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The United States of America v. Sonkei Communications

August 24, 2012

THE UNITED STATES OF AMERICA, PLAINTIFF,
v.
SONKEI COMMUNICATIONS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jean P. Rosenbluth United States Magistrate Judge

STIPULATED PROTECTIVE ORDER AS TO CONFIDENTIAL CONSUMER INFORMATION

The additional counsel presenting this document to the Court are: MARK F. SULLIVAN, State Bar No. 111011 GEORGE P. GALBRAITH, State Bar No. 243030 SULLIVAN TAKETA LLP 2629 Townsgate Road, Suite 250 Westlake Village, CA 91361-3755 Telephone: (818) 889-2299 Facsimile: (818) 889-4497 mark.sullivan@calawcounsel.com george.galbraith@calawcounsel.com Attorneys for Defendants Peter J. Turpel and Sonkei Communications, Inc. F. ANTONE ACCUARDI, OSB 974613 2331 S.W. 5th Ave, 2nd Floor Portland, OR 97201 (503) 223-7747 fax (503) 223-7776 Interlaw@justice.com MARITZA B. LEON, State Bar No. 213752 130 W. Route 66 Ste. 222 Glendora, CA 91740 (626) 733-2847 (626) 969-3296 leonfamilyla@yahoo.com Attorneys for Defendants Joseph Turpel and Sonkie One

The Court, having considered the Parties' Second Stipulation for Entry of Stipulated Protective Order as to Confidential Consumer Information, and for good cause shown, HEREBY ORDERS that:

1. This Protective Order governs the handling of confidential consumer information contained in documents, statements, depositions and deposition exhibits, interrogatory answers, responses to requests to admit and other written, recorded or graphic matter whenever created, served or produced which is served or produced by or obtained from any party, or any non-party who agrees to be bound by this Protective Order (said party or non-party hereinafter referred to as "the producing or serving party").

2. The following definitions shall apply to this Protective Order:

a. "Parties" shall mean and refer to the parties to this case.

b. "Designating Party" shall mean the person that designates information as Confidential Consumer Information under this Protective Order.

c. "Confidential Consumer Information" shall mean identifying information relating to any individual consumer, including the consumer's name, financial or credit information, address, telephone number, social security number, driver's license number or other state identification number, and sensitive health-related data.

d. "Qualified Person(s)" shall mean and refer to:

(1) Outside or inside counsel that have appeared for a party and regular and temporary employees of such counsel assisting in the conduct of such case, including employees of any firm retained to reproduce the Confidential Consumer Information for use in accordance with this Protective Order;

(2) Experts or consultants (together with their clerical staff) assisting counsel in this litigation;

(3) Employees of any party to this action whose assistance, in the opinion of counsel for that party, is reasonably necessary in the conduct of this action;

(4) Employees and contractors of the United States Department of Justice and the Federal Trade Commission;

(5) Directors, officers, and employees of parties who are noticed for depositions or designated as trial witnesses and other persons who counsel for a party in good faith believes may be fact or expert witnesses either at deposition or at trial to the extent deemed necessary by counsel for the witnesses' preparation for testimony;

(6) Deponents, and their counsel, during the course of depositions taken in this action, and court reporters and persons preparing transcripts of depositions;

(7) The Court and Court personnel;

(8) Any person, pursuant to a stipulation by the Designating Party; and

(9) Other persons only upon order of the Court.

3. GOOD CAUSE STATEMENT:

Pursuant to Fed. R. Civ. P. 26(c)(1), the Court finds that there is good cause to enter this Protective Order. It is undisputed that records and information compiled by the Federal Trade Commission for law-enforcement purposes, including consumer complaints concerning Telemarketing Sales Rule and other violations, is nonpublic information for many purposes. 16 C.F.R. § 4.10(a)(5) (Section 4.10 promulgated January 18, 1973 and subsequently amended). It is further undisputed that the National Do Not Call Registry is designated as a protected "system of records" under the Privacy Act, 5 U.S.C. § 552a, because it includes information about individuals, including "[t]telephone numbers of individuals who do not wish to receive telemarketing calls." Final Notice of New Privacy Act System of Records, 68 Fed. Reg. 37494, 37496 (June 24, 2003); see also Notice of Revised System Notices, 73 Fed. Reg. 33592, 33624 (June 12, 2008).

The United States represents to the Court that almost all of the complaints that it receives about telemarketing violations (whether of calls to phone numbers registered on the DNC Registry or of other violations) are received through or are stored in the Consumer Sentinel database. This database is part of the Consumer Information System, maintained and operated by the Federal Trade Commission. The CIS is likewise a designated "system of records" subject to protection under the Privacy Act, because consumer complaints and other submissions also include confidential personally-identifying information about individuals. Notice of Revised System Notices, 73 Fed. Reg. at 33621 (Consumer Information System).

The United States asserts that federal agencies cannot disclose records contained in a "system of records" absent written permission from the individual to whom the record pertains, unless one of twelve specific statutory exceptions applies. 5 U.S.C. § 552a(b). One exception that allows an agency to disclose records contained in a "system of records" is "the order of a court of competent jurisdiction." 5 U.S.C. § 552a(b)(11). Accordingly, an appropriate order from this Court would authorize the United States to disclose record information from the National DNC Registry and from the Consumer Information System to the defendants in discovery.

The Court finds that it is appropriate to enter an an order limiting dissemination of such personally-identifiable information to that which is reasonably necessary to proceed with discovery and litigation in the above captioned case.. See, e.g., Fed. R. Civ. P. 5.2 (restricting kinds and amount of identifying information that can be publicly filed in civil cases); Fed. R. ...


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