Case 2:07-cv-02513-GMS Document 1581 Filed 11/25/15 Page 1 of 8

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

8
9
10

Manuel de Jesus Ortega Melendres, on

behalf of himself and all others similarly
situated; et al.
Plaintiffs,

11
12

and

13

United States of America,

No. CV-07-2513-PHX-GMS
PROTECTIVE ORDER RE:
DOCUMENTS FROM THE
U.S. DEPARTMENT OF
HOMELAND SECURITY

Plaintiff-Intervenor,

14
15

v.

16

Joseph M. Arpaio, in his official capacity as

Sheriff of Maricopa County, Arizona; et al.

17

Defendants.

18
19

Upon consideration of Plaintiffs Motion for Protective Order (Doc. 1468),

20

5 U.S.C. 552a(b)(11), Federal Rule of Civil Procedure 26(c), and for good cause

21

shown,

22

IT IS HEREBY ORDERED that the motion is GRANTED.

23

IT IS FURTHER ORDERED that:

24

1.

This Protective Order shall apply to all documents, materials, and/or

25

information disclosed by the United States Department of Homeland Security (DHS) to

26

Plaintiffs in response to the subpoena issued by Plaintiffs to DHS on February 26, 2015

27

(the Subpoena) in the above-captioned action (hereinafter Ortega Melendres

28

litigation).

Case 2:07-cv-02513-GMS Document 1581 Filed 11/25/15 Page 2 of 8

2.

All information produced by DHS in response to the Subpoena, and any

portion thereof, is to be deemed Confidential Information, unless Plaintiffs are advised

otherwise by DHS in writing. Without obtaining prior written consent from the

individuals to whom the Confidential Information relates, DHS and/or its counsel are

hereby authorized to produce and/or disclose to Plaintiffs counsel, and Plaintiffs

counsel are hereby authorized to produce and/or disclose to the persons and entities

identified in paragraphs 6 and/or 7, Confidential Information notwithstanding that it may

8
9
10
11
12

be subject to the Privacy Act of 1974, 5 U.S.C. 552a, protected by the Health Insurance
Portability and Accountability Act (HIPAA), or may intrude on the privacy interests of
individuals.
3.

The Confidential Information shall be used solely for the purposes of the

Ortega Melendres litigation, including any process created by this Court to compensate

13
14
15
16
17
18
19
20
21
22

individuals in connection with the litigation, and shall not be used for any other purpose
or suit, or used for any business or commercial purpose, unless otherwise specified in this
Protective Order.
4.

DHS shall designate Confidential Information by placing on the documents,

records, and/or information to be produced a Confidential Information notice or its

equivalent.
5.

No copies of Confidential Information shall be made except for purposes of

the Ortega Melendres litigation.

6.

No person shall be permitted to have access to Confidential Information,

23

nor shall any person be informed of the substance of the Confidential Information by any

24

person permitted to have access thereto, except as provided in this Order, as otherwise

25

agreed upon by the parties and DHS in writing, or by order of the Court. Documents

26

containing Confidential Information shall not be disclosed or distributed to any person or

27

entity other than the following:

28

a)

counsel of record for the parties to this litigation (including their

-2-

Case 2:07-cv-02513-GMS Document 1581 Filed 11/25/15 Page 3 of 8

paralegal, clerical, or other support staff);

b)

the Court and its personnel, including the Monitor and his staff;

c)

the individual who is the subject of the document or his/her

designated representative;

d)

third-party entities or individuals engaged in one or more aspects of

copying, organizing, filing, coding, converting, storing, or retrieving data or

designing programs for handling data connected with the Ortega Melendres

8
9
10
11
12

litigation, or third-party entities or individuals designated by the Court and

engaged in one or more aspects of processing or evaluating claims made pursuant
to any process created by the Court to compensate individuals in connection with
the litigation, but only to the extent necessary to render such services.
7.

Counsel of record for Plaintiffs (including their paralegal, clerical, or other

13
14
15
16
17
18

support staff) are further permitted to disclose Confidential Information contained in

documents produced pursuant to the Subpoena (but not the documents themselves) where
such Confidential Information consists of personally-identifiable information (i.e., name,
date of birth, nationality, address, telephone number) of an individual (the subject
individual), the Confidential Information is disclosed for the sole purpose of locating the

19

subject individual, the disclosure is based on counsels reasonable, good faith belief that

20

the subject individual may be entitled to compensation in connection with this litigation,

21

and the disclosure of such Confidential Information is reasonably necessary in order to

22

locate the subject individual. Counsel of record for Plaintiffs shall keep a written record

23

of any disclosure made pursuant to this paragraph (including information regarding what

24

information was disclosed and to whom), and shall provide this information to DHS upon

25

request.

26

8.

In addition, notwithstanding the foregoing, an individual who is the subject

27

of a document may seek written permission from DHS to use a document or documents

28

produced pursuant to the Subpoena in a separate claim or proceeding relating to that

-3-

Case 2:07-cv-02513-GMS Document 1581 Filed 11/25/15 Page 4 of 8

individuals interaction with the Maricopa County Sheriffs Office. The individual shall

submit the request to DHS in writing, along with a signed Privacy Act waiver form. An

individual does not need to seek written permission from DHS or any subcomponent to

use a Form I-213 if the individual is the subject of the I-213 Form.

9.

A copy of this Protective Order shall be delivered to each person to whom

Confidential Information is disclosed by the party making the disclosure before or at the

time of first disclosure. Each person given access to Confidential Information under the

8
9
10
11
12

terms of this Protective Order shall be advised that the information is being disclosed
pursuant to the Protective Order and on the condition that she or he agrees to abide by its
terms. The provisions of this Protective Order shall be binding upon each such person to
whom disclosure is made. Confidential Information shall not be disclosed to any person
or persons described in subparagraph 6(d) unless and until such person has signed a copy

13
14
15
16
17
18

of the attached Acknowledgement and Consent form.

A copy of each executed

Acknowledgement and Consent form shall be kept by counsel for the party on behalf of
which disclosure is made pursuant to subparagraph 6(d).
10.

All persons to whom the parties disclose Confidential Information, other

than those individuals who receive Confidential Information pursuant to paragraphs 6(a)-

19

(b) or 7, above, shall return to counsel for the appropriate party or destroy any and all

20

documents, information, and copies thereof in their possession, custody, and control to

21

counsel for the appropriate party within 45 calendar days following the termination of

22

this litigation (including any appeals thereof) or when they are no longer assigned or

23

retained to work on this case, whichever comes earlier. If a person elects to destroy any

24

documents, information, and copies to satisfy his or her obligations under this paragraph,

25

he or she must provide written certification to counsel for the appropriate party within 45

26

calendar days following the termination of this litigation that all of the documents,

27

information, and copies have been destroyed. A party that discloses Confidential

28

Information to an individual pursuant to paragraph 6 (a) is excepted from the provisions

-4-

Case 2:07-cv-02513-GMS Document 1581 Filed 11/25/15 Page 5 of 8

of this paragraph only to the extent that the party does not have an obligation to ensure

the return or destruction of Confidential Information disclosed to counsel for another

party or its staff pursuant to the Protective Order. However, counsel for the other party

and its staff remain bound by the terms of this Protective Order, including those

provisions relating to the return or destruction of Confidential Information set forth in

this paragraph.

7
8
9
10
11
12

11.

Plaintiffs may challenge a designation by DHS of documents or

information as Confidential Information by seeking relief from the Court after meeting
and conferring with DHS.

Plaintiffs must initiate any meet and confer within 120

calendar days of receiving the Confidential Information. Further, DHS shall respond
within 30 calendar days to any request by Plaintiffs to remove the Confidential
Information designation from any document or category of documents, or from

13
14
15
16
17
18

information contained within a document or category of documents, or any request to

provide the basis for a continued designation of such information as Confidential
Information under the Privacy Act of 1974, 5 U.S.C. 552a, HIPPAA or other applicable
law protecting the privacy interests of individuals. Such material shall remain subject to
the terms of this Protective Order and treated as Confidential Information unless and until

19

this Court orders the designation removed. In any such dispute, DHS bears the burden of

20

proving that the designation of material as Confidential Information is proper, except as

21

otherwise provided by applicable law.

22

12.

Those portions of pleadings, motions, affidavits, briefs, exhibits or other

23

papers filed with the Court that contain Confidential Information shall be redacted, or if

24

redactions would render the document useless to the reader, filed under seal in

25

accordance with the Local Rules of this Court. If material is filed with the Court under

26

seal, it must retain any original mark that identifies the document as containing

27

Confidential Information. If filed under seal, the filing shall remain under seal unless

28

otherwise ordered by this Court upon notice to the parties and DHS, or unless DHS

-5-

Case 2:07-cv-02513-GMS Document 1581 Filed 11/25/15 Page 6 of 8

consents in writing to its unsealing. Confidential Information otherwise utilized in this

case shall be used and maintained under seal absent written consent of DHS; when such

utilization is anticipated, the parties shall confer amongst themselves and with DHS

regarding appropriate confidentiality measures. Notwithstanding the previous sentence,

counsel of record for the parties to this litigation (including their paralegal, clerical, or

other support staff) may disclose aggregate data compiled from personally identifiable

information of individuals that is designated as Confidential Information, as long as the

8
9
10
11
12

disclosure does not identify or effectively identify any particular individuals.

13.

If a receiving party discloses Confidential Information to any person not

authorized to receive such disclosure, the receiving party must, upon learning that such
disclosure has been made, inform DHS of the disclosure, request the return of the
Confidential Information, and seek to minimize any further unauthorized disclosure.

13
14
15
16
17
18

This paragraph does not authorize disclosure beyond that otherwise permitted by this
Protective Order.
14.

Any inadvertent disclosure or production of Confidential Information or

information that is protected by any privilege or protection, including the law

enforcement privilege, the attorney-client privilege, work product protection, or

19

deliberative process privilege, shall not constitute a waiver of any available privilege or

20

protection by DHS.

21

15.

Within 60 calendar days after final conclusion of all aspects of this

22

litigation, including any appeals, unless other arrangements are agreed upon, counsel for

23

the parties shall ensure and certify in writing to counsel for DHS that all Confidential

24

Information, and any other material containing Confidential Information, are either

25

returned to counsel for DHS or destroyed.

26

conclusion of all aspects of this litigation, including any appeals, counsel for the parties

27

shall provide a written certification to counsel for DHS that all electronic media

28

containing Confidential Information have been destroyed and rendered irretrievable. The

-6-

In addition, within 60 days after final

Case 2:07-cv-02513-GMS Document 1581 Filed 11/25/15 Page 7 of 8

termination of this action shall not relieve any person subject to this Protective Order

from the responsibility to maintain the confidentiality of the Confidential Information

protected by this Order.

16.

The entry of this Order by the Court does not waive DHSs right to seek a

Protective Order with respect to any documents or information, regardless of whether

such documents or information fall within the scope of this Order. In addition, the parties

and DHS reserve the right to move to modify the terms of this Order at any time, and

8
9
10
11
12

both the parties and DHS reserve the right to oppose any motion to modify the terms of
the Order. Entry of this Order constitutes only a determination that DHS is authorized to
disclose information as provided herein. Entry of this Order does not constitute a ruling
or determination as to any right, privilege, or immunity DHS may have with respect to
the Subpoena, or any objections DHS may have to the Subpoena. DHSs disclosure of

13
14
15

information pursuant to this Order shall not constitute a waiver of any right, privilege, or
immunity DHS may have with respect to such information.
17.

16
17
18

Entry of this Order shall not prohibit the United States or any agency,

department, officer or employee thereof, from using or disclosing Confidential

Information for any purposes authorized by law.
18.

19

Any person or party receiving any Confidential Information in accordance

20

with any provision of this Order hereby agrees to subject himself or herself to the

21

jurisdiction of the Court for the purpose of any proceedings relating to the performance

22

under, compliance with, or violation of, this Order.

23

///

24

///

25

///

26

///

27

///

28

///

-7-

Case 2:07-cv-02513-GMS Document 1581 Filed 11/25/15 Page 8 of 8

19.

The terms of this Order shall be binding upon all current and future

participants in this litigation and their counsel, as well as all persons regularly employed

or associated with counsel whose assistance is required by said attorneys in connection

with this litigation.

Dated this 24th day of November, 2015.

6
7
8

Honorable G. Murray Snow

United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-8-