P.G. et al v. United States of America, No. 4:2021cv04457 - Document 184 (N.D. Cal. 2024)
Court Description: ORDER DENYING DEFENDANT'S MOTION TO RETAIN CONFIDENTIALITY re: 160 164 165 , Signed by Magistrate Judge Kandis A. Westmore. (wft, COURT STAFF) (Filed on 2/22/2024)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILBUR P.G., et al., Plaintiffs, 8 9 10 United States District Court Northern District of California 11 Case No. 4:21-cv-04457-KAW ORDER DENYING DEFENDANT'S MOTION TO RETAIN CONFIDENTIALITY v. UNITED STATES OF AMERICA, Re: Dkt. Nos. 160, 164, 165 Defendant. 12 13 14 15 On December 22, 2023, Defendant United States filed a motion to retain confidentiality over certain documents produced pursuant to the terms of the parties’ stipulated protective order. Upon review of the moving papers, the Court finds this matter suitable for resolution 16 without oral argument pursuant to Civil Local Rule 7-1(b), and, for the reasons set forth below, 17 DENIES Defendant’s motion. 18 I. BACKGROUND 19 Plaintiffs originally presented challenges to certain confidentiality designations made by 20 Defendant United States on November 22, 2023. (See Decl. of Michael Keough Decl., “Keough 21 Decl.,” Dkt. No. 160-2 ¶ 3.) In response, Defendant re-reviewed all of the challenged materials 22 and on December 15, 2023, provided Plaintiffs updated confidentiality designations reflecting 23 Defendant’s effort to narrow the issues in dispute. (Keough Decl. ¶ 4.) After meet and confers 24 held on December 19, 2023 and December 20, 2023 and subsequent correspondence, Plaintiffs 25 indicated that the materials still subject to challenges were: • For the CBP 30(b)(6) deposition transcript, all designations remained at issue except those appearing at the following pages: Pages 77, 80-81, 97-98, 126, 130131, 133, 136-137, 151-155 (except 152:20 & 25, 153:20, 154:10 & 23), 167, 223226, 228, 230-231, 233-238, 241, 242-243, 247, 251-252 (except 251:15-16), 277, 309, 316, 318, 394-395 26 27 28 1 2 • 3 • 4 • 5 • For the CBP 30(b)(6) deposition exhibits, the following remained at issue: Exhibits 1204, 1205, 1214, and 1233 For the DHS 30(b)(6) deposition transcript, all designations remained at issue except those appearing on the following pages: 388; 136-137; 148-149; 171; 194; 200-201; 215-218; 224; 321-326 For the DHS 30(b)(6) deposition exhibits, all except 1162 remained at issue These exhibits marked at the Arizona USAO 30(b)(6) deposition: 1005-09, 1012-20, 1026, 1029-30 CD-US-0037998 & CD-US-0216224 6 (Keough Decl. ¶ 5.) Defendant provided an attachment summarizing the documents and 7 deposition excerpts, which were provisionally filed under seal as Exhibits 1 to 38. (Def.’s Attach. 8 A, Dkt. No. 160-1.) 9 United States District Court Northern District of California • On December 22, 2024, Defendant filed the instant motion to retain confidentiality. (Def.’s 10 Mot., Dkt. No. 160.) On January 10, 2024, Plaintiffs filed an opposition. (Pls.’ Opp’n, Dkt. No. 11 164.) On January 17, 2024, Defendant filed a reply. (Def.’s Reply, Dkt. No. 165.) On January 25, 12 2024, at the Court’s request, Plaintiffs filed a Joint “Attachment A,” which provided each side’s 13 position on each exhibit in a single document. (Joint Attach. A., “JAA,” Dkt. No. 173.) 14 II. LEGAL STANDARD 15 Generally, “the public is permitted access to litigation documents and information 16 produced during discovery.” In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 17 417, 424 (9th Cir. 2011) (quoting Phillips ex rel. Estates of Byrd v. Gen. Motors Corp., 307 F.3d 18 1206, 1210 (9th Cir. 2002)) (internal quotation marks omitted). A court may, however, issue a 19 protective order “to protect a party or person from annoyance, embarrassment, oppression, or 20 undue burden or expense.” Fed. R. Civ. P. 26(c). If a party challenges whether documents have 21 been properly designated as confidential, the party seeking to maintain confidentiality pursuant to 22 a protective order “has the burden of establishing that there is good cause to continue the 23 protection of the discovery material.” In re Roman Catholic Archbishop, 661 F.3d at 424. 24 When a party challenges the confidentiality of information under a protective order, the 25 Court must conduct a two-step analysis. “First, it must determine whether particularized harm will 26 result from disclosure of information to the public.” In re Roman Catholic Archbishop of Portland 27 in Ore., 661 F.3d 417, 424 (9th Cir. 2011) (quotation omitted). “Broad allegations of harm, 28 unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” 2 1 Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (citing Seattle Times Co. 2 v. Rhinehart, 467 U.S. 20, 36 (1984)); see also In re Roman Catholic Archbishop, 661 F.3d at 424 3 (quoting Beckman). The party seeking to maintain confidentiality must “allege specific prejudice 4 or harm.” Beckman, 966 F.2d at 476. A party asserting good cause bears the burden, for each 5 particular document it seeks to protect, of showing that specific prejudice or harm will result if no 6 protective order is granted.” Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 7 2003)(citing Phillips, 307 F.3d at 1210–11). 8 United States District Court Northern District of California 9 “Second, if the court concludes that such harm will result from disclosure of the discovery documents, then it must proceed to balance the public and private interests to decide whether 10 maintaining a protective order is necessary.” In re Roman Catholic Archbishop, 661 F.3d at 424. 11 The Court considers the following list of non-exhaustive factors: 12 13 14 15 16 17 (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public. Id. at 424 n.5 (quoting Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995)). 18 III. DISCUSSION 19 In making this motion, Defendant seeks to retain the confidentiality designations the 20 portions of the 38 exhibits designated as confidential. (Def.’s Mot. at 3.) The parties agree that the 21 personal identifiable information (“PII”) of government employees contained in the documents 22 will remain confidential regardless of the outcome of the instant motion. (Def.’s Mot. at 3; Pls.’ 23 Opp’n at 3 n. 3.) 24 As an initial matter, the Court is unpersuaded by Defendant’s argument that the Court 25 should “reserve decision on these issues until a decision is actually required for purposes of the 26 present action (i.e., prior to the submission of pre-trial materials later in the Spring of 2024 under 27 the current case schedule).” (Def.’s Mot. at 3-4.) As Plaintiffs point out, the first set of pretrial 28 filings are due on March 25, 2024, so the time to resolve this is now. (See Pls.’ Opp’n at 4 (citing 3 United States District Court Northern District of California 1 Dkt. No. 114 at 2).) Thus, while the Arizona plaintiffs may benefit from resolving this dispute, 2 that is merely a byproduct of streamlining discovery in this case. 3 Since this issue is ripe for adjudication, the Court will discuss the two categories of 4 purportedly confidential information: law enforcement material and agency deliberative material. 5 A. 6 In opposition, Plaintiffs argue that the supporting Keough declaration was authored by Law Enforcement Material 7 litigation counsel rather than a law enforcement official, and that it “contains no factual 8 information supporting a specific finding that the release of any of the challenged material would 9 harm law enforcement or border security.” (Pls.’ Opp’n at 6.) The Court agrees. As Plaintiffs 10 noted, the Government did not file any supporting declarations by law enforcement or national 11 security personnel “explaining why the release of the challenged material would harm law 12 enforcement or national security interests, or to give document-by-document reasons for affording 13 these documents protection.” Id. Instead, Defendant’s Attachment A provides broad and 14 unsupported claims such as “contains agency deliberations” or “contains law enforcement 15 sensitive material.” (See Def.’s Attach. A.) As an example, Defendant claims that Exhibit 10 16 contains law enforcement sensitive material, but the only challenged portion states that a high- 17 level policymaker’s goal is to increase prosecutions across the Southwest Border to 100%. (Def.’s 18 Ex. 10 at 1.) This information is not confidential. 19 For virtually every exhibit, Defendant fails to identify the specific prejudice or harm that 20 will result from disclosure, such that the Government fails to show good cause to retain 21 confidentiality. In re Roman Catholic Archbishop, 661 F.3d at 424. Even if the Government 22 satisfied the first prong, there is a compelling argument that the information should be produced 23 under the Glenmede factors. Specifically, the information is being sought for a legitimate purpose, 24 the sharing of information among litigants will promote fairness and efficiency, and the case 25 involves issues important to the public. See In re Roman Catholic Archbishop, 661 F.3d at 424 26 n.5. The Court notes that Defendant does not attempt to address the Glenmede factors, and, 27 instead, argues that the documents should not be disclosed to the plaintiffs in other cases. (See 28 Def.’s Mot. at 1-2.) As Plaintiffs argue in their opposition, the “sharing information” factor 4 United States District Court Northern District of California 1 weighs in favor of denying confidentiality. (Pls.’ Opp’n at 10 n. 8 (citing Glenmede, 56 F.3d at 2 483, 485).) Defendant’s argument that the balance of interests favors maintaining confidentiality 3 is not persuasive, as it does not address all of the Glenmede factors, and the Court disagrees that 4 the extensive media coverage somehow reduces the importance to the public. (See Def.’s Reply at 5 5-6.)1 6 B. 7 To the extent that Defendant claims that this information is protected by the deliberative Agency Deliberative Material 8 process privilege, there is no agency deliberations category in the stipulated protective order. 9 More importantly, as is the case with every exhibit at issue, the Government fails to identify the 10 specific prejudice or harm that will result if confidentiality is not retained, and, therefore, fails to 11 show good cause under In re Roman Catholic Archbishop. See 661 F.3d at 424. Furthermore, 12 despite Defendant’s broad, boilerplate rationale to the contrary, the deliberations contained in 13 these “agency deliberation” exhibits, by and large, directly relate to the Zero Tolerance Policy, so 14 the assertion that some documents concern other policies is misleading. For example, Exhibit 2 15 contains policy options to deter illegal immigration, and Options 1 and 2 refer to the policy in this 16 case. Thus, the Court finds that Defendant’s “agency deliberations” rationale is insufficient to 17 18 warrant the retention of the confidentiality designations. 19 C. 20 Per the stipulation of the parties, all PII for the identified employees retains confidentiality. Confidentiality Designations that Remain Intact 21 Additionally, Plaintiffs do not object to retaining confidentiality for the “group inboxes” email 22 addresses, which are still in use. (See JAA.) While Defendant has not satisfied the good cause standard, the Court acknowledges that 23 24 there is some law enforcement operations information contained in the deposition transcripts (Exs. 25 37 and 38). Thus, in regard to those two exhibits only, the Court denies this motion without 26 27 28 Additionally, the Court need not consider the Government’s balancing argument at all because it was made for the first time in the reply brief. Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n. 5 (9th Cir. 2003) (court may decline to consider new issues raised for the first time in the reply brief). 5 1 1 prejudice. The parties are ordered to meet and confer regarding those designations. The Court is 2 confident that the Government will narrow its designations to those that truly involve law 3 enforcement operational information that must be kept confidential. 4 5 The motion is otherwise denied with prejudice due to the Government’s failure to satisfy its burden. 6 7 CONCLUSION For the reasons set forth above, the Court DENIES Defendant’s motion to retain 8 confidentiality. Apart from the PII for the identified employees, per the agreement by the parties, 9 the motion is denied with prejudice as to Exhibits 1-36. The motion is denied without prejudice as 10 11 United States District Court Northern District of California IV. 12 to Exhibits 37 and 38. IT IS SO ORDERED. Dated: February 22, 2024 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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