distinguishing “good cause” 10 showing for sealing documents produced in discovery from “compelling reasons” 11 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 10 showing for sealing documents produced in discovery from “compelling reasons” 11 standard when merits-related documents are part of court record
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
8 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
9
10 GABRIELA SOLANO, on behalf of Case No. 2:21-cv-01576-AB (KSx)
herself and those similarly situated,
11 [PROPOSED] ORDER GRANTING
Plaintiff, JOINT MOTION FOR ENTRY OF
12 STIPULATED PROTECTIVE
vs. ORDER
13
U.S. IMMIGRATION AND
14 CUSTOMS ENFORCEMENT; TAE D.
JOHNSON, Acting Director of U.S.
15 Immigration and Customs Enforcement;
DAVID MARIN, Director of Los
16 Angeles Field Office, U.S. Immigration
and Customs Enforcement; DAVID
17 JENNINGS, Director of San Francisco
Field Office, U.S. Immigration and
18 Customs Enforcement,
19 Defendants.
20
21
22
23
24
25
26
27
1 Having considered the parties’ Joint Motion for Entry of Stipulated Protective
2 || Order, the parties’ Stipulated Protective Order (attached), all attachments thereto, and all
3 || other relevant documents,
4 IT IS HEREBY ORDERED:
5 The parties’ Joint Motion for Entry of Stipulated Protective Order is GRANTED.
6 || The Court approves and enters the attached Stipulated Protective Order AS MODIFIED
7 | BY THE COURT.
8
9 || DATED: November 12, 2021
10
ll 7 Saun A: Kosensm
2 HON. KAREN L. STEVENSON
United States Magistrate Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
2
3
4
5
6
7
8
9
10
11
12
UNITED STATES DISTRICT COURT
13
CENTRAL DISTRICT OF CALIFORNIA
14
15 GABRIELA SOLANO, on behalf of Case No. 2:21-cv-01576-AB (KSx)
herself and those similarly situated,
16
Plaintiff,
17 STIPULATED PROTECTIVE
v. ORDER
18
U.S. IMMIGRATION AND CUSTOMS
19 ENFORCEMENT; TAE D. JOHNSON, Honorable Karen L. Stevenson
Acting Director of U.S. Immigration and United States Magistrate Judge
20 Customs Enforcement; DAVID
MARIN, Director of Los Angeles Field
21 Office, U.S. Immigration and Customs
Enforcement; DAVID JENNINGS,
22 Director of San Francisco Field Office,
U.S. Immigration and Customs
Enforcement,
23
24 Defendants.
25
26
27
1
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based
2
on the parties’ proposed Stipulated Protective Order (“Stipulation”) filed on
3 November 11, 2021, the terms of the protective order to which the parties have
4 agreed are adopted as a protective order of this Court (which generally shall
5 govern the pretrial phase of this action) except to the extent, as set forth below,
6 that those terms have been modified by the Court’s amendment of paragraphs
7 7.2(c), (f), (h) and paragraph 10 of the Stipulation.
8
9 AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND
10
MODIFIED BY THE COURT1
11
12
1. A. PURPOSES AND LIMITATIONS
13
Discovery1 in this action is likely to involve production of confidential,
14
proprietary, or private information for which special protection from public disclosure
15
and from use for any purpose other than prosecuting this litigation may be warranted.
16
Accordingly, the parties hereby stipulate to and petition the Court to enter the
17
following Stipulated Protective Order. The parties acknowledge that this Order does
18
not confer blanket protections on all disclosures or responses to discovery and that
19
the protection it affords from public disclosure and use extends only to the limited
20
information or items that are entitled to confidential treatment under the applicable
21
legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
22
23
1 The Court’s deletions are indicated by lines through the text being deleted. The
24 Court has made no additions to the proposed text.
25 1 Defendants still maintain that discovery is not appropriate in this challenge to
administrative agency action under the Administrative Procedure Act. See Fla.
26
Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985). But to the extent that
27 the Court permits and the parties engage in discovery regardless, the parties believe
the protections of this order are necessary.
1 that this Stipulated Protective Order does not entitle them to file confidential
2 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
3 followed and the standards that will be applied when a party seeks permission from
4 the court to file material under seal.
5 B. GOOD CAUSE STATEMENT
6 This action is likely to involve confidential proprietary information for which
7 special protection from public disclosure and from use for any purpose other than
8 prosecution of this action is warranted. Such confidential and proprietary materials
9 and information consist of, among other things, personally identifiable information
10 and other immigration information protected from disclosure by the Privacy Act and
11 other federal statutes, confidential business or financial information, information
12 regarding confidential business and governmental agency practices, or other
13 confidential research, development, or commercial information (including
14 information implicating privacy rights of third parties). Accordingly, to expedite the
15 flow of information, to facilitate the prompt resolution of disputes over confidentiality
16 of discovery materials, to adequately protect information the parties are entitled to
17 keep confidential, to ensure that the parties are permitted reasonable necessary uses
18 of such material in preparation for and in the conduct of trial, to address their handling
19 at the end of the litigation, and serve the ends of justice, a protective order for such
20 information is justified in this matter. It is the intent of the parties that information
21 will not be designated as confidential for tactical reasons and that nothing be so
22 designated without a good faith belief that it has been maintained in a confidential,
23 non-public manner, and there is good cause why it should not be part of the public
24 record of this case.
25 2. DEFINITIONS
26 2.1 Action: Gabriela Solano v. U.S. Immigration and Customs
27 Enforcement, et al., No. 2:21-cv-01576-AB (KSx) (C.D. Cal.).
1 2.2 Challenging Party: a Party or Non-Party that challenges
2 the designation of information or items under this Order.
3 2.3 “CONFIDENTIAL” Information or Items: information (regardless
4 of how it is generated, stored or maintained) revealing the following:
5 (a) Information exempted from disclosure under the Privacy Act, 5 U.S.C. §
6 522a, et seq., and other federal statutes and regulations, including 8 U.S.C.
7 § 1367 and 8 C.F.R § 1208.6, or covered by Federal Rule of Civil
8 Procedure 5.2;
9 (b) Any individual’s medical information, juvenile criminal records, birth
10 date, social security number, tax identification number, alien registration
11 number (“A number”), passport numbers, driver’s license numbers,
12 contact information, and any similar numbers assigned to an individual by
13 a federal, state, or local government of the United States, including
14 Originating Agency Identification (ORI) Numbers; and
15 (c) Business, commercial, proprietary, or financial information or practices,
16 including contracts and contract-related documents.
17 2.4 Counsel: Outside Counsel of Record and House or Agency
18 Counsel (as well as their support staff).
19 2.5 Designating Party: a Party or Non-Party that designates information
20 or items that it produces in disclosures or in responses to discovery as
21 “CONFIDENTIAL.”
22 2.6 Disclosure or Discovery Material: all items or information,
23 regardless of the medium or manner in which it is generated, stored, or maintained
24 (including, among other things, testimony, transcripts, and tangible things), that are
25 produced or generated in disclosures or responses to discovery in this matter.
26 2.7 Expert: a person with specialized knowledge or experience in a
27 matter pertinent to the litigation who has been retained by a Party or its counsel to
1 2.8 House or Agency Counsel: attorneys who are employees of a party
2 to this Action. House (or Agency) Counsel does not include Outside Counsel
3 of Record or any other outside counsel.
4 2.9 Non-Party: any natural person, partnership, corporation, association,
5 or other legal entity not named as a Party to this action.
6 2.10 Outside Counsel of Record: attorneys who are not employees of a
7 party to this Action but are retained to represent or advise a party to this Action and
8 have appeared in this Action on behalf of that party or are affiliated with a law firm
9 which has appeared on behalf of that party, and includes support staff.
10 2.11 Party: any party to this Action, including all of its officers, directors,
11 employees, consultants, retained experts, and Outside Counsel of Record (and their
12 support staffs).
13 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
14 Discovery Material in this Action.
15 2.13 Professional Vendors: persons or entities that provide litigation
16 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
17 demonstrations, and organizing, storing, or retrieving data in any form or medium)
18 and their employees and subcontractors.
19 2.14 Protected Material: any Disclosure or Discovery Material that is
20 designated as “CONFIDENTIAL.”
21 2.15 Receiving Party: a Party that receives Disclosure or Discovery
22 Material from a Producing Party.
23 3. SCOPE
24 The protections conferred by this Stipulation and Order cover not only
25 Protected Material (as defined above), but also (1) any information copied or
26 extracted from Protected Material; (2) all copies, excerpts, summaries, or
27 compilations of Protected Material; and (3) any testimony, conversations, or
1 Any use of Protected Material at trial shall be governed by the orders of the
2 trial judge. This Order does not govern the use of Protected Material at trial.
3 4. DURATION
4 Once a case proceeds to trial, all of the information that was designated as
5 confidential or maintained pursuant to this protective order becomes public and will
6 be presumptively available to all members of the public, including the press, unless
7 compelling reasons supported by specific factual findings to proceed otherwise are
8 made to the trial judge in advance of the trial. See Kamakana v. City and County of
9 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
10 showing for sealing documents produced in discovery from “compelling reasons”
11 standard when merits-related documents are part of court record). Accordingly, the
12 terms of this protective order do not extend beyond the commencement of the trial.
13 5. DESIGNATING PROTECTED MATERIAL
14
5.1 Exercise of Restraint and Care in Designating Material for Protection.
15
Each Party or Non-Party that designates information or items for protection under this
16
Order must take care to limit any such designation to specific material that qualifies
17
under the appropriate standards. The Designating Party must designate for protection
18
only those parts of material, documents, items, or oral or written communications that
19
qualify so that other portions of the material, documents, items, or communications
20
for which protection is not warranted are not swept unjustifiably within the ambit of
21
this Order.
22
Mass, indiscriminate, or routinized designations are prohibited. Designations
23
that are shown to be clearly unjustified or that have been made for an improper
24
purpose (e.g., to unnecessarily encumber the case development process or to impose
25
unnecessary expenses and burdens on other parties) may expose the Designating Party
26
to sanctions.
27
1 If it comes to a Designating Party’s attention that information or items that it
2 designated for protection do not qualify for protection, that Designating Party must
3 promptly notify all other Parties that it is withdrawing the inapplicable designation.
4 5.2 Manner and Timing of Designations. Except as otherwise provided in
5 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
7 under this Order must be clearly so designated before the material is disclosed or
8 produced.
9 Designation in conformity with this Order requires:
10 (a) for information in documentary form (e.g., paper or electronic documents,
11 but excluding transcripts of depositions or other pretrial or trial proceedings), that the
12 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
13 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
14 portion or portions of the material on a page qualifies for protection, the Producing
15 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
16 markings in the margins).
17 A Party or Non-Party that makes original documents available for inspection
18 need not designate them for protection until after the inspecting Party has indicated
19 which documents it would like copied and produced. During the inspection and before
20 the designation, all of the material made available for inspection shall be deemed
21 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
22 copied and produced, the Producing Party must determine which documents, or
23 portions thereof, qualify for protection under this Order. Then, before producing the
24 specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
25 to each page that contains Protected Material. If only a portion or portions of the
26 material on a page qualifies for protection, the Producing Party also must clearly
27 identify the protected portion(s) (e.g., by making appropriate markings in the
1 (b) for testimony given in depositions that the Designating Party identify the
2 Disclosure or Discovery Material on the record, within two business days of the close
3 of the deposition all protected testimony.
4 (c) for information produced in some form other than documentary and for
5 any other tangible items, that the Producing Party affix in a prominent place on the
6 exterior of the container or containers in which the information is stored the legend
7 “CONFIDENTIAL.” If only a portion or portions of the information warrants
8 protection, the Producing Party, to the extent practicable, shall identify the protected
9 portion(s).
10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
11 failure to designate qualified information or items does not, standing alone, waive the
12 Designating Party’s right to secure protection under this Order for such material.
13 Upon timely correction of a designation, the Receiving Party must make reasonable
14 efforts to assure that the material is treated in accordance with the provisions of this
15 Order.
16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
18 designation of confidentiality at any time that is consistent with the Court’s
19 Scheduling Order.
20
6.2 Meet and Confer. The Challenging Party shall initiate the dispute
21
resolution process under Local Rule 37.1 et seq.
22
6.3 The burden of persuasion in any such challenge proceeding shall be on
23
the Designating Party. Frivolous challenges, and those made for an improper purpose
24
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
25
expose the Challenging Party to sanctions. Unless the Designating Party has waived
26
or withdrawn the confidentiality designation, all parties shall continue to afford the
27
material in question the level of protection to which it is entitled under the Producing
1 7. ACCESS TO AND USE OF PROTECTED MATERIAL
2 7.1 Basic Principles. A Receiving Party may use Protected Material that is
3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under the
6 conditions described in this Order. When the Action has been terminated, a Receiving
7 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
8 Protected Material must be stored and maintained by a Receiving Party at a
9 location and in a secure manner that ensures that access is limited to the persons
10 authorized under this Order.
11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
12 otherwise ordered by the court or permitted in writing by the Designating Party, a
13 Receiving Party may disclose any information or item designated
14 “CONFIDENTIAL” only to:
15
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well
16
as employees of said Outside Counsel of Record to whom it is reasonably necessary
17
to disclose the information for this Action;
18
(b) the officers, directors, and employees (including House or Agency
19
Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this
20
Action;
21
(c) Experts (as defined in this Order) of the Receiving Party to whom
22
disclosure is reasonably necessary for this Action and who have signed the
23
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
24
(d) the court and its personnel;
25
(e) court reporters and their staff;
26
(f) professional jury or trial consultants, mock jurors, and Professional
27
Vendors to whom disclosure is reasonably necessary for this Action and who have
1 (g) the author or recipient of a document containing the information or a
2 custodian or other person who otherwise possessed or knew the information;
3 (h) during their depositions, witnesses, and attorneys for witnesses, in the
4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
5 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
6 not be permitted to keep any confidential information unless they sign the
7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
8 agreed by the Designating Party or ordered by the court. Pages of transcribed
9 deposition testimony or exhibits to depositions that reveal Protected Material may
10 be separately bound by the court reporter and may not be disclosed to anyone except
11 as permitted under this Stipulated Protective Order;
12 (i) any mediator or settlement officer, and their supporting personnel,
13 mutually agreed upon by any of the parties engaged in settlement discussions; and
14 (j) any putative class member or class member to whom the information
15 pertains, and to counsel providing representation to the putative class member or
16 class member.
17
8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
18
OTHER LITIGATION
19
If a Party is served with a subpoena or a court order issued in other litigation
20
that compels disclosure of any information or items designated in this Action as
21
“CONFIDENTIAL,” that Party must:
22
(a) promptly notify in writing the Designating Party. Such notification shall
23
include a copy of the subpoena or court order;
24
(b) promptly notify in writing the party who caused the subpoena or order to
25
issue in the other litigation that some or all of the material covered by the subpoena
26
or order is subject to this Protective Order. Such notification shall include a copy of
27
this Stipulated Protective Order; and
1 (c) cooperate with respect to all reasonable procedures sought to be pursued by
2 the Designating Party whose Protected Material may be affected.
3 If the Designating Party timely seeks a protective order, the Party served with
4 the subpoena or court order shall not produce any information designated in this action
5 as “CONFIDENTIAL” before a determination by the court from which the subpoena
6 or order issued, unless the Party has obtained the Designating Party’s permission. The
7 Designating Party shall bear the burden and expense of seeking protection in that court
8 of its confidential material and nothing in these provisions should be construed as
9 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
10 directive from another court.
11
8. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
12
PRODUCED IN THIS LITIGATION
13
(a) The terms of this Order are applicable to information produced by a Non-
14
Party in this Action and designated as “CONFIDENTIAL.” Such information
15
produced by Non-Parties in connection with this litigation is protected by the
16
remedies and relief provided by this Order. Nothing in these provisions should be
17
construed as prohibiting a Non-Party from seeking additional protections.
18
(b) In the event that a Party is required, by a valid discovery request, to
19
produce a Non-Party’s confidential information in its possession, and the Party is
20
subject to an agreement with the Non-Party not to produce the Non-Party’s
21
confidential information, then the Party shall:
22
(1) promptly notify in writing the Requesting Party and the Non-
23
Party that some or all of the information requested is subject to a confidentiality
24
agreement with a Non-Party;
25
(2) promptly provide the Non-Party with a copy of the Stipulated
26
Protective Order in this Action, the relevant discovery request(s), and a reasonably
27
specific description of the information requested; and
1 (3) make the information requested available for inspection by the
2 Non-Party, if requested.
3 (c) If the Non-Party fails to seek a protective order from this court within
4 14 days of receiving the notice and accompanying information, the Receiving Party
5 may produce the Non-Party’s confidential information responsive to the discovery
6 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
7 not produce any information in its possession or control that is subject to the
8 confidentiality agreement with the Non-Party before a determination by the court.
9 Absent a court order to the contrary, the Non-Party shall bear the burden and
10 expense of seeking protection in this court of its Protected Material.
11
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
12
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
13
Protected Material to any person or in any circumstance not authorized under this
14
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
15
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
16
to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
17
persons to whom unauthorized disclosures were made of all the terms of this Order,
18
and (d) request such person or persons to execute the “Acknowledgment and
19
Agreement to Be Bound” that is attached hereto as Exhibit A.
20
11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
21
PROTECTED MATERIAL
22
When a Producing Party gives notice to Receiving Parties that certain
23
inadvertently produced material is subject to a claim of privilege or other protection,
24
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
25
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
26
may be established in an e-discovery order that provides for production without prior
27
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
1 information covered by the attorney-client privilege or work product protection, the
2 parties may incorporate their agreement in the stipulated protective order submitted
3 to the court.
4 12. MISCELLANEOUS
5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
6 person to seek its modification by the Court in the future.
7 12.2 Right to Assert Other Objections. By stipulating to the entry of this
8 Protective Order no Party waives any right it otherwise would have to object to
9 disclosing or producing any information or item on any ground not addressed in this
10 Stipulated Protective Order. Similarly, no Party waives any right to object on any
11 ground to use in evidence of any of the material covered by this Protective Order.
12 12.3 Filing Protected Material. A Party that seeks to file under seal any
13 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
14 only be filed under seal pursuant to a court order authorizing the sealing of the specific
15 Protected Material at issue. If a Party's request to file Protected Material under seal is
16 denied by the court, then the Receiving Party may file the information in the public
17 record unless otherwise instructed by the court.
18 13. FINAL DISPOSITION
19 After the final disposition of this Action, as defined in paragraph 4, within 60
20 days of a written request by the Designating Party, each Receiving Party must return
21 all Protected Material to the Producing Party or destroy such material. As used in this
22 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
23 summaries, and any other format reproducing or capturing any of the Protected
24 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
25 must submit a written certification to the Producing Party (and, if not the same person
26 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
27 category, where appropriate) all the Protected Material that was returned or destroyed
1 compilations, summaries or any other format reproducing or capturing any of the
2 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
3 archival copy of all pleadings, motion papers, trial, deposition, and hearing
4 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
5 reports, attorney work product, and consultant and expert work product, even if such
6 materials contain Protected Material. Any such archival copies that contain or
7 constitute Protected Material remain subject to this Protective Order as set forth in
8 Section 4 (DURATION).
9 14. Any violation of this Order may be punished by any and all appropriate
10 measures including, without limitation, contempt proceedings and/or monetary
11 sanctions.
12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
13
14 DATED: November 12, 2021 Respectfully submitted,
15
AMERICAN CIVIL LIBERTIES
16 UNION FOUNDATION OF
NORTHERN CALIFORNIA
17
18 /s/ Vasudha Talla
VASUDHA TALLA
19
20 Attorney for Plaintiff
21
22 Dated: November 12, 2021 Respectfully submitted,
23
BRIAN M. BOYNTON
24 Acting Assistant Attorney General
Civil Division
25
26 WILLIAM C. PEACHEY
Director, District Court Section
27
Office of Immigration Litigation
1 LAUREN C. BINGHAM
Senior Litigation Counsel
2
3 /s/ Joseph A. Darrow
JOSEPH A. DARROW
4
Trial Attorney
5 U.S. Department of Justice, Civil Div.
Office of Immigration Litigation-DCS
6
P.O. Box 868, Ben Franklin Station
7 Washington, DC 20044
(202) 598-7537
8
Joseph.a.darrow@usdoj.gov
9
Attorneys for Defendants
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27