Case 1:06-cv-01964-CMA-CBS Document 59 Filed 11/01/07 USDC Colorado Page 1 of 8
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Civil Action No. 06-cv-01964-WYD-CBS
`
`STEVEN HOWARDS,
`
`Plaintiff,
`
`v.
`
`VIRGIL D. “GUS” REICHLE,
`in his individual and official capacity, et al.,
`
`Defendants.
`
`AGREED PROTECTIVE ORDER
`
`WHEREAS, plaintiff Steven Howards alleges that the defendants, Special Agents of the
`
`United States Secret Service, subjected him to an illegal search and seizure, in violation of his
`
`Fourth Amendment rights, and arrested him in retaliation for exercising his freedom of speech,
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`in violation of his First Amendment rights, following an encounter between plaintiff and Vice
`
`President Richard B. Cheney on June 16, 2006;
`
`WHEREAS, the witnesses to that encounter, both parties to this dispute, as well as other
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`third-party witnesses, include persons employed or formerly employed by the Office of the Vice
`
`President, and the United States Secret Service;
`
`WHEREAS, the Office of the Vice President wishes to avoid questioning of any witness
`
`in this proceeding that could intrude upon the confidentiality that is essential to the effective
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`functioning of the Presidency and the Vice Presidency, see Cheney v. U.S. Dist. Court, 542 U.S.
`
`367, 385-89 (2004); and
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`1
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Civil Action No. 06-cv-01964-WYD-CBS
`
`STEVEN HOWARDS,
`
`Plaintiff,
`
`v.
`
`VIRGIL D. “GUS” REICHLE,
`in his individual and official capacity, et al.,
`
`Defendants.
`
`AGREED PROTECTIVE ORDER
`
`WHEREAS, plaintiff Steven Howards alleges that the defendants, Special Agents of the
`
`United States Secret Service, subjected him to an illegal search and seizure, in violation of his
`
`Fourth Amendment rights, and arrested him in retaliation for exercising his freedom of speech,
`
`in violation of his First Amendment rights, following an encounter between plaintiff and Vice
`
`President Richard B. Cheney on June 16, 2006;
`
`WHEREAS, the witnesses to that encounter, both parties to this dispute, as well as other
`
`third-party witnesses, include persons employed or formerly employed by the Office of the Vice
`
`President, and the United States Secret Service;
`
`WHEREAS, the Office of the Vice President wishes to avoid questioning of any witness
`
`in this proceeding that could intrude upon the confidentiality that is essential to the effective
`
`functioning of the Presidency and the Vice Presidency, see Cheney v. U.S. Dist. Court, 542 U.S.
`
`367, 385-89 (2004); and
`
`1
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`
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`Case 1:06-cv-01964-CMA-CBS Document 59 Filed 11/01/07 USDC Colorado Page 2 of 8
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`WHEREAS, the Secret Service wishes to avoid questioning of any witness in this
`
`proceeding regarding sensitive security procedures, protective methodologies, and other matters
`
`that could adversely impact upon the effective performance of the Secret Service’s mission,
`
`under 18 U.S.C. § 3056, to protect and safeguard the President, the Vice President, their families,
`
`and other persons,
`
`IT IS HEREBY STIPULATED, AGREED, and ORDERED THAT:
`
`1.
`
`No witness in this proceeding shall be subject to questioning or shall be
`
`required to testify, whether in deposition, at trial, or otherwise, as to any matter regarding
`
`or tending to reveal the duties and responsibilities of the President, the Vice President,
`
`their assistants, aides, or staffs, or any actions taken by them pursuant to or in furtherance
`
`of said duties and responsibilities, except those duties, responsibilities, or actions
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`proximately connected to the June 16, 2006, incident involving plaintiff and the Vice
`
`President.
`
`2.
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`No witness in this proceeding shall be subject to questioning or shall be
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`required to testify, whether in deposition, at trial, or otherwise, as to any matter regarding
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`or tending to reveal communications by, between, or among the President, the Vice
`
`President, their families, offices, assistants, aides, or staffs, except those communications
`
`proximately connected to the June 16, 2006, encounter between plaintiff and the Vice
`
`President.
`
`3.
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`No witness in this proceeding shall be subject to questioning or shall be
`
`required to testify, whether in deposition, at trial, or otherwise, as to any matter regarding
`
`or tending to reveal any other non-public official or personal information concerning the
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`2
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`Case 1:06-cv-01964-CMA-CBS Document 59 Filed 11/01/07 USDC Colorado Page 3 of 8
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`President, the Vice President, their families, offices, assistants, aides, or staffs, except
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`such information proximately connected to the June 16, 2006, encounter between
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`plaintiff and the Vice President.
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`4.
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` No witness in this proceeding shall testify, whether in deposition, at trial,
`
`or otherwise (including by written declaration), as to any matter regarding or tending to
`
`reveal sensitive security policies, procedures, or measures, or sensitive protective
`
`strategies, methodologies, or techniques, adopted or employed by the Secret Service
`
`pursuant to and in furtherance of its mission to protect and safeguard the President, the
`
`Vice President, their families, and others, under 18 U.S.C. § 3056, except as expressly
`
`provided otherwise by and in accordance with paragraphs 5 and 6, below.
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`5.
`
`Counsel representing the Office of the Vice President, the Secret Service,
`
`or both, may appear at any deposition, trial, or other proceeding in this matter, make
`
`objections as necessary and appropriate to enforce the limitations on questioning and
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`testimony set forth in paragraphs 1-4, above, and issue instructions in accordance with
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`Federal Rule of Civil Procedure 30(d)(1) to preserve said objections until such time as
`
`they are brought to the attention of and their validity is adjudicated by the Court. In lieu
`
`of issuing an instruction pursuant to Rule 30(d)(1), counsel for the Secret Service may
`
`also designate questioning and/or testimony falling within the scope of paragraph 4,
`
`above, as “CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER.” Testimony so
`
`designated may be used or disclosed only in accordance with the limitations prescribed in
`
`paragraph 12, below.
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`3
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`Case 1:06-cv-01964-CMA-CBS Document 59 Filed 11/01/07 USDC Colorado Page 4 of 8
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`6.
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`Any party to this proceeding seeking to elicit testimony falling within the
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`scope of paragraph 4, above, and as to which testimony counsel for the Secret Service
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`has objected, may move for an order compelling the testimony sought. It shall be the
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`burden of the party seeking such an order to demonstrate a substantial need for the
`
`testimony sought that overrides the interests of the Secret Service in maintaining the
`
`confidentiality of sensitive policies, procedures, methodologies, measures, or techniques
`
`adopted or employed by the Secret Service pursuant to and in furtherance of its
`
`protective mission. If the Court issues an order compelling the testimony sought, the
`
`testimony and any transcript thereof shall be designated “CONFIDENTIAL -- SUBJECT
`
`TO PROTECTIVE ORDER,” and may be used or disclosed only in accordance with the
`
`limitations prescribed in paragraph 12, below.
`
`7.
`
`Questions, and responses thereto, at depositions, trial, or other
`
`proceedings shall be deemed permissible under this Protective Order unless objected to
`
`by counsel for a party, for the Office of the Vice President, or for the Secret Service. No
`
`party shall be precluded from deposing, or otherwise presenting the testimony of, any
`
`witness on any subject as a result of this Protective Order unless such testimony is
`
`solicited and objected to, and, if the soliciting party moves to compel the testimony to
`
`which objection was made, such objection is upheld by the Court. Nothing in this order
`
`shall be interpreted as requiring the defendants to limit their testimony, either oral or
`
`written, in anticipation of objection by the Secret Service or Office of the Vice President.
`
`4
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`Case 1:06-cv-01964-CMA-CBS Document 59 Filed 11/01/07 USDC Colorado Page 5 of 8
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`8.
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`Nothing in this Protective Order, nor in any party’s agreement to its terms,
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`shall be construed as a waiver of the attorney-client, deliberative process, or law
`
`enforcement privilege, Executive privilege, or any other applicable privilege, or the right
`
`to make objections or to issue instructions in accordance with Federal Rule of Civil
`
`Procedure 30(d)(1) on the basis of such privilege.
`
`9.
`
`This Protective Order shall not be interpreted to apply to documents
`
`produced in connection with this litigation prior to the time this Order was entered.
`
`10.
`
`Nothing in this Protective Order shall be construed as limiting the right of
`
`any witness to be represented in his personal capacity by counsel at any deposition, trial,
`
`or other proceeding in this matter.
`
`11.
`
`The transcript of all depositions and declarations of the parties or third-
`
`party witnesses in this matter shall initially be designated “CONFIDENTIAL --
`
`SUBJECT TO PROTECTIVE ORDER.” The Office of the Vice President and the Secret
`
`Service shall have until 30 days after receipt of the transcript or declaration by their
`
`counsel to review the transcript or declaration and, except as to testimony designated as
`
`confidential pursuant to the provisions of paragraph 5 or 6, above, to move for a
`
`protective order limiting the use or disclosure of the transcript or declaration, any
`
`testimony contained therein, or any information derived therefrom.
`
`(a)
`
` Pending such review, and the Court’s disposition of any such
`
`motion, the transcript or declaration, all testimony contained therein, and
`
`information derived therefrom (including, but not limited to, all extracts,
`
`summaries, correspondence, memoranda, or other documents quoting from or
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`5
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`Case 1:06-cv-01964-CMA-CBS Document 59 Filed 11/01/07 USDC Colorado Page 6 of 8
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`conveying testimony or information contained in the transcript), and may be used
`
`or disclosed only in accordance with the limitations prescribed in paragraph 12,
`
`below
`
`(b)
`
` If after 30 days following receipt of the transcript or declaration
`
`by their counsel neither the Office of the Vice President nor the Secret Service
`
`has moved for a protective order as provided in this paragraph, then the
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`confidential designation of the transcript or declaration; the testimony contained
`
`therein; the information derived therefrom; any documents quoting from or
`
`conveying testimony or information contained in the transcript; and any limitation
`
`on the use or disclosure thereof imposed by this paragraph 11, shall be lifted.
`
`(c)
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`Notwithstanding any other provision of this paragraph 11,
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`testimony designated confidential under the provisions of paragraph 5 or 6,
`
`above, shall remain so designated and remain subject to the limitations on the use
`
`or disclosure thereof imposed by paragraph 5 or 6.
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`12.
`
`The testimony designated “CONFIDENTIAL -- SUBJECT TO
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`PROTECTIVE ORDER” pursuant to paragraph 5, 6, or 11, above, and information
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`derived therefrom (including, but not limited to, all extracts, summaries, correspondence,
`
`memoranda, or other documents quoting from or conveying testimony or information
`
`contained in the transcript), may be used and disclosed only for the purpose of preparing
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`for and conducting discovery, pre-trial, trial, and post-trial proceedings in this action, and
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`for no other purpose, and, if filed with the Court in connection with a motion or
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`otherwise, shall be filed under seal. Any document quoting from or conveying testimony
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`6
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`Case 1:06-cv-01964-CMA-CBS Document 59 Filed 11/01/07 USDC Colorado Page 7 of 8
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`or information contained in the transcript or declaration shall likewise be designated
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`“CONFIDENTIAL -- SUBJECT TO PROTECTIVE ORDER,” and shall not be used or
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`disclosed except in accordance with the provisions of this paragraph.
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`13.
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`Nothing in this Protective Order shall be construed as relieving a party
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`seeking testimony in this matter from a current or former employee of the Secret Service,
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`concerning any information acquired by such employee as part of the performance of his
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`or her official duties or by virtue of his or her official status, of any obligation under Title
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`6, Code of Federal Regulations, Chapter I, Part 5, Subpart C, to submit a written request
`
`for such testimony to the Secret Service Office of Chief Counsel. Nor shall anything in
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`this Protective Order be construed as permitting a current or former employee of the
`
`Secret Service to testify concerning such information in contravention of the foregoing
`
`regulations without authorization of the Office of Chief Counsel. Nor shall anything in
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`this Protective Order be construed as providing for judicial review of, or relief from, a
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`decision of the Chief Counsel in response to such a request, or refusing such
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`authorization, that is not otherwise provided for by law.
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`DATED at Denver, Colorado, this 1st day of November, 2007.
`
`BY THE COURT:
`
`s/Craig B. Shaffer
`Craig B. Shaffer
`United States Magistrate Judge
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`7
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`Case 1:06-cv-01964-CMA-CBS Document 59 Filed 11/01/07 USDC Colorado Page 8 of 8
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`Seen and agreed to:
`
` s/ James J. Gilligan
` s/ David Lane
`____
` James J. Gilligan
`David Lane
`KILLMER, LANE & NEWMAN, LLP
` Assistant Director
`1543 Champa Street, Suite 400
` United States Department of Justice
`Denver, Colorado 80202
` Civil Division, Federal Programs Branch
`(303) 571-1000
` P.O. Box 883
`dlane@killmerlane.com Washington, D.C. 20044
` (202) 514-3358
`Counsel for Plaintiff Steven Howards james.gilligan@usdoj.gov
`
` Counsel for Third Parties Office of the
` Vice President and the United States
` Secret Service
`
`____
`
`s/ Sean R. Gallagher
`Sean R. Gallagher
`HOGAN & HARTSON, LLP
`1200 Seventeenth Street, Suite 1500
`Denver, Colorado 80202
`(303) 454-2415
`srgallagher@hhlaw.com
`
`Counsel for Defendants Virgil D. “Gus” Reichle,
`Kristopher Mischloney, and Dan Doyle in their individual capacities
`
`____
`
` s/ Richard Westfall
`Richard Westfall
`Hale Friesen, LLP
`1430 Wynkoop Street
`Denver, Colorado, 80202
`rwestfall@halefriesen.com
`
`Counsel for Defendants Daniel McLaughlin and
`Adam Daniels in their individual capacities
`
`8
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