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Jose Franco-Gonzalez, et al v. Janet Napolitano

November 2, 2012

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

#:10183

[PROPOSED] PROTECTIVE ORDER FOR DISCOVERY

Pursuant to the parties' Stipulation for Entry of Revised Protective Order for Discovery, this Protective Order will govern discovery produced as a result of Plaintiffs' October 17, 2011, November 29, 2011, December 13, 2011, July 13, 2012 and July 16, 2012 requests for production, and Defendants' November 30, 2011, January 10, 2012 and August 17, 2012 requests for production, as well as any further merits discovery propounded by the parties. Good cause exists for the entry of this Protective Order because the discovery produced in this case is likely to 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, as well as highly confidential information of immigration detainees regarding their applications for asylum that Federal regulations prohibit from unauthorized disclosure. The Court having found that good cause exists for entry of an appropriately-tailored confidentiality order governing discovery in this action, HEREBY ORDERS:

1. This Protective Order and the terms, obligations, and responsibilities of the Parties contained herein shall supersede the Protective Order entered January 24, 2012, and shall govern all information produced as a result of Plaintiffs' October 17, 2011, November 29, 2011, December 13, 2011, July 13, 2012 and July 16, 2012 requests for production; and Defendants' November 30, 2011, January 10, 2012, and August 17, 2012 requests for production, or produced in the course of any further merits discovery in this case.

2. Pursuant to 5 U.S.C. § 552a(b)(11) and 45 C.F.R. § 164.512(e) , this 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. This Protective Order also authorizes Defendants to produce information contained in or pertaining to detainees' asylum claims or applications, including records pertaining to credible fear and reasonable fear determinations, interviews or reviews, applications for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT") and refugee information that would otherwise be prohibited from disclosure pursuant to 8 C.F.R. § 208.6 and 8 C.F.R. § 1208.6, pursuant to the Court's November 2, 2012 Order Regarding Production of Asylum-Related Information. However, nothing in this paragraph shall require production of information that is prohibited from disclosure (even with the entry of this 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.

3. As used in this 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; (b) individual medical information, including but not limited to competency evaluations; (c) names, locations of, any other identifying information which would allow the identification of the particular individual(s) to whom the information relates, or testimony on the record, of individuals not related to this litigation; and (d) 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."

4. "Confidential Information" may be designated by the parties in one or more of the following ways:

(a) Any and all confidential information contained in documents produced by Defendants to Plaintiffs as a result of discovery governed by this Protective Order shall be designated "Defendants' Confidential Information."

(b) Any and all confidential information produced by Plaintiffs to Defendants as a result of discovery governed by this Protective Order shall be designated "Plaintiffs' Confidential Information."

(c) "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 discovery governed by this Protective Order. "Confidential Information" contained in any statement made during an oral deposition may be designated as "Confidential" through a statement made on the record.

(d) If a Party disagrees with a designation of "Confidential Information," it shall provide the Producing Party written notice of its challenge. If the Parties cannot resolve this dispute, they may proceed under the Federal and Local Rules of Civil Procedure addressing discovery disputes. The Producing Party bears the burden of showing that information is "Confidential" as defined herein. Failure to challenge a designation immediately does not waive a Party's ability to bring a later challenge.

(e) Information designated as "Confidential Information," including the portion of any document containing "Confidential Information," may be disclosed only to the following Qualified Persons:

(1) Defendants' Counsel in this action and any support staff and other employees of such counsel or Defendants assisting in this action with an appropriate need to know;

(2) Plaintiffs' Counsel in this action and any support staff and other employees of such counsel assisting in this action with an appropriate need to know. If any Plaintiffs' Counsel cease to represent plaintiffs or class members in this action for any reason, such counsel shall no ...


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