Kapche v. Gonzales

Memorandum in opposition/Response to re MOTION for Protective Order under Privacy Act

D.D.C.February 5, 2008

The FBI’s proposed statement is attached as Exhibit “B.” 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Jeffrey Kapche, § CIVIL ACTION NO. 07-2093 (JR) Plaintiff, § § vs. § § Michael Mukasey, Attorney General of the § United States, § Defendants § A JURY IS DEMANDED Plaintiff’s Response to the Defendant’s Motion for Protective Order The plaintiff, Jeffrey Kapche, files this response in opposition to a provision of the defendant’s proposed protective order. A Reasonable Protective Order is Appropriate Mr. Kapche and his counsel have no quarrel with a reasonable protective order in this case and have spent hours trying to work with opposing counsel in order to agree on one. Mr. Kapche, after all, is a seasoned law enforcement officer and, while he wants to pursue this case, he is committed to honoring obligations to keep confidential certain documents produced by the government, as he fully expects Government witnesses to do. When counsel for the defendant filed a motion for protective order, counsel for the parties conferred and have reached agreement as to most of the provisions of the requested protective order. Attached as Exhibit “A” is a true and correct copy of the proposed order that shows in bold print the area of disagreement. The Area at Issue The defendant insists that any individual (except court reporters) to whom the plaintiff shows “protected materials” must sign a lengthy statement before having access to them. As the1 proposed protective order reveals, this is not something the defendant is prepared to do itself, it is Case 1:07-cv-02093-JR Document 14 Filed 02/05/2008 Page 1 of 4 2 only a requirement for the plaintiff and his witnesses. And, rather than providing any proper justification for this requirement, the FBI’s counsel simply says (1) it is the way she has always handled protective orders and (2) it is not very burdensome. These justifications can hardly be said to comply with the defendant’s burden, under Rule 26(c), to prove “good cause” for such a requirement. As Charles Allen Wright’s treatise on federal practice makes clear, "the existence of good cause for a protective order is a factual matter to be determined from the nature and character of the information sought … weighed in the balance of the factual issues involved in each action". 8 FEDERAL PRACTICE AND PROCEDURE 2D § 2036, at 484-86 (quoted in United States v. Microsoft Corp., 334 U.S. App. D.C. 165 (D.C. Cir. 1999) ). To date, the FBI’s counsel has not presented any facts that would support this requirement. Certainly, there was no proof supplied with the government’s motion. The undersigned counsel are officers of the court and fully understand their obligation to inform anyone who sees protected materials that these materials must be kept confidential. They will honor that obligation, just as they did in Gunnels v. Ashcroft, Civil Action No. V-02-132, in the United States District Court for the Southern District of Texas; Wise v. Ashcroft, Civil Action No. SA-04-CA-1142-RF, in the United States District Court for the Western District of Texas; Lee v. Ashcroft, Civil Action No. H-03-1752, in the United States District Court for the Southern District of Texas; Allmond v. Gonzales, 4:05-CV-96, in the United States District Court for the Middle District of Georgia; and Branham v. Snow, Civil Action No. 1:01-CV-0152-JDT-WTL, in the United States District Court for the Southern District of Indiana. Protective orders are common in government cases and are agreeable to the extent they are reasonable. None of these cases included the requirement at issue here. And in none of these cases was there any issue about protected materials being improperly handled. Case 1:07-cv-02093-JR Document 14 Filed 02/05/2008 Page 2 of 4 3 There is simply no “good cause” for introducing an additional procedure that requires witnesses to review and sign a lengthy agreement. Frankly, plaintiff’s counsel has also been informed that several members of the D.C. bar have entered into protective orders with the FBI that do not include this requirement. One such order is attached as Exhibit “C.” Conclusion The plaintiff, Jeffrey Kapche, respectfully asks that the Court to enter a protective order that includes the provisions on which the parties are in agreement and excludes the requirement for which the defendant has failed to show “good cause.” Such an order is attached. Respectfully submitted, s/ John W. Griffin, Jr. Texas Bar No. 08460300 Marek, Griffin & Knaupp 203 N. Liberty Street Victoria, Texas 77901 (361) 573-5500 Fax (361) 573-5040 Katherine L. Butler Texas Bar No. 03526300 1007 Heights Boulevard Houston, Texas 77008 (713) 526-5677 Fax (713) 526-5691 David R. Cashdan D.C. Bar No. 051342 Cashdan & Kane, PLLC 1150 Connecticut Avenue N.W. Washington, D.C. 20036-4129 (202) 862-4353 (telephone) (202) 862-4331 (fax) Case 1:07-cv-02093-JR Document 14 Filed 02/05/2008 Page 3 of 4 4 Certificate of Service I certify that a true and correct copy of this document has been served upon the defendants’ counsel via electronic service on the 5 day of February 2008, addressed as follows:th Marsha S. Edney (Marsha.Edney@usdoj.gov) US Department of Justice, Civil Division 20 Massachusetts Ave., NW, Room 7148 Washington, D.C. 20530 s/ Katherine L. Butler Case 1:07-cv-02093-JR Document 14 Filed 02/05/2008 Page 4 of 4 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Jeffrey Kapche, § CIVIL ACTION NO. 07-2093 (JR) Plaintiff, § § vs. § § Michael Mukasey, Attorney General of the § United States, § Defendants § A JURY IS DEMANDED Declaration of Katherine L. Butler 1. My name is Katherine L. Butler. I am more than eighteen years of age and fully competent to make this declaration. I have personal knowledge of the facts stated herein and they are true and correct. 2. I represent the plaintiff, Jeffrey Kapche. My co-counsel, John Griffin and I have had numerous cases against the federal government, as itemized in our response to the motion for protective order. While protective orders have been entered in our cases against the government, those protective orders did not require individuals to sign a statement before having access to the protected materials. Indeed, Mr. Griffin and I have never entered into such a protective order in any case and we have been practicing more than 50 years between the two of us. 3. In none of our cases against the government has there been any suggestion that we or our witnesses improperly handled protected materials. I have discussed with the FBI’s counsel the fact that we have not entered into such protective orders in the past and, despite this, there has never been a problem. Her justifications for the requirement are that this is a requirement in all protective orders she has entered and it is not very burdensome on the plaintiff. Yet the order she proposes does not require the same onerous requirement upon her client. 4. Attached to our response to the motion for protective order are (1) a true and correct Case 1:07-cv-02093-JR Document 14-2 Filed 02/05/2008 Page 1 of 2 copy of the protective order that the FBI’s counsel and I have negotiated – showing the disputed provisions in bold (Exhibit “A”); (2) a true and correct copy of the statements that the FBI wishes witnesses to sign (Exhibit “B”); and (3) a true and correct copy of a protective order entered in another case against the FBI in the district court for the District of Columbia (Exhibit “C”). I declare under penalty of perjury that the foregoing is true and correct. Signed in Houston, Texas, USA this 5 day of February 2008. th /s/ Katherine L. Butler Case 1:07-cv-02093-JR Document 14-2 Filed 02/05/2008 Page 2 of 2 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Jeffrey Kapche, ) ) Plaintiff ) Civ. Action No. 1:07-cv-02093 ) Hon. James Robertson v. ) ) Michael B. Mukasey, Attorney ) General of the United States, ) ) Defendant. ) ______________________________) [PROPOSED] PRIVACY ACT PROTECTIVE ORDER IT IS HEREBY ORDERED, pursuant to Rule 26(c), Fed. R. Civ. P., and the Privacy Act of 1974, 5 U.S.C. § 552a(b)(11), that this Order shall govern the production and use in the above-captioned action of any records, documents and/or information that (1) may be Privacy Act-protected and/or otherwise might intrude upon the privacy interests of present or former government employees or (2) in cases where the FBI determines that the disclosure of the individual’s name may endanger ongoing law enforcement efforts. 1. Definitions: a) As used in this Privacy Protective Order, the term "Protected Materials" means certain government records, documents and other information, including computerized or electronic information, that are protected from disclosure under any applicable law or regulation including the Privacy Act, 5 U.S.C. § 552(a) or the disclosure of which might otherwise intrude upon the privacy interests of present or former government employees, might endanger ongoing law enforcement efforts or might endanger employees who have engaged in undercover investigative activities; Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 1 of 11 -2- b) For purposes of this Privacy Protective Order, the term "record" as it relates to Privacy Act protected materials shall have the same meaning as set forth in the Privacy Act, 5 U.S.C. § 552a(a)(4). 2. The Federal Bureau of Investigation are hereby authorized to release Protected Materials to plaintiff's attorneys in the subject action. 3. Protected Materials shall be marked "CONFIDENTIAL," "PRODUCED SUBJECT TO PROTECTIVE ORDER" or "SUBJECT TO PROTECTIVE ORDER" or contain a similar marking. For any records, such as electronic data, whose medium makes such stamping impracticable, the cd, diskette, or tape case and/or accompanying cover letter shall be marked "PRODUCED SUBJECT TO PROTECTIVE ORDER" or "SUBJECT TO PROTECTIVE ORDER" or contain a similar marking. Answers to interrogatories, if any, that contain Protected Materials also shall be marked "CONFIDENTIAL," "PRODUCED SUBJECT TO PROTECTIVE ORDER" or "SUBJECT TO PROTECTIVE ORDER" or contain a similar marking. 4. All computerized or electronic databases that contain employee names and social security numbers may be given unique identifiers by defendant before being produced to plaintiff if the FBI determines, in good faith and after careful review, that this is necessary to avoid the inadvertent dissemination of the names of covert undercover operatives. Such a determination by the FBI does not waive the plaintiff’s right to seek this information if he believes it is needed in discovery or at trial. 5. Protected Materials, any copies thereof, and any and all the information contained therein, shall be distributed to, and used by, only those individuals listed in paragraph 7 of this Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 2 of 11 -3- Order for the sole purpose of this litigation and shall not be disclosed, in any manner hatsoever, to anyone for any other purpose, without modification of this Order approved by the Court. 6. Protected Materials, any copies thereof, and any and all information contained therein shall not be published or disseminated to the public in any form, including the internet. 7. Protected Materials, and any copies thereof, and the information contained therein, may be disclosed only to: a) plaintiff's attorneys and persons regularly in the employ of the plaintiff's attorneys assisting in this litigation, including secretarial, clerical and paralegal or student personnel; b) plaintiff Jeffrey Kapche; c) the Court and its personnel, including court reporters; d) witnesses and potential witnesses, provided disclosure is in good faith calculated to aid in litigating this case; e) consultants and expert witnesses consulted, retained, or hired by any party to this litigation, but only to the extent necessary to provide a foundation for or elicit the expert testimony and/or other evidence. f) court reporters and videographers at depositions in this case. 8. Any person listed in paragraph 7 (except the Court and court reporters and videographers at depositions) who is to review Protected Materials must sign the appropriate Acknowledgment of Privacy Protective Order attached hereto before he or she is given access to Protected Materials. 9. Any Protected Materials, including, but not limited to, responses to interrogatories and those portions of depositions where the contents of Protected Materials are Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 3 of 11 -4- discussed shall be filed, if at all, under seal. The parties shall treat those portions of deposition transcripts as Protected Materials subject to this Protective Order. 10. The manner of using any Protected Materials at the trial of this litigation shall, after consultation between counsel, be determined by the Court at or about the time when the final pretrial order is submitted to the Court. 11. Defendant’s failure to designate any materials as Protected Materials shall not constitute a waiver of any timely assertion that the materials are covered by this Protective Order. 12. All individuals to whom Protected Materials are disclosed by plaintiff or by plaintiff's counsel consistent with the restrictions in paragraphs 5, 6, 7, & 8 shall destroy or return any and all Protected Materials and copies thereof in their possession to plaintiff's counsel of record upon termination of this litigation, or when they are no longer a party to or assigned or retained to work on this litigation, whichever comes earlier. 13. Protected Materials and all copies thereof (other than Protected Materials and copies presented in open court consistent with the provisions of this Order) must be destroyed or returned to the United States Department of Justice, Civil Division, within sixty (60) days after the termination of this litigation, including any appeals. Any document created by plaintiff or his counsel which contains or reflects Protected Materials (other than documents presented in open court consistent with the provisions of this Order) must be destroyed when this litigation is terminated. 14. At the request of defendant, plaintiff's counsel shall certify to the destruction of all such documents, as referenced in paragraphs 13 and 14, not returned to the United States Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 4 of 11 -5- Department of Justice, Civil Division within sixty (60) days of the termination of this litigation, and/or receipt of the request, whichever is later. 15. This Protective Order does not constitute a ruling on the question of whether any particular material is properly discoverable or admissible, and does not constitute a ruling on any potential objection to the production or admissibility of any material. 16. Nothing in this Protective Order shall prevent disclosure as required by law or compelled by order of any court, or restrict a party's use of materials produced by that party. Nothing in this Order shall be construed to confer rights on any third party. Finally, nothing in this Order shall be construed to permit the disclosure of classified information. 17. Plaintiff may release to defendant’s attorneys of record personal information pertaining to plaintiff's alleged damages, including potentially relevant documents and/or information that pertain to plaintiff's medical condition and/or financial information. Although not subject to the other provisions of this Order, defendant shall treat these materials as confidential and defendant shall disseminate these materials only to the legal staff assigned to work on plaintiff's case as well as to any experts who defendant may retain in this lawsuit. 18. Defendant and plaintiff retain the right to challenge the designation of Confidential Material as not properly designated as Protected Material in accordance with Fed. R. Civ. P. 26, or to request the Court to modify any of the restrictions contained in this Protective Order. 19. Defendant is hereby authorized to release to plaintiff's counsel Privacy Act- protected records pertaining to the plaintiff. Plaintiff's counsel hereby represent that they are authorized to receive such records. This Protective Order does not regulate plaintiff's use of Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 5 of 11 -6- Privacy Act-protected records pertaining to plaintiff except to the extent that such records also constitute Protected Materials pertaining to any other person. Dated: _________________ ____________________________________ JUDGE JAMES ROBERTSON UNITED STATES DISTRICT JUDGE Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 6 of 11 -1- UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Jeffrey Kapche, ) ) Plaintiff ) Civ. Action No. 1:07-cv-02093 ) Hon. James Robertson v. ) ) Michael B. Mukasey, Attorney ) General of the United States, ) ) Defendant. ) ______________________________) ACKNOWLEDGMENT OF PRIVACY ACT PROTECTIVE ORDER I, , hereby acknowledge that I have read and understand the Privacy Act Protective Order ("Order") entered in this action. I hereby agree to be bound by the terms of the Order. Specifically, 1. I agree that I will use records and information protected by the Order only for purposes of this litigation, including any appeals, and not for any other purpose of any kind; 2. I agree that records and information, and all copies thereof protected by the Order, will be returned to the defendant or destroyed within 60 days after the termination of this litigation. If plaintiff or plaintiff's counsel elect to destroy the documents, they will so certify to the defendant within 60 days after the termination of this litigation; 3. I agree that any documents created by plaintiff, his counsel, plaintiff's attorneys' employees, consultants or expert witnesses containing Privacy Act information will be destroyed when this litigation is concluded, and that plaintiff will so certify to the defendant; Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 7 of 11 -2- 5. I agree that I may disclose records and information protected by the Order only to the Court, the parties to this action and their attorneys of record, persons regularly in the employ of such attorneys, and any experts or consultants hired for this case by the plaintiff or his attorneys and who (except the Court) have signed an acknowledgment like this one and have a need for such information to perform duties specifically related to the conduct of this litigation; 6. Should I wish to disclose the records that are subject to the Order to any additional persons except those indicated in the Order and herein, I will first seek the defendant's consent; 7. I agree that those portions of any filings with the Court which contain records or information protected by the Order shall be filed under seal; 8. I hereby confirm that my duties under this Acknowledgment shall survive the termination of this case and are binding upon me for all time; and 9. I hereby consent to the personal jurisdiction of the United States District Court for the District of Columbia in the above-captioned case for the purpose of enforcing the aforementioned Order. [signature] [print name] Dated: Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 8 of 11 -3- Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 9 of 11 -1- UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Jeffrey Kapche, ) ) Plaintiff ) Civ. Action No. 1:07-cv-02093 ) Hon. James Robertson v. ) ) Michael B. Mukasey, Attorney ) General of the United States, ) ) Defendant. ) ______________________________) ACKNOWLEDGMENT OF PRIVACY ACT PROTECTIVE ORDER BY EXPERT WITNESS OR LITIGATION CONSULTANT I, , hereby acknowledge that I have read and understand the Privacy Act Protective Order entered in this action. I hereby agree to be bound by the terms of the Order. Specifically, 1. I agree that I will use records and information protected by the Order only for purposes of this litigation, including any appeals, and not for any other purpose of any kind; 2. I agree that records and information, and all copies thereof protected by the Order, will be returned to plaintiff's counsel prior to the termination of this litigation, or when I am no longer assigned or retained to work on this case, whichever comes earlier so that the records and information may be returned to the defendant or destroyed within 60 days after the termination of this litigation; 3. I agree that I may disclose records and information protected by the Order only to the Court, and the plaintiff's attorneys of record, persons regularly in the employ of Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 10 of 11 -2- such attorneys, and any other experts or consultants hired for this case by the plaintiff or his attorneys and who (except the Court) have signed an acknowledgment like this one and have a need for such information to perform duties specifically related to the conduct of this litigation; 4. I hereby confirm that my duties under this Acknowledgment shall survive the termination of this case and are binding upon me for all time. 5. I hereby consent to the personal jurisdiction of the United States District Court for the District of Columbia in the above-captioned case for the purpose of enforcing the aforementioned Order. [signature] [print name] Dated: Case 1:07-cv-02093-JR Document 14-3 Filed 02/05/2008 Page 11 of 11 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Jeffrey Kapche, ) ) Plaintiff ) Civ. Action No. 1:07-cv-02093 ) Hon. James Robertson v. ) ) Michael B. Mukasey, Attorney ) General of the United States, ) ) Defendant. ) ______________________________) ACKNOWLEDGMENT OF PRIVACY ACT PROTECTIVE ORDER I, , hereby acknowledge that I have read and understand the Privacy Act Protective Order ("Order") entered in this action. I hereby agree to be bound by the terms of the Order. Specifically, 1. I agree that I will use records and information protected by the Order only for purposes of this litigation, including any appeals, and not for any other purpose of any kind; 2. I agree that records and information, and all copies thereof protected by the Order, will be returned to the defendant or destroyed within 60 days after the termination of this litigation. If plaintiff or plaintiff's counsel elect to destroy the documents, they will so certify to the defendant within 60 days after the termination of this litigation; 3. I agree that any documents created by plaintiff, his counsel, plaintiff's attorneys' employees, consultants or expert witnesses containing Privacy Act information will be destroyed when this litigation is concluded, and that plaintiff will so certify to the defendant; 5. I agree that I may disclose records and information protected by the Order only to the Court, the parties to this action and their attorneys of record, persons regularly in the employ Case 1:07-cv-02093-JR Document 14-4 Filed 02/05/2008 Page 1 of 4 of such attorneys, and any experts or consultants hired for this case by the plaintiff or his attorneys and who (except the Court) have signed an acknowledgment like this one and have a need for such information to perform duties specifically related to the conduct of this litigation; 6. Should I wish to disclose the records that are subject to the Order to any additional persons except those indicated in the Order and herein, I will first seek the defendant's consent; 7. I agree that those portions of any filings with the Court which contain records or information protected by the Order shall be filed under seal; 8. I hereby confirm that my duties under this Acknowledgment shall survive the termination of this case and are binding upon me for all time; and 9. I hereby consent to the personal jurisdiction of the United States District Court for the District of Columbia in the above-captioned case for the purpose of enforcing the aforementioned Order. [signature] [print name] Dated: Case 1:07-cv-02093-JR Document 14-4 Filed 02/05/2008 Page 2 of 4 UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA Jeffrey Kapche, ) ) Plaintiff ) Civ. Action No. 1:07-cv-02093 ) Hon. James Robertson v. ) ) Michael B. Mukasey, Attorney ) General of the United States, ) ) Defendant. ) ______________________________) ACKNOWLEDGMENT OF PRIVACY ACT PROTECTIVE ORDER BY EXPERT WITNESS OR LITIGATION CONSULTANT I, , hereby acknowledge that I have read and understand the Privacy Act Protective Order entered in this action. I hereby agree to be bound by the terms of the Order. Specifically, 1. I agree that I will use records and information protected by the Order only for purposes of this litigation, including any appeals, and not for any other purpose of any kind; 2. I agree that records and information, and all copies thereof protected by the Order, will be returned to plaintiff's counsel prior to the termination of this litigation, or when I am no longer assigned or retained to work on this case, whichever comes earlier so that the records and information may be returned to the defendant or destroyed within 60 days after the termination of this litigation; 3. I agree that I may disclose records and information protected by the Order only to the Court, and the plaintiff's attorneys of record, persons regularly in the employ of such attorneys, and any other experts or consultants hired for this case by the plaintiff or his attorneys Case 1:07-cv-02093-JR Document 14-4 Filed 02/05/2008 Page 3 of 4 and who (except the Court) have signed an acknowledgment like this one and have a need for such information to perform duties specifically related to the conduct of this litigation; 4. I hereby confirm that my duties under this Acknowledgment shall survive the termination of this case and are binding upon me for all time. 5. I hereby consent to the personal jurisdiction of the United States District Court for the District of Columbia in the above-captioned case for the purpose of enforcing the aforementioned Order. [signature] [print name] Dated: Case 1:07-cv-02093-JR Document 14-4 Filed 02/05/2008 Page 4 of 4 Case 1:07-cv-02093-JR Document 14-5 Filed 02/05/2008 Page 1 of 6 Case 1:07-cv-02093-JR Document 14-5 Filed 02/05/2008 Page 2 of 6 Case 1:07-cv-02093-JR Document 14-5 Filed 02/05/2008 Page 3 of 6 Case 1:07-cv-02093-JR Document 14-5 Filed 02/05/2008 Page 4 of 6 Case 1:07-cv-02093-JR Document 14-5 Filed 02/05/2008 Page 5 of 6 Case 1:07-cv-02093-JR Document 14-5 Filed 02/05/2008 Page 6 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Jeffrey Kapche, § CIVIL ACTION NO. 07-2093 (JR) Plaintiff, § § vs. § § Michael Mukasey, Attorney General of the § United States, § Defendants § A JURY IS DEMANDED PRIVACY ACT PROTECTIVE ORDER Pending before this Court is the defendant’s motion for entry of a protective order and the plaintiff’s response. The Court agrees that the defendant has not shown “good cause” for the requirement that individuals sign a statement before having access to the materials covered by this protective order and thus the defendant’s motion is denied in this regard. Accordingly, the Court enters the following protective order for this case: IT IS HEREBY ORDERED, pursuant to Rule 26(c), Fed. R. Civ. P., and the Privacy Act of 1974, 5 U.S.C. § 552a(b)(11), that this Order shall govern the production and use in the above- captioned action of any records, documents and/or information that (1) may be Privacy Act- protected and/or otherwise might intrude upon the privacy interests of present or former government employees or (2) in cases where the FBI determines that the disclosure of the individual’s name may endanger ongoing law enforcement efforts. 1. Definitions: a) As used in this Privacy Protective Order, the term "Protected Materials" means certain government records, documents and other information, including computerized or electronic information, that are protected from disclosure under any applicable law or regulation including the Privacy Act, 5 U.S.C. § 552(a) or the disclosure of which might otherwise intrude upon the privacy interests of present or former government employees, might Case 1:07-cv-02093-JR Document 14-6 Filed 02/05/2008 Page 1 of 5 2 endanger ongoing law enforcement efforts or might endanger employees who have engaged in undercover investigative activities; b) For purposes of this Privacy Protective Order, the term "record" as it relates to Privacy Act protected materials shall have the same meaning as set forth in the Privacy Act, 5 U.S.C. § 552a(a)(4). 2. The Federal Bureau of Investigation is hereby authorized to release Protected Materials to plaintiff's attorneys in the subject action. 3. Protected Materials shall be marked "CONFIDENTIAL," "PRODUCED SUBJECT TO PROTECTIVE ORDER" or "SUBJECT TO PROTECTIVE ORDER" or contain a similar marking. For any records, such as electronic data, whose medium makes such stamping impracticable, the cd, diskette, or tape case and/or accompanying cover letter shall be marked "PRODUCED SUBJECT TO PROTECTIVE ORDER" or "SUBJECT TO PROTECTIVE ORDER" or contain a similar marking. Answers to interrogatories, if any, that contain Protected Materials also shall be marked "CONFIDENTIAL," "PRODUCED SUBJECT TO PROTECTIVE ORDER" or "SUBJECT TO PROTECTIVE ORDER" or contain a similar marking. 4. All computerized or electronic databases that contain employee names and social security numbers may be given unique identifiers by defendant before being produced to plaintiffs if the FBI determines, in good faith and after careful review, that this is necessary to avoid the inadvertent dissemination of the names of covert undercover operatives. Such a determination by the FBI does not waive the plaintiff’s right to seek this information if he believes it is needed in discovery or at trial. 5. Protected Materials, any copies thereof, and any and all the information contained therein, shall be distributed to, and used by, only those individuals listed in paragraph 7 of this Case 1:07-cv-02093-JR Document 14-6 Filed 02/05/2008 Page 2 of 5 3 Order for the sole purpose of this litigation and shall not be disclosed, in any manner whatsoever, to anyone for any other purpose, without modification of this Order approved by the Court. 6. Protected Materials, any copies thereof, and any and all information contained therein shall not be published or disseminated to the public in any form, including the internet. 7. Protected Materials, and any copies thereof, and the information contained therein, may be disclosed only to: a) plaintiff's attorneys and persons regularly in the employ of the plaintiff's attorneys assisting in this litigation, including secretarial, clerical and paralegal or student personnel; b) plaintiff Jeffrey Kapche; c) the Court and its personnel, including court reporters; d) witnesses and potential witnesses, provided disclosure is in good faith calculated to aid in litigating this case; e) consultants and expert witnesses consulted, retained, or hired by any party to this litigation, but only to the extent necessary to provide a foundation for or elicit the expert testimony and/or other evidence. f) court reporters and videographers at depositions in this case. 8. Any Protected Materials, including, but not limited to, responses to interrogatories and those portions of depositions where the contents of Protected Materials are discussed shall be filed, if at all, under seal. The parties shall treat those portions of deposition transcripts as Protected Materials subject to this Protective Order. 9. The manner of using any Protected Materials at the trial of this litigation shall, after consultation between counsel, be determined by the Court at or about the time when the final pretrial order is submitted to the Court. Case 1:07-cv-02093-JR Document 14-6 Filed 02/05/2008 Page 3 of 5 4 10. Defendant’s failure to designate any materials as Protected Materials shall not constitute a waiver of any timely assertion that the materials are covered by this Protective Order. 11. All individuals to whom Protected Materials are disclosed by plaintiff or by plaintiff's counsel consistent with the restrictions in paragraphs 5, 6, 7, & 8 shall destroy or return any and all Protected Materials and copies thereof in their possession to plaintiff's counsel of record upon termination of this litigation, or when they are no longer a party to or assigned or retained to work on this litigation, whichever comes earlier. 12. Protected Materials and all copies thereof (other than Protected Materials and copies presented in open court consistent with the provisions of this Order) must be destroyed or returned to the United States Department of Justice, Civil Division, within sixty (60) days after the termination of this litigation, including any appeals. Any document created by plaintiff or his counsel which contains or reflects Protected Materials (other than documents presented in open court consistent with the provisions of this Order) must be destroyed when this litigation is terminated. 13. At the request of defendant, plaintiff's counsel shall certify to the destruction of all such documents, as referenced in paragraphs 11 and 12, not returned to the United States Department of Justice, Civil Division within sixty (60) days of the termination of this litigation, and/or receipt of the request, whichever is later. 14. This Protective Order does not constitute a ruling on the question of whether any particular material is properly discoverable or admissible, and does not constitute a ruling on any potential objection to the production or admissibility of any material. 15. Nothing in this Protective Order shall prevent disclosure as required by law or compelled by order of any court, or restrict a party's use of materials produced by that party. Case 1:07-cv-02093-JR Document 14-6 Filed 02/05/2008 Page 4 of 5 5 Nothing in this Order shall be construed to confer rights on any third party. Finally, nothing in this Order shall be construed to permit the disclosure of classified information. 16. Plaintiff may release to defendant’s attorneys of record personal information pertaining to plaintiff's alleged damages, including potentially relevant documents and/or information that pertain to plaintiff's medical condition and/or financial information. Although not subject to the other provisions of this Order, defendant shall treat these materials as confidential and defendant shall disseminate these materials only to the legal staff assigned to work on plaintiff's case as well as to any experts who defendant may retain in this lawsuit. 17. Defendant and plaintiff retain the right to challenge the designation of Confidential Material as not properly designated as Protected Material in accordance with Fed. R. Civ. P. 26, or to request the Court to modify any of the restrictions contained in this Protective Order. 18. Defendant is hereby authorized to release to plaintiff's counsel Privacy Act- protected records pertaining to the plaintiff. Plaintiff's counsel hereby represent that they are authorized to receive such records. This Protective Order does not regulate plaintiff's use of Privacy Act-protected records pertaining to plaintiff except to the extent that such records also constitute Protected Materials pertaining to any other person. Dated: _________________ ____________________________________ UNITED STATES DISTRICT JUDGE Case 1:07-cv-02093-JR Document 14-6 Filed 02/05/2008 Page 5 of 5