Cancino Castellar et al v. Kelly et al

Filing 174

Order Granting Defendant-Respondents' Renewed Application to Seal (ECF No. 171 ). Signed by Judge Cynthia Bashant on 8/19/21. (jmo)

Case 3:17-cv-00491-BAS-AHG Document 174 Filed 08/19/21 PageID.4264 Page 1 of 9

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ORDER GRANTING DEFENDANTRESPONDENTS’ RENEWED
APPLICATION TO SEAL
(ECF No. 171)

Plaintiffs,

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v.

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Case No. 17-cv-00491-BAS-AHG

JOSE ORLANDO CANCINO
CASTELLAR, et al.,

ALEJANDRO MAYORKAS, et al.,
Defendant-Respondents.

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I.

BACKGROUND

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On July 26, 2021, the Court denied without prejudice the parties’ applications to

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seal, finding that the parties have not met the burden to demonstrate compelling reasons

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that outweigh the public’s right to access judicial records. (ECF No. 159.) Defendant-

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Respondents renew their application to seal ten documents that contain personally

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identifiable information, law enforcement sensitive material, and material subject to law

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enforcement privilege. Defendant-Respondents’ sealing application is accompanied by

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declarations from a Customs and Border Protection (CBP) Official1 (Koseor Decl., ECF

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No. 171-1) and a Supervisory Border Patrol Agent2 (Holmes Decl., ECF No. 171-2).

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II.

LEGAL STANDARD

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“[T]he courts of this country recognize a general right to inspect and copy public

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records and documents, including judicial records and documents.” Nixon v. Warner

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Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one

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‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.”

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Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz

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v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption

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of access is ‘based on the need for federal courts, although independent—indeed,

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particularly because they are independent—to have a measure of accountability and for the

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public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler

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Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d

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1044, 1048 (2d Cir. 1995)).

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A party seeking to seal a judicial record bears the burden of overcoming the strong

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presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden

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depends upon whether the documents to be sealed relate to a motion that is “more than

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tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When

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the underlying motion is more than tangentially related to the merits, the “compelling

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reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass

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the tangential relevance threshold, the lesser, “good cause” standard applies. Id.; see Pintos

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v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (holding that the “good cause”

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standard imposes a lower burden than the “compelling reasons” standard). Under either

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Koseor’s official title is Deputy Division Director, Mission Readiness Division, for the San Diego
Field Office (SDFO), Office of Field Operations (OFO), U.S Customs and Border Protection (CBP).
(Koseor Decl. ¶ 1.)
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Holmes’s official title is Supervisory Border Patrol Agent for the U.S. Border Patrol (USBP),
San Diego Sector (SOC), U.S Customs and Border Protection (CBP). (Holmes Decl. ¶ 1.)

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standard, “an order sealing the documents must be narrowly drawn to seal only those

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portions of the record that, upon a balancing of the relevant interests, ought to be sealed.”

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Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-03738-AB (CWX),

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2015 WL 12698301, at *1 (C.D. Cal. Jan. 22, 2015) (collecting cases).

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Under this Court’s Standing Order, the parties seeking a sealing order must provide

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the Court with “(1) a specific description of particular documents or categories of

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documents they need to protect; and (2) declarations showing a compelling reason or good

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cause to protect those documents from disclosure.” Hon. Cynthia Bashant’s Standing

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Order for Civil Cases (“Standing Order”) § 5. “The standard for filing documents under

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seal will be strictly applied.” Id. “Any protective order must be narrowly drawn” to reflect

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the balance between the moving party’s interests and the public’s right to access the court

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files, and “[a]ny member of the public may challenge the sealing of any particular

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document.” Id. “The fact that both side[s] agree to seal or that a protective order was

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issued at the onset of the case alone is insufficient cause for sealing.” Id.

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III.

ANALYSIS

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Plaintiffs’ Class Certification Motion is more than tangentially related to the merits

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of the underlying action. See Baker v. SeaWorld Entm’t, Inc., No. 14CV2129-MMA

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(AGS), 2017 WL 5029612, at *3 (S.D. Cal. Nov. 3, 2017) (finding motion for class

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certification to be more than tangentially related to merits of the case and citing cases).

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Therefore, the instant Application to Seal is subject to the “compelling reasons” standard.

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The Court discusses the exhibits by category below.

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A.

CBP Forms, Training, and Database

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Defendant-Respondents seek to seal two documents in its entirety: CBP OFO

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Training Guide (“Training Guide”) and the CBP Migrant Protection Protocols (MPP)

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Appendix A (“MPP Appendix”). The Training Guide is an internal CBP document that

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explains the steps that a CBP officer must take to prepare for administrative proceedings
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relating to the issuance of immigration documents. (Koseor Decl. ¶ 6.) The MPP

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Appendix similarly contains instructions for the CBP Officers on how to use an electronic

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database for immigration cases used and maintained by immigration and law enforcement

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agencies. (Id.) Specifically, the document includes screenshots of the database. (Id.)

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According to Defendant-Respondents, the Training Guide and the MPP Appendix

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are not for public view and even within the CBP, an employee must demonstrate a law

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enforcement purpose to access the documents. (Koseor Decl. ¶ 6, ECF No. 171-1.)

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Defendant-Respondents argue that disclosing those documents would be to reveal “record

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keeping, intelligence gathering, and the information CBP relies on to make legal case

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processing decisions,” which would hamper the CBP’s ability to “conduct proactive

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enforcement operations based on the information [the CBP collected].” (Koseor Decl. ¶ 6,

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ECF No. 171-1.)

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To determine whether to maintain this information under seal, the Court must

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balance the government’s interest with the public’s right to access court records. The Court

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finds that Defendant-Respondents have demonstrated a compelling interest to maintain the

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Training Guide and the MPP Appendix under seal. See Al Otro Lado, Inc. v. Wolf, No.

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3:17-CV-2366-BAS-KSC, 2020 WL 3487823, at *8 (S.D. Cal. June 26, 2020) (holding

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that “confidential and sensitive law-enforcement information that could harm CBP’s and

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other entities’ operations if publicly disclosed” can be maintained under seal).

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B.

Deposition Excerpts Containing Law Enforcement Sensitive Material

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Defendant-Respondents seek to maintain under seal portions of the following

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deposition excerpts that discuss law enforcement sensitive material: CBP Office of Field

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Operations 30(b)(6) Deposition Excerpts;3 and Border Patrol 30(b)(6) Deposition

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Excerpts.4

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The redacted versions are docketed at ECF Nos. 125-9, 171-4.
The redacted versions are docketed at ECF Nos. 125-12, 171-5 and at ECF Nos. 140-1, 172-10.

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Defendant-Respondents seek to redact three parts from the excerpts of the deposition

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CBP OFO 30(b)(6) Deposition Excerpts

of a 30(b)(6) witness for the CBP OFO: 110:10–23, 150:1–22, and 155:9–156:22.

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The first part (111:10–112:3) addresses the OFO officers’ approach in processing

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cases and issuing a Notice to Appear (NTA). (Koseor Decl. ¶ 3.) According to Defendant-

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Respondents, the discussion regarding case processing “reveals information that CBP uses

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to make case determinations, such as the likelihood of issuing an [NTA] for people with

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medical issues.” (Id.) An OFO official states in a declaration that disclosure of this

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information “may create an incentive for detainees to claim medical issues in the hope of

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receiving a certain disposition,” thereby “impairing CBP’s discretion, in administrative

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cases, to process each case on a case-by-case basis, therefore delaying administrative

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processing for future cases.” (Id.)

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The second part (150:1–22) discusses an internal report referred to as Barracks 5

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Report, which is used by the OFO to track the detainees, as well as CBP’s operation hours

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and functions. (Koseor Decl. ¶ 4.) The OFO official’s declaration states that disclosure of

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such information creates a risk of abuse by “those who seek to circumvent CBP’s

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enforcement [who] often use operation and tracking information for illegal or unlawful

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acts.” (Id. ¶ 4.)

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The third part (155:9–156:22) discusses the CBP’s 2018 operation plan instituted in

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response to the caravans arriving at the southern border. (Koseor Decl. ¶ 5.) In Defendant-

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Respondents’ view, “[t]he disclosure of operation plans could weaken CBP’s response to

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future threats, emergencies, and dangerous events at the Ports of Entry. CBP’s tactics and

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tolerances in response to future caravans or similar threats would be directly impacted.”

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(Id.)

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After balancing the government’s interest against the public’s right to access the

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court files, the Court finds that Defendant-Respondents have demonstrated a compelling

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interest to maintain under seal the redacted portions of the excerpts of the deposition of

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CBP OFO’s 30(b)(6) witness.
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Border Patrol 30(b)(6) Deposition Excerpts

Defendant-Respondents seek to redact two parts from the excerpts of the deposition
of a 30(b)(6) witness for the U.S. Border Patrol: 127:1–12 and 129:1–16.

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The first part (127:1–12) discusses the Border Patrol’s policy to process certain

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individuals considering the available spaces in the detention facilities. (See Holmes Decl.

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¶ 5.) According to the declaration by the testifying Border Patrol agent, the policy

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addresses how agents decide to release certain individuals, which constitutes information

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that can be abused against the government’s interest. (Id.)

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The second part (129:1–16) explains instances when the Border Patrol would

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complete an NTA with release on own recognizance. (See Holmes Decl. ¶ 6.) In

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Defendant-Respondents’ view, revealing the information “may create an incentive for

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detainees to claim medical issues in the hope of receiving a certain disposition.” (Id.) The

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Border Patrol agent states in his declaration that the disclosure “may impact future case

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processing and impair CBP’s discretion, in administrative cases, to process each case on a

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case-by-case basis, therefore delaying administrative processing for future cases.” (Id.)

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To determine whether to maintain this information under seal, the Court must

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balance the government’s interest in guarding its confidential information against the

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public’s right to access the court files. The Court finds that Defendant-Respondents have

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demonstrated a compelling interest to maintain under seal the redacted portions of the

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excerpts of the deposition of CBP OFO’s 30(b)(6) witness.

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C.

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Defendant-Respondents seek to redact the personal identifying information of

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Plaintiffs, including date of birth, alien number, and address. That information is contained

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in the ICE 30(b)(6) Deposition Excerpts,5 ICE Fact Witness Deposition Excerpts,6 Cancino

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Plaintiffs’ Personal Identifying Information

The redacted versions are docketed at ECF Nos. 125-8, 171-3.
The redacted versions are docketed at ECF Nos. 125-18, 171-8.

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Castellar’s I-213 form,7 and Hernandez Aguas’s Notice to Appear.8 The Court must

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balance Plaintiffs’ privacy interest against the public’s right to access court records. Courts

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have held that risks associated with disclosing sensitive personal information may

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outweigh the public’s interest in accessing records containing such information. See, e.g.,

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Lombardi v. TriWest Healthcare All. Corp., No. CV-08-02381-PHX-FJM, 2009 WL

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1212170, at *1 (D. Ariz. May 4, 2009) (granting motion to seal documents containing

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sensitive personal information); Am. Automobile Ass’n of N. Cal., Nev., & Utah, No. 17-

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CV-03874-LHK, 2019 WL 1206748, at *2 (N.D. Cal. Mar. 14, 2019) (finding compelling

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reasons to seal personally identifiable information, “including names, addresses, phone

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numbers, and email addresses”).

In such cases, redacting the personal identifying

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information at issue may sufficiently protect the privacy interests and also preserve public

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access to the case record. See Hedrick v. Grant, No. 2:76-CV-0162-GEB-EFB P, 2017

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WL 550044, at *2 (E.D. Cal. Feb. 10, 2017); see also In re Midland Nat. Life Ins. Co.

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Annuity Sales Practices Litig., 686 F.3d 1115, 1120 (9th Cir. 2012) (instructing district

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court to redact “sensitive personal” information even where records are unsealed).

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After balancing the privacy rights of Plaintiffs against the public’s right to access

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the court files, the Court finds that Defendant-Respondents have demonstrated a

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compelling interest to maintain under seal the unredacted copies of the documents

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containing personal identifying information.

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D.

Names of Law Enforcement Officers

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Defendant-Respondents seek to redact from three documents9 the names of the

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government employees, their non-public email addresses, and phone numbers. The Court

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must balance the public’s right to access court records against the government’s interest in

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The redacted versions are docketed at ECF Nos. 125-19, 171-9.
The redacted versions are docketed at ECF Nos. 125-14, 171-7.
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The redacted versions are docketed at ECF Nos. 125-8, 171-3 (ICE 30(b)(6) deposition excerpts);
125-13, 171-6 (CBP email thread); and 125-18, 171-8 (ICE fact witness deposition excerpts).
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preventing disclosure of its employees’ personal information. See Ortiz v. City & Cty. of

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San Francisco, No. 18-CV-07727-HSG, 2020 WL 2793615, at *8 (N.D. Cal. May 29,

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2020) (applying the balancing test to determine whether to maintain under seal “the names

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and information regarding non-defendant deputies and staff”).

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Defendant-Respondents attach a declaration reciting the harassment a United States

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Citizenship and Immigration Services (USCIS) employee endured after her email address

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was made public, as well as the flood of emails a Border Patrol agent received after his

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email address was posted on a public forum. (Holmes Decl. ¶ 7.) According to Defendant-

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Respondents, disclosure of the employees’ full names and email addresses may lead to

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disclosure of more personal information through “doxxing,” which imposes “a direct safety

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concern for Agents and their family members.” (Id.)

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The Court finds that Defendant-Respondents have demonstrated the specific

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prejudice or harm that may result from disclosing the officials’ information. Courts have

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held that targeted redactions similar to those proposed here strike the right balance between

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the privacy rights of the officers and the public’s right to access the court records. See,

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e.g., Al Otro Lado, Inc. v. Wolf, No. 17-CV-02366-BAS-KSC, 2020 WL 4551687, at *12

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(S.D. Cal. Aug. 6, 2020) (granting motion to seal document redacting CBP employees’

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phone numbers and email addresses). The Court reaches the same conclusion here and

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finds that the proposed redactions are sufficient to preserve the public’s right to access the

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relevant information.

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E.

Other Law Enforcement Privilege

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Defendant-Respondents seek to file under seal Plaintiff Hernandez-Aguas’s

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fingerprint identification number on her NTA, as well as Cancino Castellar’s fingerprints,

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fingerprint identification number, and state inmate number. Defendant-Respondents do

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not explain why this information should be maintained under seal and simply claim that

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they are subject to the law enforcement privilege.10 Nonetheless, the Court finds that the

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redacted information contains sensitive law-enforcement information, and the proposed

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redactions preserve the public’s right to access the relevant information contained in the

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documents. Therefore, the Court grants Defendant-Respondents’ request to maintain the

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redacted information under seal.

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IV.

CONCLUSION

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For the foregoing reasons, the Court GRANTS Defendant-Respondents’ sealing

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application. (ECF No. 171.) The Court ORDERS the Clerk of the Court to accept and

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FILE UNDER SEAL the requested documents (ECF No. 172).
IT IS SO ORDERED.

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DATED: August 19, 2021

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Defendant-Respondents argue the Court’s prior Order (ECF No. 159) pertained only to
confidential material but not to privileged material. (App. to Seal at 20:1–7, ECF No. 171.) DefendantRespondents misconstrue the Court’s Order. Whether or not the information sought to be sealed is
confidential or privileged, the burden is on Defendant-Respondents to demonstrate compelling reasons to
maintain the information under seal.

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