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Rahinah Ibrahim, An Individual v. Department of Homeland Security; Janet Napolitano

April 5, 2013

RAHINAH IBRAHIM, AN INDIVIDUAL,
PLAINTIFF,
v.
DEPARTMENT OF HOMELAND SECURITY; JANET NAPOLITANO, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY;
ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL;
TERRORIST SCREENING CENTER; TIMOTHY J. HEALY, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE TERRORIST SCREENING CENTER;
FEDERAL BUREAU OF INVESTIGATION;
ROBERT MUELLER, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION;
STEPHANIE DOUGLAS, IN HER OFFICIAL CAPACITY AS EXECUTIVE ASSISTANT DIRECTOR OF THE FBI'S NATIONAL SECURITY BRANCH; NATIONAL COUNTERTERRORISM CENTER; MATTHEW G. OLSEN, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE NATIONAL COUNTERTERRORISM CENTER; DEPARTMENT OF STATE;
HILLARY CLINTON, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE; AND DOES 13 THROUGH 100, INCLUSIVE.
DEFENDANTS.



The opinion of the court was delivered by: The Honorable William Alsup United States District Judge

[PROPOSED] PROTECTIVE ORDER REGARDING NON-SENSITIVE SECURITY INFORMATION

3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 5

Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 7 protections on all disclosures or responses to discovery and that the protection it affords from 8 public disclosure and use extends only to the limited information or items that are entitled to 9 confidential treatment under the applicable legal principles. The parties further acknowledge, as 10 set forth in Section 14.4, below, that this Stipulated Protective Order does not entitle them to file 11 confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the 12 procedures that must be followed and the standards that will be applied when a party seeks 13 permission from the court to file material under seal. 14

2.1 Challenging Party: a Party or Non-Party that challenges the designation of 16 information or items under this Order. 17 18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 19 of Civil Procedure 26(c). 20 2.4 Designating Party: a Party or Non-Party that designates information or items that 22 it produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY 23 2.5 Disclosure or Discovery Material: all items or information, regardless of the 25 medium or manner in which it is generated, stored, or maintained (including, among other things, 26 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 27 responses to discovery in this matter. 28

1.PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of Accordingly, the parties hereby stipulate to and petition the court to enter the following 6

2.DEFINITIONS

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 2.3 Counsel: Counsel of Record (as well as their support staff). 21 CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 24 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 2 consultant in this action. 3 4 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 6 less restrictive means. 7 8 9 entity not named as a Party to this action. 10

11 are retained to represent or advise a party to this action and have appeared in this action on 12 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 13 14 consultants, retained experts, and Counsel of Record (and their support staffs). 15

16 2.7 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information or Items: extremely sensitive "Confidential Information or Items," disclosure of which to another 5 2.8 [Intentionally omitted].

2.9 Non-Party: any natural person, partnership, corporation, association, or other legal 2.10 Counsel of Record: attorneys who are not employees of a party to this action but 2.11 Party: any party to this action, including all of its officers, directors, employees, 2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 17

2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 19 organizing, storing, or retrieving data in any form or medium) and their employees and 20 subcontractors. 21 22 2.14 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL," or as "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 23 24 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 25

3.SCOPE

The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) all copies or excerpts of Protected Material; and (2) any 28 testimony, conversations, or presentations by Parties or their Counsel that discuss Protected Material. However, the protections conferred by this Stipulation and Order do not cover the 2 following information: (a) any information that is in the public domain at the time of disclosure 3 to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving 4

Party as a result of publication not involving a violation of this Order, including becoming part 5 of the public record through trial or otherwise; and (b) any information known to the Receiving 6

Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source 7 who obtained the information lawfully and under no obligation of confidentiality to the 8

Designating Party. Any use of Protected Material at trial shall be governed by a separate 9 agreement or order. 10

12 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 13 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 14 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 15 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 16 action, including the time limits for filing any motions or applications for extension of time 17 pursuant to applicable law. 18

20 or Non-Party that designates information or items for protection under this Order must take care 21 to limit any such designation to specific material that qualifies under the appropriate standards. 22

To the extent it is practical to do so, the Designating Party must designate for protection only 23 those parts of material, documents, items, or oral or written communications that qualify -- so 24 that other portions of the material, documents, items, or communications for which protection is 25 not warranted are not swept unjustifiably within the ambit of this Order. 26

27 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 28 encumber or retard the case development process or to impose unnecessary expenses and

4 [PROPOSED] PROTECTIVE ORDER RE NON-SSI; CASE NO. C 06-0545 WHA 4.DURATION

Even after final disposition of this litigation, the confidentiality obligations imposed by

5.DESIGNATING PROTECTED MATERIAL

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party Mass, indiscriminate, or routine designations are prohibited. Designations that are shown burdens on other parties) expose the Designating Party to sanctions. 2

3 for protection do not qualify for protection at all or do not qualify for the level of protection 4 initially asserted, that Designating Party must promptly notify all other parties that it is 5 withdrawing the mistaken designation. 6

Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 9 designated before the material is disclosed or produced. 10

If it comes to a Designating Party's attention that information or items that it designated 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 8 Designation in conformity with this Order requires:

(a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" to each page that contains protected material.

If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted.

A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted. (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony and specify the level of protection being asserted. When it is impractical to identify separately each portion of testimony that is entitled to protection and it appears that substantial portions of the testimony may qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted. Only those portions of the testimony that are appropriately designated for protection within the 21 days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY."

Parties shall give the other parties notice if they reasonably expect a deposition, hearing or other proceeding to include Protected Material so that the other parties can ensure that only authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A) are present at those proceedings.

The use of a document as an exhibit at a deposition shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." Transcripts containing Protected Material shall have an obvious legend on the title page that the transcript contains Protected Material, and the title page shall be followed by a list of all pages (including line numbers as appropriate) that have been designated as Protected Material and the level of protection being asserted by the Designating Party. The Designating Party shall inform the court reporter of these requirements. Any transcript that is prepared before the expiration of a 21-day period for designation shall be 12 designate qualified information or items does not, standing alone, waive the Designating Party's 13 right to secure protection under this Order for such material. Upon timely correction of a 14 designation, the Receiving Party must make reasonable efforts to assure that the material is 15 treated in accordance with the provisions of this Order. 16

18 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 19 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 20 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 21 challenge a confidentiality designation by electing not to mount a challenge promptly after the 22 original designation is disclosed. 23 24 process by providing written notice of each designation it is challenging and describing the basis 25 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 26 notice must recite that the challenge to confidentiality is being made in accordance with this 27 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 28 good faith and must begin the process by conferring directly (in voice to voice dialogue; other treated during that period as if it had been designated "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as actually designated.

(c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." If only a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the level of protection being asserted.

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution forms of communication are not sufficient) within 14 days of the date of service of notice. In 2 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 3 designation was not proper and must give the Designating Party an opportunity to review the 4 designated material, to reconsider the circumstances, and, if no change in designation is offered, 5 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 6 stage of the challenge process only if it has engaged in ...


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