Vigil v. Pueblo School District No. 60

Filing 28

PROTECTIVE ORDER: by Magistrate Judge Boyd N. Boland on 10/26/11. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00834-CMA-BNB
LINDA VIGIL,
Plaintiff,
v.
PUEBLO SCHOOL DISTRICT NO. 60,
Defendant.

STIPULATION AND PROTECTIVE ORDER
______________________________________________________________________
Each party and each Counsel of Record stipulate and move the Court for a Protective
Order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure concerning the treatment of
Confidential Information (as hereinafter defined) and, as grounds therefore, state as follows:
IT IS ORDERED:
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 as well as the privacy interests of third parties who are
not subject to this litigation. 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.

the Parties and/or their representatives’ personnel files1;

b.

witness statements and documents articulating concerns regarding
Plaintiff’s interactions with students;

c.

any student files, or information contained in student files2;

d.

confidential findings of the Legal Center pertaining to the District; and

e.

Plaintiff’s medical records.

The disclosure of student files and related confidential information requires parental
notification and may also require consent. Pursuant to the Family Education Rights & Privacy
Act (“FERPA”), “personal information shall only be transferred to a third party on the condition
that such party will not permit any other party to have access to such information without the
written consent of the parents of the student. If a third party outside the educational agency or
institution permits access to information in violation of paragraph (2)(A), or fails to destroy
information in violation of paragraph (1)(F), the educational agency or institution shall be
prohibited from permitting access to information from education records to that third party for a
period of not less than five years.” 20 U.S.C. § 1232g(4)(B).

1

Employees have a privacy interest in their personnel files. Freedom Newspapers, Inc. v. Tolefson, 961 P.2d 1150,
1156 (Colo. App. 1988); Denver Publ’g Co. v. Univ. of Colo., 812 P.2d 682, 685 (Colo. App. 1990); C.R.S. § 24-72204(a)(3)(II)(A).
2
Student records are confidential pursuant to FERPA, codified at 20 U.S.C. § 1232(9), and C.R.S. § 22-1-123.

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In addition, any information designated by a party as confidential will first be reviewed
by that party’s 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)(7). See Gillard v. Boulder Valley Sch. Dist., 196 F.R.D. 382, 386 (D. Colo.
2000).
3.

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.

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.

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5.

Individuals authorized to review Confidential Information pursuant to this

Protective Order including, but no 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 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.
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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.

Any motion to file materials under seal must comply with the requirements

of D.C.COLO.LCivR 7.2. In the event it is necessary for the Parties to file Confidential
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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 Information/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.

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Dated October 26, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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STIPULATED AND AGREED TO:

s/ Charles F. Kaiser
Charles F. Kaiser
Colorado Education Association
1500 Grant Street
Denver, Colorado 80203
Tele: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Plaintiff

s/ Sonja S. McKenzie
Sonja S. McKenzie
Senter Goldfarb & Rice, LLC
1700 Broadway, Suite 1700
Denver, Colorado 80232
Tele: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendant

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00834-CMA-BNB
LINDA VIGIL,
Plaintiff,
v.
PUEBLO SCHOOL DISTRICT NO. 60,
Defendant.
AFFIDAVIT

STATE OF COLORADO
COUNTY OF

)
)ss
)

_____________________________, swears or affirms and states under penalty of
perjury:
1.
I have read the Protective Order in ___________________________, a copy of
which is attached to this Affidavit.
2.
I have been informed by ___________________________, Esq., counsel for
_______________________________, that the materials described in the list attached to this
Affidavit are Confidential Information as defined in the Protective Order.
3.
I promise that I have not and will not divulge, or undertake to divulge to any
person or recording device any Confidential Information shown or told to me except as
authorized in the Protective Order. I will not use the Confidential Information for any purpose
other than this litigation.
4.
For the purpose of enforcing the terms of the Protective Order, I hereby submit
myself to the jurisdiction of the court in the civil action referenced above.
5.

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I will abide by the terms of the Protective Order.

_________________________________________
(Signature)
_________________________________________
(Print or Type Name)
Address:
_________________________________________
_________________________________________
Telephone No.: (_____) _____________________

SUBSCRIBED AND SWORN to before me this ______________ day of
___________________________, 2011, by __________________________________.
WITNESS my hand and official seal.

Notary Public
My commission expires:________________
[SEAL]

0834.DOC

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