McDaniel v. Dietrich School District No. 314 et al

Filing 23

MEMORANDUM DECISION AND ORDER granting in part and denying in part 14 Motion for Disclosure; granting 15 Motion for Protective Order. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANTWON McDANIEL
Case No. 1:16-cv-202-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.

DIETRICH SCHOOL DISTRICT NO.
314, et al.,
Defendants.

INTRODUCTION
The Court has before it plaintiffs’ motion for disclosure and defendants’ motion
for protective order. The motions are fully briefed and at issue. For the reasons
expressed below, the Court will grant in part and deny in part the motion for disclosure,
and grant the motion for protective order with the direction for the parties to submit a
stipulated protective order that does not waive McDaniel’s right to challenge the
defendants’ claim that the investigative report and associated materials are protected by
the Family Educational Right to Privacy Act.
ANALYSIS
Plaintiff Antwon McDaniel brings this action for damages alleging that he was
subjected to racial discrimination, pervasive harassment, and anal rape while a student at
Dietrich High School. McDaniel seeks in discovery an un-redacted version of an
investigative report, prepared immediately after the incident of alleged rape, by Dietrich
Memorandum Decision & Order – page 1

School District Superintendent Ben Hardcastle and Principal Stephanie Shaw. The
defendants have agreed to provide the un-redacted report and associated material, but
request that the report and material be subject to a protective order preventing McDaniel
from sharing this material with the press or public. McDaniel agrees, but takes issue with
the defendants’ claim – set forth in the proposed protective order and in briefing here –
that “all District documents related to the investigation of the allegations as well as all
documents related to the ultimate expulsion of the students are ‘educational records’ as
defined by FERPA [Family Educational Right to Privacy Act] and are therefore
‘Protected Materials’ under this motion [for protective order].” See Defense Brief (Dkt.
No. 15) at p. 2.
The defendants’ agreement to provide un-redacted copies of the investigative
report and associated notes resolves most of McDaniel’s motion for disclosure. But
besides seeking the un-redacted materials, McDaniel also wanted to delay his own duty to
provide initial disclosures until defendants fully comply with their duty to provide unredacted materials. This request must be denied because Rule 26(a)(1)(E) expressly
rejects justifying a delay on the other side’s refusal to comply. The Court will therefore
grant McDaniel’s motion for disclosure only in part, and deny that part seeking to delay
submitting his own initial disclosures.
The defendants’ motion for protective order can be resolved with the following
analysis. Both sides agree that the investigative report and associated material must be
produced under the terms of a protective order. The dispute is over whether that material
is protected from public disclosure by FERPA. McDaniel has disclaimed any desire to
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reveal this material to the press outside of a motion he may file with the Court. And the
Court cannot predict now what portion of the materials McDaniel might use to support
any such motion in the future. Obviously, the Court will need to know precisely what
materials McDaniel seeks to disclose before the Court can determine whether the
materials are protected by FERPA. Any opinion the Court would issue now would be
nothing more than an advisory opinion.
None of this discussion makes the entry of a protective order any less important –
one must be entered. But it is crucial to recognize that while the entry of a protective
order that deems certain material confidential governs discovery, it does not govern the
ultimate decision of the Court to determine whether documents filed with the Court
should be sealed from public inspection. Courts generally apply a “compelling reasons”
standard when considering whether to seal documents filed in support of motions. Pintos
v. Pac. Creditors Ass'n, 605 F.3d 665, 677-78 (9th Cir. 2010). “This standard derives
from the common law right “to inspect and copy public records and documents, including
judicial records and documents.” Id. (quoting Kamakana v. City & Cnty. of Honolulu,
447 F.3d 1172, 1178 (9th Cir. 2006)). “[A] strong presumption in favor of access is the
starting point.” Kamakana, 447 F.3d at 1178. To overcome this strong presumption, the
party seeking to seal documents must “articulate compelling reasons supported by
specific factual findings that outweigh the general history of access and the public
policies favoring disclosure, such as the public interest in understanding the judicial
process.” Id. at 1178-79.

Memorandum Decision & Order – page 3

A protective order limiting access to discovery documents does not relieve a party
from satisfying the “compelling reasons” test when that discovery is later utilized in a
dispositive motion. See id. at 1183 (noting that a stipulated blanket protective order for
purposes of discovery, without more, “does not justify sealing court records”). As the
Ninth Circuit explained in Kamakana, judges may grant pre-trial protective orders
without the benefit of making individualized determinations as to specific documents. Id.
at 1183. Thus, a protective order cannot by itself be a compelling reason that rebuts the
presumption of public access to court documents. See id.
The Court will therefore make the ultimate determination of whether the materials
are protected by FERPA once the specific materials have been identified for filing with
the Court. In the meantime, the Court will direct the parties to draft a protective order
that does not force McDaniel to waive any claim that the documents are not protected by
FERPA. For example, the protective order can contain the respective positions of the
parties and recognize that the Court will make the ultimate determination. The Court is
confident that the parties, with this direction, can draft a stipulated protective order. The
Court will therefore grant defendants’ motion for protective order with the understanding
that the parties will submit to the Court a stipulated protective order that does not waive
any right of McDaniel to challenge the defendants’ claim that the materials are protected
by FERPA.
ORDER
In accordance with the Memorandum Decision set forth above,

Memorandum Decision & Order – page 4

NOW THEREFORE IT IS HEREBY ORDERED, that the motion for disclosure
(docket no. 14) is GRANTED IN PART AND DENIED IN PART. It is granted to the
extent it requests a complete initial disclosure of un-redacted documents and exhibits, but
is denied to the extent it requests a delay in plaintiff’s own initial disclosure obligation.
IT IS FURTHER ORDERED, that defendants’ motion for protective order (docket
no. 15) is GRANTED, and the parties shall submit a proposed stipulated protective order
to the Court for approval that does not waive any right of plaintiff to challenge the
defendants’ claim that the materials are protected by FERPA.

DATED: October 28, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 5