Tobey v. Napolitano et al

Filing 24

Consent MOTION for Protective Order by Janet Napolitano, John S. Pistole. (Attachments: # 1 Proposed Order)(Meier, Robin)

UNITED STATES' UNOPPOSED MOTION
FOR STIPULATED PROTECTIVE ORDER

EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AARON TOBEY,

)
)
Plaintiff,
)
)
v.
)
)
JANET NAPOLITANO, et al.,
)
)
Defendants.
)
____________________________________)

Civil Action No. 3:11cv154-HEH

PROPOSED STIPULATED PROTECTIVE ORDER
Upon consideration of the United States’ Unopposed Motion for Stipulated Protective
Order, IT IS HEREBY ORDERED as follows:
1. For purposes of this Order, (a) “Protected Information” shall be the names of the
individual Transportation Security Officers to be identified by the United States no later than
May 23, 2011 and who will be named as “Jane Smith” or “John Smith” or similar nomenclature
in Plaintiff’s Amended Complaint; and (b) “attorneys of record” shall mean individual attorneys
of record and/or attorneys whose names appear on pleadings in this case, but shall not include the
law firm or organization with which any individual attorney is affiliated.
2. Except as otherwise ordered by this Court or provided herein, Protected Information
may be disclosed only to the following persons: (a) attorneys of record for the parties in this case;
(b) a party or parties, should his or their attorneys of record determine that such disclosure is
necessary for the prosecution of this action; (c) any persons regularly in the employ of, or persons
contracted to perform services for, attorneys of record for the parties to the extent reasonably
necessary for the prosecution of this action, including court reporters and/or court reporting

firms; (d) attorneys of record for the United States in this case; (e) persons regularly in the
employ of attorneys of record for the United States to the extent reasonably necessary to render
professional services in this case; (f) employees of federal agencies as deemed necessary by
attorneys of record for the United States; and (g) this Court and its support personnel who are
involved in this case.
3. Except as provided herein, no person having access to Protected Information shall
make any disclosure of Protected Information without further Order of the Court.
4. Except as provided herein, no person having access to Protected Information
pursuant to paragraph 2 (a)-(c) above shall use or disclose Protected Information for any purpose
other than prosecuting this action. Prosecuting this action does not include contacting directly
or indirectly in any manner, except through attorneys of record for the United States, any of the
persons whose names are identified as Protected Information, and who are or will be represented
parties.
5. Except for the individuals described in paragraph 2 (d )-(g) above, all individuals to
whom Protected Information is disclosed shall be informed of and shall agree with the terms of
this Order; shall not disclose or use the Protected Information except in compliance with this
Order; and shall, before receiving Protected Information, acknowledge their agreement to comply
with this Order by signing a copy of the attached acknowledgment form (the Acknowledgment”).
A copy of each such Acknowledgment must be provided promptly after its execution to the lead
attorney of record for the United States.
6. This order shall remain in effect while any dispositive motions filed by defendants
are pending; thereafter, each party reserves the right to move to modify the terms of this
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Protective Order at any time. If, after the resolution of dispositive motions, this case proceeds to
discovery against any or all of the individuals described in paragraph (1) above, the parties will
revisit the terms of the Protective Order to determine if the protections are still warranted. Each
party also reserves the right to move for additional protections of any documents or information
at any time.
7. Any documents, briefs, or other materials containing Protected Information shall
be filed publicly with the Protected Information redacted or otherwise concealed through the use
of a pseudonym.
8. If necessary, as a supplement to the public filing of any documents, briefs, or other
materials concealing Protected Information through the use of a pseudonym or redactions, a party
may file under seal said briefs, documents, or other materials containing the Protected
Information without concealment. Neither any party nor any third party may use Protected
Information in open Court, orally or through documents, without first obtaining the written
consent of the Department of Justice or an Order from the Court ruling that the Protected
Information is relevant and may be publicly disclosed.
9. Except as provided herein, within ninety (90) days of the conclusion of this case
(including any appeals), those portions of documents, discovery requests, discovery responses,
transcripts, and other materials, and all copies thereof, containing Protected Information
(“Protected Information Portions”) must be destroyed or deleted by persons executing the
Acknowledgment. Within ninety (90) days of the conclusion of this case and any appeals,
Plaintiff’s attorneys of record and any other person executing the Acknowledgment must certify
in writing that the Protected Information Portions, and all copies thereof, have been destroyed or
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deleted. Notwithstanding the foregoing provisions of this paragraph, no person is required to
destroy any document that has been publicly filed with this Court or with a court of appeals of
competent jurisdiction in connection with this case; further, this paragraph does not apply to the
United States, its employees, its attorneys. or persons hired or in the employ of its attorneys; or to
this Court or its support personnel.
10. Neither the United States nor any of its officers, employees, or attorneys shall bear
any responsibility or liability under the Privacy Act for any unauthorized disclosure of any
Protected Information obtained under this Order.
11. The Plaintiff’s consent to this Order is given to avoid burdening the Court with
unnecessary litigation and to effect economy in the judicial process, and shall not be deemed to
be a concession by Plaintiff that there is any legal necessity for this protective order, and/or that
the desire to avoid publicizing the names of the TSOs justifies entry of the Order. This Order
also does not constitute any ruling on the question of whether any particular document or
category of information is properly discoverable and does not constitute any ruling on any
potential objection to the discoverability, relevance, or admissibility of any document or
information. Nor does this Order constitute any ruling on the question of whether the United
States may withhold any particular document or category of information on the basis of privilege.
12. This Order does not apply to any information or documents other than the
Protected Information as defined in paragraph 1.
SO ORDERED.
Dated: _____________________

__________________________
HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
AARON TOBEY,

)
)
Plaintiff,
)
)
v.
)
)
JANET NAPOLITANO, et al.,
)
)
Defendants.
)
____________________________________)

Civil Action No. 3:11cv154-HEH

ACKNOWLEDGMENT OF STIPULATED PROTECTIVE ORDER
I, _________________________, hereby acknowledge that I have read and understand
the Stipulated Protective Order ("Order") entered in this action. I hereby agree to be bound by
the terms of the Order. Specifically,
1.

I agree that I will use the Protected Information as defined in the Order only for

purposes of this litigation, including any appeals, and not for any other purpose of any kind;
2.

I agree that records containing the Protected Information, and all copies thereof

protected by the Order, may not be removed from, or reviewed outside of, the facility in which
the said records are stored by attorneys of record, except to the extent said records are (a) sent to
the Court for filing; (b) in the possession of attorneys of record for use in the litigation; (c) in the
possession of any court reporter and/or court reporting firm for use in the litigation; (d) sent to
the expert witness(es) or litigation consultant(s) retained or hired by the parties; or (e) returned to
attorneys of record for the United States.
3.

I agree that those portions of records containing Protected Information, as defined

in the Order, and all copies thereof, shall be destroyed or deleted within 90 days after the

termination of this litigation. I agree that, if I destroy or delete Protected Information, I will so
certify in writing to attorneys of record for the United States within 90 days after the termination
of this litigation;
4.

I agree that, subject to the restrictions in paragraph 8 of the Order and paragraph 2

above, I may disclose records and information containing Protected Information protected by the
Order only to the Court, the parties to this action and their attorneys of record, persons regularly
in the employ of such attorneys, and any experts or consultants and/or court reporters or court
reporting firms hired for this case by attorneys of record and who (except the Court) have signed
an acknowledgment like this one and have a need for such information to perform duties
specifically related to the conduct of this litigation;
5.

Should I wish to disclose records containing Protected Information that are subject

to the Order to any additional persons except those indicated in the Order and herein, I will first
seek consent from attorneys of record for the United States;
6.

I agree that those portions of any filings with the Court which include records

containing Protected Information protected by the Order shall be filed under seal;
7.

I hereby confirm that my duties under this Acknowledgment shall survive the

termination of this case and are binding upon me for all time; and

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8.

I hereby consent to the personal jurisdiction of the United States District Court for

the Eastern District of Virginia in the above-captioned case for the purpose of enforcing the
aforementioned Order.

[signature]

[print name]
Dated:

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