K.H. v. Secretary of the Department of Homeland Security

Filing 33

STIPULATION AND ORDER re 32 STIPULATION WITH PROPOSED ORDER Re Sensitive Security Information (Revised) filed by Secretary of the Department of Homeland Security. Signed by Judge Jon S. Tigar on January 26, 2016. (wsn, COURT STAFF) (Filed on 1/25/2016)

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1 BRIAN J. STRETCH (CABN 163973) Acting United States Attorney 2 ALEX G. TSE (CABN 152348) Chief, Civil Division 3 WENDY M. GARBERS (CABN 213208) Assistant United States Attorney 4 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 5 Telephone: (415) 436-6475 FAX: (415) 436-7234 6 wendy.garbers@usdoj.gov 7 Attorneys for Defendant SECRETARY OF 8 THE DEPARTMENT OF HOMELAND SECURITY 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 15 16 17 18 K.H., on behalf of himself and those similarly situated, ) ) ) Plaintiff, ) ) v. ) ) THE SECRETARY OF THE DEPARTMENT ) OF HOMELAND SECURITY, ) ) Defendant. ) Case No. 15-cv-02740 JST REVISED STIPULATED PROTECTIVE ORDER AND [PROPOSED] ORDER RE SENSITIVE SECURITY INFORMATION, 49 C.F.R. PART 1520. 19 20 It is hereby stipulated that the following Protective Order be entered in accordance with Rule 21 26(c) of the Federal Rules of Civil Procedure and shall hereafter govern the use, handling, and 22 disposition of information, testimony or documents created, filed, or obtained through discovery in the 23 above captioned matter (“the Litigation”), which constitute Sensitive Security Information (“SSI”) as 24 defined by 49 C.F.R. Part 1520. 25 1. SSI is a specific category of information that requires protection against unauthorized 26 disclosure pursuant to 49 U.S.C. § 114(r) and 49 C.F.R. Part 1520. Unauthorized disclosure of SSI may 27 be detrimental to the security of transportation, may constitute an unwarranted invasion of personal 28 privacy, or may reveal a trade secret or privileged or confidential commercial or financial information. REVISED STIPULATED PROTECTIVE ORDER RE SSI NO. 15-CV-02740 JST 30 1 1 Unauthorized disclosure may also result in a civil enforcement penalty or other enforcement action by 2 the Transportation Security Administration (“TSA”) against the party making the unauthorized 3 disclosure. 49 C.F.R. § 1520.17. 4 2. Access to SSI is limited to “covered persons” with a “need to know” as set forth in 49 5 C.F.R. § 1520.7 and § 1520.11. Because the parties, their attorneys, the Court and its employees are 6 “covered persons” “with a need to know” certain SSI relevant to this case, this order permits the sharing 7 in this civil action of relevant information and materials that are marked as SSI or may contain SSI, 8 provided that they are not classified and are directly relevant to this case. The right of access to 9 materials marked as SSI or containing SSI shall be limited to the Court and its employees, Plaintiff, and 10 counsel for the parties, including their paralegal, secretarial and other legal personnel in their employ. 11 Court reporters retained by the parties for purposes of recording depositions and who have signed a 12 TSA-approved Non-Disclosure Agreement may also have access to SSI. After they have successfully 13 passed a TSA background check and signed a TSA-approved Non-Disclosure Agreement, retained and 14 non-retained expert witnesses and litigation consultants may also have access to SSI. 15 3. The materials encompassed in this protective order include, without limitation, deposition 16 testimony, deposition exhibits, interrogatory responses, admissions, affidavits, declarations, documents 17 produced pursuant to compulsory process or voluntarily in lieu of process, and any other documents or 18 information produced or given to one party by another party or by a third party in connection with in this 19 matter. Information taken from any of these materials that reveals its substance shall also be subject to 20 this protective order. 21 4. “Covered persons” have an express duty to protect against the unauthorized disclosure of 22 SSI. 49 C.F.R. § 1520.9. SSI must be safeguarded in such a way that it is not physically or visually 23 accessible to persons who do not have a “need to know,” as defined in 49 C.F.R. § 1520.11. When 24 unattended, SSI must be secured in a locked container or office, or other restricted access area. 25 5. Documents that contain SSI may not be further disseminated to persons without a “need 26 to know” except with written permission from TSA. SSI must not be disclosed by either party to any 27 person or entity other than those enumerated in paragraph two. 28 REVISED STIPULATED PROTECTIVE ORDER RE SSI NO. 15-CV-02740 JST 30 2 1 6. All documents subject to this Order shall be marked as “Confidential: Subject to SSI 2 Protective Order” or similar marking. Documents containing SSI that inadvertently have not been 3 marked as SSI still must be safeguarded against unauthorized disclosure. 4 7. Documents that are marked SSI or, though not marked, contain SSI, shall be treated as 5 confidential and shall not be published or made available to the general public in any form (whether in 6 paper or electronic form). A party seeking to file a document in the public record that contains SSI must 7 request that the Court permit the portions containing SSI be filed under seal. In connection with the 8 request to file under seal, the party must create a “FAM Name SSI Document” or “Redacted Version 9 Documents,” which can be publicly filed. 10 8. A “FAM Name SSI Document” is any document in which the only SSI contained therein 11 are names identifying individuals, other than Plaintiff, as Federal Air Marshals (FAMs), Senior FAMs, 12 or Federal Air Marshal candidates.1 If a party wishes to file or produce a FAM Name SSI Document 13 during the course of the Litigation, that party must create a Redacted Version Document by employing 14 the First Name, Last Initial convention (e.g., FAM John Doe is redacted to FAM John D.). For FAM 15 Name SSI Documents created for the purpose of this Litigation (i.e., motions, memoranda, etc.), parties 16 should perform the redactions during the composition of the Redacted Version Document. For FAM 17 Name SSI documents that are not created for the purpose of Litigation, but that the parties, nevertheless, 18 choose to file or produce for litigation purposes (i.e., exhibits to motions or memoranda), parties should 19 perform the redactions using Adobe PDF redaction tools or by printing and manually redacting. 20 9. Deposition testimony that may contain SSI should be so designated by verbal notice or 21 written notice within 10 days of receipt of the transcript. However, testimony containing SSI that is not 22 designated, through mistake, nonetheless must be safeguarded against unauthorized disclosure. If the 23 parties expect that the only SSI that the deposition testimony will contain will be FAM Name SSI, the 24 parties may instruct the deponents prior to the deposition to use the First Name convention in their 25 testimony. 26 27 1 Identifying individuals as Supervisory Air Marshals in Charge (SACs), Deputy Supervisory Air Marshals in Charge (DSACs), Assistant Supervisory Air Marshals in Charge (ASACs), Supervisory 28 Federal Air Marshals (SFAMs), or FAMS Civilian Training Instructors does not constitute SSI. REVISED STIPULATED PROTECTIVE ORDER RE SSI NO. 15-CV-02740 JST 30 3 1 10. If there is a possibility that a party will introduce or disclose SSI at a hearing, or portion 2 thereof, the party shall request that the hearing be closed to the public. If there is a possibility that a 3 party will introduce or disclose SSI at trial, the party shall request that the courtroom shall be closed to 4 the public. 5 11. Plaintiff and Plaintiff’s counsel may use SSI disclosed to them in this Litigation only for 6 the purposes of the Litigation. SSI may not be further disseminated, including to a jury, except with 7 written permission from Defendant. 8 12. All documents subject to this Order in the possession of Plaintiff or Plaintiff’s counsel 9 shall be returned to counsel for Defendant within 60 days of termination of this Litigation, including any 10 appellate proceedings, or shall be certified in writing to counsel for Defendant to have been destroyed by 11 Plaintiff or Plaintiff’s counsel. 12 13. Nothing in this Order shall preclude any disclosure of documents subject to this Order to 13 any Judge, Magistrate, or employee of the Court for purposes of this action. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REVISED STIPULATED PROTECTIVE ORDER RE SSI NO. 15-CV-02740 JST 30 4 1 14. This Order is without prejudice to the rights of any party to make any objection to 2 discovery or use of SSI, or documents that may contain SSI, permitted by the Federal Rules of Civil 3 Procedure, or any statute, regulation, or other authority. 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 DATED: January 22, 2016 BRIAN J. STRETCH Acting United States Attorney 6 /s/ Wendy M. Garbers WENDY M. GARBERS Assistant United States Attorney 7 8 9 10 Attorneys for THE SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY 11 DATED: January 22, 2016 MORRIS POLICH & PURDY LLP 12 /s/ Nicholas M. Wieczorek NICHOLAS M. WIECZOREK 13 Attorneys for PLAINTIFF K.H. 14 15 PURSUANT TO STIPULATION, IT IS SO ORDERED. 16 17 January 25, 2016 DATED: ________________________ 18 ________________________________ THE HONORABLE JON S. TIGAR 19 20 21 22 23 24 25 26 27 28 REVISED STIPULATED PROTECTIVE ORDER RE SSI NO. 15-CV-02740 JST 30 5

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