McDaniel v. Dietrich School District No. 314 et al

Filing 24

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,
PROTECTIVE ORDER
v.

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

Scope of Order
The parties disagree over whether documents to be produced in discovery are
protected from public disclosure by the Family Educational Right to Privacy Act
(“FERPA”) (20 U.S.C. § 1232g, et seq), and the American Health Insurance Portability
and Accountability Act of 1996 (“HIPAA”) (45 C.F.R. Part 160, Part 162, and Part 164).
The defendants claim 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
covered by FERPA and HIPAA, and protected from public disclosure. The plaintiffs
disagree and assert that defendants’ claims of FERPA and HIPAA protection are too
broad. There is agreement, however, on one point: Both sides agree that during the
discovery phase of this case the documents claimed by the defendants to be protected

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should be kept confidential; their disagreement is over whether the documents should
continue to be protected from public view once filed with the Court.
As the Court stated in its earlier decision on this issue, the Court will ultimately
determine whether any document filed with the Court shall be sealed. In that analysis, “a
strong presumption in favor of access is the starting point.” Kamakana v. City & Cnty. of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006)). But any decision now on whether
documents are protected by FERPA or HIPAA would be premature because none of the
disputed documents have been filed with the Court. Until the Court knows precisely
what documents are at issue, any decision would be advisory, abstract, and ill-advised.
This Protective Order is designed to maintain the confidentiality of materials
designated by the parties as “Protected Materials” until the Court makes a final ruling.
There is nothing in this Protective Order waiving the rights of either party to argue either
for or against FERPA and HIPAA protection. Both sides reserve the right to argue their
respective positions when documents are filed with the Court.
The defendants, in producing discovery to the plaintiff, shall designate which
documents being produced are “Protected Materials” that they allege are protected by
FERPA and HIPAA.
Access to and Use of Protected Materials.
The Parties may only use Protected Materials, which shall be conspicuously
marked “Confidential,” for the purposes of this litigation, and may only make said
materials available to: (a) counsel of record for any party, and the legal associates,
clerical or support staff of such counsel assisting in the preparation of this matter; (b) a
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party and a party’s employees, or independent experts, or potential experts, or any other
person employed or retained by counsel for the purpose of assisting counsel in this
action, after said party has advised such person of the provisions of this Order and
secured his or her agreement, in writing, to abide by its terms; (c) witnesses, court
personnel and court reporters in any proceeding held in connection with this action and to
whom there is a legitimate need to disclose particular materials; and, (d) case evaluators,
facilitators, and mediators after said party has been advised of the provisions of this
Order and secured agreement, in writing, to abide by its terms.
Each individual who receives any Protected Materials herby agrees to subject
himself/herself to the jurisdiction of this Court for any purposes of any proceedings
related to the enforcement of this Protective Order.
Handling Protected Materials.
If any party files with the Court any pleading, interrogatory, answer, affidavit,
motion, brief, or other paper containing, appending, summarizing, excerpting or
otherwise embodying confidential material, the pleading or other paper in which any
Protected Material is embodied shall be filed and maintained under seal and shall not be
available for public inspection, pending a decision by the Court on whether the material
should remain sealed. The party making the filing shall comply with D.Idaho.L.Civ.R.
5.3, and R. 5.5.
Miscellaneous
1. This Order shall not prevent either party form applying to the Court for relief
from this Order or any part thereof or for relief from its application in any particular
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circumstance, or from applying to the Court for further or additional protective
agreements or orders. This Order shall survive the final determination of this or related
proceedings to the extent that the protected materials have not or do not become known
to the public.
2. The parties may rely on a waiver of the provisions of this Order or consent to
disclosure of protected materials that is made by the producing party’s attorney as if that
waiver or consent was made by the producing party itself, provided that such waiver or
consent is express and shall be either in writing or on the record in a hearing, trial, or
deposition transcript.
3. In the event a party receives a subpoena or other legal or governmental demand
for protection of any Protected Material, the subpoenaed party shall notify the requesting
part of the subpoenaed party’s obligations defined by the Order in order to allow the
requesting party to take appropriate steps in obtaining a court order, if the Court in this
action so deems ordering the production of the Protected Materials.
4. All Protected Materials and all copies (including electronic, paper and any other
versions thereof), shall be returned to the producing party or otherwise permanently
destroyed or deleted by the requesting party within thirty (30) days following termination
of this litigation between the parties, including all appeals. If permanently destroyed or
deleted, counsel for the requesting party shall provide written assurance to counsel for the
producing party of such destruction or deletion within thirty (30) days following
termination of this litigation.

Protective Order – page 4

5. Except as specifically provided herein, the terms, conditions and limitations of
this Protective Order shall survive the termination of this action.

DATED: November 3, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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