Lyon et al v. U.S. Immigration and Customs Enforcement et al

Filing 67

STIPULATION AND ORDER re 66 STIPULATION WITH PROPOSED ORDER Governing Confidential & Highly Confidential Information filed by U.S. Department of Homeland Security, John Sandweg, Timothy S. Aitken, U.S. Immigration and Customs Enforcement, Jeh Charles Johnson. Signed by Judge Edward M. Chen on 1/13/15. (bpf, COURT STAFF) (Filed on 1/13/2015)

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page1 of 23

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

JOYCE R. BRANDA
Acting Assistant Attorney General
WILLIAM C. PEACHEY
Director, District Court Section
ELIZABETH J. STEVENS
Assistant Director, District Court Section
KATHERINE J. SHINNERS
JENNIFER A. BOWEN
KATHERINE A. SMITH
Trial Attorneys, Office of Immigration Litigation
U.S. Department of Justice – Civil Division
P.O. Box 868, Ben Franklin Station
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
ROBERT P. VARIAN (STATE BAR NO. 107459)
ORRICK, HERRINGTON & SUTCLIFFE LLP
The Orrick Building, 405 Howard Street
San Francisco, California 94105-2669
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
Attorneys for Plaintiffs
[Additional Counsel appear on signature page]

16

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

17
18
19

AUDLEY BARRINGTON LYON, JR., et al.,

20

Plaintiffs,

21
22
23

vs.
U.S. IMMIGRATION & CUSTOMS
ENFORCEMENT, et al.,1

24

Defendants.

25

)
)
)
)
)
)
)
)
)
)
)

No. 3:13-cv-05878-EMC
STIPULATED AND [PROPOSED] PROTECTIVE
ORDER GOVERNING CONFIDENTIAL &
HIGHLY CONFIDENTIAL INFORMATION

26
27
28

Sarah Saldaña, Director, ICE, is substituted under Fed. R. Civ. P. 25(d)for former
Acting Director, John Sandweg, who was named as a defendant in this action in his official
capacity but resigned from this position effective February 21, 2014.

1

STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page2 of 23

1
2

1.

PURPOSES & LIMITATIONS
1.1

3

The parties anticipate that, in the course of ongoing discovery, they will

4

exchange documents, items, material, and other information that contain sensitive,

5

confidential, proprietary, and/or private information that merits special protection from

6

public disclosure. Accordingly, the parties hereby stipulate to and petition the Court to

7
8
9
10
11

enter the following Stipulated Protective Order. Such sensitive and confidential
information may include (a) security arrangements; security plans, practices, policies,
procedures, protocols or guidelines; security audits or reviews; building layouts; or
documents reflecting architectural plans, blueprints or schematics whose efficacy may be

12
13

undermined by disclosure to the public, including but not limited to floor plans or plans

14

specific to building security features, enhancements or vulnerabilities; (b) information

15

subject to the Privacy Act (codified at 5 U.S.C § 552a) or the official information privilege

16
17
18

that is protected from disclosure, in order to comply with the law; (c) material containing
private and confidential third-party information protected by the right to privacy

19

guaranteed in the Federal Constitution and the First Amendment, in order to protect the

20

privacy interest of those third-parties; and (d) other information that Defendants are

21

precluded from publicly disclosing by regulation or statute.2

22

1.2

23

The parties acknowledge that this Order does not confer blanket protections

24

on all disclosures or responses to discovery and that the protection it affords from public

25

disclosure and use extends only to the limited information or items that are entitled to

26

confidential treatment under the applicable legal principles. The parties further

27
28

The existence of this protective order does not necessarily authorize or require the
disclosure of all or any information protected from disclosure by statute or regulation.
2

STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page3 of 23

1

acknowledge, as set forth in section 12, below, that this Stipulated Protective Order does

2

not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth

3
4
5

the procedures that must be followed and the standards that will be applied when a party
seeks permission from the Court to file material under seal.
1.3

6

Pursuant to 5 U.S.C. § 552a(b)(11), this Stipulated Protective Order

7

authorizes the Producing Party to produce to the Receiving Party and the Court

8

discoverable information pursuant to Fed. R. Civ. P. 26(c) sought during ongoing discovery

9
10

containing unredacted confidential and highly confidential information. To the extent the

11

relevant statute or regulation allows the disclosure of information pursuant to a court

12

order, this Order constitutes such a court order and authorizes disclosure of that

13

information.

14

1.4

15
16

The Parties agree that the terms of this Protective Order will govern the

production of information as well as the safeguarding of such information by all individuals

17

referenced in sections 7 and 12.

18

2.

19

DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

20
21

information or items under this Order.
2.2

22
23
24
25
26

“CONFIDENTIAL” Information or Items: any information (regardless of how

it is generated, stored or maintained) or tangible things that are not publicly available and
qualify for protection under Federal Rule of Civil Procedure 26(c), pursuant to applicable
laws, statutes, or regulations, 3 such as the Privacy Act, 5 U.S.C. § 552a including: (a) the

27
28

The existence of this protective order does not necessarily authorize or require the
disclosure of all or any information protected from disclosure by statute or regulation.
3

STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page4 of 23

1

names and alien numbers of the particular individual(s) to whom the information relates

2

and (b) any personally identifying information related to third parties other than the

3
4
5
6

individual whose information is being sought, including, but not limited to, information
regarding familial relatives of individuals.
2.3.

Consulting Counsel: attorneys who are not Counsel of Record, but are (1)

7

affiliated with or employed by a law firm, agency, or organization that has appeared on

8

behalf of a Party and (2) consulted by a Party or by Counsel of Record for the purpose of

9
10
11
12
13
14
15
16
17
18
19

litigating this action.
2.4

Counsel of Record: Counsel (as well as their support staff) who appear or

have appeared in this action on behalf of a Party in this action.
2.5

Designating Party: a Party or Non-Party that designates information or items

that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL.”
2.6

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other
things, testimony, transcripts, and tangible things), that are produced or generated in

20
21
22
23
24
25
26

disclosures or responses to discovery in this matter.
2.7

Expert: a person with specialized knowledge or experience in a matter

pertinent to the litigation who has been retained by a Party or its counsel to serve as an
expert witness or as a consultant in this action.
2.8

“HIGHLY CONFIDENTIAL” Information or Items: any information (regardless

27

of how it is generated, stored or maintained) or tangible things that are not publicly

28

available that the Designating Party believes contains information that is so sensitive from
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page5 of 23

1

a law enforcement perspective or privacy perspective that it should be destroyed or

2

returned after final resolution of this action..

3
4
5

2.9

other legal entity who is not named as a Party to this action.
2.10

6
7

10

2.11

2.12

15
16
17
18
19

Protected Material: any Disclosure or Discovery Material that is designated

as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

13
14

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.

11
12

Party: any party to this action, including all of its officers, directors,

employees, consultants, retained experts, and counsel (including their support staffs).

8
9

Non-Party: any natural person, partnership, corporation, association, or

2.13

Receiving Party: a Party that receives Disclosure or Discovery Material from

a Producing Party.
3.

SCOPE
3.1

The protections conferred by this Stipulation and Order cover not only

Protected Material (as defined above), but also (a) any information copied or extracted
from Protected Material; (b) all copies, excerpts, summaries, or compilations of Protected

20
21

Material; and (c) any testimony, conversations, or presentations by Parties or their Counsel

22

that might reveal Protected Material. However, the protections conferred by this

23

Stipulation and Order do not cover the following information: (a) any information that is in

24
25
26

the public domain at the time of disclosure to a Receiving Party or becomes part of the
public domain after its disclosure to a Receiving Party as a result of publication not

27

involving a violation of this Order, including becoming part of the public record through

28

trial or otherwise; and (b) any information known to the Receiving Party prior to the
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page6 of 23

1

disclosure or obtained by the Receiving Party after the disclosure from a source who

2

obtained the information lawfully and under no obligation of confidentiality to the

3

Designating Party.

4

3.2

5

Aggregate information that does not permit the identification of the

6

particular individuals to whom the information relates is not protected even if it is derived

7

from source documents that are designated “Confidential” or “Highly Confidential.”

8

4.

9

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed

10
11

by this Order shall remain in effect until a Designating Party agrees otherwise in writing or

12

a court order otherwise directs. Final disposition shall be deemed to be the later of (1)

13

dismissal of all claims and defenses in this action, with or without prejudice; and (2) final

14
15
16

judgment herein after the completion and exhaustion of all appeals, rehearings, remands,
trials, or reviews of this action, including the time limits for filing any motions or

17

applications for extension of time pursuant to applicable law.

18

5.

19

DESIGNATION OF CONFIDENTIAL & HIGHLY CONFIDENTIAL INFORMATION
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

20
21

Party or Non-Party that designates information or items for protection under this Order

22

must take care to limit any such designation to specific material that qualifies under the

23

appropriate standards. The Designating Party must designate for protection only those

24
25
26
27

parts of material, documents, items, or oral or written communications that qualify – so
that other portions of the material, documents, items, or communications for which
protection is not warranted are not swept unjustifiably within the ambit of this Order.

28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page7 of 23

1

Mass, indiscriminate, or routinized designations are prohibited. Designations that

2

are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

to unnecessarily encumber or retard the case development process or to impose
unnecessary expenses and burdens on other parties) may expose the Designating Party to
sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, the Designating Party must
promptly notify – within ten (10) business days – all other Parties that it is withdrawing
the mistaken designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in this

Order or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies
for protection under this Order must be clearly so designated before the material is
disclosed or produced.
5.3

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

documents, but excluding transcripts of depositions or other pretrial or trial proceedings),

20
21

that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” to

22

each page that contains protected material. If only a portion or portions of the material on

23

a page qualifies for protection, the Producing Party also must clearly identify the protected

24
25
26
27

portion(s) (e.g., by making appropriate markings in the margins). “Confidential
Information” set forth in a response to an interrogatory may be so designated by including
the word “Confidential” or “Highly Confidential” in the response.

28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page8 of 23

1

A Party or Non-Party that makes original documents or materials available for

2

inspection need not designate them for protection until after the inspecting Party has

3
4
5

indicated which material it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be deemed

6

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” After the inspecting Party has identified

7

the documents it wants copied and produced, the Producing Party must determine which

8

documents, or portions thereof, qualify for protection under this Order. Then, before

9
10

producing the specified documents, the Producing Party must affix the “CONFIDENTIAL” or

11

the “HIGHLY CONFIDENTIAL” legend to each page that contains Protected Material. If only

12

a portion or portions of the material on a page qualifies for protection, the Producing Party

13

also must clearly identify the protected portion(s) (e.g., by making appropriate markings in

14
15
16

the margins).
(b) for information produced in some form other than documentary

17

and for any other tangible items, that the Producing Party affix in a prominent place on

18

the exterior of the container or containers in which the information or item is stored the

19

legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If only a portion or portions of the

20
21
22
23
24
25
26

information or item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s).
(c) for testimony given in deposition proceedings, that the Designating
Party (or deponent), within thirty (30) calendar days after receiving a deposition
transcript, designate pages of the transcript (and/or exhibits thereto) as Protected

27

Material. Until the expiration of the thirty-day period, the entire deposition transcript will

28

be treated as subject to protection against disclosure under this Order. If no Party or
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page9 of 23

1

deponent timely designates Protected Material in a deposition transcript, then none of the

2

transcript will be treated as protected. If a timely designation is made, pages of transcribed

3
4
5
6

deposition testimony or exhibits to depositions that reveal Protected Material must be
separately bound by the court reporter and may not be disclosed to anyone except as
permitted under this Stipulated Protective Order.
5.4

7
8
9
10

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

to designate qualified information or items does not, standing alone, waive the Designating
Party’s right to secure protection under this Order for such material. Upon timely

11

correction of a designation, the Receiving Party must make reasonable efforts to assure

12

that the material is treated in accordance with the provisions of this Order.

13

6.

14
15
16

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party may challenge a designation of

confidentiality at any time. Unless a prompt challenge to a Designating Party’s

17

confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

18

unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party

19

does not waive its right to challenge a confidentiality designation by electing not to mount

20
21
22
23
24
25
26

a challenge promptly after the original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

process by providing written notice of each designation it is challenging and describing the
basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the
written notice must recite that the challenge to confidentiality is being made in accordance

27

with this specific paragraph of the Protective Order. The parties shall attempt to resolve

28

each challenge in good faith and must begin the process by conferring directly (in voice to
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page10 of 23

1

voice dialogue; other forms of communication are not sufficient) within ten (10) business

2

days of the date of service of notice. In conferring, the Challenging Party must explain the

3
4
5

basis for its belief that the confidentiality designation was not proper and must give the
Designating Party an opportunity to review the designated material, to reconsider the

6

circumstances, and, if no change in designation is offered, to explain the basis for the

7

chosen designation. A Challenging Party may proceed to the next stage of the challenge

8

process only if it has engaged in this meet and confer process first or establishes that the

9
10
11
12
13
14
15
16

Designating Party is unwilling to participate in the meet and confer process in a timely
manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

intervention, the Designating Party shall file and serve a motion to retain confidentiality
under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within
twenty (20) business days of the initial notice of challenge or within ten (10) business days

17

of the parties agreeing that the meet and confer process will not resolve their dispute,

18

whichever is later. Each such motion must be accompanied by a competent declaration

19

affirming that the movant has complied with the meet and confer requirements imposed by

20
21

paragraph 6.2. Failure by the Designating Party to make such a motion, including the

22

required declaration, within the time allotted by this paragraph shall automatically waive

23

the confidentiality designation for each challenged designation. In addition, the

24
25
26
27

Challenging Party may file a motion challenging a confidentiality designation at any time if
there is good cause for doing so, including a challenge to the designation of a deposition
transcript or any portions thereof. Any motion brought pursuant to this provision must be

28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page11 of 23

1

accompanied by a competent declaration affirming that the movant has complied with the

2

meet and confer requirements imposed by the paragraph 6.2.

3
4
5

The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges and those challenges made for an improper

6

purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)

7

may expose the Challenging Party to sanctions. Unless the Designating Party has waived

8

the confidentiality designation by failing to file a motion to retain confidentiality as

9
10

described in this paragraph (paragraph 6.3), all parties shall continue to afford the material

11

in question the level of protection due under this Order for Confidential Information until

12

the Court rules on the challenge.

13

7.

14
15
16

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that is

disclosed or produced by another Party or by a Non-Party in connection with this case only

17

for purposes of litigating this class action. Such Protected Material may be disclosed only

18

to the categories of persons and under the conditions described in this Order. When the

19

litigation has been terminated, a Receiving Party must comply with the provisions of

20
21

section 12 below (re: Maintaining Confidential Information).

22

Protected Material must be stored and maintained by a Receiving Party at a location

23

and in a secure manner that ensures that access is limited to the persons authorized under

24
25
26

this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

27

ordered by the Court or permitted in writing by the Designating Party, information

28

designated as “Confidential” or “Highly Confidential,” including the portion of any
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page12 of 23

1

document containing “Confidential” or “Highly Confidential” information, may be disclosed

2

by a Receiving Party only to the following persons and only to the extent necessary to

3
4
5

litigate this action:
(a)

Counsel of Record for Plaintiffs, Counsel of Record for Defendants,

6

Consulting Counsel, and any support staff of such counsel assisting in this action with an

7

appropriate need to know;

8
9
10
11
12
13
14
15
16

(b)

Experts of the Receiving Party to whom disclosure is reasonably

necessary for this litigation, including evaluation of settlement positions, subject to
paragraph 7.3;
(c)

Witnesses in this action to the extent reasonably believed by counsel

to be necessary in connection with their testimony or potential testimony; provided,
however, that any such individual (i) shall not retain any documents marked as
“Confidential” or “Highly Confidential”; (ii) shall be informed, prior to being shown material

17

designated as “Confidential” or “Highly Confidential” that he/she is being shown such

18

materials solely for use in the above-captioned Actions; and, (iii) prior to being shown

19

material designated as “Confidential” or “Highly Confidential,” executes an acknowledge

20
21
22
23
24
25
26
27

and agreement to the bound by the terms of this Stipulated Protective Order in accordance
with paragraph 7.3; and/or
(d)

The Court and its personnel, including court reporters.

All persons listed in paragraph 7.2(a) to whom “Confidential” information is
disclosed are hereby prohibited from disclosing to, or otherwise discussing with, any
person other than those listed in paragraph 7.2(b)-(d), any information designated as

28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page13 of 23

1

“Confidential” or “Highly Confidential,” except as provided in this Stipulated Protective

2

Order.

3
4
5

7.3

Acknowledgment and Agreement to Be Bound (Exhibit A). All persons listed

in paragraphs 7(b) and (c) to whom “Confidential” or “Highly Confidential” Information is

6

disclosed shall first be required to read the terms of this Stipulated Protective Order and

7

sign a copy of the Acknowledgment and Agreement to Be Bound by Protective Order,

8

attached hereto as Exhibit A. Each signed Acknowledgment form shall be maintained by

9
10
11

counsel for the Plaintiffs or counsel for the Defendants as appropriate, depending on the
Party seeking to disclose Confidential information.

12

7.4

13

The parties agree to meet and confer over a Receiving Party’s request for

14
15
16

Use of Protected Material in Court Filings.

permission to file Protected Material in the public record. Without written permission
from the Designating Party or a court order secured after appropriate notice to all

17

interested persons, a Party may not file in the public record any Protected Material. In the

18

event a Party wishes to use any Protected Material produced under this Stipulated

19

Protective Order in a court filing, such filings shall be filed in accordance with Civil Local

20
21

Rule 79-5. This provision does not apply to the Parties’ submission of Protected Material to

22

the Magistrate Judge assigned to proceed over settlement conferences in this case,

23

provided those submissions are not filed in the public record.

24
25
26

7.5

Use of Protected Material at Pre-Trial Hearings.

Should the need arise for a Receiving Party to use Protected Material at a Hearing

27

prior to trial, the Receiving party shall provide the Designating party with a written

28

explanation of its need – including an explanation as to the reason(s) that the Receiving
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page14 of 23

1

Party cannot present its argument and/or position without the use of material designated

2

as “Confidential” or “Highly Confidential” Information and precisely which “Protected

3
4
5

Material the Receiving Party plans to use – at least seven (7) business days prior to the
hearing. The intention of this advance notice is to allow the Designating Party sufficient

6

opportunity to request that the Court exclude the information from the public record.

7

Should the Receiving Party provide notice of its intent to use Protected Material at a

8

hearing less than seven (7) business days prior to the hearing, the Receiving Party shall

9
10

provide a detailed explanation as to the cause(s) behind its failure to provide timely notice

11

and agree not to use any Protected Material at a hearing unless the Designating Party has

12

had an opportunity to request that the Court exclude the information from the public

13

record. The requirements of this paragraph shall not apply to any Protected Material that

14
15
16

has been accepted into the public record through a process that complies with paragraph
7.4 or this paragraph prior to the Receiving Party’s use of it at a subsequent hearing.

17

7.6

18

Procedures for introducing Protected Material at trial will be determined at or

19

Use of Protected Material at Trial.

before the last pre-trial conference in this matter.

20
21
22
23

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

24

compels disclosure of any information or items designated in this action as

25

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” that Party must:

26
27
28

(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page15 of 23

1

(b) promptly notify in writing the party who caused the subpoena or order

2

to issue in the other litigation that some or all of the material covered by the subpoena or

3
4
5

order is subject to this Protective Order. Such notification shall include a copy of this
Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be

6
7

pursued by the Designating Party whose Protected Material may be affected.

8
9
10

If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as

11

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” before a determination by the court from

12

which the subpoena or order issued, unless the Party has obtained the Designating Party’s

13

permission. The Designating Party shall bear the burden and expense of seeking protection

14
15
16

from the court of its confidential material and nothing in these provisions should be
construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful

17

directive from another court.

18

9.

19

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION

20

9.1

21
22
23

The terms of this Order are applicable to information produced by a Non-

Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Such
information produced by Non-Parties in connection with this litigation is protected by the

24

remedies and relief provided by this Order. Nothing in these provisions should be

25

construed as prohibiting a Non-Party from seeking additional protections.

26
27
28

9.2

The Parties agree that any discovery sought from Non-Parties who owe a

duty of confidentiality to one or more Parties can be disclosed without violating that duty
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page16 of 23

1

of confidentiality if such discovery would otherwise be covered by this Protective Order

2

and disclosure is made in accordance with this Protective Order. This includes information

3
4
5

otherwise protected by 8 C.F.R. § 236.6 if sought by Plaintiffs through a valid discovery
request in this action. Because this Protective Order is sufficient to protect such

6

confidential information, a duty of confidentiality to one of the Parties shall not be a basis

7

for any Non-Party to withhold covered records or information sought through third-party

8

discovery in this litigation.

9

9.3

10

In the event that a Party is required by a valid discovery request to produce a

11

Non-Party’s confidential information in that Party’s possession, and the Party is subject to

12

an agreement with the Non-Party not to produce the Non-Party’s confidential information,

13

then the Party shall:

14

(a)

15
16
17

that some or all of the information requested is subject to a confidentiality agreement with
a Non-Party;

18
19

promptly notify in writing the Requesting Party and the Non-Party

(b)

promptly provide the Non-Party with a copy of the Stipulated

Protective Order in this litigation, the relevant discovery request(s), and a reasonably

20
21

specific description of the information requested; and
(c)

22
23
24
25
26

make the information requested available for inspection by the Non-

Party.
9.4

If the Non-Party fails to object or seek a protective order from this Court

within ten (10) business days of receiving the notice and accompanying information, the

27

Receiving Party may produce the Non-Party’s confidential information responsive to the

28

discovery request and designate that information as “Confidential” or “Highly Confidential”
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page17 of 23

1

as otherwise appropriate under this Stipulated Protective Order. If the Non-Party timely

2

seeks a protective order, the Receiving Party shall not produce any information in its

3
4
5

possession or control that is subject to the confidentiality agreement with the Non-Party
before a determination by the Court.4 Absent a court order to the contrary, the Non-Party

6

shall bear the burden and expense of seeking protection in this court of its Protected

7

Material.

8

10.

9

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

10
11

Protected Material to any person or in any circumstance not authorized under this

12

Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the

13

Designating Party of the unauthorized disclosure(s), (b) use its best efforts to retrieve all

14
15
16

unauthorized copies of the Protected Material, (c) inform the person(s) to whom
unauthorized disclosures were made of all the terms of this Order, and (d) request such

17

person(s) execute the “Acknowledgment and Agreement to Be Bound” that is attached

18

hereto as Exhibit A within ten (10) business days of learning of the unauthorized

19

disclosure.

20
21

11.

22

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently

23
24

produced material is subject to a claim of privilege or other protection, the obligations of

25

the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

26
27
28

The purpose of this provision is to alert the interested parties to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect
its confidentiality interests in this Court.

4

STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page18 of 23

1
2
3
4
5

12.

MAINTAINING CONFIDENTIAL INFORMATION
The Parties shall maintain “Confidential Information” as follows:
12.1

Counsel of Record and anyone to whom “Confidential” or “Highly

Confidential” Information has been disclosed in accordance with section 7.2 shall maintain

6

all remaining “Confidential” or “Highly Confidential” Information pursuant to the terms of

7

this Stipulated Protective Order, subject to further order by this Court. Within forty (40)

8

business days after the final disposition of this action – as defined by section 4, including

9
10

any and all appeals – all discovery and copies thereof in the possession of the Receiving

11

Party and anyone to whom “Confidential Information” has been disclosed in accordance

12

with section 7.2 shall be returned to the Producing Party or destroyed, except as this Court

13

may otherwise order, in accordance with section 13, but excluding the complete set of

14
15
16

discovery for counsel’s records contemplated by paragraph 12.2.
12.2

Notwithstanding paragraphs 12.1 and 12.3, counsel of record for Plaintiffs

17

and counsel of record for Defendants may each maintain one (1) set of discovery –

18

excluding “Highly Confidential” Information, which must be returned or destroyed as

19

contemplated by paragraph 12.1 – for their records, provided that such counsel maintain

20
21

the confidential nature of the discovery. Also notwithstanding paragraphs 12.1 and 12.3,

22

Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial,

23

deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial

24
25
26

exhibits, expert reports, attorney work product, and consultant and expert work product,
even if such materials contain Protected Material. Any such archival copies that contain or

27

constitute Protected Material remain subject to this Protective Order as set forth in Section

28

4 (Duration).
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page19 of 23

12.3

1
2
3
4
5

With the exception of the archival copies contemplated by paragraph 12.2,

within sixty (60) days after the final disposition of this action, including any appeals and
any ongoing and/or permanent injunctions and as defined in section 4, each Receiving
Party must return all Protected Material to the Producing Party or destroy such material.

6

As used in this subdivision, “all Protected Material” includes all copies, abstracts,

7

compilations, summaries, and any other format reproducing or capturing any of the

8

Protected Material but does not include aggregate information that does not permit the

9
10

identification of the particular individuals to whom the information relates. See paragraph

11

3.2 above. Whether the Protected Material is returned or destroyed, the Receiving Party

12

must submit a written certification to the Producing Party (and, if not the same person or

13

entity, to the Designating Party) by the forty (40) calendar-day deadline that (1) identifies

14
15
16

(by category, where appropriate) all the Protected Material that was returned or destroyed
and (2) affirms that the Receiving Party has not retained any copies, abstracts,

17

compilations, summaries or any other format reproducing or capturing any of the

18

Protected Material.

19

13.

MODIFICATIONS AND CONTINUING EFFECT

20
21

13.1

Any Party may apply to this Court at any time, upon proper notice, for a

22

modification of this Stipulated Protective Order with respect to the handling or designation

23

of any document or for any other purpose. This Protective Order shall continue in force

24
25
26

until amended or superseded by express order of the Court, and shall survive any final
judgment or settlement in this litigation. This Parties shall take such reasonable measures

27

as are necessary and appropriate to prevent the disclosure of Protected Material, through

28

inadvertence or otherwise, after the conclusion of this action.
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page20 of 23

13.2

1
2

party to the Lyon, et al. v. ICE, et al., No. 13-cv-05878-EMC (N.D. Cal.), litigation.

3
4
5

This Stipulated Protective Order shall be binding upon any present or future

13.3

The terms of this Stipulated Protective Order shall survive the termination of

this action after its final disposition for purposes of enforcing this Stipulated Protective

6

Order.

7

14.

8
9
10

RIGHTS OF PARTIES
14.1. Nothing in this Stipulated Protective Order shall be construed as a waiver of

any defense, right, or claim by either party, nor shall this Stipulated Protective Order affect

11

the right of any Producing Party to seek additional protection against the disclosure of any

12

documents or materials, or of any Receiving Party to seek additional disclosures.

13
14
15
16
17
18
19

14.2. This Stipulated Protective Order shall be effective and enforceable upon
entry by the Court, except that the Parties shall agree to abide by its terms prior to entry of
any order.
14.3

Agreement to this Protective Order does not waive any rights of any Party to

assert, and/or object to, a claim of any privilege or other protection from disclosure as to
these or similar documents.

20
21

14.4

Nothing in this Stipulated Protective Order shall preclude the disclosure of

22

any “Confidential” Information with respect to an individual who affirmatively consents in

23

writing to the disclosure of his/her own private information.

24
25
26

14.5

This Stipulated Protective Order shall not preclude any Party from disclosing

publicly-available information.

27
28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page21 of 23

1

THE PARTIES SO STIPULATE, THROUGH COUNSEL OF RECORD.

2

Dated: Jan. 13, 2015

3

ORRICK, HERRINGTON & SUTCLIFFE LLP
By:

4
5
6

/s/ Robert P. Varian
ROBERT P. VARIAN
M. TODD SCOTT
ALEXANDER K. TALARIDES
ALEXIS YEE-GARCIA
CHRISTINE M. SMITH

7
8

Dated: Jan. 13, 2015

9
10

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA
By:

11
12
13
14
15

/s/ Julia Harumi Mass
JULIA HARUMI MASS (SBN 189649)
MICHAEL T. RISHER (SBN 191627)
39 Drumm Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

AMERICAN CIVIL LIBERTIES UNION
NATIONAL PRISON PROJECT

16
17

By:

18
19
20
21
22

/s/ Carl Takei
CARL TAKEI (SBN 256229)
915 15th Street N.W., 7th Floor
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Attorneys for Plaintiffs

23
24
25
26
27
28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page22 of 23

1

Dated: Jan. 13, 2015

2
3

OFFICE OF IMMIGRATION LITIGATION,
CIVIL DIVISION
U.S. DEPARTMENT OF JUSTICE
JOYCE R. BRANDA
Acting Assistant Attorney General

4
5

WILLIAM C. PEACHEY
Director, District Court Section

6

ELIZABETH J. STEVENS
Assistant Director, District Court Section

7
8

By:

9
10
11
12
13
14
15

/s/ Jennifer A. Bowen
JENNIFER A. BOWEN
KATHERINE J. SHINNERS
KATHERINE A. SMITH
Trial Attorneys
P.O Box 868, Ben Franklin Station
Washington, D.C. 20044
Telephone: [phone]
Email: [e-mail]

Attorneys for Defendants

16
17
18

I

ORD
T IS SO

ERED

23

LI

THE HONORABLE EDWARD M. CHEN
ER
United States District Court
C

A

N

26
27
28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

hen

rd M. C

dwa
Judge E

H

25

RT

13
Dated: Jan._______, 2015

NO

24

R NIA

22

S

IT IS SO ORDERED.

UNIT
ED

21

RT
U
O

20

S DISTRICT
TE
C
TA

FO

19

F
D IS T IC T O
R

Case3:13-cv-05878-EMC Document66 Filed01/13/15 Page23 of 23

1

EXHIBIT A

2

ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER

3
4

I,

, am associated with the litigation in Lyon, et al. v.

ICE, et al., No. 13-cv-05878-EMC (N.D. Cal.) in the capacity of

5

.

6
7

I acknowledge reading and understanding the Stipulated Protective Order Governing

8

Confidential Information issued in the Lyon action on

9

to be bound by all provisions thereof.

, and I agree

10
11

Executed this

day of

at

12
13

SIGNATURE:

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

.

Case3:13-cv-05878-EMC Document66-1 Filed01/13/15 Page1 of 1

1

EXHIBIT A

2

ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER

3
4

I,

, am associated with the litigation in Lyon, et al. v.

ICE, et al., No. 13-cv-05878-EMC (N.D. Cal.) in the capacity of

5

.

6
7

I acknowledge reading and understanding the Stipulated Protective Order Governing

8

Confidential Information issued in the Lyon action on

9

to be bound by all provisions thereof.

, and I agree

10
11

Executed this

day of

at

12
13

SIGNATURE:

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED PROTECTIVE ORDER
No. 3:13-cv-05878-EMC

.