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8/14/2019 ACLU v Tarek Ibn Ziyad Academy Prot Order Dispute
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
AMERICAN CIVIL LIBERTIES UNION
OF MINNESOTA,
Plaintiff,
vs.
TAREK IBN ZIYAD ACADEMY, et al.
Defendants.
Court File No.: 09-cv-00138 (DWF/JJG)
THE TIZADEFENDANTSOBJECTIONS TO
PROTECTIVE ORDER[DOC #160]
PURSUANT TO LOCAL RULE 72.2(a)
ORALARGUMENTREQUESTED
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 Defendants 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 informationi.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 judges 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 toTiZA 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.
1A 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 Courts 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 Defendants 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 Seagrens duties and obligations under the DPA. In the Courts
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 TiZAs 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 /s/ Mark R. Azman
Dated: ______________________ _________________________________
Shamus P. OMeara (#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 FARID815896.doc
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