1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 9 10 GABRIELA SOLANO, on behalf of Case No. 2:21-cv-01576-AB (KSx) herself and those similarly situated, 11 [PROPOSED] ORDER GRANTING Plaintiff, JOINT MOTION FOR ENTRY OF 12 STIPULATED PROTECTIVE vs. ORDER 13

U.S. IMMIGRATION AND

14 CUSTOMS ENFORCEMENT; TAE D. JOHNSON, Acting Director of U.S. 15 Immigration and Customs Enforcement; DAVID MARIN, Director of Los 16 Angeles Field Office, U.S. Immigration and Customs Enforcement; DAVID 17 JENNINGS, Director of San Francisco Field Office, U.S. Immigration and 18 Customs Enforcement,

19 Defendants.

20 21 22 23 24 25 26 27 1 Having considered the parties’ Joint Motion for Entry of Stipulated Protective 2 || Order, the parties’ Stipulated Protective Order (attached), all attachments thereto, and all 3 || other relevant documents, 4 IT IS HEREBY ORDERED: 5 The parties’ Joint Motion for Entry of Stipulated Protective Order is GRANTED. 6 || The Court approves and enters the attached Stipulated Protective Order AS MODIFIED 7 | BY THE COURT. 8 9 || DATED: November 12, 2021 10 ll 7 Saun A: Kosensm 2 HON. KAREN L. STEVENSON United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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15 GABRIELA SOLANO, on behalf of Case No. 2:21-cv-01576-AB (KSx) herself and those similarly situated, 16 Plaintiff, 17 STIPULATED PROTECTIVE v. ORDER 18

U.S. IMMIGRATION AND CUSTOMS

19 ENFORCEMENT; TAE D. JOHNSON, Honorable Karen L. Stevenson Acting Director of U.S. Immigration and United States Magistrate Judge 20 Customs Enforcement; DAVID MARIN, Director of Los Angeles Field 21 Office, U.S. Immigration and Customs Enforcement; DAVID JENNINGS, 22 Director of San Francisco Field Office, U.S. Immigration and Customs Enforcement, 23

24 Defendants. 25 26 27 1 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based 2 on the parties’ proposed Stipulated Protective Order (“Stipulation”) filed on 3 November 11, 2021, the terms of the protective order to which the parties have 4 agreed are adopted as a protective order of this Court (which generally shall 5 govern the pretrial phase of this action) except to the extent, as set forth below, 6 that those terms have been modified by the Court’s amendment of paragraphs 7 7.2(c), (f), (h) and paragraph 10 of the Stipulation. 8 9 AGREED TERMS OF THE PROTECTIVE ORDER AS ADOPTED AND 10

MODIFIED BY THE COURT1

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12 1. A. PURPOSES AND LIMITATIONS 13 Discovery1 in this action is likely to involve production of confidential, 14 proprietary, or private information for which special protection from public disclosure 15 and from use for any purpose other than prosecuting this litigation may be warranted. 16 Accordingly, the parties hereby stipulate to and petition the Court to enter the 17 following Stipulated Protective Order. The parties acknowledge that this Order does 18 not confer blanket protections on all disclosures or responses to discovery and that 19 the protection it affords from public disclosure and use extends only to the limited 20 information or items that are entitled to confidential treatment under the applicable 21 legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 22 23 1 The Court’s deletions are indicated by lines through the text being deleted. The 24 Court has made no additions to the proposed text. 25 1 Defendants still maintain that discovery is not appropriate in this challenge to administrative agency action under the Administrative Procedure Act. See Fla. 26 Power & Light Co. v. Lorion, 470 U.S. 729, 743–44 (1985). But to the extent that 27 the Court permits and the parties engage in discovery regardless, the parties believe the protections of this order are necessary. 1 that this Stipulated Protective Order does not entitle them to file confidential 2 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 3 followed and the standards that will be applied when a party seeks permission from 4 the court to file material under seal. 5 B. GOOD CAUSE STATEMENT 6 This action is likely to involve confidential proprietary information for which 7 special protection from public disclosure and from use for any purpose other than 8 prosecution of this action is warranted. Such confidential and proprietary materials 9 and information consist of, among other things, personally identifiable information 10 and other immigration information protected from disclosure by the Privacy Act and 11 other federal statutes, confidential business or financial information, information 12 regarding confidential business and governmental agency practices, or other 13 confidential research, development, or commercial information (including 14 information implicating privacy rights of third parties). Accordingly, to expedite the 15 flow of information, to facilitate the prompt resolution of disputes over confidentiality 16 of discovery materials, to adequately protect information the parties are entitled to 17 keep confidential, to ensure that the parties are permitted reasonable necessary uses 18 of such material in preparation for and in the conduct of trial, to address their handling 19 at the end of the litigation, and serve the ends of justice, a protective order for such 20 information is justified in this matter. It is the intent of the parties that information 21 will not be designated as confidential for tactical reasons and that nothing be so 22 designated without a good faith belief that it has been maintained in a confidential, 23 non-public manner, and there is good cause why it should not be part of the public 24 record of this case. 25 2. DEFINITIONS 26 2.1 Action: Gabriela Solano v. U.S. Immigration and Customs 27 Enforcement, et al., No. 2:21-cv-01576-AB (KSx) (C.D. Cal.). 1 2.2 Challenging Party: a Party or Non-Party that challenges 2 the designation of information or items under this Order. 3 2.3 “CONFIDENTIAL” Information or Items: information (regardless 4 of how it is generated, stored or maintained) revealing the following: 5 (a) Information exempted from disclosure under the Privacy Act, 5 U.S.C. § 6 522a, et seq., and other federal statutes and regulations, including 8 U.S.C. 7 § 1367 and 8 C.F.R § 1208.6, or covered by Federal Rule of Civil 8 Procedure 5.2; 9 (b) Any individual’s medical information, juvenile criminal records, birth 10 date, social security number, tax identification number, alien registration 11 number (“A number”), passport numbers, driver’s license numbers, 12 contact information, and any similar numbers assigned to an individual by 13 a federal, state, or local government of the United States, including 14 Originating Agency Identification (ORI) Numbers; and 15 (c) Business, commercial, proprietary, or financial information or practices, 16 including contracts and contract-related documents. 17 2.4 Counsel: Outside Counsel of Record and House or Agency 18 Counsel (as well as their support staff). 19 2.5 Designating Party: a Party or Non-Party that designates information 20 or items that it produces in disclosures or in responses to discovery as 21 “CONFIDENTIAL.” 22 2.6 Disclosure or Discovery Material: all items or information, 23 regardless of the medium or manner in which it is generated, stored, or maintained 24 (including, among other things, testimony, transcripts, and tangible things), that are 25 produced or generated in disclosures or responses to discovery in this matter. 26 2.7 Expert: a person with specialized knowledge or experience in a 27 matter pertinent to the litigation who has been retained by a Party or its counsel to 1 2.8 House or Agency Counsel: attorneys who are employees of a party 2 to this Action. House (or Agency) Counsel does not include Outside Counsel 3 of Record or any other outside counsel. 4 2.9 Non-Party: any natural person, partnership, corporation, association, 5 or other legal entity not named as a Party to this action. 6 2.10 Outside Counsel of Record: attorneys who are not employees of a 7 party to this Action but are retained to represent or advise a party to this Action and 8 have appeared in this Action on behalf of that party or are affiliated with a law firm 9 which has appeared on behalf of that party, and includes support staff. 10 2.11 Party: any party to this Action, including all of its officers, directors, 11 employees, consultants, retained experts, and Outside Counsel of Record (and their 12 support staffs). 13 2.12 Producing Party: a Party or Non-Party that produces Disclosure or 14 Discovery Material in this Action. 15 2.13 Professional Vendors: persons or entities that provide litigation 16 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 17 demonstrations, and organizing, storing, or retrieving data in any form or medium) 18 and their employees and subcontractors. 19 2.14 Protected Material: any Disclosure or Discovery Material that is 20 designated as “CONFIDENTIAL.” 21 2.15 Receiving Party: a Party that receives Disclosure or Discovery 22 Material from a Producing Party. 23 3. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or 26 extracted from Protected Material; (2) all copies, excerpts, summaries, or 27 compilations of Protected Material; and (3) any testimony, conversations, or 1 Any use of Protected Material at trial shall be governed by the orders of the 2 trial judge. This Order does not govern the use of Protected Material at trial. 3 4. DURATION 4 Once a case proceeds to trial, all of the information that was designated as 5 confidential or maintained pursuant to this protective order becomes public and will 6 be presumptively available to all members of the public, including the press, unless 7 compelling reasons supported by specific factual findings to proceed otherwise are 8 made to the trial judge in advance of the trial. See Kamakana v. City and County of 9 Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause” 10 showing for sealing documents produced in discovery from “compelling reasons” 11 standard when merits-related documents are part of court record). Accordingly, the 12 terms of this protective order do not extend beyond the commencement of the trial. 13 5. DESIGNATING PROTECTED MATERIAL 14 5.1 Exercise of Restraint and Care in Designating Material for Protection. 15 Each Party or Non-Party that designates information or items for protection under this 16 Order must take care to limit any such designation to specific material that qualifies 17 under the appropriate standards. The Designating Party must designate for protection 18 only those parts of material, documents, items, or oral or written communications that 19 qualify so that other portions of the material, documents, items, or communications 20 for which protection is not warranted are not swept unjustifiably within the ambit of 21 this Order. 22 Mass, indiscriminate, or routinized designations are prohibited. Designations 23 that are shown to be clearly unjustified or that have been made for an improper 24 purpose (e.g., to unnecessarily encumber the case development process or to impose 25 unnecessary expenses and burdens on other parties) may expose the Designating Party 26 to sanctions. 27 1 If it comes to a Designating Party’s attention that information or items that it 2 designated for protection do not qualify for protection, that Designating Party must 3 promptly notify all other Parties that it is withdrawing the inapplicable designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in 5 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 6 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 7 under this Order must be clearly so designated before the material is disclosed or 8 produced. 9 Designation in conformity with this Order requires: 10 (a) for information in documentary form (e.g., paper or electronic documents, 11 but excluding transcripts of depositions or other pretrial or trial proceedings), that the 12 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter 13 “CONFIDENTIAL legend”), to each page that contains protected material. If only a 14 portion or portions of the material on a page qualifies for protection, the Producing 15 Party also must clearly identify the protected portion(s) (e.g., by making appropriate 16 markings in the margins). 17 A Party or Non-Party that makes original documents available for inspection 18 need not designate them for protection until after the inspecting Party has indicated 19 which documents it would like copied and produced. During the inspection and before 20 the designation, all of the material made available for inspection shall be deemed 21 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants 22 copied and produced, the Producing Party must determine which documents, or 23 portions thereof, qualify for protection under this Order. Then, before producing the 24 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” 25 to each page that contains Protected Material. If only a portion or portions of the 26 material on a page qualifies for protection, the Producing Party also must clearly 27 identify the protected portion(s) (e.g., by making appropriate markings in the 1 (b) for testimony given in depositions that the Designating Party identify the 2 Disclosure or Discovery Material on the record, within two business days of the close 3 of the deposition all protected testimony. 4 (c) for information produced in some form other than documentary and for 5 any other tangible items, that the Producing Party affix in a prominent place on the 6 exterior of the container or containers in which the information is stored the legend 7 “CONFIDENTIAL.” If only a portion or portions of the information warrants 8 protection, the Producing Party, to the extent practicable, shall identify the protected 9 portion(s). 10 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 11 failure to designate qualified information or items does not, standing alone, waive the 12 Designating Party’s right to secure protection under this Order for such material. 13 Upon timely correction of a designation, the Receiving Party must make reasonable 14 efforts to assure that the material is treated in accordance with the provisions of this 15 Order. 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 18 designation of confidentiality at any time that is consistent with the Court’s 19 Scheduling Order. 20 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 21 resolution process under Local Rule 37.1 et seq. 22 6.3 The burden of persuasion in any such challenge proceeding shall be on 23 the Designating Party. Frivolous challenges, and those made for an improper purpose 24 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 25 expose the Challenging Party to sanctions. Unless the Designating Party has waived 26 or withdrawn the confidentiality designation, all parties shall continue to afford the 27 material in question the level of protection to which it is entitled under the Producing 1 7. ACCESS TO AND USE OF PROTECTED MATERIAL 2 7.1 Basic Principles. A Receiving Party may use Protected Material that is 3 disclosed or produced by another Party or by a Non-Party in connection with this 4 Action only for prosecuting, defending, or attempting to settle this Action. Such 5 Protected Material may be disclosed only to the categories of persons and under the 6 conditions described in this Order. When the Action has been terminated, a Receiving 7 Party must comply with the provisions of section 13 below (FINAL DISPOSITION). 8 Protected Material must be stored and maintained by a Receiving Party at a 9 location and in a secure manner that ensures that access is limited to the persons 10 authorized under this Order. 11 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 12 otherwise ordered by the court or permitted in writing by the Designating Party, a 13 Receiving Party may disclose any information or item designated 14 “CONFIDENTIAL” only to: 15 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well 16 as employees of said Outside Counsel of Record to whom it is reasonably necessary 17 to disclose the information for this Action; 18 (b) the officers, directors, and employees (including House or Agency 19 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this 20 Action; 21 (c) Experts (as defined in this Order) of the Receiving Party to whom 22 disclosure is reasonably necessary for this Action and who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (d) the court and its personnel; 25 (e) court reporters and their staff; 26 (f) professional jury or trial consultants, mock jurors, and Professional 27 Vendors to whom disclosure is reasonably necessary for this Action and who have 1 (g) the author or recipient of a document containing the information or a 2 custodian or other person who otherwise possessed or knew the information; 3 (h) during their depositions, witnesses, and attorneys for witnesses, in the 4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party 5 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will 6 not be permitted to keep any confidential information unless they sign the 7 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 8 agreed by the Designating Party or ordered by the court. Pages of transcribed 9 deposition testimony or exhibits to depositions that reveal Protected Material may 10 be separately bound by the court reporter and may not be disclosed to anyone except 11 as permitted under this Stipulated Protective Order; 12 (i) any mediator or settlement officer, and their supporting personnel, 13 mutually agreed upon by any of the parties engaged in settlement discussions; and 14 (j) any putative class member or class member to whom the information 15 pertains, and to counsel providing representation to the putative class member or 16 class member. 17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 18

OTHER LITIGATION

19 If a Party is served with a subpoena or a court order issued in other litigation 20 that compels disclosure of any information or items designated in this Action as 21 “CONFIDENTIAL,” that Party must: 22 (a) promptly notify in writing the Designating Party. Such notification shall 23 include a copy of the subpoena or court order; 24 (b) promptly notify in writing the party who caused the subpoena or order to 25 issue in the other litigation that some or all of the material covered by the subpoena 26 or order is subject to this Protective Order. Such notification shall include a copy of 27 this Stipulated Protective Order; and 1 (c) cooperate with respect to all reasonable procedures sought to be pursued by 2 the Designating Party whose Protected Material may be affected. 3 If the Designating Party timely seeks a protective order, the Party served with 4 the subpoena or court order shall not produce any information designated in this action 5 as “CONFIDENTIAL” before a determination by the court from which the subpoena 6 or order issued, unless the Party has obtained the Designating Party’s permission. The 7 Designating Party shall bear the burden and expense of seeking protection in that court 8 of its confidential material and nothing in these provisions should be construed as 9 authorizing or encouraging a Receiving Party in this Action to disobey a lawful 10 directive from another court. 11 8. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 12

PRODUCED IN THIS LITIGATION

13 (a) The terms of this Order are applicable to information produced by a Non- 14 Party in this Action and designated as “CONFIDENTIAL.” Such information 15 produced by Non-Parties in connection with this litigation is protected by the 16 remedies and relief provided by this Order. Nothing in these provisions should be 17 construed as prohibiting a Non-Party from seeking additional protections. 18 (b) In the event that a Party is required, by a valid discovery request, to 19 produce a Non-Party’s confidential information in its possession, and the Party is 20 subject to an agreement with the Non-Party not to produce the Non-Party’s 21 confidential information, then the Party shall: 22 (1) promptly notify in writing the Requesting Party and the Non- 23 Party that some or all of the information requested is subject to a confidentiality 24 agreement with a Non-Party; 25 (2) promptly provide the Non-Party with a copy of the Stipulated 26 Protective Order in this Action, the relevant discovery request(s), and a reasonably 27 specific description of the information requested; and 1 (3) make the information requested available for inspection by the 2 Non-Party, if requested. 3 (c) If the Non-Party fails to seek a protective order from this court within 4 14 days of receiving the notice and accompanying information, the Receiving Party 5 may produce the Non-Party’s confidential information responsive to the discovery 6 request. If the Non-Party timely seeks a protective order, the Receiving Party shall 7 not produce any information in its possession or control that is subject to the 8 confidentiality agreement with the Non-Party before a determination by the court. 9 Absent a court order to the contrary, the Non-Party shall bear the burden and 10 expense of seeking protection in this court of its Protected Material. 11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 13 Protected Material to any person or in any circumstance not authorized under this 14 Stipulated Protective Order, the Receiving Party must immediately (a) notify in 15 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 16 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or 17 persons to whom unauthorized disclosures were made of all the terms of this Order, 18 and (d) request such person or persons to execute the “Acknowledgment and 19 Agreement to Be Bound” that is attached hereto as Exhibit A. 20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 21

PROTECTED MATERIAL

22 When a Producing Party gives notice to Receiving Parties that certain 23 inadvertently produced material is subject to a claim of privilege or other protection, 24 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil 25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 26 may be established in an e-discovery order that provides for production without prior 27 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 1 information covered by the attorney-client privilege or work product protection, the 2 parties may incorporate their agreement in the stipulated protective order submitted 3 to the court. 4 12. MISCELLANEOUS 5 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 6 person to seek its modification by the Court in the future. 7 12.2 Right to Assert Other Objections. By stipulating to the entry of this 8 Protective Order no Party waives any right it otherwise would have to object to 9 disclosing or producing any information or item on any ground not addressed in this 10 Stipulated Protective Order. Similarly, no Party waives any right to object on any 11 ground to use in evidence of any of the material covered by this Protective Order. 12 12.3 Filing Protected Material. A Party that seeks to file under seal any 13 Protected Material must comply with Civil Local Rule 79-5. Protected Material may 14 only be filed under seal pursuant to a court order authorizing the sealing of the specific 15 Protected Material at issue. If a Party's request to file Protected Material under seal is 16 denied by the court, then the Receiving Party may file the information in the public 17 record unless otherwise instructed by the court. 18 13. FINAL DISPOSITION 19 After the final disposition of this Action, as defined in paragraph 4, within 60 20 days of a written request by the Designating Party, each Receiving Party must return 21 all Protected Material to the Producing Party or destroy such material. As used in this 22 subdivision, “all Protected Material” includes all copies, abstracts, compilations, 23 summaries, and any other format reproducing or capturing any of the Protected 24 Material. Whether the Protected Material is returned or destroyed, the Receiving Party 25 must submit a written certification to the Producing Party (and, if not the same person 26 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by 27 category, where appropriate) all the Protected Material that was returned or destroyed 1 compilations, summaries or any other format reproducing or capturing any of the 2 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an 3 archival copy of all pleadings, motion papers, trial, deposition, and hearing 4 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert 5 reports, attorney work product, and consultant and expert work product, even if such 6 materials contain Protected Material. Any such archival copies that contain or 7 constitute Protected Material remain subject to this Protective Order as set forth in 8 Section 4 (DURATION). 9 14. Any violation of this Order may be punished by any and all appropriate 10 measures including, without limitation, contempt proceedings and/or monetary 11 sanctions. 12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 13 14 DATED: November 12, 2021 Respectfully submitted,

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AMERICAN CIVIL LIBERTIES

16 UNION FOUNDATION OF

NORTHERN CALIFORNIA

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18 /s/ Vasudha Talla

VASUDHA TALLA

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20 Attorney for Plaintiff 21 22 Dated: November 12, 2021 Respectfully submitted,

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BRIAN M. BOYNTON

24 Acting Assistant Attorney General Civil Division 25

26 WILLIAM C. PEACHEY Director, District Court Section 27 Office of Immigration Litigation 1 LAUREN C. BINGHAM Senior Litigation Counsel 2

3 /s/ Joseph A. Darrow

JOSEPH A. DARROW

4 Trial Attorney 5 U.S. Department of Justice, Civil Div. Office of Immigration Litigation-DCS 6 P.O. Box 868, Ben Franklin Station 7 Washington, DC 20044 (202) 598-7537 8 Joseph.a.darrow@usdoj.gov 9 Attorneys for Defendants 10

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