United States of America v. State of California et al

Filing 51

STIPULATION and PROPOSED PROTECTIVE ORDER by United States of America. (Bingham, Lauren) Modified on 4/10/2018 (Donati, J).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 CHAD A. READLER Acting Assistant Attorney General MCGREGOR SCOTT United States Attorney AUGUST FLENTJE Special Counsel WILLIAM C. PEACHEY Director EREZ REUVENI Assistant Director DAVID SHELLEDY Civil Chief, Assistant United States Attorney LAUREN C. BINGHAM JOSEPH A. DARROW JOSHUA S. PRESS Trial Attorneys United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 616-4458 Facsimile: (202) 305-7000 e-Mail: lauren.c.bingham@usdoj.gov Attorneys for the United States of America 17 UNITED STATES DISTRICT COURT 18 FOR THE EASTERN DISTRICT OF CALIFORNIA 19 UNITED STATES OF AMERICA, NO. 2:18–CV–00490-JAM-KJN 20 21 22 23 Plaintiff, v. STIPULATED PROTECTIVE ORDER STATE OF CALIFORNIA, et al., Judge: Hon. John A. Mendez Defendants. 24 25 26 27 28 1. PURPOSES AND LIMITATIONS Discovery in this action, including the upcoming expedited depositions and accompanying document production, is likely to involve production of confidential, proprietary, for official use only, law enforcement sensitive, personally identifiable, or other private or STIPULATED PROTECTIVE ORDER 1 1 legally protected information for which special protection may be warranted. Accordingly, the 2 parties hereby stipulate to and petition the court to enter the following Stipulated Protective 3 Order. The parties state that this agreement is consistent with Local Rule 141.1. It does not 4 confer blanket protection on all disclosures or responses to discovery, the protection it affords 5 6 from public disclosure and use extends only to the limited information or items that are entitled 7 to confidential treatment under the applicable legal principles, and it does not presumptively 8 entitle parties to file confidential information under seal. 9 2. “CONFIDENTIAL INFORMATION” 10 As used in this Protective Order, the term “Confidential Information” constitutes the 11 12 13 following: (a) an individual’s social security number, tax identification number, alien registration 14 number (“A number”), passport numbers, driver license numbers, and any similar numbers 15 assigned to an individual by a federal/national, state, or local government of the United States or 16 any other country; 17 18 (b) names, locations of, and any other identifying information which would allow the 19 identification of the particular individual(s) to whom the information relates, or testimony on the 20 record, of individuals who are not parties or witnesses to this litigation; 21 (c) birth dates; 22 (d) any information that is protected or restricted from disclosure by state or federal 23 24 statute or regulation, but which the Court may order to be produced, such as information 25 protected by the Privacy Act, 5 U.S.C. § 552a, and other statutes or regulations that may prevent 26 disclosure of specific alien information, including but not limited to, 8 U.S.C. §§ 1160(b)(5), (6); 27 1186A(c)(4), 1202(f), 1254a(c)(6), 1255a(c)(4), (5); 1304(b), and 1367(a)(2), (b), (c), (d); 22 28 STIPULATED PROTECTIVE ORDER 2 1 U.S.C. § 7105(c)(1)(C), 8 C.F.R. §§ 208.6, 210.2(e), 214.11(e), 214.14(e), 216.5(e)(3)(iii), 2 216.5(e)(3)(viii), 236.6, 244.16, 245a.2(t), 245a.3(n), 245a.21, 1003.27(b)-(d), 1003.46, and 3 1208.6, which otherwise could subject either party to civil or criminal penalties or other 4 sanctions in the event of unauthorized disclosure; 5 6 (e) photographs and fingerprints of individuals; 7 (f) names of any individuals known to be under 18 years of age; 8 (g) any other personally identifiable information identified in Federal Rule of Civil 9 10 Procedure 5.2; and (h) any law enforcement sensitive or “for official use only” information, including but not 11 12 13 limited to, investigative files and techniques. (i) all other protected documents, information or tangible things not identified above 14 which the Parties agree in writing or which the Court orders as qualifying for protection under 15 Federal Rule of Civil Procedure 26(c). 16 If a designating party determines that information not described in this paragraph should 17 18 be designated “Confidential Information,” the parties shall negotiate the appropriateness of that 19 designation in good faith and endeavor to resolve any dispute prior to the production of that 20 information. If the parties are unable to resolve the dispute within 14 calendar days, the 21 designating party shall designate the material as containing “Confidential Information” and 22 produce it. The receiving party can then challenge the confidentiality designation(s) pursuant to 23 24 25 26 27 Section 6 of this Stipulated Order. Information that is publicly available, and information that does not permit the identification of the particular individuals to whom the information relates is not considered “Confidential Information.” 28 STIPULATED PROTECTIVE ORDER 3 1 2 3 4 3. SCOPE The protections conferred by this Stipulated Order cover not only those portions of any documents containing Confidential Information (as defined above), but also (a) any information copied or extracted from those portions of any documents containing Confidential Information; 5 6 (b) all copies, excerpts, summaries, or compilations of Confidential Information; and (c) any 7 testimony, conversations, or presentations by parties or their counsel that might reveal 8 Confidential Information. 9 4. ACCESS TO AND USE OF CONFIDENTIAL INFORMATION 10 4.1 Basic Principles. A receiving party may use Confidential Information that is disclosed 11 12 or produced by another party or by a non-party in connection with this case only for prosecuting, 13 defending, or attempting to settle this litigation. Confidential Information may be disclosed only 14 to the categories of persons and under the conditions described in this agreement. Confidential 15 Information must be stored and maintained by a receiving party at a location and in a secure 16 manner that ensures that access is limited to the persons authorized under this agreement. 17 18 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 19 the court or permitted in writing by the designating party, a receiving party may disclose any 20 Confidential Information only to: 21 (a) Counsel of Record in this action and any support staff and other employees of such 22 counsel assisting in this action with an appropriate need to know. If any Counsel of Record, 23 24 support staff, or other employees cease to represent a party in this action for any reason, such 25 counsel shall no longer have access or be authorized to receive any Confidential Information; 26 (b) any experts or consultants retained for this action by counsel to a party or support 27 staff or employees for such an expert or consultant with an appropriate need to know; 28 STIPULATED PROTECTIVE ORDER 4 1 2 3 4 (c) any other person mutually authorized by the parties’ counsel to examine such information with an appropriate need to know; (d) during their depositions, witnesses in the action with an appropriate need to know. Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential 5 6 7 information must be marked by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Order; 8 (e) the Court and its personnel, including court reporters; 9 (f) the author or recipient of a document containing the information or a custodian or 10 other person who otherwise possessed the information; 11 12 (g) copying or imaging services retained by counsel to assist in the duplication of 13 confidential material, provided that counsel for the party retaining the copy or imaging service 14 instructs the service not to disclose any confidential information to third parties and to 15 immediately return all originals and copies of any confidential material. 16 All persons listed in subparagraphs 4.2(b)-(g), to whom Confidential Information is 17 18 disclosed shall first be required to read the terms of this Protective Order and sign a copy of the 19 Acknowledgment of Protective Order form, attached hereto as EXHIBIT A. This requirement 20 does not apply to the disclosure of Confidential Information to the Court and its personnel. 21 4.3 Filing Confidential Material. Without written permission from the designating party 22 or a court order secured after appropriate notice to all interested persons, a Party may not file in 23 24 the public record in this action any Confidential Information. A party seeking to file under seal 25 any Confidential Information must comply with Local Rule 141. Confidential information may 26 only be filed under seal pursuant to a court order which makes specific findings that the relevant 27 28 STIPULATED PROTECTIVE ORDER 5 1 2 3 4 legal standards have been met. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Pintos v. Pac. Creditors Ass'n, 605 F.3d 665, 678–79 (9th Cir.2010). If a receiving party’s request to file designated material under seal pursuant to Local Rule 141 is denied by the Court, then the receiving party may file the material in the public record 5 6 7 8 9 10 unless (1) the designating party seeks reconsideration within four days of the denial, or (2) as otherwise instructed by the Court. 4.4 Filing Motions, Oppositions, and Replies Under Seal. In the event that either party files a motion, opposition, or reply under seal, the provisions of Local Rule 141 shall apply. 4.5 Use Of Information Subject To Protective Order. Use of any information or 11 12 documents subject to this Protective Order, including all information within the scope or 13 paragraph 3, shall be restricted to use in this litigation (subject to the applicable rules of evidence 14 and subject to the confidentiality of such materials being maintained) and shall not be used by 15 anyone subject to the terms of this agreement, for any purpose outside of this litigation or any 16 other proceeding between the parties. Without limiting the generality of the foregoing sentence, 17 18 no one subject to this Protective Order shall use Confidential Information obtained in this 19 litigation to retaliate against, intimidate, report or refer an individual to any governmental 20 authorities, discriminate against any individual in any manner, or harass any other party or 21 witness, relatives of any other party or witness, including domestic partners of a party or witness; 22 or any individuals associated with the parties in any way. Nothing in this Protective Order shall 23 24 25 26 27 limit or in any way restrict the use of information obtained outside of this litigation. 5. DESIGNATION OF CONFIDENTIAL INFORMATION 5.1 Exercise of Restraint and Care in Designating Information for Protection. Each party or non-party that designates information or items for protection under this agreement must take 28 STIPULATED PROTECTIVE ORDER 6 1 care to limit any such designation to specific material that qualifies under the appropriate 2 standards. The designating party must designate for protection only those parts of material, 3 documents, items, or oral or written communications that qualify, so that other portions of the 4 material, documents, items, or communications for which protection is not warranted are not 5 6 swept unjustifiably within the ambit of this agreement. Mass, indiscriminate, or routinized 7 designations are prohibited. Designations that are shown to be clearly unjustified or that have 8 been made for an improper purpose (e.g., to unnecessarily encumber or delay the case 9 development process or to impose unnecessary expenses and burdens on other parties) expose 10 the designating party to sanctions. If it comes to a designating party’s attention that information 11 12 13 14 15 16 or items that it designated for protection do not qualify for protection, the designating party must promptly notify all other parties that it is withdrawing the mistaken designation. 5.2 Manner and Timing of Designations: Except as otherwise provided in this agreement or as otherwise stipulated or ordered, disclosure or discovery material that qualifies for protection under this agreement must be clearly so designated before or when the material is 17 18 19 20 21 disclosed or produced. (a) Information in documentary form: (e.g., paper or electronic documents and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that contains 22 confidential material. If only a portion or portions of the material on a page qualifies for 23 24 25 26 27 protection, the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins). (b) Testimony given in deposition or in other pretrial or trial proceedings: the parties must identify on the record, during the deposition, hearing, or other proceeding, all protected 28 STIPULATED PROTECTIVE ORDER 7 1 testimony, without prejudice to their right to so designate other testimony after reviewing the 2 transcript. Any party or non-party may, within ten days after receiving a deposition transcript, 3 designate portions of the transcript, or exhibits thereto, as confidential. 4 (c) Other tangible items: the producing party must affix in a prominent place on the 5 6 exterior of the container or containers in which the information or item is stored the word 7 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 8 the producing party, to the extent practicable, shall identify the protected portion(s). 9 10 5.3 Inadvertent Failures to Designate. If a Party inadvertently fails to designate material as “Confidential Information” at the time of production, it shall take reasonable steps to notify all 11 12 Receiving Parties of its failure within five business days of discovery. The Producing Party shall 13 promptly supply all Receiving Persons with new copies of any documents bearing corrected 14 confidentiality designations, and the Receiving Party shall return or destroy the original 15 materials, and certify in writing to the Producing Party that such information has been destroyed. 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 18 6.1 Timing of Challenges. Any party or non-party may challenge the designation of 19 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 20 designation is necessary to avoid foreseeable and substantial harm, unnecessary economic 21 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 22 challenge a confidentiality designation by electing not to mount a challenge promptly after the 23 24 original designation is disclosed. 25 6.2 Challenge to Confidential Designation. The parties reserve the right to file a motion 26 to unseal or unredact if either party believes that documents filed under seal or redacted: (a) do 27 not contain Confidential Information identified in paragraph 2 of this Stipulated Order and/or do 28 STIPULATED PROTECTIVE ORDER 8 1 not meet the applicable legal standard for sealing, and therefore should be neither sealed nor 2 redacted; or (b) do contain Confidential Information identified in paragraph 2 of this Stipulated 3 Order, but should be redacted rather than sealed, or redacted differently. The parties shall make a 4 good faith effort to meet and confer regarding any such proposed motion. 5 6 6.3 Meet and Confer. The parties must make every attempt to resolve any dispute 7 regarding confidential designations without court involvement. Any motion regarding 8 confidential designations or for a protective order must include a certification, in the motion or in 9 a declaration or affidavit, that the movant has engaged in a good faith meet and confer 10 conference with other affected parties in an effort to resolve the dispute without court action. The 11 12 13 14 15 16 certification must list the date, manner, and participants to the conference. A good faith effort to confer requires a face-to-face meeting or a telephone conference. 6.4 Judicial Intervention. If the parties cannot resolve a challenge without court intervention, the following procedure shall be used: the designating party seeking designation of material as Confidential Information may submit to the Court for ruling a noticed motion to 17 18 resolve the dispute. The designated material shall be treated as Confidential Information until the 19 issue is resolved by Order of this Court or by agreement of the Parties. 20 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 21 LITIGATION 22 If a party is served with a subpoena or a court order issued in other litigation that compels 23 24 25 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party must: 26 27 28 STIPULATED PROTECTIVE ORDER 9 1 (a) Promptly notify the other party in writing and include a copy of the subpoena or court 2 order so that the producing party has sufficient time to commence an action in the appropriate 3 court to enjoin disclosure. 4 (b) Promptly notify the party who caused the subpoena or order to issue in the other 5 6 7 8 9 10 litigation that some or all of the material covered by the subpoena or order is subject to this Stipulated Order and provide a copy of this Stipulated Order with that notification; (c) Cooperate with respect to all reasonable procedures sought to be pursued by the designating party or parties whose confidential information may be affected, including objecting and seeking a protective order in the litigation in which the subpoena or order issued; and 11 12 (d) Decline to produce the Confidential Material if an objection has been made until the 13 objection has been resolved unless disclosure, dissemination, or transmission is required by law 14 or court order. Any person, entity or organization who receives “Confidential Information” shall 15 abide by all terms and conditions set forth herein unless otherwise permitted by Court Order. 16 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 17 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 19 confidential material to any person or in any circumstance not authorized under this agreement, 20 the receiving party must immediately (a) notify in writing the designating party of the 21 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 22 protected material, (c) inform the person or persons to whom unauthorized disclosures were 23 24 made of all the terms of this agreement, and (d) request that such person or persons execute the 25 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 26 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 27 MATERIAL 28 STIPULATED PROTECTIVE ORDER 10 1 When a producing party gives notice to receiving parties that certain inadvertently 2 produced material is subject to a claim of privilege or other protection, the obligations of the 3 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 4 provision is not intended to modify whatever procedure may be established in an e-discovery 5 6 7 8 9 10 order or agreement that provides for production without prior privilege review. 10. USE OF CONFIDENTIAL MATERIAL The limitations and restrictions on “Confidential Information” in this Protective Order shall not apply with respect to information: (a) If it is publicly-available information, whether it becomes public before or after 11 12 production in this litigation. 13 (b) If the person to whom the information refers has the legal authority to allow the 14 nonconfidential treatment of the information and has affirmatively consented to such non- 15 confidential treatment, and either parties’ counsel has stated in writing to the other party that it 16 has received such consent. 17 18 (c) If the parties have a dispute arising from the use of public information, the parties 19 agree to resolve the dispute pursuant to Section 6 of this Stipulated Order. 20 11. TERMINATION OF LITIGATION AND RETURN OR DESTRUCTION OF 21 DOCUMENTS 22 Anyone to whom “Confidential Information” has been disclosed in accordance with 23 24 Section 4 of this Stipulated Order shall maintain “Confidential Information” pursuant to the 25 terms of this Protective Order, subject to further order by this Court (this provision does not 26 apply to Confidential Information disclosed to and maintained by the Court and its personnel, 27 including court reporters). 28 STIPULATED PROTECTIVE ORDER 11 1 Within ten (10) days after the final disposition of this action, including any and all 2 appeals, all “Confidential Information” and copies thereof shall be returned to the producing 3 parties or destroyed, at the option of the disclosing party, except as this Court may otherwise 4 order. If destroyed, the receiving party shall certify in writing to the producing party that such 5 6 7 information has been destroyed. Notwithstanding this provision, counsel of record may maintain a complete set of 8 discovery for their records through the final disposition of this action, including any and all 9 appeals or the time during which an appeal is possible, and for a period of 5 years after 10 resolution of the case or after any judgment becomes final, whichever is later, provided that such 11 12 counsel maintain the confidential nature of the discovery, as set forth in this Protective Order. 13 Within ten (10) days after this time period, counsel of record shall destroy all “Confidential 14 Information” and copies thereof, except as this Court may otherwise order. The receiving party 15 shall certify in writing to the producing party that such information has been destroyed. 16 The confidentiality obligations imposed by this agreement shall remain in effect until a 17 18 19 20 21 designating party agrees otherwise in writing or a court orders otherwise. 12. MISCELLANEOUS 12.1 Enforceability Upon Signing. By signing the Stipulated Protective Order, the parties agree to be bound by its terms unless and until those terms are modified by order of the Court. 22 12.2 Right to Further Relief. Nothing in this Order abridges the right of any party to seek 23 24 25 26 27 its modification by the Court in the future. 12.3 Right to Assert Other Objections. By stipulating to entry of this Order no party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Order, nor waives any claim or defense in this case. 28 STIPULATED PROTECTIVE ORDER 12 1 Similarly, no party waives any right to object on any ground to use in evidence of any of the 2 material covered by this Order, and nothing herein shall be construed to affect in any way the 3 evidentiary admissibility of any document, testimony, or other matter at any proceeding related 4 to this Action. 5 6 12.4 This order shall constitute a court order authorizing disclosure of information 7 designated as confidential, subject to the protections described herein, for purposes of the 8 Privacy Act, 5 U.S.C. § 552a(b)(11) (authorizing disclosure pursuant to the order of a court of 9 competent jurisdiction) and any other state or federal statute or regulation that provides for 10 disclosure pursuant to court order. 11 12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 13 14 DATED: April 9, 2018 Respectfully submitted, 15 XAVIER BECERRA Attorney General of California CHAD A. READLER Acting Assistant Attorney General THOMAS PATTERSON Senior Assistant Attorney General MCGREGOR SCOTT United States Attorney MICHAEL NEWMAN SATOSHI YANAI Supervising Deputy Attorneys General AUGUST FLENTJE Special Counsel 16 17 18 19 20 21 22 23 24 25 26 WILLIAM C. PEACHEY Director CHRISTINE CHUANG ANTHONY HAKL CHEROKEE MELTON LEE I. SHERMAN Deputy Attorneys General 1515 Clay Street, 20th Floor Oakland, CA 94612 (510) 879-0094 ChristineChuang@doj.ca.gov EREZ REUVENI Assistant Director DAVID SHELLEDY Civil Chief, Asst. United States Attorney JOSEPH A. DARROW JOSHUA S. PRESS Trial Attorneys 27 28 STIPULATED PROTECTIVE ORDER 13 2 /s/Christine Chuang CHRISTINE CHUANG Deputy Attorney General 3 Attorneys for Defendants 1 /s/ Lauren C. Bingham LAUREN C. BINGHAM, Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 616-4458 Lauren.C.Bingham@usdoj.gov 4 5 6 7 Attorneys for the United States of America 8 9 10 IT IS SO ORDERED. 11 12 Hon. John A. Mendez Dated: _________________________ 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 14 CERTIFICATE OF SERVICE 1 2 I hereby certify that on April 9, 2018, I electronically transmitted the foregoing document 3 to the Clerk’s Office using the U.S. District Court for the Eastern District of California’s 4 Electronic Document Filing System (ECF), which will serve a copy of this document upon all 5 6 counsel of record. 7 By: /s/ Lauren C. Bingham LAUREN C. BINGHAM Trial Attorney United States Department of Justice Civil Division 8 9 10 Attorney for the United States 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 15 EXHIBIT A 1 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ [print or 4 type full address], declare under penalty of perjury that I have read in its entirety and understand 5 6 the Stipulated Protective Order that was issued by the United States District Court for the Eastern 7 District of California on _____________ in the case of United States v. California et al., No. 8 2:18-cv-490-JAM. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could expose me to 10 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose 11 12 in any manner any information or item that is subject to this Stipulated Protective Order to any 13 person or entity except in strict compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the Eastern 15 District of California for the purpose of enforcing the terms of this Stipulated Protective Order, 16 even if such enforcement proceedings occur after termination of this action. 17 18 Date: _________________________________ 19 City and State where sworn and signed: _________________________________ 20 Printed name: ______________________________ 21 Signature: 22 __________________________________ 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 16

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