition,

Other persons upon order of this Court or upon stipulation of the Party who

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all counsel of record for that Party shall sign and serve the “Acknowledgment of Protective

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Order,” attached as Exhibit “A” to this Protective Order, on all counsel of record for all Parties.

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Unless otherwise specified by a counsel of record for a Party, service of the signed

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“Acknowledgement of Protective Order” may be completed by e-mail.

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Prior to disclosing Confidential Material subject to the Protective Order to any other

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individuals designated in subsections (b)-(f), counsel for a Party must have these individuals sign

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the “Acknowledgment of Protective Order,” attached to this Protective Order. The original

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signed “Acknowledgment of Protective Order” completed by any individual designated in

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subsections (b)-(f) shall be retained by counsel seeking to disclose materials to such individual

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until the conclusion of this litigation (as that point in time is defined in paragraph 9 below).

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These signed “Acknowledgment of Protective Order” forms may only be disclosed pursuant to

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Court order.

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5.

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is disclosed is hereby advised that such Confidential Material is being disclosed pursuant and

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subject to the terms of this Order, may not be disclosed other than pursuant to the terms hereof,

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and may be used only for purposes related to this action and for no other purposes. Confidential

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Material designated “Subject to Protective Order” may be disclosed to a person identified in

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subparagraphs 4(b)-(f) only after such person has executed a copy of the “Acknowledgment of

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Protective Order,” attached hereto.

Each person to whom Confidential Material designated as “Subject to Protective Order”

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In the event that counsel for any Party determines to file with or submit to this Court – by

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way of pleadings, motions, briefs, or other papers or submissions – any Confidential Material

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designated “Subject to Protective Order” such counsel must make a motion in accordance with

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Eastern District of California Local Civil Rules for permission from the Court to file or submit

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such Confidential Material under seal.

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Confidential Material “Subject to Protective Order,” the objecting Party may notify the

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designating Party in writing at any time, but no later than twenty-one (21) days before the date of

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trial, and the objecting Party must also notify all other Parties of the objection. Within ten (10)

If any Party objects to the designation of any information, material, or document as

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days after service of any such notice, and after consultation and a good-faith effort to resolve the

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disagreement with the other Parties, either the designating or the objecting Party may apply to

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the Court for a ruling that the Confidential Material objected to shall (as applicable) be treated or

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not treated as “Subject to Protective Order” and notice of such application shall be provided to

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all other Parties. Until this Court enters an order determining the status of the Confidential

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Material being objected to, such Confidential Material shall be treated in accordance with its

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provisional designation as “Subject to Protective Order” as provided in this Order, unless the

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Parties otherwise agree by written stipulation.

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but not limited to the attorney-client privilege and work-product protection, as well as the law

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enforcement, investigatory files, or state secrets privilege and/or any other privilege under

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federal or state law, over that information in this matter or any other proceeding. Fed. R. Evid.

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502(d), (e), (g). The Parties shall follow Federal Rule of Civil Procedure 26(b)(5)(B) in dealing

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with any privileged materials produced in discovery.

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9.

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which the time for filing an appeal from entry of judgment with no party taking an appeal, or in

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the event an appeal is taken, from the date of exhaustion of any and all appeals), all Confidential

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Material which continues to be designated as “Subject to Protective Order” and all copies

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thereof, shall either be returned to the disclosing Party or destroyed unless otherwise statutorily

Any Party that produces documents does not waive any privilege or protection, including

Within three (3) months of the conclusion of this litigation (commencing from the date on

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required to be retained or preserved. A Party who elects to destroy the copies shall submit a

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certification to the disclosing Party, attesting that all copies were destroyed, within fourteen (14)

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days of the destruction of the copies. Copies which contain markings constituting attorney work

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product need not be returned or destroyed, provided they remain subject to the provisions of this

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Protective Order. All Confidential Material shall be kept in the possession of the Party to whom

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it (the document) was produced, except in the limited circumstances described above.

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10.

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Protective Order” pursuant to the terms of this Order, but which is inadvertently disclosed

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without such designation, may be retrieved by the disclosing Party at any time. Upon notice that

Confidential Material of any sort that a Party wishes to designate as “Subject to

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a Party seeks retrieval, such Confidential Material must be treated as if designated “Subject to

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Protective Order” depending on the designation requested by the inadvertently disclosing Party,

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and may only be used for the purposes and in the manner permitted by this Order.

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not constitute a waiver of any privilege available to that Party, and shall not be construed as

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such.

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production of information or materials it considers not subject to discovery; or (b) prejudice in

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any way the right of a Party to seek a Court determination (i) whether discovery information or

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material should be produced, or (ii) if produced whether such information or material should be

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subject to the terms of this Order; or (c) prejudice in any way the right of a Party to apply to the

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Court for a further protective order relating to any Confidential Material.

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13.

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such modification is granted by the Court or if such modification is ordered by the Court.

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relief from, this Order.

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15.

The agreement of any Party to be bound by the terms and conditions of this Order does

This Order shall not: (a) prejudice in any way the right of a Party to object to the

This Order may be modified if the Parties to this Order agree to such modification and

Any person may at any time move, on notice to all parties, for modification of, or other

In accordance with Local Rule 141(c)(3), the need for protection of Confidential

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information is addressed by a court order, as opposed to a private agreement between or among

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the parties, because the parties have been unable to come to a private agreement.

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IT IS SO ORDERED.
Dated:

June 21, 2019

/s/

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Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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SEANLIM YITH and SEAK LEANG YITH,
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Plaintiffs,

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v.
KEVIN K. MCALEENAN, in his Capacity
as Acting Secretary of Homeland Security,
et al.,

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Defendants.

)
) Case No.: 1:14-cv-01875-LJO-SKO
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) ACKNOWLEDGMENT OF
) PROTECTIVE ORDER
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I, ________________________________, hereby acknowledge, under penalty of

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perjury, that I have read the Protective Order governing disclosure of Confidential Material

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entered by this Court on ______________, 2019. I am familiar with the specific terms of the

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Order and agree to be bound by its terms. I further understand that I am subject to the contempt

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powers of this Court for violation of the Order.

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DATE: ______________________________
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_____________________________________
Signature

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EXHIBIT “A”

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