I. INTRODUCTION

*1 Before the Court is Petitioners' Ex Parte Application to Compel Production of Documents seeking, specifically, documents sufficient to show the layout, schematics, and dimensions of all the parts of the Adelanto Immigration Detention Facility (“Adelanto”) where detainees can be found. (“Ex Parte Appl.,” Dkt. No. 143). Respondents assert that the discovery is protected from disclosure under the law enforcement privilege and because the schematics are trade secrets. (“Opp.,” Dkt. No. 206). Petitioners argue in reply that neither the law enforcement privilege nor trade secret protections apply here, and even if they did, their need for the schematics outweighs Respondents' concerns about the risks of disclosure. (“Reply,” Dkt. No. 212).

For the reasons set forth in this order, the Court finds that the discovery sought is not subject to the law enforcement privilege and is not protected from disclosure as a trade secret. The Court orders Respondents to produce, or to provide Petitioners with meaningful access to, the requested discovery. However, due to the sensitive nature of the information, the Court orders that in addition to being subject to the protective order in place in this case, the requested discovery shall also be subject to an even more stringent protective order. Accordingly, the Court orders the parties to meet and confer and submit a proposed stipulated “enhanced protective order” affording heightened protections to the schematics at issue.

II. BACKGROUND AND DISPUTE

This is a class action filed by Petitioners alleging that their current confinement at Adelanto Immigration Detention Facility (“Adelanto”) violates their Fifth Amendment right to conditions of reasonable safety in custody. Petitioners contend that they are subject to a heightened risk of infection, serious illness, and death from Covid-19 as a result of their continued detention and conditions of confinement. To support these claims, Petitioners have made requests for discovery, including Request for Production (“RFP”) 8, which seeks:

(Ex Parte Appl. at 4).

Respondents object to the request on the grounds that the law enforcement privilege protects the schematics from disclosure. According to Respondents, disclosure of this information would expose the facility's operations and place staff, detainees, and the public at risk. (Opp. at 3). Respondents also contend that the requested information is a protected trade secret. Finally, Respondents argue that no protective order would mitigate their concerns about dissemination of the information to unauthorized parties. (Id. at 8).

III. DISCUSSION

A. Law Enforcement Privilege

*2 Although the Ninth Circuit has not expressly recognized the law enforcement privilege, several courts within this district have acknowledged and applied it. See Roy v. Cnty. of Los Angeles, 2018 WL 914773, at *12 (C.D. Cal. Feb. 7, 2018); U.S. v. Rodriguez-Landa, 2019 WL 653853, at *16 (C.D. Cal. Feb. 13, 2019). In order to assert the privilege, the following requirements must be met: (1) there must be a formal claim of privilege by the head of the department having control over the requested information, (2) assertion of the privilege must be based on actual personal consideration by that official, and (3) the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege. See Landry v. F.D.I.C., 204 F.3d 1125, 1135 (D.C. Cir. 2000).

As an initial matter, it is not clear that the three factors above have been satisfied to show that the requested information is subject to the law enforcement privilege. In support of their assertion of the privilege, Respondents have presented a declaration from Enrique M. Lucero, an employee of the U.S. Department of Homeland Security (DHS), U.S. Immigration and Customs Enforcement (ICE). Mr. Lucero is the Executive Associate Director (EAD) for Enforcement and Removal Operations (ERO). In his declaration, Mr. Lucero asserts that he is “invoking the law enforcement privilege over documents showing the layout, schematics, and dimensions of Adelanto.” (Lucero Decl. ¶ 7). However, Mr. Lucero also states that the “documentation sought is the proprietary and confidential property of GEO group. It is not ICE's documentation to release.” Thus, it is not clear that Respondents have met the first part of the three-part test for the claimed privilege because they appear to call into question the government's “control” over the information.[1] Further, the Court is not convinced by Mr. Lucero's explanation as to why Adelanto's schematics fall within the scope of the privilege, as required by the third factor.

Both parties address the factors set forth in Frankenhauser v. Rizzo, 59 F.R.D. 339 (E.D. Pa. 1973), to argue that the law enforcement privilege either does or does not apply to the schematics Petitioners seeks. In Frankenhauser, the court set forth a ten-factor test to guide the determination of whether the information sought is privileged: (1) the extent to which disclosure will thwart governmental processes by discouraging citizens from giving the government information; (2) the impact upon persons who have given information of having their identities disclosed; (3) the degree to which governmental self evaluation and consequent program improvement will be chilled by disclosure; (4) whether the information sought is factual data or evaluative summary; (5) whether the party seeking discovery is an actual or potential defendant in any criminal proceeding either pending or reasonably likely to follow from the incident in question; (6) whether the police investigation has been completed; (7) whether any interdepartmental disciplinary proceedings have arisen or may arise from the investigation; (8) whether the plaintiff's suit is non-frivolous and brought in good faith; (9) whether the information sought is available through other discovery or from other sources; (10) the importance of the information sought to the plaintiff's case. Id. at 344. The Court concludes that the Frankenhauser factors are either plainly irrelevant in this case or weigh strongly in favor of disclosure.

*3 Application of the Frankenhauser test reveals that half of the factors do not apply here, as they pertain to ongoing investigations. As to the remaining factors, Respondents argue with respect to the third factor that release of the information sought would “chill the government program of immigration detention, as mandated by Congress.” (Opp. at 3). However, the focus of this factor is the effect of disclosure on governmental self-evaluation and improvement of its programs, and it is not clear how disclosure of Adelanto's schematics would chill the government's goals as they relate to Immigration enforcement. The fourth factor, whether the information is factual data or evaluative summary, easily favors disclosure. Schematics and layouts are factual and objective, and are not evaluations or summaries. The ninth factor, whether the information sought is available through other discovery or from other sources, also favors disclosure. Although Respondents argue that this factor weighs in their favor because the information can and has been partly provided in a narrative form by way of declarations and in visual form by the release of photographs of Adelanto, these materials are insufficient to show the layout of Adelanto, its dimensions, and where detainees can be found. Furthermore, Petitioners are entitled to test the accuracy of Respondents' representations with objective data. Finally, the tenth factor, the importance of the information to Petitioners' case, unambiguously favors disclosure.

Accordingly, the Court concludes that the law enforcement privilege does not protect the schematics sought by RFP 8 from disclosure.

B. Trade Secrets

Respondents also argue that the requested discovery is not subject to disclosure because it implicates a trade secret. GEO is a private corporation which provides “design/build services for state, local, and federal governments.” (Opp at 7). The government maintains that the floorplans and layout of facilities designed and operated by GEO are kept secret from the public and competition to provide GEO a “competitive advantage in the marketplace.” (Id.). In support of this claim, Respondents submit the declaration of James Janecka, the Facility Administrator at Adelanto ICE Processing Center. Petitioners argue that Adelanto's schematics and layout are not trade secrets, and even if they are, an enhanced protective order would protect the information from disclosure.

A trade secret is information that (1) derives economic value from not being generally known, and (2) is subject to reasonable measures of secrecy by its owner. See Iskander v. Laugh Factory, Inc., 2020 WL 2114939, at *7 (C.D. Cal. March 17, 2020) (citing Cal. Civ. Code § 3426.1(2)). Information that is public knowledge or that is generally known in an industry cannot be a trade secret. Id.

Federal Rule of Civil Procedure 26(c)(1)(G) provides that a court may issue a protective order prohibiting disclosure of trade secrets or requiring that they be “revealed only in a specified way.” There is no absolute privilege for trade secrets and similar confidential information. DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (citing Federal Open Mkt. Comm. v. Merrill, 443 U.S. 340, 362 (1979); Hartley Pen Co. v. United States Dist. Court, 287 F.2d 324, 325 (9th Cir. 1961)). Nevertheless, as the Advisory Committee Notes to the 1970 Amendment to Rule 26(c) state: “[Although] courts have not given trade secrets automatic and complete immunity against disclosure, [they] have in each case weighed their claim to privacy against the need for disclosure.” The DIRECTV court explains:

*4 DIRECTV, 209 F.R.D. at 459 (citations omitted).

Here, the government has not convincingly demonstrated that schematics and layouts of Adelanto are trade secrets. As Petitioners point out, both guards and detainees have access to the areas within Adelanto. Media organizations and other groups have also been granted tours of the facility. Even if Respondents could demonstrate that the documents at issue are trade secrets, however, Petitioners have shown that the information requested is both relevant and critical to their case. Petitioners' need outweighs Respondents' speculations about potential injury. A carefully crafted protective order restricting disclosure of the schematics only to class counsel will adequately address Respondents' concerns.

Accordingly, the Court concludes that the schematics sought by RFP 8 are not protected from disclosure on the ground that they are trade secrets.

C. Enhanced Protective Order

Petitioners have agreed to amend the protective order in place to provide that disclosure of the requested information is restricted to “attorneys' eyes only.” Due to the nature of the information sought, the Court believes that an enhanced protective order is necessary. The Court agrees that the information sought is sensitive, and should be accessed only by those currently classified as class counsel. Such documents and discovery should not be disclosed to Petitioners or any putative class members. For these reasons, the Court orders Respondents either to produce the requested documents, or to provide Petitioners with meaningful access to said documents. The Court hereby orders the parties to meet and confer and submit a proposed enhanced protective order which addresses Respondents' concerns within two days of the date of this order. The proposed stipulated protective order should address whether redactions to the schematics will be permitted, and if so, to what extent and on what grounds. The proposed order should also set forth any penalties for violation of the order. Should no agreement be reached, the parties shall each submit their own proposed protective order by the same deadline. Production of, or access to, the materials responsive to RFP 8 to Petitioners shall be completed within two days of the Court's entry of an enhanced protective order on the Court's docket.

IV. CONCLUSION

The Court finds that the schematics of Adelanto Immigration Detention Facility requested in RFP 8 are not protected from disclosure pursuant to the law enforcement privilege or as trade secrets. Accordingly, Petitioners' Ex Parte Application to Compel Production of Documents is GRANTED. However, due to the sensitive nature of the information sought, the Court orders Respondents either to produce said documents, or to provide Petitioners with meaningful access to the documents.[2] To protect against any improper dissemination of the materials, the Court orders that the materials shall be subject to an enhanced protective order in addition to the protective order already in place in this action. The Court hereby orders the parties to meet and confer and submit a joint proposed stipulated protective order within two days of the date of this order. If no agreement is reached, the parties are to submit separate proposed protective orders by the same deadline. Production of, or access to, the materials responsive to RFP 8 shall be given to Petitioners within two days of the Court's issuance of an enhanced protective order.