1 GVaICrrTetItM J. CHOinMesP (ESNBSNA 1T9I8O8N92 L) AW GROUP, APC 2 287 S. Robertson Blvd., # 302 Beverly Hills, CA 90211 3 Tel: 424-250-8254 Fax: 310-444-7141 4 victimscomplaw@gmail.com
5 Attorney for Plaintiff
6 PHILLIP A. TALBERT 7 United States Attorney JOSEPH B. FRUEH 8 Assistant United States Attorney 501 I Street, Suite 10-100 9 Sacramento, CA 95814 E-mail: joseph.frueh@usdoj.gov 10 Telephone: (916) 554-2702 Facsimile: (916) 554-2900 11 Attorneys for Defendants 12
14 IN THE UNITED STATES DISTRICT COURT
15 EASTERN DISTRICT OF CALIFORNIA
17 TRACI DARNELL, No. 2:21-cv-01557-TLN-DB
18 Plaintiff, STIPULATION AND PRIVACY ACT PROTECTIVE ORDER 19 v.
20 LOUIS DEJOY, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE; and 21 DOES 1 through 5, inclusive,
22 Defendants.
23 24 25 26 27 28 1 STIPULATION AND PROPOSED PRIVACY ACT PROTECTIVE ORDER 2 IT IS HEREBY STIPULATED, by and between the parties and subject to Court approval, that 3 the parties to the above-captioned action may produce, receive, and use documents otherwise restricted 4 by the Privacy Act, 5 U.S.C. § 552a, subject to the terms and conditions of the following Order issued 5 pursuant to 5 U.S.C. § 552a(b)(11).1 6 I. PURPOSE OF PRIVACY ACT PROTECTIVE ORDER 7 A. Plaintiff Traci Darnell worked as a city carrier for the United States Postal Service in 8 Sacramento, California, from approximately December 2018 to April 2021. In her operative Complaint, 9 she asserts two claims against the United States Postal Service under Title VII of the Civil Rights Act of 10 1964 (as amended) and the Rehabilitation Act of 1973 (as amended). Specifically, Plaintiff alleges she 11 experienced a sexually hostile work environment in violation of Title VII, and that the Postal Service 12 failed to reasonably accommodate her mental disability in violation of the Rehabilitation Act. 13 B. Defendant possesses three documents relevant to the parties’ claims and defenses that 14 likely are subject to the Privacy Act, 5 U.S.C. § 552a. These documents are personnel records 15 concerning certain discipline- and training-related information for Postal employees named in the 16 Complaint. 17 C. The parties submit that the need for disclosure of the foregoing documents outweighs any 18 potential harm to nonparties, provided that appropriate safeguards are imposed and the disclosed 19 documents and information are used solely in this litigation. 20 D. This Order permits Defendant to produce the specified documents, but does not require 21 production. 22 23
24 1 The court-order exception in the Privacy Act, 5 U.S.C. § 522a(b)(11), confirms that the statute “cannot be used to block the normal course of court proceedings, including court-ordered discovery.” 25 Clavir v. United States, 84 F.R.D. 612, 614–15 (S.D.N.Y. 1979). A court may permit the disclosure of records under § 552a(b)(11) where they meet the relevance standard of Rule 26 of the Federal Rules of 26 Civil Procedure. See Wallman v. Tower Air, Inc., 189 F.R.D. 566, 569 (N.D. Cal. 1999) (finding “no 27 basis” to infer that “actual need” is a prerequisite to permit disclosure under § 522(a)(b)(11), or that the Privacy Act “replaces the usual discovery standards of the FRCP . . . with a different and higher 28 standard.” (quoting Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987)). 1 E. This Order does not affect the rights of any party to object to discovery pursuant to the 2 Federal Rules of Civil Procedure or other authority, nor is it intended to alter any burden of proof 3 regarding the assertion of a privilege. 4 F. This Order is not a ruling on whether a particular document or category of information is 5 discoverable or admissible. 6 G. This Order does not prohibit a party from seeking further protection by a Court-approved 7 stipulation or applying to the Court directly. 8 H. This Order does not waive the right of Defendant to use, disclose, or disseminate 9 documents or information in accordance with the Privacy Act or other statutes, regulations, or policies. 10 I. The Department of Justice, the United States Attorney’s Office, and the United States 11 Postal Service shall bear no responsibility or liability for any disclosure made pursuant to this Order. 12 II. DISCLOSURE AND USE OF PRIVACY ACT MATERIAL 13 1. Documents and information produced pursuant to this Order shall be designated by 14 Defendant as Privacy Act Material and shall be used solely for the purpose of litigating the above- 15 captioned action, including any appeals, and shall not be disclosed outside of discovery and court 16 proceedings. The parties shall comply with the provisions of Federal Rule of Civil Procedure 5.2 and 17 Local Rules 140 and 141 with respect to redactions of documents containing Privacy Act Material and 18 any requests to file documents containing Privacy Act Material under seal. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 2. Within 60 days after the final termination of this action, including appeals, Plaintiff’s 2 counsel shall destroy or return to Defendant’s counsel all originals and any copies of Privacy Act 3 Material. Notwithstanding this provision, Plaintiff’s counsel is entitled to retain an archival copy of all 4 pleadings; motion papers; trial, deposition, and hearing transcripts; legal memoranda; correspondence; 5 deposition and trial exhibits; expert reports; attorney work product; and consultant and expert work 6 product, even if such materials contain Privacy Act Material. Any such archival copies that contain or 7 constitute Privacy Act Material remain subject to this Order. 8 9 Dated: March 23, 2022 Respectfully submitted, 10 VICTIM COMPENSATION LAW GROUP, APC
11 By: /s/ Garrett J. Hines (authorized 3/23/2022) GARRETT J. HINES 12 Attorney for Plaintiff 13
14 PHILLIP A. TALBERT 15 United States Attorney
16 By: /s/ Joseph B. Frueh JOSEPH B. FRUEH 17 Assistant United States Attorney
18 Attorneys for Defendant 19 20 ORDER 21 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 22 IT IS FURTHER ORDERED THAT: 23 1. Requests to seal documents shall be made by motion before the same judge who will decide 24 the matter related to that request to seal. 25 2. The designation of documents (including transcripts of testimony) as confidential pursuant to 26 this order does not automatically entitle the parties to file such a document with the court under seal. 27 Parties are advised that any request to seal documents in this district is governed by Local Rule 141. In 28 brief, Local Rule 141 provides that documents may only be sealed by a written order of the court after a 1 specific request to seal has been made. L.R. 141(a). However, a mere request to seal is not enough 2 under the local rules. In particular, Local Rule 141(b) requires that “[t]he ‘Request to Seal Documents’ 3 shall set forth the statutory or other authority for sealing, the requested duration, the identity, by name or 4 category, of persons to be permitted access to the document, and all relevant information.” L.R. 141(b). 5 3.
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1 GVaICrrTetItM J. CHOinMesP (ESNBSNA 1T9I8O8N92 L) AW GROUP, APC 2 287 S. Robertson Blvd., # 302 Beverly Hills, CA 90211 3 Tel: 424-250-8254 Fax: 310-444-7141 4 victimscomplaw@gmail.com
5 Attorney for Plaintiff
6 PHILLIP A. TALBERT 7 United States Attorney JOSEPH B. FRUEH 8 Assistant United States Attorney 501 I Street, Suite 10-100 9 Sacramento, CA 95814 E-mail: joseph.frueh@usdoj.gov 10 Telephone: (916) 554-2702 Facsimile: (916) 554-2900 11 Attorneys for Defendants 12
14 IN THE UNITED STATES DISTRICT COURT
15 EASTERN DISTRICT OF CALIFORNIA
17 TRACI DARNELL, No. 2:21-cv-01557-TLN-DB
18 Plaintiff, STIPULATION AND PRIVACY ACT PROTECTIVE ORDER 19 v.
20 LOUIS DEJOY, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE; and 21 DOES 1 through 5, inclusive,
22 Defendants.
23 24 25 26 27 28 1 STIPULATION AND PROPOSED PRIVACY ACT PROTECTIVE ORDER 2 IT IS HEREBY STIPULATED, by and between the parties and subject to Court approval, that 3 the parties to the above-captioned action may produce, receive, and use documents otherwise restricted 4 by the Privacy Act, 5 U.S.C. § 552a, subject to the terms and conditions of the following Order issued 5 pursuant to 5 U.S.C. § 552a(b)(11).1 6 I. PURPOSE OF PRIVACY ACT PROTECTIVE ORDER 7 A. Plaintiff Traci Darnell worked as a city carrier for the United States Postal Service in 8 Sacramento, California, from approximately December 2018 to April 2021. In her operative Complaint, 9 she asserts two claims against the United States Postal Service under Title VII of the Civil Rights Act of 10 1964 (as amended) and the Rehabilitation Act of 1973 (as amended). Specifically, Plaintiff alleges she 11 experienced a sexually hostile work environment in violation of Title VII, and that the Postal Service 12 failed to reasonably accommodate her mental disability in violation of the Rehabilitation Act. 13 B. Defendant possesses three documents relevant to the parties’ claims and defenses that 14 likely are subject to the Privacy Act, 5 U.S.C. § 552a. These documents are personnel records 15 concerning certain discipline- and training-related information for Postal employees named in the 16 Complaint. 17 C. The parties submit that the need for disclosure of the foregoing documents outweighs any 18 potential harm to nonparties, provided that appropriate safeguards are imposed and the disclosed 19 documents and information are used solely in this litigation. 20 D. This Order permits Defendant to produce the specified documents, but does not require 21 production. 22 23
24 1 The court-order exception in the Privacy Act, 5 U.S.C. § 522a(b)(11), confirms that the statute “cannot be used to block the normal course of court proceedings, including court-ordered discovery.” 25 Clavir v. United States, 84 F.R.D. 612, 614–15 (S.D.N.Y. 1979). A court may permit the disclosure of records under § 552a(b)(11) where they meet the relevance standard of Rule 26 of the Federal Rules of 26 Civil Procedure. See Wallman v. Tower Air, Inc., 189 F.R.D. 566, 569 (N.D. Cal. 1999) (finding “no 27 basis” to infer that “actual need” is a prerequisite to permit disclosure under § 522(a)(b)(11), or that the Privacy Act “replaces the usual discovery standards of the FRCP . . . with a different and higher 28 standard.” (quoting Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987)). 1 E. This Order does not affect the rights of any party to object to discovery pursuant to the 2 Federal Rules of Civil Procedure or other authority, nor is it intended to alter any burden of proof 3 regarding the assertion of a privilege. 4 F. This Order is not a ruling on whether a particular document or category of information is 5 discoverable or admissible. 6 G. This Order does not prohibit a party from seeking further protection by a Court-approved 7 stipulation or applying to the Court directly. 8 H. This Order does not waive the right of Defendant to use, disclose, or disseminate 9 documents or information in accordance with the Privacy Act or other statutes, regulations, or policies. 10 I. The Department of Justice, the United States Attorney’s Office, and the United States 11 Postal Service shall bear no responsibility or liability for any disclosure made pursuant to this Order. 12 II. DISCLOSURE AND USE OF PRIVACY ACT MATERIAL 13 1. Documents and information produced pursuant to this Order shall be designated by 14 Defendant as Privacy Act Material and shall be used solely for the purpose of litigating the above- 15 captioned action, including any appeals, and shall not be disclosed outside of discovery and court 16 proceedings. The parties shall comply with the provisions of Federal Rule of Civil Procedure 5.2 and 17 Local Rules 140 and 141 with respect to redactions of documents containing Privacy Act Material and 18 any requests to file documents containing Privacy Act Material under seal. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 2. Within 60 days after the final termination of this action, including appeals, Plaintiff’s 2 counsel shall destroy or return to Defendant’s counsel all originals and any copies of Privacy Act 3 Material. Notwithstanding this provision, Plaintiff’s counsel is entitled to retain an archival copy of all 4 pleadings; motion papers; trial, deposition, and hearing transcripts; legal memoranda; correspondence; 5 deposition and trial exhibits; expert reports; attorney work product; and consultant and expert work 6 product, even if such materials contain Privacy Act Material. Any such archival copies that contain or 7 constitute Privacy Act Material remain subject to this Order. 8 9 Dated: March 23, 2022 Respectfully submitted, 10 VICTIM COMPENSATION LAW GROUP, APC
11 By: /s/ Garrett J. Hines (authorized 3/23/2022) GARRETT J. HINES 12 Attorney for Plaintiff 13
14 PHILLIP A. TALBERT 15 United States Attorney
16 By: /s/ Joseph B. Frueh JOSEPH B. FRUEH 17 Assistant United States Attorney
18 Attorneys for Defendant 19 20 ORDER 21 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 22 IT IS FURTHER ORDERED THAT: 23 1. Requests to seal documents shall be made by motion before the same judge who will decide 24 the matter related to that request to seal. 25 2. The designation of documents (including transcripts of testimony) as confidential pursuant to 26 this order does not automatically entitle the parties to file such a document with the court under seal. 27 Parties are advised that any request to seal documents in this district is governed by Local Rule 141. In 28 brief, Local Rule 141 provides that documents may only be sealed by a written order of the court after a 1 specific request to seal has been made. L.R. 141(a). However, a mere request to seal is not enough 2 under the local rules. In particular, Local Rule 141(b) requires that “[t]he ‘Request to Seal Documents’ 3 shall set forth the statutory or other authority for sealing, the requested duration, the identity, by name or 4 category, of persons to be permitted access to the document, and all relevant information.” L.R. 141(b). 5 3. A request to seal material must normally meet the high threshold of showing that “compelling 6 reasons” support secrecy; however, where the material is, at most, “tangentially related” to the merits of 7 a case, the request to seal may be granted on a showing of “good cause.” Ctr. for Auto Safety v. 8 Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and County of 9 Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 10 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of certain 11 documents, at any court hearing or trial – such determinations will only be made by the court at the 12 hearing or trial, or upon an appropriate motion. 13 5. With respect to motions regarding any disputes concerning this protective order which the 14 parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 251. 15 Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis or on 16 shortened time. 17 6. The parties may not modify the terms of this Protective Order without the court’s approval. If 18 the parties agree to a potential modification, they shall submit a stipulation and proposed order for the 19 court’s consideration. 20 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement of the 21 terms of this Protective Order after the action is terminated. 22 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is hereby 23 DISAPPROVED. 24 DATED: March 24, 2022 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 26 27 28