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Jose Franco-Gonzalez, et al v. Janet Napolitano

August 29, 2011

JOSE FRANCO-GONZALEZ, ET AL., PLAINTIFFS-PETITIONERS,
v.
JANET NAPOLITANO, ET AL. DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Hon. David T. Bristow

STIPULATED PROTECTIVE ORDER FOR DISCOVERY PRODUCED PURSUANT TO PARTIES' JULY 29, 2011 JOINT STIPULATION

Introduction

On July 29, 2011, the Court entered a Joint Stipulation (Stipulation) in which the Parties agreed to produce certain information on or before September 2, 2011.*fn1 This Stipulated Protective Order governs all information produced in accordance with that Stipulation only, and does not govern prior or future discovery productions which may occur in this litigation.

There are two categories of information that Defendants will produce as a result of the Stipulation. The first category consists of documents which will contain personally identifiable information in the form of partial A-numbers of Immigration and Customs Enforcement (ICE) detainees (A-numbers). See Stipulation, Dkt. # 252 at 3-6, Sections I.A.i-v. Defendants assert that the disclosure of these documents cannot occur without entry of this Stipulated Protective Order.

The second category of information that Defendants will produce as a result of the Stipulation will contain mental competency evaluations of ICE detainees that occurred between May 2008 and May 2011 (Competency Evaluations). See Stipulation, Dkt. # 252 at 6-7, Section I.A.vi. Defendants assert that the disclosure of these documents also cannot occur without entry of this Stipulated Protective Order.

In addition, per the Stipulation, Plaintiffs will produce to Defendants all the names of the individuals they have identified by name and circumstances whom they believe to be members of their class and subclasses. See Stipulation, Dkt. # 252 at 7-8, Section II. Plaintiffs assert that the disclosure of the names of the individuals cannot occur without entry of this Stipulated Protective Order.

Per the Stipulation, this Protective Order will govern the three categories of information identified above that the Parties will produce pursuant to the July 29, 2011 Joint Stipulation. See Stipulation at 11-12. Good cause exists for the entry of this Stipulated Protective Order because the discovery produced pursuant to the Parties' July 29, 2011 Joint Stipulation as described above will result in the disclosure by the parties of personal and confidential information, including personally identifiable information and medical information of individuals who are or were in the custody of the Department of Homeland Security, and who may be members of the putative class and subclasses Plaintiffs seek to certify in this action. The Parties having agreed to the following terms governing the treatment of confidential information, and the Court having found that good cause exists for issuance of an appropriately-tailored confidentiality order governing the pre-trial phase of this action, IT IS HEREBY ORDERED as follows:

1. This Stipulated Protective Order and the terms, obligations, and responsibilities of the Parties contained herein shall govern all information produced in accordance with the July 29, 2011 Stipulation only, and does not govern prior or future discovery productions which may occur in this litigation.

2. (a) Pursuant to 5 U.S.C. § 552a(b)(11), this Stipulated Protective Order authorizes Defendants to produce personally identifiable information that would otherwise be prohibited from disclosure under the Privacy Act, 5 U.S.C. § 552a, and/or HIPAA, 45 C.F.R. § 164.512, and without presenting Privacy Act or HIPAA objections to this Court for a decision regarding disclosure. To the extent the Privacy Act and/or HIPAA allows the disclosure of information pursuant to a Court order, this Order constitutes such a Court Order and authorizes the disclosure of that information. However, nothing in this paragraph shall require production of information that is prohibited from disclosure (even with the entry of a protective order) by other applicable privileges, statutes, regulations or authorities by which Defendants may be bound. The terms of this Stipulated Protective Order shall also govern the safeguarding of such information by all individuals referenced herein.

(b) Although Defendants have not yet completed their file-by-file review, Defendants anticipate any withholding or redaction will most likely be limited to information restricted from disclosure by immigration-related confidentiality provisions such as the provisions regarding asylum, temporary protected status (TPS), special agricultural worker (SAW) and legalization applications, Violence Against Women Act (VAWA) and "T"/"U" visa applicants.

Defendants will produce a log identifying the basis for any redactions. For the referenced immigration-related confidentiality provisions, Defendants will note the reason for the withholding or redaction as "confidential immigration-related information." Should Plaintiffs have a good faith basis to believe that Defendants without justification have redacted or withheld information in any of the documents produced pursuant to the Joint Stipulation, Plaintiffs shall have the right to petition the Court for an in camera review of those documents to determine whether such redactions were proper. The Parties agree that, subject to the Court's availability, such in camera review shall take place on an expedited basis due to the time constraints in this matter.

3. As used in this Stipulated Protective Order, the term "Confidential Information" constitutes the following: (a) the names, whole or partial alien numbers, locations of, or any other identifying information which would allow the identification of the particular individual(s) to whom the information relates; and (b) individual medical information, including but not limited to competency evaluations; and (c) any information that is protected or restricted from disclosure by statute or regulation, but which the Court may order to be produced. If a designating party determines that information not described in this paragraph should be designated "Confidential Information," the parties shall negotiate the appropriateness of that designation in good faith and endeavor to resolve any dispute prior to the production of that information. Information that is publicly available, aggregate information concerning class members, and information that does not permit the identification of the particular individuals to whom the information relates is not considered "Confidential Information."*fn2

4. Any and all confidential information contained in documents produced by Defendants to Plaintiffs as a result of the Parties' July 29, 2011 Stipulation which requires disclosure of partial A-numbers or disclosure of mental competency evaluations shall be designated "Defendants' Confidential Information." All information produced by the Department of Homeland Security pursuant to this Stipulation will be marked specifically as "ICE-JS." All information produced by the Department of Justice pursuant to this Stipulation will be marked as "DOJ-JS."

5. Any and all information produced by Plaintiffs to Defendants pursuant to Section II of the Stipulation, which will be produced within three (3) days after this Protective Order is entered, shall be designated "Plaintiffs' Confidential Information." Plaintiffs will mark the production of their documents pursuant to the Stipulation with "JS" as well.

6. "Confidential Information" may be so designated by the Parties simply by inserting the word "Confidential" in a conspicuous place on any documents produced as a result of the Parties' July 29, 2011 Stipulation.

a. "Confidential Information" contained in any statement made during an oral deposition may be designated as "Confidential" ...


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