Case 1:18-cv-01458-PLF Document 21 Filed 06/29/18 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
M.G.U, et al.

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Plaintiff,
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v.
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Kirstjen Nielsen, et al.,
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Defendants.
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_________________________________________ )

No. 1:18-cv-01458 (PLF)

STIPULATED PROTECTIVE ORDER
This is an action in which Plaintiffs, who are ultimately seeking reunification with their
children, seek in the interim a temporary restraining order (“TRO”) requiring the Government to
provide them with certain information. Defendants deny the allegations in this case, but are
nonetheless providing information to Plaintiffs to resolve the need for entry of any TRO. Some of
that information may be protected by the Privacy Act of 1974, 5 U.S.C. § 552a, or otherwise may
be deserving of protection from public disclosure. In order to permit the parties to have access to
and use such information for purposes of this litigation without undermining legitimate privacy
concerns, and pursuant to Rule 26 of the Federal Rules of Civil Procedure, the parties stipulate,
and it is hereby ORDERED:
1.

Counsel for Defendants are hereby authorized, pursuant to 5 U.S.C. § 552a(b)(11)

and consistent with 28 C.F.R. § 16.23, to release information otherwise protected by the Privacy
Act, 5 U.S.C. § 552a, provided that the release of such information is reasonably related to the
conduct of this litigation. Without limiting the generality of the foregoing, counsel for Defendants

 Case 1:18-cv-01458-PLF Document 21 Filed 06/29/18 Page 2 of 7

may release to Plaintiffs information covered by the Privacy Act whether such release is pursuant
to discovery or otherwise, for use in this case.
2.

Counsel for the parties, as well as any non-party (or the non-party’s counsel)

responding to a subpoena or discovery request in this matter, may initially designate as “protected”
hereunder any information exchanged or used in this case if such counsel deems, in good faith,
that release of such information could constitute an unreasonable invasion of privacy or otherwise
may be deserving of protection from public disclosure. A party designating information as
protected hereunder represents thereby that it has done so in good faith and pursuant to a bona fide
belief that such information is in fact deserving of protection. Counsel and parties are referred to
Rule 5.2 of the Federal Rules of Civil Procedure, Local Civil Rule 5.4(f), and this Court’s “Notice
Regarding Privacy and Public Access to Electronic Case Files,” dated September 2004 [available
at www.dcd.uscourts.gov/civil-privacy-notice], for typical examples of material deserving
“Protected” status. In this case, such material may include, by way of example and not limitation,
information regarding the location of government facilities, contact information for government
employees, and files concerning confidential personal and medical information, including files
regarding the minor children of plaintiffs in this case.
3.

In designating information as protected, the party (or non-party if applicable) so

designating it shall identify the protected information with specificity in writing or by placing a
“PROTECTED” label or stamp on a document or group of documents. Either party may, at any
time, object to the designation of information as protected. In the event of any such objection, the
designating party agrees to confer with the objecting party as promptly as practicable to attempt to
resolve the objection informally. Should the designating and objecting parties be unable to resolve

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the objection informally, the objecting party may submit such dispute to the Court for resolution.
Until the Court resolves the dispute, the information shall be treated as protected.
4.

Protected information provided formally or informally during the course of this

litigation shall be handled and disclosed by the parties only as follows:
(a)

Protected information may be used only for purposes of this litigation and

shall not be given, shown, made available, discussed, or otherwise communicated in any form to
anyone other than: (i) Plaintiffs and counsel for Plaintiffs, such counsel’s firm and its employees,
and consultants, experts and vendors providing litigation support services retained by Plaintiffs to
assist such counsel specifically for purposes of this litigation; (ii) counsel for the Defendants and
support staff in the United States Attorney’s office, Department of Justice, agency counsel, and
other employees of the United States government who have a need to know the protected
information for the defense or prosecution of this case, and consultants, experts and vendors
providing litigation support services retained by the defendants specifically for the purposes of this
litigation; (iii) the person whose privacy interests are meant to be protected with respect to any
particular document (e.g., the employee who is the subject of an agency personnel file may be
shown documents from his/her personnel file); (iv) court reporters and/or videographers who
record and/or transcribe proceedings in this case; and (v) the Court and its Clerk and other support
personnel.
(b)

It shall be the responsibility of each party to bring this order to the attention

of their respective outside consultants and experts to whom they disclose protected information,
and to insure that all such persons comply with the terms of this order.
(c)

All material containing protected information shall be clearly labeled as such

and shall be returned to the party who originally produced the information or destroyed at the

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conclusion of this litigation (including any and all appeals); provided, however, that one copy of
such material and any legal memoranda, transcripts, briefs, and work product containing protected
information may be retained for archival purposes if such materials are kept in the possession of a
private litigant's counsel or in the possession of a governmental entity, and are not in the future
disclosed contrary to the provisions of this order.
(d)

Counsel shall endeavor to avoid revealing protected information in any oral

proceedings before the Court, including oral argument. If any counsel finds it necessary to refer
to protected information in any such oral proceeding, that counsel shall notify the Court and all
other counsel of record as soon as such necessity becomes apparent and shall propose whatever
mechanism(s) may be available and appropriate to prevent disclosure of protected information as
a consequence of such oral proceedings to persons other than those authorized by this order.
5.

If any party files any motion, opposition, reply or any other document prior to trial

and attaches thereto or sets forth therein a record, or the relevant portion of a record, that has been
designated as “PROTECTED” pursuant to this Order, the parties shall, where the protected
information is not readily segregable from the filed document, file two copies of such document
(“Version One” and “Version Two”) with the Court. Version One shall redact only the specific
information designated as “PROTECTED” pursuant to this Order and shall be filed on the public
record. Version Two shall contain no redactions and shall be filed as an attachment to a motion
for leave to file Version Two under seal. Where the protected information is readily segregable
(such as, for instance, a single exhibit to a motion), only the segregable document shall be filed as
an attachment to a motion for leave to file under seal as stated herein but the remainder of the filing
shall be filed on the public record.

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6.

Counsel for a party, as applicable, shall promptly report any breach of the

provisions of this order to the party who produced the protected information that was improperly
divulged or compromised. Upon discovery of any breach, the party responsible for any breach
shall immediately take appropriate action to cure the violation and retrieve any confidential
information that may have been disclosed to persons not covered by this order. The parties shall
also cooperate fully in any investigation of such breach conducted by the Court.

Nothing

contained in this order shall be deemed or relied upon to create any right or benefit, substantive or
procedural, for any person or entity other than the parties to the above-captioned action.
7.

By providing any document or other information in its possession, no party waives

any privileges, objections, or protection otherwise afforded to it by law or equity.
8.

Pursuant to 5 U.S.C. § 552a(b)(11), the parties are hereby authorized to seek the

admission into evidence at the trial of this case any materials, or the contents thereof, that are
subject to this Stipulation, and nothing contained herein shall be construed as precluding Plaintiff
or Defendant from introducing any such materials, or the contents thereof, into evidence, subject
to such measures as the Court may deem appropriate or necessary at that time in order to protect
the privacy of the individual(s) involved.
9.

Nothing contained herein shall restrict the government’s use of its records for

official business or for other purposes consistent with other applicable laws and regulations.
10.

Any specific part or parts of the restrictions imposed by this protective order may

be terminated at any time by an Order of the Court, and a designating party may terminate any
specific part or parts of the restrictions imposed by this protective order with respect to documents
or information designated by that party as “Protected” under this Order by letter to counsel for the
opposing party.

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11.

This Order is without prejudice to the rights of any party to make any objection to

discovery permitted by the Federal Rules of Civil Procedure, or by any statute or other authority,
or to the rights of any party to make evidentiary objections at trial.
12.

Nothing in this Order may be taken or construed as a ruling or statement concerning

the admissibility of any documents or information.
13.

This Order is without prejudice to the rights of any party to seek from the Court the

modification of this Order.

Respectfully submitted,
Jerome Wesevich, D.D.C. Bar # TX0125
Amanda Chisholm
Peter McGraw
Texas RioGrande Legal Aid, Inc.
1331 Texas Avenue
El Paso, Texas 79901
(915) 585-4120
jwesevrich@trla.org
David J. Ball, D.C. Bar . # 4460055
Paul, Weiss, Rifkind, Wharton & Garrison LLP
2001 K Street, N.W.
Washington, D.C.
(202) 223-7352
dball@paulweiss.com
Steven C. Herzog
Katherine Fell Kelly
Meredith A. Arffa
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10091
(212)-373-3317
sherzog@paulweiss.com

Counsel for Plaintiffs

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and

DATE: June 28, 2018

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
WILLIAM C. PEACHEY
Director
WILLIAM C. SILVIS
Assistant Director
By: Sarah B Fabian
SARAH B. FABIAN
Senior Litigation Counsel
U.S. Department of Justice
Office of Immigration Litigation
District Court Section
Box 868, Ben Franklin Station
Washington, DC 20442
Telephone: (202) 532-4824
Fax: (202) 616-8962
E-mail: Sarah.B.Fabian@usdoj.gov
and
JESSIE K. LIU, D.C. Bar #472845
United States Attorney
DANIEL F. VAN HORN
D.C. BAR # 924092
Civil Chief
JEREMY S. SIMON, D.C. BAR #447956
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
(202) 252-2528
Jeremy.simon@usdoj.gov
Counsel for Defendants

It is so ORDERED by the Court this _____ day of June 2018.
__________________________________
United States District Judge
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