Al Otro Lado, Inc. v. McAleenan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AL OTRO LADO, INC., et al., Case No.: 3:17-cv-2366-BAS-KSC 12 Plaintiffs, ORDER REGARDING PRIVILEGE 13 v. DISPUTE; ORDER GRANTING MOTION TO SEAL [Dkt. Nos. 461, 14 CHAD F. WOLF, Acting Secretary, U.S. 462, 463] Department of Homeland Security, in his 15 official capacity, et al., 16 Defendants. 17 18 Before the Court are the parties’ Joint Motion for Determination of Privilege 19 Dispute (Dkt. No. 463, the “Joint Motion”) and their corresponding Joint Motion to Seal 20 Portions of the Parties’ Joint Motion for Determination of Privilege Dispute (Dkt. No. 21 461, the “Motion to Seal”). For the reasons set forth herein, the Court finds that with 22 limited exceptions, the documents and information at issue in the Joint Motion are not 23 protected from disclosure by the law enforcement privilege, and therefore DENIES 24 Defendants’ request to claw back these documents. The Court GRANTS the Motion to 25 Seal. 26 I. BACKGROUND 27 On January 14, 2020, Plaintiffs moved to certify “a class [of] all noncitizens who 28 seek or will seek to access the U.S. asylum process by presenting themselves at a Class A 1 port of entry … on the U.S.-Mexico border, and were or will be denied access to the U.S. 2 asylum process by or at the instruction of U.S. Customs and Border Protection … 3 officials on or after January 1, 2016.” Dkt. No. 390 at 3. Plaintiffs’ class certification 4 motion was supported by 67 declarations of pseudonymous asylum-seekers, all of whom 5 are putative class members. See Dkt. 434 at 5-6. Defendants, in turn, moved to strike the 6 declarations, demanding to know the identities of the declarants. See Dkt. Nos. 411, 411- 7 1 at 6-8. Plaintiffs opposed and asserted, inter alia, that the declarants have a genuine 8 fear of retaliation by the government in immigration enforcement proceedings. Dkt. No. 9 434 at 4, 6. Plaintiffs sought to support their opposition to Defendants’ motion to strike 10 with documents produced in the litigation, which purportedly substantiate the declarants’ 11 fear of retaliation. Dkt. No. 463 at 15. When Defendants thereafter requested to claw 12 back those documents under a claim of privilege, this dispute ensued. 13 At issue are 19 documents that fall into three categories: (1) an email and 16 14 embedded images regarding Customs and Border Protection’s (“CBP”) decision to 15 revoke SENTRI border-crossing privileges for Nicole Ramos, an attorney and employee 16 of Plaintiff Al Otro Lado (Government Exhibits (“Gov’t Ex.”) 1 through 17, bearing 17 Bates numbers AOL-DEF-00556914 through AOL-DEF-00556934); (2) a Border Patrol 18 intelligence report (Gov’t Ex. 18, bearing Bates numbers AOL-DEF-00528691-707); and 19 (3) a Power Point presentation prepared to brief Customs and Border Patrol leadership 20 about certain operations at the border in late December 2018 (Gov’t Ex. 19, bearing Bates 21 numbers AOL-DEF-00516605-623).1 Defendants assert each of the 19 documents is 22 protected by the law enforcement privilege. In support of their assertion of the law 23 enforcement privilege, Defendants submit declarations from Customs and Border Patrol’s 24 Deputy Executive Assistant Commissioner John P. Wagner (Dkt. Nos. 461-2 and 463-2, 25 26 1 Defendants lodged the 19 exhibits for the Court’s in camera review. The Court will refer to the 27 exhibits using the exhibit numbers assigned to them in the Declaration of Alexander J. Halaska, Dkt. No. 463-1, ¶¶5-23. Where additional clarity or a pinpoint cite is needed, the Court will also refer to the 28 1 the “Wagner Decl.”) and Chief Patrol Agent Aaron Heitke (Dkt. Nos. 461-3 and 463-3, 2 the “Heitke Decl.”).2 No other privilege or protection from disclosure is claimed. 3 Pursuant to the protective order that governs discovery in this litigation, 4 Defendants have designated each of the 19 documents either “Confidential” or “Highly 5 Confidential – Attorneys’ Eyes Only.” See Dkt. No. 276 (the “Protective Order”). Thus, 6 Defendants additionally request to file under seal portions of the parties’ Joint Motion 7 that quote from or refer to the documents. Dkt. No. 461 at 3-6. Deputy Commissioner 8 Wagner’s and Agent Heitke’s declarations are also submitted in support Defendants’ 9 sealing request. Dkt. Nos. 461-2 and 461-3. Plaintiffs do not oppose the Motion to Seal. 10 Dkt. No. 461 at 6. 11 II. THE PRIVILEGE DISPUTE 12 A. Legal Standard Regarding the Law Enforcement Privilege 13 “The federal law enforcement privilege is a qualified privilege designed to prevent 14 disclosure of information that would be contrary to the public interest in the effective 15 functioning of law enforcement.” Chinn v. Blankenship, No. 09-5119 RJB, 2010 WL 16 11591399, at *6 (W.D. Wash. Feb. 26, 2010).3 “‘[R]ooted in common sense as well as 17 common law,’” the law enforcement privilege aims “‘to prevent disclosure of law 18 enforcement techniques and procedures, to preserve the confidentiality of sources, to 19 protect witness and law enforcement personnel, to safeguard the privacy of individuals 20 involved in an investigation, and otherwise to prevent interference with an 21 investigation.’” Hemstreet v. Duncan, No. CV-07-732-ST, 2007 WL 4287602, at *2 (D. 22 Or. Dec. 4, 2007) (citations omitted). 23 24 25 2 Defendants submitted identical copies of Agent Heitke’s and Deputy Commissioner Wagner’s declarations in support of the Joint Motion and the Motion to Seal. 26 3 The “law enforcement privilege” is also sometimes referred to as the “official information privilege” or 27 the “ongoing investigation privilege.” See Dousa v. U.S. Dep’t of Homeland Sec., No. 19-CV-1255- LAB(KSC), 2019 WL 6311990, at *2 (S.D. Cal. Nov. 22, 2019) (collecting cases). The Court adopts 28 1 “As the party asserting the privilege and seeking its benefits, [D]efendants have the 2 burden of establishing that the privilege applies” to each of the 19 documents at issue. 3 Dousa, 2019 WL 6311990, at *2. To do so, Defendants must put forth “‘competent 4 evidence about how the specific requested disclosure would harm governmental 5 interests.’” Id. (quoting Kelly v. City of San Jose, 114 F.R.D. 653, 663, 669 (N.D. Cal. 6 1987)). Such evidence should include a “formal claim of privilege” by a responsible 7 official, based on that official’s personal consideration of the information, that describes 8 with specificity both the information to be protected and the harm that would ensue from 9 its disclosure. Wagafe v. Trump, 334 F.R.D. 619, 623 (W.D. Wash. 2020). 10 Because the law enforcement privilege is a qualified privilege, once Defendants 11 make a threshold showing that the law enforcement privilege applies, the Court must 12 “‘weigh the government’s interests in ensuring the secrecy of the documents in question 13 against the need of the adverse party to obtain discovery.’” Chinn, 2010 WL 11591399 at 14 *6 (citations omitted). See also Hemstreet, 2007 WL 4287602, at *2 (noting that “[t]he 15 law enforcement privilege is not absolute,” but “requires ‘a need to balance the public 16 interest in nondisclosure against the need of the particular litigant for access to the 17 privileged information.’”). This balancing test is “moderately pre-weighted in favor of 18 disclosure.” Kelly, 114 F.R.D. at 662. Factors the Court may consider in weighing the 19 parties’ competing interests include: 20 (1) the extent to which disclosure will thwart governmental processes by 21 discouraging citizens from giving the government information; (2) the 22 impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self-evaluation and 23 consequent program improvement will be chilled by disclosure; (4) whether 24 the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any 25 criminal proceeding either pending or reasonably likely to follow from the 26 incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have 27 arisen or may arise from the investigation; (8) whether the plaintiff’s suit is 28 non-frivolous and brought in good faith; (9) whether the information sought 1 is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff’s case. 2 3 Wagafe, 334 F.R.D. at 623-24 (quoting Frankenhauser v. Rizzo, 59 F.R.D. 339, 4 344 (E.D. Pa. 1973)). This list is neither “exhaustive” nor controlling. Kelly, 114 F.R.D. 5 at 663 (further noting that courts must decide questions of privilege “on a case by case 6 basis”). Thus, while these factors may guide the Court’s analysis, the “focus[]” of the 7 inquiry ultimately is “the extent to which the defendant’s interest in confidentiality 8 outweighs the plaintiff’s interest in the information.” Maria Del Socorro Quintero Perez, 9 CY v. United States, No. 13CV1417-WQH-BGS, 2016 WL 362508, at *3 (S.D. Cal. Jan. 10 29, 2016). Where “the potential benefits of disclosure outweigh the potential 11 disadvantages,” the privilege will be “set aside.” Allen v. Woodford, No. CV-F-05-1104 12 OWW LJO, 2007 WL 309945, at *9 (E.D. Cal. Jan. 30, 2007). 13 Finally, because the law enforcement privilege “is based on the harm to law 14 enforcement efforts that might result from public disclosure of investigatory files,” 15 Torres v. Goddard, No. CV 06-2482-PHX-SMM, 2010 WL 3023272, at *5 (D. Ariz. July 16 30, 2010) (emphasis added), the Court should consider whether disclosure of the 17 information pursuant to a protective order will ameliorate any harm that might otherwise 18 occur from that disclosure. As the court in Kelly observed: 19 [I]n many situations what would pose the threat to law enforcement interests 20 is disclosure to the public generally, not simply to an individual litigant 21 and/or her lawyer. Thus the weight of some of the interests in the law enforcement category may be reduced because courts routinely enter tightly 22 crafted protective orders under which only a single litigant, sometimes only 23 that litigant’s lawyer, has access to the sensitive information. 24 114 F.R.D. at 662. 25 With these principles in mind, the Court turns to Defendants’ assertion that the 26 documents at issue are protected by the law enforcement privilege. 27 // 28 // 1 B. SENTRI Email and Embedded Images 2 For the most part, Defendants and their declarant treat the SENTRI email and the 3 16 images embedded in it (Gov’t Exs. 1-17, Bates Nos. AOL-DEF-00556914 through 4 AOL-DEF-00556934) in the aggregate. Dkt. No. 463 at 6-10; Wagner Decl., ¶¶4, 6-7. 5 Defendants assert broadly that the SENTRI email and images “reveal the types and 6 sources of information that CBP considers relevant for determining eligibility in its 7 Trusted Traveler Programs,” and, more specifically, “the types of information that CBP 8 considers when assessing whether an individual qualifies as a low-risk traveler eligible 9 for SENTRI enrollment.” Dkt. No. 463 at 7, 9. Defendants state that if they are not 10 allowed to claw back these documents, bad actors may be able to “identify possible gaps 11 in CBP’s decision making, manipulate information provided to CBP, and change their 12 behavior in order to inappropriately obtain Trusted Traveler privileges.” Dkt. No. 463 at 13 7; Wagner Decl., ¶6. This, Defendants claim, would undermine their law enforcement 14 efforts. Dkt. No. 463 at 7, 9; Wagner Decl., ¶6. 15 Of the 16 embedded images, Defendants single out two for additional analysis. 16 The first document is a record from CBP’s anti-terrorism database, known as a “lookout,” 17 related to Ms. Ramos (Gov’t Ex. 2, Bates No. AOL-DEF-00556919). See Dkt. No. 463 18 at 7-8; Wagner Decl., ¶8a. In general, Defendants explain, lookouts “provide instruction 19 to officers on how they should exercise their discretion in certain situations” or with 20 respect to “certain individuals.” Wagner Decl., ¶8b. Defendants state that “[t]he 21 disclosure of lookouts would … undermine their utility and allow hostile actors to tailor 22 countermeasures in [an] attempt to circumvent law enforcement. Id. Defendants also 23 claim that if disclosed, this lookout could reveal “law enforcement techniques and 24 procedures … generally,” including “the nature and extent of the government’s law 25 enforcement interest in particular facts,” information that a “hostile actor” could use to 26 his or her advantage. Id., ¶8c. 27 The second embedded image that Defendants address specifically is an excerpt 28 from the field information report (discussed below) that “contain[s] information 1 regarding individuals of interest to law enforcement,” including information collected 2 and maintained by CBP and another federal agency (Gov’t Ex. 5, Bates No. AOL-DEF- 3 00556922). Wagner Decl., ¶8d (incorporating by reference ¶13). According to 4 Defendants, disclosure of this information could “alert individuals that they may be of 5 law enforcement interest, such that they may take steps to alter their behavior” to evade 6 detection by the authorities. Id., ¶13. 7 The Court finds Defendants’ moving papers and supporting declaration “lack[] the 8 requisite specificity and fail[] to allege more than a general assertion of potential harm.” 9 Quintero Perez, 2016 WL 362508, at *4. It is Defendants’ burden to provide “specific 10 information about how disclosure of the specific documents requested … would threaten 11 the specific governmental and privacy interests at stake.” Bernat v. City of California 12 City, No. 1:10–cv–00305 OWW JLT, 2010 WL 4008361, at *3 (E.D. Cal. Oct. 12, 2010) 13 (italics in original). Instead, Defendants speculate generally about what unnamed 14 “hostile actors” might do with the same type of information. See Wagner Decl., ¶¶6-8. 15 For example, Defendants’ declarant states that “an alien smuggler who learns that CBP 16 has a lookout associated with his vehicle may start using a different vehicle,” or “a 17 narcotics trafficker who learns that CBP has a lookout associate with her name may then 18 explore other methods for trafficking.” Id., ¶8b; see also Dkt. No. 463 at 7 (arguing that 19 these scenarios “constitute[] prima facie harm.”). Such references to hypothetical 20 lookouts placed on hypothetical smugglers and traffickers does little to aid the Court in 21 assessing whether the particular lookout before it – the one pertaining to Ms. Ramos – is 22 privileged. Defendants’ speculative references to “hostile actors,” “individuals seeking to 23 obtain or retain Trusted Traveler privileges for illicit purposes” “individuals seeking to 24 evade law enforcement activities,” or “individuals [who] may be of interest to law 25 enforcement” (Wagner Decl., ¶¶6-8, 13) do not “‘provide the [C]ourt with the 26 information it needs to make a reasoned assessment of the weight of the interests that line 27 // 28 // 1 up, in the particular situation before the [C]ourt, against the requested disclosure.’” 2 Quintero Perez, 2016 WL 362508, at *4 (emphasis added) (quoting Kelly, 114 F.R.D. at 3 670).4 4 Nor is the Court persuaded that the SENTRI email and embedded images reveal 5 sensitive information about CBP’s techniques and practices that must be protected from 6 disclosure. Even if these documents reveal CBP’s law enforcement techniques, which 7 this Court has determined they do not, those techniques “are not unlike those traditionally 8 used by law enforcement to obtain information.” Dousa, 2019 WL 6311990, at *3. For 9 example, the embedded images include information collected during inspections of 10 persons crossing the border, and images and information taken from Ms. Ramos’s social 11 media accounts. That CBP makes use of such information in its law enforcement 12 activities does not strike the Court as “particularly sensitive or confidential.” Id. The 13 Court is also struck by Defendants’ statement that the records and information at issue are 14 “available … from other sources,” Wagafe, 334 F.R.D. at 624, because “members of the 15 public” could “seek” them through a FOIA request. Dkt. No. 463 at 9. This undermines, 16 rather than supports, Defendants’ assertion that the information in these records is 17 particularly sensitive and should be protected from disclosure. 18 Further, even assuming Defendants had articulated tangible and nonspeculative 19 harms that might ensue from public disclosure of the purportedly privileged documents, 20 they fail to address how those harms would be mitigated by the Protective Order in place 21 in this litigation. See Kelly, 114 F.R.D. at 662 (noting the distinction between disclosure 22 to the public at large and disclosure to a litigant and her counsel). Defendants’ declarant 23 describes the potential consequences should documents describing CBP’s law 24 enforcement techniques become widely known. Wagner Decl., ¶¶6-8, 13. Yet, when 25 26 4 Indeed, in evaluating a prior motion to seal, Judge Bashant rejected such “vague, generalized concern 27 about bad actors potentially frustrating the operations of ports of entry” as failing to “articulate a particularized harm flowing from public disclosure...” that would justify sealing the records. Dkt. No. 28 1 Defendants disclosed the SENTRI email family to Plaintiffs, they designated the email 2 itself and 4 of the embedded images “Highly Confidential – Attorneys’ Eyes Only” and 3 designated the remaining embedded images “Confidential,” thereby prohibiting their 4 disclosure outside of the litigation.5 Defendants largely ignore the safeguards these 5 designations afforded them. Their single reference to the effect of the Protective Order is 6 a conclusory statement that it is “not sufficient to prevent the harm to CBP’s operations 7 that would result from these documents being disclosed in this litigation.” Wagner Decl., 8 ¶9. Neither Defendants nor their declarant explain why this is so, and the Court notes 9 that Defendants stipulated to the Protective Order and agreed that it was necessary “to 10 adequately protect information that the Parties are entitled to keep confidential.” Dkt. 11 No. 276 at 2 (emphasis added). The Court expects the parties to comply with the 12 Protective Order, and finds that production of the SENTRI email and embedded images 13 under its terms will “minimize the impact on the interests at issue.” Bernat, 2010 WL 14 4008361, at *2 (overruling objections based on law enforcement privilege where 15 supporting declaration failed to address the impact of a protective order); see also 16 Quintero Perez, 2016 WL 362508 at *4 (same). 17 The Court finds that because “the declaration submitted on behalf of Defendants 18 only provides general assertions of harm” and “fails to demonstrate why disclosing the 19 information sought under a carefully crafted protective order to protect the confidentiality 20 of the information would harm a significant governmental interest,” Defendants have 21 failed to make the requisite threshold showing that the SENTRI email and embedded 22 images are protected by the law enforcement privilege. Conan v. City of Fontana, No. 23 24 25 5 Under the terms of the Protective Order, to which the parties stipulated after lengthy negotiations and conferences with the Court, documents designated either “Highly Confidential – Attorneys’ Eyes Only” 26 or “Confidential” may disclosed only to counsel, the Court, and limited third parties and witnesses; documents designated “Confidential” may also be disclosed to the named parties and their officers, 27 directors and employees. Dkt. No. 276 at 9-10. The parties’ obligation to keep discovery materials confidential unless otherwise ordered by the Court continues even after the final disposition of the 28 1 EDCV 16-1261-KK, 2017 WL 2874623, at *5 (C.D. Cal. July 5, 2017). Accordingly, 2 “the Court does not need to engage in the balancing test articulated by the Kelly court.” 3 Myles v. County of San Diego, No. 15cv1985-BEN (BLM), 2016 WL 2343914, at *6 4 (S.D. Cal. May 4, 2016). Nevertheless, the Court further finds that even if Defendants 5 had made a threshold showing that the SENTRI email and embedded images are 6 protected by the law enforcement privilege, Plaintiffs’ need for the information 7 transcends that privilege. Defendants argue that Plaintiffs “have not offered a persuasive 8 explanation why the reasons underlying Ramos’s SENTRI revocation relate to metering.” 9 Dkt. No. 463 at 8. Whether or not these documents “are necessary to litigate [Plaintiffs’] 10 causes of action,” id., they are relevant to Plaintiffs’ ability to oppose to Defendants’ 11 motion to strike 67 witness declarations in support of Plaintiffs’ motion for class 12 certification. Despite Defendants’ insistence that the SENTRI email and images are “of 13 ‘no importance … to [Plaintiffs’] case” (Dkt. No. 463 at 8), certification is a “‘significant 14 litigation event’” in a class action. Lee v. Pep Boys-Manny Moe & Jack of Calif., No. 12- 15 cv-05064-JSC, 2016 WL 324015, at *5 (N.D. Cal. Jan. 27, 2016) (citation omitted).6 16 Thus, Plaintiffs’ need for this evidence is sufficient to “overcome” any asserted law 17 enforcement privilege. Hemstreet, 2007 WL 4287602, at *2. 18 C. Field Information Report 19 Defendants also assert law enforcement privilege over certain information 20 appearing on the page bearing Bates number AOL-DEF-00528703, contained in an 21 unclassified Field Information Report regarding a migrant caravan and possible marriage 22 fraud activities. Dkt. No. 463 at 10; Gov’t Ex. 18 (Bates Nos. AOL-DEF-00528691– 23 707). First, Defendants wish to redact as privileged a numerical code that is used to track 24 the report in Defendants’ computer system; and second, Defendants assert that the names 25 26 27 6 Whether CBP’s revocation of Ms. Ramos’s SENTRI privileges was “objectively reasonable” or was predicated on “the flimsiest of evidence” (Dkt. No. 463 at 8, 14) does not affect the Court’s privilege or 28 1 identified under the section “Information Gaps” are privileged. Dkt. No. 463 at 10. 2 Defendants designated this document “Highly Confidential – Attorneys’ Eyes Only” 3 under the terms of the Protective Order. 4 As to the numerical database identification code, Defendants declare that in the 5 wrong hands, it could be used to “acquire, modify or remove … records” from 6 Defendants’ systems, thereby “corrupt[ing] the integrity of information and intelligence 7 contained” in that system. Heitke Decl., ¶¶10, 12. Plaintiffs “concede” that the database 8 identifier “falls within the scope of the law enforcement privilege.” Dkt. No. 463 at 23. 9 Furthermore, the Court has previously permitted redaction of these same “internal file 10 identification codes” as “not relevant to the parties’ claims or defenses.” Dousa, 2019 11 WL 6311990, at *3. The database identification code is likewise irrelevant here, and 12 given that Plaintiffs do not object to Defendants’ assertion of privilege over this 13 information, the Court will permit Defendants to claw back this document for the purpose 14 of redacting the code from page AOL-DEF-00528703. 15 The “Information Gaps” on the same page are a different matter. Defendants’ 16 declarant states that this information, “when read together with the remaining information 17 in this section and throughout the Field Information Report itself” would not only reveal 18 deficits in CBP’s information relating to the specific investigation described in the report, 19 but would also allow a “hostile actor” to “extrapolate” more generally about weaknesses 20 in CBP’s intelligence-gathering process. Heitke Decl., ¶11. This hypothetical “hostile 21 actor” could “then use those insights to inform his or her potential future unlawful 22 activity and undermine CBP’s mission.” Id., ¶12. As before, Defendants’ declarant 23 states that production of the document under the existing Protective Order “is not 24 sufficient to prevent” this harm. Id. 25 The same deficiencies in Defendants’ showing regarding the SENTRI email and 26 images are present here. The harms articulated by Defendants are too speculative and 27 generalized to establish that the information is privileged. Defendants’ declarant 28 describes how public disclosure of the document may harm Defendants’ legitimate law 1 enforcement interests, but “aside from [their] conclusory assertion,” Defendants provide 2 “no basis” for the Court to conclude that the attorneys-eyes-only designation of this 3 document “is inadequate to protect the competing interests involved.” Wagafe, 334 4 F.R.D. at 625 (ordering information produced). For these reasons, the Court again finds 5 that Defendants have not made the showing necessary to invoke the law enforcement 6 privilege with respect to the “Information Gaps” on page AOL-DEF-00528703 of the 7 Field Information Report. Although Defendants’ failure relieves the Court of the need to 8 assess Plaintiffs’ interest in disclosure, the Court nevertheless further finds that the 9 document is relevant to Plaintiffs’ arguments in support of class certification, and that 10 this interest is sufficient to overcome any asserted privilege. 11 D. PowerPoint Presentation 12 Finally, Defendants assert the law enforcement privilege over portions of a CBP 13 PowerPoint Presentation (Gov’t Ex. 19, Bates Nos. AOL-DEF-00516605–623). 14 Defendants initially designated the document “Confidential,” but subsequently re- 15 designated it “Highly Confidential – Attorneys’ Eyes Only,” to which Plaintiffs did not 16 object. Declaration of Alexander J. Halaska, Dkt. No. 463-1, ¶23. 17 Specifically, Defendants assert that the same or similar numerical database 18 identification codes as described above, which appear on page AOL-DEF-00516617 of 19 the document, are protected by the privilege. Defendants represent disclosure of the 20 database identifiers would “facilitate navigation” through CBP’s databases and Plaintiffs 21 do not dispute that these codes fall within the scope of the privilege. Heitke Decl., ¶21; 22 Dkt. No. 463 at 23. For the same reasons discussed above, the Court finds that 23 Defendants may claw back Government Exhibit 19 for the purpose of redacting the 24 database identification codes appearing on page AOL-DEF-00516617. Dousa, 2019 WL 25 6311990, at *3. See also Wagafe, 334 F.R.D. at 624 (denying motion to compel where 26 party seeking information “d[id] not oppose the redaction” of personal information). 27 The Court reaches a different conclusion with respect to Defendants’ assertion of 28 privilege over additional information contained on pages AOL-DEF-00516617 and AOL- 1 DEF-00516618. Regarding page AOL-DEF-00516617, Defendants claim that 2 “[d]isclosure of this information would alert the individuals of interest, as well as any 3 other individuals involved in the same or similar potential unlawful activity, of the types 4 of actions CBP takes with certain types of sensitive information,” and that “hostile 5 actors” could “exploit” this knowledge to evade CBP’s law enforcement efforts. Heitke 6 Decl., ¶21. Defendants claim that disclosure of the information on page AOL-DEF- 7 00516618 (which is identical in content to one of the images embedded in the SENTRI 8 email, see Gov’t Ex. 5 at AOL-DEF-00556922) “would alert individuals that they may be 9 of law enforcement interest, such that they may take steps to alter their behavior in order 10 to evade law enforcement activity.” Wagner Decl., ¶13. As before, Defendants’ 11 declarants state that designation of the document as “Confidential” or ‘Highly 12 Confidential – Attorneys’ Eyes Only” “would not be sufficient to prevent” the purported 13 harm to CBP’s law enforcement operations. Wagner Decl., ¶14; Heitke Decl., ¶22. 14 Once again, these assertions of harm “lack case-specific information” and do not 15 “offer a convincing reason” why disclosure under the protective order “already in place” 16 would be harmful. See Estate of Kosakoff by Kosakoff v. City of San Diego, 2009 WL 17 10672901, at *4 (S.D. Cal. Nov. 10, 2009). Defendants have failed to make the requisite 18 threshold showing that the law enforcement privilege protects these documents from 19 disclosure. Id. (finding defendants “did not make a threshold showing” of privilege). 20 Furthermore, the Court finds the document is relevant to Plaintiffs’ arguments in support 21 of class certification, such that even if the law enforcement privilege applied, that 22 qualified privilege is overcome by Plaintiffs’ need for the information. Wagafe, 334 23 F.R.D. at 625 (finding “balance of factors weigh[ed] in favor of disclosure” where “[t]he 24 withheld information … is directly relevant to Plaintiff’s claims”). 25 III. MOTION TO SEAL 26 “[T]he courts of this country recognize a general right to inspect and copy public 27 records and documents, including judicial records and documents.” Nixon v. Warner 28 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 1 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 2 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 3 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “‘The 4 presumption of access is ‘based on the need for federal courts, although independent— 5 indeed, particularly because they are independent—to have a measure of accountability 6 and for the public to have confidence in the administration of justice.’” Ctr. for Auto 7 Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States 8 v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). A party seeking to seal a judicial record 9 bears the burden of overcoming the strong presumption of access. Foltz, 331 F.3d at 10 1135. Parties seeking to maintain confidentiality of documents attached to non- 11 dispositive motions, such as the instant privilege dispute, must make a “‘particularized 12 showing’” of “‘good cause.’” Kamakana, 447 F.3d at 1180 (quoting Foltz, 331 F.3d at 13 1137). 14 Although the Court has found that some of the documents in question are not 15 privileged, Defendants’ representations that these documents contain confidential and 16 sensitive law-enforcement information that could harm CBP’s and other entities’ 17 operations if publicly disclosed are sufficient to establish good cause for sealing. See 18 Dkt. No. 446 at 8 (granting Defendants’ motion to seal law enforcement records despite 19 finding that the documents were not privileged). Further, the documents were designated 20 by Defendants under the Protective Order as either “Confidential” or “Highly 21 Confidential – Attorneys’ Eyes Only.” Accordingly, the Court finds the SENTRI email 22 and 12 of its embedded images, the Field Information Report, and the PowerPoint 23 presentation (Gov’t Exs. 1-13, 18 and 19), and any portion of the Joint Motion that 24 references these exhibits should be sealed. However, Defendants have not provided the 25 Court with good cause to seal four statements posted by Ms. Ramos on her social media 26 accounts (Gov’t Exs. 14, 15, 16 and 17). Where information is “already publicly 27 available,” the Court cannot justify sealing it from public view. See Kamakana, 447 at 28 1184 (affirming unsealing order); Todd v. Tempur-Sealy Int’l, Inc., No. 13-cv-04984- 1 JST-MEJ, 2015 WL 1006534, at *6 (N.D. Cal. Mar. 6, 2015) (finding good cause for 2 sealing was not established where “the same or similar information … ha[d] been made 3 available for public viewing”). 4 IV. CONCLUSION 5 For the foregoing reasons, it is hereby ORDERED: 6 1. Defendants’ request to claw back the documents bearing Bates numbers AOL- 7 DEF-00556914 through AOL-DEF-00556934 (Gov’t Exs. 1-17) is DENIED. 8 2. Defendants’ request to claw back the document bearing Bates numbers AOL-DEF- 9 00528691-707 (Gov’t Ex. 18) is GRANTED with respect to the database 10 identification code on page AOL-DEF-00528703 and is otherwise DENIED. 11 3. Defendants’ request to claw back the document bearing Bates numbers AOL-DEF- 12 00516605-623 (Gov’t Ex. 19) is GRANTED with respect to the database 13 identification code on AOL-DEF-00516617 and DENIED as to all other 14 information on pages AOL-DEF-00516617 and AOL-DEF-00516618. 15 4. The parties’ Motion to Seal the Joint Motion is GRANTED. 16 5. Within 14 days of the date of this Order, Defendants shall lodge under seal on the 17 docket the documents bearing Bates numbers AOL-DEF-00556914 through AOL- 18 DEF-00556930, the document bearing Bates numbers AOL-DEF-00528691–707, 19 and the document bearing Bates numbers AOL-DEF-00516605–623 (Gov’t Exs. 1- 20 13, 18 and 19), redacted for privilege as consistent with this Order. Defendants 21 shall also file these documents on the public docket, with the confidential 22 information identified by Defendants redacted. 23 // 24 // 25 // 26 // 27 // 28 // 1 6. Within 14 days of the date of this Order, Defendants shall file on the public docket 2 the documents bearing Bates numbers AOL-DEF-00556931 through AOL-DEF- 3 00556934 (Gov’t Exs. 14, 15, 16 and 17). 4 || IT ISSO ORDERED. 5 Dated: June 26, 2020 “ff ) 6 Mfficae ee 7 Hori. Karen S. Crawford United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28