Al Otro Lado, Inc. v. McAleenan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 AL OTRO LADO, INC. et al., Case No.: 3:17-cv-02366-BAS-KSC 11 Plaintiffs, 12 v. ORDER: (1) GRANTING IN PART AND DENYING IN PART MOTION 13 ALEJANDRO MAYORKAS, Secretary, FOR PROTECTIVE ORDER; and (2) 14 U.S. Department of Homeland Security, in GRANTING EX PARTE his official capacity, et al., APPLICATION FOR LEAVE TO 15 Defendants. FILE A SUR-REPLY 16 [Doc. Nos. 647, 684] 17 18 Before the Court is defendants’ December 15, 2020 Motion for Protective Order 19 Concerning Asylum Information of Potential Preliminary-Injunction Class Members (the 20 “Motion” or “Mot.”). Doc. No. 647. Plaintiffs opposed the Motion on January 5, 2021 21 (the “Opposition” or “Opp.,” Doc. No. 656) and defendants filed a Reply on January 12, 22 2021 (the “Reply,” Doc. No. 662). Also before the Court is Plaintiffs’ Ex Parte Application 23 for Leave to File a Sur-Reply (the “Application,” Doc. No. 684) and defendants’ Response 24 thereto (the “Response,” Doc. No. 689). The Court held a conference with counsel for the 25 parties on March 24, 2021, at which time the undersigned Magistrate Judge heard argument 26 on the Motion and also caucused separately with plaintiffs and defendants in an effort to 27 come to an agreement regarding the issues presented. The parties were unable to reach 28 resolution that day, and the Court took the matter under submission. 1 Having carefully considered the moving papers and the arguments of counsel, and 2 for the reasons stated below, defendants’ Motion is GRANTED IN PART AND DENIED 3 IN PART. The Court will enter a separate protective order to govern the production of 4 asylum information as described herein. Plaintiffs’ Application is GRANTED. 5 I. BACKGROUND 6 The parties’ dispute arises out of the District Court’s October 30, 2020 Order 7 Granting Plaintiffs’ Motion for Clarification of the Preliminary Injunction (the “October 8 30 Order”). Doc. No. 605. In the October 30 Order, the District Court addressed the 9 requirement under Federal Rule of Civil Procedure 23 that the Court ensure notice of the 10 class action to potential class members, and plaintiff’s argument that defendants should be 11 required to identify potential class members because they had greater and more ready 12 access to information about individuals potentially eligible for membership in the class. 13 October 30 Order at 21-23. The District Court ordered defendants to “review their own 14 records to aid in the identification of class members and … share the information in their 15 custody regarding the identities of class members with Plaintiffs,” and further to produce 16 to plaintiffs the already-generated “lists of aliens in ICE’s custody who received negative 17 credible-fear determinations … pursuant to the Asylum Ban .…” Id. at 22-23; see also id. 18 at 25. The District Court did not impose any limitations regarding the scope of use or 19 manner by which the information could be used by plaintiffs. See id. 20 Defendants now seek a protective order to govern the sharing of potential class 21 members’ asylum information with plaintiffs. As defendants describe it, their Motion 22 seeks to “set conditions governing Plaintiffs’ further use and treatment of” the asylum 23 information they have been ordered to produce, “so that Defendants and [the] E[xecutive] 24 O[ffice of] I[mmigration] R[eview] can share information with Plaintiffs under the October 25 30 Order while also ensuring that potential class members’ asylum information remains 26 confidential.” Reply at 4. Citing federal regulations that prohibit government officials 27 from sharing the contents of an asylum applicant’s file (see 8 CFR §§ 208.6, 1208.6) and 28 the “sensitivity” of asylum information, defendants request an order that provides that once 1 the asylum information has been produced to plaintiffs’ counsel, further disclosure of the 2 information be limited to: 3 (1) The asylum applicant; 4 (2) Attorneys who have entered their appearance in the applicant’s asylum 5 proceedings; 6 (3) Any individual to whom disclosure has been authorized by the applicant 7 in writing; and, 8 (4) Any individual to whom the parties agree the information should be 9 disclosed, provided that individual signs a statement acknowledging their agreement 10 with the terms of the protective order. 11 Memorandum in Support of the Motion (“Mem.,” Doc. No. 647-1), at 5-6. Defendants’ 12 proposal would also require plaintiffs’ counsel to maintain records of the asylum seekers’ 13 consent to information-sharing, the appearance forms for any attorney with whom asylum 14 information was shared, and any third party’s executed agreement to be bound by the 15 protective order. See Doc. No. 647-3. Under the proposal, these records would be 16 produced to defendants or EOIR upon request, or to the Court upon its order. Id. 17 Plaintiffs do not believe any protective order is necessary, but do not object to one 18 being entered to facilitate the exchange of information.1 Plaintiffs do object, however, to 19 provisions (2) and (3) and to the record-keeping provisions of defendants’ proposal. Mem. 20 at 5-6. 21 The parties confirmed at the March 24, 2021 hearing that to date, defendants have 22 not produced to plaintiffs any information in response to the October 30 Order. See 23 Transcript of March 24, 2021 Hearing (“Hrg. Tr.”), Doc. No. 702, at 5-7. However, 24 defendants represented that they have been compiling “a master list of potential class 25 26 1 The Court has already entered a protective order in this case to govern the sharing of confidential 27 information (the “Confidentiality Protective Order”). See Doc. No. 276. However, as the parties acknowledge, the Confidentiality Protective Order is not tailored to the production of asylum-related 28 1 members,” portions of which they could provide to plaintiffs “fairly quickly” and which 2 they are in the process of supplementing with additional information regarding potential 3 class members’ contact information and detention status. Id. at 5. 4 A. Defendants’ Position 5 Defendants frame their request for a protective order under the good cause standard 6 of Federal Rule of Civil Procedure 26(c). See Mem. at 7; see also Fed. R. Civ. P. 26(c)(1) 7 (providing that “[t]he court may” set limits on discovery “for good cause”). As good cause 8 for entry of the requested protective order, defendants assert the following: 9 First, asylum information is “sensitive” and warrants special limitations on 10 disclosure to the public and third parties. Mem. at 7-8. Defendants point out that plaintiffs 11 have sought and received pseudonymous treatment of the named class representatives to 12 prevent harm from disclosure of their identities and asylum information. Reply at 2. 13 Second, the sharing of asylum information with “individuals who do not have the 14 asylum applicant’s interests in mind” could result in harm to the applicant or their family 15 members. Mem. at 8. Defendants posit that plaintiffs and their counsel cannot assume that 16 an asylum seeker’s family members are trustworthy. Reply at 2, 4-5. 17 Third, defendants assert their proposal, which would govern the sharing of asylum 18 information only, is less restrictive than the Confidentiality Protective Order. Mem. at 9. 19 Fourth, defendants note that their proposed protective order contains a mechanism 20 by which asylum information can be disclosed even without the asylum seeker’s consent, 21 if all parties agree and the recipient of the information agrees to be bound by the protective 22 order. Id. This mechanism could be used in the event plaintiffs or their counsel could not 23 communicate directly with the asylum seeker. Id. at 9. 24 Defendants further assert that a less restrictive protective order, as proposed by 25 plaintiffs, would not adequately safeguard the asylum seeker’s information, and that 26 plaintiffs have not “demonstrate[d] a need for such unprecedented and liberal disclosure 27 terms.” Id. at 9. Defendants also assert that the record-keeping requirements set forth in 28 their proposal “ensure accountability.” Id. at 10. 1 B. Plaintiffs’ Position 2 Plaintiffs argue defendants have not established the need for an additional protective 3 order to govern the production of asylum information. Opp. at 11. Preliminarily, plaintiffs 4 note that Judge Bashant has already ordered defendants to disclose the asylum information 5 to plaintiffs. Opp. at 9, 11. Plaintiffs also do not believe that the court-ordered disclosure 6 of asylum information is governed by Rule 26 (discovery), but by Rule 23 (notice to the 7 class). Id. at 12-13. Nevertheless, plaintiffs would be willing to enter a protective order 8 regarding the sharing of asylum information, but object to several “unreasonable” 9 provisions in defendants’ proposal. Id. at 13. 10 First, plaintiffs object to the requirement that they obtain the asylum seeker’s written 11 consent to share information, stating it should be sufficient to obtain their oral consent. Id. 12 at 10, 14. 13 Second, plaintiffs object to the requirement that any immigration attorney with 14 whom asylum information is to be shared must have entered an appearance in the 15 applicant’s immigration proceedings. Plaintiffs argue that whether an attorney has 16 completed the forms necessary to appear in agency proceedings is not dispositive on the 17 issue of whether an attorney-client relationship exists. Id. at 16. Plaintiffs further state that 18 defendants’ insistence on execution of these forms to document the relationship is arbitrary 19 and ignores the fact that non-government actors such as plaintiffs – to whom those 20 administrative rules and forms are inapplicable – can and do represent asylum seekers’ 21 interests. Id. at 16-17. 22 Third, plaintiffs object to defendants’ prohibition on sharing asylum information 23 with the asylum applicant’s family members. Id. at 17. In plaintiffs’ and their counsel’s 24 experience, it is often not feasible to communicate directly with the asylum seeker, and 25 communication with family members is the only way to get information to the potential 26 class member. Id. at 18; see also Declaration of Rebecca M. Cassler (“Cassler Decl.”), 27 Doc. No. 656-1 at 3-6 (describing difficulties in communicating with class members). 28 /// 1 Fourth, plaintiffs argue that an asylum seeker’s family members and/or attorneys 2 should be able to authorize further disclosure on their behalf, again citing the frequent 3 difficulties in communicating directly with the asylum seeker. Opp. at 18-19. 4 Finally, plaintiffs object to the requirement that they maintain records of their own 5 disclosure of asylum information, to be produced to defendants or EOIR on demand. 6 Plaintiffs complain that this requirement imposes unnecessary administrative burdens on 7 them and their counsel and invades their counsel’s work product, without justification. Id. 8 at 19-20. 9 II. ANALYSIS 10 A. Defendants Have No Authority to Restrict Plaintiffs’ Use of Asylum Information 11 The Court begins by noting that the District Court ordered defendants to produce 12 asylum information to plaintiffs without restrictions or conditions. Indeed, the District 13 Court unambiguously ordered defendants to: 14 … make all reasonable efforts to identify class members, including but not 15 limited to reviewing their records for notations regarding class membership made pursuant to the guidance issued on November 25, 2019, and December 16 2, 2019, to CBP and OFO, respectively, and sharing information regarding 17 class members’ identities with Plaintiffs. 18 Order at 25. 19 Defendants acknowledge that they have been ordered to produce information to 20 plaintiffs, and state that they and EOIR are prepared to do so, but cannot agree to “share 21 such information without sufficient protections against disclosure to third parties or with 22 the knowledge that plaintiffs will share it with others ….” Hrg. Tr. at 12; see also id. at 23 18. In support of their argument that additional conditions should now be imposed on the 24 court-ordered disclosure, defendants rely heavily on federal regulations limiting the 25 disclosure of asylum information by the government. See generally 8 C.F.R. §§ 208.6 and 26 1208.6. Yet, as defendants admit, plaintiffs and their counsel are not subject to these 27 regulations. See Reply at 5 (acknowledging that the regulations “do not apply to private 28 /// 1 parties”). Plaintiffs assert that defendants are “conflating” their regulatory obligations with 2 plaintiffs’ obligation to the class. See Hrg. Tr. at 31. 3 Plaintiffs have the better argument. The Court is not persuaded by defendants’ bare 4 assertion that “there is no reason that private parties with whom the government is sharing 5 asylum information should be exempt from regulatory requirements.” Id. There is, in fact, 6 ample reason. First and foremost, the District Court did not impose any such requirements 7 when it ordered defendants to produce the asylum information to plaintiffs. Further, the 8 plain text of the regulations does not constrain the treatment of asylum information by 9 private actors. The Court agrees with plaintiffs that there is “no basis in law … [or] the 10 [October 30] Order” for the restrictions defendants now seek to impose. Opp. at 9. The 11 Court is therefore not persuaded that defendants have any authority to dictate how plaintiffs 12 and their counsel make use of the asylum information once it is produced. 13 B. Defendants’ Proposed Protective Order Impedes Plaintiffs’ Counsel’s 14 Representation of the Class and Invades Counsel’s Work Product 15 Defendants’ proposed protective order also needlessly impedes plaintiffs’ counsel’s 16 ability to protect the interests of class members by encumbering their efforts to locate and 17 freely communicate with class members. Defendants deny this is so, stating that their 18 proposal does not prohibit plaintiffs’ counsel from communicating directly with the class 19 members, or from sharing information about class members that they have learned 20 independently. Mem. at 11; Reply at 6; Hrg. Tr. at 21, 43. Yet, as defendants acknowledge, 21 the asylum-seeker’s identity and the fact that he or she sought asylum – the very act that 22 may qualify the asylum seeker for membership in the class – would be considered 23 confidential asylum information under defendants’ proposal. See Mem. At 4 (“members 24 of the class are by definition seeking asylum in the United States, and their identities and 25 information relating to their claims ... are protected from … disclosure”). As such, it is 26 difficult to envision how plaintiffs’ counsel could approach the task of locating potential 27 class members and informing them of their potential membership in the class without 28 relying on information provided by defendants and therefore running afoul of the proposed 1 protective order. Nor is the Court willing to put plaintiffs’ counsel in the position of having 2 to parse whether they independently came to know some bit of information about the 3 asylum seeker that may be necessary to share with third parties such as family members in 4 the course of locating class members and advising them of their rights. 5 Furthermore, plaintiffs’ counsel has described just some of the obstacles they face 6 in communicating with class members and potential class members, and why reliance on 7 sharing information with third parties is often necessary. See Cassler Decl. at 4-6; see also 8 Declaration of Erika Pinheiro (“Pinheiro Decl.”), Doc. No. 656-2, at 3-13. Among these 9 are class members who may not speak or read English; lack of access to or accommodations 10 for trained interpreters; detention facilities with inconsistent rules regarding in-person 11 visitation, and that may not be equipped to accommodate confidential meetings even when 12 in-person visitation is allowed; and class members who have already been deported or 13 removed from the United States and are out of counsel’s communicative reach due to lack 14 of resources, infrastructure or access to technology in their country of residence. Plainly, 15 no protective order can anticipate all such obstacles, which are proliferated by the fact that 16 the information at issue pertains to potentially thousands of class members. See Hrg. Tr. 17 at 41. Defendants do not offer any realistic proposals in this regard. See id. at 39-40 18 (suggestion by defense counsel that plaintiffs’ counsel could organize a three-way call with 19 the potential class member and the family members, or engage the nonparties in an abstract 20 discussion about the litigation). The Court finds defendants’ arbitrary insistence that 21 plaintiffs’ counsel adhere to certain rigid procedures in these myriad circumstances is 22 misplaced, and has the practical effect of potentially foreclosing counsel’s ability to 23 communicate with class members at all. 24 Finally, the Court finds the record-keeping provisions of defendants’ proposed 25 protective order unnecessary and intrusive. At the hearing, defendants’ counsel suggested 26 that such documentation may be needed if there were ever a claim against the United States 27 that the asylum seeker was harmed by the disclosure of his or her asylum information. Hrg. 28 Tr. at 36-37. The Court concludes that the District Court’s October 30, 2020 Order 1 requiring defendants and EOIR to provide that information to plaintiffs is sufficient 2 documentation for this purpose. Moreover, it is not clear why the government’s potential 3 (and entirely speculative) liability for disclosing asylum information justifies imposing 4 upon plaintiffs’ counsel a requirement to obtain and maintain documentation related to 5 potentially thousands of class members. Even more troubling is defendants’ and EOIR’s 6 position that they are entitled to review such documentation upon nothing more than their 7 mere demand. The documentation would, of course, reveal plaintiffs’ counsel’s efforts to 8 locate and communicate with their clients, and any other person with whom they may have 9 discussed the case. The Court finds that neither defendants nor EOIR is entitled to such an 10 extraordinary intrusion into counsel’s work product. 11 C. Plaintiffs’ Counsel’s Fiduciary Obligation to the Class and its Members 12 Sufficiently Safeguards Class Members’ Asylum Information 13 Defendants insist on the ability to micromanage plaintiffs’ counsel’s use of asylum 14 information under the guise of protecting asylum seekers’ rights by ensuring their 15 “knowing” consent to the disclosure of any asylum information. See Reply at 7; Hrg. Tr. 16 at 31. Here again, however, defendants conflate their role and responsibilities with those 17 of plaintiffs’ counsel, who owe a fiduciary duty to the class – including putative class 18 members. See Stone v. Advance America, No. 08cv1549 WQH (WMc), 2009 WL 19 4722924, at *4 (S.D. Cal. Dec. 4, 2009) (“It is well established that counsel for plaintiff 20 has a fiduciary relationship with putative class members.”); see also Deane v. Fastenal 21 Co., No. C 11–00042 SI, 2011 WL 5520972, at *5 (N.D. Cal. Nov. 14, 2011) (granting 22 motion to compel and noting that “plaintiffs, as fiduciaries to the class, are entitled to [class 23 members’] contact information”). Defendants’ unwillingness to leave to plaintiffs’ 24 counsel’s professional judgment how best to locate, identify, and communicate with 25 members and potential members of the class is both troubling and inexplicable. The Court 26 is confident that plaintiffs’ counsel can be trusted to make in-the-moment decisions that 27 are in the best interests of the class and its members, without the need for close supervision 28 by defendants or the Court. 1 D. The Court Will Enter a Limited Protective Order to Protect the Confidentiality of 2 the Asylum Information 3 Notwithstanding the foregoing analysis, the Court agrees with defendants that much 4 of the information contained in an asylum seeker’s file is likely to be sensitive, and that 5 some protection against unfettered disclosure of that information is warranted. See Mem. 6 at 7-8; accord A.B.T. v. U.S. Citizenship and Immigration Servs., No. 2:11–cv–02108 RAJ, 7 2012 WL 2995064, at *5 (W.D. Wash. July 20, 2012) (describing sensitivity of asylum 8 information and noting that “there exists a strong public interest in restricting asylum 9 seekers’ identities from the public”). The Court also agrees with the parties that the 10 Confidentiality Protective Order previously entered in this case is not “tailored to the 11 circumstances of sharing asylum information from the government’s records” and would 12 too narrowly restrict plaintiffs’ and their counsel’s use of asylum information to locate and 13 communicate with potential class members. See Mem. at 5; Hrg. Tr. at 8-10. Accordingly, 14 the Court will enter a separate protective order to govern defendants’ production of asylum 15 information to plaintiffs. 16 E. Plaintiffs’ Request to File a Sur-Reply 17 As noted, plaintiffs requested leave to file a sur-reply, to further illuminate why 18 defendants’ proposed protective order would hinder them from communicating with class 19 members and fulfilling their responsibilities as class counsel. See generally Doc. Nos. 684 20 (application) and 684-2 (proposed sur-reply). Although the Court did not rely on plaintiffs’ 21 sur-reply in resolving defendants’ Motion, in the interest of creating a complete record, the 22 Court hereby GRANTS plaintiffs’ Application. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// l ORDER 2 || For the foregoing reasons, the Court hereby ORDERS as follows: 3 1. Defendants’ Motion for Confidentiality Protective Order Concerning Asylum 4 Information of Potential Preliminary-Injunction Class Members [Doc. No. 647] is 5 GRANTED IN PART AND DENIED IN PART. 6 2. The Court will enter a separate protective order to govern the production of asylum 7 information. 8 3. Within 14 days of the date of this Order, defendants shall produce to plaintiffs the 9 “master list of potential class members” as referenced during the March 24, 2021 10 hearing. Defendants shall supplement the master list with any additional information 11 in their possession concerning potential class members, their contact information, 12 and detention status no later than 45 days from the date of this Order. Defendants 13 shall also have an ongoing obligation to supplement the list. 14 4. Plaintiffs’ Ex Parte Application for Leave to File a Sur-Reply in Further Opposition 15 to Defendants’ Motion for Protective Order Concerning Asylum Information of 16 Potential Preliminary-Injunction Class Members [Doc. No. 684] is GRANTED. 17 The Clerk of the Court is Requested to docket Plaintiffs’ Proposed Sur-Reply [Doc. 18 No. 684-2]. 19 || IT IS SO ORDERED. 20 Dated: April 7, 2021 a i / ) 21 WU LA SSS 7 Hori. Karen S. Crawford United States Magistrate Judge 23 24 25 26 27 28 17