Grays v. Alejandro N. Mayorkas, Secretary, U.S. Department of Homeland Security

Filing 22

STIPULATED PROTECTIVE ORDER Signed by District Judge Robert H. Cleland. (LWag)

Case 3:21-cv-10526-RHC-KGA ECF No. 22, PageID.247 Filed 09/08/21 Page 1 of 8

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHNNY GRAYS,
Plaintiff,
v.
ALEJANDRO N. MAYORKAS,
Secretary of Homeland Security,

Civil No. 21-10526
Honorable Robert H. Cleland
Mag. Judge Kimberly G. Altman

Defendant.

Stipulated Protective Order Regarding Disclosure of Records
Subject to the Privacy Act and 45 C.F.R. § 164.512(e)
Plaintiff Johnny Grays and Defendant Alejandro N. Mayorkas, Secretary of
the U.S. Department of Homeland Security, through their attorneys, stipulate to
entry of a protective order to permit the production of documents and things in this
action that are deemed private and confidential under the Privacy Act, 5 U.S.C. §
552a, and Federal Rule of Civil Procedure 5.2, and to protect information obtained
by either party from the other party and/or third parties as required by 45 C.F.R. §
164.512(e). The documents at issue in this case are likely to include records and
reports that identify, by name and other identifying information, parties and nonparties to this litigation and contain private information. Under the Privacy Act,
Defendant is prohibited from disclosing documents that include the names or other

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identifying information of individuals who are not currently parties to this case
unless such disclosure is permitted by the order of a court of competent
jurisdiction. 5 U.S.C. § 552a(b)(11). Similarly, under 45 C.F.R. § 164.502, a
covered entity, such as the United States or other medical care provider, may not
disclose protected health information unless such disclosure is permitted by the
order of a court of competent jurisdiction or if other criteria are met, as described
in 45 C.F.R. § 164.512. This Stipulated Protective Order permits Defendant to
produce to Plaintiff relevant documents containing information protected by the
Privacy Act, 5 U.S.C. § 552a, and ensures that any sensitive or private information
obtained by either party from any source is obtained and disclosed only to the
extent necessary to resolve this litigation, as required by 45 C.F.R. § 164.501, et
seq. Accordingly, Plaintiff and Defendant, through their attorneys, have stipulated
to entry of a protective order providing as follows:
1.

Protected Information.

The parties may designate as “protected information” records produced in
response to a party’s discovery requests or documents obtained by either party
pursuant to subpoena or records request from third parties. All records designated
as protected information shall be stamped “protected information” on each page
and/or shall be appended with a cover sheet stamped “protected information.” All
such records designated as “protected information” shall be subject to the

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provisions below. Defendant and Plaintiff shall treat all records and information
obtained from third parties regarding the medical treatment of Plaintiff as
“protected information.” For purposes of this qualified protective order, “protected
information” includes “protected health information” as set forth in 45 C.F.R. §
160.103 and 164.501, including demographic information, relating to either (a) the
past, present, or future physical or mental condition of an individual, (b) the
provision of care to an individual, or (c) the payment for care provided to an
individual, which identifies the individual or which reasonably could be expected
to identify the individual.
2.

Authorization to Disclose.

Upon entry of this stipulated protective order under the authority of the
Court pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, 5 U.S.C. §
552a(b)(11), and 45 C.F.R. § 164.512(e)(1), the Court permits the production of
protected information by either party or by third parties, even though the records
contain the names and other identifying information and/or actions regarding
persons who are not currently parties to this case and/or protected health
information. The parties agree that “protected information” may be relevant to the
subject matter involved in the pending action and the parties’ need for such records
or information outweigh the concerns against disclosure so long as the parties
comply with the measures required by this Protective Order. The Court also

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permits either party to seek information about protected information through
written and oral communications with third parties.
This stipulated order does not apply to those records or portions of records
that include privileged information, if any, or that are otherwise objectionable.
3.

Non-Disclosure of Protected Information.

Except with the prior written consent of the opposing party, or as otherwise
provided under this order or by prior approval of this Court, no “protected
information” obtained by the parties may be disclosed to any individual or entity,
in any form whatsoever, except to those persons, and for those purposes, delineated
in paragraphs 4 and 5 below. Under no circumstances may protected information
be used by the parties or their attorneys or agents for any purpose other than for
those purposes necessary to this litigation.
4.

Permissible Disclosures.

(A)

Notwithstanding paragraph 3, protected information may be disclosed

to:
i.

A party;

ii.

Counsel for the parties in this action who are actively engaged
in the conduct of this litigation;

iii.

The attorneys, secretaries, paralegal assistants, and employees
of such counsel or federal agencies to the extent reasonably
necessary to render professional services in the litigation;

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iv.

Retained consultants or experts (testimonial and nontestimonial) and employees of said persons directly involved in
the prosecution or defense of this litigation;

v.

Persons giving testimony, including testimony during
depositions, in this litigation;

vi.

Witnesses or individuals who may have information relevant to
the events at issue in this litigation;

vii.

Court officials involved in this litigation (including court
reporters, persons operating video recording equipment at
depositions, and any special master appointed by the Court);
and

viii. Persons designated by the Court in the interest of justice, upon
such terms as the Court may deem proper after a hearing with
the parties.
(B)

Prior to disclosing protected information to the persons described in

Paragraph 4(A), counsel shall inform each such person that protected information
may not be used or disclosed for any purpose other than this litigation. Counsel
shall take all other reasonable steps to ensure that persons receiving protected
information do not use or disclose such information for any purpose other than this
litigation.
5.

Use of Protected Information in Litigation.

The provisions of this stipulated order shall not apply to restrict the use of
protected information in connection with a deposition, proceeding, hearing, trial, or
appeal in this action provided any person receiving the protected information is
subject to the provisions of this order. However, any documents designated as
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“protected information” must be redacted to remove personally identifying
information before they are disclosed to the public by, for instance, filing them as
exhibits to motions on the public docket.
6.

Custody and Safekeeping of Protected Information.

Counsel for a party to whom protected information has been produced shall
be responsible for taking appropriate precautions to preserve the confidentiality of
the protected information. The duplication of protected information shall be limited
to what is reasonably necessary for the conduct of this litigation.
7.

Filing of Documents Containing Protected Information with the
Court.

Documents containing protected information may be filed with the Court to
the extent reasonably necessary to support motions or other matters relating to the
litigation provided that such documents are redacted to remove all personally
identifying information prior to filing. The filing party is responsible for
completing the redactions necessary to comply with this section.
8.

Non-Termination.

The provisions of this stipulated order shall not terminate at the conclusion
of this litigation. Within 120 days after final conclusion of all aspects of this
litigation, including all appeals, protected documents and all copies of same (other
than exhibits of record) shall be returned to Defendant or its counsel or destroyed.
All counsel of record shall make certification of compliance herewith and shall
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deliver the same to counsel for Defendant not more than 150 days after final
termination of this litigation.
9.

Declassification.

In the event that a reviewing party wishes to disclose protected material to
any person to whom disclosure is not authorized by this protective order, such
reviewing party may apply to this Court for modification of this order. During the
pendency of any such application, this protective order shall remain in full effect.
The party who produced the information as protected shall have the burden to
prove that there is good cause for the information to have such protection. Failure
of a party to promptly challenge any designation of confidentiality shall not
constitute acquiescence in such designation nor preclude the filing of an
application under this paragraph at any time prior to trial. Nothing herein shall
impose any restriction on the use or disclosure by a party of information obtained
by such party independently of discovery proceedings herein.
10.

Modification Permitted.

Nothing in this order shall prevent any party from seeking modification of
this order or from objecting to discovery that it believes to be otherwise improper.
11.

Filing Under Seal.

This order does not authorize the filing of any documents under seal.
Documents may be sealed only if authorized by statute, rule, or order of the Court.

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The parties will comply with Local Rule 5.3 with respect to any documents they
seek to file under seal.
IT IS SO ORDERED.

Dated: September 8, 2021

s/Robert H. Cleland
Hon. Robert H. Cleland
United States District Judge

Stipulated and Agreed to By:
Deborah Gordon Law

Saima S. Mohsin
Acting United States Attorney

/s/ Deborah L. Gordon (with consent)
Deborah L. Gordon (P27058)
Sarah Gordon Thomas (P83935)
Molly Savage (P84472)
33 Bloomfield Hills Parkway, Suite 220
Bloomfield Hills, MI 48304
[phone] / Fax [phone]
[e-mail]
[e-mail]
[e-mail]
[e-mail]

/s/ Benjamin A. Anchill
Benjamin A. Anchill (P70968)
Brittany D. Parling (P78870)
Assistant United States Attorneys
211 W. Fort Street, Suite 2001
Detroit, MI 48226
[phone] / [phone]
[e-mail]
[e-mail]
Attorneys for Defendant

Attorneys for Plaintiff

Dated: September 8, 2021

Dated: September 8, 2021

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