Flores-Rodriguez v. Lynch

Filing 16

PROTECTIVE ORDER granting ECF No. 14 Joint Motion. (See pdf Order for specifics.) Signed by Magistrate Judge William G. Cobb on 5/16/2017. (Copies have been distributed pursuant to the NEF - DRM)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
RENO DIVISION
GUADALUPE FLORES-RODRIGUEZ
(a.k.a. Guadalupe Flores)
Petitioner,
vs.
JEFFERSON B. SESSIONS III,
U.S. ATTORNEY GENERAL,
Respondent.

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CIVIL ACTION
No.3:16-cv-00621
RCJ-WGC

STIPULATED PROTECTIVE ORDER REGARDING CONFIDENTIAL
INFORMATION
1. The parties expect that information protected by the Privacy Act of 1974, 5
U.S.C. § 552a, as amended, will be disclosed to Petitioner in the course of
discovery and produced to the Court in pleadings, motions and other documents.
Specifically, the Respondent represents that it has in its possession one or more
alien files (hereinafter “A-files”) of individuals who are citizens and/or lawful
permanent residents of the United States. These A-files contain information that
is and/or may be discoverable in the instant litigation, but the Respondent believes
that the files are protected from disclosures under the Privacy Act of 1974, 5
U.S.C. § 552a, as amended. These A-files also contain personal data identifiers
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which are subject to redaction under Local Rule 5.2-1. Additionally, the
Respondent has in its possession Petitioner’s A-file, which contains identifying
information, which is or may be discoverable, concerning individuals other than
Petitioner. The Respondent believes that this information is also protected from
disclosure under the Privacy Act of 1974, 5 U.S.C. § 552a, as amended and is
subject to redaction under Local Rule 5.2-1.
2. Thus, with the agreement of the parties, the Court having determined that there is
good cause for issuance of a protective order pursuant to Federal Rule of Civil
Procedure 26(c) to govern the disclosure, use, and handling by the parties and
their respective agents, successors, personal representatives and assignees of
certain information and items produced and received in discovery in the abovecaptioned action, IT IS HEREBY ORDERED as follows:
A. Definitions
1. “Action” shall mean the case captioned Flores-Rodriguez v. Sessions (D. Nev.

No.3:16-cv-00621).
2. “Confidential Information” shall mean information that, at the time of its
production in discovery in the action, or thereafter, is designated confidential by the
Producing Party because of a good faith belief that the information: (a) is not in the
public domain, or if in the public domain, is improperly in the public domain; and (b) is
[either] (i) a trade secret or other confidential research, development, or commercial
information as such terms are used in Federal Rule of Civil Procedure 26(c)(1)(G), [or]
(ii) personal financial, medical or other private information relating to an individual that
would properly be redacted from any public court filing pursuant to Federal Rule of Civil

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Procedure 5.2., (iii) information protected by the Privacy Act of 1974, 5 U.S.C. § 552a,
as amended, including, but not limited to information about an individual regarding his or
her education, financial transactions, medical history, criminal or employment history
and that contains his or her name, or the identifying number, symbol, or other identifying
articular assigned to the individual, such as a finger or voice print or photograph.,
3. “Disclose” (or forms thereof) shall mean to distribute, provide, or otherwise make
available for access, viewing, or copying. “Disclose” shall include the actual covered
document or item as well as the contents or information contained therein, such that
disclosing a copy, summary, paraphrasing, or characterization would be considered a
disclosure of the document itself for purposes of this Protective Order.
4. “Document” shall mean all items listed in Federal Rule of Civil Procedure
34(a)(1)(A) & B.
5. “Challenging Party” shall mean any party who challenges the designation of
information as Confidential Information under this Protective Order.
6. “Designating Party” shall mean the party or other person producing in discovery
in the Action any information that the Producing Party seeks to designate and have
treated as Confidential Information pursuant to this Protective Order.
7. “Producing Party” shall mean the person or party producing in discovery in the
Action.
8.

“Receiving Party” shall mean any party who receives information that has been

designated as Confidential Information.
B. Purpose, Scope, and Limitations of Protective Order
1. This Protective Order applies to discovery, pre-trial and (to the extent approved

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by the Court) trial and post-trial proceedings in this action, whether the Documents are
produced by a party or a person or entity who is not a party to this action (a “non-party”).
It is also hereby ORDERED that the Respondent may: (1) produce documents to the
Petitioner that are protected by the Privacy Act of 1974, 5 U.S.C. § 552a, and the
Respondent’s production of such documents shall be considered to be “pursuant to the
order of a court of competent jurisdiction’ and authorized by 5 U.S.C. § 552a(b)(11) so
long as the Respondent designated the documents as CONFIDENTIAL-SUBJECT TO
PROTECTIVE ORDER and (2) produce documents without redactions as required under
Local Rule 5.2-1. This Order binds the Parties and their respective agents, successors,
personal representatives, and assignees.
2. Nothing in this Protective Order supersedes existing independent statutory, law
enforcement, national security, or regulatory obligations imposed on a Party, and this
Protective Order does not prohibit or absolve the Parties from complying with such other
obligations.
3. This Protective Order shall not prejudice in any way any party’s ability to
challenge the use or disclosure of information other than information designated as
Confidential Information under this Protective Order in this Action. A party’s
compliance with the terms of this Protective Order shall not operate as an admission that
any particular material is or is not (a) confidential, (b) privileged, or (c) admissible in
evidence at trial.
4. The protections conferred by this Protective Order do not cover any information
(i) properly in the public domain; (ii) becomes part of the public domain after its
disclosure to a Receiving Party as a result of publication not involving a violation of this

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Protective Order, including becoming part of the public record in this Action through trial
or otherwise; or (iii) known to the Receiving Party prior to the disclosure or obtained by
the Receiving Party after the disclosure from a source who obtained the information
lawfully and under no obligation of confidentiality to the Producing Party.
5. This Protective Order does not govern the use by the Parties of Confidential
Information in open court at any hearing or trial, but the Parties reserve the right to seek
relief from the Court in connection with the intended use of Confidential Information in
any such hearing or trial. Reference by the Parties to confidential documents or
information at trial, pursuant to an order entered by the Court as described in this
paragraph, shall be considered to be: (1) “pursuant to the order of the court of competent
jurisdiction” and authorized by 5 U.S.C. § 552a(b)(11); and (2) pursuant to an order
permitting disclosure and filing of materials without redaction as required by Local Rule
5.2-1. [See also paragraph (E)(8) below (providing advance notice to Producing Party
prior to use of Confidential Information in open court or in support of a dispositive
motion).]
6. This Protective Order governs the disclosure, use, and handling of all Confidential
Information, regardless of the format or medium in which such Confidential Information
is generated, stored, or maintained.
7. Any Confidential Information referenced in any pleading or contained in any
Document filed with the Court in this Action by the Producing Party shall at the time of
filing cease to be Confidential Information unless the Producing Party files the unredacted pleading or Document under seal.
8. Nothing in this Protective Order shall restrict the right of any Producing Party to

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use its own Confidential Information for any purpose whatsoever, but if any such use
results in a disclosure that causes the Confidential Information to lose its designation as
Confidential Information, then it shall no longer be subject to any protection under this
Protective Order.
9. This Protective Order applies only to disclosures, uses, and handling of
Confidential Information occurring after the entry of this Protective Order.
10. Neither the termination of this Action nor the termination of employment of any
person who has had access to any Confidential Information shall relieve such person of
his or her obligations under this Protective Order, which shall survive.
11. Any party may at any time seek modification of this Order by agreement or,
failing agreement, by motion to the Court.
C. Method for Designating Confidential Information
1. Designations of Confidential Information shall be made by the Producing Party,
prior to or at the time of production, except as otherwise provided by this Protective
Order.
2. The Designation of Confidential Information should be limited only to those
Documents or portions of Documents that qualify under the appropriate standards or
under the definition of “Confidential Information” in Section A(2) of this Protective
Order.
3. Documents produced in discovery in this Action shall be designated as containing
“Confidential Information.” For documents produced in paper or an electronic form that
allows endorsements or similar designation on the image, the designation shall appear by
the inclusion of the marking of Confidential, Subject to Protective Order, No.3:16-cv-

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00621 on each page of the document asserted to contain Confidential Information, or on a
cover sheet appended to the document. For electronic information that is provided in
native form or a format that is not amenable to visible endorsement on the image, the file
name(s) shall begin with Confidential, Subject to Protective Order, No.3:16-cv-00621.1
The media on which the Confidential Information is provided (e.g., CD, DVD, external
hard drive) also must be and remain plainly labeled with Confidential, Subject to
Protective Order, No.3:16-cv-00621 unless and until the protection of the data within the
media is removed. Any copying or transferring of electronic files that are designated as
Confidential Material must be done in a manner that maintains and the protection for all
copies, including, but not limited to, in the filename(s) and the location where the copies
are stored and users’ access thereto.
4. For interrogatory answers and responses to requests for admissions, designation
of Confidential Information shall be made by placing within each interrogatory answer or
response to requests for admission asserted to contain Confidential Information the
following: The following response is Confidential pursuant to the Court’s Protective
Order.
5. [Because this case may require the use of Confidential Information in litigation,
deposition testimony shall automatically be deemed CONFIDENTIAL-SUBJECT
TO PROTECTIVE ORDER, unless the parties stipulate otherwise or the Court
rules otherwise in response to an appropriate motion. Documents that are
designated CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER, including

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The original metadata of the native files should be retained pursuant to the parties’
agreement.
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deposition transcripts and associated exhibits, may be disclosed to deponents who
have been given a copy of this Protective Order and have signed a declaration in
the form attached hereto as “Exhibit A,” in accordance with paragraph (E)(4) of
this order.]
6. For any other Document or item produced in discovery in this Action not falling
within subparagraphs C(3), (4) or (5) above, designation of Confidential Information
shall be made by labeling the item or the item’s container with Confidential, Subject to
Protective Order, No.3:16-cv-00621. If only a portion or portions of the information
contained in the item warrant protection as Confidential Information, it shall be
accompanied by a cover letter identifying the specific portion or portions so designated.
7. If it comes to a Producing Party’s attention that information designated as
Confidential Information does not qualify or no longer qualifies for protection, the
Producing Party must promptly notify all Parties that it is withdrawing the designation for
the applicable information. [See paragraph (D)(7) below (providing for re-production of
information after designation is removed or withdrawn).]
D. Challenging Confidential Designations
1. A Challenging Party shall not be obliged to challenge the propriety of a
Confidential Information designation at the time made, and a failure to do so shall not
preclude a subsequent challenge thereto.
2. The Challenging Party shall initiate a challenge to the designation of any
Confidential Information under this Protective Order by providing to the Designating
Party (a) written notice of each designation it is challenging and (b) a description of the
basis of each challenge.

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3. The Challenging Party and the Designating Party shall attempt to resolve each
challenge in good faith and must begin a meet and confer process within seven (7)
calendar days after the Designating Party receives notice from the Challenging Party.
During the conferring process, the Challenging Party must convey its basis for the
challenge and the Designating Party must have an opportunity to review the applicable
documents and either keep or change the designation. The Designating Party must
communicate its decision(s) to the Receiving Party within fourteen (14) calendar days
after receipt of notice of the challenge, or within a reasonable time agreed to by the
Parties.
4. If the Designating Party decides to withdraw its designation, it shall give notice of
this change to all parties. [(See paragraph 7 below (providing for re-production of
information).]
5. If the Challenging and Designating Parties cannot come to a resolution within the
time set forth in paragraph 3 above, or as otherwise agreed, either Party may file a motion
seeking a determination from the Court.
6. Any information designated as Confidential Information pursuant to and after the
entry by the Court of this Protective Order shall be treated as Confidential Information
until such time as (a) the Designating Party agrees that it shall no longer be treated as
Confidential Information or (b) the Court rules that such information should not be
treated as Confidential Information.
E. Disclosure, Use and Handling of Confidential Information
1. Upon designating documents as Confidential Information, the Respondent is
authorized to release to counsel for Petitioner and the Court in this case, including

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documents from government files which contain discoverable, unredacted thirdparty identifying information, without obtaining written consent of the third
parties whose names, addresses, and other identifying information may be present
in such documents.
2. A Receiving Party may use Confidential Information, in connection with this
Action only for prosecuting, defending, or attempting to settle this Action, and shall
disclose such Confidential Information only in accordance with the terms of this
Protective Order.
3. Counsel of record are responsible for employing reasonable measures, consistent
with this Protective Order, to control access to and secure distribution of Confidential
Information.
4. Confidential Information shall only be disclosed, summarized, described,
characterized, or otherwise communicated or made available in whole or in part to the
following persons:
a. Counsel (including outside counsel) for the Parties, including associated
personnel necessary to assist counsel in this Action, such as litigation
assistants, paralegals, and litigation support, information technology,
information or records management, investigative, secretarial, or clerical
personnel;
b. Current employees of the Parties who are assisting with respect to this
Action;
c. Any person with prior authorized access to the Confidential Information;
d. Current employees of the Producing Party;

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e. Current employees of other federal agencies, including, but not limited to
the Department of Homeland Security and the Department of State;
f. Witnesses, potential witnesses, and deponents, including their counsel;
g. Court reporters and other persons not employed by this Court, retained to
record or transcribe testimony or argument at interviews or depositions in
connection with this Action;
h. Photocopying, data processing, and other support services that are
reasonably necessary to litigation in this Action;
i. Retained expert witnesses and consultants;
j. Mediators or arbitrators; and
k. This Court (including any judicial officer to whom this Court may refer
this matter for settlement purposes), jurors, and Court personnel, including
persons recording or transcribing testimony or argument at a conference,
hearing, trial, or appeal in this Action.
5. Disclosure to the persons referenced in subsections (E)(3)(a)-(i) above may only
occur after the person to whom the disclosure is being made has been given a copy of this
Protective Order and has signed a declaration in the form attached hereto as “Exhibit A.”
6. Persons receiving Confidential Information pursuant to the terms of this
Protective Order are prohibited from disclosing it to any person except in conformance
with this Protective Order.
7. Unless the Designating Party gives written permission, all Confidential
Information that is filed with the Court must be (1) filed under seal or in camera in
accordance with the Court’s Local Rules and procedures, and/or (2) redacted from any

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filing that is publicly available. However, the Parties are not required to follow such
filing requirements when a brief or memorandum merely cites to documents marked as
CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER without revealing Confidential
Information, or references information contained within documents marked
CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER without revealing Confidential
Information.
8. If a Receiving Party or anyone subject to this Protective Order receives a
subpoena under Fed. R. Civ. P. 45 (or an equivalent mechanism under state law) seeking
Confidential Information as designated in this Action, the Receiving Party or such
individual shall promptly notify the Designating Party and shall not disclose any
Confidential Information until the Designating Party has had a reasonable opportunity to
inform the subpoenaed person either (a) the Designating Party does not object to the
production of the Confidential Information or (b) that that the Designating Party will seek
appropriate relief or protection from the proper Court to prevent the production. The
Designating Party shall bear the burden and expense of seeking protection of its
designated Confidential Information, and nothing in this Protective Order should be
construed as authorizing or encouraging a subpoenaed person to disobey a lawful
directive from this or another court.
9. If the need arises for any party to disclose Confidential Information in a
proceeding in open Court or in support of a dispositive motion, it may do so only after
giving seven (7) days’ notice to the producing party who, after a good faith effort to
meet-and-confer, may seek additional relief from the Court.
F. Inadvertent Production of Confidential Information

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1. Nothing herein shall be deemed or construed as a waiver of any applicable
privilege, right of privacy, or proprietary interest with respect to any information or item.
The Parties agree to follow Fed. R. Civ. P. 26(b)(5)(B) with respect to any inadvertently
or unintentionally produced or disclosed Confidential Information.
2. If a Receiving Party learns that, by inadvertence or otherwise, it, or a
person to whom it has disclosed Confidential Information in accordance with this
Protective Order, has disclosed Confidential Information to any person or in any
circumstance not authorized under this Protective Order, the Receiving Party shall,
upon learning of the unauthorized disclosure: (a) promptly notify the person(s) to
whom the unauthorized disclosure was made that the unauthorized disclosure
contains Confidential Information subject to this Protective Order; (b) promptly
make all reasonable efforts to obtain the return of the Confidential Information and
to prevent further unauthorized disclosures of the Confidential Information,
including requesting the person who received the unauthorized disclosure to agree
to be bound by the terms of this Protective Order by executing a declaration in the
form attached as “Exhibit A”; and (c) within five (5) calendar days notify the
Producing Party and all other Parties of the identity of the person(s) to whom the
unauthorized disclosure was made, the circumstances surrounding the disclosure, and the
steps taken to prevent any use or further disclosure of the Confidential Information that
was the subject of the unauthorized disclosure.
G. Disposition of Documents Containing Confidential Information
1. Except as provided in this Protective Order, within 90 days of the final
termination of this Action, whether by settlement, judgment, or other disposition or

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conclusion and all appeals or opportunities to appeal therefrom, a Receiving Party shall
take reasonable steps either to (a) destroy or delete all items designated as Confidential
Information or (b) return them to the Designating Party, depending upon the Designating
Party’s stated reasonable preference, except materials that exist on back-up tapes or
similar systems. Materials that exist on back-up tapes, systems, or similar storage need
not be immediately deleted or destroyed, and, instead, such materials overwritten and
destroyed in the normal course of business. Until they are overwritten in the normal
course of business, the Receiving Party will take reasonable steps to limit access, if any,
to the persons necessary to conduct routine IT and cybersecurity functions. In the course
of disposing of information in its possession under this paragraph, Receiving Party also
will take reasonable steps to notify persons to whom it distributed Confidential
Information pursuant to this Order that such information should be returned to Receiving
Party or destroyed by the person possessing the information with written confirmation to
Receiving Party.
a. For material that contains or reflects Confidential Information, but that
constitutes or reflects counsel’s work product, or that of retained
consultants and experts, counsel of record for the Parties shall be entitled
to retain such work product in their files in accordance with the provisions
of this Protective Order, so long as it is and remains clearly marked to
reflect that it contains Confidential Information subject to this Protective
Order.
b. Counsel of record for the Parties shall also be entitled to retain an archival
copy of all pleadings; affidavits; motion papers; trial, deposition, and

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hearing transcripts; legal memoranda; correspondence; deposition and trial
exhibits; expert reports; briefs; other papers filed with the Court; and any
other parts of the trial record, even if such material contains Confidential
Information, so long as such material is and remains clearly marked to
reflect that it contains Confidential Information. Even after the final
disposition of this Action, the terms of this Protective Order shall continue
to govern the disclosure, use, and handling of any Confidential
Information unless and until its Designating Party agrees otherwise in
writing or a court order directs.
c. In particular, attorneys for the United States may maintain copies of any
documents designated Confidential in their case file for this case, and may
maintain copies of any notes or summaries containing such Confidential
material in their case file for this case, subject to 44 U.S.C. § 3101, et seq.,
and 5 U.S.C. § 552, et seq.

ORDER

Judge’s Signature

With respect to paragraph 7, the parties are reminded that any document filed under seal must be
accompanied by a motion filed7, the parties are reminded10-5 and satisfy Dated:___________must be v. City
the filed under Kamakana
With respect to paragraph in accordance with LR IA that any document standards ofseal
and County a Honolulu, 447 accordance with LR IA 10-5 Center for the standards Chrysler Group, LLC,
accompanied byof motion filed inF.3d 1172 (9th Cir. 2006) andand satisfy Auto Safety v. of Kamakana v. City and
809 F.3d 1092, 1097 F.3d 1172 (9th
County of Honolulu, 447(9th Cir. 2016). Cir. 2006) and Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d
Counsel for Petitioner:
1092, 1097 (9th Cir. 2016).
Unless otherwise agreed or ordered, the terms of this Order shall remain in force as an agreement
s/ Steven Brazelton
between the parties after dismissal or entry of finalof this Order shall remain in force as an agreement
Unless otherwise agreed or ordered, the terms judgment not subject to further appeal. Actions to
Steven P. Brazelton
enforce parties after dismissal after dismissal or entry of not judgment shall be by separate court will not
between thethe terms of the Order or entry of final judgment finalsubject to further appeal. This legal action and
Law Office of Steven P. Brazelton
not by motion for contempt or other relief filed in this action.
retain jurisdiction over the parties’ Stipulated Protective Order following a final dismissal of this action. Any
520 Holcomb Avenue
action to enforce the terms of the Order after dismissal or entry of final judgment shall be by separate legal
Reno, IS SO ORDERED.
89502
IT NVmotion
action and not826-2380 for contempt or other relief filed in this action.
by
(775)
[phone] - fax
DATED: May 16,
IT IS SO ORDERED. 2017.
___________________________________
UNITED STATES MAGISTRATE JUDGE
DATED: May 16, 2017.
___________________________________
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UNITED STATES MAGISTRATE JUDGE

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
RENO DIVISION
GUADALUPE FLORES-RODRIGUEZ
(a.k.a. Guadalupe Flores)
Petitioner,
vs.
JEFFERSON B. SESSIONS III,
U.S. ATTORNEY GENERAL,
Respondent.

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CIVIL ACTION
No.3:16-cv-00621
RCJ-WGC

CERTIFICATION
1. My name is________________________________________________________
2. I have read the Protective Order that has been entered in this case, and a copy of it
has been given to me. I understand the provisions of the Protective Order, and
agree to comply with and to be bound by its provisions. I also consent to the
jurisdiction of this Court for purposes of enforcement of the Protective Order.
3. I declare under penalty of perjury that the foregoing is true and correct.

Executed this ___ day of _____________ by __________________________________
(Print Name)

Signed____________________________
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