KELVIN HERNANDEZ ROMAN, et al., Petitioners, v. CHAD F. WOLF, Acting Secretary, U.S. Department of Homeland Security, et al., Respondents Case No. EDCV 20-0768 TJH (PVC) United States District Court, C.D. California Filed July 27, 2020 Counsel Ahilan T. Arulanantham, Michael Bryan Kaufman, Jessica Karp Bansal, Michelle Y. Cho, Eva Lucia Bitran, Liga Chia, ACLU Foundation of Southern California, Jessie Alice Cammack, Charles A. Berdahl, Pro Hac Vice, Samir Deger-Sen, Pro Hac Vice, William M. Friedman, Pro Hac Vice, Kyle A. Virgien, Roger J. Chin, Amanda Barnett, Latham and Watkins LLP, Los Angeles, CA, for Russell Casio Bernardino, Adelanto, CA, pro se. Silvano Avina Salas, Adelanto, CA, pro se. Park Kwang Hyen, Adelanto, CA, pro se. Anna Dichter, Christopher Bates, Jeffrey S. Robins, Sarah S. Wilson, Hans Chen, Victor M. Mercado-Santana, Hayden Windrow, Julian Kurz, OIL-DCS Trial Attorney, Department of Justice Office of Immigration Litigation - District Court Section, Washington, DC, Daniel A. Beck, Hillary Morgan Burrelle, Assistant 2241-194 US Attorney LA-CV, AUSA - Office of US Attorney, Los Angeles, CA, for Respondents. Castillo, Pedro V., United States Magistrate Judge ORDER GRANTING PETITIONERS' EX PARTE APPLICATION FOR RECONSIDERATION AND ORDERING PRODUCTION OF DOCUMENTS (Dkt. No. 231) *1 Pending before the Court is Petitioners' Ex Parte Application for Reconsideration of Order Granting Ex Parte Application to Compel Production of Adelanto Schematics, (“Reconsideration Request,”), including the declaration of Charles A. Berdahl (“Berdahl Decl.”) and accompanying exhibits. (Dkt. No. 231). Respondents filed an Opposition on July 24, 2020 (“Reconsideration Opp.”). (Dkt. No. 234). For the reasons stated below, the Ex Parte Application for Reconsideration is GRANTED, and Respondents are hereby ordered to produce the documents within three days of today's date. On July 8, 2020, Petitioners moved the Court for an order compelling Respondents to produce documents responsive to Request for Production 8, which sought: Documents sufficient to show the layout, schematics, and dimensions of all the parts of Adelanto where Detainees can be found. This includes, but is not limited to, housing units, showers, dining and recreation areas, medical and court hold rooms, law libraries, and any other areas where Detainees might be found in Adelanto West, Adelanto East, and the Special Management Unit. (“Production Request,” Dkt. No. 143 at 4).[1] Respondents opposed production on the grounds that the Adelanto schematics were protected from disclosure pursuant to the law enforcement privilege and because they were trade secrets belonging to GEO Group, a private contractor that provides “design/build” services for governmental agencies. (Dkt. No. 206 at 2-8). The Court concluded that neither the law enforcement privilege nor trade secret protections apply to the Adelanto schematics and on July 16, 2020, granted Petitioners' Production Request. (“Order,” Dkt. No. 222). However, while the Court's Order required Respondents to provide Petitioners with “meaningful access” to the Adelanto schematics, it did not require Respondents to serve Petitioners with paper copies. Instead, the Court ruled: The Court finds that the schematics of Adelanto Immigration Detention Facility requested in RFP 8 are not protected from disclosure pursuant to the law enforcement privilege or as trade secrets. Accordingly, Petitioners' Ex Parte Application to Compel Production of Documents is GRANTED. However, due to the sensitive nature of the information sought, the Court orders Respondents either to produce said documents, or to provide Petitioners with meaningful access to the documents.[FN] To protect against any improper dissemination of the materials, the Court orders that the materials shall be subject to an enhanced protective order in addition to the protective order already in place in this action. The Court hereby orders the parties to meet and confer and submit a joint proposed stipulated protective order within two days of the date of this order. If no agreement is reached, the parties are to submit separate proposed protective orders by the same deadline. Production of, or access to, the materials responsive to RFP 8 shall be given to Petitioners within two days of the Court's issuance of an enhanced protective order. *2 [FN] Federal Rule of Civil Procedure 34(a) provides in relevant part that a party may serve on any other party a request “to produce and permit the requesting party or its representative to inspect, copy, test, or sample ... any designated documents ... or designated tangible things.” The Court concludes that in the specific circumstances of the instant request, Respondents may, at their election, satisfy their obligation under Rule 34 by allowing Petitioners to inspect the requested schematics at a reasonable location for a reasonable period of time without allowing Petitioners to remove the schematics from the premises. In such an instance, Petitioners would be allowed to take notes during the inspection, which may include making a hand-drawn sketch or sketches of relevant portions of the schematics, but would not be permitted to take a photograph or make a photocopy of the schematics. (Order at 9-10). Pursuant to the Court's Order, on July 20, 2020, the parties lodged their respective proposals for an addendum to the Protective Order to govern production of the Adelanto schematics. (Dkt. No. 228). On July 22, 2020, the Court issued an Addendum to Stipulated Protective Order. (“Addendum,” Dkt. No. 229). The instant Reconsideration Request followed on July 23, 2020. In the Reconsideration Request, Petitioners contend that Respondents “are unwilling to produce the schematics under any circumstances, and their proposed procedure for an inspection of the schematics would deprive [Petitioners] of meaningful access to the materials.” (Reconsideration Request at 1). Accordingly, Petitioners seek an order requiring Respondents either to produce the Adelanto schematics in hard copy, or “to make the Adelanto schematics available to Petitioners' counsel and experts for a virtual inspection with appropriate safeguards.” (Id.). Petitioners contend that reconsideration is warranted here because briefing on the Production Request focused on whether the law enforcement privilege or trade secret protections applied to the Adelanto schematics, and did not address the possibility of a physical inspection. (Id.). Furthermore, Petitioners maintain that the logistical difficulties of a physical inspection and the conditions that Respondents insist on imposing for a physical inspection are “new facts” that justify modification of the Court's Order. (Id. at 1-2). Petitioners assert that a physical inspection is impractical because their counsel and experts are geographically dispersed, as they reside in the Los Angeles; San Francisco Bay; New York; Washington, D.C.; and Princeton, New Jersey areas. (Berdahl Decl. ¶ 8). According to Petitioners, Respondents have agreed to a physical inspection only at a Marriott Hotel near the Adelanto facility, (Berdahl Decl. ¶ 4), and would agree to make the schematics available in downtown Los Angeles only if Petitioners “agree to stop seeking the copying and production of the schematics.” (Id., Exh. 2). Petitioners maintain that travel to either location would subject counsel and experts, some of whom are in high-risk demographics, to a substantial risk of infection during the COVID-19 pandemic, and would prohibit counsel from reviewing the schematics in conjunction with the experts. (Reconsideration Request at 2-3). Furthermore, Petitioners argue that schematics are the best evidence of the dimensions of Adelanto, and are critical both to their ability to depose ICE and Geo Group witnesses, and to Judge Hatter's ability to base his eventual factual findings on objective evidence. (Id. at 3). Finally, Petitioners ask in the alternative that Respondents be required to make the schematics available for virtual review via computer. (Id. at 4). Respondents argue that Petitioners' Reconsideration Request should be denied as it violates the Court's rules regarding discovery disputes, does not satisfy the requirements for reconsideration, and proposes unfeasible production alternatives. (Reconsideration Opp. at 1-2). Respondents contend that the Reconsideration Request is procedurally improper because the Court's rules require that the parties first meet and confer before filing a discovery motion, and likewise that they seek a telephone conference with the Court in advance to settle any discovery disputes. (Id. at 2-3). Also, Respondents assert that there are no grounds for reconsideration, as there are no new facts raised by Petitioners; nor is there a manifest failure to consider material facts, or a difference in law or fact from that presented to the Court that the party seeking reconsideration could not have known in the exercise of reasonable diligence. (Id. at 3-6) (citing Local Rule 7-18). Instead, Respondents argue, Petitioners merely raise concerns about the location where the inspection of the schematics will take place, and COVID-19 concerns about the vulnerability of some of Petitioners' counsel and experts, all of which were facts known to Petitioners before they filed the Production Request. Finally, Respondents argue that Petitioners' alternative proposal that production be conducted by way of a virtual inspection or videoconference is unfeasible. (Id. at 6-7). Respondents maintain that a virtual inspection would pose an unacceptable risk that an unauthorized person might view the schematics. Furthermore, viewing the schematics in a virtual setting or by videotape may subject them to being photocopied, videotaped, or transmitted over the internet. Respondents state that they have offered to make a physical inspection either near Adelanto, or in downtown Los Angeles, where it may be more convenient for counsel and their experts. Finally, Respondents state that an “in person inspection with few participants wearing appropriate personal protective equipment in a newly sanitized conference room” would address any concerns that counsel or experts who may be in the high-risk category. (Id. at 7). *3 Federal Rule of Civil Procedure 60(b) provides for reconsideration of a final judgment or order only upon a showing of: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct of the adverse party; (4) a void judgment; (5) a satisfied, released or discharged judgment, or (6) “extraordinary circumstances” that would justify relief. Fed. R. Civ. P. 60(b). Furthermore, pursuant to Local Rule 7-18, a motion for reconsideration may be made only on the grounds of: (a) a material difference in fact or law from that presented to the Court before such decision that in the exercise of reasonable diligence could not have been known to the party moving for reconsideration at the time of such decision, or (b) the emergence of new material facts or a change of law occurring after the time of such decision, or (c) a manifest showing of a failure to consider material facts presented to the Court before such decision. C.D. Cal. L.R. 7-18; see also Daghlian v. DeVry University, Inc., 582 F. Supp. 2d 1231, 1250-51 (C.D. Cal. 2007) (considering C.D. Cal. L.R. 7-18 in resolution of Rule 60(b) motion). As a preliminary matter, Respondents' procedural arguments are unpersuasive. Paragraph 1(b) of the undersigned's web page regarding discovery motions expressly states that the procedures that Respondents claim Petitioners should have followed “do not apply to ex parte applications.” Instead, Paragraph 5, which governs ex parte applications, requires strict compliance with Local Rules 7-19 and 7-19.1. Those rules require a moving party to notify counsel for “all other parties” of the “date and substance of the proposed ex parte application” and to advise the Court if any counsel opposes the application. Petitioners have complied with that requirement. (See Berdahl Decl. ¶ 10). A party seeking ex parte relief must show irreparable prejudice if the dispute is heard as a regularly noticed motion and that the moving party is not at fault for creating the crisis requiring that the matter be heard on an expedited basis. Mission Power Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 492 (C.D. Cal. 1995). Petitioners have made that showing. Respondents' contentions that Petitioners have not made an adequate showing of “new facts” to warrant reconsideration similarly fail. The Production Request, and Respondents' opposition to the Production Request, plainly contemplated that the Court would either order production of a hard copy of the schematics or deny the request entirely. During the hearing on the Production Request, neither the parties, nor the Court, raised the possibility of an in-person inspection of the Adelanto schematics. Accordingly, Petitioners' evidence concerning the difficulties that an in-person inspection would pose under the specific conditions upon which Respondents are insisting are indeed “new facts,” and satisfy the standard for the Court to revisit its prior order. Having considered both parties' positions on the merits of the Reconsideration Request, the Court GRANTS the Ex Parte application and modifies its prior order as follows. While the Court is not convinced that all of Petitioners' counsel must, or are even entitled to, view the schematics,[2] the national dispersal of Petitioners' counsel and experts is a new material fact that warrants serious consideration and accommodation. (See Berdahl Decl. ¶ 8). Furthermore, Respondents' initial insistence that the inspection take place only at a hotel near the Adelanto Detention Center was unreasonably restrictive, and even Respondents' present willingness to arrange for an inspection in downtown Los Angeles, conditioned on the “inartful” condition that Petitioners abandon any effort to obtain a hard copy of the schematics, (Reconsideration Opp. at 4 n.2), is insufficient to address Petitioners' geographic and safety concerns. Additionally, on further reflection, the Court finds that Petitioners' ability to depose government witnesses and Judge Hatter's ability to reach findings of fact may be unduly impeded unless copies of the Adelanto schematics -- the best and perhaps only objective evidence of the facility's dimensions -- are made available for review. Respondents have rejected Petitioners' alternative proposal of making the schematics available for virtual inspection, which may have addressed at least some of these concerns. Petitioners' need for the schematics is compelling, and Respondents do not appear willing to provide access that is “meaningful” in a manner that would address Petitioners' needs. Accordingly, production of a hard copy of the Adelanto schematics is warranted here, under the restrictions set forth below. *4 The Court acknowledges the legitimacy of Respondents' concerns about the sensitivity of the information in the Adelanto schematics. Petitioners are cautioned that any breach of the protections applying to the Adelanto schematics may subject counsel to severe sanctions.[3] However, the Court believes that in the particular circumstances of his case, Petitioners' need for the Adelanto schematics outweighs Respondents' apprehensions about dissemination of the information. Respondents are hereby ORDERED to provide Petitioners with a hard copy of the Adelanto schematics within three days of the date of this Order, unless either party appeals this order to Judge Hatter by that deadline, in which case the order will be stayed pending a decision by Judge Hatter. Petitioners must STRICTLY adhere to the protections applying to the schematics in the Addendum to the Protective Order.[4] Furthermore, to limit the risk of unauthorized dissemination and to ensure heightened control of the documents, Petitioners may make no more than four copies of the schematics for circulation collectively to designated class counsel and their experts. Designated class counsel shall identify one attorney with responsibility for maintaining and tracking the location of each copy of the schematics at all times (the “Tracking Attorney”). The Tracking Attorney shall keep a log of the circulation of the original and each copy of the Adelanto schematics, including the name of the recipient, which copy of the schematics was sent or delivered to a recipient, the date of the transmission to the recipient, the date the copy was returned to Tracking Attorney, and the method of transmission between the Tracking Attorney and the recipient. Any dissemination of a copy of the Adelanto schematics that is not accomplished by personal delivery shall be by certified overnight mail and require a signature by the recipient or the recipient's agent. Copies of the schematics for inclusion in motions filed in this Court are not subject to this numerical limitation. Additionally, Petitioners may also make, but not retain, two additional copies of the schematics for each deposition in which the witness will be asked about the schematics for use by the witness and the witness's counsel during the deposition. IT IS SO ORDERED. Footnotes [1] For ease of reference, the Court will refer to Petitioners' Ex Parte Application to Compel Production of Documents filed on July 8, 2020 and docketed at Dkt. No. 143 as the “Production Request,” and the instant Ex Parte Application for Reconsideration of Order Granting Ex Parte Application to Compel Production filed on July 23, 2020 and docketed at Dkt. No. 231 as the “Reconsideration Request.” The Court will refer to the documents responsive to RFP No. 8 as the “Adelanto schematics.” [2] The Court reminds the parties that pursuant to the Addendum to the Stipulated Protective Order, access to the Adelanto schematics is restricted to designated class counsel. (Dkt. No. 229 at 4, ¶ 4.1(a)). [3] The Addendum to the Stipulated Protective Oder provides that any violation of the order may be punished by contempt proceedings and/or monetary sanctions. (Dkt. No. 229, at ¶7). [4] This includes completing and signing the “Acknowledgment and Agreement to Be Bound,” attached as Exhibit A to the Addendum to the Stipulated Protective Order. (See Dkt. No. 229 at 8).