A.D. et al v. Meridian Community Unit School District 101 et al
Filing
46
ORDER GRANTING 44 Joint MOTION to Amend/Correct Motion for Entry of Stipulated Protective Order filed by Tim Turner, Tamara McCutchen, Dorlissa Cherry, Spencer Byrd, Victor Baker, Melissa McCutchen-Williams, Mike Hileman, Melody Spaulding, Lawanda Green, Jamie Nichols, Meridian Community Unit School District 101, and FINDING AS MOOT 43 Joint MOTION to Adopt MOTION for Protective Order filed by Tim Turner, Tamara McCutchen, Dorlissa Cherry, Spencer Byrd, Victor Baker, Melissa McCutchen-Williams, Mike Hileman, Melody Spaulding, Lawanda Green, Jamie Nichols, Meridian Community Unit School District 101. Signed by Magistrate Judge Reona J. Daly on 8/8/2018. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
A.D., individually and as mother and next )
friend of K.D., a minor, and K.D., a minor, )
)
Plaintiffs,
)
)
vs.
)
)
MERIDIAN COMMUNITY UNIT
)
SCHOOL DISTRICT NO. 101, et al.
)
)
Defendants.
)
Case No. 3:18-cv-162-NJR-RJD
JURY TRIAL DEMANDED
AGREED PROTECTIVE ORDER
This matter is before the Court on the Amended Joint Motion for Entry of Stipulated
Protective Order (Doc. 44) filed by Plaintiffs and Defendants Meridian Community Unit School
District No. 101, Spencer Byrd, Tim Turner, Dorlissa Cherry, Melissa McCutchen-Williams,
Tamara McCutchen, Victor Baker, Lawanda Green, Mike Hileman, Melody Spaulding, and
Jamie Nichols. The aforementioned parties have agreed to the terms of this Protective Order and
the Court finds good cause to enter the same. Accordingly, the Motion is GRANTED and it is
hereby ORDERED:
1.
Scope. All materials produced or adduced in the course of discovery, including
initial disclosures, responses to discovery requests, deposition testimony and exhibits, and
information derived directly therefrom (hereinafter collectively “documents”), shall be subject to
this Order concerning Confidential Information as defined below. This Order is subject to the
Local Rules of this District and the Federal Rules of Civil Procedure on matters of procedure and
calculation of time periods.
2.
Confidential Information. As used in this Order, “Confidential Information”
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means information designated as “CONFIDENTIAL-SUBJECT TO PROTECTIVE ORDER” by
the producing party that falls within one or more of the following categories: (a) information
prohibited from disclosure by statute; (b) research, technical, commercial or financial
information that the party has maintained as confidential; (c) medical information concerning
any individual; (d) psychological, mental health and developmental disability records concerning
any individual that are subject to protection under HIPAA and the Illinois Mental Health and
Developmental Disabilities Act, 740 ILCS 110/1, et seq.; (e) personal identity information; (f)
student records for parties and/or minors that are not a party to the case; (g) personnel or
employment records of a person who is not a party to the case; or (h) other documents containing
sensitive or confidential information. Information or documents that are available to the public
may not be designated as Confidential Information.
3.
Designation.
(a)
A party may designate a document as Confidential Information for
protection under this Order by placing or affixing the words “CONFIDENTIAL - SUBJECT TO
PROTECTIVE ORDER” on the document and on all copies in a manner that will not interfere
with the legibility of the document. As used in this Order, “copies” includes electronic images,
duplicates, extracts, summaries or descriptions that contain the Confidential Information. The
marking “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” shall be applied prior to
or at the time of the documents are produced or disclosed. Applying the marking
“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” to a document does not mean that
the document has any status or protection by statute or otherwise except to the extent and for the
purposes of this Order. Any copies that are made of any documents marked “CONFIDENTIAL
- SUBJECT TO PROTECTIVE ORDER” shall also be so marked, except that indices, electronic
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databases or lists of documents that do not contain substantial portions or images of the text of
marked documents and do not otherwise disclose the substance of the Confidential Information
are not required to be marked.
(b)
The designation of a document as Confidential Information is a
certification by an attorney or a party appearing pro se that the document contains Confidential
Information as defined in this order.
4.
Depositions.
Unless all parties agree on the record at the time the deposition testimony is taken, all
deposition testimony taken in this case shall be treated as Confidential Information until the
expiration of the following: No later than the fourteenth day after the transcript is delivered to
any party or the witness, and in no event later than 60 days after the testimony was given.
Within this time period, a party may serve a Notice of Designation to all parties of record as to
specific portions of the testimony that are designated Confidential Information, and thereafter
only those portions identified in the Notice of Designation shall be protected by the terms of this
Order. The failure to serve a timely Notice of Designation shall waive any designation of
testimony taken in that deposition as Confidential Information, unless otherwise ordered by the
Court.
5.
Protection of Confidential Material.
(a)
General Protections. Confidential Information shall not be used or
disclosed by the parties, counsel for the parties or any other persons identified in subparagraph
(b) for any purpose whatsoever other than in this litigation, including any appeal thereof.
(b)
Limited Third-Party Disclosures. The parties and counsel for the
parties shall not disclose or permit the disclosure of any Confidential Information to any third
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person or entity except as set forth in subparagraphs (1)-(9). Subject to these requirements, the
following categories of persons may be allowed to review Confidential Information:
(1)
(2)
Parties. Individual parties and employees of a party but only to the
extent counsel determines in good faith that the employee’s assistance
is reasonably necessary to the conduct of the litigation in which the
information is disclosed;
(3)
The Court and its personnel;
(4)
Court Reporters and Recorders. Court reporters and recorders
engaged for depositions;
(5)
Contractors. Those persons specifically engaged for the limited
purpose of making copies of documents or organizing or processing
documents, including outside vendors hired to process electronically
stored documents;
(6)
Consultants and Experts. Consultants, investigators, or experts
employed by the parties or counsel for the parties to assist in the
preparation and trial of this action but only after such persons have
completed the certification contained in Attachment A,
Acknowledgment of Understanding and Agreement to Be Bound;
(7)
Witnesses at depositions. During their depositions, witnesses in this
action to whom disclosure is reasonably necessary. Witnesses shall
not retain a copy of documents containing Confidential Information,
except witnesses may receive a copy of all exhibits marked at their
depositions in connection with review of the transcripts. Pages of
transcribed deposition testimony or exhibits to depositions that are
designated as Confidential Information pursuant to the process set out
in this Order must be separately bound by the court reporter and may
not be disclosed to anyone except as permitted under this Order.
(8)
Author or recipient. The author or recipient of the document (not
including a person who received the document in the course of
litigation); and
(9)
Counsel. Counsel for the parties and employees of counsel who
have responsibility for the action;
Others by Consent. Other persons only by written consent of the
producing party or upon order of the Court and on such conditions as
may be agreed or ordered.
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(c)
Control of Documents. Counsel for the parties shall make reasonable
efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. Counsel
shall maintain the originals of the forms signed by persons acknowledging their obligations
under this Order for a period of three years after the termination of the case.
6.
Inadvertent Failure to Designate. An inadvertent failure to designate a
document as Confidential Information does not, standing alone, waive the right to so designate
the document; provided, however, that a failure to serve a timely Notice of Designation of
deposition testimony as required by this Order, even if inadvertent, waives any protection for
deposition testimony. If a party designates a document as Confidential Information after it was
initially produced, the receiving party, on notification of the designation, must make a reasonable
effort to assure that the document is treated in accordance with the provisions of this Order. No
party shall be found to have violated this Order for failing to maintain the confidentiality of
material during a time when that material has not been designated Confidential Information, even
where the failure to so designate was inadvertent and where the material is subsequently
designated Confidential Information.
7.
Filing of Confidential Information. This Order does not, by itself, authorize the
filing of any document under seal. Any party wishing to file a document designated as
Confidential Information under seal in connection with a motion, brief or other submission to the
Court must first seek leave of the Court, by motion, to do so. The party will, contemporaneously
with the filing of the motion, submit the confidential materials to the Court. The Court will then
make a determination as to whether the material may be filed under seal.
8.
No Greater Protection of Specific Documents. Except on privilege grounds not
addressed by this Order, no party may withhold information from discovery on the ground that it
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requires protection greater than that afforded by this Order unless the party moves for an order
providing such special protection.
9.
Challenges by a Party to Designation as Confidential Information. The
designation of any material or document as Confidential Information is subject to challenge by
any party. The following procedure shall apply to any such challenge.
(a)
Meet and Confer. A party challenging the designation of Confidential
Information must do so in good faith and must begin the process by conferring directly with
counsel for the designating party. In conferring, the challenging party must explain the basis for
its belief that the confidentiality designation was not proper and must give the designating party
an opportunity to review the designated material, to reconsider the designation, and, if no change
in designation is offered, to explain the basis for the designation. The designating party must
respond to the challenge within five (5) business days.
(b)
Judicial Intervention. A party that elects to challenge a confidentiality
designation may, after complying with the meet and confer obligations of this order, contact the
Court to schedule a dispute resolution conference. In advance of the hearing, the parties may
submit letter briefs, of no more than three (3) single spaced pages, setting forth their positions.
The briefs shall be submitted to the Court’s proposed orders inbox. The burden of persuasion in
any such challenge proceeding shall be on the designating party. Until the Court rules on the
challenge, all parties shall continue to treat the materials as Confidential Information under the
terms of this Order.
10.
Action by the Court. Nothing in this Order or any action or agreement of a party
under this Order limits the Court’s power to make orders concerning the disclosure of documents
produced in discovery or at trial.
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11.
Use of Confidential Documents or Information at Trial. Nothing in this Order
shall be construed to affect the use of any document, material, or information at any trial or
hearing in this litigation. A party that intends to present or that anticipates that another party
may present Confidential Information at a hearing or trial shall bring that issue to the Court’s and
parties’ attention by motion or in a pretrial memorandum without disclosing the Confidential
Information. The Court may thereafter make such orders as are necessary to govern the use of
such documents or information at trial.
12.
Confidential Information Subpoenaed or Ordered Produced in Other
Litigation.
(a)
If a receiving party is served with a subpoena or an order issued in other
litigation that would compel disclosure of any material or document designated in this action as
Confidential Information, the receiving party must so notify the designating party, in writing,
immediately and in no event more than three court days after receiving the subpoena or order.
Such notification must include a copy of the subpoena or court order.
(b)
The receiving party also must immediately inform in writing the party
who caused the subpoena or order to issue in the other litigation that some or all of the material
covered by the subpoena or order is the subject of this Order. In addition, the receiving party
must deliver a copy of this Order promptly to the party in the other action that caused the
subpoena to issue.
(c)
The purpose of imposing these duties is to alert the interested persons to
the existence of this Order and to afford the designating party in this case an opportunity to try to
protect its Confidential Information in the court from which the subpoena or order issued. The
designating party shall bear the burden and the expense of seeking protection in that court of its
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Confidential Information, and nothing in these provisions should be construed as authorizing or
encouraging a receiving party in this action to disobey a lawful directive from another court.
The obligations set forth in this paragraph remain in effect while the party has in its possession,
custody or control Confidential Information by the other party to this case.
13.
Challenges by Members of the Public to Sealing Orders. A party or interested
member of the public has a right to challenge the sealing of particular documents that have been
filed under seal, and the party asserting confidentiality will have the burden of demonstrating the
propriety of filing under seal regardless of whether the party asserting confidentiality filed the
subject document under seal.
14.
Obligations on Conclusion of Litigation.
(a)
Order Continues in Force. Unless otherwise agreed or ordered, this
Order shall remain in force after dismissal or entry of final judgment not subject to further
appeal.
(b)
Obligations at Conclusion of Litigation. Within sixty-three days after
dismissal or entry of final judgment not subject to further appeal, all Confidential Information
and documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” under this
Order, including copies as defined in ¶ 3(a), shall be returned to the producing party unless: (1)
the document has been offered into evidence or filed without restriction as to disclosure; (2) the
parties agree to destruction to the extent practicable in lieu of return and the receiving party
provides the producing party with a certification of such destruction; or (3) as to documents
bearing the notations, summations, or other mental impressions of the receiving party, that party
elects to destroy the documents and certifies to the producing party that it has done so; or (4) the
parties agree to retain one complete set of all documents related to the subject action for a period
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of seven (7) years after dismissal or entry of final judgment not subject to further appeal, in order
for the parties’ attorneys to meet their respective obligations to preserve their client’s files in
accordance with the Illinois Rules of Professionalism. Any retained Confidential Information
shall continue to be protected under this Order.
(c)
Retention of Work Product and one set of Filed Documents.
Notwithstanding the above requirements to return or destroy documents, counsel may retain (1)
attorney work product, including an index that refers or relates to designated Confidential
Information so long as that work product does not duplicate verbatim substantial portions of
Confidential Information, and (2) one complete set of all documents filed with the Court
including those filed under seal. Any retained Confidential Information shall continue to be
protected under this Order. An attorney may use his or her work product in subsequent litigation,
provided that its use does not disclose or use Confidential Information.
(d)
Deletion of Documents filed under Seal from Electronic Case
Filing (ECF) System. Filings under seal shall be deleted from the ECF system only upon order
of the Court.
15.
Order Subject to Modification. This Order shall be subject to modification by
the Court on its own initiative or on motion of a party or any other person with standing
concerning the subject matter.
16.
No Prior Judicial Determination. This Order is entered based on the
representations and agreements of the parties and for the purpose of facilitating discovery.
Nothing herein shall be construed or presented as a judicial determination that any document or
material designated Confidential Information by counsel or the parties is entitled to protection
under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as the
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Court may rule on a specific document or issue.
17.
Persons Bound. This Order shall take effect when entered and shall be binding
upon all counsel of record and their law firms, the parties, and persons made subject to this Order
by its terms.
IT IS SO ORDERED.
DATED: August 8, 2018
s/
Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
WE SO MOVE
and agree to abide by the
terms of this Order
WE SO MOVE
and agree to abide by the terms of this Order
/s/Daniel R. Seidman (with consent)
Daniel R. Seidman
Seidman Margulis et al
110 West Main St., Suite 110
Belleville, IL 62220
Telephone: (618) 235-7622
Facsimile: (618) __________
Email:dseidman@seidmanlaw.net
Attorneys for Plaintiffs
/s/Thomas J. Hunter
Thomas J. Hunter
Becker, Hoerner, Thompson & Ysursa, P.C.
5111 West Main Street
Belleville, IL 62226
Telephone: (618) 235-0020
Facsimile: (618) 235-8558
Email:gph@bhtylaw.com
Attorneys for Defendants Meridian
Community Unit School District No. 101,
Spencer Byrd, Tim Turner, Dorlissa Cherry,
Melissa McCutchen-Williams, Tamara
McCutchen, Victor Baker, Lawanda Green,
Mike Hileman, Melody Spaulding and Jamie
Nichols
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ATTACHMENT A
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
A.D., individually and as mother and next )
friend of K.D., a minor, and K.D., a minor, )
)
Plaintiffs,
)
)
vs.
)
)
MERIDIAN COMMUNITY UNIT
)
SCHOOL DISTRICT NO. 101, et al.
)
)
Defendants.
)
Case No. 3:18-cv-162-NJR-RJD
JURY TRIAL DEMANDED
ACKNOWLEDGMENT AND
AGREEMENT TO BE BOUND
The undersigned hereby acknowledges that he/she has read the Protective Order dated
_______________ in the above-captioned action and attached hereto, understands the terms
thereof, and agrees to be bound by its terms. The undersigned submits to the jurisdiction of the
United States District Court for the Southern District of Illinois in matters relating to the
Protective Order and understands that the terms of the Protective Order obligate him/her to use
materials designated as Confidential Information in accordance with the Order solely for the
purposes of the above-captioned action, and not to disclose any such Confidential Information to
any other person, firm or concern.
The undersigned acknowledges that violation of the Protective Order may result in
penalties for contempt of court.
Name:
Job Title:
Employer:
Business Address:
Date:
Signature
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