Briggs v. University of Detroit-Mercy et al

Filing 28

STIPULATED PROTECTIVE ORDER regarding Non-Party Student Education Records and Information Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARLOS BRIGGS,
Civil Action No. 13-12583
Plaintiff,
v

District Judge Robert H. Cleland
Magistrate Judge R. Steven Whalen

UNIVERSITY OF DETROIT
MERCY, et al,
Defendants.
Michael L. Stefani (P20938)
Frank J. Rivers (P62973)
Stefani & Stefani, Professional
Corporation
512 E. Eleven Mile Road
Royal Oak, MI 48067
[phone]
Attorneys for Plaintiff

Donald B. Miller (P23419)
Butzel Long, a professional corporation
150 West Jefferson, Suite 100
Detroit, Michigan 48226
[phone]
Attorneys for Defendants University of
Detroit Mercy and Keri Gaither

Michael D. Weaver (P43985)
Plunkett Cooney, P.C.
38505 Woodward Ave., Ste. 2000
Bloomfield Hills, MI 48304
[phone]
Attorneys for Defendants Mort Meisner
and Mort Meisner Associates, Inc.
STIPULATED PROTECTIVE ORDER REGARDING
NON-PARTY STUDENT EDUCATION RECORDS AND INFORMATION
At a session of said Court held in
the City of Detroit, Michigan,
on__November 19, 2013
PRESENT: HON_ROBERT H. CLELAND
United States District Judge

The parties acknowledge that plaintiff has or will be subpoenaing records
related to certain former University of Detroit Mercy (“UDM”) student-athletes,
and certain persons who applied to UDM but were not admitted;
The parties recognize that these individuals are not parties to this litigation
and that the information being disclosed by UDM pursuant to the subpoenas may
qualify as protected education records as defined in the Family Educational Rights
and Privacy Act of 1974, 20 U.S.C.§1232g (“FERPA”). The right to privacy under
FERPA belongs to the student. Even where there is a court order or subpoena,
defendant UDM is obligated to first make a reasonable effort to notify the student
of the order or subpoena in advance of compliance so that the student may seek
protective action. 34 C.F.R. §9931(a)(9)(ii). This notification will be done by
UDM as to the subpoenas received, by notifying the individuals by letter to their
last known address and allowing them time to respond if they so wish.
All student educational records and information and documents containing
information concerning former student-athletes or applicants are subject to this
Protective Order. If any of the information or documents are matters of public
record or otherwise obtainable other than through the educational records, then
such documents and information is not subject to this Protective Order.
In accordance with the stipulation of the parties hereto;

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IT IS ORDERED:
Confidential student records, and the information contained therein, may be
given, shown, disclosed, made available, or communicated only to:
(a)

Attorneys for the parties who have executed this Order or are working

with such attorneys in their respective firms on this matter, and the paralegal,
administrative, clerical and secretarial personnel assisting such attorneys for whom
access to such material is necessary to perform their duties with respect to this
case, provided that execution of this Order by any member of a law firm
representing a party shall constitute a representation that all persons in or
employed by that firm shall observe this Protective Order;
(b)

The parties, to whom the confidentiality provisions of this Order also

apply. The parties may testify, consistent with the rules of evidence, concerning
the documents and information disclosed in the documents, and concerning events
and circumstances concerning and surrounding those student-athletes and
applicants and their records, as long as such testimony is reasonably related to the
subject matter involved in this lawsuit;
(c)

Deposition witnesses and court reporters in the course of such

depositions, provided that as to the court reporters and the witnesses -- if the
witness is not a party to this litigation -- such disclosure can only be made after

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execution of the attached Acknowledgement and pursuant to the terms of this
Order.
(d)

Experts and consultants qualified for access as follows:

Before

allowing an expert or consultant to gain access to the confidential student records
or information contained therein, the disclosing counsel shall first require the
expert or consultant to execute the Acknowledgement form attached hereto and
provide him or her with a copy of this Order.

In the event the expert is to be

utilized as an expert at trial or deposition, a copy of the signed undertaking shall be
provided to opposing counsel, and otherwise any such executed form shall be
provided to opposing counsel upon request.
(e)

The Court, in accordance with the terms of this Order, and if the Court

finds any such document or the information contained therein admissible at trial
and so orders, the jury.
All of these student records shall be maintained securely at the offices of the
attorneys for the respective parties, in such a way as to allow access to those
records only to those persons set forth above.
If a party intends to disclose a confidential student record or the information
contained therein or reasonably related thereto in any public filing in any way that
would reveal the individual’s name, address, e-mail address, telephone number or

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other personally-identifiable information concerning that individual, the party must
seek permission from the Court.
In the event there is any inadvertent or unintended disclosure pursuant to
discovery in this lawsuit of confidential student records or information contained
therein or related thereto, it shall not be deemed a waiver in whole or in part of a
subsequent claim of protected treatment under this Protective Order, either as to
the specific information and/or documents disclosed or as to any other information
and/or documents.

Notice of the inadvertent disclosure shall be made to the

opposing counsel in a timely fashion upon learning of the disclosure.
Upon termination of this litigation, the originals and all copies of
confidential student records, as well as any other materials containing such
information, shall be turned over without demand to the party or non-party who
produced such material, through its counsel, including any copies provided to any
third parties.
Nothing in this Order or to the fact that a party has consented to entry of the
Order constitutes an agreement to provide any confidential student record or
information, or constitutes a determination as to the propriety or enforceability of
any subpoena or discovery requests, constitutes a waiver of any objection to any
subpoena or discovery request, or constitutes a determination as to the

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discoverability or admissibility of any document or information.
___S/Robert H. Cleland
U. S. DISTRICT JUDGE
I STIPULATE TO THE ENTRY OF
THE ABOVE ORDER:
/s/ Frank J. Rivers
Frank J. Rivers (P62973)
Stefani & Stefani, PC
512 E. Eleven Mile Road
Royal Oak, MI 48067
[phone]

/s/ Donald B. Miller
Donald B. Miller (P23419)
Butzel Long, a professional corporation
150 West Jefferson, Suite 100
Detroit, Michigan 48226
[phone]

/s/ Michael D. Weaver
Michael D. Weaver (P43985)
Plunkett Cooney, P.C.
38505 Woodward Ave., Ste. 2000
Bloomfield Hills, MI 48304
[phone]

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ACKNOWLEDGMENT OF READING AND
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
1.

My full name is

____________________________________________

2.

My address is

_____________________________________________
_____________________________________________

3.

My present employer is ________________________________________
________________________________________

4.

My present occupation or job description is _________________________
____________________________________________________________

5.
I have received a copy of the FERPA Protective Order in this action, Carlos
Briggs v. University of Detroit Mercy, et al., US District Court, Eastern District of
Michigan, Case No. 13-12583. I have carefully read and understand the provisions
of the Protective Order. I will comply with all of the provisions of the Protective
Order.
6.
I will hold in confidence, will not disclose to anyone not qualified under the
Protective Order, and will use only for purposes of this action, any confidential
materials disclosed to me.
7.
I will return all confidential materials and all copies or documents containing
any confidential materials which come into my possession, and documents or
things which I have prepared relating thereto, to counsel for the party by whom I
am employed or retained.
8.
I hereby submit to the jurisdiction of this Court for the purpose of
enforcement of the Protective Order in this action.

Dated:__________________

_____________________________
Signature