Department of Fair Employment and Housing v. Law School Admission Council Inc

Filing 208

ORDER by Judge Kandis A. Westmore denying 206 joint motion for administrative relief; terminating 207 Discovery Letter Brief (kawlc2S, COURT STAFF) (Filed on 11/7/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEPARTMENT OF FAIR EMPLOYMENT
AND HOUSING,
Plaintiff,

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United States District Court
Northern District of California

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v.
LAW SCHOOL ADMISSION COUNCIL
INC.,

Case No. 12-cv-01830-EMC (KAW)
ORDER DENYING JOINT MOTION
FOR ADMINISTRATIVE RELIEF
WITHOUT PREJUDICE;
TERMINATING JOINT DISCOVERY
LETTER BRIEF
Re: Dkt. Nos. 206, 207

Defendant.
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On October 23, 2014, the parties to the above-captioned case filed (1) a joint motion for

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administrative relief from this Court's page limits for discovery letter briefs and (2) an oversized

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joint discovery letter brief. (Joint Mot., Dkt. No. 206; Joint Ltr., Dkt. No. 207.) In their joint

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letter, the parties dispute (1) whether the Consent Decree entered in this case on May 29, 2014

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triggers the provisions that govern the return and destruction of materials produced in this

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litigation pursuant to the stipulated protective order and (2) whether the United States and the

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Department of Fair Employment and Housing ("DFEH") violated that stipulated protective order

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by transmitting LSAC's confidential information to the Best Practices Panel created pursuant to

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the Consent Decree. (Joint Ltr. at 6.)

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On July 29, 2014, LSAC requested that all Plaintiffs return or destroy all confidential

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information it produced in this matter, as required by paragraph 32 of the stipulated protective

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order entered in this case. (Id. at 4.) That paragraph reads:

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After the expiration of the applicable time period during which any Party may
appeal the final order entered in this Action, or any Party must, by law, maintain
complete files, a Party may request that Confidential Information (including all

copies, abstracts, compilations, summaries, and any other format reproducing any
of the Confidential Information) produced by it be returned or destroyed at the
option of the Receiving Party, which request shall be honored. If the Receiving
Party elects to destroy the information rather than return it, a certificate attesting to
such destruction must be delivered to each Producing Party within 60 days
following such destruction. Nothing in this provision shall limit the rights, if any,
of any Party to object to and seek a ruling of the Court concerning a Party’s
retention of any Confidential Information. This paragraph does not require the
destruction of materials protected by the attorney-client privilege or work product
doctrine. In addition, counsel for each Party may retain one complete copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal
memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
work product, and consultant and expert work product, even if such materials
contain Confidential Information. Any such archival copies that contain or
constitute Confidential Information remain subject to this Protective Order.

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(Stipulated Protective Order ¶ 32, Dkt. No. 123.)
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United States District Court
Northern District of California

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The United States and the DFEH have not complied with the request. (Joint Ltr. at 4.)
They believe that the information is necessary for the implementation of the Consent Decree, and
they have transmitted certain confidential information to the Best Practices Panel. (Id. at 4, 5.)
They also maintain that the disputes raised in the parties' joint letter implicate the interpretation
and implementation of the Consent Decree. (Id. at 1.) The Court agrees.

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The Consent Decree provides that "[t]he Panel members shall . . . be subject to the terms of
the protective order entered in this case . . . ." (Consent Decree ¶ 7(f), Dkt. No. 203.) It also
states:
All Parties agree that any documents or information acquired through performance
of this Consent Decree may be used solely for the purpose of implementing and
enforcing this Consent Decree, and not for any other purpose. The provisions of
the Protective Order (ECF No. 123) remain in effect and applicable to all Parties
throughout the term of this Decree.
(Id. ¶ 32.) This language notwithstanding, LSAC maintains that the continued retention and use of
any confidential information LSAC produced violates the protective order. (Joint Ltr. at 6.) This
position seems to conflict with the above language from the Consent Decree, which could be read
as extending the term of the protective order and allowing disclosure of confidential information to
the Panel. It is the province of the presiding judge, however, to decide whether that reading of the
Consent Decree is appropriate.
Given that the United States and the DFEH plan to file a motion, before the presiding
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judge, regarding the interpretation and implementation of the Consent Decree, the parties' joint

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letter brief is terminated and their joint motion for administrative relief is denied without prejudice

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to re-filing after the presiding judge resolves the issues affecting the Consent Decree. The parties

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may then re-file a joint letter brief, and if necessary, an administrative motion to exceed the

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applicable page limits, only if the presiding judge's ruling does not resolve the disputes raised in

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the instant joint letter.

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IT IS SO ORDERED.
Dated: 11/07/14
______________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

United States District Court
Northern District of California

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