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ACLU v Tarek Ibn Ziyad Academy Prot Order Dispute

ACLU v Tarek Ibn Ziyad Academy Prot Order Dispute

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Case 0:09-cv-00138-DWF-JJG Document 161

Filed 01/04/10 Page 1 of 8

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA AMERICAN CIVIL LIBERTIES UNION OF MINNESOTA, Court File No.: 09-cv-00138 (DWF/JJG)

vs.

Plaintiff, THE TIZA DEFENDANTS’ OBJECTIONS TO PROTECTIVE ORDER [DOC # 160] PURSUANT TO LOCAL RULE 72.2(a)

TAREK IBN ZIYAD ACADEMY, et al. Defendants.

ORAL ARGUMENT REQUESTED
Defendants Tarek ibn Ziyad Academy, Asad Zaman, Asif Rahman, Mahrous Kandil, Mona Elnahrawy, Moira Fahey, and Mohamed Farid (collectively the TiZA Defendants unless otherwise indicated) submit the following Objections to the Protective Order [Doc # 160]: PROCEDURAL BACKGROUND In preparation for the Rule 16 Scheduling Conference of December 10, 2009, the parties submitted a Joint Rule 26 Report, including a proposed Protective Order. The parties stipulated to all provisions of the proposed Protective Order, except as to the scope of the definition of “Confidential” information. At the Rule 16 Conference, the

Court accepted oral argument on this issue, but also directed the parties to simultaneously submit Letter Briefs on December 21, 2009. The TiZA Defendant’s Letter Brief [Doc # 158] and proposed Protective Order (filed with the Court on December 21, 2009, and December 22, 2009, respectively) are hereby incorporated by reference.

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As referenced above, the only item in dispute was the scope of what would be defined as Confidential information – i.e., whether or not all information disclosed by the TiZA Defendants would be designated as Confidential. The TiZA Defendants sought this protection for good cause as result of repeated threats of brutal violence against TiZA and its teachers, students and staff. Despite these threats, the ACLU and Commissioner Seagren disagreed, stipulating only to inadequate protection for TiZA. On December 28, 2009, Magistrate Judge Graham issued the Protective Order [Doc. # 160]. The Order failed to incorporate the TiZA Defendants’ requested

protection, and instead directed each disclosing party to initially determine what disclosed information should be protected as confidential. (See Protective Order ¶ 1.) Further, although stipulated by all parties in recognition of the public parties’ compulsory state law obligations, the Court removed the Minnesota Government Data Practices Act (DPA) as a classification of “Confidential” information. (See Protective Order ¶ 1.) The Court further removed a stipulated provision permitting disclosure of information that is “not public” under the DPA. (See Protective Order ¶ 2.) Pursuant to Local Rule 72.2, the TiZA Defendants submit these timely Objections to the District Court. OBJECTIONS I. Standard of Review “The standard of review applicable to an appeal of a magistrate judge’s order on a non-dispositive issue is extremely deferential.” Dochniak v. Dominium Management Services, Inc., 240 F.R.D. 451, 452 (D. Minn. 2006) (quoting Reko v. Creative
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Promotions, Inc., 70 F.Supp.2d 1005, 1007 (D. Minn. 1999)). A court will reverse such an order only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); D. Minn. LR 72.2(a). “The District Judge may also reconsider any matter sua sponte.” D. Minn. LR 72.2(a). II. “Confidential” Information Should Include All Information Disclosed by the TiZA Defendants for their Safety and Protection From Threats of Violence The TiZA Defendants object to the limited the scope of “Confidential” information in the Protective Order and request that all documents disclosed by the TiZA Defendants be confidential for the safety and protection of TiZA students, families and staff. The Protective Order limits “Confidential” information to include: [A]ny information within the ambit of Rule 26(c), including information that, if publicly disclosed, may cause undue annoyance, embarrassment, or oppression. It may also include information classified as “education records” under the Family Educational Rights and Privacy Act (FERPA); information identifying Islamic Relief donors or Islamic Relief employees who have no connection with TiZA or the Interested Organizations; information relating to Islamic Relief finances; information relating to TiZA students or parents of TiZA students who have no connection with the Interested Organizations; and information relating to ACLU donors, ACLU finances, or ACLU employees. (Protective Order ¶ 1.) The TiZA Defendants submitted overwhelming evidence that all documents they disclose should be classified as “Confidential” as a result of the numerous and repeated threats of violence against TiZA students, families and staff, including death threats, bomb threats, and arson threats. At least one person threatened to start the school on fire and “watch the children roast.” Another warned, “You are being watched.” And yet another threat stated that “we will destroy you, your family and your country.”
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Under the Protective Order, the TiZA Defendants are forced to speculate and guess what information may prompt further threats of violence and further compromise the safety of TiZA students, families and staff.1 Information that does not fall within the ambit of the Protective Order as Confidential, although not evident upon initial review of the document, may be used by other parties in unforeseen manners that create harm and subject TiZA students, families and staff to further threats of violence and hate activity. Whether the disclosure of information may cause harm or prompt further threats of violence may not be obvious on the face of the document, but rather may derive from the unforeseen manner in which it is used – the harm may precipitate from the use of the document, as well as the document itself. The unfortunate reality in this country is a widespread distrust of Muslims, and, in many places, outright discrimination and hate. Here, the TiZA Defendants have provided substantive information through the Affidavit of Asad Zaman, filed in conjunction with the TiZA Defendants’ Letter Brief, showing an increase in hate-based communication and harmful threats received by TiZA following negative media articles and statements by the ACLU to the media involving this lawsuit. Allowing documents to be disclosed without the full protection of confidentiality places the TiZA Defendants and TiZA Community at greater risk of further threats and potential harm.

1

A further complicating factor involves circumstances under which disagreement may arise among the TiZA Defendants as to what information should be designated as confidential as documents are reviewed for joint production by the TiZA Defendants. This factor further supports protecting all documents as confidential.
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The TiZA Defendants’ reasonable request seeks only to recognize the need to protect the TiZA community from vicious harassment and potential violence, and allow TiZA to focus on its educational obligations. The parties will suffer no prejudice as TiZA-disclosed documents may still be used at will in this litigation; the only restriction is the use of such information for purposes other than this case. Further, any party may challenge a confidentiality designation. Lastly, if any person -- party or non-party alike -desires any TiZA data, a simple request under the DPA to TiZA is available outside of this case. The weight of the evidence supports a finding of good cause for designating all documents disclosed by the TiZA Defendants as Confidential. This arrangement will protect the TiZA Defendants from threats of harm, but will not inhibit the parties’ from asserting their rights in this case. The DPA remains available to the public seeking TiZA data. III. Stipulated Provisions of the Protective Order Were Removed Without Notice The TiZA Defendants object to the Court’s removal of certain provisions of the Protective Order which were stipulated to and agreed upon by the parties. Specifically, the parties stipulated that “Confidential” information includes information classified as “not public” under the DPA. (See Stipulation for Disclosure and Protective Order submitted by TiZA Defendant’s on December 22, 2009 ¶1.) The parties further

stipulated that the disclosure of information classified as “not public” under the DPA would be permitted in this matter. (Id. ¶ 2.)

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The Court, sua sponte, removed these stipulated provisions from the Protective Order without affording the parties the opportunity to be heard or brief the issue. By sua sponte removing stipulated provisions without notice, the parties were not afforded the procedural protections afforded by Rule 26(c) of the Federal Rules of Civil Procedure. See In re Remington Arms Co., Inc., 952 F.2d 1029, 1032 (8th Cir. 1991) (district court abused its discretion by ordering discovery of materials claimed to involve trade secret, without affording party resisting discovery opportunity to establish that materials constituted trade secret); Fed. R. Civ. P. 26(c). The parties were not afforded a full and fair opportunity to be heard on the removal of stipulated provisions, and thus, the TiZA Defendants object to the removal of these provisions, absent the opportunity to be heard and/or brief the issue. IV. Application of the Minnesota Government Data Practices Act Removal of the above-noted stipulated provisions ignores the TiZA and Commissioner Alice Seagren’s duties and obligations under the DPA. In the Court’s Memorandum accompanying the Protective Order, the Court expressly refused to adopt the DPA into the Protective Order, stating “[t]he DPA . . . does not confer a privilege under federal law. For this reason, this Court will not adopt the DPA into the protective order.” (Mem. p. 9.) Federal courts, however, “may be as inventive as the necessities of a particular case require in order to achieve the benign purposes of the rule.” 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER AND RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2036 (1994); see also Northbrook Digital, LLC v. Vendio Services, Inc., 625 F.Supp. 2d 728, 757 (D.Minn. 2008) (“A court has broad discretion to
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fashion a protective order, and the general public right of access does not reach pretrial discovery.”) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36-37, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984)). The Protective Order disregards TiZA’s legal duties under the DPA, a violation of which is a misdemeanor under state law. See Minn. Stat. § 13.09 (2009). A violation of the DPA further subjects TiZA employees to suspension or termination. Id. The

effective result of the Protective Order places TiZA and its employees on the horns of a dilemma: either (1) comply with the Protective Order and violate the DPA, or (2) comply with the DPA and violate a federal court order. The parties’ proposed Protective Order eliminated this concern. For this reason, the TiZA Defendants respectfully request this Court recognize the TiZA Defendants’ legal obligations under the DPA, and return the stipulated language to the parties’ proposed Protective Order.

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CONCLUSION The TiZA Defendants respectfully request this Court amend the Protective Order to classify all documents produced by the TiZA Defendants as Confidential. This is a matter of extreme importance for the safety and protection of the TiZA Defendants and TiZA students, families and staff. The TiZA Defendants further request the parties’ stipulated provisions regarding the DPA be returned to the Protective Order, or, alternatively, the parties be afforded the opportunity to brief and be heard on the issue. Respectfully submitted, JOHNSON & CONDON, P.A. January 4, 2010 Dated: ______________________ /s/ Mark R. Azman _________________________________ Shamus P. O’Meara (#221454) Mark R. Azman (#237061) 7401 Metro Boulevard, Suite 600 Minneapolis, MN 55439-3034 (952) 831-6544 ATTORNEYS FOR DEFENDANTS TAREK IBN ZIYAD ACADEMY, ASAD ZAMAN, ASIF RAHMAN, MAHROUS KANDIL, MONA ELNAHRAWY, MOIRA FAHEY, AND MOHAMED FARID
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