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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

DIANN H. ANGUS,

Plaintiff

v.

ALEJANDRO MAYORKAS, 

DIRECTOR OF THE 

DEPARTMENT OF 

HOMELAND SECURITY,

Defendant

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 Case No. 1:20-CV-00242-LY-SH

CONFIDENTIALITY AND PROTECTIVE ORDER

Before the Court is Defendant’s Motion for Entry of Confidentiality and Protective Order, filed 

August 26, 2021 (Dkt. 48). On July 7, 2020, the District Court referred all pending and future 

motions in this case to the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1), 

Federal Rule of Civil Procedure 72, and Rule 1 of Appendix C of the Local Rules of the United 

States District Court for the Western District of Texas (“Local Rules”). Dkt. 15. 

The Court may grant the motion as unopposed because Plaintiff did not timely file a response.

Local Rule CV-7(d)(2). Based on Defendant’s submission and the record, the Court finds that 

disclosure and discovery activity in this action are likely to involve production of confidential, 

sensitive, or private information for which special protection from public disclosure and from use 

for any purpose other than prosecuting this litigation would be warranted. Accordingly, a 

protective order for such information is justified in this matter: 

• to expedite the flow of information;

• to facilitate the prompt resolution of disputes over confidentiality of 

discovery materials;

• to adequately protect information the parties are entitled to keep 

confidential;

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• to ensure that the parties are permitted reasonably necessary uses of such 

material in preparation for and in the conduct of trial;

• to address the handling of confidential materials at the end of the 

litigation; and

• to serve the ends of justice. 

This Protective Order does not confer blanket protections on all disclosures of responses to

discovery, and the protection it affords extends only to the limited information or items that are

entitled under the applicable legal principles to be treated as confidential.

After careful consideration, it is ORDERED that Defendant’s Motion for Entry of 

Confidentiality and Protective Order (Dkt. 48) is GRANTED, and the Court ORDERS the 

following:

1. Confidential Information

“Confidential information” means any information of any type, kind, or character that is

designated as “Confidential” by any of the supplying or receiving persons, whether it be a

document, information contained in a document, information revealed during discovery, or

otherwise.

2. Qualified Persons

“Qualified Persons” means:

a. the party, if a natural person;

b. if the party is an entity, such officers or employees of the party who are actively involved 

in the prosecution or defense of this case who, by their receipt of Confidential information, 

are bound by the terms of this Protective Order;

c. retained counsel for the parties in this litigation and their respective staff;

d. this Court and its staff and any other tribunal, special master, or dispute resolution officer 

duly appointed or assigned in connection with this litigation;

e. actual or potential independent experts or consultants (and their administrative or clerical 

staff) engaged in connection with this litigation (which shall not include the current 

employees, officers, members, or agents of parties or affiliates of parties) who, by their 

receipt of Confidential information are bound by the terms of this Protective Order;

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f. jury and trial consultants and their staff and mock jurors who, by their receipt of 

Confidential information are bound by the terms of this Protective Order;

g. litigation vendors, court reporters, video camera operators, translators, and other litigation 

support personnel;

h. any person who was an author, addressee, or intended or authorized recipient of the 

Confidential information and who agrees to keep the information confidential, provided 

that such persons may see and use the Confidential information but not retain a copy; and

i. such other person or persons as this Court may designate after notice and an opportunity to 

be heard.

3. Designation Criteria

a. A party shall designate as “Confidential” only such information that the party in good faith

believes in fact is confidential. Information that is generally available to the public, such as public

filings, catalogues, advertising materials, and the like, shall not be designated as Confidential.

Information and documents that may be designated as Confidential information include, but

are not limited to, trade secrets, confidential or proprietary financial information, operational data,

business plans, and competitive analyses, personnel files, personal information that is protected by

law, and other sensitive information that, if not restricted as set forth in this order, may subject the

producing or disclosing person to competitive or financial injury or potential legal liability to third

parties.

Correspondence and other communications between the parties or with nonparties may be

designated as Confidential information if the communication was made with the understanding or

reasonable expectation that the information would not become generally available to the public.

b. Confidential information shall not include information that either:

i. is in the public domain at the time of disclosure, as evidenced by a written

document;

ii. becomes part of the public domain through no fault of the recipient, as evidenced 

by a written document;

iii. the receiving party can show by written document was in its rightful and lawful

possession at the time of disclosure; or

iv. lawfully comes into the recipient’s possession subsequent to the time of disclosure 

from another source without restriction as to disclosure, provided such third party 

has the right to make the disclosure to the receiving party.

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4. Use of Confidential Information

All Confidential information provided by any party or nonparty in the course of this litigation 

shall be used solely for the purpose of preparation, trial, and appeal of this litigation and for no 

other purpose, and shall not be disclosed except in accordance with the terms of this Order.

5. Marking of Documents

Documents provided in this litigation may be designated by the producing person or by any

party as Confidential information by marking each page of the documents so designated with a

stamp indicating that the information is “Confidential.” The designation should be made in a

fashion or form that is conspicuous yet allows the Confidential information to remain legible. In

lieu of marking the original of a document, if the original is not provided, the designating party

may mark the copies that are provided. Originals shall be preserved for inspection.

6. Disclosure at Depositions

Information disclosed at (a) the deposition of a party or one of its present or former officers,

directors, employees, agents, consultants, representatives, or independent experts retained by

counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be designated by

any party as Confidential information by indicating on the record at the deposition that the

testimony is “Confidential.”

Any party also may designate information disclosed at a deposition as Confidential information 

by notifying all parties in writing not later than 30 days of receipt of the transcript of the specific 

pages and lines of the transcript that should be treated as Confidential information. All deposition 

transcripts shall be treated as Confidential information for a period of 30 days after initial receipt 

of the transcript.

To the extent possible, the court reporter shall segregate into separate transcripts information 

designated as Confidential information with blank, consecutively numbered pages being provided 

in a nondesignated main transcript. The separate transcript containing Confidential information 

shall have page numbers that correspond to the blank pages in the main transcript.

Counsel for a party or a nonparty witness shall have the right to exclude from depositions any 

person who is not authorized to receive Confidential information pursuant to this Protective Order, 

but such right of exclusion shall be applicable only during periods of examination or testimony 

during which Confidential information is being used or discussed.

7. Disclosure to Qualified Persons

Confidential information shall not be disclosed or made available by the receiving party to

persons other than Qualified Persons except as necessary to comply with applicable law or the

valid order of a court of competent jurisdiction. But if a disclosure is compelled by law or court

order, the receiving party will notify the producing party as promptly as practicable (if at all

possible, before making such disclosure). The receiving party shall seek a protective order or

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confidential treatment of such information or cooperate with the producing party to protect the

information.

8. Unintentional Disclosures

Documents unintentionally produced without designation as Confidential information later

may be designated and shall be treated as Confidential information from the date written notice of

the designation is provided to the receiving party.

If a receiving party learns of any unauthorized disclosure of Confidential information, the party 

shall immediately upon learning of such disclosure inform the producing party of all pertinent facts 

relating to such disclosure and shall make all reasonable efforts to prevent disclosure by each

unauthorized person who received such information.

9. Documents Produced for Inspection Prior to Designation

In the event documents are produced for inspection prior to designation, the documents shall 

be treated as Confidential information during inspection. At the time of copying for the receiving 

parties, Confidential information shall be marked prominently “Confidential” by the producing 

party.

10. Consent to Disclosure and Use in Examination

Nothing in this order shall prevent disclosure beyond the terms of this order if each party

designating the information as Confidential information consents to such disclosure or if the Court,

after notice to all affected parties and nonparties, orders such disclosure. Nor shall anything in this

order prevent any counsel of record from utilizing Confidential information in the examination or

cross-examination of any person who is indicated on the document as being an author, source, or

recipient of the Confidential information, irrespective of which party produced such information.

11. Challenging the Designation of Confidential Information

A party shall not be obligated to challenge the propriety of a designation Confidential 

information at the time such designation is made, and a failure to do so shall not preclude a

subsequent challenge to the designation. In the event that any party to this litigation disagrees at

any stage of these proceedings with the designation of any information as Confidential 

information, the parties shall first try to resolve the dispute in good faith on an informal basis, such 

as by production of redacted copies. If the dispute cannot be resolved, the objecting party may 

invoke this Protective Order by objecting in writing to the party who designated the document or 

information as Confidential information. The designating party shall then have 14 days to move 

the Court for an order preserving the designated status of the disputed information. The disputed 

information shall remain Confidential information unless the court orders otherwise. Failure to 

move for an order shall constitute a termination of the status of such item as Confidential 

information.

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12. Challenging Release of Confidential Information to Qualified Persons

In the event that any party in good faith believes that a particular Qualified Person or the 

disclosure of particular Confidential information to such person should be precluded, the objecting

party shall give written notice to the opposing party and the parties shall first try to resolve the 

dispute in good faith on an informal basis. If the dispute cannot be resolved, the objecting party 

shall have 21 days from the date of the written notice to move the Court for an order denying the 

disputed person (a) status as a Qualified Person, or (b) access to particular Confidential 

information. The objecting party shall demonstrate that disclosure to the disputed person would 

expose the objecting party to a substantial risk of harm. Upon the timely filing of such a motion, 

no disclosure of Confidential information shall be made to the disputed person unless the Court 

enters an order preserving the designation.

13. Manner of Use in Proceedings

In the event a party wishes to use any Confidential information in affidavits, declarations,

briefs, memoranda of law, or other papers filed in this litigation, the party shall do one of the

following: (1) with the consent of the producing party, file only a redacted copy of the information;

(2) where appropriate (e.g., in connection with discovery and evidentiary motions) provide the

information solely for in camera review; or (3) file such information under seal with the Court

consistent with the sealing requirements of the Court.

Nothing in this Order shall limit the parties’ rights or ability to offer evidence at a hearing or

trial. The manner of using any Confidential information at a hearing or trial and the status of

Confidential information resulting from any such use will be determined by the Court.

14. Filing Under Seal

The Clerk of this Court is directed to maintain under seal all documents, transcripts of 

deposition testimony, answers to interrogatories, admissions, and other papers filed under seal in 

this litigation that have been designated, in whole or in part, as Confidential information by any 

party to this litigation consistent with the sealing requirements of the Court.

15. Return of Documents

Not later than 120 days after conclusion of this litigation and any appeal related to it, any

Confidential information, all reproductions of such information, and any notes, summaries, or

descriptions of such information in the possession of any of the persons specified in paragraph 2

shall be returned to the producing party or destroyed, except as this Court may otherwise order or 

to the extent such information has been used as evidence at any trial or hearing. Notwithstanding 

this obligation to return or destroy information, counsel may retain attorney work product, 

including document indices, so long as that work product does not duplicate verbatim substantial 

portions of the text of any Confidential information.

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16. Ongoing Obligations

Insofar as the provisions of this Protective Order, or any other protective orders entered in this 

litigation, restrict the communication and use of the information protected by it, such provisions 

shall continue to be binding after the conclusion of this litigation, except that (a) there shall be no 

restriction on documents that are used as exhibits in open court unless such exhibits were filed 

under seal, and (b) a party may seek the written permission of the producing party or order of the 

Court with respect to dissolution or modification of this, or any other, protective order.

17. Duty to Ensure Compliance

Any party providing Confidential information to a Qualified Person shall have the duty to

reasonably ensure that such person observes the terms of this Protective Order and shall be

responsible upon breach of such duty for the failure of such person to observe the terms of this

Protective Order.

18. Waiver

Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor 

work-product protection is waived by disclosure connected with this litigation.

19. Modification and Exceptions

The parties may, by stipulation, provide for exceptions to this order and any party may seek

an order of this Court modifying this Protective Order.

SIGNED on September 17, 2021.

SUSAN HIGHTOWER

UNITED STATES MAGISTRATE JUDGE

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