Janjua v. Neufeld et al

Filing 25

STIPULATION AND ORDER re 24 STIPULATION WITH PROPOSED ORDER for a Privacy Act Protective Order filed by Jeh Johnson, Department of Homeland Security, Leon Rodriguez, U.S. Citizenship and Immigration Services, Loretta Lynch, Donald Neufeld. Signed by Judge Edward M. Chen on 2/1/17. (bpfS, COURT STAFF) (Filed on 2/1/2017)

Case 3:15-cv-05475-EMC Document 24-1 Filed 01/31/17 Page 1 of 9

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

KHALIL JANJUA,
Plaintiff,
v.
LORI SCIALABBA, Acting Director,
United States Citizenship and Immigration
Services, et al.,
Defendants.

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No. 3:15-CV-05475-EMC

[PROPOSED] PROTECTIVE ORDER
In the course of this litigation, the parties anticipate the filing of the Certified
Administrative Record (“CAR”) which will include documents containing personally identifiable
information relating to third parties not participating in this lawsuit. This identifying information
is contained within various agency records and databases, including individual alien files, some
of which are in the possession, custody, and control of Defendants and Defendants’ counsel.
Defendants agree to produce to Plaintiff unredacted records relating to Plaintiff, and (where
appropriate and allowable by law) third parties, subject to entry of the following protective order,
in accordance with the Privacy Act of 1974, 5 U.S.C. § 552a (“Privacy Act”), to which the
parties have stipulated.
WHEREFORE, at the request of counsel for Plaintiff and counsel for Defendants (“the
Parties”),

Case 3:15-cv-05475-EMC Document 24-1 Filed 01/31/17 Page 2 of 9

IT IS HEREBY ORDERED that in accordance with the terms of this Privacy Act
protective order, pursuant to 5 U.S.C. § 552a (b), to file the CAR so long as disclosure is subject
to the following conditions:
1.

The Parties agree that the terms of this protective order will govern the entirety of

any alien registration file, any and all immigration files, or any other discovery that contains
Privacy Act material pertaining to third parties, such as information obtained from the records or
systems of records of third parties and identifying information of third parties, as well as any
copies or summaries made thereof and any information derived therefrom, including any
materials that any party has previously produced in discovery or will produce through any further
discovery taken in this case.
2.

To the extent that the federal government produces any third-party records or

documents or records that contain third-party names, addresses, birth dates, or any other
identifying information (i.e., information the use of which would allow the identification of the
person to whom the information relates), such identifying information shall be deemed
confidential (in the ordinary sense) and protected by this protective order. All such Privacy Act
information is subject to this protective order and may be used solely for purposes of this
litigation including any appeal of any decision(s) this Court issues with respect to this litigation.
3.

Counsel for Defendants shall designate documents within the CAR as confidential

by placing the word “CONFIDENTIAL - COVERED BY PROTECTIVE ORDER” or the
following label (or a substantial equivalent) on them or on any copies thereof, or any cover
sheets thereon:
CONFIDENTIAL

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Case 3:15-cv-05475-EMC Document 24-1 Filed 01/31/17 Page 3 of 9

THIS DOCUMENT IS SUBJECT TO A COURT ORDER IN THE JANJUA V.
SCIALABBA CASE. THIS DOCUMENT AND ITS CONTENTS SHALL NOT BE USED,
SHOWN OR DISTRIBUTED EXCEPT AS PROVIDED IN THE PROTECTIVE ORDER.
4.

Protected information may be disclosed only to the following persons and only to

the extent necessary for the prosecution of this action:
a.

counsel for Plaintiff, Plaintiff, and any support staff of such counsel

assisting in this action;
b.

the Court and its personnel, including court reporters;

c.

individuals whose testimony is contemplated or actually taken in this

action, but only to the extent necessary to elicit testimony concerning the subject
matter of information or records produced subject to this protective order;
d.

expert witnesses or consultants retained by Plaintiff or Defendants, should

there be any;
e.

the author of the document or the original source of the information; and

f.

any Court of Appeals and its personnel, in the event of an appeal of any

decision this Court issues with respect to this litigation.
5.

This order does not prohibit assertion of or otherwise effect a waiver of any other

privilege or protection from disclosure (including, but not limited to, the law enforcement
privilege, attorney client privilege, deliberative process privilege, attorney work product
protection, and statutory protections from disclosure other than those contained in the Privacy
Act) Defendants might assert, nor does it prohibit redaction of material covered by any such
privilege or protection from disclosure. Plaintiff reserves the right to file a motion to compel
disclosure of redacted information.

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Case 3:15-cv-05475-EMC Document 24-1 Filed 01/31/17 Page 4 of 9

6.

All persons listed in Paragraph 4(a) above to whom identifying information is

disclosed are hereby prohibited from disclosing to, or otherwise discussing with, any person
other than those listed in 4(b)-(f) above, any confidential information, except as provided in this
protective order.
7.

All persons listed in Paragraphs 4(c) and (d) above, to whom identifying

information is disclosed, shall first be required to read the terms of this protective order and sign
a copy of the Acknowledgment of Protective Order form, attached hereto as Exhibit A, agreeing
to be bound thereby. Counsel for Plaintiff or for Defendants shall maintain the signed
Acknowledgment forms.
8.

No protected documents or information shall be used at any hearing, trial or

appellate proceeding in this action, unless provision shall be made for exclusion of the public or
unless some other reasonable provision to protect confidentiality has been made. Where
protected documents or information is used at a hearing, trial or appellate proceeding in this
action, the appropriate portion of the court transcript shall be placed under seal. Such
designation shall be limited to those portions of the transcript the sealing of which is reasonably
necessary to preserve the confidentiality of documents, as well as copies or summaries made
thereof and any information derived therefrom, which are subject to the terms of this protective
order.
9.

Inadvertent disclosure of any document or other information during discovery in

this action shall be without prejudice to any claims that such material is confidential, privileged,
or otherwise protected from discovery within the meaning of Federal Rule of Civil Procedure 26,
and no party to this protective order shall be held to have waived any rights by such inadvertent
disclosure. Any document or information so produced and subject to a subsequent claim of

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privilege shall be treated in accordance with Federal Rule of Civil Procedure 26(b)(5)(B) and
Federal Rule of Evidence 502(b).
10.

Within 60 days of the final conclusion of this litigation, including any appeals,

counsel for Plaintiff shall collect all documents produced pursuant to this protective order that
contain third-party identifying information, as well as any copies thereof, or any information and
notes derived therefrom, and shall return such documents to counsel for Defendants pursuant to
the terms of this protective order. Alternatively, counsel for Plaintiff shall destroy said
documents by shredding them and provide counsel for Defendant with verification of destruction
within 30 days of the final conclusion of this litigation, including any appeals.
11.

If Plaintiff disputes Defendants’ designation of a document as Privacy Act

Material covered by this Protective Order as described in Paragraph 1, counsel for Plaintiff shall
notify counsel for Defendants and ask Defendants to withdraw the designation. If Defendants do
not agree to withdraw the designation, Plaintiffs may submit a motion to challenge the
designation with this Court in accordance with the Court’s procedures governing discovery
disputes. Defendants, as designating party, shall bear the burden of proving that the information
in question is within the scope of protection under this order and Federal Rule of Civil Procedure
26(c).
12.

If Plaintiff intends to use a document covered by this Protective Order in a

manner inconsistent with this Protective Order, but contends that said document can be redacted
in such a way as to protect the protected Privacy Act Material, Plaintiff’s counsel shall provide
the redacted version, with an explanation of why it is needed, to counsel for Defendants and
provide Defendants with 7 days to withdraw the designation on the redacted version of the
document. If Defendants do not agree to withdraw the designation, Plaintiff may submit a

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Case 3:15-cv-05475-EMC Document 24-1 Filed 01/31/17 Page 6 of 9

motion to challenge the designation of the redacted document with this Court in accordance with
the Court’s procedures governing discovery disputes. Defendants, as designating party, shall
bear the burden of proving that the information in question is within the scope of protection
under this order and Federal Rule of Civil Procedure 26(c).
13.

Agreement to this protective order does not waive any rights of any party to assert

a claim of privilege as to these or similar documents.
14.

Nothing in this agreement shall be deemed to restrict in any manner the use by

any party of its own documents or materials.
15.

Nothing in this agreement shall affect the right of any party to seek additional

protection against the disclosure of documents or materials.
16.

Plaintiff may seek written consent authorizing the release of information from his

family members as it relates to their third party information (Privacy Act Waiver). Disclosure of
information related to a third party who has executed a Privacy Act Waiver shall be governed by
the terms of the Privacy Act Waiver executed by the third party.
17.

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

modification of this protective order with respect to the handling or designation of any document
or for any other purpose.
18.

This order shall be binding upon any present and future party to the above-

captioned litigation, including any appeal of any decision(s) of this Court with respect to this
litigation.
19.

The Parties have agreed to the terms of this order, and this order shall be effective

and enforceable upon its signature by the Court.

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Case 3:15-cv-05475-EMC Document 24-1 Filed 01/31/17 Page 7 of 9

For the Defendants:
CHAD A. READLER
Acting Assistant Attorney General
Civil Division
WILLIAM C. PEACHEY
Director
Office of Immigration Litigation
District Court Section
KATHERINE E.M. GOETTEL
Senior Litigation Counsel
Office of Immigration Litigation
District Court Section
/s/ Gladys M. Steffens Guzmán
GLADYS M. STEFFENS GUZMÁN
PR State Bar #14250
Trial Attorney, Office of Immigration Litigation
United States Department of Justice
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Email: [e-mail]
Telephone: [phone]
Facsimile: [phone]
Counsel for Defendants

For the Plaintiff:
ROBERT B. JOBE
Cal. State Bar #133089
LAW OFFICE OF ROBERT B. JOBE
/s/ Anna L. Benvenue
ANNA L. BENVENUE
Cal. State Bar #261436
Director, Appellate Writing Group
550 Kearny Street, Ste. 200
San Francisco, CA 94108
Tel [phone]
Fax: [phone]
Email: [e-mail]

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Case 3:15-cv-05475-EMC Document 24-1 Filed 01/31/17 Page 8 of 9

February 1
17
It is so ORDERED on _____________________, 20___, at San Francisco, California.

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Case 3:15-cv-05475-EMC Document 24-1 Filed 01/31/17 Page 9 of 9

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ______________________ [print or type full name], of_____________________
______________________________ [print or type full address], declare under penalty of
perjury that I have read in its entirety and understand the protective order that the United States
District Court for the Southern District of Texas entered in the case JANJUA V. SCIALABBA, et
al., and I agree to comply with and to be bound by all the terms of that protective order. I
understand and acknowledge that failure to so comply could expose me to sanctions and
punishment in the nature of contempt and that I will not disclose in any manner any information
or item that is subject to this protective order to any person or entity except in strict compliance
with the provisions of this protective order.
I further agree to submit to the jurisdiction of the United States District Court for the
Southern District of Texas for the purpose of enforcing the terms of this protective order, even if
such enforcement proceedings occur after termination of this action.
I hereby appoint _______________________________[print or type full name]
of___________________________ [print or type full address and telephone number] as my
California agent for service of process in connection with this action or any proceedings related
to enforcement of this protective order.
Date: ____________________________________
City and State where sworn and signed: _________________________________
Printed Name:____________________________
Signature: _______________________________

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