Janfeshan v. Department of Homeland Security et al
ORDER affirming Judge Bloom's December 1, 2017 order and overruling plaintiff's objections for the reasons stated in the attached opinion. Ordered by Judge Allyne R. Ross on 2/7/2018. (Moldovan, Jessica)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstU.S. CUSTOMS AND BORDER PROTECTION, et al.,
NOT FOR ELECTRONIC
OR PRINT PUBLICATION
OPINION & ORDER
ROSS, United States District Judge:
On December 15, 2017, plaintiff Hamed Janfeshan requested review of Magistrate Judge
Lois Bloom’s order dated December 1, 2017. See Pl.’s Objs. to Non-Dispositive Order of Magistrate
Judge Bloom (“Pl.’s Objs.”), ECF No. 54. In that order, Judge Bloom entered a protective order, see
ECF No. 47-1 (“Protective Order”),1 which includes a provision to which plaintiff objects. See Order
Entering Protective Order (“Order”), ECF No. 52. In short, the provision allows defendants to
disclose information that plaintiff has designated as confidential to other governmental entities as
defendants “would otherwise be authorized to do by law” unless plaintiff specifically requests that
the information not be disseminated. See Protective Order ¶ 14 (“Paragraph 14”). If plaintiff so
requests, defendants can either accede to the request or reject it, at which point plaintiff can apply to
the Court for an order prohibiting defendants from disclosing the information. Id. While the Court
considers plaintiff’s application, defendants cannot share the information outside of the litigation. Id.
Plaintiff argues that Judge Bloom’s decision to enter the Protective Order was clearly erroneous
because the Protective Order does not “sufficiently protect” plaintiff, Pl.’s Objs. at 1, and that it was
In her December 1 order, ECF No. 52, Judge Bloom entered the defendants’ proposed protective order,
ECF No. 47-1. The official Protective Order can now be found at ECF No. 53.
contrary to law because the Protective Order requires plaintiff to meet an “undefined heightened
standard” to protect his information from disclosure “across the government,” id. at 3. Because I
find Judge Bloom’s order neither clearly erroneous nor contrary to law, I affirm it.
FACTUAL AND PROCEDURAL BACKGROUND
This case concerns an allegedly illegal search and seizure of plaintiff’s cell phone that took
place following plaintiff’s arrival at John F. Kennedy International Airport on November 20, 2016.
See Second Am. Compl. (“SAC”) ¶¶ 16, 119, 120, 124, 128, ECF No. 29. Plaintiff, who is Muslim,
was born in Afghanistan and is a lawful permanent resident of the United States. Id. ¶ 6. He alleges
that, because of his race or national origin, agents of the United States Customs and Border
Protection (“CBP”) stopped him at the border, subjected him to extensive questioning, and seized
his cell phone without reasonable suspicion. See id. ¶¶ 4, 5, 23, 58, 105, 122, 124. The agents
subsequently performed a forensic search of his cell phone, the results of which plaintiff claims were
digitally copied and possibly disseminated to other agencies. Id. ¶ 104.
In his operative complaint, plaintiff alleged violations of the Fourth and Fifth Amendments
to the United States Constitution, as well as the Administrative Procedure Act and the New York
Civil Practice Law and Rules. See id. ¶¶ 118–128. On June 7, 2017, defendants moved to dismiss
plaintiff’s amended complaint in its entirety. See Defs.’ Mem. of Law in Supp. of Mot. to Dismiss,
ECF No. 31-9, 31-10. On August 21, 2017, I granted in part and denied in part defendants’ motion,
allowing plaintiff’s Fourth and Fifth Amendment claims to move forward to discovery. See Janfeshan
v. U.S. Customs & Border Prot., No. 16-CV-6915 (ARR) (LB), 2017 WL 3972461, at *9–12 (E.D.N.Y.
Aug. 21, 2017). Specifically, I found that plaintiff’s allegations “raise[d] a reasonable inference that
CBP’s actions towards Janfeshan were motivated at least in part by his religion and national origin”
in violation of the Fifth Amendment. Id. at *10. Because I found that plaintiff’s Fourth Amendment
claim regarding the agents’ lack of reasonable suspicion was “integrally related” to his Fifth
Amendment claim and would be “more amenable to a reasoned disposition after factual
development,” I declined to dismiss it at that stage. Id. at *12. The case proceeded to discovery.
On September 19, 2017, Judge Bloom ordered the parties to file a mutual protective order.
See Scheduling Order. However, they were unable to reach an agreement concerning “a provision
that states that the United States and its agencies shall not be prohibited or limited from using or
disclosing materials and information obtained in discovery as the United States, its agencies, and its
employees would otherwise be authorized to do absent entry of the protective order.” Joint Letter
on Protective Order Dispute, ECF No. 42. The parties subsequently engaged in many exchanges
concerning their respective positions, briefed the topic of inter- and intra-governmental sharing of
information, and attended several conferences to settle the matter. See ECF Nos. 43–51.
On December 1, 2017, Judge Bloom entered the Protective Order, which included
Nothing in this Protective Order shall prohibit or limit the United States or any of its
agencies or employees from using or disclosing materials or information designated as
“Confidential Information” or “Attorneys’ Eyes Only” as the United States, its
agencies, and its employees, would otherwise be authorized to do by law absent entry
of the Protective Order. Notwithstanding the foregoing sentence, Plaintiff may
request, in writing to counsel for Defendants, that specific “Confidential Information”
or “Attorneys’ Eyes Only” information designated and being disclosed by Plaintiff not
be disclosed to persons other than those described in paragraph 72 of this Protective
Order . . . In the event that Defendants reject Plaintiff’s request, Defendants shall so
advise Plaintiff’s counsel in writing, and Plaintiff may apply within three (3) business
days of the rejection to the Court for an order prohibiting Defendants,
notwithstanding the first sentence of this paragraph, from disclosing the specified
“Confidential Information” [or] “Attorneys’ Eyes Only” information to persons other
than those described in paragraph 7 of this Protective Order. From the time
Defendants receive a timely written or oral request . . . , they shall not disclose the
specified “Confidential Information” or “Attorneys’ Eyes Only” information to
persons other than those described in paragraph 7 of this Protective Order unless and
until the Court rules that they are permitted to do so if Plaintiff has makes [sic] a timely
application to the Court after Defendants deny his request.
Paragraph 7 refers to people involved in this litigation, such as the parties, their counsel, their employees,
witnesses, and others who provide the parties and their counsel with support. Protective Order ¶ 7.
In her order, Judge Bloom “acknowledge[d] plaintiff’s concerns regarding the use of sensitive
information” but found that Paragraph 14 provided Janfeshan with “sufficient protections.” Order
at 2. On December 15, 2017, plaintiff timely filed his objections to Judge Bloom’s order. See Pl.’s
Objs. On December 22, 2017, defendants responded. See Defs.’ Resp. in Opp’n to Pl.’s Objs.
(“Defs.’ Opp’n”), ECF No. 56.
STANDARDS OF REVIEW
Review of a Magistrate’s Order
A district court shall reverse a magistrate judge’s order on a non-dispositive motion only
where the order is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R.
Civ. P. 72(a). Courts generally consider discovery disputes to be non-dispositive. Thomas E. Hoar, Inc.
v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). A factual finding is clearly erroneous if “on the
entire evidence,” the reviewing court “is left with the definite and firm conviction that a mistake has
been committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)). “An order is contrary to law ‘when it fails to apply or misapplies
relevant statutes, case law or rules of procedure.’” DeFazio v. Wallis, 459 F. Supp. 2d 159, 163
(E.D.N.Y. 2006) (quoting Catskill Dev., L.L.C. v. Park Place Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y.
2002)). This “‘heavy’ burden of proof lies with the moving party, and the highly deferential standard
‘only permits reversal where the magistrate judge abused h[er] discretion.’” Grief v. Nassau Cty., 246
F. Supp. 3d 560, 564 (E.D.N.Y. 2017) (alteration in original) (quoting Ahmed v. T.J. Maxx Corp., 103
F. Supp. 3d 343, 350 (E.D.N.Y. 2015)). Therefore, “the magistrate judge’s findings should not be
rejected merely because the court would have decided the matter differently.” Id. (citation omitted).
Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1).
However, “a court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The burden of
persuasion falls on the party seeking the protective order. Duling v. Gristede’s Operating Corp., 266
F.R.D. 66, 71 (S.D.N.Y. 2010). Good cause exists “when a party shows that disclosure will result in
a clearly defined, specific and serious injury.” In re Sept. 11 Litig., 262 F.R.D. 274, 277 (S.D.N.Y.
2009) (quoting In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006)).
General allegations of harm do not suffice: “Under Rule 26(c), the moving party must establish
‘particular and specific facts’ rather than ‘conclusory assertions’ that justify the imposition of a
protective order.” Coggins v. Cty. of Nassau, No. 07-CV-3624 (JFB) (AKT), 2014 WL 495646, at *2
(E.D.N.Y. Feb. 6, 2014) (quoting Rofail v. United States, 227 F.R.D. 53, 54–55 (E.D.N.Y. 2005)).
Although the burden is on the movant to establish good cause, courts must balance the interests of
both parties in devising an order. Mitchell v. Fishbein, 227 F.R.D. 239, 245 (S.D.N.Y. 2005).
Ultimately, trial courts “have substantial latitude” in determining whether to enter a protective order.
Coggins, 2014 WL 495646, at *2 (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 26 (1984)); see also
Penthouse Int'l, Ltd. v. Playboy Enters., Inc., 663 F.2d 371, 391 (2d Cir. 1981) (finding that a district court
has “broad discretion to determine whether an order should be entered protecting a party from
disclosure of information claimed to be privileged or confidential”).
Judge Bloom’s Order Is Not Clearly Erroneous.
Plaintiff argues that Judge Bloom’s entry of the Protective Order containing Paragraph 14
was clearly erroneous because the Protective Order does not sufficiently protect his interests. See
Pl.’s Objs. at 1–2. Plaintiff also contends that defendants are not required to share information from
discovery with other federal agencies or within defendants’ component entities. Id. at 3. Therefore,
according to plaintiff, to the extent that Judge Bloom relied on defendants’ alleged need to share
plaintiff’s confidential information, she clearly erred. Id. Finally, plaintiff argues that by allowing
“indiscriminate information sharing,” Judge Bloom’s entry of the Protective Order threatens his
ability to vindicate his constitutional rights in the underlying case and will chill others from bringing
similar lawsuits. Id. at 9, 17. Defendants argue that the Protective Order “struck an appropriate
balance” between the parties’ interests by providing a procedural mechanism to address plaintiff’s
requests that the defendants not share information with other government entities. Defs.’ Opp’n at
1. Defendants also point to several laws that, they argue, either require or authorize them to share
information between agencies. Id. at 13.
Although plaintiff raises important issues concerning privacy, discrimination, and a litigant’s
ability to vindicate his constitutional rights, he has failed to show that Judge Bloom’s entry of the
Protective Order was clearly erroneous. Plaintiff’s concerns, while by no means trivial, are purely
speculative at this point. To the extent that these fears prove to be well-founded, the procedure that
Judge Bloom implemented ensures that defendants cannot share plaintiff’s confidential information
before plaintiff has an opportunity to object and be heard on the matter.
A. Judge Bloom Did Not Clearly Err in Finding that the Protective Order
Sufficiently Protects Plaintiff.
Plaintiff’s “primary concern” about defendants sharing his information with other
government entities is that it will be misused “to negatively impact his pending naturalization
application.” Pl.’s Objs. at 10. He fears misuse in light “of the history of governmental misuse of
information about people with his ethnic and religious background.” Id. at 2. Specifically, plaintiff
fears that the sharing of his confidential information, “even though innocuous,” id. at 12, could
result in his naturalization application being placed in the Controlled Access Review and Resolution
Program (“CARRP”). Id. at 10–11. Operated by the United States Citizenship and Immigration
Services (“USCIS”), which is not a party to this litigation but is an arm of DHS, CARRP
“adjudicate[s] certain immigration applications that allegedly raise ‘national security concerns.’” Id. at
10 (citing Wagafe v. Trump, No. 17-CV-0094-RAJ, 2017 WL 2671254, at *1 (W.D. Wash. June 21,
2017)). According to plaintiff, CARRP relies on discriminatory factors, such as religion or national
origin, to determine whether someone constitutes a threat to national security. See id. (citations
omitted). If his application were to be placed in CARRP, plaintiff alleges that, even if he met all of
the statutory requirements for citizenship, his application would face “interminable delays and/or
pretextual denials.” Id. at 11. Plaintiff also fears that the “potential misuse” of his confidential
information could form the basis of his nomination to or continued placement on a government
watch list, such as the Terrorist Screening Database or the “Known or Appropriately Suspected
Terrorist” file. Id. at 12.
Plaintiff’s argument about the “potential” misuse of his confidential information is not
sufficient to establish clear error. As a preliminary matter, it is “well-established that the Federal
Rules of Civil Procedure create no automatic prohibition against using discovery obtained in one
litigation” for outside purposes. Duling, 266 F.R.D. at 75–76 (citing Dove v. Atl. Capital Corp., 963
F.2d 15, 19–20 (2d Cir. 1992)). Nevertheless, Judge Bloom exercised her discretion to enter a
protective order, providing plaintiff with a layer of protection to which he was not entitled by law.
More importantly, plaintiff’s arguments about the possible impact that the sharing of his
information may have on his naturalization application are wholly conjectural. Leaving aside the
possibility that plaintiff’s information may not merit protection—that is, that it may not in fact be
“innocuous” as plaintiff claims—plaintiff’s allegations about CARRP and government watch lists are
not well supported. For example, as a basis for his conclusions about CARRP, plaintiff cites Wagafe
v. Trump, an opinion from the Western District of Washington. See Pl.’s Objs. at 10–12. But that
opinion was not a judicial adjudication of the merits of the program. See Wagafe, 2017 WL 2671254,
at *1. Rather, because it was dealing with a motion to dismiss, the court assumed that the plaintiff’s
recitation of the facts was true—as it was required to do—without deciding that they were. Id. While
the allegations about CARRP articulated in that case and that plaintiff adopts are unquestionably
troubling, I will not accept as true that which another court was obligated to accept as true because
of the procedural posture of that case. Moreover, plaintiff is alleging a civil rights violation—he is
not challenging the legality of either CARRP or the aforementioned government watch lists.
Even if plaintiff’s concerns about these programs are well-founded, plaintiff has not shown
that he is likely to be subject to them. Plaintiff argues that under the Protective Order, “there is a
real risk” that he “would be unable” to stop defendants from sharing information with USCIS “that
could land” plaintiff’s naturalization application in CARRP, which could result in “interminable
delays and/or pretextual denials.” Pl.’s Objs. at 10–11. In other words, plaintiff is arguing that if
defendants refuse his request to not disseminate his information outside of this litigation and if
Judge Bloom also denies his request, defendants might share his information with USCIS, which then
might transfer plaintiff’s naturalization application into CARRP, which may result in delays in the
processing of his application. Plaintiff employs similarly attenuated logic with respect to the
possibility that the sharing of his confidential information could land him on a watch list—even
though, as plaintiff concedes, he may already be on a watch list. See Pl.’s Objs. at 12.
The injuries plaintiff fears are simply too speculative to warrant reversal of Judge Bloom’s
order. Even if plaintiff could show that defendants’ sharing his information beyond this litigation
would be harmful, he cannot show that Judge Bloom will authorize defendants to share anything:
the procedure in Paragraph 14 requires Judge Bloom to assess the government’s asserted need to
disclose a specific piece of information in light of the reasons plaintiff asserts for resisting the
disclosure of that specific piece of information. Because no discovery has been exchanged and Judge
Bloom has made no rulings, plaintiff—and I—can only guess what decision she will make about a
specific piece of information. Cf. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 413 (2013) (explaining
that courts are reluctant to guess “how independent decisionmakers will exercise their judgment”).
Given the prospective nature of plaintiff’s claims, I cannot conclude that Judge Bloom clearly erred
in finding that the Protective Order sufficiently protects plaintiff’s interests—there is no evidence to
suggest that it does not. See HSqd, LLC v. Morinville, No. 3:11CV1225 (WWE), 2013 WL 1149944, at
*3 (D. Conn. Mar. 19, 2013) (declining to enter a protective order where “defendant’s alleged
example of injury is rife with speculative language (i.e., ‘may’, ‘potential’, ‘could’), which is far from
the ‘particular and specific demonstration of fact required by Rule 26(c)” (citation omitted)).
The speculative nature of the injury plaintiff alleges distinguishes this case from many that he
cites. For example, in United States v. $557,933.89, More or Less in U.S. Funds, the court granted the
defendant’s motion for a stay of discovery in a civil forfeiture case because, absent the stay, the
defendant would “be confronted with the Hobson’s choice of answering the complaint and the
Government interrogatories, thereby waiving [his] Fifth Amendment right not to incriminate
[himself] . . . or refusing under the Fifth Amendment to answer the complaint and interrogatories, in
which case [his] property [would] be forfeited.” No. 95-CV-3978 (JG), 1998 WL 817651, at *3
(E.D.N.Y. Mar. 2, 1998) (alterations in original) (quoting United States v. Certain Real Property and
Premises Known as 1344 Ridge Road, Laurel Hollow, Syosset, New York, 751 F. Supp. 1060, 1061
(E.D.N.Y. 1989)). In that case and other civil forfeiture cases that plaintiff cites, the civil and
criminal actions involved the same subject matter: the information the government requested
necessarily implicated the defendant’s parallel criminal case or a likely criminal investigation. See id. at
*4; Certain Real Property, 751 F. Supp. at 1063 (“[T]he information sought to be extracted presents ‘a
realistic threat of incrimination’ . . . as distinguished from a ‘mere imaginary possibility.’”) (alteration
in the original) (quoting United States v. U.S. Currency, 626 F.2d 11, 14 (6th Cir. 1980)); Brock v. Tolkow,
109 F.R.D. 116, 119 (E.D.N.Y. 1985) (“A stay of civil proceedings is most likely to be granted where
the civil and criminal actions involve the same subject matter . . . and is even more appropriate when
both actions are brought by the government.”). Here, by contrast, I am confronted with only
hypotheticals, i.e. some unidentified piece of information may negatively impact plaintiff in some
way that relates to his immigration status. Additionally, as the courts in those cases acknowledged,
their decisions to grant stays were discretionary—a contrary result would not have been clearly
erroneous. See US v. $557,933.89, 1998 WL 817651, at *4; Brock, 109 F.R.D. at 120–121.
Plaintiff argues that his concerns about his application being placed in CARRP are “wellfounded,” not hypothetical, because the defendants have already sought information that seems
related to immigration concerns, rather than to their defense in this litigation. Pl.’s Objs. at 11. As
plaintiff recognizes, to the extent defendants ask “irrelevant” questions, plaintiff may object on
relevance grounds. See id. at 11–12 n.3. This case is about what defendants did and what defendants
knew when they stopped plaintiff at the border and seized his phone. I trust that Judge Bloom’s
rulings on any relevance objections will reflect that. Cf. In re Six Grand Jury Witnesses, 979 F.2d 939,
943 (2d Cir. 1992) (“[A]ccording the discovery rules liberal treatment does not license opposing
counsel to discover anything and everything.”); Barrera v. Boughton, No. 3:07CV1436 (RNC), 2010
WL 1240904, at *4 (D. Conn. Mar. 19, 2010) (“[P]laintiffs’ immigration status and alienage [was] not
probative of facts the defendants knew at the time of detention or arrest and, therefore . . . [was] not
relevant to whether the defendants had reasonable suspicion or probable cause”).
Most importantly, to the extent plaintiff’s fears about how his information may be misused
are justified, Judge Bloom has adopted a procedure that allows plaintiff to object to the
dissemination of his information before it can be shared beyond the present litigation. See Paragraph
14. Once plaintiff objects, which he may do simultaneously with his disclosure of the information,
defendants’ ability to share the confidential information beyond the scope of the litigation ceases. Id.
If defendants accede to plaintiff’s request not to further disclose the information in question, that is
the end of the matter. Id. If they do not, plaintiff can bring the issue to Judge Bloom’s attention. Id.
At that point, the parties would be on equal footing to argue their positions and Judge Bloom can
rule on specific disputes about the dissemination of specific pieces of information in the specific
context of this case. Cf. Sherwin-Williams Co. v. Spitzer, No. 1-04CV185 (DNH/RFT), 2005 WL
2128938, at *11 (N.D.N.Y. Aug. 24, 2005) (“[T[he trial judge is armed with discretion ‘to determine
whether to limit the boundaries of discovery in light of the relevant facts and circumstances of a
particular case.’”) (quoting Gelb v. Am. Tel. & Tel. Co., 813 F. Supp. 1022, 1034 (S.D.N.Y. 1993)). By
mandating this procedure, Judge Bloom has ensured that plaintiff has the opportunity to object and
be heard before his confidential information can be disseminated. 3
The procedure Judge Bloom set in place is much like that which the Special Master in U.S. v.
Education Management LLC suggested and the district court adopted. No. 2:07-CV-00461, 2013 WL
1568060, at *9 (W.D. Pa. Mar. 14, 2013), report and recommendation adopted, No. 2:07-CV-461, 2013 WL
1601346 (W.D. Pa. Apr. 12, 2013). There, the United States asked the court to include a provision in
the protective order that would allow it to disclose confidential information to other federal agencies
if the information related “to any potential violation of statute or regulation that falls within the
agency’s jurisdiction.” Id. at *8. According to the United States, this was necessary so “the Executive
[could] be sure that it [was] enforcing the laws uniformly.” Id. The Special Master refused to
recommend such broad disclosure rights because, under this proposal, the government alone would
make the necessary determinations and the defendant would have no opportunity to object. Id. at *9.
As the Special Master explained, the United States’ proposal would not allow the defendants “to
object to the disclosure; to seek judicial review of that disclosure; or to obtain a determination of
In addition, plaintiff’s contention that “[b]y default, under the Protective order, all of Mr. Janfeshan’s
confidential information . . . would . . . be disseminated throughout the federal government for use outside of
this litigation” is false—or, at the very least, misleading. Pl.’s Objs., at 1. As defendants explain in their brief,
government agencies do not have an “unfettered ability” to disclose an individual’s sensitive information to
other agencies, whether that person is a litigant or not. Defs.’ Opp’n at 19 (citing numerous statutes including
the Privacy Act, 5 U.S.C. § 552a and restrictions on sharing tax returns, 26 U.S.C. §§ 6013 and 6105). Just as
defendants want the ability to use the information gleaned in discovery for purposes authorized by law, they
are constrained by law in what they can do with that information.
whether the material relates to such a ‘potential violation of statute or regulation,’ or whether the
alleged violation ‘falls within the agency’s jurisdiction.’” Id. Although the Special Master expressed
reservations about the government’s ability to share confidential information without identifying a
specific need, his fears were assuaged by placing “a check on [the government’s] determination.” Id.
Such a check exists here, too.
Plaintiff argues that, even with the ability to object, he faces the greater burden of being the
one to lodge the objection. See Pl.’s Objs. at 2, 13, 14. According to plaintiff, defendants should have
to petition the court to share plaintiff’s confidential information, not the other way around. Id. at 13.
I do not find this argument persuasive. Although being the first to object carries with it some extra
burden, I am not left with “the definite and firm conviction” that the procedure Judge Bloom
adopted will be so unduly burdensome for the plaintiff so as to constitute a “mistake.” Easley, 532
U.S. at 242. Under the Protective Order, both parties will have to present their respective positions
to the court for resolution regardless of which party makes the initial objection. If plaintiff
designates “innocuous” information as “confidential” and then objects to its dissemination, I agree
with defendants that plaintiff’s heavy burden will be his own doing. Defs.’ Opp’n at 13.
Furthermore, in the context of discovery, the party that wishes to keep information
confidential must move to do so. See Fireman’s Fund Ins. Co. v. Great Am. Ins. Co. of N.Y., 284 F.R.D.
132, 135 (S.D.N.Y. 2012) (“Once relevance has been shown it is up to the responding party to
justify curtailing discovery.” (quoting Trilegiant Corp. v. Sitel Corp., 275 F.R.D. 428, 431 (S.D.N.Y.
2011)). While it is true, as plaintiff argues, that he has already designated as confidential the
information in question, see Pl.’s Objs. at 1–2, it is also true, as defendants argue, that plaintiff can
unilaterally designate anything as confidential, see Defs. Opp’n at 20. Therefore, even if plaintiff
labels something as “confidential,” he does not have to make a showing of good cause to the court
unless defendants object to the designation in the first instance. Protective Order ¶ 5. Here, where
the parties have allowed each other to unilaterally designate information as confidential, it does not
seem that either side contests the other’s ability to shield information from the public. Their debate
seems to concern only whether defendants can share plaintiff’s information within the government.
If that is so, plaintiff’s sole burden, if any, would be to justify maintaining the confidentiality of his
information in the context of intra- and inter-governmental sharing—nothing more.
Plaintiff is correct that Judge Bloom could have entered a protective order that shifted the
burden to the government. Indeed, other courts have done so. See, e.g., Raytheon Aircraft Co. v. United
States, No. 05-2328-JWL, 2007 WL 4300221, at *9 (D. Kan. Dec. 8, 2007); United States v. Univ. Hosp.,
Inc., No. 1:05-CV-445, 2006 WL 2612631, at *4 (S.D. Ohio July 28, 2006). But that decision was
within Judge Bloom’s “broad discretion” to make. See In re Zyprexa Injunction, 474 F. Supp. 2d 385,
413 (E.D.N.Y. 2007) (“Courts are endowed with broad discretion to tailor protective orders to the
circumstances of a particular litigation.”) (citing Seattle Times, 467 U.S. at 36). It also would be within
Judge Bloom’s “broad discretion” to modify the Protective Order if she determines that the burden
is inefficiently or unfairly allocated. See id; see also U.S. v. Education Management, 2013 WL 1568060, at
*4 (recommending that the Special Master be allowed to “reevaluate the procedure” set in place if it
becomes clear that the procedure unduly burdened the defendants). But, given the absence of
concrete information available to Judge Bloom when she entered the Order of December 1, her
finding that the Protective Order sufficiently protects plaintiff’s interests was not clearly erroneous.
B. To the Extent that Judge Bloom Relied on Defendants’ Justifications for
Including Paragraph 14 in the Protective Order, She Did Not Clearly Err.
Defendants justify their need for Paragraph 14 on the grounds that there are laws and
policies that either require or authorize defendants to share certain information obtained in
discovery with other federal agencies or within DHS. See Defs.’ Opp’n at 13–16. They argue that
without Paragraph 14, the Protective Order would block them from doing what they must or can
do. Id. Plaintiff argues that, to the extent Judge Bloom relied on defendants’ representations in
deciding to enter the Protective Order, she clearly erred. Pl.’s Objs. at 3. Specifically, plaintiff claims
that the government is not required to share information internally or that, if it is, Judge Bloom
committed clear error by deferring “to the mere possibility that information may need to be shared.”
Id. at 14. Plaintiff also contends that his privacy interests outweigh whatever authorization the
government has to share his information. See id. Defendants respond that if they “become aware of
unlawful conduct, they cannot simply ignore it.” Defs. Opp’n at 16. They also suggest that plaintiff
should not be allowed to bring a lawsuit and ask for immunity in case discovery reveals unfavorable
information. See id. at 19.
Although I cannot divine whether defendants will have cause to disclose plaintiff’s
information within the federal government, I cannot conclude that Judge Bloom clearly erred on the
basis that defendants did not articulate sufficient reasons for including Paragraph 14 in the
Protective Order. Contrary to plaintiff’s assertions, there are laws that may require defendants to
share certain information within DHS and with other federal agencies. See id. at 13–16. For example,
the Homeland Security Act states that “[t]he Secretary [of Homeland Security] . . . shall work to
ensure that intelligence or other information relating to terrorism to which the Department [of
Homeland Security] has access is appropriately shared with the [relevant] elements of the Federal
Government . . . as well as with State and local governments, as appropriate.” 6 U.S.C. § 122(d)(2)).
And the Intelligence Reform and Terrorism Protection Act states that “[t]he head of each
department or agency that possesses or uses intelligence or terrorism information . . . or otherwise
participates . . . in the [Information Sharing Environment4] shall . . . ensure full department or
agency compliance with information sharing policies, procedures, guidelines, rules and
standards . . . .” 6 U.S.C. § 485(i). Therefore, although I have no way of knowing if these laws will be
The term “information sharing environment” is defined as “an approach that facilitates the sharing of
terrorism and homeland security information.” 6 U.S.C. § 485(a)(3).
relevant here, this is not a case where a government entity seeks access to information absent any
statutory or common law basis. Cf. U.S. v. Education Management, 2013 WL 1568060, at *7. Nor is this
a case where an agency tries to intervene in a lawsuit to bypass having to do its own discovery. See
Daniels v. City of New York, 200 F.R.D. 205, 206 (S.D.N.Y. 2001); see also Massachusetts v. Mylan
Laboratories, Inc., 246 F.R.D. 87, 91 (D. Mass. 2007) (refusing to modify a protective order where the
purpose of modification would be to allow other states and the federal government to identify
“possible claims against possible defendants”).
At this point, this is also not a case where the government seeks to disclose information that
has traditionally been treated as private, such as tax returns or health information. Compare Defs.’
Opp’n at 16 (noting that plaintiff does not “explain how information that he provides about his
marital history, travel history, or residential addresses is ‘sensitive’ or could be misused against him”),
with United States v. Univ. Hosp., Inc., 2006 WL 2612631, at *3 (“[T]he government’s broadly stated
and ill-defined interests in health oversight and law enforcement do not, in the present case,
outweigh the privacy concerns behind HIPAA and FERPA.”), and United States v. Epstein, No. 96
CIV. 8307 (DC), 1998 WL 67676, at *1–2 (S.D.N.Y. Feb 19, 1998) (refusing to enter a protective
order that allowed the intra-governmental sharing of the defendant’s private tax information).
Plaintiff’s repeated characterization of his confidential information as “innocuous” notwithstanding,
it is understandable that defendants cannot conclusively say whether these laws require them to
share plaintiff’s information before they know what the information will be.
Even if they are not required to disclose plaintiff’s information, defendants argue that they
should be allowed to share plaintiff’s information as they would otherwise be “authorized to do by
law.” Defs.’ Opp’n at 13. Implicit in this argument is that plaintiff should not be permitted to bring a
lawsuit and then ask for immunity—or, more specifically, to bring a lawsuit and forbid defendants
from acting on discovered information indicating criminality or affecting his citizenship application.
See Defs.’ Opp’n at 16. Defendants assert that they are agencies “whose missions include law
enforcement activities”—and, more specifically, responsibilities related to immigration. Id.
While courts are—and should be—sensitive to the gratuitous disclosure of information
related to one’s immigration status, see, e.g., Aguilar v. ICE, No. 07 Civ. 8824 (JGK) (FM), 2009 WL
1789336, at *5 (S.D.N.Y Jun. 23, 2009), I cannot conclude that Judge Bloom clearly erred by
including in the Protective Order a provision that allows her to adjudicate on a case-by-case basis
whether defendants can disclose plaintiff’s information as they “would otherwise be authorized to
do by law.” Paragraph 14. Plaintiff commenced this action. Like all potential civil litigants, he must
contend with the risks of bringing a lawsuit and engaging in discovery—risks that, here, have been
substantially mitigated by the procedure Judge Bloom outlined in Paragraph 14. Cf. United States v.
Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 82 (2d Cir.
1995) (“Though constitutionally protected, a civil litigant’s invocation of the privilege against selfincrimination during the discovery process is far from costless.”).
If it becomes clear during discovery that defendants are using the Protective Order to harass
plaintiff, the Protective Order should be modified. See Dove, 963 F.2d at 19. But, if defendants seek
information that is relevant to the litigation and that also relates to plaintiff’s naturalization
application—which is a very big “if”— I cannot say that it would be unreasonable for Judge Bloom
to allow defendants to consider the information or to share it within defendants’ component
entities. 5 See Cipollone v. Liggett Group, 113 F.R.D. 86, 91 (D.N.J. 1986) (“So long as the initial
I am not persuaded by plaintiff’s argument that Judge Bloom clearly erred because defendants have other
means of obtaining information besides civil discovery. See Pl.’s Objs. at 12. If the information defendants
seek is relevant to this litigation and also relates to plaintiff’s naturalization application, plaintiff does not
suffer a harm by virtue of DHS—a defendant—obtaining the information more efficiently than it otherwise
would if it had sought the information through other means, such as immigration interviews. This situation is
not analogous to one where a government entity that is not a party to the lawsuit and that might not
otherwise come into possession of the information sought asks the court for access to discovery. See, e.g.,
Mylan, 246 F.R.D. at 91.
litigation has not itself been instituted in bad faith for the purpose of obtaining documents for other
actions, and so long as the interests of those represented in the initial litigation are being fully and
ethically prosecuted, the Federal Rules do not foreclose the collaborative use of discovery.”); see also
Saint-Jean v. Emigrant Mortg. Co., No. 11-CV-2122 (SJ) (RLM), 2015 WL 3797198, at *1 (E.D.N.Y.
June 18, 2015) (finding that, on review, a court can only conclude that a lower court “abuses its
discretion when its decision . . . cannot be located within the range of permissible decisions”
(quoting Arista Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010))). Plaintiff is not facing
deportation, see Aguilar, 2009 WL 1789336, at *4–*5, or fending off a criminal prosecution, see United
States v. Hines, 11-CV-05080 KAM) (MDG), 2012 WL 5182910, at *1 (E.D.N.Y. Oct. 17, 2012). He
is actively seeking the privilege of citizenship, a process that allows—indeed, requires—the
government to scrutinize plaintiff within legal bounds. Therefore, to the extent that Judge Bloom
relied on defendants’ arguments for including Paragraph 14 in the Protective Order, I cannot find
that plaintiff has met his burden of showing clear error.
This finding should not be read as giving defendants carte blanche to share plaintiff’s
information based on some vague invocation of law-enforcement interests. In her discretion, Judge
Bloom may prohibit defendants from disclosing plaintiff’s information because the information does
not truly implicate the laws on which defendants rely. She may also decide that, on balance, the
possibility of the information’s misuse outweighs the government’s alleged need or desire to share it.
Judge Bloom can—and, no doubt, will—carefully weigh each side’s arguments as they pertain to
specific pieces of information.
C. Judge Bloom Did Not Clearly Err on the Ground that Her Order Entering the
Protective Order Impermissibly Chilled Plaintiff’s Ability to Vindicate His
Plaintiff’s final argument regarding clear error is that he should not have to “risk the
government’s use (and potentially, its pretextual misuse) of discovered information” to vindicate his
constitutional rights. Pl.’s Objs. at 15. If I allow the Protective Order to stand, plaintiff argues that
he and others like him will be chilled from bringing similar lawsuits. See id. at 9, 17, 19. Defendants,
on the other hand, contend that “despite all of his rhetoric about wanting to vindicate his
constitutional rights,” plaintiff is the one who “derailed discovery.” Defs.’ Opp’n at 19.
Plaintiff makes an important argument about the delicate balance courts must strike between
the need for public discovery and the need to protect a litigant’s privacy. But it is impossible to strike
the right balance when the scales are empty: neither Judge Bloom nor I know the substance of the
information plaintiff seeks to protect from allegedly discriminatory government action. We also do
not know what need(s) defendants will assert for its dissemination. What presently exists is a
procedure to make future determinations, and plaintiff has not explained how the existence of this
procedure alone will chill others from bringing lawsuits to vindicate their constitutional rights.
Therefore, plaintiff has not shown that Judge Bloom’s order was clearly erroneous on the ground
that it impermissibly chilled plaintiff’s ability to vindicate his constitutional rights.
Judge Bloom’s Order Is Not Contrary to Law.
Plaintiff also argues that the Protective Order is contrary to law because it “impermissibly
forces [him] to meet a heightened and undefined standard to protect his confidential information.”
Pl.’s Objs. at 21. Plaintiff further argues that, under the Protective Order, he must prove his case for
confidentiality twice: first by meeting the good cause standard required by Federal Rule of Civil
Procedure 26 to protect information from disclosure to the public and then again when he asks the
Court to prohibit defendants from sharing his information within the federal government. See id. at
22–23. In response, Defendants contend that Judge Bloom did not violate any controlling law and
that, in practice, plaintiff would have to meet the standard for preventing disclosure of confidential
information only once. Defs.’ Opp’n at 20.
Plaintiff has not proven that the Protective Order is contrary to law. As plaintiff is aware,
Judge Bloom has not indicated what standard she will apply to an application plaintiff makes
pursuant to Paragraph 14, so it is premature to argue that it will somehow be heightened. In fact,
plaintiff cannot show that Judge Bloom will not apply the good cause standard articulated in Federal
Rule of Civil Procedure 26, which plaintiff concedes that he must meet regardless in order to keep
his information confidential from the public. As discussed earlier, it seems unlikely that defendants
will object to plaintiff’s initial designation of his information as confidential; neither party has
suggested that it wishes to prevent the other from keeping information confidential from the public.
They appear to dispute only whether defendants can share plaintiff’s information within the federal
government. Therefore, if plaintiff does not have to make an actual showing of good cause to the
court in the first instance—above and beyond unilaterally stamping his papers “confidential”—
Judge Bloom may very well use the good cause standard when assessing an application that plaintiff
makes under Paragraph 14. This would mean that plaintiff would have to meet the standard for
preventing disclosure of his confidential information only once. In any event, it is currently
impossible to know what the defendants or Judge Bloom will do, and I cannot conclude that Judge
Bloom failed to apply or misapplied controlling authority when she has not yet been asked to rule.
Finally, it is neither illegal nor illogical for Judge Bloom to wait until she has specific
information to determine the correct standard for resolving these discovery disputes. Only when she
better understands the values that she needs to balance in specific instances—what harm(s) plaintiff
may face if certain information is disclosed and what need(s) defendants have for disclosing that
information—can she determine what the appropriate standard should be. As defendants note,
“[t]here is no requirement (in controlling law or elsewhere) that the legal standards that the court will
apply to a hypothetical future application for a protective order regarding specific information be set
forth in an order.” Defs.’ Opp’n at 20–21. Therefore, plaintiff has failed to show that Judge Bloom’s
order entering the Protective Order was contrary to law.
For the foregoing reasons, I affirm Judge Bloom’s December 1 order entering a Protective
Order and overrule plaintiff’s objections. The parties are directed to proceed with discovery.
Allyne R. Ross
United States District Judge
February 7, 2018
Brooklyn, New York
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