First Unitarian Church of Los Angeles et al v. National Security Agency et al

Filing 103

ORDER. Signed by Judge Jeffrey S. White on March 21, 2014. (jswlc2, COURT STAFF) (Filed on 3/21/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FIRST UNITARIAN CHURCH OF LOS
ANGELES, ET AL.,

For the Northern District of California

United States District Court

No. C 13-03287 JSW
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Plaintiffs,
v.
ORDER

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NATIONAL SECURITY AGENCY, ET AL.,

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Defendants.

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Upon consideration of the parties’ submissions and good cause appearing, the Court
hereby orders as follows:
A.

The Court reminds all parties of their duty to preserve evidence that may be

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relevant to this action. The duty extends to documents, data and tangible things in the

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possession, custody and control of the parties to this action, and any employees, agents,

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contractors, carriers, bailees or other non-parties who possess materials reasonably anticipated

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to be subject to discovery in this action. Counsel are under an obligation to exercise efforts to

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identify and notify such non-parties, including employees of corporation or institutional parties.

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B.

“Documents, data and tangible things: is to be interpreted broadly to include

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writings, records, files, correspondence, reports, memoranda, calendars, diaries, minutes,

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electronic messages, voicemail, e-mail, telephone message records or logs, computer and

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network activity logs, hard drives, backup data, removable computer storage media such as

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tapes, disks and cards, printouts, document image files, web pages, databases, spreadsheets,

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software, books, ledgers, journals, orders, invoices, bills, vouchers, checks, statements,

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worksheets, summaries, compilations, computations, charts, diagrams, graphic presentations,

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drawings, films, digital or chemical process photographs, video, phonographic, tape or digital

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recordings or transcripts thereof, drafts, jottings and notes. Information that serves to identify,

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locate, or link such materials, such as file inventories, file folders, indicies and metadata, is also

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included un this definition.

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C.

“Preservation” is to be interpreted broadly to accomplish the goal of maintaining

discovery under Federal Rule of Civil Procedure 26, 45 and 56(e) in this action. Preservation

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For the Northern District of California

the integrity of all documents, data and tangible things reasonably anticipates to be subject to

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United States District Court

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includes taking steps to prevent the partial or full destruction, alteration, testing, deletion,

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shredding, incineration, wiping, relocation, migration, theft, or mutation of such material, as

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well as negligent or intentional handling that would make material incomplete or inaccessible.

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D.

This order extends to information relevant to the subject matter involved in this

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action or reasonably calculated to lead to the discovery of admissible evidence under the

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currently operative Complaint in this case. The key allegations of the Complaint with regard to

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evidence preservation are:

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3.

This lawsuit challenges an illegal and unconstitutional program of
dragnet
electronic surveillance, specifically the bulk acquisition, collection,
storage, retention, and searching of telephone communications
information (the “Associational Tracking Program”) conducted by the
National Security Agency (NSA) and the other defendants (collectively,
“Defendants”).

5.

The communications information that Defendants collect in the
Associational Tracking Program is retained and stored by Defendants in
one or more databases. The Program collects information concerning all
calls wholly within the United States, including local telephone calls, as
well as all calls between the United States and abroad, regardless of a
connection to international terrorism, reasonable suspicion of criminality,
or any other form of wrongdoing. This information is stored for at least
five years. Defendants have indiscriminately obtained, and stored the
telephone communications information of millions of ordinary
Americans as part of the Associational Tracking Program.

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53.

The telephone communications information Defendants collect and
acquire in bulk as part of the Associational Tracking Program is retained
and stored by Defendants in one or more databases. These databases
contain call information for all, or the vast majority, of calls wholly
within the United States, including local telephone calls, and calls
between the United States and abroad, for a period of at least five years.
Defendants have indiscriminately obtained and stored the telephone
communications information of millions of ordinary Americans,
including Plaintiffs, their members, and staffs, as part of the
Associational Tracking Program.

55.

Through the Associational Tracking Program, Defendants have collected,
acquired, and retained, and continue to collect, acquire, and retain, bulk
communications information of telephone calls made and received by
Plaintiffs, their members, and their staffs. This information is otherwise
private.

60.

Defendants’ bulk collection, acquisition, and retention of the telephone
communications information of Plaintiffs, their members, and their staffs
is done (a) without probable cause or reasonable suspicion to believe that
Plaintiffs, their members, and their staffs have committed or are about to
commit any crime or engage in any international terrorist activity; (b)
without probable cause or reasonable suspicion to believe that Plaintiffs,
their members, or their staffs are foreign powers or agents of foreign
powers; and (c) without probable cause or reasonable suspicion to believe
that the communications of Plaintiffs, their members, and their staffs
contain or pertain to foreign intelligence information, or relate to an
investigation to obtain foreign intelligence information.

64.

Defendants’ searching of the telephone communications information of
Plaintiffs is done without lawful authorization, probable cause, and/or
individualized suspicion. It is done in violation of statutory and
constitutional limitations and in excess of statutory and constitutional
authority. Any judicial, administrative, or executive authorization
(including any business records order issued pursuant to 50 U.S.C. §
1861) of the Associational Tracking Program or of the searching of the
communications information of Plaintiffs is unlawful and invalid.

66.

Defendants, and each of them, have authorized, approved, supervised,
performed, caused, participated in, aided, abetted, counseled,
commanded, induced, procured, enabled, contributed to, facilitated,
directed, controlled, assisted in, or conspired in the Associational
Tracking Program and in the search or use of the telephone
communications information of Plaintiffs, their members, and their staff.
Defendants have committed these acts willfully, knowingly, and
intentionally. Defendants continue to commit these acts and will
continue to do so absent an order of this Court enjoining and restraining
them from doing so.

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For the Northern District of California

United States District Court

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E.

Counsel are directed to inquire of their respective clients if the business or

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government practices of any party involve the routine destruction, recycling, relocation, or

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mutation of such materials and, if so, direct the party, to the extent practicable for pendency of

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this order, either to

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(1)

halt such business or government practices;

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(2)

sequester or remove such material from the business or government practices; or

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(3)

arrange for the preservation of complete and accurate duplicates or copies of

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such material, suitable for later discovery if requested.
Counsel representing each party shall, not later than April 21, 2014, submit to the Court
under seal and pursuant to Federal Rule of Civil Procedure 11, a statement that the directive in

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For the Northern District of California

United States District Court

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Paragraph E has been carried out.

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IT IS SO ORDERED.
Dated: March 21, 2014
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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