Aguirre v. Correction Corporation of America et al

Filing 43

ORDER granting 42 Joint Motion for Protective Order by Chief Magistrate Judge Carmen E. Garza. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CHRISTOPHER AGUIRRE,
Plaintiff,
v.

CV No. 17-1267 WJ/CG

CORRECTION CORPORATION
OF AMERICA, et al.,
Defendants.
PROTECTIVE AGREEMENT AND ORDER
THIS MATTER is before the Court on the parties’ Joint Motion for Protective
Order, (Doc. 42), filed August 15, 2018. Upon joint motion by the parties and pursuant
to the terms of the following Protective Agreement (“Agreement”), the Court hereby
enters the this Protective Order.
1.

For purposes of this Agreement, CONFIDENTIAL INFORMATION means

any document or tangible thing, electronic recording or transcript of oral testimony,
whether or not made under oath, and the content of such document, thing, recording, or
transcript, designated by any party as confidential because it contains: (1) proprietary
information (trade secret, proprietary matter, or other confidential research,
development, or commercial information as those terms are used in FED.R.CIV.P. 26);
(2) confidential personal information related to current or former employees of
Corrections Corporation of America AKA CoreCivic (hereafter “CoreCivic”) or TransCor
America (hereafter “TransCor”), the disclosure of which might invade those current or
former employees’ privacy; (3) documents containing financial, pricing, or contractual
information, unless they are already public records; (4) security sensitive information

related to the operation of any CoreCivic facility, TransCor transport vehicle, Federal
Bureau of Prisons (“BOP”) facility, or United States Marshals Service (“USMS”) facility;
and (5) confidential information relating to or identifying current or former inmates or
detainees (other than Christopher Aguirre), the disclosure of which might invade those
inmates/detainees’ privacy. CONFIDENTIAL INFORMATION is specifically intended to
include, but is not limited to: (1) CoreCivic’s policies and procedures, unless they are
already public records; (2) TransCor’s policies and procedures, unless they are already
public records; (3) BOP and/or USMS’s non-publicly available restricted policies and
procedures, to the extent, if any, they apply to Plaintiff’s claims; (4) CoreCivic’s and/or
TransCor’s training materials, information, and documents, unless they are already
public records, BOP’s non-publicly available training documents, and USMS’s nonpublicly available training documents; (5) Post Orders, unless they are already public
records; (6) CoreCivic’s and/or TransCor’s investigative materials, to the extent, if any,
they apply to Plaintiff’s claims, unless they are already public records; (7) grievance
logs, unless they are already public records; (8) facility diagrams, including information
related to placement of security cameras, unless they are already public records; (9)
bonus and/or financial information, unless they are already public records; and (10) any
of CoreCivic’s or TransCor’s employee or independent contractor files, unless they are
already public records. By way of example, and not limitation, CONFIDENTIAL
INFORMATION may be included in documents, simulations, animations, portions of
documents, computer programs and software, magnetic or digital discs, electronically
recorded tapes of any sort, transcripts, summaries, notes, abstracts, motions, drawings,

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and any instrument that comprises, embodies, or summarizes any matter that any party
considers confidential.
2.

By way of example, the term “documents” includes but is not limited to

correspondence, memoranda, or other printed matter, interoffice and/or intra-corporate
communications, letters, statements, contracts, invoices, drafts, charts, work sheets,
desk diaries, recordings, specifications, compilations from which information can be
obtained and translated as required through detection devices into a reasonably usable
form, sketches, drawings, notes (including laboratory notebooks and records),
disclosures, data, reports, work assignments, instructions, electronic files, electronic
information, emails, and other writings.
3.

It is contemplated that the parties may produce certain of their files and

other information pursuant to agreement or subpoena (files and information that contain
confidential as well as non-confidential material) and that, at the time of production, the
producing party will designate the documents that they deem to contain
CONFIDENTIAL INFORMATION. Only documents marked as “CONFIDENTIAL” will
be subject to this Protective Agreement and the Court’s Protective Order.
CONFIDENTIAL INFORMATION will not be disseminated or produced except in
accordance with this Agreement.
4.

Whenever a deposition or court proceeding involves the disclosure of a

party’s CONFIDENTIAL INFORMATION to another party, the following procedure will
apply:

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a.

The court reporter will be directed to bind those portions of the

transcript containing CONFIDENTIAL INFORMATION separately. This
request will be made on the record whenever possible.
b.

The cover of any portion of a deposition or court proceeding

transcript that contains testimony or documentary evidence that has been
designated CONFIDENTIAL INFORMATION will be prominently marked
with the legend: CONFIDENTIAL/SUBJECT TO PROTECTIVE ORDER.
c.

All portions of depositions or court proceeding transcripts

designated as CONFIDENTIAL INFORMATION will be sealed and will not
be disseminated except to the persons identified in Paragraphs 6 and 8.
d.

Any party may designate any portion of a deposition, not previously

designated as CONFIDENTIAL INFORMATION, within sixty (60) days of
receipt of the transcript of said deposition, by the party, as confidential
information, by advising all counsel of record of their designation of the
specific portions of the deposition as confidential and shall be treated as if
designated initially at the deposition, from that point forward.
5.

All pleadings or other documents that contain CONFIDENTIAL

INFORMATION shall be filed in the public record in redacted form, with as few
redactions as possible. The party seeking to use the CONFIDENTIAL INFORMATION
shall seek leave of the Court to file an unredacted version of the pleading or other
document under seal with the Clerk of the Court.
6.

Unless otherwise provided in this Order, see Paragraph 8, access to

CONFIDENTIAL INFORMATION will be restricted to the Court, its officers, and to the

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following counsel and experts: attorneys in this action, consulting attorneys, and
testifying or consulting experts, where production is required by the Federal Rules of
Civil Procedure or a court order. Any attorney or expert to whom disclosure is made will
be furnished with a copy of the Protective Order and will be subject to the Order.
7.

CONFIDENTIAL INFORMATION containing address, identifying

information, dependent information, or contact information concerning former or current
employees or independent contractors of CoreCivic and/or TransCor will not be
disclosed to any present or former inmate/detainee or member of the general public.
Access will be restricted to the attorneys in this action and any consulting or testifying
experts. Moreover, CONFIDENTIAL INFORMATION containing proprietary policies,
protocols, practices, and directives relating to security procedures utilized by any
CoreCivic or TransCor employee, at any CoreCivic facility, or at any BOP or USMS
facility, or for purposes of transportation of inmates or detainees to or from any such
facilities, will not be disclosed to any present or former inmate/detainee, unless they are
already public records. Defendants will produce the information with the label:
“CONFIDENTIAL/ATTORNEYS’ EYES ONLY.” CONFIDENTIAL INFORMATION so
labeled shall not be disclosed to the public or to any present or former inmate/detainee,
and will be handled accordingly at all times barring a written agreement by CoreCivic
and/or TransCor to modify or remove the designation or a court order. The terms of this
Protective Order are not to be construed as an agreement by CoreCivic, TransCor,
USMS, or BOP, or their employees, to disclose security sensitive information related to
the operation of any CoreCivic, USMS, or BOP facility, or to the operation of any
TransCor transport vehicle.

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8.

While this Protective Order intends to limit access to certain information as

set forth in Paragraph 7, nothing in this Protective Order limits Plaintiff from viewing his
own CONFIDENTIAL INFORMATION, which includes his non-publicly available medical
and mental health records.
9.

If Plaintiff’s counsel or experts are required by law or court order to

disclose CoreCivic’s and/or TransCor’s CONFIDENTIAL INFORMATION to any person
or entity not identified in Paragraph 6, the name of that person or entity will be furnished
to CoreCivic and/or TransCor as far in advance of disclosure as is reasonably possible
(ideally, not less than two weeks), so that CoreCivic and/or TransCor may object and
seek further protection as necessary. Once an objection has been made, there will be
no disclosure until the matter is resolved, unless disclosure is required by law or court
order. Any person not listed in Paragraph 6 who is then entitled to receive
CONFIDENTIAL INFORMATION must be furnished with a copy of the Protective Order.
10.

If Plaintiff’s counsel desires to use the documents or CONFIDENTIAL

INFORMATION produced pursuant to this Agreement in any other lawsuit, Plaintiff’s
counsel must first request permission in writing from the Office of the General Counsel
of CoreCivic and/or Struck Love Bojanowski & Acedo, PLC.1 The request must be made
in sufficient time (not less than two weeks) for CoreCivic and/or Struck Love Bojanowski
& Acedo, PLC to adequately respond. If permission is given, all terms of this Agreement
will apply to use of the CONFIDENTIAL INFORMATION in any other lawsuit. If
permission is not given, Plaintiff’s counsel agrees not to use the documents produced in

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As a wholly-owned subsidiary of CoreCivic (Doc. 6), TransCor does not maintain a separate Office of
General Counsel. All requests to use TransCor’s CONFIDENTIAL INFORMATION produced pursuant to
this Agreement in any other lawsuit must therefore be made in writing to the Office of General Counsel for
CoreCivic and/or Struck Love Bojanowski & Acedo, PLC as set forth in Paragraph 10.

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this litigation in any other subsequent litigation absent a court order permitting use of
such CONFIDENTIAL INFORMATION.
11.

Counsel for the parties retain the right to challenge the designation of a

particular document as CONFIDENTIAL INFORMATION. The burden of proof with
respect to the propriety or correctness in the designation of information as
CONFIDENTIAL INFORMATION will rest on the designating party. Nothing in this Order
or the acceptance of documents under this Order waives any party’s rights to object to
the classification of any information as confidential and to submit the issue to the Court
for resolution.
12.

The intent and purpose of this Agreement is to facilitate the disclosure and

use of relevant and discoverable documents containing CONFIDENTIAL
INFORMATION for purposes of this litigation. Nothing in this Protective Agreement
precludes Plaintiff or Defendants from seeking and obtaining, on an appropriate
showing, additional protection with respect to the confidentiality of documents or other
discovery material, or relief from the Protective Order. Moreover, by agreeing generally
in this Protective Order that certain categories will be covered as confidential, although
the parties may not refuse to produce particular documents simply because they contain
CONFIDENTIAL INFORMATION, the parties do not waive the right to challenge the
discoverability of documents that fall within those categories.
13.

Each person designated in Paragraph 6, by receiving and reading a copy

of the Protective Order entered by the Court as part of this Agreement, agrees to abide
by its provisions and to see that its provisions are known and adhered to by those under

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his or her supervision or control, and to submit to the jurisdiction of the Court in the
event the Order or Agreement is breached.

__________________________________
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

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