BENJAMIN B. WAGNER United States Attorney YOSHINORI H.T. HIMEL #66194 Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2760 Facsimile: (916) 554-2900 Attorneys for Defendant, U.S. Department of Justice
STIPULATION AND ORDER SETTLING ACTION
William Wardlaw, the Feinstein for Senate Committee, and the Fund for the Majority Committee, plaintiffs, and the U.S. Department of Justice ("DOJ"), defendant, make this stipulation and order as this action's final disposition. They recite as follows:
1. This is a settlement of a disputed claim. By entering into this settlement, neither side concedes the merit of the other side's position.
2. Jurisdiction in this action is invoked under the formal jurisdictional grant in 28 U.S.C. § 1331 (federal question) and the limited sovereign immunity waiver in the Administrative Procedure Act ("APA"), 5 U.S.C. § 702. Venue is laid in the Eastern District of California under 28 U.S.C. § 1391(b)(2).
3. The United States filed a criminal complaint in the United States District Court for the Eastern District of California against Kinde Durkee ("Durkee") on September 6, 2011. An Information was subsequently filed in United States v. Durkee, Number 2:12-cr-123-KJM, on March 27, 2012. That Information charged Durkee with five counts of mail fraud in violation of
18 U.S.C. § 1341. Durkee pled guilty to the Information on March 30, 2012. She was sentenced to 97 months in custody on November 28, 2012, and judgment was entered on December 7, 2012.
4. On September 23, 2011, the plaintiffs in this action filed Case No. SC114232 (the "Wardlaw Proceeding") in the Superior Court of California, County of Los Angeles, against First California Bank, Durkee and Associates LLC, Durkee, John Forgy, and Matthew Lemcke. The complaint alleges fraud and deceit, conversion, breach of contract, breach of implied covenant of good faith and fair dealing, aiding and abetting fraud, aiding and abetting conversion, and unlawful, fraudulent and unfair business acts and practices.
5. First California Bank filed an interpleader action, First California Bank v. 68th
A.D. Democratic PAC, Case No. BC470182 (the "Interpleader Action") in the same court.
6. On April 2, 2012, the Superior Court entered a Stipulated Confidentiality Agreement and Protective Order (the "Protective Order") in the Wardlaw Proceeding and the Interpleader Action. The Protective Order sets up procedures to protect information that a "Producing Party" claims to be confidential by privilege or otherwise. A copy of the Protective Order is in this Court's records as Clerk's Record ("CR") number 1, ECF pages 66-80.
7. The Privacy Act of 1977, 5 U.S.C. § 552a, covers information in records of a federal agency that is retrieved on the name or other personal identifier of an individual, and protects that information from disclosure by the federal agency. Here, the United States Attorney, a component of defendant DOJ, maintains a criminal prosecution file for United States v. Durkee that is retrieved on Durkee's name, triggering Privacy Act protection for information associated with that file. The Federal Bureau of Investigation ("FBI"), a component of defendant DOJ, maintains a criminal investigation file that is retrieved on one or more individuals' names, including Durkee's, triggering Privacy Act protection for information associated with that file.
8. Plaintiffs have attempted, without success, to obtain contents of computers/servers of Durkee and Associates LLC from Durkee and other parties to the Wardlaw Proceeding and the Interpleader Action through civil discovery, and have attempted, without success, to obtain Durkee's written permission under 5 U.S.C. § 552a(b) for defendant DOJ to disclose contents of computers/servers of Durkee and Associates LLC in the custody of the FBI.
9. In this action under the APA, plaintiffs' objective is to obtain a copy of the contents of computers/servers of Durkee and Associates LLC in the custody of the FBI. Should disclosure with protection of individuals' privacy interests require resources or effort beyond the effort needed to reproduce the information, plaintiffs intend to provide those resources and efforts.
10. Defendant's objective in this action is to ensure (1) that it does not violate the Privacy Act, (2) that any disclosure by it of Privacy Act-protected records is done pursuant to the order of a court of competent ...