Opinion

Gabriela Solano v. U.S. Immigration and Customs Enforcement

Court
District Court, C.D. California
Filed
Nov 12, 2021
Cited by
0 cases
Authority
More cited than 18.0%

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

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7 UNITED STATES DISTRICT COURT

8 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

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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

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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.

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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.

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9 || DATED: November 12, 2021

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ll 7 Saun A: Kosensm

2 HON. KAREN L. STEVENSON

United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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15 GABRIELA SOLANO, on behalf of Case No. 2:21-cv-01576-AB (KSx)

herself and those similarly situated,

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Plaintiff,

17 STIPULATED PROTECTIVE

v. ORDER

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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,

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24 Defendants.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based

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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.

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9 AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND

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MODIFIED BY THE COURT1

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1. A. PURPOSES AND LIMITATIONS

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Discovery1 in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the Court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does

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not confer blanket protections on all disclosures or responses to discovery and that

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the protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable

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legal principles. The parties further acknowledge, as set forth in Section 12.3, below,

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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.

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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

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5.1 Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under this

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Order must take care to limit any such designation to specific material that qualifies

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under the appropriate standards. The Designating Party must designate for protection

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only those parts of material, documents, items, or oral or written communications that

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qualify so that other portions of the material, documents, items, or communications

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for which protection is not warranted are not swept unjustifiably within the ambit of

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this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to impose

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unnecessary expenses and burdens on other parties) may expose the Designating Party

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to sanctions.

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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.

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6.2 Meet and Confer. The Challenging Party shall initiate the dispute

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resolution process under Local Rule 37.1 et seq.

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6.3 The burden of persuasion in any such challenge proceeding shall be on

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the Designating Party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has waived

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or withdrawn the confidentiality designation, all parties shall continue to afford the

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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:

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(a) the Receiving Party’s Outside Counsel of Record in this Action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably necessary

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to disclose the information for this Action;

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(b) the officers, directors, and employees (including House or Agency

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this

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Action;

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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(f) professional jury or trial consultants, mock jurors, and Professional

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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.

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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

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OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall

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include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to

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issue in the other litigation that some or all of the material covered by the subpoena

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or order is subject to this Protective Order. Such notification shall include a copy of

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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.

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8. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a Non-

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Party in this Action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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construed as prohibiting a Non-Party from seeking additional protections.

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(b) In the event that a Party is required, by a valid discovery request, to

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produce a Non-Party’s confidential information in its possession, and the Party is

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subject to an agreement with the Non-Party not to produce the Non-Party’s

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confidential information, then the Party shall:

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(1) promptly notify in writing the Requesting Party and the Non-

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Party that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;

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(2) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this Action, the relevant discovery request(s), and a reasonably

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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.

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10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or

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persons to whom unauthorized disclosures were made of all the terms of this Order,

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and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,

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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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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.

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14 DATED: November 12, 2021 Respectfully submitted,

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AMERICAN CIVIL LIBERTIES

16 UNION FOUNDATION OF

NORTHERN CALIFORNIA

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18 /s/ Vasudha Talla

VASUDHA TALLA

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20 Attorney for Plaintiff

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22 Dated: November 12, 2021 Respectfully submitted,

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BRIAN M. BOYNTON

24 Acting Assistant Attorney General

Civil Division

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26 WILLIAM C. PEACHEY

Director, District Court Section

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Office of Immigration Litigation

1 LAUREN C. BINGHAM

Senior Litigation Counsel

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3 /s/ Joseph A. Darrow

JOSEPH A. DARROW

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Trial Attorney

5 U.S. Department of Justice, Civil Div.

Office of Immigration Litigation-DCS

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P.O. Box 868, Ben Franklin Station

7 Washington, DC 20044

(202) 598-7537

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Joseph.a.darrow@usdoj.gov

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Attorneys for Defendants

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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