George Manjikian v. U.S. Citizenship & Immigration Services ( 2024 )

1 2 UNITED STATES DISTRICT COURT 3 CENTRAL DISTRICT OF CALIFORNIA 4 5 GEORGE MANJIKIAN, Case No. 2:23-CV-08642-FMO-RAO 6 Plaintiff, 7 v. STIPULATED PROTECTIVE ORDER 8 UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES 9 Defendant. 10 11 12 A. PURPOSES AND LIMITATIONS 13 Disclosure of the Certified Administrative Record (“CAR”) in this action is 14 likely to involve production of confidential, proprietary or private information for 15 which special protection from public disclosure and from use for any purpose other 16 than prosecuting this litigation may be warranted. Accordingly, the parties hereby 17 stipulate to and petition the Court to enter the following Stipulated Protective Order. 18 The parties acknowledge that this Order does not confer blanket protections on all 19 disclosures or responses to discovery and that the protection it affords from public 20 disclosure and use extends only to the limited information or items that are entitled to 21 confidential treatment under the applicable legal principles. 22 B. GOOD CAUSE STATEMENT 23 Plaintiff George Manjikian previously filed a Form I-589, Application for 24 Asylum and Withholding of Removal (“asylum application”) before the United States 25 Citizenship and Immigration Services. Because Plaintiff’s asylum application was 26 reviewed and considered to adjudicate Plaintiff’s subsequent Form I-485, Application 27 to Register Permanent Residence or Adjust Status, the CAR will contain personally 1 identifiable information and confidential information which pertains to Plaintiff’s 2 asylum claim. 3 Federal Rule of Civil Procedure 26(c)(1) provides that a party may move for a 4 Protective Order and a court may issue a Protective Order for good cause. The parties 5 believe that good cause exists for the entry of a proposed Protective Order to protect 6 against the unauthorized disclosure of confidential, for-official-use-only, and private 7 information. 8 Furthermore, 8 C.F.R. § 208.6 prohibits disclosure of information related to an 9 asylum request. This regulation is designed to protect the confidentiality of asylum 10 applicants to prevent “the disclosure of facts that would link the [applicant]’s identity 11 with the fact that the alien has applied for asylum.’” Lin v. United States, 459 F.3d 12 255, 263 (2nd Cir. 2006); Doe v. U.S. Citizenship and Immigration Services, Case 13 No. 1:21-cv-00576-NONE-SAB, 2021 WL 1907562 at *4 (E.D. Cal. May 12, 2021). 14 In other words, the regulation protects the applicant from risk of persecution if he 15 were to return to his home country. Furthermore, Defendant is bound by 8 C.F.R. § 16 208.6 to prevent public disclosure of Plaintiff’s identity and the basis for his asylum 17 application. 18 Accordingly, to expedite the flow of information, to facilitate the prompt 19 resolution of disputes over confidentiality of materials within the CAR, to adequately 20 protect information the parties are entitled to keep confidential, to ensure that the 21 parties are permitted reasonable necessary uses of such material in preparation for and 22 in the conduct of trial, to address their handling at the end of the litigation, and serve 23 the ends of justice, a protective order for such information is justified in this matter. 24 It is the intent of the parties that information will not be designated as confidential for 25 tactical reasons and that nothing be so designated without a good faith belief that it 26 has been maintained in a confidential, non-public manner, and there is good cause 27 why it should not be part of the public record of this case. 1 C. DEFINITIONS 2 1. “Litigation” shall mean the case captioned George Manjikian v. United States 3 Citizenship and Immigration Services, Case No. 2:23-CV-08642-FMO-RAO 4 (C.D. Cal.). 5 2. “Confidential Information” shall mean information that, at the time of its 6 furnishment in the Litigation, or thereafter, is designated confidential by the 7 Producing Party because of a good-faith belief that the information is not in 8 the public domain, or if in the public domain, is improperly in the public 9 domain; and: 10 a. is a trade secret or other confidential research, development, or 11 commercial information as such terms are used in Fed. R. Civ. P. 12 26(c)(1)(G); 13 b. personal financial, medical or other private information relating to an 14 individual that would properly be redacted from any public court filing 15 pursuant to Fed. R. Civ. P. 5.2; 16 c. is information protected by the Privacy Act of 1974, 5 U.S.C § 552a, 8 17 U.S.C. § 1202(f), 8 U.S.C. § 1367, 8 C.F.R. § 208.6, or any other 18 applicable statute or regulation; 19 d. any information compiled for law enforcement purposes, including, but 20 not limited to, investigative files and techniques related to the integrity 21 of the legal immigration system, suspected or known fraud, criminal 22 activity, public safety, or national security, and investigative referrals; 23 e. any sensitive, but unclassified, information to include limited-official- 24 use or for official use only information; 25 f. names, email addresses, and phone numbers of federal employees; 26 g. is information that could, if disclosed, be used to interfere with the 27 official duties of Government employees; or 1 be protected from public disclosure, but is not otherwise provided for 2 under this paragraph (2), for good cause shown. Any party who invokes 3 clause (h) of this paragraph shall furnish the basis of their belief that the 4 underlying document should be treated as confidential. 5 3. “Disclose” (or forms thereof) shall mean to distribute, provide, or otherwise 6 make available for access, viewing, or copying. “Disclose” shall include the 7 actual covered document or item as well as the contents or information 8 contained therein, so that disclosing a copy, summary, paraphrasing, or 9 characterization would be considered a disclosure of the document itself for 10 purposes of this Protective Order. 11 4. “Document” shall mean all items listed in Fed. R. Civ. P. 34(a)(1)(A)-(B). 12 5. “Challenging Party” shall mean any party who challenges the designation of 13 information as Confidential Information under this Protective Order. 14 6. “Designating Party” shall mean the party or other person seeking to designate 15 and have treated as Confidential Information pursuant to this Protective 16 Order. 17 7. “Producing Party” shall mean the person or party furnishing the Document in 18 the Litigation. 19 8. “Receiving Party” shall mean any party who receives information that has 20 been designated as Confidential Information. 21 9. “Personally Identifiable Information” or “PII” includes, without limitation 22 thereto, the information listed in Fed. R. Civ. P. 5.2(a). 23 D. PURPOSE, SCOPE, AND LIMITATIONS OF PROTECTIVE ORDER 24 1. This Protective Order applies to the Plaintiff, Defendants, any third-party or 25 future plaintiffs or defendants, their respective attorneys, successors, 26 executors, personal representatives, administrators, heirs, legal 27 representatives, assigns, subsidiaries, divisions, employees, agents, 1 which they control. This Protective Order also applies to any parties and/or 2 individuals who are added to the case after the issuance of this order. Anyone 3 falling under this definition shall be referred to as “parties” in this Order. 4 2. This Protective Order applies to the entire Litigation and any appeal of this 5 Litigation, whether the Documents are produced by a party or a person or 6 entity who is not a party to this Litigation (a “non-party”). This Order binds 7 the Parties and their respective agents, successors, personal representatives, 8 and assignees. 9 3. Nothing in this Protective Order supersedes or limits lawful exercise of 10 authority granted by existing independent statutory, law enforcement, national 11 security, or regulatory obligations imposed on a Party, and this Protective 12 Order does not prohibit or absolve the Parties from complying with such other 13 obligations. 14 4. This Protective Order shall not prejudice in any way any party’s ability to 15 challenge the use or disclosure of information other than information 16 designated as Confidential Information under this Protective Order. A party’s 17 compliance with the terms of this Protective Order shall not operate as an 18 admission that any particular material is or is not (a) confidential or (b) 19 privileged. 20 5. The protections conferred by this Protective Order do not cover any 21 information (i) properly in the public domain; (ii) becomes part of the public 22 domain after its disclosure to a Receiving Party as a result of publication not 23 involving a violation of this Protective Order, including becoming part of the 24 public record here through trial or otherwise; or (iii) known to the Receiving 25 Party prior to the disclosure or obtained by the Receiving Party after the 26 disclosure from a source who obtained the information lawfully and under no 27 obligation of confidentiality to the Producing Party. 1 6. This Protective Order does not govern the use by the Parties of Confidential 2 Information in open court at any hearing or trial, but the Parties reserve the 3 right to seek relief from the Court in connection with the intended use of 4 Confidential Information in any such hearing or trial. 5 7. This Protective Order governs the disclosure, use, and handling of all 6 Confidential Information, regardless of the format or medium in which such 7 Confidential Information is generated, stored, or maintained. 8 8. Any Confidential Information referenced in any pleading or contained in any 9 Document filed with the Court here by the Producing Party shall at the time 10 of filing cease to be Confidential Information unless the Producing Party files 11 the un-redacted pleading or Document under seal. 12 9. Nothing in this Protective Order shall restrict the right of any Producing Party 13 to use its own Confidential Information for any purpose whatsoever, but if 14 any such use results in a disclosure that causes the Confidential Information 15 to lose its designation as Confidential Information, then it shall no longer be 16 subject to any protection under this Protective Order. 17 10. This Protective Order applies only to disclosures, uses, and handling of 18 Confidential Information occurring after the entry of this Protective Order. 19 11. Neither the termination of this Litigation nor the termination of employment 20 of any person who has had access to any Confidential Information shall 21 relieve such person of his or her obligations under this Protective Order, 22 which shall survive. 23 12. Any party may at any time seek modification of this Order by agreement or, 24 failing agreement, by motion to the Court. 25 E. DURATION 26 Once a case proceeds to trial, information that was designated as 27 CONFIDENTIAL or maintained pursuant to this protective order used or introduced 1 members of the public, including the press, unless compelling reasons supported by 2 specific factual findings to proceed otherwise are made to the trial judge in advance 3 of the trial. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81 4 (9th Cir. 2006) (distinguishing “good cause” showing for sealing documents produced 5 in discovery from “compelling reasons” standard when merits-related documents are 6 part of court record). Accordingly, the terms of this protective order do not extend 7 beyond the commencement of the trial. 8 F. METHOD FOR DESIGNATING CONFIDENTIAL INFORMATION 9 1. Designations of Confidential Information shall be made by the Producing 10 Party, prior to or at the time of production, except as otherwise provided by this 11 Protective Order. 12 2. The Designation of Confidential Information should be limited only to those 13 Documents that qualify under the appropriate standards or under the definition 14 of “Confidential Information” in Section C(2) of this Protective Order. 15 3. Documents furnished by any party to any other party shall be designated as 16 containing “Confidential Information.” For documents furnished in paper or an 17 electronic form that allows endorsements or similar designation on the image, 18 the designation shall appear by the inclusion of the marking of 19 “CONFIDENTIAL” on each page of the document asserted to contain 20 Confidential Information. For electronic information that is provided in native 21 form or a format that is not amenable to visible endorsement on the image, the 22 file name(s) shall begin with “CONFIDENTIAL”.1 The media on which the 23 Confidential Information is provided (e.g., CD, DVD, external hard drive) also 24 must be and remain labeled with “CONFIDENTIAL” unless the protection of 25 the data within the media is removed. Any copying or transferring of electronic 26 files that are designated as Confidential Information must be done in a manner 27 1 that maintains the protection for all copies, including, but not limited to, in the 2 filename(s) and the location where the copies are stored and users’ access 3 thereto. 4 4. If it comes to a Producing Party’s attention that information designated as 5 Confidential Information does not qualify or no longer qualifies for protection, 6 the Producing Party must promptly notify all Parties that it is withdrawing the 7 designation for the applicable information. 8 5. When it comes to Personally Identifiable Information (PII), the Parties agree 9 that PII shall be assumed to be Designated as Confidential Information by 10 default, without the need for specific “CONFIDENTIAL” markings or 11 redactions on documents where PII may be found. The Parties may follow the 12 procedures outlined in Section D of this Order to challenge an assumed 13 assertion of Confidentiality over PII as any other Confidentiality Designation. 14 G. CHALLENGING CONFIDENTIALITY DESIGNATIONS 15 1. A Challenging Party shall not be obliged to challenge the propriety of a 16 Confidential Information designation at the time made, and a failure to do so 17 shall not preclude a subsequent challenge thereto. 18 2. The Challenging Party shall initiate a challenge to the designation of any 19 Confidential Information under this Protective Order by providing to the 20 Designating Party (a) written notice of each designation it is challenging and 21 (b) a description of the basis of each challenge. 22 3. The Challenging Party and the Designating Party shall attempt to resolve each 23 challenge in good faith and must begin a meet and confer process within 24 seven calendar days after the Designating Party receives notice from the 25 Challenging Party. During the conferring process, the Challenging Party must 26 convey its basis for the challenge and the Designating Party must have an 27 opportunity to review the applicable documents and either keep or change the 1 Receiving Party within 14 calendar days after receipt of notice of the 2 challenge, or within a reasonable time agreed to by the Parties. 3 4. If the Designating Party decides to withdraw its designation, it shall give 4 notice of this change to the Challenging Party. 5 5. If the Challenging and Designating Parties cannot come to a resolution within 6 the time set forth in paragraph 3 above, or as otherwise agreed, either Party 7 may move for a determination from the Court. 8 6. Any information designated as Confidential Information pursuant to and after 9 the entry by the Court of this Protective Order shall be treated as Confidential 10 Information until such time as (a) the Designating Party agrees that it shall no 11 longer be treated as Confidential Information or (b) the Court rules that such 12 information should not be treated as Confidential Information. 13 7. After a designation as Confidential Information is removed or withdrawn by 14 the Designating Party or by the Court, the Designating Party must provide to 15 the Receiving Party replacement documents, files, or information that is free 16 from any markings or designations as Confidential Information. The 17 replacement versions shall be provided in the same format as the information 18 that is to be replaced, unless otherwise agreed to by the Parties. The 19 presumptive time for providing the replacement information shall be ten days, 20 but the Designating Party must in good faith provide the information in a 21 reasonable time, considering any agreements with the Receiving Party, the 22 volume of information to be re-produced, and the nature or format of the 23 information. 24 H. DISCLOSURE, USE, AND HANDLING OF CONFIDENTIAL 25 INFORMATION 26 1. A Receiving Party may use Confidential Information, in connection with this 27 Litigation only for prosecuting, defending, or attempting to settle this 1 accordance with the terms of this Protective Order. 2 2. Counsel of record are responsible for employing reasonable measures, 3 consistent with this Protective Order, to control access to and secure 4 distribution of Confidential Information. 5 3. Confidential Information shall only be disclosed, summarized, described, 6 characterized, or otherwise communicated or made available in whole or in 7 part to the following persons. 8 a. Counsel (including outside counsel) for the Parties, including 9 associated personnel necessary to assist counsel in this Litigation, such 10 as litigation assistants, paralegals, and litigation support, information 11 technology, information or records management, investigative, 12 secretarial, or clerical personnel; 13 b. Current employees of the Parties who are assisting with respect to this 14 Litigation; 15 c. Any person with prior authorized access to the Confidential 16 Information; 17 d. Current employees of the Producing Party; 18 e. Court reporters and other persons not employed by this Court, retained 19 to record or transcribe testimony or argument at interviews or 20 depositions in connection with this Litigation; 21 f. Photocopying, data processing, and other support services that are 22 reasonably necessary for this Litigation; 23 g. Mediators or arbitrators; and 24 h. This Court (including any judicial officer to whom this Court may refer 25 this matter for settlement purposes) and Court personnel, including 26 persons recording or transcribing testimony or argument at a 27 conference, hearing, or appeal in this Litigation. 1 Order may only occur after the person to whom the disclosure is being made 2 has been given a copy of this Protective Order and has signed a declaration in 3 the form attached hereto as “Exhibit A.” 4 5. Persons receiving Confidential Information pursuant to the terms of this 5 Protective Order are prohibited from disclosing it to any person except in 6 conformity with this Protective Order. 7 6. Unless the Designating Party gives written permission, all Confidential 8 Information that is filed with the Court must be (a) filed under seal or in 9 camera in accordance with the Court’s Local Rules and procedures, and/or (b) 10 redacted from any filing that is publicly available. 11 7. If the need arises for any party to disclose Confidential Information in a 12 proceeding in open Court or in support of a dispositive motion, it may do so 13 only after giving seven days’ notice to the producing party who, after a good- 14 faith effort to meet-and-confer, may seek additional relief from the Court. 15 I. INADVERTENT PRODUCTION OF CONFIDENTIAL 16 INFORMATION 17 1. Nothing here shall be deemed or construed as a waiver of any applicable 18 privilege, right of privacy, or proprietary interest with respect to any 19 information or item. 20 2. The inadvertent or unintentional disclosure of Confidential Information that 21 should have been designated as such, regardless of whether the information, 22 document, or thing was so designated at the time of disclosure, shall not be 23 deemed a waiver in whole or in part of a party’s claim of confidentiality, 24 either as to the specific information, document or thing disclosed or as to any 25 other material or information concerning the same or related subject matter. 26 Such inadvertent or unintentional disclosure may be rectified by notifying in 27 writing counsel for all parties to whom the material was disclosed that the 1 after disclosure. Such notice shall constitute a designation of the information, 2 document or thing as Confidential under this Order. 3 3. If a Receiving Party learns that, by inadvertence or otherwise, it, or a person 4 to whom it has disclosed Confidential Information in accordance with this 5 Protective Order, has disclosed Confidential Information to any person or in 6 any circumstance not authorized under this Protective Order, the Receiving 7 Party shall, upon learning of the unauthorized disclosure: 8 (a) promptly notify the person(s) to whom the unauthorized disclosure 9 was made that the unauthorized disclosure contains Confidential 10 Information subject to this Protective Order; 11 (b) promptly make all reasonable efforts to obtain the return of the 12 Confidential Information and to prevent further unauthorized 13 disclosures of the Confidential Information, including requesting the 14 person who received the unauthorized disclosure to agree to be bound 15 by the terms of this Protective Order by executing a declaration in the 16 form attached as “Exhibit A”; and 17 (c) within five calendar days notify the Producing Party and all other 18 Parties of the identity of the person(s) to whom the unauthorized 19 disclosure was made, the circumstances surrounding the disclosure, and 20 the steps taken to prevent any use or further disclosure of the 21 Confidential Information that was the subject of the unauthorized 22 disclosure. 23 J. DISPOSITION OF DOCUMENTS CONTAINING CONFIDENTIAL 24 INFORMATION 25 1. Except as provided in this Protective Order, within 90 days of the final 26 termination of this Litigation, whether by settlement, judgment, or other 27 disposition or conclusion and all appeals or opportunities to appeal therefrom, 1 items designated as Confidential Information or (b) return them to the 2 Designating Party, depending upon the Designating Party’s stated reasonable 3 preference, except materials that exist on back-up tapes or similar systems. 4 Materials that exist on back-up tapes, systems, or similar storage need not be 5 immediately deleted or destroyed, and, instead, such materials may be 6 overwritten and destroyed in the normal course of business. Until they are 7 overwritten in the normal course of business, the Receiving Party will take 8 reasonable steps to limit access, if any, to the persons necessary to conduct 9 routine IT and cybersecurity functions. In disposing of information in its 10 possession under this paragraph, Receiving Party also will take reasonable 11 steps to notify persons to whom it distributed Confidential Information 12 pursuant to this Order that such information should be returned to Receiving 13 Party or destroyed by the person possessing the information with written 14 confirmation to Receiving Party. 15 a. For material that contains or reflects Confidential Information, but that 16 constitutes or reflects counsel’s work product, counsel of record for the 17 Parties shall be entitled to retain such work product in their files in 18 accordance with the provisions of this Protective Order, so long as it is 19 and remains clearly marked to reflect that it contains Confidential 20 Information subject to this Protective Order. 21 b. Counsel of record for the Parties shall also be entitled to retain an 22 archival copy of all pleadings; affidavits; motion papers; hearing 23 transcripts; legal memoranda; correspondence; briefs; other papers filed 24 with the Court; and any other parts of the trial record, even if such 25 material contains Confidential Information, so long as such material is 26 and remains clearly marked to reflect that it contains Confidential 27 Information. Even after the final disposition of this Litigation, the terms 1 and handling of any Confidential Information unless its Designating 2 Party agrees otherwise in writing or a court order directs. 3 c. In particular, attorneys representing the United States, its agencies, or 4 its officers in their official capacity may maintain copies of any 5 documents designated Confidential in their case file for this case, and 6 may maintain copies of any notes or summaries containing such 7 Confidential Information in their case file for this case, subject to 8 statutory and regulatory provisions including 44 U.S.C. § 3101, et seq., 9 and 5 U.S.C. § 552, et seq. 10 L. VIOLATION 11 Any violation of this Order may be punished by appropriate measures including, 12 without limitation, contempt proceedings and/or monetary sanctions. 13 14 15 16 *** 17 18 19 20 21 22 23 24 25 26 27 1 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD. 2 3 || DATED February 21, 2024 4 5 || /s/ Ruben Sarkisian ‘ Attorneys for Plaintiff 7 8 || DATED: February 21, 2024 9 10 |] Rwomeys for Detendant 1] 12 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 14 DATED: _2/23/2024 Rayedin Qa, O20 17 ||) HON. ROZELLA A. OLIVER United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 I, _____________________________ [print or type full name], of 5 _________________ [print or type full address], declare under penalty of perjury 6 that I have read in its entirety and understand the Stipulated Protective Order that 7 was issued by the United States District Court for the Central District of California 8 on ____________[date] in the case of Manjikian v. USCIS, 2:23-cv-08642-FMO- 9 RAO. I agree to comply with and to be bound by all the terms of this Stipulated 10 Protective Order and I understand and acknowledge that failure to so comply could 11 expose me to sanctions and punishment in the nature of contempt. I solemnly 12 promise that I will not disclose in any manner any information or item that is subject 13 to this Stipulated Protective Order to any person or entity except in strict compliance 14 with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Central District of California for enforcing the terms of this Stipulated Protective 17 Order, even if such enforcement proceedings occur after termination of this action. 18 I hereby appoint __________________________ [print or type full name] of 19 _______________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Stipulated Protective 22 Order. 23 Date: ______________________________________ 24 City and State where sworn and signed: _________________________________ 25 26 Printed name: _______________________________ 27 1 Signature: __________________________________ 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27