S. v. Pueblo School District 60 et al

Filing 41

PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 8/21/2009. (mehcd)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 09-cv-00858-CMA-MEH EBONIE S., a child, by her mother and next friend, MARY S. Plaintiff, v. PUEBLO SCHOOL DISTRICT 60, MARILYN GOLDEN, Teacher, in her official and individual capacities, GARY TRUJILLO, Principal, in his official and individual capacities, MARY JO BOLLINGER, Executive Director of Exceptions Student services, in her official and individual capacities, LOUISE RIVAS, paraprofessional, in her official and individual capacities, SHARRON WELLS, paraprofessional, in her official and individual capacities, ISABEL SANCHEZ, paraprofessional, in her official and individual capacities, AUDRA MARTINEZ, paraprofessional, in her official and individual capacities, and KRISTEN POTTER, paraprofessional, in her official and individual capacities Defendants. ______________________________________________________________________________ PROTECTIVE ORDER ______________________________________________________________________________ THE COURT, having received and reviewed the parties' Stipulated Motion for Protective Order, hereby grants the Stipulated Motion for Protective Order as follows: 1. In this action, at least one of the Parties has sought and/or may seek Confidential

Information (as defined in paragraph 2 below). The Parties also anticipate seeking additional Confidential Information during discovery and that there will be questioning concerning Confidential Information in the course of depositions. The Parties assert the disclosure of such information outside the scope of this litigation could result in significant injury to one or more of the Parties' business or privacy interests. The Parties have entered into this Stipulation and request

the Court enter the within Protective Order for the purpose of preventing the disclosure and use of Confidential Information except as set forth herein: 2. "Confidential Information" means any document, file, portions of files, transcribed

testimony, or response to a discovery request, including any extract, abstract, chart, summary, note, or copy made therefrom--not made available to the public--and designated by one of the Parties in the manner provided in paragraph 3 below as containing Confidential Information, including but not limited to: a. b. the Parties and/or their representatives' personnel files; witness statements and documents containing notations about students other than Ebonie S.; c. d. e. 3. all medical, counseling, and mental health records related to Ebonie S. the educational records of Ebonie S. from Pueblo School District 60; and the records of Ebonie S. from Soaring Eagles Autism Center.

Where Confidential Information is produced, provided or otherwise disclosed by a

Party in response to any discovery request, it will be designated in the following manner: a. By imprinting the word "Confidential" on the first page or cover of any document produced; b. By imprinting the word "Confidential" next to or above any response to a discovery request; and c. With respect to transcribed testimony, by giving written notice to opposing counsel designating such portions as "Confidential" no later than ten calendar days after receipt of the transcribed testimony.

Any information designated by a party as CONFIDENTIAL must be reviewed by a lawyer who will certify that the designation as CONFIDENTIAL is based on a good faith belief that the information is CONFIDENTIAL or otherwise entitled to protection under Fed. R. Civ. P. 26(c)(1). Further, parties and attorneys designating documents as CONFIDENTIAL represent that such documents contain information in which there is a legitimate private or public interest as referenced in D.C. Colo, L. Civ R. 7.2(B)(2). 4. All Confidential Information provided by a Party in response to a discovery request

or transcribed testimony shall be subject to the following restrictions: a. It shall be used only for the purpose of this litigation and not for any business or other purpose whatsoever; b. It shall not be communicated or disclosed by any Party's counsel or a Party in any manner, either directly or indirectly, to anyone except for purposes of this case and unless an affidavit in the form of Exhibit A has been signed. 5. Individuals authorized to review Confidential Information pursuant to this Protective

Order including, but not limited to, (a) the Parties to this action and their undersigned counsel, (b) persons regularly employed or associated with undersigned counsel whose assistance is required by said attorneys in the preparation for trial, at trial, or at other proceedings in this case; (c) any retained experts; and (d) other persons by written agreement of the parties. These authorized persons shall hold Confidential Information in confidence and shall not divulge the Confidential Information, either verbally or in writing, to any other person, entity or government agency unless authorized to do so by Court order. 6. The Party's counsel who discloses Confidential Information, including disclosure to

a retained expert, shall be responsible for assuring compliance with the terms of this Protective

Order with respect to persons whom such Confidential Information is disclosed and shall obtain and retain the original affidavits signed by qualified recipients of Confidential Information, and shall maintain a list of all persons to whom any Confidential Information is disclosed. 7. During the pendency of this action, opposing counsel may upon Court order or

agreement of the Parties inspect the list maintained by counsel pursuant to paragraph 6 above upon showing of substantial need in order to establish the source of an unauthorized disclosure of Confidential Information and that opposing counsel are unable to otherwise identify the source of the disclosure. If counsel disagrees with opposing counsel's showing of substantial need, then counsel may request the Court disallow inspection, or allow inspection under terms and conditions deemed appropriate by the Court. The party requesting inspection of the list shall bear the burden of establishing substantive need. 8. No copies of Confidential Information shall be made except by or on behalf of

counsel in this litigation for work product purposes, and for review by individuals listed in paragraph 5 above. Any such copies shall be made and used solely for purposes of this litigation. 9. During pendency of this litigation, counsel and other individuals listed in paragraph

5 above shall retain custody of Confidential Information, and copies made therefrom pursuant to paragraph 8 above. 10. A party may object to the designation of particular Confidential Information by

giving written notice to the party designating the disputed information. The written notices shall identify the information to which the objection is made. If the parties cannot resolve the objection within ten (10) business days after the time the notice is received, it shall be the obligation of the party designating the information as confidential to file an appropriate motion requesting that the Court determine whether the disputed information should be subject to the terms of this Protective

Order. If such a motion is timely filed, the disputed information shall be treated as confidential under the terms of this Protective Order until the Court rules on the motion. If the designating party fails to file such a motion within the prescribed time, the disputed information shall lose its designation as confidential and shall not thereafter be treated as confidential in accordance with this Protective Order. In connection with a motion filed under this provision, the party designating the information as confidential shall bear the burden of establishing that good cause exists for the disputed information to be treated as confidential. 11. In the event it is necessary for the Parties to file Confidential Information with the

Court in connection with any proceeding or motion, the Confidential Information shall be filed in accordance with the requirements of D.C.COLO.LCiv.R 7.2 and 7.3. 12. The termination of this action shall not relieve counsel or other persons obligated

hereunder from their responsibility to maintain the confidentiality of Confidential Information pursuant to this Protective Order, and the Court shall retain continuing jurisdiction to enforce the terms of this Protective Order, even after this action is terminated. 13. By agreeing to the entry of this Protective Order, the Parties adopt no position as to

the authenticity or admissibility of documents produced subject to it. Neither the taking of any action in accordance with the provisions of this Protective Order, nor the failure to object thereto, shall be construed as a waiver of any claim or defense in this action. 14. Upon termination of this litigation, including any appeals, each Party's counsel shall

continue to maintain confidentiality in the storage of any such records and/or destroy the confidential records. 15. Nothing in this Protective Order shall preclude any Party from filing a motion seeking

further or different protection from the Court under Rule 26(c) of the Federal Rules of Civil

Procedure, or from filing a motion with respect to the manner in which Confidential Information shall be treated at trial. DATED this 21st day of August, 2009, in Denver, Colorado. BY THE COURT:

Michael E. Hegarty United States Magistrate Judge

09-cv-00858-CMA-MEH_prot ord.wpd