Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 1 of 21 1 The Honorable Marsha J. Pechman 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 12 13 14 NO. 2:18-cv-00939-MJP STATE OF WASHINGTON, et al., INITIAL JOINT STATUS REPORT Plaintiffs, v. THE UNITED STATES OF AMERICA; DONALD TRUMP, in his official capacity as President of the United States of America, et al., Defendants. INTRODUCTION 15 16 Counsel for the State of Washington (on behalf of all Plaintiff States) and Counsel for 17 Defendants conferred telephonically and via email on July 23, 2018, July 25, 2018, and July 18 26, 2018 pursuant to the Court’s Order on Plaintiffs’ Motion for Expedited Discovery and 19 Regular Status Conferences (Dkt. 32) (“Order”), and now together submit this Initial Joint 20 21 22 23 Status Report and their respective positions on the issues the Court asked the parties to address concerning “the posture of the case as it currently stands,” “a prioritized list of discovery topics with a proposed timetable for completion,” and “an agenda of items for discussion at the initial conference.” Order at 10. 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 1 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 2 of 21 1 2 3 1. Statement regarding the posture of the case as it currently stands. Status of case: The Plaintiff States filed this matter on June 26, 2018. They moved for expedited discovery and regular status conferences on July 2, 2018, which motion the 4 Court granted in part on July 19, 2018. Defendants filed a motion to dismiss, transfer, or stay 5 on July 11, 2018, which remains pending. 6 The States believe that this case is complex, but that the issues are primarily legal and 7 that they can be presented for the Court’s decision before the end of this year, after a brief 8 period of expedited discovery. The States propose a period for expedited discovery ending in 9 late September, followed by dispositive motions on a fall 2018 briefing schedule to be 10 11 12 13 14 15 16 17 18 19 20 proposed by the parties for the Court’s consideration. The States note that the parties conferred by phone on Monday July 23, 2018, at which time the States requested information about the content of the Ms. L discovery and whether it would address their requests, as well as information about the Ms. L protective order. The States provided Defendants with a draft Joint Status Report with their position on the issues addressed below and their proposed set of discovery the next day. The parties again conferred on by phone on Wednesday, July 25, 2018, and the States provided Defendants with a revised Joint Status Report, including the specific information submitted by the States below regarding their discovery priorities and the narrowing efforts they undertook. The States note that Defendants did not provide them with any of the specific 21 information included in their position statement in Section 2 (“prioritized list of discovery 22 topics with a proposed timetable for completion”) until shortly before 9:00 am on Thursday, 23 July 26, 2018. At that time, the Defendants provided a draft of their position statement for 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 2 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 3 of 21 1 2 3 Section 2, without any of Defendants’ cited materials in that section, including declarations and the Ms. L protective order. As a result, the States have been unable to evaluate the factual claims made by Defendants in Section 2. As of this filing, Defendants have not 4 provided the requested information about the content of the Ms. L discovery or submitted a 5 draft protective order for the States’ review. 6 Defendants believe that there are dispositive issues involved in this case that are 7 primarily legal but not particularly complex factually. Defendants intend to file a dispositive 8 Rule 12 motion very soon. Regardless, Defendants believe this matter largely overlaps with 9 Ms. L. v. ICE, No. 18-cv-428 (S.D. Cal.) and that the discovery the Plaintiffs envision will 10 substantially detract from the federal government’s compliance efforts in that case. 11 12 13 14 15 16 17 18 19 20 Defendants consequently sought Plaintiffs’ agreement to stay this litigation for the next two weeks to allow the Government to prioritize reunification efforts, but that Plaintiffs oppose that request. Defendants also note that they did not receive any of Plaintiffs documents until 11:42 PM Eastern time on Tuesday, July 24, and thus have had very little time to confer with the relevant agency personnel—who are expending their resources complying with deadlines in the Ms. L litigation—including conferring on the proposed scope and burden of Plaintiffs requests for immediate discovery. The parties in fact conferred concerning when the Government would be able to provide Plaintiffs with their portions of this pleading, and 21 Defendants have provided Plaintiffs with as much information as they could promptly, 22 including laying out their position by phone on the proper scope of discovery and the burdens 23 the relevant agencies were enduring during compliance with Ms. L.’s injunction that further 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 3 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 4 of 21 1 2 3 discovery here would impact. Defendants proposed jointly asking the Court for a few more hours to file this document so that Plaintiffs could have more time to review the factual representation of Defendants but they declined to join such a motion. Defendants certainly 4 would not oppose a delay in proceedings to provide Plaintiffs with any time they believe they 5 need to review Defendants positions further. 6 2. 7 Plaintiffs’ Position Prioritized list of discovery topics with a proposed timetable for completion: 8 Plaintiffs propose the following expedited discovery plan: 9 A. 10 11 12 13 14 15 16 17 18 19 20 The parties telephonically conferred on July 23, 2018 regarding the Court’s order allowing expedited discovery, and again on July 25 and July 26, 2018. B. The States request leave to serve Defendants with immediate written discovery regarding 1) persons subjected to family separation and the progress of reunification efforts; 2) the justification for the family separation policy and directives regarding it to those Defendant employees charged with implementation, oversight and/or tracking the individuals affected by it; 3) the justification for a family detention policy and the implementation of same; and 4) directives to Defendant employees at Southwestern border ports of entry to turn away or “meter” asylum applicants, and documents reflecting Defendants’ knowledge of this practice. The Plaintiff States’ proposed First Set of Requests 21 for Expedited Discovery, which was provided to Defendants’ counsel on July 22 24, 2018, is attached as Exhibit A. 23 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 4 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 5 of 21 By its Order on Motion for Expedited Discovery and Regular Status 1 2 3 Conferences, Dkt. No. 32 at 9-10, the Court directed the States to prioritize the discovery topics listed in Appendix A of the States’ Motion. Accordingly, as 4 reflected in their First Set of Requests for Expedited Discovery, the States have 5 prioritized and limited their discovery requests by: 6  Limiting discovery requests to twelve Requests for Production under 7 Federal Rule of Civil Procedure 34, and deferring the issuance of 8 Interrogatories, Requests for Admission, and notices or subpoenas for 9 deposition under Federal Rules of Civil Procedure 30, 33, 36 and 45. 10  11 documents containing up-to-date information about separated parents and children, including their locations, well-being, and 12 13 Prioritizing Defendants’ efforts to reunite them. (Exhibit A, RFP Nos. 1-3, 7).  Seeking to minimize the burden to Defendants by allowing them to 14 15 16 17 18 respond to seven out of the twelve proposed Requests for Production by producing the same materials already produced in Ms. L, provided that those materials provide the information sought by the States, including information about the separated children whose rights are not 19 represented directly in Ms. L. (Exhibit A, RFP Nos. 1-7). (At the time of 20 the parties’ conference on June 23, 2018, counsel for Defendants did not 21 yet have information about the content of documents already provided to 22 the Ms. L plaintiffs.) 23 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 5 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 6 of 21  1 Prioritizing discovery on the States’ claims that are not being litigated in the Ms. L action. (Appendix A, RFP Nos. 8-12). 2  3 Limiting the Requests for Production to documents concerning official 4 justifications and implementation directives for the family separation 5 and family detention policies, or components thereof, and deferring any 6 broader “all documents” requests or requests for information specific to 7 the history or development of those policies. (Exhibit A, RFP Nos. 4, 5, 8 9, 11). 9 C. 10 Expedited Discovery be due on August 3, 2018. Assuming that Defendants are 11 able to produce complete responsive materials at that time, the States will 12 confer with Defendants and determine what, if any, additional written discovery 13 is necessary and confer regarding a schedule for all other discovery, if 14 necessary. 15 16 17 18 19 20 The States propose that the responses to their First Set of Requests for D. The States recognize Defendants’ desire to reduce the burdens of discovery and, consistent with the Court’s Order on Motion for Expedited Discovery and Regular Status Conferences, have proposed the following additional measures to ameliorate those burdens:  Production to the States of the materials that have been/will be produced 21 in the matter of Ms. L., et al. v. ICE, et al., Case No. 18cv-0428 DMS 22 (MDD) (S.D. Cal.). The States understand that this material will 23 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 6 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 7 of 21 address, at least in part, their requests for information regarding 1 separated family members and the reunification process; 2 3  The States requested on July 23, 2018 a form of stipulated protective 4 order from Defendants to address any privacy concerns related to 5 production of the Ms. L material; 6  The States intend to offer Defendants stipulations that would obviate the 7 need for discovery into discrete topics, for example, a stipulation that 8 parents separated from their children after entering along the 9 Southwestern border were not provided a hearing on parental 10 11 fitness/best interests of the child prior to separation;  12 The States propose reducing the number of depositions in this case to 5 per side, absent agreement of the parties or further order of the Court. 13 14 15 16 17 18 Defendants’ Position Defendants reiterate their position that any discovery in this case is inappropriate while their motion to transfer or dismiss based on comity considerations, Dkt. 22, remains pending. That motion raises threshold justiciability issues, as well as principles of comity that this Court 19 should resolve prior to the commencement of any discovery. Furthermore, Defendants have 20 asked Plaintiffs for a stay of this litigation for two weeks while reunification efforts are still 21 ongoing in Ms. L. and Defendants’ intent to file a formal Rule 12 Motion to Dismiss Plaintiffs’ 22 claims in the near future. This should provide even more reason to refrain from discovery, 23 expedited or otherwise, in whole or in part until the motions are resolved. 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 7 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 8 of 21 1 2 3 As an initial matter, a crucial threshold determination that must be determined is the States’ standing in this case. Case law is clear that States have no legally protected interest in avoiding the incidental effects of the federal government’s actions affecting individuals 4 subjected to federal regulation who may eventually arrive in that State or who are in federal 5 custody within the State’s boundaries. See, e.g., Massachusetts v. Mellon, 262 U.S. 447, 485– 6 86 (1923) (“[I]t is no part of [a State’s] duty or power to enforce [its citizens’] rights in respect 7 of their relations with the federal government. In that field it is the United States, and not the 8 state, which represents them as parens patriae.”). Nor can the States rely on the legal rights or 9 interests of third parties they allege are impacted by Defendants’ enforcement actions, none of 10 whom the States have alleged a close relationship with to support third-party standing. See, 11 12 13 14 15 16 17 18 19 20 e.g., Voigt v. Savell, 70 F.3d 1552, 1565 (9th Cir. 1995). The mere fact that an individual might be housed within a State’s territory does not somehow create a close relationship where those individuals are subject to federal custody and control. See 6 U.S.C. §§ 279, 1232(d)(5). Nonetheless, even if the States had standing based on their asserted interests in licensing outof-home facilities or policies on family unity, which they do not, they have no basis to assert any due process rights of individuals, and they have no cause of action under the APA or INA to challenge the specific policies and practices at issue here. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984) (third parties have “no judicially cognizable interest in procuring enforcement of the immigration laws” affecting someone else); Ctr. for Law & Educ. v. Dep’t of Educ., 396 21 F.3d 1152, 1157 (D.C. Cir. 2005) (APA zone of interests test requires plaintiff to show that 22 “the [actions] in question are designed to protect [or regulate] some . . . concrete interest of his 23 that is the ultimate basis of his standing”). The law is clear that detention and removal of aliens 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 8 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 9 of 21 1 2 3 taken into federal custody is exclusively a federal function. See Arizona v. United States, 132 S. Ct. 2492, 2498 (2012); cf. In re Tarble, 80 U.S. 397, 407-08 (1871). Although Plaintiffs have represented that the basis for their expedited discovery is the 4 need to “obtain and preserve evidence,” Dkt 15-1, as to their claims because of the risk that 5 such evidence may no longer be present if they must wait until normal discovery processes 6 begin, they now seek discovery far broader in scope than anything that can be justified on the 7 basis of an emergent need to obtain and preserve evidence. Defendants dispute that Plaintiffs 8 have met their high burden of demonstrating any “legitimate[] fear[] that information” concerning 9 any of the challenged practices in this case or the location of relevant individuals “faces imminent 10 destruction.” Music Grp. Macao Commercial Offshore Ltd. v. John Does I-IX, No. 14-CV-621 11 RSM, 2014 WL 11010724, at *2 (W.D. Wash. July 18, 2014). The United States is fully 12 complying with its preservation obligations in connection with this and other related 13 14 15 16 litigations, and whatever concerns Plaintiffs may have about spoliation is purely speculative, and is generally of minimal relevance in litigation involving governmental entities. But even assuming they had, the Plaintiffs’ envisioned expedited discovery is even more inappropriate given their failure to “prioritize[]” any of their topics, Order at 9, or “narrowly tailor[]” them to 17 18 19 20 21 the circumstances this Court found to justify expedited discovery. Music Grp., 2014 WL 11010724 at *2. As explained below, such broad discovery, unmoored from the professed exigency, fails that standard, and more importantly “prejudice[s] the responding party” significantly by interposing Plaintiffs in this case between the parties in Ms. L., who are 22 actively engaged in compliance with a court order designed to reunite the parents and children 23 the Plaintiffs in this case profess to likewise seek to reunite. Id. 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 9 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 10 of 21 1 2 3 In addition, as this Court has noted, the topics for which Plaintiffs seek expedited discovery “do not appear to have equal weight when it comes to the necessity for a swift response in the discovery process.” Dkt 27 at 9. Although the Court ordered Plaintiffs to 4 prioritize those topics, see id., they still have not shared with Defendants their proposed 5 prioritization of expedited-discovery topics. Instead, they have sent Defendants twelve 6 proposed Requests for Production, with multiple subparts to several requests, many of which 7 are new and broader than what they proposed in Appendix A, which they indicate are all a 8 priority, and with an identical proposed deadline of just one week. And while their proposed 9 requests appear to mostly mirror Appendix A, some are new and Plaintiffs have failed to 10 provide any discernible indication of priority within these requests. Without any of the 11 12 13 14 15 16 17 18 19 20 prioritization of discovery categories that this Court ordered, Defendants instead offer their views on the appropriate prioritization: A. Plaintiffs’ requests encompass several categories of information. The first is for documents that have been provided to class counsel in the Ms. L. matter. If any expedited discovery is to be granted, it should be limited to this information, although there is no suggestion these documents are in any risk of being destroyed or moved and Defendants are undertaking preservation efforts. In any event, the Plaintiffs should first be obligated to request this information from the Ms. L. class counsel. Since Ms. L class counsel is certified to represent the class on a nationwide basis, and the information being provided to them is highly 21 sensitive personal identifying information about their class members and their children, 22 consent from the Ms. L. class counsel should be obtained by Plaintiffs here before that 23 information is provided to them. The Plaintiffs seemingly do not care about this concern. 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 10 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 11 of 21 1 2 3 The Plaintiffs allege that they are acting in the interest of the individuals represented by the Ms. L. class counsel and that plaintiff class’s their children. But it is not clear how they can properly claim to represent those interests when class counsel has been appointed, on a 4 nationwide basis, by another court. The duties of class counsel include both “loyalty and 5 confidentiality” to all class members, Andrews Farms v. Calcot, LTD., No. 07-cv-0464, 2010 6 WL 3341963, at *8 (E.D. Cal. Aug. 23, 2010), and “fiduciary duties,” Gilmore v. California, 7 No. 66-cv-45878, 2007 WL 2127843, at *1 (N.D. Cal. July 25, 2007), among others. These are 8 duties that the Plaintiffs’ counsel here categorically lack with respect to the Ms. L. parents and 9 children whose interests they ostensibly seek to represent. And there are sure to be a number of 10 conflicts presented by the Plaintiffs purporting to act on behalf of the certified class—for 11 12 13 14 15 16 17 18 19 20 example, the Plaintiff States have an obligation and duty to enforce their own state (or District) laws, and enforcement of those laws may present conflicts between the Plaintiffs and their purported actions on behalf of the class. Providing personal Ms. L. class-member information to the Plaintiffs here runs headlong into those conflicts. Indeed, to take but one example, the lead Plaintiffs’ Attorney General’s responsibility is to enforce the laws of Washington State, not to represent individuals. The Washington Attorney General is thus not well-suited, nor even authorized by statute to represent the interests of parents and children and to track down parents and children for reunification. In fact, his office explicitly disclaims any authority to represent the interests of “private citizens on personal legal matters,” see What the Attorney 21 General’s Office DOES NOT do, https://www.atg.wa.gov/roles-office, which reunification 22 with one’s child undoubtedly is, and would be unable as an ethical or legal matter to serve as 23 class counsel on behalf of the parents and children in Ms. L., for whom that case’s class 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 11 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 12 of 21 1 2 counsel has been working diligently to reunify in line with Judge Sabraw’s order. Defendants believe similar limitations and conflicts would also be presented by the other State Plaintiffs. The sensitive personal information concerning class members is protected by statute or 3 4 regulation. See, e.g., 8 C.F.R. §§ 208.6(a), 1208.6(a) (prohibiting the federal government, in 5 multiple contexts, from disclosing records pertaining to aliens’ asylum applications, credible- 6 fear determinations, or reasonable-fear determinations); see also Owino v. Holder, 771 F.3d 7 527, 535–36, 539 (9th Cir. 2014) (per curiam) (noting how the federal government should not 8 breach an alien’s personal “right to confidentiality”). For example, the sensitive information at 9 issue here could tend to reveal whether individuals have claimed a credible fear of persecution 10 or applied for asylum—but this information is protected from disclosure by federal regulations. 11 12 13 14 15 16 17 18 19 20 See id. In somewhat similar circumstances, immigration advocates and the federal government strongly resisted a sanctions order that would have required the federal government provide a “list [of Deferred Action for Childhood Arrival recipients that] ... should include all personal identifiers and locators including names, addresses, “A” file numbers and all available contact information.” See Texas v. United States, 2016 WL 3211803, at *12 (S.D. Tex. May 19, 2016). That information would have been held under seal, but be made available to “Plaintiff State[s] .... [upon] a showing of good cause.” Id. The federal government then sought mandamus relief from that order, explaining how “the production of sensitive personally 21 identifying information for approximately 50,000 individuals for the purpose of potential 22 further transmission to plaintiffs [States] would ... undermine the confidence of individuals in 23 the preservation of confidential information submitted to [the federal government] for specified 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 12 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 13 of 21 1 2 3 purposes, and, if dissemination is permitted, expose these individuals to an irremediable invasion of their privacy.” See In re United States, No. 16-40795, United States’ Petition for a Writ of Mandamus, (5th Cir. June 3, 2016) Fifth Circuit Mandamus Petition, at 30, 4 https://www.nilc.org/wp-content/uploads/2016/06/TX-v-US-Govt-Mandamus-Petition-2016- 5 06.pdf. As a result, the district court stayed, and then withdrew, its previous order requiring 6 that personally identifying information in DHS files be provided to the plaintiff States. See 7 Texas v. United States, No. 14-cv-254, Order, Dkt. 434 (S.D. Tex. Jan. 19, 2017) (concluding 8 that there was “no current need for the [federal government] to file with the Court the 9 personnel identifiers”). 10 11 12 13 14 15 16 17 18 19 20 It is also protected by a protective order entered into in Ms. L. The protective order in that case, attached hereto as Exhibit B, specifies who may be provided with confidential, protected material. Notably, the Ms. L. class counsel and the federal government agreed that individuals and organizations who were designated for the purpose of facilitating reunification may have access to the protected material. The Plaintiffs here have not been so designated, and their efforts before this Court—including this expansive expedited discovery request in the midst of the reunification efforts—appear to be aimed at complicating and slowing down that process, rather than serving the people on whose behalf they purport to be acting. Moreover, the information shared with class counsel in Ms. L. was created for the purpose of complying with the preliminary injunction in that case—a function that is being 21 ably administered by Judge Sabraw. It is unclear what the Plaintiffs would be doing with the 22 information in this litigation—they have not sought to participate in the reunification efforts in 23 the Southern District of California. Indeed, if the Plaintiffs’ claims were valid, they would be 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 13 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 14 of 21 1 2 3 subject to mandatory joinder in Ms. L. because the States “claim[] an interest relating to the subject of the action and ... disposing of the action in the person's absence may ... as a practical matter impair or impede the person’s ability to protect the interest” and would certainly “leave 4 an existing party”—the United States as well as the Ms. L. plaintiffs—“subject to a substantial 5 risk of incurring double, multiple, or otherwise inconsistent obligations because of the 6 interest.” Fed. R. Civ. P. 19(b)(1). Indeed, if they were truly interested in pursuing these claims 7 on the merits, it is unusual that they would pick a forum new to the issues, rather than a forum 8 (located in one of the Plaintiff States, no less) that has already carefully considered the issues 9 for a period of months, addressed the legal claims in denying in part a motion to dismiss, 10 certified a class of the people the Plaintiffs purport to represent, held that they are likely to 11 12 13 14 15 16 17 18 19 20 succeed on the merits of some of their claims, and is busy administering a comprehensive remedy that the Plaintiffs claim to be seeking in this Court. What is most outrageous about Plaintiffs’ expedited discovery requests is its timing—in the midst of Judge Sabraw’s rapid management of the reunification process. If Plaintiffs were truly interested in the reunification of families, they would let Judge Sabraw finish the job. Instead, they propose that Defendants respond to their proposed discovery requests within one week—a week in which some of the most important reunification work in Ms. L. will be taking place. Information exchanges between the federal government and the Ms. L. class counsel during that period will be critical to the determination of class membership, the reunification of 21 class members who were removed, and the handling class members recently reunified and in 22 detention with final orders of removal. Declaration of David W. Jennings at ¶¶ 7, 9–11. 23 Expedited discovery in this case on that time frame—conducted outside of the able supervision 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 14 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 15 of 21 1 2 3 of Judge Sabraw—would work to detract from the virtually night and day work that the agencies are doing, under the supervision of Judge Sabraw, to reunify families. The Plaintiffs completely disregard this effort in seeking expansive discovery in the midst of this multi- 4 agency effort to implement Judge Sabraw’s order that provides relief to the group the States 5 purport to represent. 6 7 2. Under no circumstances should expedited discovery be granted that goes beyond the information being provided in the Ms. L. class action. 8 Although Plaintiffs represent that they have attempted to narrow their requests by 9 asking for the information provided in Ms. L, it is clear that they intend their responses to be 10 read to encompass far more information than what has been provided in Ms. L. Indeed, in 11 12 13 14 15 16 17 18 19 20 several instances their requests read “to the extent such documents are not already identified and produced” where the first of their twelve requests seeks all the information provided in Ms. L. Everything else is in addition to that. And contrary to the claim they need this real-time, current information to avoid spoliation, Plaintiffs request information dating back to the beginning of the year, in formats that the federal government does not maintain when implementing Judge Sabraw’s orders in Ms. L. or administering the Unaccompanied Alien Children program in the ordinary course. See Declaration of Jonathan White at ¶¶ 5–6. Moreover, Plaintiffs seek such information for parents and children who have already been reunified. Plaintiffs cannot possibly vindicate the interests of parents and children who have 21 already received the relief the parents sought in court—and if the parents were to seek 22 additional relief, it should come that request should come from the certified class, not Plaintiff 23 States. Requiring Defendants to provide customized reporting on parents, children, and 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 15 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 16 of 21 1 2 3 reunifications to the Plaintiffs—especially for parents and children who have already been reunified, let alone by month, facility, and state going back to January 1, 2018—would be unduly burdensome to all agencies involved, is not needed on an expedited basis, and would 4 seriously impede the agencies’ ability to complete the remaining reunifications quickly. See id. 5 at ¶¶ 29–30; Jennings Declaration, at ¶ 23. 6 Given the time constraints implicit in any expedited discovery situation, and 7 particularly the instant situation where the important work of reunification is ongoing, 8 Defendants submit that the information already provided to class counsel in Ms. L. would be 9 the least burdensome information to produce to Plaintiffs. And, of course, any production 10 should be conditioned upon the entry of an appropriate protective order, but Defendants are 11 12 13 14 15 16 17 18 19 confident that one can be negotiated and entered into expeditiously. Indeed, it is the only practical solution in the time frame Plaintiffs have proposed for expedited discovery. Most importantly, the production of the information from Ms. L., along with the production of the blank forms presently used by the agencies for reunification, is the only expedited discovery that can be produced without an adverse impact on the ongoing Ms. L reunification and compliance. And production should only happen with the consent and approval of Ms. L. class counsel. Thus, Defendants request that the Court limit the entry of expedited discovery to this material, upon consent of the Ms. L. class counsel.1 B. 20 21 22 23 A second category of information the Plaintiffs seek includes both aggregated and individualized information spanning each and every separated child and parent, including 1 Indeed, with respect to two related cases, including another class action, involving the children whose interests the States purport to represent, N.T.C. v. ICE, No. 18-cv-6428, 2018 WL 3472544 (S.D.N.Y. July 19, 2018), E.S.R.B. v. Sessions, No. 18-cv-6654, slip op. (S.D.N.Y. July 24, 2018), both judges, with the parties’ consent consulted with Judge Sabraw in order to ensure coordination in light of these issues. See Dkt. 35 at 2-3. 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 16 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 17 of 21 1 2 3 the total number, location, conditions of release, DHS’ reunification plan, and the current location of every separated parent and child, dating back to the beginning of the year. Again, there no suggestion, and no showing has been made, that such information is at any risk of 4 being destroyed or moved, and that is especially so here where litigation holds have been 5 issued to relevant agencies concerning those very documents. Moreover, much of that 6 information duplicates the information provided in Ms. L., and requiring a separate production 7 of these categories of material would require extensive work by the same information experts 8 and personnel who are critical to the Ms. L. reporting and reunification efforts. 9 Such discovery presents an overwhelming burden because, to the extent it goes beyond 10 the information being produced in Ms. L., it can only be done with a manual search of records. 11 12 13 14 15 16 17 18 19 20 21 HHS has estimated that it would take more than 2,000 hours to generate the kind of information sought by Plaintiffs. See White Declaration, at ¶ 16. The necessity of manual searches requiring many thousands of man hours to respond to the proposed discovery is a reality for each of the agencies at issue. For example, ICE cannot run a search for “conditions of release” for a category of individuals. Therefore, to provide such information would require a painstaking, individual, case by case review. See Jennings Declaration, at ¶¶ 11, 15. Furthermore, because the information is not kept in the kind of format sought by Plaintiffs, it would require the agencies to create a spreadsheet or database to produce this information for hundreds of children and families, adding to the burdensome nature of the request. See id. at ¶¶ 12–13. 22 In addition, some of the information sought is simply not available to the agencies. For 23 example, ICE may not know the current location of aliens who have been released. See id. at 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 17 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 18 of 21 1 2 3 ¶ 15. To the extent ICE has any information, it may simply be the last known address, and would again involve manual records review of individual files to produce this information. Id. And all of HHS’s resources, including their “surge” capacity, have been deployed to devote to 4 ensuring compliance in the Ms. L. case. Simply put “HHS does not have additional ‘surge’ 5 resources or personnel available to deploy in order to fulfill expedited discovery requests,” to 6 the extent it is not what has already been generated by Ms. L. See White Declaration at ¶ 13. 7 Thus, to require HHS and ORR to provide information pursuant to such request would be 8 extremely burdensome and counterproductive to the reunification of children and parents as is 9 mandated by Ms. L. See id.; see also Ms. L., Transcript of Proceedings, at 35 (S.D. Cal. July 10 24, 2018) (noting how HHS’s efforts to accomplish reunification with their “surge” personnel 11 12 13 14 15 16 17 18 19 20 thus far have been a “remarkable achievement”). The third category of information pertains to documents, directives, and forms. Specifically, Plaintiffs request directives regarding the “treatment” of separated children, documents regarding the “justification” for vetting sponsors, prerequisites to reunification, the rollout of family separation, the justification for the use of a certain form, hearings on parental fitness, the alleged refusal to permit asylum seekers to present themselves at ports of entry, family detention, and the DHS “Northern Border Strategy.” There is no need for expedited discovery on these matters. This information presents no risk that “the evidence sought may be moved or become difficult to track as time goes on.” Order, Dkt. 27 at 5. Policies, directives, 21 forms, and other documents, even if they may change, are not at risk of being destroyed or 22 moved, and that is especially so here where the agencies are undertaking efforts to preserve 23 those very documents. Importantly, to divert agency resources towards burdensome discovery 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 18 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 19 of 21 1 2 3 of non-exigent matters at this time would seriously impair the critical work being done at multiple agencies to accomplish the relief that Plaintiffs allegedly seek—to reunify families. As we have explained, it makes no sense that if the goal of this suit is the reunification of 4 families, that Plaintiffs reject pursuing their claims and seeking discovery before the Ms. L. 5 court, which could efficiently manage both the claims in this lawsuit as well as ensure these 6 claims and discovery requests would not impair the relief being granted and implemented to 7 the certified class in Ms. L. 8 9 10 11 12 13 14 15 16 17 18 19 20 C. Proposed Agenda for Initial Status Conference: Plaintiffs’ Position A. The Plaintiff States propose that the initial status conference address the States’ proposed expedited discovery and the timing for responses to same, the States’ request for the additional orders noted below, and the schedule for status conferences going forward. B. The States seek an order permitting them to serve their initial discovery on July 27, 2018, following the status conference and in compliance with any orders issued by the Court during the conference. C. The States further request that the Court enter an order allowing for telephonic hearing attendance by Plaintiff States other than Washington; provided 21 that the State of Washington will attend all hearings in person and is authorized to 22 act on behalf of the Plaintiff States at such hearings. 23 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 19 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 20 of 21 Defendants’ Position 1 Defendants propose addressing the following items at the July 27, 2018 status 2 3 4 conference:  efforts to reunify children with parents, and overlap between that case and this one. 5 6  7 8  seeking reunification with their parents to the Southern District of California. See 11 N.T.C. v. ICE, No. 18-cv-6428, 2018 WL 3472544 (S.D.N.Y. July 19, 2018) (Dkt. 12 33-1) and E.S.R.B. v. Sessions, No. 18-cv-6654, slip op. (S.D.N.Y. July 24, 2018).  17 An expedited briefing schedule for the Defendants’ impending Rule 12 motion to dismiss. 15 16 The impact on Ms. L. and this case of the recent decisions by two district courts in New York to transfer a putative class action and a related case concerning children 10 14 The potential impact of parallel proceedings and discovery in this case on ongoing efforts to reunify families in Ms. L. 9 13 Developments in Ms. L. concerning compliance with that court’s injunction, ongoing  The Defendants’ pending transfer motion.  The Defendants’ request to stay this litigation to allow for Ms. L. compliance efforts to be prioritized. 18 19  Scheduling of subsequent status conferences in this case. 20  Coordination between this Court and Judge Sabraw in the Southern District of 21 California in the event parallel discovery proceeds. As Judges Furman and Rakoff did 22 with the parties consent in N.T.C. and E.S.R.B., Defendants believe it may be 23 worthwhile for this Court to confer with Judge Sabraw concerning any overlap with 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 20 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36 Filed 07/26/18 Page 21 of 21 1 2 3 the Ms. L. litigation and ongoing compliance with the injunction in that case and would not object to that occurring. Defendants have conferred with Plaintiffs’ counsel, who indicate they “have no objection to the Court managing its caseload and 4 docket as it deems appropriate” in this case. 5 DATED this 26th day of July, 2018. 6 7 /s/ Laura K. Clinton LAURA K. CLINTON, WSBA #29846 Assistant Attorney General NOAH G. PURCELL, WSBA #43492 Solicitor General COLLEEN M. MELODY, WSBA #42275 Civil Rights Division Chief REBECCA GLASGOW, WSBA #32886 Deputy Solicitor General MEGAN D. LIN, WSBA #53716 Assistant Attorney General Attorneys for Plaintiff State of Washington 8 9 10 11 12 13 /s/ Joshua Press CHAD READLER Acting Assistant Attorney General AUGUST E. FLENTJE Special Counsel to the Assistant Attorney General WILLIAM C. PEACHEY Director EREZ REUVENI Assistant Director JOSHUA S. PRESS NICOLE MURLEY Trial Attorneys Attorneys for Defendants 14 15 16 17 18 19 20 21 22 23 24 INITIAL JOINT STATUS REPORT 2:18-cv-00939-MJP 21 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case Document 36-1 Filed 07/26/18 Page 1 of 11 Exhibit A Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 2 of 11 1 The Honorable Marsha J. Pechman 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 13 14 v. THE UNITED STATES OF AMERICA; DONALD TRUMP, in his official capacity as President of the United States of America, et al., Defendants. 15 16 PLAINTIFF STATES’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY Plaintiffs, 11 12 NO. 2:18-cv-00939-MJP STATE OF WASHINGTON, et al., TO: THE UNITED STATES OF AMERICA; DONALD TRUMP, in his official 17 capacity as President of the United States of America; U.S. DEPARTMENT OF 18 HOMELAND 19 ENFORCEMENT; U.S. CUSTOMS AND BORDER PROTECTION; U.S. 20 21 22 23 SECURITY; U.S. IMMIGRATION AND CUSTOMS CITIZENSHIP AND IMMIGRATION SERVICES; U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; OFFICE OF REFUGEE RESETTLEMENT; KIRSTJEN NIELSEN, in her official capacity as Secretary of the U.S. Department of Homeland Security; THOMAS HOMAN, in his 24 PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 1 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 3 of 11 official capacity as Acting Director of U.S. Immigration and Customs 1 Enforcement; KEVIN K. MCALEENAN, in his official capacity as 2 Commissioner of U.S. Customs and Border Protection; ALEX AZAR, in his 3 4 official capacity as Secretary of U.S. Department of Health and Human Services; 5 SCOTT LLOYD, in his official capacity as Director of Office of Refugee 6 Resettlement; and JEFFERSON BEAUREGARD SESSIONS III, in his official 7 capacity as the Attorney General of the United States, Defendants; 8 AND TO: JOSHUA S. PRESS, Attorney for Defendants. 9 10 11 12 13 14 15 16 17 18 19 20 I. INSTRUCTIONS Pursuant to Federal Rules of Civil Procedure 26 and 34, Plaintiffs hereby request that Defendants produce the following documents and electronically stored information for inspection and copying within the time ordered by the Court to the office of Laura K. Clinton, Assistant Attorney General, Office of the Attorney General, 800 Fifth Avenue, Suite 2000, Seattle, Washington 98104-3811, or at such other place as the parties shall mutually agree. Electronic documents may be produced in PDF format or as a printed record. For each document that you assert is privileged or otherwise excludable from discovery, please provide the following information: the author(s), the recipient(s), all copy recipients, the date, the type of document (memorandum, e-mail, letter, chart, photograph, etc.), a description of the document, the privilege being claimed, and the grounds for the privilege claim. 21 If any request for production seeks information in any document formerly in your 22 possession, custody, or control that has been discarded, misplaced, lost, destroyed, or otherwise 23 placed outside your custody or control, identify the document and describe its contents in detail 24 and state when the document was discarded, misplaced, lost, destroyed, or otherwise placed PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 2 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 4 of 11 1 2 3 outside your custody or control. If the document was destroyed, identify each person with knowledge of its destruction, the person requesting or performing the destruction, the reasons for its destruction, and each document that refers or relates to either the existence or destruction 4 of the document. For each document that was discarded, misplaced, lost, or otherwise placed 5 outside your custody or control, explain all circumstances in relation to the loss of the document 6 and identify each person with knowledge regarding those circumstances. 7 8 If you object to producing documents in response to any request for production, state your objection and all factual and legal bases for the objection. 9 These discovery requests are continuing in nature. If you discover additional or different 10 information that is responsive to these discovery requests, you are required to provide 11 12 13 14 15 16 17 supplemental responses in accordance with Federal Rules of Civil Procedure 26(e). If you do not provide the required supplemental information, the Plaintiffs may move at the time of trial to exclude from evidence any requested information and documents that were not timely furnished. The singular shall include the plural and vice versa, and the conjunctive shall include the disjunctive and vice versa. Wherever used, references to the masculine, feminine, or neuter gender shall include the neuter, feminine, and masculine genders, as the context demands. II. 18 19 20 DEFINITIONS The following definitions apply to following discovery requests: The term “document” encompasses the broadest possible definition permitted under the 21 Rules and specifically includes all written or recorded material of any kind or character in your 22 possession, custody, or control or within your knowledge, including without limitation 23 statements, letters, correspondence, telegrams, memoranda, notes, records, reports, studies, 24 interoffice communications, calendar and diary entries, microfilm, bulletins, circulars, PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 3 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 5 of 11 1 2 3 pamphlets, messages, invoices, maps, charts, tabulations, summaries or abstracts, video or audio recordings, work sheets, surveys, graphs, statistics, tables, photographs, rules, regulations, opinions, orders, interpretations, guidelines, electronic mail, any data or information stored or 4 saved on any computer hard disk, floppy disk, tape, or other medium, any computer print-outs, 5 computer software or code, whether in machine or human readable form on any medium, and all 6 other documentary material, including non-identical copies (whether different from the original 7 because of any alterations, notes, comments, or other material contained thereon or attached 8 thereto or otherwise and whether a draft or final version). 9 10 11 12 13 14 15 16 17 18 19 20 21 The term “communication” means any transmission, disclosure or exchange of information or opinion, however made. The term “concerning or relating to” to means referring to, evidencing, containing, discussing, mentioning, describing, reflecting, summarizing, constituting, identifying, memorializing, referring or pertaining to, studying, commenting or reporting on, or analyzing, in whole or in part A “person” means any individual, corporation, partnership, association, or any other entity of any kind. “You” and “your” mean any Defendants and any person acting or purporting to act on behalf of any of them, including without limitation all present and former employees, agents, representatives, personnel, attorneys, accountants, consultants, experts, investigators, or other persons. 22 “Separated Child” or “Separated Children” mean any child under the age of 18 who 23 entered the United States along the U.S.-Mexico border at or between designated ports of entry 24 with a parent or guardian, and who was separated from that parent or adult guardian by the PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 4 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 6 of 11 1 2 3 Department of Homeland Security (DHS) or any other Defendant without a determination that the parent or adult guardian is unfit or presents a danger to the child. “Separated Parent” means any parent or guardian who entered the United States along 4 the U.S.-Mexico border at or between designated ports of entry with a child under the age of 18, 5 and who was separated from that child by DHS or any other Defendants without a determination 6 that the parent or adult guardian is unfit or presents a danger to the child. 7 8 The “Ms. L Case” refers the matter Ms. L., et al. v. U.S. Immigration and Customs Enforcement, et al., Case No. 18-cv-0428 DMS (MDD) (S.D. Cal.). 9 10 11 12 13 III. REQUESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO. 1: All documents provided to Plaintiffs’ counsel or the court in the Ms. L Case concerning the separation of families and Defendants’ attempts to reunite them. For future productions of materials in the Ms. L Case, please produce such materials concurrently with, or within two business days after, production in Ms. L. 14 15 16 17 18 19 REQUEST FOR PRODUCTION NO. 2: To the extent such documents are not already included and produced in response to Request for Production No. 1, documents sufficient to identify: a) The number and location of Separated Children placed by the Office of Refugee Resettlement (ORR) - or any other Defendant - in each Plaintiff State from January 1, 2018 to the present. b) The number and location of Separated Parents who are or were detained in each Plaintiff State from January 1, 2018 to the present, by month and facility. c) The number and location of Separated Parents in each Plaintiff State released from DHS custody from January 1, 2018 to the present, including the facility from which they were released, the conditions of release, and current location. 20 21 22 23 24 PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 5 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 7 of 11 1 d) As to every Separated Parent who is present in any Plaintiff State (or who was present in a Plaintiff State on the day this lawsuit was filed) the location of that Parent’s children and DHS’ plan to reunify the Separated Parent with the child. e) As to every Separated Child who is present in any Plaintiff State (or who was present in a Plaintiff State on the day this lawsuit was filed), the current placement and location of every such child (e.g., living with a sponsor in Seattle, Washington), the location of that Separated Child’s Separated Parent(s), and DHS’ plan to reunify the Separated Child with the Separated Parent(s). 2 3 4 5 6 7 REQUEST FOR PRODUCTION NO. 3: To the extent such documents are not already included and produced in response to RFP No. 1, documents regarding Defendants’ efforts to 8 9 10 reunify families separated at the Southwestern border, including a) Directives regarding the treatment of Separated Children as Unaccompanied Minors as a matter of policy, and application of ORR’s Unaccompanied Minor reunification policies to separated families; b) Documents concerning the justification and implementation directives for vetting “sponsors” of separated parents and/or children, including treating parents as sponsors unrelated to their children; c) Documents concerning financial and procedural prerequisites to reunification including the justification and implementation directives for requiring Separated Parents to comply with any financial or administrative requirements prior to reunifying them with their children, including paying for costs of reunification or submitting to fingerprinting; d) Documents sufficient to identify the number of Separated Parents who have been deported by Defendants without their children since January 1, 2018. 11 12 13 14 15 16 17 18 19 REQUEST FOR PRODUCTION NO. 4: To the extent such documents are not already 20 included and produced in response to RFP No. 1, documents regarding the rollout and 21 implementation of the family separation policy at the Southwestern border, including documents 22 concerning the justification for such policy and directives to those who were charged with 23 implementing, overseeing, and tracking the individuals affected by the policy. 24 PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 6 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 8 of 11 1 2 3 REQUEST FOR PRODUCTION NO. 5: To the extent such documents are not already included and produced in response to RFP No. 1, documents concerning the justification for and 4 implementation of U.S. Immigration and Customs Enforcement’s “Separated Parent’s Removal 5 Form,” Dkt. 27-1, Exhibit W, including the number of Separated Parents provided with such 6 form, the number of Separated Parents who signed such form, and the number of Separated 7 Parents who were deported after signing such form. 8 9 REQUEST FOR PRODUCTION NO. 6: To the extent such documents are not already 10 included and produced in response to RFP No. 1, documents concerning whether hearings on 11 12 parental fitness were provided to Separated Parents prior to Defendants separating them from their children. 13 14 15 16 17 18 19 20 REQUEST FOR PRODUCTION NO. 7: To the extent such documents are not already included and produced in response to RFP No. 1, documents sufficient to ascertain the number of Separated Parents against whom an allegation of unfitness has been made, the number of such Parents found to be unfit after judicial hearing, the number of child trafficking prosecutions or other felony criminal charges brought against such parents in 2018, and the number of such prosecutions that resulted in conviction. 21 22 REQUEST FOR PRODUCTION NO. 8: Documents reflecting Defendants’ knowledge 23 of the practice of refusing to permit persons who seek asylum to present themselves at valid ports 24 of entry along the U.S.-Mexico border, including discussion of “metering”, numerical or space PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 7 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 9 of 11 1 2 3 limits on asylum claims, administrative or other limits on asylum claim processing, or requiring asylum seekers to return to ports of entry at a later day or time, including any directives to Defendants’ employees at the Southwestern border concerning same. 4 5 REQUEST FOR PRODUCTION NO. 9: Documents concerning Defendants’ pilot 6 program separating families in the El Paso sector of the U.S.-Mexico border was alleged in 7 paragraphs 45- 46 and 120 of the Complaint (Dkt. 1), including directives to Defendant 8 employees charged with implementing and monitoring such program. 9 10 11 12 13 REQUEST FOR PRODUCTION NO. 10: Documents concerning the implementation of a family detention policy, including information regarding potential sites within the Plaintiff States for family detention centers and any proposed or enacted regulatory changes related to family detention. 14 15 16 17 REQUEST FOR PRODUCTION NO. 11: Documents concerning implementation of Defendants’ “Northern Border Strategy” as alleged in paragraph 136 of the Complaint (Dkt. 1). 18 19 20 21 REQUEST FOR PRODUCTION NO. 12: Documents, including medical studies, concerning any negative effects on psychological, emotional, and physical health, that family separation might have on Separated Children or Separated Parents. 22 23 24 PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 8 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 10 of 11 1 DATED this day of July, 2018. 2 3 NOAH G. PURCELL, WSBA #43492 Solicitor General COLLEEN M. MELODY, WSBA #42275 Civil Rights Division Chief LAURA K. CLINTON, WSBA #29846 MEGAN D. LIN, WSBA #53716 Assistant Attorneys General Attorneys for Plaintiff State of Washington 4 5 6 7 8 9 10 CERTIFICATION 11 12 13 14 The undersigned attorney certifies that he/she has read each response and objection to these discovery requests, and that to the best of his/her knowledge, information, and belief, formed after a reasonable inquiry, each is: (1) consistent with the Rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not 15 interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless 16 increase in the costs of litigation; and (3) not unreasonable or unduly burdensome or expensive, 17 given the needs of the case, the discovery already had in the case, the amount in controversy, 18 and the importance of the issues at stake in the litigation. 19 DATED this _____ day of _______________, 20178 20 21 22 ATTORNEY NAME, WSBA # Attorneys for Plaintiffs 23 24 PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 9 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case 2:18-cv-00939-MJP Document 36-1 Filed 07/26/18 Page 11 of 11 VERIFICATION 1 2 3 4 5 6 7 8 STATE OF WASHINGTON County of ) ) ss. ) I, ______________________, being first duly sworn, upon oath, state as follows: That I am a Defendant authorized to sign these Answers and Responses to the Plaintiffs’ First Set of Discovery Requests for Expedited Discovery; that I have read the foregoing Interrogatories and Requests for Production and the Answers and Responses thereto, know the contents thereof, and swear that the foregoing are true and correct. DATED this _____ day of ____________, 2018. 9 10 By: Defendant 11 12 13 SUBSCRIBED AND SWORN to before me this ____ day of _______________, 2018. 14 NOTARY SIGNATURE 15 16 NOTARY PRINTED NAME Notary Public State of Washington My Commission Expires: 17 18 19 20 21 22 23 24 PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS FOR EXPEDITED DISCOVERY 2:18-cv-00939-MJP 10 ATTORNEY GENERAL OF WASHINGTON 800 Fifth Avenue. Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Case Document 36-2 Filed 07/26/18 Page 1 of 20 Exhibit Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1821 Page 2 ofPage 20 1 of 19 1 2 3 4 5 6 7 8 9 10 11 12 13 CHAD A. READLER ADAM L. BRAVERMAN Acting Assistant Attorney General Acting United States Attorney WILLIAM C. PEACHEY SAMUEL W. BETTWY Director Assistant U.S. Attorney WILLIAM C. SILVIS California Bar No. 94918 Assistant Director CAROLINE J. PRIME SARAH B. FABIAN Assistant U.S. Attorney Senior Litigation Counsel California Bar No. 220000 NICOLE N. MURLEY Assistant U.S. Attorney Trial Attorney Office of the U.S. Attorney U.S. Department of Justice 880 Front Street, Room 6293 Office of Immigration Litigation San Diego, CA 92101-8893 District Court Section Box 868, Ben Franklin Station Washington, DC 20442 Telephone: (202) 616-047 Fax: (202) 616-8962 Attorneys for Federal Respondents- Defendants 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS. L., et al., ) ) Plaintiffs/Petitioners ) Case No.: 3:18-cv-00428-DMS ) v. ) ) U.S. IMMIGRATION AND ) CUSTOMS ENFORCEMENT, et al., ) ) Respondents/Defendants. ) ) STIPULATION AND [PROPOSED] PROTECTIVE ORDER GOVERNING THE HANDLING OF CONFIDENTIAL MATERIAL Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1822 Page 3 ofPage 20 2 of 19 1 2 3 4 5 6 7 8 9 10 11 12 I. Plaintiffs and Defendants (collective, the “Parties”) in the above captioned action Ms. L., et al., v. U.S. Immigration and Customs Enforcement, et al., Case No. 3:18-cv-00428-DMS (“Litigation” or “Action”) recognize that information about putative or confirmed class members and their children exchanged by the Parties in the Litigation for the purpose of facilitating compliance with the Court’s preliminary injunction order may include private information related to individuals in the custody and care of the United States Government and that such materials may reasonably, in good faith, be confidential and protected from disclosure to the public or to one or more of the Parties under Rule 26(c) of the Federal Rules of Civil Procedure. II. The Parties desire to enter into this stipulation to facilitate the 13 exchange of documents and information while protecting against the unauthorized 14 disclosure of confidential documents and information. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. The Parties believe good cause exists for approving the stipulation because it seeks to protect against injury caused by the dissemination of protected materials. The materials to be protected include personally identifiable information, the disclosure of which could be prohibited by the Privacy Act or other law. However, the Privacy Act provides, as an exception, that such materials may be released “pursuant to the order of a court of competent jurisdiction.” 5 U.S.C. § 552a(b)(11). An order of this Court, therefore, would provide a basis for release of the requested materials pursuant to the Privacy Act and Fed. R. Civ. P. 26(c). The parties also seek to protect other personal information regarding putative or confirmed class members or their children. Stipulation NOW, THEREFORE, the Parties stipulate and agree, through their undersigned counsel, to the following terms and conditions to govern the -2- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1823 Page 4 ofPage 20 3 of 19 1 production of information that the producing party reasonably and in good faith 2 deems confidential, and request that the Court enter a protective order (hereafter 3 “Protective Order” or “Order”) consistent with the terms of this stipulation. 4 1. Scope. The following terms govern with respect to class information 5 exchanged by the Parties in the Litigation for the purpose of facilitating compliance 6 with the Court’s preliminary injunction order (collectively “Protected Material”). 7 8 2. Protected Material. The categories of Protected Material include: a. Information, documents or tangible things protected by the 9 Privacy Act, 5 U.S.C. § 552a, et seq., or information that would be covered by the 10 Privacy Act if the subject of the information had been a U.S. citizen or a person 11 lawfully admitted for permanent residence. 12 b. Personally Identifying Information (PII), Protected Health 13 Information (PHI), and any information that is protected or restricted from 14 disclosure by statute or regulation. 15 c. All other protected documents, information or tangible things 16 not identified above that the parties agree in writing or the Court orders qualify for 17 protection under Federal Rule of Civil Procedure 26(c). 18 d. Defendants do not waive their right to assert other or further 19 privileges over the information and redact such information. 20 Defendants may withhold or redact information that is protected by statute for 21 which no exceptions permitting disclosure apply or exist or information that is 22 subject to a claim of privilege or exemption from disclosure such as withholding 23 classified national security information the Deliberative Process Privilege, Law 24 Enforcement Privilege, Attorney-Client Privilege or Attorney Work Product. 25 For instance, 3. Designations. It shall be the duty of the party producing the Protected 26 Material (“Producing Party”) to give notice of material that is to be considered 27 covered by this Protective Order in the manner set forth in paragraphs 5, 8 and 11 28 below. Protected Material may be designated as “PROTECTED MATERIAL” if -3- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1824 Page 5 ofPage 20 4 of 19 1 the Producing Party believes in good faith that such material is covered by this 2 Protective Order. A Party may designate material that it obtained from a Third 3 Party pursuant to this Protective Order, if it believes in good faith that it qualifies as 4 Protected Material under this Order. 5 4. Duties. The duty of the Party or Parties receiving the Protected 6 Material (“Receiving Party”) and of all other persons bound by this Protective 7 Order to maintain the confidentiality of Protected Material so designated shall 8 commence with such notice. Protected Material shall be designated by the 9 Producing Party, subject to the provisions of this Order, with the designation of 10 “PROTECTED MATERIAL.” No person subject to this Protective Order may 11 disclose, in public or private, any Protected Material designated by a Party as 12 “PROTECTED MATERIAL,” except as provided for in this Protective Order or as 13 further ordered by the Court. 14 5. Method Of Designation. Each page of any material the Producing 15 Party wishes to designate as Protected Material must be labeled PROTECTED 16 MATERIAL, at the time the material, or a copy thereof, is provided to the 17 Receiving Party. In the case of material contained in or on media other than paper, 18 the Producing Party shall affix such a label to the material or use its best efforts to 19 identify the material as Protected Material and affix the applicable designation. 20 6. Access To Protected Material. Only the following persons shall have 21 access to or retain material designated as PROTECTED MATERIAL pursuant to 22 this Order: 23 a. The Court and its official personnel; 24 b. Counsel for any Party and any of Defendants’ personnel with 25 whom Counsel for Defendants determines it is appropriate to share such 26 information for the purpose of this litigation. For the purposes of this Protective 27 Order, “Counsel” means the attorneys representing the Parties for this Action, 28 -4- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1825 Page 6 ofPage 20 5 of 19 1 including paralegals, office clerks, secretaries, and other support staff assisting 2 those attorneys, working on the Action; 3 c. For information designated as PROTECTED MATERIAL 4 relating to an individual member of the class, to the individual class member and 5 counsel who represent individual class members, or any prospective counsel that is 6 evaluating whether to take on the representation of a class member. The individual 7 class member and counsel shall only be provided PROTECTED MATERIAL 8 relating to the individual class member, and the individual may not be provided any 9 information pertaining to other class members. Prospective counsel must execute 10 Exhibit A, the Acknowledgment Regarding the Order before receiving this limited 11 PROTECTED MATERIAL; 12 d. Outside experts, consultants retained by the Receiving Party’s 13 Counsel to assist in this Litigation (and the experts’ or consultants’ staff whose 14 duties and responsibilities require access to such materials); 15 e. Court reporters and translators; 16 f. Outside litigation support personnel retained by Counsel to 17 assist in the preparation and/or litigation of the Action, including contract attorneys 18 or outside copying service vendors or electronic document management vendors; 19 g. Any person not otherwise covered by subparagraph (a), (b), (c), 20 or (d) who was involved in the preparation of such material or who received or 21 reviewed such material for purposes other than this Action or who has been alleged 22 to have received or reviewed such material for purposes other than this Action; 23 24 25 26 27 28 h. Witnesses at deposition not otherwise covered by subparagraphs (a), (b), (c) or (d); i. Persons whom the Producing Party agrees in writing or on the record at a deposition may be shown PROTECTED MATERIAL. j. Any individuals or persons who Class Counsel designates for the purpose of facilitating the reunification of Class Members and their children, -5- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1826 Page 7 ofPage 20 6 of 19 1 including (but not limited to) nonprofit organizations, lawyers, faith-based groups, 2 shelters, or any other organization or individuals who may be able to assist in the 3 reunification process. Given the urgency of the deadlines in the Court’s preliminary 4 injunction order, the individuals or persons described in this paragraph may receive 5 a limited set of PROTECTED MATERIAL as follows prior to executing Exhibit A, 6 the Acknowledgment, as long as the information is treated as protected under this 7 Order, and an Acknowledgment is signed within a reasonable time thereafter. 8 Information which may be shared for the purpose of facilitating the reunification of 9 Class Members and their children includes Class Members’ names and the name(s) 10 of the class member’s child(ren); Alien Number for the Class Member and his or 11 her child(ren); detention location or other location information regarding the Class 12 Member and his or her child(ren). The individuals or persons described in this 13 paragraph may receive any additional PROTECTED MATERIAL necessary to 14 assist in facilitating reunification related to the class member(s) they are serving or 15 being consulted to serve after signing the Acknowledgment. The individual or 16 organization may not receive information about any other class members. 17 7. Agreement By Persons Accessing Protected Materials. All persons 18 identified in paragraph 6 (d), (e), (f), (g), (h) (i), and (j) who in the course of the 19 case may be given access to Protected Material shall be required to read this 20 Protective Order and agree, in writing, to be bound by this Protective Order by 21 executing an acknowledgment in the form of Exhibit A that is annexed to this 22 Protective Order. All such acknowledgments shall be maintained in the files of the 23 counsel allowing access by such person to the Protected Material. 24 8. Treatment Of Protected Material During Inspection Of 25 Documents. It is contemplated that a Party might make available certain of its files 26 for inspection by other Parties, which files may contain protected material as well 27 as non-protected material, and that following such inspection, the inspecting party 28 will designate documents to be copied and the copies will be furnished or produced -6- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1827 Page 8 ofPage 20 7 of 19 1 to it. All documents and their contents made available for such inspection shall be 2 treated as PROTECTED MATERIAL until the Party allowing inspection has had a 3 reasonable opportunity, not to exceed twenty one (21) calendar days absent an 4 agreement by the parties, to designate and mark those documents which were 5 copied as PROTECTED MATERIAL. 6 9. Copies, Summarizations, Extracts Protected. Protected Material 7 designated under this Order shall include, without limitation: (a) all copies, extracts, 8 and complete or partial summaries prepared from such documents, things, or 9 information so designated; (b) portions of deposition transcripts and exhibits to 10 deposition transcripts that contain, summarize, or reflect the content of any such 11 documents, things, or information; and (c) portions of briefs, memoranda, or any 12 other writings filed with the Court and exhibits thereto that contain, summarize, or 13 reflect the content of any such documents, things, or information. The Parties agree 14 that information regarding the aggregated numbers for any category of individuals 15 contained in the chart may be excluded from this paragraph. Moreover, a Party may 16 make a request to the producing Party that certain material contained in such 17 copies, extracts, and complete or partial summaries not be treated as PROTECTED 18 MATERIAL. The Parties will meet and confer in good faith within five days of any 19 such request to resolve the request. 20 10. Pleadings And Briefs Containing Protected Material. Before any 21 materials produced in discovery, answers to interrogatories, responses to requests 22 for admissions, deposition transcripts, or other documents which are designated as 23 confidential information are filed with the Court for any purpose, the party seeking 24 to file such material must seek permission of the Court to file the material under 25 seal, unless the Parties agree that the documents can be redacted to remove the 26 Protected Material. The receiving party shall meet and confer with the producing 27 party regarding any proposed redactions before seeking leave from the Court, and 28 -7- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1828 Page 9 ofPage 20 8 of 19 1 the producing party shall not unreasonably withhold its consent to the filing of a 2 redacted copy of the Protected Material. 3 11. Court Hearings And Other Proceedings. Nothing contained in this 4 Protective Order shall be construed to prejudice any Party’s right to use before the 5 Court any Protected Material. Before doing so, however, and to the extent not 6 otherwise authorized to be so used hereunder, the Party intending to use Protected 7 Material shall so inform the Court and the Producing Party, so that any Party or 8 Third Party may apply to the Court for appropriate protection, including clearing 9 the hearing room or courtroom of persons not entitled to receive Protected Material 10 11 pursuant to paragraph 6. 12. Testimony At Pretrial Court Hearings And Other Proceedings. 12 All testimony elicited during hearings and other proceedings that counsel for a 13 Party or Third Party indicated on the record may be subject to the protections of this 14 Order shall be deemed PROTECTED MATERIAL until the expiration of twenty 15 one (21) calendar days after delivery of a copy of the transcript of the testimony by 16 the court reporter to counsel who requested a copy of the transcript. Within the 17 twenty one (21) calendar day period following such mailing of the transcript, any 18 Party may move to seal the transcript under LRCiv 79-5, designating all or any 19 portion of the testimony as PROTECTED MATERIAL. Upon being informed that 20 certain portions of a transcript are designated as PROTECTED MATERIAL, each 21 Party must have each copy in their custody, possession or control immediately 22 marked with the appropriate designation at the appropriate pages. Such designation 23 must remain until the Court rules on the motion to seal. 24 13. This Order Only Applies To The Exchange of Information About 25 Putative or Confirmed Class Members and Their Children For The Purpose 26 Of Facilitating Compliance With The Court’s Preliminary Injunction Order. 27 Nothing contained in this Order shall restrict or limit any Party’s right to present 28 -8- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJPDocument Document 90 36-2 FiledFiled 07/08/18 07/26/18 PageID.1829 Page 10 ofPage 20 9 of 19 1 Protected Material to the Court during a trial in the Action. The use of Protected 2 Material at trial shall be governed by the pretrial order. 3 14. This Order Does Not Apply To Non-Private Information. The 4 restrictions set forth in this Protective Order shall not apply to documents, things, or 5 information that: (a) have been publicly disclosed by either Party; or (b) have been 6 independently obtained by the Receiving Party through lawful means. 7 Producing Party challenges the Receiving Party’s invocation of this provision, then 8 the Receiving Party shall provide written documentation showing the material falls 9 within categories of non-private information referenced in this provision. This 10 paragraph does not purport to waive or in any other way limit any protection that 11 exists under law, including the Privacy Act, 5 U.S.C. § 552a, et seq. 12 15. If the Challenge To Designations. If a Party may objects to a designation 13 of the materials as Protected Material on the ground that such protection is not 14 warranted under controlling law, the following procedure shall be used: The Party 15 objecting to the designation of Protected Material must notify, in writing, counsel 16 for the other Party of the objected-to materials and the grounds for the objection. 17 The writing shall be by email to all counsel for the other Party, followed by a hard 18 copy sent next business day courier. The objecting Party shall request to meet and 19 confer with the other Party prior to submitting the dispute to the Court for a ruling. 20 If the dispute is not resolved consensually between the parties within ten (10) 21 business days of receipt of such a notice of objections, the objecting party may 22 move the Court for a ruling on the objection. The materials at issue must be treated 23 as Protected Material, until the Court has ruled on the objection or the matter has 24 been otherwise resolved. 25 16. No Waiver By Failure To Challenge Designation. For purposes of 26 the Action or any other action, no Party concedes that any material designated as 27 PROTECTED MATERIAL does in fact contain or reflect Protected Material. A 28 Party shall not be obligated to challenge the propriety of the designation of -9- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1830 Page 11 of Page 20 10 of 19 1 Protected Material at the time made, and failure to do so shall not preclude a 2 subsequent challenge. 3 17. Inadvertent Disclosure Of Protected Material. The failure by a 4 Producing Party to designate specific documents or materials as Protected Material 5 shall not, by itself, be deemed a waiver in whole or in part of a claim of 6 confidentiality as to such documents or materials. Upon written notice to the 7 Receiving Party of such failure to designate, or of incorrect designation, the 8 Receiving Party shall cooperate to retrieve disseminated copies, and restore the 9 confidentiality of the inadvertently disclosed information beyond those persons 10 authorized to review such information pursuant to paragraph 6, and shall thereafter 11 take reasonable steps to ensure that the Protected Material is treated in accordance 12 with the designation. 13 Protective Order with respect to disclosure that occurred prior to the receipt of 14 written notice of the mistaken designation. 15 18. No person or Party shall incur any liability under this Disclosure To Producing Party’s Personnel. Nothing in this 16 Protective Order shall affect the right of the Producing Party to disclose to its client 17 agency personnel, employees, consultants, or experts, any documents, things, or 18 information designated by it as Protected Material pursuant to this Order; such 19 disclosure shall not waive the protection of this Protective Order and shall not entitle 20 other Parties or their attorneys to disclose such information, documents, things, or 21 information in violation of this Order. 22 19. Disclosure To Unauthorized Persons. If information subject to this 23 Protective Order is disclosed to any unauthorized person either through 24 inadvertence, mistake, or otherwise without authorization by the Producing Party, 25 or other than in the manner authorized by this Protective Order, the person 26 responsible for the disclosure shall immediately (a) inform the Producing Party of 27 all pertinent facts relating to such disclosure, including without limitation, the 28 name, address, and telephone number of the recipient and his or her employer; -10- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1831 Page 12 of Page 20 11 of 19 1 (b) use his or her best efforts to retrieve the disclosed information and all copies 2 thereof; (c) advise the recipient of the improperly disclosed information, in writing, 3 of the terms of this Protective Order; (d) make his or her best efforts to require the 4 recipient to execute an agreement to be bound by the terms of this Protective Order 5 in the form of the declaration attached to this Protective Order as Exhibit A; and 6 (e) take all other reasonable steps to prevent further disclosure by or to the 7 unauthorized person who received the Protected Material. 8 9 10 11 20. “Admissibility” Of Protected Material. This Protective Order shall not constitute a waiver of any Party’s or non-party’s right to object to the admissibility into evidence of any Protected Material under Federal law. 21. All Objections Preserved. This Protective Order is intended to 12 provide a mechanism for handling the disclosure or production of Protected 13 Material to which there is no objection other than confidentiality. The protection 14 afforded by this Order shall in no way affect a Producing Party’s right to withhold 15 or redact documents as: (a) privileged under the attorney-client or other privilege, 16 (b) protected by the work product doctrine, or (c) otherwise exempted from 17 discovery under Rule 26 of the Federal Rules of Civil Procedure or under any law. 18 Additionally, this Protective Order shall not prejudice the right of a Party to: 19 (a) seek additional protective treatment for any information it considers to be very 20 highly sensitive, or otherwise exempt from disclosure, such that the protections in 21 this Protective Order would be insufficient, (b) object to the designation of any 22 document or information as PROTECTED MATERIAL, or (c) seek any 23 modification of or relief from any provision of this Protective Order, either 24 generally or as to any particular Protected Material, by properly noticed motion 25 with notice to all Parties and their respective counsel. 26 22. Advice To Client. Nothing in this Protective Order shall prevent or 27 otherwise restrict counsel from rendering legal advice to the clients in this 28 Litigation and, in the course of this Litigation, relying generally on examination of -11- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1832 Page 13 of Page 20 12 of 19 1 designated p Protected Material; provided, however, that in rendering such advice 2 and otherwise communicating with such client, counsel shall not disclose the 3 specific contents of Protected Materials to persons not authorized to receive such 4 material pursuant to the Protective Order. 5 6 23. Inadvertent Disclosure Of Privileged Information. a. The inadvertent disclosure of Material covered by the attorney- 7 client privilege, the work-product doctrine, or any other recognized privilege shall 8 be governed by Federal Rule of Evidence 502 and this Protective Order. 9 b. If, in connection with the pending Litigation, a Producing Party 10 inadvertently discloses information subject to a claim of a privilege or protection 11 described in paragraph 26(a) (“Inadvertently Disclosed Information”), such 12 disclosure shall not constitute or be deemed a waiver or forfeiture of any claim of 13 privilege or work-product protection that the Producing Party would otherwise be 14 entitled to assert with respect to the Inadvertently Disclosed Information and its 15 subject matter. 16 c. If a claim of inadvertent disclosure is made by a Producing Party 17 with respect to Inadvertently Disclosed Information, the Receiving Party shall, 18 within five (5) business days, return or destroy all copies of the Inadvertently 19 Disclosed Information and provide a certification of counsel that all such 20 Inadvertently Disclosed Information has been returned or destroyed. 21 d. Within twenty-one (21) calendar days of the notification that 22 such Inadvertently Disclosed Information has been returned or destroyed, or within 23 a different time upon written agreement of the Parties or order of the Court, the 24 Producing Party shall produce a privilege log with respect to the Inadvertently 25 Disclosed Information. 26 27 e. Nothing in this Protective Order shall limit the right of any Party to petition the Court for an order compelling production of such Inadvertently 28 -12- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1833 Page 14 of Page 20 13 of 19 1 Disclosed Information, or for an in-camera review of the Inadvertently Disclosed 2 Information. 3 24. Good Faith Designations. Each Party agrees that designation of 4 Protected Material and responses to requests to permit further disclosure of 5 Protected Material shall be made in good faith and not: (a) to impose burden or 6 delay on an opposing Party, or (b) for tactical or other advantage in litigation. 7 Further, each Party agrees to make best efforts to avoid as much as possible 8 inclusion of Protected Material in briefs and other captioned documents filed in 9 court, in order to minimize sealing and designating such documents as Protected 10 Material. 11 25. Use Of Information Subject To Protective Order. The Receiving 12 Party’s use of any information or documents obtained from the Producing Party 13 subject to this Protective Order, including all information derived therefrom, shall 14 be restricted to use in this Litigation (subject to the applicable rules of evidence and 15 subject to the confidentiality of such materials being maintained) and shall not be 16 used by anyone subject to the terms of this agreement, for any purpose outside of 17 this Litigation or any other proceeding between the Parties, except as otherwise 18 provided in this Order. 19 26. Meet And Confer. Prior to filing any motion or application before the 20 Court to enforce this Protective Order, the moving party shall notify the other 21 Party(ies) in writing and meet and confer in good faith in an attempt to resolve their 22 dispute(s). 23 27. Injunctive Relief. In the event anyone violates or threatens to violate 24 any of the terms of this Protective Order, the Parties and Third Parties agree that the 25 aggrieved party may, subject to the “meet and confer” requirement set forth above, 26 apply to the Court to obtain injunctive relief against any such person violating or 27 threatening to violate any of the terms of this Protective Order. In the event the 28 aggrieved party brings such motion or application, the responding person subject to -13- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1834 Page 15 of Page 20 14 of 19 1 the provisions of this Protective Order shall not employ as a defense the claim that 2 the aggrieved party possesses an adequate remedy at law. The Parties and Third 3 Parties shall not use or reveal, directly or indirectly, any information in violation of 4 this Protective Order. Because of the confidential and proprietary nature of the 5 information contemplated to be covered by this Protective Order, the Parties and 6 Third Parties’ agree that legal remedies are inadequate. Therefore, the Parties and 7 Third Parties stipulate that injunctive relief is an appropriate remedy to prevent any 8 person from using or disclosing Protected Material in violation of this Protective 9 Order. The Parties and Third Parties waive and release any and all requirements for 10 a bond or undertaking to support any injunctive relief for enforcement of this 11 Protective Order. 12 28. Other Actions. If any Party is (a) subpoenaed in another action, 13 (b) served with a demand in another action to which it is a Party, or (c) served with 14 any legal process by one not a party to this action, seeking information or material 15 which was produced or designated as Protected Material by someone other than that 16 Party, the Party shall give prompt actual written notice, by hand or facsimile 17 transmission, within ten (10) calendar days of receipt of such subpoena, demand, or 18 legal process, to those who produced the Protected Material prior to compliance 19 with the subpoena so as to allow the Producing Party to seek protection from the 20 relevant court(s). Nothing in this Protective Order shall be construed as requiring 21 the Party or anyone else covered by this Protective Order to challenge or appeal any 22 order requiring production of information or material covered by this Protective 23 Order, or to subject itself to any penalties for noncompliance with any legal process 24 or order, or to seek any relief from this Court. 25 29. Survival And Final Disposition Of Designated Material. Final 26 termination of the Litigation, including exhaustion of appellate remedies, shall not 27 terminate the limitations on use and disclosure imposed by the Protective Order. 28 -14- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1835 Page 16 of Page 20 15 of 19 1 a. Within sixty (60) days of the final termination of the Litigation 2 by final judgment (whether by settlement, trial, or otherwise), including the time for 3 filing and resolution of all appeals, or within such other period as the Parties may 4 agree upon, all Protected Material and copies of Protected Material, including such 5 material in the hands of outside experts or consultants or attorneys who considered 6 or accepted representation of a class member or child, shall be delivered by counsel 7 of record for the Receiving Party to counsel of record for the Producing Party of 8 such material or destroyed, with confirmation of that destruction to the producing 9 Party in writing. b. 10 11 Any Protected Material filed or lodged with and retained by the Court shall not be subject to the provisions of this paragraph 32. c. 12 Notwithstanding the foregoing, counsel may retain copies of 13 briefs and other papers filed with the Court, deposition transcripts, discovery 14 responses, and attorney work product that contains or constitutes Protected 15 Material. Further, counsel are not required to delete information that may reside on 16 their firm’s electronic back-up systems that are over-written in the normal course of 17 business. Any such archival copies that contain or constitute Protected Material 18 remain subject to this Protective Order and shall be maintained in a safe and secure 19 manner. 20 30. Amendment Or Termination Of Protective Order. No part of the 21 restrictions imposed by this Protective Order may be terminated, except by written 22 stipulation executed by counsel of record for each Producing Party or by an Order 23 of this Court for good cause shown. The terms of this Protective Order shall 24 survive termination of the Action. 25 31. Jurisdiction For Enforcement. The Court retains jurisdiction 26 subsequent to settlement or entry of judgment to enforce the terms of this Protective 27 Order. Each person to whom disclosure of any Protected Information is made 28 agrees to subject himself to the jurisdiction of the Court in which this action is -15- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1836 Page 17 of Page 20 16 of 19 1 pending for the purpose of proceedings relating to the performance under, 2 compliance with, or violation of this Protective Order. 3 32. Limitations. Nothing in this Order shall be deemed to restrict in any 4 manner the use by any party of its own documents or materials. Nothing in this 5 Protective Order should be construed as prohibiting a non-party from seeking 6 additional protections of records or information that it owns or controls. 7 Dated: July 8, 2018 8 9 AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT /s/ Lee Gelernt LEE GELERNT Email: LGELERNT@aclu.org 10 11 12 Counsel for Plaintiffs 13 14 15 16 17 18 19 20 21 Dated: July 8, 2018 UNITED STATED DEPARTMENT OF JUSTICE, OFFICE OF IMMIGRATION LITIGATION /S/ Sarah B. Fabian SARAH B. FABIAN Email: Sarah.B.Fabian@usdoj.gov Counsel for Defendants [CONTINUED ON THE NEXT PAGE] 22 23 24 25 26 27 28 -16- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1837 Page 18 of Page 20 17 of 19 1 ORDER 2 For good cause shown, pursuant to Rule 26(c) of the Federal Rules of Civil 3 Procedure, all discovery and other materials exchanged by the Parties or Third 4 Parties, or filed with the Court, in Ms. L, et al., v. U.S. Immigration and Customs 5 Enforcement et al., 3:18-cv-00428 (S.D. Cal.) shall be provided subject to the 6 conditions set forth in the foregoing Stipulated Protective Order. This order shall 7 be construed as a lawful order pursuant to the Privacy Act permitting release 8 consistent with the terms of this Order. 9 IT IS SO ORDERED 10 11 12 Date: Hon. Dana M. Sabraw United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -17- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1838 Page 19 of Page 20 18 of 19 1 STIPULATION EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT CONCERNING PROTECTED INFORMATION 3 4 5 1. 6 7 initial, last). 2. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 My name is ___________________________________ (first, middle I live at ____________________________________ (street address), ____________________ (city), ______________ (state) ________________ (zip code). 3. I am employed __________________________ as a/an (company), ____________________________________ ___________________ by which at (street is located address), ____________________ (city), ______________ (state) ________________ (zip code). Its telephone number is _____________________. I have read the attached Stipulated Protective Order entered in the action of Ms. L, et al. v. U.S. Immigration and Customs Enforcement et al., pending in the Southern District of California and bearing Case No. 3:18-cv-00428, and a copy of the Stipulated Protective Order has been given to me. 4. I agree to be bound by the terms of the Stipulated Protective Order, and agree that any Protected Material, within the meaning of the Stipulated Protective Order, will be used by me only to assist counsel in connection with the above-referenced litigation or as otherwise authorized by the Stipulated Protective Order. 5. I agree that I will not disclose or discuss Protected Material so designated with anyone other than the persons described in paragraph 6 of the Stipulated Protective Order. 28 -18- Case 3:18-cv-00428-DMS-MDD Case 2:18-cv-00939-MJP Document Document 90 36-2 Filed Filed 07/08/18 07/26/18 PageID.1839 Page 20 of Page 20 19 of 19 1 6. I understand that any disclosure or use of Protected Material in any 2 manner contrary to the provisions of the Stipulated Protective Order may subject 3 me to sanctions for contempt of the Court’s Order. 4 7. I agree to be subject in personam to the jurisdiction of the Southern 5 District of California in connection with any proceeding relating to the enforcement 6 of the Stipulated Protective Order. 7 8 I declare under penalty of perjury that the foregoing is true and correct. 9 10 11 ____ ____ (date) (signature) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19-