1 MUnCiGteRd ESGtaOteRs AWtt.o SrCneOyT T 2 JOSEPH B. FRUEH Assistant United States Attorney 3 501 I Street, Suite 10-100 Sacramento, CA 95814 4 E-mail: joseph.frueh@usdoj.gov Telephone: (916) 554-2702 5 Facsimile: (916) 554-2900

6 Attorneys for Defendant

UNITED STATES OF AMERICA

7 Counsel for Remaining Parties 8 Listed on Signature Page

9

10 IN THE UNITED STATES DISTRICT COURT

11 EASTERN DISTRICT OF CALIFORNIA

12

13 NORA WASHINGTON, Case No. 2:18-cv-02474-WBS-AC

14 Plaintiff, STIPULATION AND PROPOSED PRIVACY

ACT PROTECTIVE ORDER

15 v.

16 UNITED STATES OF AMERICA, a public entity; COUNTY OF SACRAMENTO, 17 SACRAMENTO INTERNATIONAL AIRPORT, a public entity; and DOES 1 18 through 100;

19 Defendants.

20 21 22 23 24 25 26 27 28 1 STIPULATION AND PROPOSED PRIVACY ACT PROTECTIVE ORDER 2 IT IS HEREBY STIPULATED, by and between the parties and subject to Court approval, that 3 the parties to the above-captioned action may produce, receive, and use documents and testimony 4 otherwise restricted by the Privacy Act, 5 U.S.C. § 552a, subject to the terms and conditions of the 5 following Order issued pursuant to 5 U.S.C. § 552a(b)(11).1 6 I. PURPOSE OF PRIVACY ACT PROTECTIVE ORDER 7 A. Plaintiff Nora Washington alleges she sustained personal injuries during a security pat- 8 down in Terminal A at the Sacramento International Airport (“SMF”) on August 3, 2017. She seeks 9 damages from Defendant United States of America under the Federal Tort Claims Act, 28 U.S.C 10 §§ 1346(b), 2671–80. She also seeks damages from Defendant County of Sacramento. 11 B. The Transportation Security Administration (“TSA”) possesses documents and 12 information relevant to the parties’ claims and defenses that likely are subject to the Privacy Act, 13 5 U.S.C. § 552a. Such documents and information concern personnel information about TSA 14 employees who participated in or witnessed Plaintiff’s pat-down on August 3, 2017. 15 C. The parties submit that the need for disclosure of the foregoing documents and 16 information outweighs any potential harm to nonparties, provided that appropriate safeguards are 17 imposed and the disclosed documents and information are used solely in this litigation. 18 D. This Order permits the United States and TSA to produce the specified documents and 19 information, but does not require production. 20 E. This Order does not affect the rights of any party to object to discovery pursuant to the 21 Federal Rules of Civil Procedure or other authority, nor is it intended to alter any burden of proof 22 regarding the assertion of a privilege. 23

24 1 This court-order exception confirms that the Privacy Act “cannot be used to block the normal course of court proceedings, including court-ordered discovery.” Clavir v. United States, 84 F.R.D. 612, 25 614–15 (S.D.N.Y. 1979). A court may permit the disclosure of records under § 552a(b)(11) where they meet the relevance standard of Rule 26 of the Federal Rules of Civil Procedure. See Wallman v. Tower 26 Air, Inc., 189 F.R.D. 566, 569 (N.D. Cal. 1999) (finding “no basis” to infer that “actual need” is a 27 prerequisite to permit disclosure under § 522(a)(b)(11), or that the Privacy Act “replaces the usual discovery standards of the FRCP . . . with a different and higher standard.” (quoting Laxalt v. 28 McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987)). 1 F. This Order is not a ruling on whether a particular document or category of information is 2 discoverable or admissible. 3 G. This Order does not prohibit a party from seeking further protection by a Court-approved 4 stipulation or applying to the Court directly. 5 H. This Order does not waive the right of the United States or TSA to use or disclose 6 documents or information in accordance with the Privacy Act or other statutes, regulations, or policies. 7 I. The Department of Justice, the United States Attorney’s Office, and TSA shall bear no 8 responsibility or liability for any disclosure made pursuant to this Order. 9 II. DISCLOSURE AND USE OF PRIVACY ACT MATERIAL 10 1. Documents and information designated by the United States as Privacy Act Material shall 11 be used solely for the purpose of litigating the above-captioned action, including any appeals, and shall 12 not be disclosed outside of discovery and court proceedings. The parties shall comply with the 13 provisions of Federal Rule of Civil Procedure 5.2 and Local Rules 140 and 141 with respect to 14 redactions of documents containing Privacy Act Material and any requests to file documents containing 15 Privacy Act Material under seal. 16 2. After the final termination of this action, including appeals, counsel for the United States 17 shall serve a written request to counsel for Plaintiff and Defendant County of Sacramento to (a) destroy 18 or return to counsel for the United States all originals and any copies of Privacy Act Material; and 19 (b) certify in writing that the provisions of this paragraph have been complied with. Counsel for 20 Plaintiff and Defendant County of Sacramento shall comply with this request within 60 days of service. 21 Notwithstanding this provision, counsel for Plaintiff and Defendant County of Sacramento are entitled to 22 retain an archival copy of all pleadings; motion papers; trial, deposition, and hearing transcripts; legal 23 memoranda; correspondence; deposition and trial exhibits; expert reports; attorney work product; and 24 consultant and expert work product, even if such materials contain Privacy Act Material. Any such 25 archival copies that contain or constitute Privacy Act Material remain subject to this Order. 26 3. Nothing contained in this Order, nor any action taken in compliance with it, shall operate 27 as an admission or assertion by any witness or person or entity producing documents that any particular 28 document or information is, or is not, admissible in evidence. 1 4. Nothing herein constitutes or may be interpreted as a waiver by any party of the attorney- 2 || client privilege, the attorney work product privilege, or any other privilege. 3 4 || Dated: September 3, 2019 McGREGOR W. SCOTT 5 United States Attorney By: /s/ Joseph B. Frueh 6 JOSEPH B. FRUEH 5 Assistant United States Attorney Attorneys for Defendant 8 UNITED STATES OF AMERICA 9 || Dated: August 29, 2019 MASTAGNI HOLSTEDT, A.P.C. 1912 I Street 10 Sacramento, CA 95811 Telephone: (916) 446-4692 11 Facsimile: (916) 447-4614 12 By: /s/ Brett D. Beyler (authorized 8/29/2019)

B BRETT D. BEYLER

Attorneys for Plaintiff 14 NORA WASHINGTON 15 || Dated: September 3, 2019 LONGYEAR, O’DEA & LAVRA, LLP 16 3620 American River Drive, Suite 230 Sacramento, CA 95864 17 Telephone: (916) 974-8500 Facsimile: (916) 974-8510 1 8 By: /s/ Mark P. O’Dea (authorized 9/3/2019) 19 MARK P. O’DEA 20 Attorneys for Defendant

COUNTY OF SACRAMENTO

21 22 || IT ISSO ORDERED ~ 23 || Dated: September 3, 2019 Chtten— Lhar—e_

ALLISON CLAIRE

24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28

STIPUT ATION AND PROPOSED PRIVACY ACT