Al Otro Lado, Inc. v. McAleenan
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 AL OTRO LADO, INC., et al., Case No.: 17-cv-02366-BAS-KSC 11 Plaintiffs, ORDER: 12 v. (1) GRANTING IN PART AND 13 CHAD F. WOLF, et al., DENYING IN PART MOTIONS TO SEAL CLASS CERTIFICATION 14 Defendants. MOTION AND OPPOSITION BRIEF [ECF Nos. 388, 404]; 15 AND 16 (2) DENYING WITHOUT PREJUDICE 17 MOTION TO SEAL REPLY BRIEF [ECF No. 410] 18 19 Before the Court are Plaintiffs’ Motion to Seal Limited Portions of their Class 20 Certification Papers (ECF No. 388), Defendants’ Motion to Seal Portions of their 21 Opposition to the Motion for Class Certification (ECF No. 404), and Plaintiffs’ Motion to 22 Seal Portions of their Class Certification Reply (ECF No. 410).1 For the reasons stated 23 below, the Court GRANTS IN PART AND DENIES IN PART the Motions to Seal the 24 Class Certification Papers and Opposition (ECF Nos. 388, 404) and DENIES WITHOUT 25 PREJUDICE Plaintiffs’ Motion to Seal the Reply (ECF No. 410). 26 27 1 Defendants filed a Consolidated Response in Support of Plaintiffs’ Motions to Seal (“Response”) (ECF 28 No. 424.) 1 I. BACKGROUND 2 The parties request that the Court seal a total of 59 exhibits attached to Plaintiffs’ 3 Motion for Class Certification (“Motion”), Defendants’ Opposition to the Motion 4 (“Opposition”), and Plaintiffs’ Reply in support of the Motion (“Reply”), as well as any 5 portions of the parties’ briefings that refer to these exhibits.2 Defendants argue that sealing 6 is necessary because the documents contain “diplomatic and sensitive law enforcement 7 information and communications” about ports of entry that “expose[] vulnerabilities of 8 those ports” which could be used to threaten port security. (Resp. at 1–2.) Further, 9 Defendants claim disclosure will chill communications within agencies and between the 10 U.S. Government and foreign governments. (Id.) 3 11 II. LEGAL STANDARD 12 “[T]he courts of this country recognize a general right to inspect and copy public 13 records and documents, including judicial records and documents.” Nixon v. Warner 14 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 15 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 16 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 17 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 18 of access is ‘based on the need for federal courts, although independent—indeed, 19 particularly because they are independent—to have a measure of accountability and for the 20 public to have confidence in the administration of justice.” Ctr. for Auto Safety v. Chrysler 21 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 22 1044, 1048 (2d Cir. 1995)). A party seeking to seal a judicial record bears the burden of 23 overcoming the strong presumption of access. Foltz, 331 F.3d at 1135. The showing 24 required to meet this burden depends upon whether the documents to be sealed relate to a 25 2 These includes Exhibit Nos. 1–5, 7, 16, 17, 19–24, 26, 29–34, 36-37, 39–44, 46–62 to the Class 26 Certification Motion, Exhibit Nos. 2, 6–10, 12, 26, 28, and 30 to the Opposition, and Exhibit Nos. 2–6 to Plaintiffs’ Reply. A list of the exhibits, the corresponding rulings, and any applicable redactions is 27 included in Appendix A to this Order. 3 To the extent the Court relied on limited parts of the information contained in these exhibits in its Order 28 1 motion that is “more than tangentially related to the merits of the case.” Ctr. for Auto 2 Safety, 809 F.3d at 1102. When the underlying motion is more than tangentially related to 3 the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the 4 underlying motion does not surpass the tangential relevance threshold, the “good cause” 5 standard applies. Id. 6 A party seeking to seal a judicial record bears the burden of overcoming the strong 7 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 8 depends upon whether the documents to be sealed relate to a motion that is “more than 9 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 10 the underlying motion is more than tangentially related to the merits, the “compelling 11 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 12 the tangential relevance threshold, the “good cause” standard applies. Id. 13 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 14 disclosure and justify sealing court records exist when such ‘court files might have become 15 a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote 16 public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 17 F.3d at 1179. If a court chooses to seal documents, it must “base its decision on a 18 compelling reason and articulate the factual basis for its ruling, without relying on 19 hypothesis or conjecture.” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). 20 This requires the party seeking to seal documents to “make a particularized showing . . . 21 supported by specific factual findings that outweigh the important public policies favoring 22 disclosure of that document.” Unknown Parties v. Johnson, No. CV-15-00250-TUC- 23 DCB, 2016 WL 8199309, at *4 (D. Ariz. June 27, 2016) (citing Kamakana, 447 F.3d at 24 1178, 1180–81). Therefore, blanket claims of privacy or law enforcement are insufficient; 25 instead, the party “must demonstrate specific prejudice or harm flowing from the 26 disclosure of a specific document.” Id. 27 Further, consistent with the presumptive right of public access to court records, this 28 Court’s Standing Order for Civil Cases provides: 1 The Court may seal documents to protect sensitive information, however, the documents to be filed under seal will be limited by the Court to only those 2 documents, or portions thereof, necessary to protect such sensitive information. 3 Parties seeking a sealing order must provide the Court with: (1) a specific 4 description of particular documents or categories of documents they need to protect; and (2) declarations showing a compelling reason or good cause to 5 protect those documents from disclosure. The standard for filing documents under seal will be strictly applied. 6 7 (Standing Order ¶ 5.) 8 III. DISCUSSION 9 Plaintiffs’ Class Certification Motion is more than tangentially related to the merits 10 of the underlying dispute. See Baker v. SeaWorld Entm’t, Inc., No. 14CV2129-MMA 11 (AGS), 2017 WL 5029612, at *3 (S.D. Cal. Nov. 3, 2017) (finding motion for class 12 certification to be more than tangentially related to merits of the case and citing cases). 13 Hence, the instant Motions to Seal are subject to the “compelling reasons” standard. The 14 Court discusses the exhibits by category below. 15 A. Deposition Testimony (Exs. 1–3 to Mot.) 16 Defendants seek to seal the 30(b)(6) deposition testimony of Randy Howe, the 17 Executive Director for the Office of Field Operations (“Howe Deposition”); Executive 18 Assistant Commissioner Todd Owen’s deposition testimony (“Owen Deposition”) and the 19 deposition testimony of a Customs and Border Protection (“CBP”) Whistleblower 20 (“Whistleblower Deposition”). 21 1. Howe Deposition (Ex.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 AL OTRO LADO, INC., et al., Case No.: 17-cv-02366-BAS-KSC 11 Plaintiffs, ORDER: 12 v. (1) GRANTING IN PART AND 13 CHAD F. WOLF, et al., DENYING IN PART MOTIONS TO SEAL CLASS CERTIFICATION 14 Defendants. MOTION AND OPPOSITION BRIEF [ECF Nos. 388, 404]; 15 AND 16 (2) DENYING WITHOUT PREJUDICE 17 MOTION TO SEAL REPLY BRIEF [ECF No. 410] 18 19 Before the Court are Plaintiffs’ Motion to Seal Limited Portions of their Class 20 Certification Papers (ECF No. 388), Defendants’ Motion to Seal Portions of their 21 Opposition to the Motion for Class Certification (ECF No. 404), and Plaintiffs’ Motion to 22 Seal Portions of their Class Certification Reply (ECF No. 410).1 For the reasons stated 23 below, the Court GRANTS IN PART AND DENIES IN PART the Motions to Seal the 24 Class Certification Papers and Opposition (ECF Nos. 388, 404) and DENIES WITHOUT 25 PREJUDICE Plaintiffs’ Motion to Seal the Reply (ECF No. 410). 26 27 1 Defendants filed a Consolidated Response in Support of Plaintiffs’ Motions to Seal (“Response”) (ECF 28 No. 424.) 1 I. BACKGROUND 2 The parties request that the Court seal a total of 59 exhibits attached to Plaintiffs’ 3 Motion for Class Certification (“Motion”), Defendants’ Opposition to the Motion 4 (“Opposition”), and Plaintiffs’ Reply in support of the Motion (“Reply”), as well as any 5 portions of the parties’ briefings that refer to these exhibits.2 Defendants argue that sealing 6 is necessary because the documents contain “diplomatic and sensitive law enforcement 7 information and communications” about ports of entry that “expose[] vulnerabilities of 8 those ports” which could be used to threaten port security. (Resp. at 1–2.) Further, 9 Defendants claim disclosure will chill communications within agencies and between the 10 U.S. Government and foreign governments. (Id.) 3 11 II. LEGAL STANDARD 12 “[T]he courts of this country recognize a general right to inspect and copy public 13 records and documents, including judicial records and documents.” Nixon v. Warner 14 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 15 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 16 Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 17 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 18 of access is ‘based on the need for federal courts, although independent—indeed, 19 particularly because they are independent—to have a measure of accountability and for the 20 public to have confidence in the administration of justice.” Ctr. for Auto Safety v. Chrysler 21 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 22 1044, 1048 (2d Cir. 1995)). A party seeking to seal a judicial record bears the burden of 23 overcoming the strong presumption of access. Foltz, 331 F.3d at 1135. The showing 24 required to meet this burden depends upon whether the documents to be sealed relate to a 25 2 These includes Exhibit Nos. 1–5, 7, 16, 17, 19–24, 26, 29–34, 36-37, 39–44, 46–62 to the Class 26 Certification Motion, Exhibit Nos. 2, 6–10, 12, 26, 28, and 30 to the Opposition, and Exhibit Nos. 2–6 to Plaintiffs’ Reply. A list of the exhibits, the corresponding rulings, and any applicable redactions is 27 included in Appendix A to this Order. 3 To the extent the Court relied on limited parts of the information contained in these exhibits in its Order 28 1 motion that is “more than tangentially related to the merits of the case.” Ctr. for Auto 2 Safety, 809 F.3d at 1102. When the underlying motion is more than tangentially related to 3 the merits, the “compelling reasons” standard applies. Id. at 1096–98. When the 4 underlying motion does not surpass the tangential relevance threshold, the “good cause” 5 standard applies. Id. 6 A party seeking to seal a judicial record bears the burden of overcoming the strong 7 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 8 depends upon whether the documents to be sealed relate to a motion that is “more than 9 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 10 the underlying motion is more than tangentially related to the merits, the “compelling 11 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 12 the tangential relevance threshold, the “good cause” standard applies. Id. 13 “In general, ‘compelling reasons’ sufficient to outweigh the public’s interest in 14 disclosure and justify sealing court records exist when such ‘court files might have become 15 a vehicle for improper purposes,’ such as the use of records to gratify private spite, promote 16 public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 17 F.3d at 1179. If a court chooses to seal documents, it must “base its decision on a 18 compelling reason and articulate the factual basis for its ruling, without relying on 19 hypothesis or conjecture.” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). 20 This requires the party seeking to seal documents to “make a particularized showing . . . 21 supported by specific factual findings that outweigh the important public policies favoring 22 disclosure of that document.” Unknown Parties v. Johnson, No. CV-15-00250-TUC- 23 DCB, 2016 WL 8199309, at *4 (D. Ariz. June 27, 2016) (citing Kamakana, 447 F.3d at 24 1178, 1180–81). Therefore, blanket claims of privacy or law enforcement are insufficient; 25 instead, the party “must demonstrate specific prejudice or harm flowing from the 26 disclosure of a specific document.” Id. 27 Further, consistent with the presumptive right of public access to court records, this 28 Court’s Standing Order for Civil Cases provides: 1 The Court may seal documents to protect sensitive information, however, the documents to be filed under seal will be limited by the Court to only those 2 documents, or portions thereof, necessary to protect such sensitive information. 3 Parties seeking a sealing order must provide the Court with: (1) a specific 4 description of particular documents or categories of documents they need to protect; and (2) declarations showing a compelling reason or good cause to 5 protect those documents from disclosure. The standard for filing documents under seal will be strictly applied. 6 7 (Standing Order ¶ 5.) 8 III. DISCUSSION 9 Plaintiffs’ Class Certification Motion is more than tangentially related to the merits 10 of the underlying dispute. See Baker v. SeaWorld Entm’t, Inc., No. 14CV2129-MMA 11 (AGS), 2017 WL 5029612, at *3 (S.D. Cal. Nov. 3, 2017) (finding motion for class 12 certification to be more than tangentially related to merits of the case and citing cases). 13 Hence, the instant Motions to Seal are subject to the “compelling reasons” standard. The 14 Court discusses the exhibits by category below. 15 A. Deposition Testimony (Exs. 1–3 to Mot.) 16 Defendants seek to seal the 30(b)(6) deposition testimony of Randy Howe, the 17 Executive Director for the Office of Field Operations (“Howe Deposition”); Executive 18 Assistant Commissioner Todd Owen’s deposition testimony (“Owen Deposition”) and the 19 deposition testimony of a Customs and Border Protection (“CBP”) Whistleblower 20 (“Whistleblower Deposition”). 21 1. Howe Deposition (Ex. 1 to Mot.) 22 According to Defendants, the Howe Deposition should be sealed in its entirety 23 primarily because disclosure could reveal port vulnerabilities and allow for second- 24 guessing or commentary by “outside entities” that would have a “chilling effect” on the 25 decisionmaking ability of CBP officials. (Decl. of Randy Howe (“Howe Decl.”) ¶¶ 4, 5, 26 7–9, 11, Ex. C to Decl. of Ari Nazarov in supp. of Resp. (“Nazarov Decl.”), ECF No. 424- 27 5.) 28 1 The Court does not find potential public scrutiny of government discretion is an 2 “improper purpose” necessitating sealing. Further, any “chilling effect” on an official 3 because of such scrutiny is purely conjectural; it is far from certain that such scrutiny will 4 occur at all, let alone to such a degree that individual officials would feel unable to execute 5 their job duties. However, the Court finds that testimony regarding port hours and port 6 infrastructure could compromise border security and therefore warrant sealing. (Howe 7 Decl. ¶¶ 6, 14.) Further, the Court finds that the testimony about the types of 8 communication between POEs and officials from the Government of Mexico presents 9 concrete threats to security that justify sealing. (Id. ¶¶ 12–13.) 10 Thus, while the Court does not find compelling reasons to seal the Howe Deposition 11 in its entirety, Defendants may propose targeted redactions based on the Court’s above 12 analysis by the deadline listed in Section IV, infra. Defendants should consider the Court’s 13 rulings on related exhibits when proposing redactions to the transcript. 14 2. Owen Deposition Transcript (Ex. 2 to Mot.; Ex. 2 to Opp’n) 15 Regarding Todd Owen’s deposition, Defendants seek to seal only portions of the 16 transcript and have proposed redactions accordingly. (See Dep. of Todd Owen – 17 Confidentiality Designations, Ex. H to Nazarov Decl., ECF No. 424-10.) 18 Defendants allege that the disclosure of the timing and attendance of regularly 19 scheduled intelligence briefings in the SCIF could endanger senior CBP leadership. (Decl. 20 of Todd Owen (“Owen Decl.”) ¶ 4, Ex. F to Nazarov Decl., ECF No. 424-8.) Further, 21 several requested redactions concern testimony related to exhibits which Defendants have 22 identified as confidential. Defendants argue that the discussion of these exhibits reveals 23 information about “methodology for gathering information, internal decisionmaking 24 processes,” and communications with the Government of Mexico about logistics and 25 infrastructure, all of which, if disclosed, would chill communications between the two 26 countries and compromise security. (See Resp. at 14; Owens Decl. ¶¶ 6, 11–12.) 27 After reviewing the deposition transcript and the corresponding confidentiality 28 designations, the Court grants in part Defendants’ request to seal parts of Owen’s 1 testimony. Regarding the SCIF-related testimony, the Court finds that the times and 2 frequencies of the meetings can be redacted to address Defendants’ safety concerns. 3 Further, the Court largely grants Defendants’ request to seal Owen’s testimony concerning 4 internal memos and communications with the Government of Mexico. The rulings on each 5 requested redaction can be found in Appendix B attached to this Order. 6 3. Whistleblower Deposition Transcript (Ex. 3. To Mot.) 7 Defendants similarly seek to seal only portions of the Whistleblower’s deposition 8 testimony. They argue that disclosure of certain portions “would compromise port 9 operations and have an adverse effect on operational decisionmaking in addition to 10 revealing law enforcement techniques and methods.” (Resp. at 16.) The Court has 11 reviewed the testimony in question and finds these reasons largely conclusory and 12 therefore insufficient to support sealing of parts of this deposition transcript. 13 Defendants also seek to redact several pieces of testimony related to other 14 investigations prompted by the Whistleblower’s complaint on the basis that this testimony 15 would reveal the Whistleblower’s identity. (See Dep. of Whistleblower – Confidentiality 16 Designations, Ex. G to Nazarov Decl., ECF No. 424-9.) However, redacted versions of 17 these reports and other documents related to these investigations are publicly available (see 18 Section III.E.3) but do not disclose the Whisteblower’s name. Because the Court will 19 allow the Whistleblower’s name and other identifying information in his testimony to 20 remain redacted as well, it is not clear to the Court how disclosure of testimony about these 21 investigations will reveal the Whistleblower’s identity. 22 Further, Defendants seek to seal testimony regarding several musters and queue 23 management reports that are critical to understanding the underlying metering claims in 24 the case. The Court finds that most of this testimony covers information publicly disclosed 25 elsewhere or that Defendants have not identified compelling reasons for sealing. This 26 includes references to queue management reports, for which the Court denies sealing as 27 explained in Section III.E.1, infra. 28 1 Nonetheless, the Court finds that some parts of the Whistleblower’s testimony 2 warrant redactions. The rulings on each requested redaction can be found in Appendix C 3 attached to this Order. 4 4. Leutert Expert Report and Deposition Transcript 5 (Ex. 26 to Opp’n; Ex. 2 to Reply) 6 Defendants note that the Leutert Report, Exhibit 7 to the Motion, was unsealed by 7 the Ninth Circuit. As such, this subsequent request to seal is now moot. See Kamakana, 8 447 F.3d at 1184 (affirming an unsealing order because the information at issue was 9 “already publicly available”); Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 10 2004) (“[H]owever confidential it may have been beforehand, subsequent to publication it 11 [i]s confidential no longer. . . . [A court] simply do[es] not have the power . . . to make 12 what has thus become public private again.”). Thus, the Court denies Defendants’ request 13 to seal this document. 14 Defendants also request to seal the Deposition of Stephanie Leutert. Defendants 15 provide specific reasons to seal Exhibit 26 (see Defs.’ Mot. to Seal, ECF No. 404), which 16 contains excerpts of her deposition testimony totaling 10 pages; Defendants do not provide 17 reasons to seal the entirety of her deposition testimony, attached as Exhibit 2 to the Reply. 18 The partial testimony primarily covers the factors that Leutert did and did not consider in 19 the methodology underlying the conclusions in her report. The Court finds that this line 20 of inquiry does not disclose information that would compromise port security, as claimed 21 by Defendants. (See Feb. 2020 Decl. of Randy Howe (“Feb. 2020 Howe Decl.”) ¶¶ 6–11, 22 Ex. D to Nazarov Decl., ECF No. 424-6.) Further, to the extent Defendants seek to seal 23 Leutert’s entire deposition transcript, they have presented no compelling reason to do so. 24 Defendants may submit specific redactions to Leutert’s transcript by the deadlines 25 stated in Section IV, infra. When proposing redactions, Defendants should consider this 26 Court’s rulings on related exhibits, including Leutert’s expert report mentioned above. 27 B. Exhibits with CBP/DHS Operational Details 28 (Exs. 20, 21–24, 29, 56, 59– 61 to Mot.; Exs. 6–10 to Opp’n) 1 Defendants seek to seal certain email attachments to the class certification briefings 2 on the basis that they contain one or more of the following:
3 information obtained from foreign partners, information routinely shared within and among CBP and its interagency partners, . . . information obtained 4 through sensitive law enforcement techniques and methods[,] . . . frank and unvarnished assessments of the strengths and weaknesses of particular 5 operational and policy decisions, and assessments of operational and resources needs. 6 7 (Decl. of Vernon Foret (“Foret Decl.”) ¶ 3, Ex. A to Nazarov Decl., ECF No. 424-3.) 8 Defendants allege that disclosure of this information will compromise the ability of the 9 Office of Field Operations (“OFO”) to “execute its mission of securing the borders and 10 protecting the American public.” (Id.) Below, the Court reviews each exhibit to determine 11 if the content presents the compelling reasons for sealing alleged by Defendants. 12 1. Exhibits Regarding the “Haitian Migration Surge” 13 (Ex. 17, 20–22, 24 to Mot.; Exs. 6–10 to Opp’n) 14 Exhibits 17, 20, and 21 to the Motion and Exhibits 6–10 to the Reply are 15 memoranda, emails and PowerPoint presentations prepared by the OFO concerning the 16 2016 Haitian Migration Surge. Exhibits 17 to the Motion and Exhibit 6 to the Reply outline 17 the reasons for the surge and the status of CBP and OFO’s responses as of that date, specific 18 requests made by the Government of Mexico, and steps that overburdened POEs took, at 19 the time, to streamline the processing of the high volume of migrants. Exhibit 21 to the 20 Motion and Exhibits 7 and 9 to the Opposition are other OFO briefs regarding the surge 21 dated in May, September, and October 2016, respectively, and contain very similar types 22 of information. Exhibit 20 to the Motion is an email chain including raw data regarding 23 the credible fear influx at the San Ysidro POE in May 2016 and its impact on port 24 operations. Exhibits 8 and 10 are PowerPoint presentations for a Panel Discussion and a 25 proposal for the El Centro Processing cite, dated in November and October 2016, 26 respectively, that consolidate much of the information contained in the other exhibits. 27 Defendants argue that disclosure of these exhibits’ contents would discourage 28 information-sharing between the Government of Mexico and the United States and reveal 1 operational vulnerabilities and capacity limitations during a crisis, thereby providing 2 criminal organizations “with a roadmap as to how CBP and DHS attempt to manage 3 emergency situations,” which they can use in turn to evade CBP during a migrant crisis. 4 (Decl. of Vernon Foret ¶¶ 6–9, Ex. B. to Decl. of Ari Nazarov in supp. of Defs.’ Mot. to 5 Seal, ECF No. 404-4.) 6 Defendants have not shown compelling reasons to seal the exhibits in their entirety. 7 The Haitian Migration Surge—occurred four years ago due to the availability of a specific 8 immigration status and in a particular set of circumstances—demonstrates CBP’s prior 9 response to a “migration crisis” that employed methods other than metering to manage. It 10 is therefore relevant to determining whether the port capacity justification for metering, 11 put forth by Defendants, is legitimate or pretextual. In addition, Defendants’ allegation 12 that criminal organizations could extrapolate data from this period to overwhelm POEs in 13 the future is too speculative to satisfy the compelling reason standard. Nevertheless, the 14 Court will allow for targeted redactions of information relating to port capacity to address 15 Defendants’ concerns about security. The Court will also allow redactions related to 16 communications from the Government of Mexico. (See Appendix A.) 17 Exhibit 22 consists of findings and recommendations from the United Nations High 18 Commissioner for Refugees (UNHCR) regarding CBP’s response to the migration surge 19 in 2016. The report notes CBP-imposed “ceilings” on asylum processing, describes the 20 effect of the metering process on wait times, and proposes alternatives to metering. The 21 UNHCR’s assessment, as it pertains to metering, is directly relevant to the parties’ dispute 22 about this issue. Further, the report broadly characterizes the strain on the San Ysidro POE 23 without mentioning details about port capacity that would compromise security if 24 disclosed. The Court therefore finds no compelling reasons to seal this exhibit. 25 Exhibit 23 is an email chain regarding the Haitian migration surge in 2016 and the 26 Haitian Ambassador’s upcoming visit to the San Ysidro port of entry. Defendants argue 27 that disclosing this document, which contains the personal opinions and reactions of high- 28 level officials about policy decisions, “would have a significant chilling effect on such 1 individuals’ willingness to share such personal opinions in the future” because of the 2 possible public scrutiny and would therefore impede “the ability of the U.S. Government 3 and its foreign partners to make reasoned, sound, and rational decisions” going forward. 4 (Foret Decl. ¶ 6.) The Court is unconvinced. Again, the Court finds the potential “chilling 5 effect” from public scrutiny of these exhibits, which concern a migration event that 6 occurred four years ago, to be attenuated and not the type of “improper purpose” that 7 justifies sealing. See Kamakana, 447 F.3d at 1179. In any event, the individual in question 8 is the former DHS Secretary and hardly immune from significant public scrutiny regardless 9 of disclosure. The request to seal Exhibit 23 is therefore denied. 10 Exhibit 24 is another email chain between then-CBP Deputy Commissioner Kevin 11 McAleenan and other officials discussing the strategy for processing Haitian migrants 12 during the surge in 2016. The chain includes details about the state of operations at ports 13 of entry, including details about capacity limitations and release into the interior. Because 14 these emails reveal specific, concrete vulnerabilities in CBP’s operations caused by a surge 15 in migration (see Foret Decl. ¶ 12), the Court finds compelling reasons to seal this 16 document. 17 2. Exhibit Related to the 2018 “Migrant Caravan” (Ex. 29 to Mot.) 18 Exhibit 29 is a lengthy email chain from CBP officials on the ground in Mexico City 19 updating officials in the United States about the progress and size of the caravan. It 20 includes summaries from CBP’s attaché and other personnel in Mexico City about the size 21 of the caravan and the demographic and health statistics of its members. 22 Defendants allege sealing is necessary to preserve the ability of the United States 23 and Mexican governments “to jointly address security risks in the future” and to prevent 24 hostile actors from learning how the governments gather information about migrant 25 caravans, which could then be manipulated “to provide CBP with false or misleading 26 information in an effort to pull CBP resources away from certain areas of the border.” 27 (Foret Decl. ¶¶ 8–10.) 28 1 Given the minimal relevance of the majority of this exhibit’s contents to the claims 2 in this case, and recognizing both the importance of confidentiality to both the U.S. 3 Government and the Government of Mexico concerning migration efforts, the Court finds 4 that compelling reasons to keep the details of this information sealed. 5 C. Port Operational Data and Information 6 (Exs. 16, 19, 40, 41, 48 to Mot., Ex. 30 to Opp’n) 7 1. Documents with San Diego Field Office Operational Information 8 (Exs. 16, 19, 40, 41, 48, 56, 59–61 to Mot.; Ex. 30 to Opp’n) 9 Exhibit 16 to Plaintiffs’ Class Certification Motion is a short chain of emails 10 between CBP officials dated August 2, 2017. It includes timeframes for metering and two 11 tables, one with monthly “Credible Fear Totals” for 2016 and half of 2017—including a 12 breakdown of the number subject to expedited removal, the number detained, and the 13 number released—and “AEU [Admissibility Enforcement Unit] Detention Totals for six 14 days in July 2016 and one day in July 2017 at three locations. Defendants claim that 15 releasing this information will allow second-guessing of discretionary decisions by outside 16 entities and provides data about resource allocation that could be used to compromise 17 border security. (See Howe Decl. ¶ 11; Feb. 2020 Howe Decl. ¶ 11; Owen Decl. ¶¶ 8–10.) 18 As stated before, scrutiny of governmental officials’ use of discretion is not an “improper 19 purpose” necessitating sealing. Second, the Court does not find that the data contained in 20 Exhibit 16 informs outside entities about “when certain entities are operating below, at, or 21 above capacity” (Feb. 2020 Howe Decl. ¶ 11); rather, it reflects totals, without reference 22 to whether they exceed a port’s capacity, either over an 18-month period three to four years 23 ago or for seven days between 2016 and 2017. The Court therefore finds Defendants’ 24 allegations of risk unpersuasive and denies the Motion to Seal this exhibit. 25 Exhibits 19 and 40 to the Motion contain data compiled by the AEU on two days in 26 2016. The data provides a snapshot of the capacity at the San Ysidro, Otay Mesa, and 27 Tecate POEs for each 24-hour period. Each email breaks down the number of detainees 28 in custody, the total processed and transported, and the number of intakes for expedited 1 removal with credible fear by nationality. Defendants allege that this statistical 2 information would give hostile actors “a baseline to assess what number of inadmissible 3 aliens would strain or overwhelm resources” at each POE. (March 10, 2020 Decl. of 4 Johnny L. Armijo (“Mar. 2020 Armijo Decl.”) ¶¶ 8b, 15, Ex. B to Nazarov Decl., ECF No. 5 424-4.) The Court is not convinced that disclosing data from these documents would 6 expose the POEs to any risk of harm. The information is limited to two days in 2016 and 7 does not indicate that the volume on these days overwhelmed or otherwise complicated 8 operations at the POEs. Moreover, the emails primarily consist of acronyms and numbers 9 that reveal little to someone unfamiliar with the intricacies of CBP operations. 10 Exhibit 41 to the Motion is a Queue Management Brief from the AEU. It specifies 11 the metering process, including CBP’s coordination with the Government of Mexico, and 12 includes instructions for compliance with humanitarian policies. It also includes three 13 tables with statistical information about the number of “inadmissibles” at the San Ysidro, 14 Otay Mesa, and Tecate POEs for each quarter of 2018. Defendants allege that disclosure 15 of these statistics will enable migrants to evaluate the chances of being caught with 16 fraudulent documents or provide capacity information to hostile actors who may then 17 attempt to overwhelm POE operations. (Mar. 2020 Armijo Decl. ¶¶ 8a, 8b.) The Court 18 rejects sealing the entirety of this exhibit. It includes details about the Government of 19 Mexico’s involvement to “slow the flow” of migration to the southern border, which is a 20 key component of the case. However, the Court will allow redaction of the statistical 21 information contained in the tables. 22 Exhibit 30 to the Opposition contains “adverse action traffic” and custody data for 23 October 2, 2018. The data reflects how many individuals were released, voluntarily 24 returned, or subject to expedited removal on this specific date, as well as demographic data 25 (e.g., the number of unaccompanied minors, single adults, those with credible fear claims), 26 the total number in custody at four ports, and the duration that individual, unidentified 27 detainees remained in custody. Defendants argue that this provides information about a 28 port’s total capacity because resources are diverted to address the needs of certain types of 1 migrants, such as unaccompanied children, and therefore “make[] the port more vulnerable 2 to outside threats.” Again, this information concerns a single day in 2018. The argument 3 that this information, if disclosed, would allow bad actors to predict and then exploit port 4 activity in the future is a tenuous theory that does not establish compelling reasons for 5 sealing. The Court therefore denies the Motion to Seal as to this exhibit. 6 Exhibit 48 to the Motion is document titled “Migrant Processing at Limit Line – San 7 Diego Field Office” and contains information about the layout of the pedestrian limit line 8 at certain POEs and instructions for referring migrants to other POEs if capacity is reached. 9 Defendants claim that disclosure of this document could be used to plot terrorist attacks 10 and drug smuggling operations. (Mar. 2020 Armijo Decl. ¶ 11.) Exhibit 48 notes, in 11 simple language, which areas at POEs are unstaffed, where CBP officers’ line of sight is 12 obstructed, and where traffic can present security challenges. The Court agrees that this 13 presents a compelling reason to seal this document. 14 2. Exhibits re: CBP/ICE Operations at San Ysidro in 2017 and 2018 15 (Ex. 56, 59–61 to Mot.) 16 Exhibit 56 is an email chain outlining the processing procedure for family units at 17 San Ysidro in December 2017. The emails discuss family unit arrivals at the border, 18 including the availability of bed space and when family units are processed into the 19 interior, and mentions deterrence objectives regarding family arrivals at the San Ysidro 20 POE. No specific data regarding bed space capacity is mentioned. Exhibits 59–61 are 21 email communications between CBP officials regarding the intake of asylum seekers at 22 San Ysidro during a surge in November 2018. The emails relay information about 23 unresolved capacity issues, the number of “crossers” and their proposed “redirection” in 24 response to the caravan, and the DHS Secretary’s processing priorities. 25 Defendants allege, as they have for other exhibits, that POE capacity and 26 “operational capabilities to move individuals out of CBP custody” could be used by hostile 27 actors to overwhelm POEs and strain resources. (Foret Decl. ¶¶ 16, 20.) The Court once 28 again finds this purported threat too speculative to meet the heightened sealing standard. 1 As with other exhibits, these documents capture issues with processing and transport at a 2 specific time and under specific circumstances present in 2017 and 2018. Given the 3 relevance of the information in these exhibits to questions of port capacity and 4 deterrence—which are critical to understanding the claims at the core of the parties’ 5 dispute—targeted redactions are more appropriate than sealing these documents in their 6 entirety. As noted in Appendix A, the Court will permit redactions of numbers and 7 information that reveal capacity information for specific ports in the interests of security. 8 D. Other Exhibits Presenting Security Risks or a Potential Chilling Effect 9 on Agency Operations and International Relations 10 (Exs. 26, 36, 42, 52–55, 57, 62 to Mot.) 11 Defendants seek to seal Exhibits 26, 36, 42, 57, and 62 because they contain “frank 12 communications” within CBP that, if disclosed, could have a chilling effect on 13 information-sharing and because they “reveal operational details that could be exploited 14 by bad actors.” (Resp. at 15; Howe Decl. ¶¶ 5, 6, 8; Owen Decl. ¶¶ 8–10.) 15 Exhibit 26 does not contain information that would increase risk or chill speech if 16 available to the public. It includes a brief reminder about professionalism and compliance 17 with the law and agency procedures in advance of the “migrant caravan” in 2018. The 18 email chain includes instructions about processing migrants according to port capacity, 19 which is a key claim in the underlying suit and discussed in great detail in unsealed 20 materials already before this Court. Defendants do not identify any details about port 21 security measures or internal agency deliberations or opinions that have not previously 22 been disclosed. The Court therefore finds no compelling reason to seal this Exhibit. 23 Exhibit 36 is an email to Port Directors soliciting responses to a list of questions 24 about the effect of a shift in “Queue Management Strategy” in 2018. The email contains 25 only questions for conducting an internal assessment and not the corresponding answers. 26 Consequently, the exhibit does not contain operational details or the comments, opinions, 27 or internal assessments of agency officials. As such, the Court sees no justification for 28 sealing this document. 1 Exhibit 42 is email correspondence between various CBP officials about asylum 2 processing capacity at each POE, specifically about “ceilings” on asylum cases at each 3 POE and border enforcement priorities, in response to inquiries from a U.S. Senator. 4 Defendants seek to seal this document because of its potential chilling effects on agency 5 communications. However, as aforementioned, POE capacity and corresponding impacts 6 on operations underlie the claims in this case. Plaintiffs allege that Defendants’ use of 7 capacity to justify their various border enforcement methods is a pretext and that 8 Defendants instead intended to unlawfully deter asylum-seekers from arriving at POEs at 9 the southern border. Moreover, the Court again finds that any “after-the-fact second- 10 guessing”—and their potential to have a chilling effect on internal agency 11 communications—is too speculative to constitute a compelling reason to prevent public 12 disclosure of information critical to the resolution of issues in this case. Accordingly, the 13 Court finds the sealing of Exhibit 42 unwarranted. 14 Exhibits 52 and 53 contain information shared by the AEU regarding noncitizen’s 15 views of immigration laws and CBP queue management. Defendants argue that public 16 disclosure of the information and the methods of information-gathering would discourage 17 intelligence groups from sharing sensitive information, thereby impeding CBP officials 18 from assessing risks and planning for contingencies. (Id. at 16; see also Feb. 2020 Decl. 19 of Johnny Armijo (“Feb. 2020 Armijo Decl.”) ¶¶ 8a, 8b, Ex. E to Nazarov Decl., ECF No. 20 424-7.) Defendants claim that there are heightened risks associated with these documents 21 because they concern the San Ysidro POE specifically, which is a large port that has 22 purportedly been the target of “recent attempts by large groups of undocumented aliens to 23 forcefully breach the port of entry.” (Id.) 24 Based on the content of these exhibits, the Court does not find that Defendants have 25 alleged compelling reasons to seal. Both exhibits appear to contain the same information— 26 an official’s evaluation, based on a review of relevant documents, of whether detained 27 migrants felt deterred by the Zero Tolerance Policy or metering at the San Ysidro POE. 28 Defendants do not explain how detainee sentiment constitutes “sensitive law enforcement 1 information” or how disclosure of this official’s “method of information-gathering” (which 2 appears to be document review) would compromise CBP’s ability to assess or plan for 3 future risk.4 Accordingly, the Court finds no compelling reason to seal these emails. 4 Exhibit 54 includes a discussion about the different methods employed to meter 5 migrants in 2016 and Exhibit 55 includes a very cursory mention of the deterrent effect. 6 Defendants again rely on a purported chilling effect to justify their request for sealing these 7 exhibits. (Resp. at 14–15; Owen Decl. ¶¶ 7–10.) For the same reasons stated above 8 regarding Exhibit 42, the Court denies the request to seal these exhibits. 9 E. Exhibits Purportedly Revealing “CBP Vulnerabilities and Weaknesses” 10 (Exs. 5, 30–34, 37, 39, 43–44, 49, 50, 51, 57 to Mot.; Exs. 3–6 to Reply) 11 1. Field Queue Management Reports 12 (Exs. 37, 43, 49, 50, 51, 57, 62 to Mot.; Exs. 3–5 to Reply) 13 Exhibits 37, 43, 49, 50, 51, 57, and 62 to the Motion and Exhibits 3–5 to the Reply 14 all contain tables with data for various POEs regarding queue management, often referred 15 to as Field Queue Management Reports (“FQMR”). Exhibit 37 to the Motion and Exhibits 16 3–5 to the Reply list information about the total number of individuals in custody and the 17 percent capacity of each port for four different days in 2018. These charts also include 18 information about staffing and infrastructure. Exhibits 43, 50, and 57 contain tables from 19 two different dates in 2018, listing the total number of detainees at each POE, the percent 20 of capacity those numbers reflect, the number of individuals remaining in the queue, and 21 the impact to port operations. Exhibits 49 and 51 contain similar data about custody and 22 capacity from March 21, 2019, but also include annual statistics about pedestrian traffic 23 and asylum processing at different POEs.5 Exhibit 62 is an email chain wherein an official 24
25 4 Armijo further states that disclosure would effectively have a chilling effect on his subordinates’ willingness “to relay sensitive and/or confidential information and findings to [him] in a full and forthright 26 manner[.]” (Feb. 2020 Decl. ¶ 8a.) Because Defendants have disclosed the officer’s name in the publicly available February 2020 Armijo Declaration, the Court finds it futile, at this point, to permit redaction of 27 the subordinate’s name to preserve his privacy and thereby circumvent any potential chilling effect. 28 5 These five exhibits do not include details about port infrastructure. 1 discloses, in response to an inquiry, the number of cases San Ysidro could process a day 2 under certain conditions. 3 Defendants contend that this queue management data can “paint a more fulsome 4 picture of operations at a particular POE” and could thereby enable hostile actors “focus 5 their resources appropriately to exploit perceived vulnerabilities[.]” (Feb. 2020 Howe 6 Decl. ¶ 6.) For reasons stated above, port capacity is a central part of the underlying 7 arguments in this case. Defendants repeatedly rely on the existence of “potentially 8 legitimate factors,” many related to port capacity, to justify metering. This information is 9 central to the public’s understanding of the claims in this case. Therefore, the Court denies 10 the wholesale sealing of these exhibits containing FQMRs. However, in light of 11 Defendants’ concern that such information could be exploited by bad actors (see Feb. 2020 12 Howe Decl. ¶¶ 11–12), the Court will permit Defendants to redact information regarding 13 certain locations, staffing, and infrastructure from Exhibit 37 and the total number of 14 detainees in custody from the remaining exhibits.6 (See Appendix A.) 15 2. Migrant Crisis Action Team Documents 16 (Exs. 30–34 to Mot.; Ex. 12 to Opp’n; Ex. 6 to Reply) 17 Another set of documents that are the subject of Defendants’ sealing motion are 18 related to the Migrant Crisis Action Team (“MCAT”). The MCAT “provides daily reports 19 to CBP leadership on the number of individuals apprehended or found inadmissible along 20 the southwest border, the demographics of those individuals (e.g., family units or 21 unaccompanied minors), as well as information relating to the capacity of various CBP 22 facilities and the immigration system overall.” (Feb. 2020 Howe Decl. ¶ 13.) Defendants 23 allege that because the MCAT reports “provide detailed information” about apprehensions 24 and agency capacity to detain, transfer, or release individuals in their custody, the 25 information could be used to “cripple operations” by overwhelming the capacities of these 26 ports. (Id. at ¶¶ 13–15.) According to Howe, information about resource constraints could 27 6 Defendants also seek to seal the queue management data in Exhibit 5 regarding the number of individuals 28 1 threaten port security because agents are diverted from “their primary mission of patrolling 2 the border” during migrant influxes “to ensure that individuals in custody received 3 appropriate treatment.” (Id. ¶ 16.) Howe attests that bad actors often target ports with high 4 volumes of individuals in custody or those that are thinly staffed to exploit these ports 5 vulnerabilities, and could use MCAT report information to further these efforts. (Id.) 6 Upon review of the content of the specific exhibits in question, the Court finds that 7 targeted redactions, as opposed to sealing them in their entirety, will address the concerns 8 stated in Howe’s declaration. Data regarding the number of arrivals, apprehensions, 9 transfers, and releases during certain periods in past years do not by themselves disclose 10 information regarding the maximum capacity of POEs such that it can be exploited by bad 11 actors. This information reflects CBP’s handling of high-volume migration events, which 12 is relevant to the capacity allegations made by Defendants in this action to justify its 13 metering procedures. The Court will, however, permit certain redactions, specified in 14 Appendix A, for the reasons explained below. 15 a. MCAT Emails (Exs. 30, 34 to Mot.; Ex. 12 to Opp’n) 16 Exhibit 30 is an email from the MCAT team that includes minimal demographic 17 information about arrivals from the so-called “migrant caravan” in 2018. Specifically, the 18 email notes details about members of the caravan apprehended on one day in April 2018. 19 The email does not contain data regarding arrests and holding capacity. The remainder of 20 the email includes links to media articles. The Court finds that this email, while affiliated 21 with the MCAT, does not contain the type of information noted by Howe that would 22 compromise border security. The Motion to Seal this exhibit is thus denied. 23 The majority of Exhibit 34’s email thread contains detailed information about San 24 Ysidro POE infrastructure, including specifics about its detention capacity and staffing. 25 Given that the other potentially relevant statistical information in this document is minimal, 26 the Court grants Defendants’ request to seal Exhibit 34. 27 28 1 Exhibit 12 to the Opposition is also an email thread that discusses solely capacity 2 and related comments by CBP officials. Again, the Court finds that sealing this document 3 in its entirety is appropriate. 4 b. MCAT Daily Reports (Exs. 31, 32 to Mot.) 5 Exhibits 31 and 32 are emails containing MCAT daily reports. Exhibit 31 contains 6 two charts. The first chart reflecting details about capacity and custody warrants sealing, 7 while the second chart containing demographics and raw numbers across the southwest 8 border, without specifying port capacity, does not. The Court will therefore permit 9 redaction of the first chart, but not of the second. The Court will also allow redaction of 10 comments regarding “holding capacities” in the body of the email. Similarly, Exhibit 32 11 primarily contains raw data, but the Court will permit redactions, noted in Appendix A, of 12 the charts with custody and capacity information for each POE. 13 c. MCAT Presentations (Ex. 33 to Mot.; Ex. 6 to Reply) 14 Exhibit 33 to the Motion and Exhibit 6 to the Reply are MCAT PowerPoint 15 presentations from 2017 and 2018 containing much of the same data as Exhibits 31 and 32. 16 The Court therefore similarly denies sealing this document in the entirety and instead will 17 allow redaction of the charts regarding capacity and custody as specified in Appendix A. 18 3. Investigation Reports and Contingency Plans 19 (Exs. 4, 5, 39, 44, 45, 47 to Mot.; Ex. 28 to Opp’n)7 20 Exhibit 5 is a Report of Investigation from the Office of Professional Responsibility 21 in San Diego. Defendants state that it includes references to “an internal OFO muster” that 22 instructs CBP officers about vetting and detecting potential terrorist and public safety 23 threats at the border. (Resp. at 21.) Upon review of the document, it does not appear that 24 the report itself refers to this guidance regarding public safety threats. Rather, the report 25 refers to other musters prohibiting CBP officers from denying asylum applicants entry into 26 27 7 The Court could not find any compelling reason stated in Defendants’ Consolidated Response or Motion 28 for sealing Exhibit 45 to Plaintiffs’ Motion and denies sealing on this basis. 1 the United States, which is again critical to the parties’ dispute. The Court will allow 2 Defendants to redact the muster in question, which is attached to the report. 3 Regarding Exhibits 39 and 44, Defendants state that they “contain specific details 4 about the Laredo Field Office’s Mass Migration Contingency Plan, and specifically the 5 maximum number of individuals that a particular port can process and hold in a crisis.” 6 (Resp. at 20; Howe Decl. ¶ 18.) Defendants allege that the plan, while “no longer in 7 effect,” includes details about capacity, resource allocation, staffing, and other operational 8 details that “are incorporated into existing contingency planning” and therefore pose risks 9 to security if publicly disclosed. (Howe Decl. ¶ 18; see also id. ¶¶ 19–23.) 10 The Court finds compelling reasons to seal both exhibits. Exhibit 44 is the Laredo 11 Contingency Plan itself, comprised of over 100 pages of detailed information about port 12 operations and contingency planning during mass migration events, the vast majority of 13 which is not relevant to the instant action and pertinent only to CBP agents and officials 14 responsible for operations.8 Exhibit 39 is an executive summary of the Contingency Plan. 15 It includes details about metering, queue management, “funneling,” and a media statement 16 about processing capabilities, all of which relate to the underlying claims. Other 17 information contained within the summary concerns the assignment of resources 18 specifically for the 2018 migration event and the availability and assignment of resources 19 during that time. Based on Defendants’ representation that these details are incorporated 20 into existing contingency planning, the Court finds a compelling reason to seal both 21 exhibits. 22 Exhibit 47 is a two-page letter from the United States Office of Special Counsel 23 referring for investigation the disclosures made by the Whistleblower. It summarizes the 24 disclosures from the Whistleblower’s disclosures regarding turnbacks of asylum-seekers, 25 restates the law regarding asylum processing, and includes a preliminary legal conclusion 26 that prompted the investigation. Defendants argue that the disclosure of this document
27 8 Based on this ruling, the Court also grants Defendants’ request to seal paragraph 12 of the Declaration of Rodney H. Harris submitted in support their Opposition to the Motion for Class Certification. (See Ex. 28 1 “may jeopardize an ongoing investigation.” (Resp. at 25.) However, this letter, with 2 redactions, is already available to the public, along with the OIG report attached as Exhibit 3 4 to the Motion. (See Dep’t of Homeland Sec., Office of Inspector General, “Investigation 4 of Alleged Violations of Immigration Laws at the Tecate, California, Port of Entry, by U.S. 5 Customs and Border Protection Personnel (OSC File No. DI-18-5034); OSC Final Letter 6 to President; OSC Referral to DHS, https://www.oig.dhs.gov/reports/2020/investigation- 7 alleged-violations-immigration-laws-tecate-california-port-entry-us-customs-and-border- 8 protection-personnel-osc-file-no-di (last accessed August 5, 2020).)9 Thus, the Court 9 denies any request to seal this exhibit in its entirety, but will allow Defendants to submit 10 the redacted version in its place. 11 F. Contact Information and Other Identifying Information 12 Defendants also request to seal the personal and work email addresses and other 13 contact information of CBP employees to the extent they appear in any of the exhibits. 14 The Court grants this request and permits redactions of CBP employees’ phone numbers 15 and email addresses. (See ECF No. 332 at 7.) The Court further grants Defendants request 16 to seal any identifying information—including names—regarding the Whistleblower, as 17 well as the subject of and witnesses to the investigations reflected in Exhibits 3, 4, and 5 18 to the Class Certification Motion. 19 IV. CONCLUSION AND ORDER 20 Accordingly, the Court GRANTS IN PART and DENIES IN PART the Plaintiffs’ 21 Motion to Seal the Class Certification Papers (ECF No. 388), GRANTS IN PART and 22 DENIES IN PART Defendants’ Motion to Seal the Opposition (ECF No. 404), and 23 DENIES WITHOUT PREJUDICE Plaintiffs’ Motion to Seal the Reply (ECF No. 410). 24 Specifically, the Court GRANTS sealing of the following exhibits: 25 • Ex. 24 to Motion (ECF No. 389-26) 26 • Ex. 29 to Motion (ECF No. 389-31) 27 9 The document itself can be accessed at https://www.oig.dhs.gov/sites/default/files/assets/2020-04/OSC- 28 1 • Exhibit 34 to Motion (ECF No. 389-36) 2 • Exhibit 39 to Motion (ECF No. 389-41) 3 • Exhibit 44 to Motion (ECF No. 389-46) 4 • Exhibit 48 to Motion (ECF No. 389-50) 5 • Exhibit 12 to Opposition (ECF No. 405-7) 6 • Paragraph 12 to Exhibit 28 to Opposition (ECF No. 405-9) 7 The Court GRANTS IN PART and DENIES IN PART the redaction requests for 8 the following exhibits (permitted redactions in Appendix B and Appendix C): 9 • Ex. 2 to Motion (ECF No. 389-4) (Owen Deposition) 10 • Ex. 3 to Motion (ECF No. 389-5) (Whistleblower Deposition) 11 • Ex. 2 to Opposition (ECF No. 405-1) (Owen Deposition) 12 The Court DENIES WITH PREJUDICE sealing of the following documents: 13 • Ex. 4 to Motion (ECF No. 389-6) 14 • Ex. 7 to Mot. (ECF No. 389-9) 15 • Ex. 47 to Mot. (ECF No. 389-49) 16 The Court DENIES WITHOUT PREJUDICE sealing of the following documents 17 (permitted redactions are specified in Appendix A): 18 • Ex. 1 to Motion (ECF No. 389-1) 19 • Ex. 4 to Motion (ECF No. 389-6) 20 • Ex. 5 to Motion (ECF No. 389-7) 21 • Ex. 16 to Motion (ECF No. 389-18) 22 • Ex. 17 to Motion (ECF No. 389-19) 23 • Ex. 19 to Motion (ECF No. 389-21) 24 • Exs. 20–23 to Motion (ECF No. 389-22 through ECF No. 389-25) 25 • Ex. 26 to Motion (ECF No. 389-28) 26 • Exs. 30–33 to Motion (ECF No. 389-32 through ECF No. 389-35) 27 • Exs. 36–37 to Motion (ECF No. 389-38 through ECF No. 389-39) 28 • Exs. 40–43 to Motion (ECF No. 389-42 through ECF No. 389-45) 1 e Ex. 45 to Motion (ECF No. 389-47) 2 e Exs. 49-57 to Motion (ECF No. 389-51 through ECF No. 389-59) 3 e Exs. 59-63 to Motion (ECF No. 389-61 through ECF No. 389-65) 4 e Ex. 96 to Motion (ECF No. 389-98) 5 e Exs. 6-10 to Opposition (ECF No. 405-2 through ECF No. 405-6) 6 e Ex. 26 to Opposition (ECF No. 405-8) 7 e Ex. 30 to Opposition (ECF No. 405-10) 8 e Exs. 2-6 to Reply (ECF No. 412-3 through ECF No. 412-7) 9 If Defendants wish to provide supplemental briefing regarding any exhibits for 10 || which sealing is denied without prejudice, they must do so by August 21, 2020. 11 || Defendants may either provide additional facts to support their request to seal exhibits in 12 || their entirety or propose additional targeted redactions. If Defendants do not file 13 || supplemental briefing by this date, the Court shall instruct the Clerk to docket the exhibits 14 || in accordance with this Order.!° The exhibits will remain lodged under seal in the interim. 15 IT IS SO ORDERED. 16 17 || Dated: August 6, 2020 (yield 4g Ayphaa x 18 United Mtates District Judge 19 20 21 22 23 24 25 26 '0 To the extent Defendants have failed in their Motion to Seal or Response to specifically address exhibits that are currently lodged under seal—and to the extent they do not address these exhibits in any 28 supplemental briefing filed by the deadline—the Court will direct the Clerk to reject the exhibit lodged under seal and publicly file the exhibit on the docket. _92-
Case 3:17-cv-02366-BAS-KSC Document 510 Filed 08/06/20 PageID.34781 Page 24 of 31 APPENDIX A Exhibit List and Corresponding Rulings ECF No. Exhibit No. Brief Bates No. Short Description Ruling DENIED WITHOUT PREJUDICE 389-3 1 Mot. Deposition of Randy Howe (Jan. 9, 2020) Defendants permitted to submit proposed redactions regarding categories specified in Order. GRANTED IN PART, DENIED IN PART 389-4 2 Mot. Deposition of Todd Owen (Dec. 13, 2019) See Appendix B. GRANTED IN PART, DENIED IN PART 389-5 3 Mot. Deposition of Whistleblower (Nov. 21, 2019) See Appendix C. DENIED WITH PREJUDICE 389-6 4 Mot. AOL-DEF-00615546-63 DHS OIG Tecate Report Defendants permitted to submit the redacted version, which is publcly avaiable. DENIED WITHOUT PREJUDICE Redactions of names of subject of and witnesses to investigations permitted. Redactions of the public safety 389-7 5 Mot. AOL-DEF-00014041-77 CBP OPR Report of Investigation muster (AOL-DEF-00014073) also permitted. DENIED WITH PREJUDICE Unsealed on 9th Circuit docket. See Al Otro Lado v. Chad F. Wolf, Case No. 19-56417 (9th Cir. Dec. 5, 389-9 7 Mot. Expert Report of Leutert 2019), Dkt. No. 82. 389-18 16 Mot. AOL-DEF-00328857-58 Hood email (Aug. 2, 2017) DENIED WITHOUT PREJUDICE DENIED WITHOUT PREJUDICE Redactions of the last two sentences under "Executive Summary," describing communications with the 389-19 17 Mot. AOL-DEF-00020023-24 OFO memo regarding Haitian Migration Surge (Oct. 6, 2016) Government of Mexico, permitted. 389-21 19 Mot. AOL-DEF-00029916-18 Aki email re: San Ysidro End of Day AEU Reporting for7/29/16 (July 30, 2016) DENIED WITHOUT PREJUDICE DENIED WITHOUT PREJUDICE 389-22 20 Mot. AOL-DEF-00243099 Owen email (May 25, 2016) Redactions to numbers of individuals asserting credible fear on AOL-DEF-00761339 permitted. DENIED WITHOUT PREJUDICE Redactions to numbers of detainees on site and any capacity-related numbers regarding housing or 389-23 21 Mot. AOL-DEF-00243099-100 Hood email regarding Haitian Processing (May 25, 2016) transportation permitted. 389-24 22 Mot. AOL-DEF-00046740-43 Letter from UNHCR Re: San Ysidro DENIED WITHOUT PREJUDICE 389-25 23 Mot. AOL-DEF-00372629-34 Email re: Haitian Ambassador Request (Aug. 2016) DENIED WITHOUT PREJUDICE 389-26 24 Mot. AOL-DEF-00525116-18 Morgan email re: Haitian Migrants (Oct. 2016) GRANTED 389-28 26 Mot. AOL-DEF-00041757-58 Howe email re: Caravan arrival (April 25, 2018) DENIED WITHOUT PREJUDICE 389-31 29 Mot. AOL-DEF-00041825-36 Gonzales email re: update on Carvan and interaction w Mexico (April 23, 2018) GRANTED 389-32 30 Mot. AOL-DEF-00027054-55 Email re: MCAT (April 28, 2018) DENIED WITHOUT PREJUDICE DENIED WITHOUT PREJUDICE Redaction of chart on AOL-DEF-00060695 and "holding capacities" sentence on AOL-DEF-00060696 389-33 31 Mot. AOL-DEF-00060695-96 MCAT Report (April 27, 2018) permitted. DENIED WITHOUT PREJUDICE 389-34 32 Mot. AOL-DEF-00028127-30 MCAT Report (April 28, 2018) Redaction of charts on AOL-DEF-00028128 permitted. DENIED WITHOUT PREJUDICE 389-35 33 Mot. AOL-DEF-00274287-91 MCAT Presentation (April 29, 2018) Redaction of charts on AOL-DEF-00274289 permitted. 389-36 34 Mot. AOL-DEF-00063246-47 Hood email re: mass migration plan (April 18, 2018) GRANTED. 389-38 36 Mot. AOL-DEF-00060768-69 Longoria email re: Queue managment (July 9, 2018) DENIED WITHOUT PREJUDICE DENIED WITHOUT PREJUDICE Redactions allowed of the columns regarding the location and staffing of the “Queue Management point” 389-39 37 Mot. AOL-DEF-00027740-43 Field Queue Management Report, Laredo Field Office (Oct 25, 2018) (columns 2 and 3) and the column regarding infrastructure (column 8). 389-41 39 Mot. AOL-DEF-00190370-74 LFO Queue Mgmt Contingency Plan (June 8, 2018) GRANTED 389-42 40 Mot. AOL-DEF-0009513-15 Aki email re: San Ysidro End of Day AEU Reporting for 9/3/16 (Sept 4, 2016) DENIED WITHOUT PREJUDICE DENIED WITHOUT PREJUDICE 389-43 41 Mot. AOL-DEF-00517231-33 SYS Queue Mang. Brief (undated) Redactions to tables on AOL-DEF-00517232 and AOL-DEF-00517233 permitted. Case 3:17-cv-02366-BAS-KSC Document 510 Filed 08/06/20 PageID.34782 Page 25 of 31 389-44 42 Mot. AOL-DEF-00041453-54 Howe email re: hearing prep questions asylum cases (Mar 4, 2019) DENIED WITHOUT PREJUDICE 389-45 43 Mot. AOL-DEF-00039597 Campbell email re: LFO Queue Mang. Report for 8/29/18 (August 29, 2018) DENIED WITHOUT PREJUDICE 389-46 44 Mot. AOL-DEF-00058200-310 Laredo Field Office Contingency Plan (August 31, 2017) GRANTED 389-47 45 Mot. AOL-DEF-00205966-74 OIG memo re San Ysidro East Separation of asylum-seeking parents from children (Sept. 12, 2018) DENIED WITHOUT PREJUDICE DENIED WITH PREJUDICE 389-49 47 Mot. AOL-DEF-00205420-22 Office of Special Counsel letter (August 23, 2018). Defendants permitted to submit the redacted version, which is publcly avaiable. 389-50 48 Mot. AOL-DEF-00036343-44 SFO memo titled on top “Migrant Processing at Limit Line-San Diego Field Office) GRANTED 389-51 49 Mot. AOL-DEF-00087160-61 Exhibit 5 from Whistleblower deposition, Field Queue Management Report (Mar 21, 2019). DENIED WITHOUT PREJUDICE 389-52 50 Mot. AOL-DEF-00170598 Exhibit 6 from Whistleblower deposition, Field Queue Management Report (June 16, 2018) DENIED WITHOUT PREJUDICE 389-53 51 Mot. AOL-DEF-00086900-01 Exhibit 7 from Gibbons depo (FQMR may 2, 2019) DENIED WITHOUT PREJUDICE Arias email re: AEU Detainee-Sentiment on Metering, current legislation and SOP at SYS 389-54 52 Mot. AOL-DEF-00205672-74 (July 3, 2018) DENIED WITHOUT PREJUDICE 389-55 53 Mot. AOL-DEF-00205672-74 Arias email metadata DENIED WITHOUT PREJUDICE 389-56 54 Mot. AOL-DEF-00022783-84 Owen email re: appointments (Nov 22, 2016) DENIED WITHOUT PREJUDICE 389-57 55 Mot. AOL-DEF-00566881 Saenz email re: PCS update 1800hrs (April 28, 2018) DENIED WITHOUT PREJUDICE DENIED WITHOUT PREJUDICE 389-58 56 Mot. AOL-DEF-00036004-05 Archambeault email re: family units (Dec 6, 2017) Redactions of FAMU processing and daily processing numbers permitted. 389-59 57 Mot. AOL-DEF-00038633-34 Howe email re: field office queue management (June 18, 2018) DENIED WITHOUT PREJUDICE DENIED WITHOUT PREJUDICE 389-61 59 Mot. AOL-DEF-00028473-75 Owen email re: C1 Migrant Processing Direction (Nov. 12, 2018) Redactions of daily processing and daily crossing numbers permitted. DENIED WITHOUT PREJUDICE 389-62 60 Mot. AOL-DEF-00028469-70 Flores email re:C1 migrant processing direction (Nov. 11, 2018) Redactions of daily processing numbers permitted. DENIED WITHOUT PREJUDICE 389-63 61 Mot. AOL-DEF-00050247-50 Flores email re:C1 migrant processing direction (Nov. 14, 2018) Redactions of daily processing and daily crossing numbers permitted. DENIED WITHOUT PREJUDICE 389-64 62 Mot. AOL-DEF-000602802-03 Marin email re: Queue management (August 6, 2018) Redaction of number regarding capacity on AOL-DEF-00602802 permitted. 389-65 63 Mot. AOL-DEF-00012000-01 MCAT Report (Feb. 25, 2018) DENIED WITHOUT PREJUDICE 389-98 96 Mot. AOL-DEF-00027614-15 FQMR re: Field Queue Management Report (Oct 2, 2018) DENIED WITHOUT PREJUDICE GRANTED IN PART, DENIED IN PART 405-1 2 Opp'n Deposition of Todd Owen (Dec. 13, 2019) See ruling on Ex. 2 to Mot. DENIED WITHOUT PREJUDICE 405-2 6 Opp'n AOL-DEF-00020023-24 OFO memo regarding Haitian Migration Surge (Oct. 6, 2016) See ruling on Ex. 17 to Mot. DENIED WITHOUT PREJUDICE Redaction of third sentence under "Mission" ("Haitian nationals are arriving at an approximate rate…") and 405-3 7 Opp'n AOL-DEF-00285232-33 OFO Incident Management Division memo on the Haitian Migration Surge (Sept. 14, 2016) the number indicating capacity of temporary holding space under "Execution" DENIED WITHOUT PREJUDICE 405-4 8 Opp'n AOL-DEF-0018728 SWB DFO/XD Panel Discussion PowerPoint presentation re: mass migration (Nov. 16, 2016) Redactions to "Capacity Stress Points" on slide 3 and daily processing states on slide 8 permitted. DENIED WITHOUT PREJUDICE Second to last sentence under "Executive Summary" revealing communication from the Government of Mexico may be redacted. Any numbers throughout memo indicating daily average processing; daily rates of metered, transferred, transported, or released migrants; number of beds at certain ports may be redacted. 405-5 9 Opp'n AOL-DEF-00219717-23 OFO Incident Management Division memo (Oct. 13, 2016) All "Strengths and Risks" listed on AOL-DEF-00219721 may be redacted. Case 3:17-cv-02366-BAS-KSC Document 510 Filed 08/06/20 PageID.34783 Page 26 of 31 DENIED WITHOUT PREJUDICE Redactions permitted for: numbers reflecting daily processing amount on slide 4, monthly processing 405-6 10 Opp'n AOL-DEF-00221166 PowerPoint presentation (Oct. 2016) increase on slide 7, all risks listed on slide 8. 405-7 12 Opp'n AOL-DEF-00379492-93 Email chain re: CBP MCAT C-1 notes (Feb. 8, 2019) GRANTED DENIED WITHOUT PREJUDICE 405-8 26 Opp'n January 28, 2020 Deposition of Stephanie Leutert Defendants permitted to submit proposed redactions. See Order § III.A.4. 405-9 28 Opp'n Paragraph 12 of Declaration of Rodney Harris GRANTED 405-10 30 Opp'n AOL-DEF-00235700-03 Email re: "LFO Adverse Traffic" (Oct. 2, 2018) DENIED WITHOUT PREJUDICE DENIED WITHOUT PREJUDICE 412-3 2 Reply January 28, 2020 Deposition of Stephanie Leutert See ruling on Ex. 26 to Opp'n DENIED WITHOUT PREJUDICE Redactions allowed of the columns regarding the location and staffing of the “Queue Management point” 412-4 3 Reply AOL-DEF-00026892-96 July 18, 2018 Field Queue Management Report (columns 2 and 3) and the column regarding infrastructure (column 8) DENIED WITHOUT PREJUDICE Redactions allowed of the columns regarding the location and staffing of the “Queue Management point” 412-5 4 Reply AOL-DEF-00026897-901 July 19, 2018 Field Queue Management Report (columns 2 and 3) and the column regarding infrastructure (column 8) DENIED WITHOUT PREJUDICE Redactions allowed of the columns regarding the location and staffing of the “Queue Management point” 412-6 5 Reply AOL-DEF-00026902-06 July 20, 2018 Field Queue Management Report (columns 2 and 3) and the column regarding infrastructure (column 8) DENIED WITHOUT PREJUDICE 412-7 6 Reply AOL-DEF-00018087 December 1, 2017 MCAT PPT Presentation Redactions of charts regarding capacity and custody on slides 5 and 7 permitted Case 3:17-cv-02366-BAS-KSC Document 510 Filed 08/06/20 PageID.34784 Page 27 of 31 APPENDIX B Deposition ot Todd Owen (Ex. 2 to Mot., ECF No. 389-4; Ex. 2 to Opp'n, ECF No. 405-1) Page Line Rationale Ruling 11 3–10 Personal address of deponent; sensitive, private information of law enforcement personnel. Granted. 28 21–22 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Denied. Meeting not held in the SCIF per testimony. 29 1–5 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Denied. Meeting not held in the SCIF per testimony. 40 5–22 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted as to lines 8–18. 42 2–4 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted as to part of lines 2–4 (“so . . . driven”). 43 7–9 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted as to part of lines 8–9 (“the [time] . . . SCIF”). 45 20–22 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted as to part of line 21 (“at the . . . SCIF”). 46 9–14 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted. 47 5–8 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted as to lines 5–6 and part of line 8 (“at the . . . meeting”). 47 19–22 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted. 48 1–4 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted. 48 17–21 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted. 49 1–4 Detailed information of sensitive meetings in the SCIF could give bad actors the ability to target senior CBP leadership at a specific location and time. Granted. 63 17–22 Reference to confidential metering memo. Denied. The Metering Guidance is publicly available on the docket (ECF Nos. 390-29, 406-2). 84 1–22 Discusses details of confidential queue management report from June 19, 2018. Denied. Does not disclose any data. 85 1–7 Discusses details of confidential queue management report from June 19, 2018. Denied. Does not disclose any data. 88 1–22 Discusses details of confidential queue management report from June 19, 2018. Granted. 89 6–22 Discusses details of confidential queue management report from June 19, 2018. Granted as to lines 13–22. 90 1–22 Discusses details of confidential queue management report from June 19, 2018. Granted as to lines 1–6, 10–22 91 1–5 Discusses details of confidential queue management report from June 19, 2018. Granted. 126 1–22 Reference to email discussing Mexican government officials' communications with CBP Attache. Granted. 127 1–8 Reference to email discussing Mexican government officials' communications with CBP Attache. Granted. 127 13–15 Reference to email discussing Mexican government officials' communications with CBP Attache. Granted. 128 16–22 Reference to email discussing Mexican government officials' communications with CBP Attache. Granted. 129 1–22 Reference to email discussing Mexican government officials' communications with CBP Attache Granted. 130 1–19 Reference to email discussing Mexican government officials' communications with CBP Attache. Granted. 131 15–22 Reference to email discussing Mexican government officials' communications with CBP Attache. Granted. 132 1–8 Reference to email discussing Mexican government officials' communications with CBP Attache. Granted. 132 13–15 Reference to email discussing Mexican government officials' communications with CBP Attache. Denied. 191 17–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. Does not discuss content of memo. 195 9–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. Does not discuss content of memo. 197 12–21 Reference to confidential queue management memo. Denied. No compelling reasons stated. Does not discuss content of memo. 198 13–17 Reference to confidential queue management memo. Denied. No compelling reasons stated. 199 17–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. Does not discuss content of memo. 200 6–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. Does not discuss content of memo. 201 1–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. 202 1–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. 203 1–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. 212 10–15 Reference to confidential queue management memo. Denied. No compelling reasons stated. 215 12–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. Does not discuss content of memo. 216 1–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. Does not discuss content of memo. 217 1–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. 218 1–22 Reference to confidential queue management memo. Denied. No compelling reasons stated. Does not discuss content of memo. 219 1–12 References to communications with a foreign government and confidential queue management memo. Granted as to lines 2–12. 250 4–12 Internal agency deliberations Granted. 250 17–20 Internal agency deliberations Granted. Case 3:17-cv-02366-BAS-KSC Document 510 Filed 08/06/20 PageID.34785 Page 28 of 31 APPENDIX C Deposition of Whistleblower (Ex. 3 to Mot., ECF No. 389-5) Page Line Rationale Ruling 6 15–17 Customs and Border Protection (CBP) employee personal address Granted. 18 1–5 Reveals whistleblower’s identity Granted. 18 11–25 Identifies a CBP employee and potential witness to the whistleblower’s complaint Granted in part. Name may be redacted in lines 13–17. Lines 18-25 can be redacted in their entirety. 19 2 Identifies a CBP employee and potential witness to the whistleblower’s complaint Granted in part. Name may be redacted. 20 19–23 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 22 20–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 23 1–25 Reveals whistleblower’s identity Granted only as to email address. Denied as to remaining testimony. See Order at § III.A.3. 24 1–25 Reveals whistleblower’s identity Granted only as to email address. Denied as to remaining testimony. See Order at § III.A.3. 25 1–25 Reveals whistleblower’s identity (email address) Granted only as to email address. Denied as to remaining testimony. See Order at § III.A.3. 27 5, 17 Reveals whistleblower’s identity (personal and work email address) Granted. 35 15–24 Describes training for how cases are processed (could disclose law enforcement investigative techniques) Granted. 36 5–25 Describes training for how cases are processed (could disclose law enforcement investigative techniques) Granted. 37 1–15 Describes training for how cases are processed (could disclose law enforcement investigative techniques) Granted. 38 1–25 Describes training for how cases are processed (could disclose law enforcement investigative techniques) Granted. 42 23–24 Identifies a CBP employee and potential witness to the whistleblower’s complaint Granted in part. Name may be redacted. 43 4 Identifies a CBP employee and potential witness to the whistleblower’s complaint Granted in part. Name may be redacted. 78 9, 12, 15 Identifies a CBP employee and potential witness to the whistleblower’s complaint Granted in part. Name may be redacted. 90 23–24 Reveals whistleblower’s identity Granted. 91 6–9 Reveals whistleblower’s identity Granted. 93 23–24 Reveals whistleblower’s identity Granted. Discusses details of confidential queue management report from March 21, 2019 which both parties are seeking to seal. (AOL-DEF- 0008760 – 108 5–14; 18–20 AOL- DEF-00087161). See Mot. for TRO Ex. 5 (ECF No. 344-7). Denied. Discusses only metadata (from, date, time, subject), not content. Discusses details of confidential queue management report from March 21, 2019 which both parties are seeking to seal. (AOL-DEF- 0008760 – 109 8–25 AOL- DEF-00087161). See Mot. for TRO Ex. 5 (ECF No. 344-7). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from March 21, 2019 which both parties are seeking to seal. (AOL-DEF- 0008760 – 110 1–7; 20–25 AOL- DEF-00087161). See Mot. for TRO Ex. 5 (ECF No. 344-7). Granted only as to number in line 21. Denied as to the remaining lines. See Order at § III.E.1. Discusses details of confidential queue management report from March 21, 2019 which both parties are seeking to seal. (AOL-DEF- 0008760 – 111 1–25 AOL- DEF-00087161). See Mot. for TRO Ex. 5 (ECF No. 344-7). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from March 21, 2019 which both parties are seeking to seal. (AOL-DEF- 0008760 – 112 8–25 AOL- DEF-00087161). See Mot. for TRO Ex. 5 (ECF No. 344-7). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from March 21, 2019 which both parties are seeking to seal. (AOL-DEF- 0008760 – 113 1–2 AOL-DEF-00087161). See Mot. for TRO Ex. 5 (ECF No. 344-7). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from June 16, 2018 which both parties are seeking to seal (AOL-DEF- 00170598). 115 7–8 See Mot. for TRO Ex. 6 (ECF No. 344-8). Denied. See Order at § III.E.1. 2–11; 20–21; Discusses details of confidential queue management report from June 16, 2018 which both parties are seeking to seal (AOL-DEF- 00170598). 116 23–25 See Mot. for TRO Ex. 6 (ECF No. 344-8). Granted as to lines 20–21. Denied as to the remaining lines. See Order at § III.E.1. 10–11; 14–15; Discusses details of confidential queue management report from June 16, 2018 which both parties are seeking to seal (AOL-DEF-00170598). 117 20–25 See Mot. for TRO Ex. 6 (ECF No. 344-8). Granted as to lines 10–11. Denied as to the remaining lines. See Order at § III.E.1. Discusses details of confidential queue management report from June 16, 2018 which both parties are seeking to seal (AOL-DEF-00170598). 118 1–23 See Mot. for TRO Ex. 6 (ECF No. 344-8). Denied. See Order at § III.E.1. 122 1–25 Reference to confidential metering memo and staffing discussions. Denied. The Metering Guidance is publicly available on the docket (ECF Nos. 390-29, 406-2). 123 1–25 Discussion of port capacity Granted. 124 1–25 Discussion of port security problems Denied. This information is disclosed elsewhere in the transcript, which Defendants do not seek to seal. 125 17–25 Reference to port security Denied. This information is disclosed elsewhere in the transcript, which Defendants do not seek to seal. 129 1–25 Discussion of port capacity issues Denied. Defendants offer no compelling reasons why the issues discussed should be sealed. Case 3:17-cv-02366-BAS-KSC Document 510 Filed 08/06/20 PageID.34786 Page 29 of 31 130 1–16 Reference to port capacity issue Denied. Defendants offer no compelling reasons why the issues discussed should be sealed. Discusses details of confidential queue management report from May 2, 2019 which both parties are seeking to seal (AOL-DEF-00086900 – 134 20–25 AOL- DEF-00086901). See Mot. for TRO Ex. 7 (ECF No. 344-9). Denied. Only discusses metadata (from, date, time, subject), not content. Discusses details of confidential queue management report from May 2, 2019 which both parties are seeking to seal (AOL-DEF- 00086900 – 135 6–25 AOL- DEF-00086901). See Mot. for TRO Ex. 7 (ECF No. 344-9). Granted only as to number in line 12. Denied as to the remaining lines. See Order at § III.E.1. Discusses details of confidential queue management report from May 2, 2019 which both parties are seeking to seal (AOL-DEF- 00086900 – 136 1–18 AOL- DEF-00086901). See Mot. for TRO Ex. 7 (ECF No. 344-9). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from February 5, 2019 which both parties are seeking to seal (AOL-DEF- 00088202 – 137 6–9 AOL- DEF-00088203). See Mot. for TRO Ex. 8 (ECF No. 344-10). Denied. Discusses only metadata (from, date, time, subject), not content. Discusses details of confidential queue management report from February 5, 2019 which both parties are seeking to seal (AOL-DEF- 00088202 – 137 20–25 AOL- DEF-00088203). See Mot. for TRO Ex. 8 (ECF No. 344-10). Granted only as to number in line 21. Denied as to the remaining lines. See Order at § III.E.1. Discusses details of confidential queue management report from February 5, 2019 which both parties are seeking to seal (AOL-DEF- 00088202 – 138 1–7; 11–25 AOL- DEF-00088203). See Mot. for TRO Ex. 8 (ECF No. 344-10). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from February 5, 2019 which both parties are seeking to seal (AOL-DEF- 00088202 – 139 1–11 AOL- DEF-00088203). See Mot. for TRO Ex. 8 (ECF No. 344-10). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from January 10, 2019 which both parties are seeking to seal (AOL-DEF- 00050964 – 140 3–5 AOL- DEF-00050965). See Mot. for TRO Ex. 9 (ECF No. 344-11). Denied. Discusses only metadata (from, date, time, subject), not content. Discusses details of confidential queue management report from January 10, 2019 which both parties are seeking to seal (AOL-DEF- 00050964 – 140 11–25 AOL- DEF-00050965). See Mot. for TRO Ex. 9 (ECF No. 344-11). Granted only as to number in line 18. Denied as to the remaining lines. See Order at § III.E.1. Discusses details of confidential queue management report from January 10, 2019 which both parties are seeking to seal (AOL-DEF- 00050964 – 141 1–13 AOL- DEF-00050965). See Mot. for TRO Ex. 9 (ECF No. 344-11). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from December 26, 2018 which both parties are seeking to seal (AOL-DEF- 00195859 – 142 9–25 AOL- DEF-00195860). See Mot. for TRO Ex. 10 (ECF No. 344-11). Granted only as to number in line 18. Denied as to the remaining lines. See Order at § III.E.1. Discusses details of confidential queue management report from December 26, 2018 which both parties are seeking to seal (AOL-DEF- 00195859 – 143 1–16 AOL- DEF-00195860). See Mot. for TRO Ex. 10 (ECF No. 344-11). Denied. See Order at § III.E.1. 145 9–25 Discusses port capacity issues Denied. Defendants offer no compelling reasons why the issues discussed should be sealed. 146 3–22 Discusses port capacity issues Granted. 147 13–25 Discussion of a muster that could reveal sensitive law enforcement information. Denied. Only discusses metadata (to, date, time, subject), not content. 148 1–25 Discussion of a muster that could reveal sensitive law enforcement information. Denied. See Order at § III.A.3. 149 1–25 Discussion of a muster that could reveal sensitive law enforcement information. Denied. See Order at § III.A.3. 150 1–25 Discussion of a muster that could reveal sensitive law enforcement information Denied. See Order at § III.A.3. 152 1–25 Discussion of a muster that could reveal sensitive law enforcement information Denied. See Order at § III.A.3. 153 1–23 Discussion of a muster and standard operating procedure that could reveal sensitive law enforcement information. Denied. See Order at § III.A.3. 154 2–25 Discussion of a muster that could reveal sensitive law enforcement information. Denied. See Order at § III.A.3. 155 1–25 Port processing issues Denied. See Order at § III.A.3. 156 3–17 Port operational concerns Denied. Discusses motivation behind the policy, not the content or any sensitive law enforcement information. 157 9–25 Discussion of a standard operating procedure that could reveal sensitive law enforcement information. Denied. Only discusses metadata (subject, date), not content. 158 1–25 Quoting from and discussing a standard operating procedure that could reveal sensitive law enforcement information. Denied. Contains same language as Metering Guidance, which is publicly available. Denied. Contains same language as Metering Guidance, which is publicly available. No discussion of sensitive law 160 1–25 Quoting from and discussing a standard operating procedure that could reveal sensitive law enforcement information. enforcement information. 162 18–25 Reveals whistleblower’s identity Granted. 163 1–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 164 1–8 Reveals whistleblower’s identity Granted. 166 5–25 Reveals whistleblower’s identity Granted. 167 1–25 Reveals whistleblower’s identity Granted. 168 7–10 Reveals whistleblower’s identity Granted. 169 7–9; 17–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 170 1–25 Reveals whistleblower’s identity Granted. 171 1–4 Reveals whistleblower’s identity Granted. Case 3:17-cv-02366-BAS-KSC Document 510 Filed 08/06/20 PageID.34787 Page 30 of 31 179 17–19 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 180 13–19 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 181 3–25 Reveals whistleblower’s identity Granted. 182 12–25 Reveals whistleblower’s identity Granted. 183 1–25 Reveals whistleblower’s identity Granted. 184 1–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 185 1–14 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 186 24–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 187 3–8; 16–23 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 188 1–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 189 1–25 Reveals whistleblower’s identity Granted. 190 14–16 Reveals whistleblower’s identity Granted. 191–205 1–25 Reveals whistleblower’s identity Granted. 1–5; 9–14; 206 24–25 Reveals whistleblower’s identity Granted in part. Name to be redacted. 207 1–2; 21–25 Reveals whistleblower’s identity Denied as to lines 1–2. Granted in part as to lines 21–25. Name may be redacted. 209–214 1–25 Reveals whistleblower’s identity Granted. 215 1–16 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 216 4 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 217 21–25 Reveals whistleblower’s identity Granted. 218 2–25 Reveals whistleblower’s identity Granted. 219 8–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 221 2–25 Pertains to confidential muster and references sensitive information contained therein regarding law enforcement processes and procedures Denied. See Order at § III.A.3. 222 1–8 Pertains to confidential muster and references sensitive information contained therein regarding law enforcement processes and procedures Denied. See Order at § III.A.3. 225 6–25 Reveals whistleblower’s identity Granted 226 1–3 Reveals whistleblower’s identity Granted. 227 3–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 228 1–12 Reveals whistleblower’s identity Denied. See Order at § III.C.1. 231 20–25 Reveals whistleblower’s identity Granted in part. Name can be redacted. 232 1–8 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 232 9–13 Discussions of contents of confidential queue management reports Denied. See Order at § III.A.3. 233 3–25 Reveals whistleblower’s identity Granted in part. Name may be redacted. 234 2–4 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 234 16–25 Discussions of contents of confidential queue management reports Denied. See Order at § III.A.3. 238 8–13; 23–25 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 239 1–3 Reveals whistleblower’s identity Denied. See Order at § III.A.3. 240 14–16 Reveals whistleblower’s identity Granted. 242 10–14; 21–24 Reveals whistleblower’s identity Granted. 247 7–9 Reveals whistleblower’s identity Granted. 254 1–7, 16–23 Pertains to muster and references sensitive information contained therein regarding law enforcement processes and procedures Denied. The Metering Guidance is publicly available on the docket (ECF Nos. 390-29, 406-2). Discusses details of confidential queue management report from March 21, 2019 which both parties are seeking to seal. (AOL-DEF- 0008760 – 255 11–25 AOL- DEF-00087161). See Mot. for TRO Ex. 5 (ECF No. 344-7). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from June 16, 2018 which both parties are seeking to seal (AOL-DEF- 00170598). 256 1–3 See Mot. for TRO Ex. 6 (ECF No. 344-8). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from June 16, 2018 which both parties are seeking to seal (AOL-DEF- 00170598). 256 4–25 See Mot. for TRO Ex. 6 (ECF No. 344-8). Granted only as to number in line 9. Denied as to the remaining lines. See Order at § III.3.1. Case 3:17-cv-02366-BAS-KSC Document 510 Filed 08/06/20 PageID.34788 Page 31 of 31 Discusses details of confidential queue management report from June 16, 2018 which both parties are seeking to seal (AOL-DEF- 00170598). 257 1–25 See Mot. for TRO Ex. 6 (ECF No. 344-8). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from June 16, 2018 which both parties are seeking to seal (AOL-DEF- 00086900 – 258 1–18 AOL-DEF-00086901). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from May 2, 2019 which both parties are seeking to seal (AOL-DEF- 00086900 – 258 19–25 AOL-DEF-00086901). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from May 2, 2019 which both parties are seeking to seal (AOL-DEF- 00086900 – 259 1–23 AOL- DEF-00086901). See Mot. for TRO Ex. 7 (ECF No. 344-9). Granted only as to number in line 16. Denied as to the remaining lines. See Order at § III.E.1. Discusses details of confidential queue management report from January 10, 2019 which both parties are seeking to seal (AOL-DEF- 00050964 – 259 24–25 AOL- DEF-00050965). See Mot. for TRO Ex. 9 (ECF No. 344-11). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from January 10, 2019 which both parties are seeking to seal (AOL-DEF- 00050964 – 260 1–12 AOL- DEF-00050965). See Mot. for TRO Ex. 9 (ECF No. 344-11). Granted only as to number in line 4. Denied as to the remaining lines. See Order at § III.E.1. Discusses details of confidential queue management report from December 26, 2018 which both parties are seeking to seal (AOL-DEF-00195859 – 260 13–25 AOL- DEF-00195860). See Mot. for TRO Ex. 10 (ECF No. 344-11). Denied. See Order at § III.E.1. Discusses details of confidential queue management report from December 26, 2018 which both parties are seeking to seal (AOL-DEF- 00195859 – 261 1–2 AOL- DEF-00195860). See Mot. for TRO Ex. 10 (ECF No. 344-11). Denied. See Order at § III.E.1.
Al Otro Lado, Inc. v. McAleenan (Al Otro Lado, Inc. v. McAleenan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.