Boudreaux et al v. St Mary Parish et al

Filing 143

MEMORANDUM RULING re 119 MOTION for Leave to Participate as Amicus Curiae with opposition filed by State of Louisiana, 131 APPEAL OF MAGISTRATE JUDGE DECISION to District Judge re 125 Order on Motion to Amend/Correct,, Order on Motion for Extension, filed by School Board of St Mary Parish. Signed by Judge Robert R Summerhays on 7/24/2023. (crt,Craig-Fontenot, C)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
CLAUDE BOUDREAUX, ET AL.

CASE NO. 6:65-CV-11351

VERSUS

JUDGE ROBERT R. SUMMERHAYS

SCHOOL BOARD OF ST MARY PARISH,
ET AL.

MAGISTRATE JUDGE WHITEHURST

MEMORANDUM RULING
The present matters before the Court are two motions: (1) the State of Louisiana’s Motion
for Leave to Participate as Amicus Curiae (the “Amicus Motion”), 1 and (2) the St. Mary Parish
School Board’s Objection to the Magistrate Judge’s Ruling on the Motion to Amend Protective
Order and Stay Discovery Deadlines. 2 After considering the record, the parties’ arguments, and
the relevant authorities, the Court rules as follows.
I.

BACKGROUND
On August 31, 1965, five African-American students attending public schools in St. Mary
Parish filed suit for injunctive relief against the St. Mary Parish School Board (the “School Board”
or the “Board”) and its superintendent, alleging that Defendants were maintaining racially
segregated schools in violation of the Fourteenth Amendment to the United States Constitution.3
The suit was brought “as a class suit . . . on behalf of [Plaintiffs] and on behalf of other [Black]
children and their parents in St. Mary Parish, similarly situated, all of whom are affected by the
policy, practice, custom and usage complained of herein. . . .” 4 On October 11, 1965, the Court

ECF No. 119.
ECF No. 131.
3
ECF No. 17-4 at 2-9.
4
Id. at 3.
1
2

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issued the first of several Decrees and Orders enjoining Defendants from continuing to operate a
segregated public school system, implementing desegregation plans, and requiring Defendants to
submit reports regarding these efforts to the Court two times each year. 5 In April of 1975 the case
was placed on the “inactive docket,” but the Board continued filing reports until December of
1983. 6 Thereafter, all activity ceased until the Court reopened this matter in 2012. 7
After the case was reopened, the Court formally certified the case as a class action and
modified the class definition as follows:
(1) All Black students currently enrolled or who will in the future enroll in schools
operated by the St. Mary Parish School Board; (2) all Black students who
previously attended the foregoing schools and would remain eligible to attend such
schools, but for the fact they were expelled from such schools due to discriminatory
policies of the St. Mary Parish School Board; and (3) the custodial biological or
custodial adoptive parents of the foregoing students. 8
Thereafter, all parties agreed to the parameters of the United States’ role as amicus curiae going
forward, 9 and the Court entered an order memorializing the parties’ agreement. 10 Pursuant to that
order:
[T]he United States of America [may] continue to appear and participate in
this action as amicus curiae, with the right as such to participate in the case as
follows, unless otherwise directed by the Court:
1.

Receive and access all formal discovery exchanged between the parties at
the same time as the parties;

2.

Receive and access all informal discovery exchanged between the parties at
the same time as the parties, participate in site visits (during which the
United States may ask questions of District employees), and propound
informal discovery in accordance with the scope of its enforcement
authority under federal law;

See e.g. id. at 20-22, 41-43; ECF No. 1-13 at 4.
ECF No. 1-67; ECF No. 1-79.
7
ECF Nos. 2-5.
8
ECF No. 67 at 9, 18-19; see also ECF No. 38. At the time suit was filed, the Federal Rules of Civil Procedure did
not require courts to certify actions as class actions. After the case was reopened, the Court found it should be formally
recertified “and its parameters should be clarified.” ECF No. 36 at 21.
9
ECF No. 73; see also ECF No. 36 at 21 n. 25; ECF Nos. 53, 55.
10
ECF No. 74.
5
6

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3.

Observe depositions taken by the parties and obtain copies of all deposition
transcripts at the same time and in the same manner as available to the
parties;

4.

File position statements and responses;

5.

Appear at conferences and hearings before the Magistrate Judge or District
Judge; and

6.

Participate in conferences and hearings to the extent directed by the Court. 11

The Court additionally ordered the parties to craft a Plan of Work “designed to avoid unnecessary
delay in the disposition of this matter.” 12 The parties submitted their Plan of Work on November
12, 2019, and that plan was subsequently adopted by the Court. 13 The parties then worked
diligently to move this litigation forward, although these efforts were delayed by the COVID-19
pandemic and governmental closure orders that impacted the St. Mary Parish School System.
After the Plan of Work was adopted, the parties engaged in formal and informal discovery.
Because this discovery included the production of documents and information “protected by the
Family Educational Rights and Privacy Act (‘FERPA’), 20 U.S.C. § 1232g; 34 C.F.R. Part 99, the
School Employees Personnel File Act (‘SEPFA’) (LA. REV. STAT. § 17:1237), and other highly
sensitive information,” the parties negotiated and agreed to a protective order (the “Protective
Order” or “Order”), which was formally entered on June 1, 2021. 14 The Protective Order creates
two tiers of protection. The first tier requires that “Personally Identifiable Information” (as defined
by FERPA), education records, and employee records be marked “CONFIDENTIAL
INFORMATION—SUBJECT TO COURT’S PROTECTIVE ORDER,” 15 and limits access to this
discovery to nine categories of individuals, including “[p]ersonnel of Plaintiffs and amicus curiae
the United States of America or Defendant actually engaged in assisting counsel in the conduct of
11

Id.
ECF No. 38.
13
ECF Nos. 43, 44.
14
ECF No. 79.
15
Id. at ¶¶ 2, 7.
12

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this Litigation and who have been advised of their obligations hereunder.” 16 The second tier of
protection covers “Interested Person Information,” which includes:
[T]he names of educators, class members, and community members who have
reached out to counsel for the plaintiff class or the United States seeking assistance
or providing information in connection with this Litigation. Interested Person
Information shall also include other information that, alone or in combination,
would allow a reasonable person in the community to identify such people with
reasonable certainty. 17
The Protective Order requires that any documents or information produced containing “Interested
Person Information” be marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY –
SUBJECT TO COURT’S PROTECTIVE ORDER,” and limits access to this information to a
subset of the individuals identified in paragraph 3 of the Protective Order. 18 This subset does not
include members of the School Board or executive-level administrators.
II.
THE AMICUS MOTION
The State of Louisiana seeks appointment as amicus curiae with the same role in this case
as the United States. In other words, the State requests the ability to file responsive briefs and
position statements with the Court, and to participate in formal and informal discovery, including
site visits. The State grounds its request on its “interests in guarding against federal overreach and
in maintaining federalism’s proper balance between state and federal powers [which] are already
at play.” 19 The State explains that it “exercised sovereign responsibility over education by creating
the St. Mary Parish School Board as a local political subdivision of the state, endowed with
authority to make policies in the best interest of students in the St. Mary Parish School District.”20

Id. at ¶ 3.
Id. at ¶ 2(d).
18
Id. at ¶ 4.
19
ECF No. 135 at 4-5.
20
ECF No. 119-1 at 4.
16
17

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While there is no specific rule or statute addressing when a district court may grant leave
to a non-party to file an amicus brief, district courts often look to Rule 29 of the Federal Rules of
Appellate Procedure. 21 Rule 29 governs requests to file amicus briefs in the courts of appeals, and
provides in pertinent part:
(1) Applicability. This Rule 29(a) governs amicus filings during a court’s initial
consideration of a case on the merits.
(2) When Permitted. The United States or its officer or agency or a state may file
an amicus brief without the consent of the parties or leave of court. Any other
amicus curiae may file a brief only by leave of court or if the brief states that
all parties have consented to its filing, but a court of appeals may prohibit the
filing of or may strike an amicus brief that would result in a judge’s
disqualification.
(3) Motion for Leave to File. The motion must be accompanied by the proposed
brief and state:
(A) The movant’s interest; and
(B) The reason why an amicus brief is desirable and why the matters asserted
are relevant to the disposition of the case. 22
In deciding whether to grant leave to file an amicus brief under Rule 29, courts consider factors
such as whether the proposed amicus has a unique interest in the case, and whether the proposed
amicus brief is “timely and useful or otherwise necessary to the administration of justice.” 23 The
First Circuit has cautioned that “a district court lacking joint consent of the parties should go slow
in accepting, and even slower in inviting, an amicus brief unless . . . the amicus has a special
interest that justifies his having a say, or unless the court feels that existing counsel may need
supplementing assistance.” 24 District courts “must keep in mind the differences between the trial

U.S. ex rel. Gudur v. Deloitte Consulting LLP, 512 F.Supp.2d 920, 927 (S.D. Tex. 2007), aff'd sub nom. U.S. ex rel.
Gudur v. Deloitte & Touche, No. 07-20414, 2008 WL 3244000 (5th Cir. Aug. 7, 2008); Texas v. United States, No.
6:21-CV-00003, 2021 WL 2172837, at *1 (S.D. Tex. Mar. 5, 2021).
22
FED. R. APP. P. 29.
23
U.S. ex rel. Gudur at 927 (internal quotation marks omitted).
24
Strasser v. Doorley, 432 F.2d 567, 569 (1st Cir. 1970).
21

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and appellate court forums in determining whether it is appropriate to allow an amicus curiae to
participate.” 25 “Chief among those differences is that a district court resolves fact issues.” 26 “[A]n
amicus who argues facts should rarely be welcomed.” 27 Finally, courts should not grant leave to
an amicus who is merely an advocate for one of the parties. 28
Here, putting aside the State’s arguments about its role in enforcing federalism and
preventing federal court “overreach” in desegregation cases, the Court agrees that the State does
have a unique interest in the education of Louisiana public school students and in its oversight of
public school education in Louisiana. The Court concludes that the State’s perspectives on issues
that the court must decide in the future—such as the question of whether the St. Mary Parish School
System has achieved unitary status—would be timely and useful. Accordingly, the Court is
inclined to allow the State to file responsive briefs and position statements as amicus curiae in
connection with future motions and matters arising in this case. The State may also participate in
oral argument to the extent that the Court grants oral argument on a particular motion or other
matter.
The State, however, seeks a broader role in this case than merely filing Rule 29 amicus
briefs. Specifically, the State argues for a role equivalent to that of the United States, which the
State characterizes as a “litigating amicus.” 29 Indeed, the State seems to suggest an even more
significant role than the United States by arguing that it satisfies the requirements for “intervention
of right” as a party under Rule 24(a) of the Federal Rules of Civil Procedure. 30 The Court declines
to grant this expanded role. First, the United States has traditionally assumed a significant role in

Club v. Fed. Emergency Mgmt. Agency, CIV.A. H-07-0608, 2007 WL 3472851, at *1 (S.D. Tex. Nov. 14, 2007).
Id.
27
Strasser at 569; see also Club at *1.
28
Evanston Ins. Co. v. Rodriguez Engineering Lab., No. 21-cv-1129, 2023 WL 379277 at *1 (W.D. Tex. Jan. 20,
2023) (citing Leigh v. Engle, 535 F.Supp. 418, 422 (N.D. Ill. 1982)).
29
ECF No. 135 at 1.
30
Id. at 6-10.
25
26

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desegregation cases addressing federal constitutional concerns. 31 Second, and more importantly,
the United States’ participation in the present litigation dates back to September 9, 1969. 32 Since
the case was reopened, the United States has been an active participant, including in discovery.
The State makes its bid for a more active role late in the litigation. Specifically, a class certification
order was previously entered without participation by the State, and discovery closed in February
2022 (with the exception of the discovery issues raised in the objection to the Magistrate Judge’s
ruling). The parties have prepared and implemented six joint “Plans of Work” governing discovery
and other critical case deadlines before the State filed its Amicus Motion. 33 Allowing the State to
now assume the same role as the United States at this late stage would unduly delay the resolution
of this case and the Court’s ultimate decision on unitary status. Finally, the Court notes that the
School Board is represented by able counsel who have experience in desegregation cases and have
been actively litigating this case for the Board since the case was reopened. Allowing the State to
serve in the capacity it now seeks would largely duplicate the efforts of the Board’s counsel. 34 In

See, e.g., Missouri v. Jenkins, 515 U.S. 70, 95 (1995) (United States filed brief as amicus supporting district court’s
ruling); Taylor v. Ouachita Par. Sch. Bd., 648 F.2d 959, 962 (5th Cir. 1981) (referring to the United States’ first
appearance in the case as amicus in 1970); Liddell by Liddell v. Bd. of Educ. of City of St. Louis, 126 F.3d 1049, 1051–
52 (8th Cir. 1997) (“The plaintiffs and the United States as amicus submitted desegregation plans to the district
court.”); Keyes v. Sch. Dist. No. 1, Denver, Colo., 895 F.2d 659, 664 (10th Cir. 1990) (referring to the United States’
position as amicus curiae); Faubus v. United States, 254 F.2d 797, 805 (8th Cir. 1958) (noting that “the status of the
Attorney General and the United States Attorney was something more than that of mere amici curiae in private
litigation” in desegregation case); Reed v. Rhodes, 635 F.2d 556, 557 (6th Cir. 1980), modified, 642 F.2d 186 (6th Cir.
1981) (noting that “the United States as amicus curiae proposed that the court appoint a desegregation administrator
with specified powers”); Harvest v. Bd. of Pub. Instruction of Manatee Cnty., Fla., 312 F.Supp. 269, 275 (M.D. Fla.
1970) (designating the United States as amicus and authorizing it “to appear and participate in this action before this
Court and to accord this Court the benefit of its views and recommendations, with the right to submit proceedings,
evidence, arguments, and briefs, the right to move for injunctive and other necessary and proper relief, and the right
to initiate such further proceedings as may be necessary and appropriate”); Bush v. Orleans Par. Sch. Bd., 190 F.
Supp. 861, 867 (E.D. La. 1960), aff'd, 365 U.S. 569 (1961), and aff'd sub nom. City of New Orleans, Louisiana v.
Bush, 366 U.S. 212 (1961) (noting that the United States, as amicus, “has a vital interest in vindicating the authority
of the federal courts” in desegregation cases).
32
See, e.g., ECF No. 1-15.
33
ECF Nos. 44 (Plan of Work); 57 (First Amended Plan of Work); 70 (Second Amended Plan of Work); 72 (Third
Amended Plan of Work); 83 (Fourth Amended Plan of Work); 88 (Fifth Amended Plan of Work).
34
For example, the State suggests that it would oppose discovery with respect to special education because “brandnew issues” like special education “could [not] possibly be vestiges of the prior de jure segregated system.” ECF No.
119-1 at 2; see also id. at 6. However, counsel for the School Board has previously advanced the same arguments in
discovery litigation before the Magistrate Judge. ECF No. 109.
31

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sum, the Court will grant the State of Louisiana leave to file amicus briefs in response to pending
motions and to participate in oral arguments if and when granted by the Court. In all other respects,
the Court denies the motion. 35
III.
THE BOARD’S OBJECTION TO THE MAGISTRATE JUDGE’S RULING
The School Board objects the Magistrate Judge’s Ruling granting in part and denying in
part its Motion to Amend Protective Order. 36 The stated purpose of the Protective Order is “to
facilitate the production, exchange, and discovery of documents and information that are protected
by the Family Educational Rights and Privacy Act . . . , the School Employees Personnel Files Act
. . . , and other highly sensitive information.ˮ 37 One of the specific categories of information
expressly identified in the Protective Order is “Interested Person Information,” which includes
“the names of educators, class members, and community members who have reached out to
counsel for the plaintiff class or the United States seeking assistance or providing information in
connection with this Litigation.” 38 This category of protected information also includes “other
information that, alone or in combination, would allow a reasonable person in the community to
identify such people with reasonable certainty.” 39 The Protective Order requires that this
information be marked as “ATTORNEYS’ EYES ONLY” and restricts disclosure of this
information to certain designated individuals, namely:
c.

Counsel for any party in this Litigation and their associated and temporary
attorneys, paralegals, and other professional personnel (including support
staff);

35
Although the State invokes Rule 24 (Intervention) in its reply brief, no formal Rule 24 motion has been filed. In any
event, the Court would be inclined to deny any such motion this late in the case for the same reasons that it denies the
State’s request for a more active role in the present motion—i.e., intervention is untimely. See e.g. Assoc. Builders &
Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir 1999) (Rule 24(a) explicitly imposes a “timeliness”
requirement on motions to intervene).
36
ECF No. 131; see also ECF No. 125.
37
ECF No. 79 at ¶ 1.
38
Id. at ¶ 2(d).
39
Id.

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d.

Service vendors . . . who are directly assisting counsel for any party in the
conduct of this Litigation, are under the supervision or control of such
counsel, and who have been advised by such counsel of their obligations
hereunder;

e.

Expert witnesses or consultants . . .;

f.

The Court and court personnel; [and]

g.

An officer before whom a deposition is taken . . . . 40

The School Board seeks to expand the list of persons entitled to view “Interested Person
Information” to include Board members and executive-level administrators—specifically, the
Superintendent, Assistant Superintendent, Central Office Directors, and Central Office
Supervisors—and to allow the foregoing persons to be present during depositions when counsel
question witnesses on Interested Person Information. 41 The School Board contends that its counsel
cannot adequately investigate the allegations made by Interested Persons without the assistance of
Board representatives. 42 The Board further argues the restrictions on “Interested Person
Information” may result in a violation of counsel’s duties under the Louisiana Rules of
Professional Conduct. The Magistrate Judge rejected these arguments and concluded that the
School Board had not established good cause to modify the Protective Order.
A.

Standard of Review.
Where, as here, a magistrate judge rules on a non-dispositive matter, a district judge may

“modify or set aside any part of the order that is clearly erroneous or is contrary to law.” 43 A
magistrate judge’s finding is “‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm conviction that a

Id. at ¶¶ 3, 4.
ECF No. 131 at 1, 16.
42
Id. at 13-15. Specifically, counsel argues that it needs the input of the Board to fully investigate allegations made
by Interested Persons and that, presumably, Board representatives must know the identities of those Interested Persons
to provide that input.
43
Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A).
40
41

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mistake has been committed.” 44 A magistrate judge’s legal conclusions are reviewed de novo and
will be reversed “if the magistrate judge erred in some respect in her legal conclusions.” 45 Here,
the Magistrate Judge applied the correct legal standard for modifying a protective order.
Specifically, courts consider four factors in determining whether to modify a protective order: “(1)
the nature of the protective order; (2) the foreseeability, at the time of issuance of the order, of the
modification requested; (3) the reliance on the order; and (4) whether good cause exists for the
modification.” 46
B.

Nature of the Protective Order.
The Magistrate Judge first found that the nature of the Protective Order weighed against

modification. This factor focuses on the protective order’s “scope and whether it was court
imposed or stipulated to by the parties.” 47 Agreed protective orders are generally “viewed as a
contract, and once parties enter an agreed protective order they are bound to its terms, absent good
cause to modify or vacate the protective order.” 48 This factor also considers the breadth of the
protective order. With respect to breadth, courts categorize protective orders on a spectrum. At one
end of the spectrum are “specific” protective orders, which are “narrowly drawn protective orders”
that cover specific identified information. 49 At the opposite of the spectrum are “umbrella”
protective orders, which designate “all discovery as protected, without review or determination of
‘good cause’ by the parties or the court.” 50 “Blanket” protective orders fall somewhere between

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
Lahr v. Fulbright & Jaworski, LLP, 164 F.R.D. 204, 208 (N.D. Tex. 1996).
46
ECF No. 125 at 7 (quoting Dean v. Texas Tech Univ. Health Scis. Ctr., No. 16-2635, 2017 WL 9901155 at *7 (N.D.
Tex. Sept. 25, 2017)).
47
Washington-St. Tammany Elec. Coop., Inc. v. Louisiana Generating, L.L.C., CV 17-405-JWD-RLB, 2020 WL
10641896, at *3 (M.D. La. Dec. 10, 2020) (quoting Murata Mfg. Co., Ltd. V. Bel Fuse, Inc., 234 F.R.D. 175, 179
(N.D. Ill. 2006)).
48
MBA Eng’g Inc. v. Matrix Tr. Co., 3:20-CV-01915-E, 2023 WL 2619172, at *2 (N.D. Tex. Mar. 23, 2023) (quoting
Orthoflex, Inc. v. ThermoTek, Inc., No.3:10-CV-2618-D, 2013 WL 3095106, *3 (N.D. Tex. June 20, 2013)).
49
Cox Operating, LLC v. ATINA, M/V, No. 20-2845, 2021 WL 5405259, at * 3 (E.D. La. Oct. 1, 2021).
50
Raytheon Co. v. Indigo Sys. Corp., No. 07-cv-109, 2008 WL 4371679, at * 2 (E.D. Tex. Sept. 18, 2008).
44
45

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specific and umbrella protective orders. Blanket protective orders permit the parties to protect that
information which they, in good faith, believe to be particularly sensitive. 51 Blanket protective
orders may be modified for “good cause.” 52
The School Board does not dispute that the parties negotiated and consented to the
Protective Order, including the specific terms of the Order governing “Interested Party
Information.” However, the School Board contests the Magistrate Judge’s conclusion that the
Protective Order is a “specific protective order,” arguing the Order is a “blanket protective order”
because it protects not only Interested Person information, “but information protected by FERPA,
SEPFA, and ‘other highly sensitive information.’” 53 According to the School Board, the terms of
the Protective Order grant Plaintiffs’ counsel and the United States such broad discretion that they
can categorize “virtually anyone” who reaches out to them for assistance or to provide information
as an “Interested Person.” 54
The Court agrees that in some respects the Protective Order is similar to a blanket
protective order, for example, by allowing Plaintiffs and the United States to designate information
as “Interested Person Information,” defined to include “other information that, alone or in
combination, would allow a reasonable person in the community to identify such people with
reasonable certainty.” 55 This language, like language typically used in blanket protective orders
entered in commercial cases, allows the Plaintiffs and the United States to designate information
that they believe, in good faith, would allow a reasonable person to identify an Interested Person.

United States v. Ocwen Loan Servicing, LLC, 4:12-CV-543, 2016 WL 278968, at *3 (E.D. Tex. Jan. 22, 2016);
MBA, 2023 WL 2619172, at *2.
52
Raytheon at *2.
53
ECF No. 131 at 8.
54
Id. at 8-9.
55
ECF No. 79 at ¶ 2(d).
51

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On the other hand, the Court agrees with the Magistrate Judge’s assessment that the
restrictions of the Protective Order with respect to Interested Person Information is narrowly
tailored. The Protective Order applies to a specific class of persons: “educators, class members,
and community members who have reached out to counsel for the plaintiff class or the United
States seeking assistance or providing information in connection with this litigation.” 56 It also
applies to information that would disclose the identities of the forgoing individuals. 57 The Order
does not restrict disclosure of the underlying facts or allegations asserted by Interested Persons.
This definition thus places some boundaries on the discretion of the Plaintiffs and the United States
to designate information as “Interested Person Information,” and more importantly, the School
Board agreed to this definition of “Interested Person Information” when the Board consented to
the terms of the Protective Order. Accordingly, the Magistrate Judge’s conclusion that the nature
of the Protective Order weighs against the Board’s present request to modify the Order is not
clearly erroneous or contrary to law. 58
C.

Foreseeability.
The School Board next challenges the Magistrate Judge’s conclusion that the Board’s

proposed modification was foreseeable at the time the Board agreed to the terms of the Protective
Order. The Magistrate Judge concluded that the “protection of individuals’ identities was clearly
foreseeable and part of the reason for the entry of the Protective Order in the first place.” 59 The
School Board argues that the Magistrate Judge’s conclusion in this regard is flawed because her
ruling conflates foreseeability with the question of whether the parties acted in reliance on the
56

Id.
Id.
58
The Protective Order permits the parties “to challenge any designation of personally identifiable information,
education records, and employee record, or interested person information as inappropriate; or to seek or agree to
different or additional protection for any particular material or information.” ECF No. 79 at ¶ 15. From the Court’s
review, the Board is making no such specific challenge under paragraph 15, but rather, seeks to modify the Protective
Order generally.
59
ECF No. 125 at 8.
57

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terms of the Protective Order. According to the School Board, the Magistrate Judge’s reasoning
ignores paragraph 15 of the Protective Order, which provides that the parties reserve the right to
request that the Order be modified. Based on this reservation language, the School Board argues
that it was foreseeable that the parties might need to modify the terms of the Protective Order at
the time the Order was entered.
The School Board’s Objection misstates the foreseeability factor that courts consider in
deciding whether to modify a protective order. In applying this factor, courts generally consider
whether the specific modification requested is supported by “changed circumstances or new
situations” that were not foreseeable at the time the order was entered. 60 Here, the School Board
seeks to expand the group of individuals entitled to view Interested Person Information to include
Board members and executive-level administrators. The School Board seeks this modification on
the grounds that its counsel allegedly cannot investigate the allegations made by Interested Persons
unless the foregoing representatives have access to information that would disclose the identities
of those Interested Persons. However, the School Board offers no evidence of changed
circumstances or new situations that would justify the modification that they now seek. Nor does
the Board explain how the need for these representatives to access this information was
unforeseeable at the time the Order was entered. Counsel also does not show how its concerns
about potential ethical violations were unforeseeable at the time the Order was entered.
Accordingly, the Court agrees with the Magistrate Judge that the foreseeability factor weighs
against the modification requested by the School Board.

60

Peoples v. Aldine Ind. Sch. Dist., No. 06-2818, 2008 WL 2571900, at * 3 (S.D. Tex. June 19, 2008).

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D.

Reliance.
The School Board also challenges the Magistrate Judge’s conclusion that the parties’

reliance on the protections afforded to Interested Person Information weighs against modifying
those protections. According to the School Board, the Plaintiffs and United States’ arguments that
these provisions encourage School Board employees and community members to come forward
with relevant information without fear of retaliation is not supported by the record. The School
Board asserts that there is no evidence of any threats of retaliation that would chill witnesses from
coming forward absent a protective order. 61 The School Board also argues that any reliance by the
parties or witnesses on the terms of the Protective Order is undercut by paragraph 15 of the Order,
which provides that the parties may request modifications to the Protective Order. 62
The Court agrees with the Magistrate Judge’s conclusion that the parties’ reliance on the
Interested Person Information provisions in the Protective Order weighs against modifying those
provisions at this stage of the litigation. As noted by the Magistrate Judge, the parties agreed to
include these protections for Interested Persons who come forward with relevant information, and
the parties engaged in discovery with the expectation that these protective provisions would apply.
Now, at the close of discovery, the School Board essentially seeks to rewrite these provisions and
expose the identities of School Board employees, teachers, and community members who provided
information to the Plaintiffs and the United States with the expectation that the Protective Order
would shield their identities from supervisors and School Board administrators. 63 If the School
Board had sought the modification earlier in the discovery process, the reliance factor may have
weighed in the Board’s favor. However, in the words of one court, the School Board “should not
now be allowed to dramatically and unilaterally reposition that balance at this stage in the
ECF No. 131 at 11.
Id.
63
See e.g. ECF No. 79 at ¶ 6.
61
62

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litigation.” 64 Accordingly, the Court agrees with the Magistrate Judge’s conclusion that the parties
relied on the Order’s protections for Interested Person Information throughout discovery, and that
this reliance weighs against the School Board’s proposed modification.
E.

Good Cause.
Finally, the Court agrees with the Magistrate Judge’s conclusion that, considering all the

factors as a whole, the School Board has not shown good cause to modify the Protective Order.
The School Board sought to modify the Protective Order late in the discovery process, after it had
been in place for over a year. As noted above, the reasons for the requested modification were
foreseeable at the time the parties negotiated and consented to the terms of the Protective Order.
Furthermore, the Protective Order includes remedies short of modification which would allow
school administrators to view Interested Person Information. Specifically, to the extent the School
Board believes that specific designations of Interested Person Information are inappropriate,
paragraph 15 of the Protective Order allows the School Board to challenge those designations. 65
Moreover, paragraph 15 of the Protective Order also allows the parties “to seek . . . different or
additional protection for any particular material or information.” 66 Under this provision, the Board
could make a tailored request with respect to specific information that it believes requires
“different” protection based on unique circumstances. Here, in contrast, the School Board seeks
an across-the-board modification impacting an entire category of discovery.
In sum, the Court concludes that the Magistrate Judge’s denial of Defendant’s Motion to
Amend Protective Order was not clearly erroneous or contrary to law. The Magistrate Judge also

Raytheon, 2008 WL 4371679, *2.
ECF No. 79 at ¶ 15.
66
Id. (emphasis added).
64
65

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granted a 60-day extension of all deadlines in this matter. 67 The Court affirms that extension and
it shall run from issuance of this ruling.
IV.

CONCLUSION
For the reasons stated above, the State of Louisiana’s Motion for Leave to Participate as
Amicus Curiae [ECF No. 119] is GRANTED IN PART and DENIED IN PART; the School
Board’s Objection to the Magistrate Judge’s Ruling denying the Board’s Motion to Amend
Protective Order [ECF No. 131] is DENIED. All deadlines in the parties’ Plan of Work are
EXTENDED sixty (60) days from issuance of this Ruling.
THUS DONE in Chambers on this 24th day of July, 2023.

ROBERT R. SUMMERHAYS
UNITED STATES DISTRICT JUDGE

67

ECF No. 125 at 11.

16