even stipulated protective orders 4 require good cause showing
How later courts described this case
- even stipulated protective orders 4 require good cause showing
Written by the judges who cited it.
The opinion
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 1 of 19 Page ID #:389
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UNITED STATES DISTRICT COURT
8
CENTRAL DISTRICT OF CALIFORNIA
9
10 ABDIRAHMAN ADEN KARIYE, et
al., Case No. 2:22-cv-1916-FWS-GJS
11
Plaintiffs,
12 [PROPOSED] STIPULATED
v. PROTECTIVE ORDER1
13
ALEJANDRO MAYORKAS,
14 Secretary of the Department of
Homeland Security, in his official
15 capacity, et al.,
16 Defendants.
17
18
1. A. PURPOSES AND LIMITATIONS
19
Discovery in the above-captioned case brought by Plaintiffs Abdirahman
20
Aden Kariye, Mohamad Mouslli, and Hameem Shah (“Plaintiffs”) against
21
Defendants Alejandro Mayorkas, Secretary of the U.S. Department of Homeland
22
Security (“DHS”), Chris Magnus, Commissioner of U.S. Customs and Border
23
Protection (“CBP”), Tae D. Johnson, Acting Director of U.S. Immigration and
24
Customs Enforcement (“ICE”), and Steve K. Francis, Acting Executive Associate
25
Director, Homeland Security Investigations (“HSI”) (“Defendants”) is likely to
26
27
28
1 This Stipulated Protective Order is substantially based on the model protective
order provided under Magistrate Judge Gail J. Standish’s Procedures.
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 2 of 19 Page ID #:390
1 involve production of confidential, proprietary or private information for which
2 special protection from public disclosure and from use for any purpose other than
3 prosecuting this litigation may be warranted. Accordingly, the parties hereby
4 stipulate to and petition the Court to enter the following Stipulated Protective Order.
5 The parties acknowledge that this Order does not confer blanket protections on all
6 disclosures or responses to discovery and that the protection it affords from public
7 disclosure and use extends only to the limited information or items that are entitled
8 to confidential treatment under the applicable legal principles.
9 B. GOOD CAUSE STATEMENT
10 Defendants believe that this action is likely to involve the production of non-
11 privileged information contained in law enforcement records and communications
12 or produced at a deposition or hearing. Defendants believe that some of this non-
13 privileged information is likely law-enforcement sensitive and for official use only,
14 in that it may regard such things as law enforcement activities and operations,
15 internal policies, processes and procedures, and training materials, all of which may
16 be protected from disclosure under the Freedom of Information Act, 5 U.S.C.
17 § 552(b)(7), or protected from disclosure under other federal law, or which is
18 generally unavailable to the public because its disclosure could adversely impact
19 such things as a person’s privacy or welfare or the conduct of programs or
20 operations essential to the national interest, but which a court may order to be
21 produced. Defendants believe that some of this non-privileged information may
22 also be information prohibited from disclosure by the Privacy Act, 5 U.S.C. § 552a,
23 et seq. (the “Privacy Act”), as it may be personal information located in a Federal
24 government “record” and therefore require the consent of that individual prior to
25 disclosure unless made “pursuant to the order of a court of competent jurisdiction.”
26 Id. §552a(b)(11).
27
28
2
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 3 of 19 Page ID #:391
1 Plaintiffs believe that this action is likely to involve the production of records
2 concerning the questioning of Plaintiffs at the U.S. border and reflecting information
3 about the Plaintiffs’ religious beliefs, activities, and associations.
4 Accordingly, to expedite the flow of information, to facilitate the prompt
5 resolution of disputes over confidentiality of discovery materials, to adequately
6 protect information the parties are entitled to keep confidential, to ensure that the
7 parties are permitted reasonable necessary uses of such material in preparation for
8 and in the conduct of trial, to address their handling at the end of the litigation, and
9 serve the ends of justice, a protective order for such information is justified in this
10 matter. It is the intent of the parties that information will not be designated as
11 confidential for tactical reasons and that nothing be so designated without a good
12 faith belief that it has been maintained in a confidential, non-public manner, and
13 there is good cause why it should not be part of the public record of this case.
14 The categories of “CONFIDENTIAL” information or items covered by this
15 order include:
16 a. Information, documents or tangible things protected by the Privacy Act,
17 5 U.S.C. § 552a, et seq., without obtaining the prior written consent of the
18 individuals to whom such records or information pertain. The United States and its
19 agencies and employees are authorized pursuant to 5 U.S.C. § 552a(b)(11) to
20 produce such records pursuant to the terms contained herein.
21 b. Personally Identifying Information (PII), which is information that
22 permits the identity of an individual to be directly or indirectly inferred, or otherwise
23 confidential information regarding any Plaintiff, Defendant, employee or former
24 employee of any Defendant, or Non-Party, including but not limited to date of birth,
25 social security number, email addresses, phone numbers, mailing addresses, or
26 compensation information, that would be protected or restricted from disclosure by
27 statute, regulation, internal agency policy or guidance, but disclosure of which may
28 be authorized by an order of this Court.
3
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 4 of 19 Page ID #:392
1 c. Documents or information concerning any response to questioning of
2 Plaintiffs at the U.S. border that reflects information about Plaintiffs’ religious
3 beliefs, practices, or associations.
4 d. Information that is otherwise sensitive, but unclassified, which the
5 agency determines is not appropriate for public release, and the disclosure of which
6 is reasonably expected to cause harm to law enforcement interests, which may
7 include records regarding law enforcement activities and operations staffing,
8 priorities, resources, intelligence, methods, and internal investigations, and those
9 portions of internal policies, processes, and training materials that contain
10 information that is law enforcement sensitive, for instance, (a) records that might
11 contain tactical and other information related to law enforcement activities not made
12 available by the Government to the general public that could be adversely used to
13 circumvent law enforcement efforts or (b) information that may be protected from
14 public disclosure under the Freedom of Information Act, 5 U.S.C. § 552(b)(7)(E),
15 and is not subject to other restrictions on disclosure.
16 e. All other protected documents, information, or tangible things not
17 identified above that qualify for protection under Federal Rule of Civil
18 Procedure 26(c), based on either the parties’ agreement in writing or the Court’s
19 order.
20 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
21 The parties further acknowledge, as set forth in Section 12.4, below, that this
22 Stipulated Protective Order does not entitle them to file confidential information
23 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
24 and the standards that will be applied when a party seeks permission from the court
25 to file material under seal.
26 There is a strong presumption that the public has a right of access to judicial
27 proceedings and records in civil cases. In connection with non-dispositive motions,
28 good cause must be shown to support a filing under seal. See Kamakana v. City and
4
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 5 of 19 Page ID #:393
1 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
2 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
3 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
4 require good cause showing), and a specific showing of good cause or compelling
5 reasons with proper evidentiary support and legal justification, must be made with
6 respect to Protected Material that a party seeks to file under seal. The parties’ mere
7 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
8 without the submission of competent evidence by declaration, establishing that the
9 material sought to be filed under seal qualifies as confidential, privileged, or
10 otherwise protectable—constitute good cause.
11 Further, if a party requests sealing related to a dispositive motion or trial, then
12 compelling reasons, not only good cause, for the sealing must be shown, and the
13 relief sought shall be narrowly tailored to serve the specific interest to be protected.
14 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
15 each item or type of information, document, or thing sought to be filed or introduced
16 under seal in connection with a dispositive motion or trial, the party seeking
17 protection must articulate compelling reasons, supported by specific facts and legal
18 justification, for the requested sealing order. Again, competent evidence supporting
19 the application to file documents under seal must be provided by declaration.
20 Any document that is not confidential, privileged, or otherwise protectable in
21 its entirety will not be filed under seal if the confidential portions can be redacted.
22 If documents can be redacted, then a redacted version for public viewing, omitting
23 only the confidential, privileged, or otherwise protectable portions of the document,
24 shall be filed. Any application that seeks to file documents under seal in their
25 entirety should include an explanation of why redaction is not feasible.
26 2. DEFINITIONS
27 2.1 Action: this pending federal lawsuit.
28 2.2 Challenging Party: a Party or Non-Party that challenges the
5
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 6 of 19 Page ID #:394
1 designation of information or items under this Order.
2 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
3 how it is generated, stored or maintained) or tangible things that qualify for
4 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
5 the Good Cause Statement.
6 2.4 Counsel: Outside Counsel and House Counsel (defined to include
7 support staff).
8 2.5 Designating Party: a Party or Non-Party that designates information or
9 items that it produces in disclosures or in responses to discovery as
10 “CONFIDENTIAL.”
11 2.6 Disclosure or Discovery Material: all items or information, regardless
12 of the medium or manner in which it is generated, stored, or maintained (including,
13 among other things, testimony, transcripts, and tangible things), that are produced or
14 generated in disclosures or responses to discovery in this matter.
15 2.7 Expert: a person with specialized knowledge or experience in a matter
16 pertinent to the litigation who has been retained by a Party or its counsel to serve as
17 an expert witness or as a consultant in this Action.
18 2.8 House Counsel: attorneys who are employees of a party to this Action,
19 including the attorneys’ support staff. House Counsel does not include Outside
20 Counsel.
21 2.9 Non-Party: any natural person, partnership, corporation, association or
22 other legal entity not named as a Party to this action.
23 2.10 Outside Counsel: attorneys who are not employees of a party to this
24 Action but are retained to represent or advise a party to this Action with respect to
25 this Action, including any attorney that has appeared in this Action on behalf of a
26 party, and any attorney affiliated with a law firm that has appeared on behalf of a
27 party in this Action or has been retained to represent or advise a party to this Action
28 with respect to this Action, including the attorneys’ support staff.
6
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 7 of 19 Page ID #:395
1 2.11 Party: any party to this Action, including all of its officers, directors,
2 employees, consultants, retained experts, and Outside Counsel.
3 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
4 Discovery Material in this Action.
5 2.13 Professional Vendors: persons or entities that provide litigation
6 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
7 demonstrations, and organizing, storing, or retrieving data in any form or medium)
8 and their employees and subcontractors.
9 2.14 Protected Material: any Disclosure or Discovery Material that is
10 designated as “CONFIDENTIAL.”
11 2.15 Receiving Party: a Party that receives Disclosure or Discovery
12 Material from a Producing Party.
3. SCOPE
13
The protections conferred by this Stipulation and Order cover not only
14
Protected Material (as defined above), but also (1) any information copied or
15
extracted from Protected Material; (2) all copies, excerpts, summaries, or
16
compilations of Protected Material; and (3) any testimony, conversations, or
17
presentations by Parties or their Counsel that might reveal Protected Material.
18
Any use of Protected Material at trial shall be governed by the orders of the
19
trial judge. This Order does not govern the use of Protected Material at trial.
20
4. DURATION
21
FINAL DISPOSITION of the action is defined as the conclusion of any
22
appellate proceedings, or, if no appeal is taken, when the time for filing of an appeal
23
has run. Except as set forth below, the terms of this protective order apply through
24
FINAL DISPOSITION of the action. The parties may stipulate that they will be
25
contractually bound by the terms of this agreement beyond FINAL DISPOSITION,
26
but will have to file a separate action for enforcement of the agreement once all
27
proceedings in this case are complete.
28
7
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 8 of 19 Page ID #:396
1 Once a case proceeds to trial, information that was designated as
2 CONFIDENTIAL or maintained pursuant to this protective order used or introduced
3 as an exhibit at trial becomes public and will be presumptively available to all
4 members of the public, including the press, unless compelling reasons supported by
5 specific factual findings to proceed otherwise are made to the trial judge in advance
6 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
7 showing for sealing documents produced in discovery from “compelling reasons”
8 standard when merits-related documents are part of court record). Accordingly, for
9 such materials, the terms of this protective order do not extend beyond the
10 commencement of the trial.
11 5. DESIGNATING PROTECTED MATERIAL
12 5.1 Exercise of Restraint and Care in Designating Material for Protection.
13 Each Party or Non-Party that designates information or items for protection under
14 this Order must take care to limit any such designation to specific material that
15 qualifies under the appropriate standards. The Designating Party must designate for
16 protection only those parts of material, documents, items or oral or written
17 communications that qualify so that other portions of the material, documents, items
18 or communications for which protection is not warranted are not swept unjustifiably
19 within the ambit of this Order.
20 Mass, indiscriminate or routinized designations are prohibited. Designations
21 that are shown to be clearly unjustified or that have been made for an improper
22 purpose (e.g., to unnecessarily encumber the case development process or to impose
23 unnecessary expenses and burdens on other parties) may expose the Designating
24 Party to sanctions.
25 If it comes to a Designating Party’s attention that information or items that it
26 designated for protection do not qualify for protection, that Designating Party must
27 promptly notify all other Parties that it is withdrawing the inapplicable designation.
28 5.2 Manner and Timing of Designations. Except as otherwise provided in
8
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 9 of 19 Page ID #:397
1 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
2 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
3 under this Order must be clearly so designated before the material is disclosed or
4 produced.
5 Designation in conformity with this Order requires:
6 (a) for information in documentary form (e.g., paper or electronic
7 documents, but excluding transcripts of depositions or other pretrial or trial
8 proceedings), that the Producing Party affix at a minimum, the legend
9 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
10 contains protected material. If only a portion of the material on a page qualifies for
11 protection, the Producing Party also must clearly identify the protected portion(s)
12 (e.g., by making appropriate markings in the margins).
13 A Party or Non-Party that makes original documents available for inspection
14 need not designate them for protection until after the inspecting Party has indicated
15 which documents it would like copied and produced. During the inspection and
16 before the designation, all of the material made available for inspection shall be
17 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
18 documents it wants copied and produced, the Producing Party must determine which
19 documents, or portions thereof, qualify for protection under this Order. Then,
20 before producing the specified documents, the Producing Party must affix the
21 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
22 portion of the material on a page qualifies for protection, the Producing Party also
23 must clearly identify the protected portion(s) (e.g., by making appropriate markings
24 in the margins).
25 (b) for testimony given in depositions that the Designating Party identifies
26 the Disclosure or Discovery Material on the record, before the close of the
27 deposition all protected testimony.
28 (c) for information produced in some form other than documentary and
9
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 10 of 19 Page ID #:398
1 for any other tangible items, that the Producing Party affix in a prominent place on
2 the exterior of the container or containers in which the information is stored the
3 legend “CONFIDENTIAL.” If only a portion or portions of the information
4 warrants protection, the Producing Party, to the extent practicable, shall identify the
5 protected portion(s).
6 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
7 failure to designate qualified information or items does not, standing alone, waive
8 the Designating Party’s right to secure protection under this Order for such material.
9 Upon timely correction of a designation, the Receiving Party must make reasonable
10 efforts to assure that the material is treated in accordance with the provisions of this
11 Order.
12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
13 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
14 designation of confidentiality at any time that is consistent with the Court’s
15 Scheduling Order.
16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
17 resolution process under Local Rule 37-1 et seq.
18 6.3 The burden of persuasion in any such challenge proceeding shall be on
19 the Designating Party. Frivolous challenges, and those made for an improper
20 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
21 parties) may expose the Challenging Party to sanctions. Unless the Designating
22 Party has waived or withdrawn the confidentiality designation, all parties shall
23 continue to afford the material in question the level of protection to which it is
24 entitled under the Producing Party’s designation until the Court rules on the
25 challenge.
26 7. ACCESS TO AND USE OF PROTECTED MATERIAL
27 7.1 Basic Principles. A Receiving Party may use Protected Material that is
28 disclosed or produced by another Party or by a Non-Party in connection with this
10
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 11 of 19 Page ID #:399
1 Action only for prosecuting, defending or attempting to settle this Action. Such
2 Protected Material may be disclosed only to the categories of persons and under the
3 conditions described in this Order. When the Action has been terminated, a
4 Receiving Party must comply with the provisions of section 13 below (FINAL
5 DISPOSITION).
6 Protected Material must be stored and maintained by a Receiving Party at a
7 location and in a secure manner that ensures that access is limited to the persons
8 authorized under this Order.
9 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
10 otherwise ordered by the court or permitted in writing by the Designating Party, a
11 Receiving Party may disclose any information or item designated
12 “CONFIDENTIAL” only to:
13 (a) the Receiving Party’s Outside Counsel in this Action, as well as
14 employees of said Outside Counsel to whom it is reasonably necessary to disclose
15 the information for this Action;
16 (b) the officers, directors, and employees (including House Counsel) of
17 the Receiving Party to whom disclosure is reasonably necessary for this Action;
18 (c) Experts (as defined in this Order) of the Receiving Party to whom
19 disclosure is reasonably necessary for this Action and who have signed the
20 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
21 (d) the court and its personnel;
22 (e) court reporters and their staff;
23 (f) professional jury or trial consultants, mock jurors, and Professional
24 Vendors to whom disclosure is reasonably necessary for this Action and who have
25 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
26 (g) the author or recipient of a document containing the information or a
27 custodian or other person who otherwise possessed or knew the information;
28 (h) during their depositions, witnesses, and attorneys for witnesses, in the
11
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 12 of 19 Page ID #:400
1 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
2 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
3 not be permitted to keep any confidential information unless they sign the
4 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
5 agreed by the Designating Party or ordered by the court. Pages of transcribed
6 deposition testimony or exhibits to depositions that reveal Protected Material may
7 be separately bound by the court reporter and may not be disclosed to anyone except
8 as permitted under this Stipulated Protective Order; and
9 (i) any mediator or settlement officer, and their supporting personnel,
10 mutually agreed upon by any of the parties engaged in settlement discussions.
11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
12 IN OTHER LITIGATION
13 If a Party is served with a subpoena or a court order issued in other litigation
14 that compels disclosure of any information or items designated in this Action as
15 “CONFIDENTIAL,” that Party must:
16 (a) promptly notify in writing the Designating Party. Such notification
17 shall include a copy of the subpoena or court order; and
18 (b) promptly notify in writing via e-mail within ten business days the
19 party who caused the subpoena or order to issue in the other litigation that some or
20 all of the material covered by the subpoena or order is subject to this Protective
21 Order. Such notification shall include a copy of this Stipulated Protective Order; and
22 (c) cooperate with respect to all reasonable procedures sought to be
23 pursued by the Designating Party whose Protected Material may be affected. If the
24 Designating Party timely seeks a protective order, the Party served with the
25 subpoena or court order shall not produce any information designated in this action
26 as “CONFIDENTIAL” before a determination by the court from which the
27 subpoena or order issued, unless the Party has obtained the Designating Party’s
28 permission. The Designating Party shall bear the burden and expense of seeking
12
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 13 of 19 Page ID #:401
1 protection in that court of its confidential material and nothing in these provisions
2 should be construed as authorizing or encouraging a Receiving Party in this Action
3 to disobey a lawful directive from another court.
4 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
5 PRODUCED IN THIS LITIGATION
6 (a) The terms of this Order are applicable to information produced by a
7 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
8 produced by Non-Parties in connection with this litigation is protected by the
9 remedies and relief provided by this Order. Nothing in these provisions should be
10 construed as prohibiting a Non-Party from seeking additional protections.
11 (b) In the event that a Party is required, by a valid discovery request, to
12 produce a Non-Party’s confidential information in its possession, and the Party is
13 subject to an agreement with the Non-Party not to produce the Non-Party’s
14 confidential information, then the Party shall:
15 (1) promptly notify in writing the Requesting Party and the Non-Party
16 that some or all of the information requested is subject to a confidentiality
17 agreement with a Non-Party;
18 (2) promptly provide the Non-Party with a copy of the Stipulated
19 Protective Order in this Action, the relevant discovery request(s), and a reasonably
20 specific description of the information requested; and
21 (3) make the information requested available for inspection by the
22 Non-Party, if requested.
23 (c) If the Non-Party fails to seek a protective order from this court within
24 14 days of receiving the notice and accompanying information, the Receiving Party
25 may produce the Non-Party’s confidential information responsive to the discovery
26 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
27 not produce any information in its possession or control that is subject to the
28 confidentiality agreement with the Non-Party before a determination by the court.
13
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 14 of 19 Page ID #:402
1 Absent a court order to the contrary, the Non-Party shall bear the burden and
2 expense of seeking protection in this court of its Protected Material.
3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
5 Protected Material to any person or in any circumstance not authorized under this
6 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
7 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
8 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
9 persons to whom unauthorized disclosures were made of all the terms of this Order,
10 and (d) request such person or persons to execute the “Acknowledgment and
11 Agreement to Be Bound” that is attached hereto as Exhibit A.
12 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
13 PROTECTED MATERIAL
14 When a Producing Party gives notice to Receiving Parties that certain
15 inadvertently produced material is subject to a claim of privilege or other protection,
16 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
17 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
18 procedure may be established in an e-discovery order that provides for production
19 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
20 (e), insofar as the parties reach an agreement on the effect of disclosure of a
21 communication or information covered by the attorney-client privilege or work
22 product protection, the parties may incorporate their agreement in the stipulated
23 protective order submitted to the court.
24 12. MISCELLANEOUS
25 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
26 person to seek its modification by the Court in the future.
27 12.2 Right to Assert Other Objections. By stipulating to the entry of this
28 Protective Order, no Party waives any right it otherwise would have to object to
14
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 15 of 19 Page ID #:403
1 disclosing or producing any information or item on any ground not addressed in this
2 Stipulated Protective Order. Similarly, no Party waives any right to object on any
3 ground to use in evidence of any of the material covered by this Protective Order.
4 12.3 Use of Own or Public Information. Nothing in this Order shall impose
5 any restriction on the use of or disclosure by a Party of its own information, except
6 that Defendants agree to treat as Protected Material for the purposes of this Action
7 their records produced in this Action that fall within the definition of
8 CONFIDENTIAL information. Nor shall anything in this Order preclude a Party
9 from relying on or filing on the public record any information that is in the public
10 domain as a result of publication not involving a violation of this Protective Order,
11 consistent with other applicable laws, regulations, and other agreements regarding
12 the use of such information, even if the same or similar information has been
13 designated as Protected Material in the context of records produced in discovery
14 under the auspices of this Order. The fact that such information is in the public
15 domain shall not, however, provide a Party an automatic right to publicly file
16 Protected Material. If a Party wishes to argue that the fact that certain information is
17 in the public domain should result in the de-designation or public filing of Protected
18 Material, it shall proceed in accordance with the provisions of this Order.
19 12.4 Filing Protected Material. A Party that seeks to file under seal any
20 Protected Material must comply with Local Civil Rule 79-5. Protected Material
21 may only be filed under seal pursuant to a court order authorizing the sealing of the
22 specific Protected Material at issue. If a Party’s request to file Protected Material
23 under seal is denied by the court, then the Receiving Party may file the information
24 in the public record unless otherwise instructed by the court.
25 13. FINAL DISPOSITION
26 After the final disposition of this Action, as defined in paragraph 4, within 90
27 days of a written request by the Designating Party, each Receiving Party must return
28 all Protected Material to the Producing Party or destroy such material. As used in
15
Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 16 of 19 Page ID #:404
1 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
2 summaries, and any other format reproducing or capturing any of the Protected
3 Material. Whether the Protected Material is returned or destroyed, the Receiving
4 Party must submit a written certification to the Producing Party (and, if not the same
5 person or entity, to the Designating Party) by the 90 day deadline that (1) identifies
6 (by category, where appropriate) all the Protected Material that was returned or
7 destroyed and (2) affirms that the Receiving Party has not retained any copies,
8 abstracts, compilations, summaries or any other format reproducing or capturing any
9 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
10 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
11 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
12 reports, attorney work product, and consultant and expert work product, even if such
13 materials contain Protected Material. Any such archival copies that contain or
14 constitute Protected Material remain subject to this Protective Order as set forth in
15 Section 4 (DURATION).
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Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 17 of 19 Page ID #:405
1 14. VIOLATION
2 Any violation of this Order may be punished by appropriate measures including,
3 without limitation, contempt proceedings and/or monetary sanctions.
4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
5
6 DATED: September 9, 2022
7
AMERICAN CIVIL LIBERTIES UNION
8
FOUNDATION
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AMERICAN CIVIL LIBERTIES UNION
10
OF MINNESOTA
11
ACLU FOUNDATION OF SOUTHERN
12
CALIFORNIA
13
By: /s/ Ashley Gorski
14
Ashley Gorski
15 American Civil Liberties Union Foundation
125 Broad Street, Floor 18
16
New York, NY 10004
17 Tel: (212) 549-2500
agorski@aclu.org
18
19 Counsel for Plaintiffs
20
21
DATED: September 9, 2022
22
23
BRIAN M. BOYNTON
24 Principal Deputy Assistant Attorney General
Civil Division
25
26 BRIGHAM J. BOWEN
Assistant Branch Director
27
Federal Programs Branch, Civil Division
28
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Case 4|22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 18o0f19 Page ID #:406
2 /s/ Leslie Cooper Vigen
3 LESLIE COOPER VIGEN
Trial Attorney (DC Bar No. 1019782)
4 || Civil Division, Federal Programs Branch
5 United States Department of Justice
1100 L Street, NW, Washington, D.C. 20005
6 || Telephone: (202) 305-0727
7 || Email: leslie.vigen@usdoj.gov
8 Counsel for Defendants
10
1 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
12
1B DATED: _ September 13,2022
14
15 . / |
16 || HON‘GAIL J. STANDISH
17 United States Magistrate Judge
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28
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Case 2:22-cv-01916-FWS-GJS Document 53 Filed 09/13/22 Page 19 of 19 Page ID #:407
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [print or type full name], of
5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California
8 on [date] in the case of Kariye et al. v. Mayorkas et al., 2:22-cv-1916-FWS-GJS
9 (C.D. Cal.). I agree to comply with and to be bound by all the terms of this
10 Stipulated Protective Order and I understand and acknowledge that failure to so
11 comply could expose me to sanctions and punishment in the nature of contempt. I
12 solemnly promise that I will not disclose in any manner any information or item that
13 is subject to this Stipulated Protective Order to any person or entity except in strict
14 compliance with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court for the
16 Central District of California for enforcing the terms of this Stipulated Protective
17 Order, even if such enforcement proceedings occur after termination of this action.
18 I hereby appoint __________________________ [print or type full name] of
19 _______________________________________ [print or type full address and
20 telephone number] as my California agent for service of process in connection with
21 this action or any proceedings related to enforcement of this Stipulated Protective
22 Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25
26 Printed name: _______________________________
27
28 Signature: __________________________________
19