Nkansah v. United States of America
- Kimba Wood
- 1:18-cv-10230
- U.S. District Court · Southern District of New York
- 8
In Nkansah v. United States, Judge Wood entered a Privacy Act and protective order governing disclosure and use of sensitive discovery information.
Felix Nkansah, the United States, the unnamed agents, their attorneys and support staff, authorized witnesses and experts, court personnel, and others who receive information covered by the order. The order also protects information concerning third parties and government employees.
What happened
In Nkansah v. United States of America, Felix Nkansah brought claims against the United States and unnamed immigration-enforcement agents, including claims under the Federal Tort Claims Act and a Supreme Court decision allowing certain claims against federal officials. The parties jointly requested an order addressing records that might contain information about third parties and government employees.
The court entered the order after finding good cause. It authorizes the Government to disclose certain information despite the Privacy Act, while preserving other legal privileges and restrictions. It also limits how protected information may be labeled, used, disclosed, filed publicly, challenged, and handled after the case ends. The order does not decide whether any particular information is discoverable, relevant, or admissible, and it does not waive any party’s objections or defenses.
Judge Kimba Wood entered the order on February 8, 2021. The order governs the parties, their lawyers, authorized witnesses and experts, court personnel, and others who receive protected information.
The detailed version
- Nkansah v. United States of America · No. 1:18-cv-10230
- Kimba Wood
- Feb. 8, 2021
Background
Felix Nkansah sued the United States and John Does #1–36, identified in the order as United States Immigration and Customs Enforcement agents in their individual and official capacities. The order states that Nkansah asserted claims under the Federal Tort Claims Act and claims against unnamed individuals under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. The parties jointly requested a Privacy Act order and protective order under Federal Rule of Civil Procedure 26(c).
The parties sought procedures for discovery because some records might contain information about third parties and employees protected by the Privacy Act of 1974. The court found good cause for entering the order.
Order
The court entered a Privacy Act and protective order. Under 5 U.S.C. § 552a(b)(11), the order authorizes the Government to produce information that otherwise could be withheld under the Privacy Act when disclosure is permitted by a court order. The order does not require production of information barred by other privileges, statutes, regulations, or authorities.
The order defines “Protected Information” broadly. It includes confidential, proprietary, personal, privileged law-enforcement, Privacy Act, and health-information records; personally identifying numbers and government-issued identifiers; sensitive or nonpublic information; law-enforcement investigative files and techniques; and records concerning law-enforcement activities, internal investigations, training, operational guidelines, or third parties who are not participating in the lawsuit.
Protected Information must generally be marked “Subject to Protective Order.” A party challenging a designation must give written notice, and unresolved disputes must be handled under the applicable federal rules, local rules, court practices, and other court orders. Protected Information may be used only for this action and generally may be disclosed only to listed “Qualified Persons,” including the parties and their attorneys and staff, certain deposition witnesses, experts and consultants, court reporters, the court and its personnel, jurors, and others authorized by the court.
The order also restricts deposition questioning and public filing of Protected Information. A party intending to file such material publicly must give the producing party at least ten days’ advance written notice, allowing an application to file the material under seal. Certain legally required disclosures to people outside the list require advance notice, an opportunity to object, delivery of the order, and a signed acknowledgment of compliance.
Within thirty days after final disposition of the action, including appeals, Protected Information must be returned or destroyed, with written certification of destruction when applicable. The order provides procedures for correcting an accidental failure to mark material as protected. It also states that the order does not decide discoverability, relevance, or admissibility; waive defenses, objections, privileges, or other protections; or prevent applications for additional protection or disclosure. It permits disclosures to governmental authorities for criminal-law enforcement or civil enforcement and regulatory proceedings.
Disposition
Judge Kimba Wood entered the stipulated order on February 8, 2021. The opinion is a discovery and confidentiality order, not a decision on the merits of Nkansah’s claims or on whether particular documents must ultimately be produced.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.