Nathaniel Hampton v. Chad Wolf

1 TRACY L. WILKISON Acting United States Attorney 2 DAVID M. HARRIS Assistant United States Attorney 3 Chief, Civil Division JOANNE S. OSINOFF 4 Assistant United States Attorney Chief, General Civil Section, Civil Division 5 ALARICE M. MEDRANO (Cal. Bar No. 166730) Assistant United States Attorneys 6 Federal Building, Suite 7516 300 North Los Angeles Street 7 Los Angeles, California 90012 Telephone: (213) 894-0460 8 Facsimile: (213) 894-7819 E-mail: Alarice.Medrano@usdoj.gov [9] Attorneys for Defendant, Chad F. Wolf 10 Secretary, United States Department of Homeland Security [11] 12 UNITED STATES DISTRICT COURT 13 FOR THE CENTRAL DISTRICT OF CALIFORNIA 14 WESTERN DIVISION 15 NATHANIEL HAMPTON, No. CV 19-10700 CBM (MAAx) 16 Plaintiff, [PROPOSED] STIPULATED PROTECTIVE ORDER 17 v. RE: SENSITIVE SECURITY INFORMATION (SSI) 18 CHAD F. WOLF, ACTING SECRETARY, UNITED STATES 19 DEPARTMENT OF HOMELAND SECURITY, [Discovery Document: Referred to 20 Magistrate Judge Maria A. Audero] Defendant. [22] 23 1. PURPOSES AND LIMITATIONS 24 Discovery in this action is likely to involve production of Sensitive Security 25 Information (“SSI”) as defined by 49 C.F.R. Part 1520, such as screening operations 26 information and screening metrics for the Transportation Security Administration 27 (“TSA”) at the Los Angeles International Airport. Accordingly, in order to permit the 1 undermining legitimate security concerns, and pursuant to Rule 26 of the Federal Rules 2 of Civil Procedure, the parties hereby stipulate to and petition the Court to enter the 3 following Stipulated Protective Order. The Stipulated Protective Order shall hereafter 4 govern the use, handling, and disposition of information, testimony or documents 5 obtained during discovery in the above captioned matter (“the Litigation”), which 6 constitutes Sensitive Security Information (“SSI”) as defined by 49 C.F.R. Part 1520. 7 The parties acknowledge that this Stipulated Protective Order does not confer blanket 8 protections on all disclosures or responses to discovery and that the protection it affords 9 from public disclosure and use extends only to the information that is entitled to the 10 protections afforded by 49 U.S.C. § 114 (r) and 49 C.F.R. Part 1520. The parties further 11 acknowledge, as set forth in Section 9.3 below, that this Stipulated Protective Order does 12 not entitle them to file SSI under seal; Local Rule 79-5 sets forth the procedures that 13 must be followed and the standards that will be applied when a party seeks permission 14 from the Court to file material under seal. Discovery in this action is likely to involve 15 production of Sensitive Security Information (“SSI”) as defined by 49 C.F.R. Part 1520, 16 for which special protection from public disclosure and from use for any purpose other 17 than prosecuting this litigation is warranted. 18 2. GOOD CAUSE STATEMENT 19 This action is likely to involve Sensitive Security Information (“SSI”) as defined 20 by 49 C.F.R. Part 1520, such as screening operations and metrics for the Transportation 21 Security Administration (“TSA”) at the Los Angeles International Airport.. The 22 disclosure of the SSI in question by definition would be “detrimental to the security of 23 transportation,” 49 C.F.R. § 1520.5 (a)(3), and therefore cause substantial harm to public 24 safety. If unauthorized individuals were able to discover information about how TSA 25 conducts its screening operations, they might be able to evade TSA’s security operations 26 and engage in acts of terrorism. Therefore, this protective order is necessary to allow the 27 parties to exchange relevant documents and information in accordance with federal law 1 measures. Accordingly, to expedite the flow of information, to facilitate the prompt 2 resolution of disputes over confidentiality of discovery materials, to adequately protect 3 SSI, to ensure that the parties are permitted reasonable necessary uses of such material in 4 preparation for and in the conduct of trial, to address their handling at the end of the 5 litigation, and to serve the ends of justice, a protective order for such information is 6 justified in this matter. Information will not be designated as SSI to conceal a violation 7 of law, inefficiency, or administrative error; to prevent embarrassment to a person, 8 organization, or agency; to restrain competition; or to prevent or delay the release of 9 information that does not require protection in the interest of transportation security, 10 including basic scientific research information not clearly related to transportation 11 security. TSA will only designate information as SSI consistent with 49 C.F.R. Part 12 1520. 13 3. DEFINITIONS 14 3.1. Action: This pending federal lawsuit. 15 3.2. “Covered persons”: persons who have an express duty to protect against 16 the unauthorized disclosure of SSI. 49 C.F.R. § 1520.9 . 17 3.3. Discovery Material: material encompassed in this Protective Order that 18 includes, without limitation, deposition testimony, deposition exhibits, 19 interrogatory responses, admissions, affidavits, declarations, documents 20 produced pursuant to compulsory process or voluntarily in lieu of process, 21 and any other documents or information produced or given to one party by 22 another party or by a third party in connection with discovery in this matter. 23 Information taken from Discovery Material that reveals its substance shall 24 also be considered Discovery Material. 25 3.4. Party: Any party to this Action. 26 3.5. Sensitive Security Information or SSI: a specific category of information 27 that requires protection against unauthorized disclosure pursuant to 49 1 3.6. TSA: Designates information as SSI. TSA’s SSI determinations are 2 subject to exclusive review in a court of appeals pursuant to 49 U.S.C. § 3 46110. See, e.g., Elec. Privacy Info. Ctr. v. DHS, 928 F. Supp. 2d 139 , 1464 47 (D.D.C. 2013) (“[D]istrict courts may not review TSA orders that 5 designate material as sensitive security information.”); Shqeirat v. U.S. 6 Airways Group, Inc., No. 07-1513, 2008 WL 4232018 , at *2 (D. Minn. 7 Sept. 9, 2008) (“District Courts are without jurisdiction to entertain 8 challenges to the TSA’s decisions regarding disclosure of SSI.”); In re 9 September 11 Litigation, 236 F.R.D. 164, 174-75 (S.D.N.Y. 2006); 10 Chowdhury v. Northwest Airlines Corp., 226 F.R.D. 608, 614 (N.D. Cal. 11 2004). 12 4. SCOPE 13 Information taken from Discovery Material that reveals its substance shall also be 14 considered Discovery Material. 15 5. DURATION 16 Even after final disposition of this litigation, the confidentiality obligations 17 imposed by this Stipulated Protective Order shall remain in effect unless TSA agrees 18 otherwise in writing. Final disposition shall be deemed to be the later of (1) dismissal of 19 all claims and defenses in this Action, with or without prejudice; and (2) final judgment 20 herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or 21 reviews of this Action, including the time limits for filing any motions or applications 22 for extension of time pursuant to applicable law. 23 6. DESIGNATING SSI 24 6.1. Exercise of Restraint and Care in Designating SSI. 25 TSA shall only designate information as SSI as provided for by 49 26 C.F.R. Part 1520. 27 6.2. Manner and Timing of Designations. 1 follows: “Confidential: Subject to SSI Protective Order in Nathaniel 2 Hampton v. Chad Wolf, CV 19-10700 CBM (MAAx).” 3 (b) Deposition testimony that may contain SSI should be so designated 4 by verbal notice or written notice within 10 days of receipt of the transcript. 5 However, testimony containing SSI that is not designated, through mistake, 6 nonetheless must be safeguarded against unauthorized disclosure. 7 6.3. Inadvertent Failure to Designate. 8 Documents containing SSI that inadvertently have not been marked as SSI 9 still must be safeguarded against unauthorized disclosure. 10 7. CHALLENGING SSI DESIGNATIONS 11 7.1. Timing of Challenges. 12 Plaintiff may challenge a designation of confidentiality at any time that is 13 consistent with the Court’s Scheduling Order, provided, however, that 14 Plaintiff’s challenge is consistent with the 60-day limitation provided for by [15] 49 U.S.C. § 46110 , which governs judicial review of challenges to TSA’s 16 SSI designations. See MacLean v. DHS, 543 F.3d 1145, 1149 (9th Cir. 17 2008) 18 7.2. Meet and Confer and Judicial Review. 19 Plaintiff shall initiate the dispute resolution process, which shall comply 20 with Local Rule 37.1 et seq., and with Section 4 of Judge Audero’s 21 Procedures (“Mandatory Telephonic Conference for Discovery Disputes”).1 22 If the parties are unable to reach a resolution, TSA may issue a final order [24] 1 Judge Audero’s Procedures are available at 25 https://www.cacd.uscourts.gov/honorable-maria-audero. Judge Audero’s requirements (para. 4) in part provide for communications with Judge Audero’s chambers regarding a 26 discovery dispute, including emailing chambers and if appropriate after a telephonic conference, a discovery motion. The parties are relieved from these obligations, in light 27 of the district court’s lack of jurisdiction to review TSA’s SSI designations as further explained in Section 7.2. Plaintiff must still engage in at least two attempts to resolve the dispute without Court involvement consistent with the pre-filing conference of 1 regarding the SSI, as appropriate, and if issued, Plaintiff may file a Petition 2 for Review in an appropriate U.S. Court of Appeals within the timeframe 3 set forth in 49 U.S.C. § 46110 . See Elec. Privacy Info. Ctr. v. DHS, 928 F. 4 Supp. 2d 139, 146-47 (D.D.C. 2013) (“[D]istrict courts may not review 5 TSA orders that designate material as sensitive security information.”); 6 Shqeirat v. U.S. Airways Group, Inc., No. 07-1513, 2008 WL 4232018 , at 7 *2 (D. Minn. Sept. 9, 2008) (“District Courts are without jurisdiction to 8 entertain challenges to the TSA’s decisions regarding disclosure of SSI.”); 9 In re September 11 Litigation, 236 F.R.D. 164, 174-75 (S.D.N.Y. 2006); 10 Chowdhury v. Northwest Airlines Corp., 226 F.R.D. 608, 614 (N.D. Cal. 11 2004). 12 8. ACCESS TO AND USE OF PROTECTED MATERIALS 13 8.1. Basic Principles. 14 Plaintiff and Plaintiff’s counsel may use SSI disclosed to them in the course 15 of litigating the above-captioned action (“Litigation”) only for the purpose 16 of plaintiff in the Litigation and not any other purpose. SSI may not be 17 further disseminated except as described herein, including to a jury, except 18 with written permission from TSA. SSI may be disclosed only to “covered 19 persons” with a “need to know” under the conditions described in this 20 Stipulated Protective Order. When the Action reaches a final disposition, 21 Plaintiff and Plaintiff’s counsel must comply with the provisions of Section 22 10 below. 23 8.2. Disclosure of SSI. 24 (a) Access to SSI is limited to “covered persons” with a “need to know” 25 as set forth in 49 C.F.R. § 1520.7 and § 1520.11. Because the parties, their 26 attorneys, the Court and its employees may be “covered persons” with a 27 “need to know” some or all of the SSI relevant to this case, this order 1 information and materials that are marked as SSI or may contain SSI, 2 provided that Plaintiff had access to such information during his 3 employment with TSA. The right of access to discovery materials marked 4 as SSI or containing SSI shall be limited to the Court and its employees, 5 Plaintiff, and counsel for the parties, paralegal, secretarial and clerical 6 personnel in their employ. Court reporters retained by the parties for 7 purposes of recording depositions and who have signed a TSA-approved 8 Non-Disclosure Agreement may also have access to SSI. 9 (b) Documents that contain SSI may not be further disseminated to 10 persons without a “need to know” except with written permission from 11 TSA. SSI must not be disclosed by either party to any person or entity other 12 than those enumerated in section 7.2(a). 13 8.3 Safeguarding SSI. 14 SSI must be safeguarded in such a way that it is not physically or 15 visually accessible to persons who do not have a “need to know,” as defined 16 in 49 C.F.R. § 1520.11 . When unattended, SSI must be secured in a locked 17 container or office, or other restricted access area. 18 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 19 If a “covered person” learns that, by inadvertence or otherwise, it has disclosed 20 SSI to any person or in any circumstance not authorized under this Stipulated Protective 21 Order, the covered person immediately must (1) notify in writing TSA of the 22 unauthorized disclosure(s), (2) use its best efforts to retrieve all unauthorized copies of 23 the SSI. Unauthorized disclosure of SSI may be detrimental to the security of 24 transportation, may constitute an unwarranted invasion of personal privacy, or may 25 reveal a trade secret or privileged or confidential commercial or financial information. 26 Unauthorized disclosure may also result in a civil enforcement penalty or other 27 enforcement action by TSA against the party making the unauthorized disclosure. 49 1 10. MISCELLANEOUS 2 10.1. Right to Further Relief. 3 Nothing in this Stipulated Protective Order abridges the right of any 4 person to seek its modification by the Court in the future. 5 10.2. Right to Assert Other Objections. 6 This Protective Order is without prejudice to the rights of any party to 7 make any objection to discovery or use of SSI, or documents that may 8 contain SSI, permitted by the Federal Rules of Civil Procedure, or any 9 statute, regulation, or other authority. 10 10.3. Filing SSI Under Seal. 11 Documents that are marked SSI or, though not marked, contain SSI, 12 shall be treated as confidential and shall not be published or made available 13 to the general public in any form (whether in paper or electronic form), but 14 instead shall be filed under seal. Material filed under seal will be available 15 only to the persons enumerated in Section 7.2(a). A Party that seeks to file 16 under seal any SSI must comply with Local Rule 79-5. SSI may only be 17 filed under seal pursuant to a court order authorizing the sealing of the 18 specific SSI at issue. 19 10.4 Disclosure to Court Personnel. 20 Nothing in this Protective Order shall preclude any disclosure of 21 documents subject to this Order to any Judge, Magistrate, or employee of 22 the Court for purposes of this action. 23 10.5 Disclosure of SSI at Hearings or Trial. 24 All hearings, or portions thereof, in which SSI may be disclosed, 25 always shall be closed to the public. If there is a possibility that SSI may be 26 disclosed at trial, the courtroom shall be closed to the public. 27 \\\ 1 11. FINAL DISPOSITION 2 All documents subject to this Protective Order in the possession of Plaintiff or 3 Plaintiff’s counsel shall be returned to TSA within 60 days of termination of this action, 4 including any appellate proceedings, or shall be certified in writing to TSA to have been 5 destroyed by Plaintiff or Plaintiff’s counsel in accordance with TSA’s requirements for 6 the destruction of documents containing SSI. 7 12. VIOLATION 8 Any violation of this Stipulated Order may be punished by any and all appropriate 9 measures including, without limitation, contempt proceedings and/or monetary 10 sanctions. 11 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. [12] 13 Dated: January 11, 2021 /s/ Edward J. Blum 14 EDWARD J. BLUM Attorney for Plaintiff, 15 Nathaniel Hampton [16] 17 Dated: January 11, 2021 TRACY L. WILKISON Acting United States Attorney 18 DAVID M. HARRIS Assistant United States Attorney 19 Chief, Civil Division JOANNE S. OSINOFF 20 Assistant United States Attorney Chief, General Civil Section, Civil Division [21] /s/ Alarice M. Medrano [22] ALARICE M. MEDRANO 23 Assistant United States Attorney 24 Attorneys for Defendant, Chad Wolf, Acting Secretary, United States Department of 25 Homeland Security [27] 1 | FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 2 / 3 | DATED: January 12, 2021 ‘_ [4] 5 ARIA A. AUDERO 6 UNITED STATES MAGISTRATE JUDGE