Pettigrew v. Cherry County School District No. 16-0006

Filing 86

AMENDED MEMORANDUM AND ORDER (To Correct Response Deadlines) regarding pending motions:1) Regarding Cherry County School District's objections to the plaintiff's proposed subpoena, (4:11cv3166, (Filing No. 84 ) and 4:12cv3159, (Filing No. 23)), a telephonic hearing before the undersigned magistrate judge will be held on October 19, 2012 at 2:00 p.m.2) Regarding the Nebraska Department of Labor's objections to Cherry County School District's subpoena, (4:12cv31 59, (Filing No. 12) and 4:11cv3166, (Filing No. 82 )), and Cherry County School District's related motion to compel, (4:12cv3159, (Filing No. 21)): actions due as stated on or before October 22, 2012 3) Regarding the Thayer County Sc hool District's objections to Cherry County School District's subpoena (4:12cv3159, (Filing Nos. 13 & 16)), and Cherry County School District's related motion to compel, (4:11cv3166, (Filing No. 79 ); 4:12cv3159, (Filing No. 18)): actions due as stated on or before October 22, 2012 Member Cases: 4:11-cv-03166-RGK-CRZ, 4:12-cv-03159-RGK-CRZOrdered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BUD PETTIGREW,
Plaintiff,

4:11CV3166

vs.
VALENTINE COMMUNITY SCHOOLS,
CHERRY COUNTY SCHOOL DISTRICT
NO. 16-0006,

AMENDED
MEMORANDUM AND ORDER
(To Correct Response Deadlines
In The Order)

Defendants.
BUD PETTIGREW,
4:12CV3159
Plaintiff,
vs.
CHERRY COUNTY SCHOOL DISTRICT
NO. 16-0006, THAYER COUNTY
SCHOOL DISTRICT NO. 85-0070,
Defendants.

The following discovery objections and motions are pending:
4:12cv3159, (Filing No. 12): The Nebraska Department of Labor's ("NDOL")
Objection to the Subpoena Duces Tecum served by defendant Cherry County
School District ("Cherry County"), and
4:11cv3166, (Filing No. 82); 4:12cv3159, (Filing No. 21): Cherry County's related
Motion to Compel NDOL's Compliance with the Subpoena.
4:12cv3159, (Filing Nos. 13 & 16): Thayer County School District's ("Thayer
County") Objection to the Subpoena Duces Tecum and Motion to Quash served by
Cherry County School District ("Cherry County"); and
4:11cv3166, (Filing No. 79); 4:12cv3159, (Filing No. 18): Cherry County's related
Motion to Compel Thayer County's Compliance with the Subpoena.
4:11cv3166, (Filing No. 84); 4:12cv3159, (Filing No. 23): Cherry County's
Objection to the Plaintiff's Subpoena served on the North Platte Public Schools for
production of documents relating to Jamie Isom’s application for employment as a
superintendent for North Platte Public Schools.

1)

Plaintiff's Subpoena.

The plaintiff has served notice of his intent to serve a subpoena on the North Platte
Public Schools to obtain:
All documents relating to Jamie Isom’s application for employment
(position of Superintendent only) including resume, cover letter,
employment related questionnaire or other required application documents
and interview notes (documents related to grades received, health related
information and/or financial information may be redacted from the
subpoenaed documents produced).
4:11cv3166, (Filing No. 77). Cherry County has objected to the proposed subpoena,
arguing that Jamie Isom is a full-time employee of Valentine Community Schools but is
not a party to this lawsuit, and the requested material is irrelevant, immaterial, and not
reasonably calculated to lead to the discovery of admissible evidence. 4:11cv3166,
(Filing No. 84).

The relevance of the requested information is not readily apparent to the court.
Since this case is being progressed to a February trial date, a prompt decision is needed.
The court will set a hearing on this matter.

2)

Cherry County Subpoenas.

Cherry County provided notice of its intent to serve subpoenas for plaintiff's
employment records on Thayer Central Community Schools, Kimball Public Schools,
and the Nebraska Department of Labor on September 19, 2012. 4:12cv3159, (Filing No.
8). The plaintiff did not object to the notice. Cherry County served the subpoenas. The
Nebraska Department of Labor and Thayer County have filed objections to the
subpoenas.

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Department of Labor records.
The Nebraska Department of Labor claims the records sought are confidential
under state law, and since the defendant may not have pre-paid the full amount needed to
reimburse the State for production of the records, the State is entitled to withhold the
records pursuant to 20 CFR §603.8(d). Cherry County asserts that pursuant to state law,
the State must disclose the records in response to a court order; it has prepaid $40.00 to
the NDOL and will advance or reimburse the NDOL for any additional costs for making
the disclosure; and if necessary, Cherry County is willing to enter into confidentiality
agreement and protective order limiting disclosure of any information produced.

Thayer County records
Thayer County asserts:
The documents requested by [Cherry County] are part of [the plaintiff's]
personnel file" within the meaning of NEB. REV. STAT. § 79-8,109 and,
therefore, may "not be divulged in any manner to any unauthorized person."
If the Court orders the school district to produce the subpoenaed
documents, then the school district respectfully requests that the Court, as
part of its order, permit the school district to redact the names of any
students or other personally identifiable information regarding any students
mentioned in those documents.
4:12cv3159, (Filing Nos. 13 & 16). As with the NDOL records, Cherry County asserts
the plaintiff's employment records are relevant and "[t]o the extent that Thayer claims
said documents are confidential, Defendant is willing to enter into an agreeable protective
order and confidentiality agreement." (Filing No. 18).
Based on the arguments of record, the court will order the Nebraska Department of
Labor and Thayer County to comply with the subpoenas, subject to Cherry County's
compliance with the conditions of the order set forth below and any protective order
entered hereafter by the court.
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Accordingly,

IT IS ORDERED:
1)

Regarding Cherry County School District's objections to the plaintiff's
proposed subpoena, (4:11cv3166, (Filing No. 84) and 4:12cv3159, (Filing
No. 23)), a telephonic hearing before the undersigned magistrate judge will
be held on October 19, 2012 at 2:00 p.m. The hearing will be held on the
record. The court will provide call-in instructions for participation in the
hearing.

2)

Regarding the Nebraska Department of Labor's objections to Cherry
County School District's subpoena, (4:12cv3159, (Filing No. 12) and
4:11cv3166, (Filing No. 82)), and Cherry County School District's related
motion to compel, (4:12cv3159, (Filing No. 21)):
a.

On or before October 22, 2012:
i..
The Nebraska Department of Labor shall provide a statement
of the total costs it will incur for producing the documents requested
in the subpoena served by Cherry County School District, and shall
serve that statement on counsel for Cherry County School District;
and
ii.
The Nebraska Department of Labor, Cherry County School
District, and the plaintiff shall discuss whether a protective order is
needed, and if so, shall either submit that proposed order to the
undersigned magistrate judge for approval, or if they cannot agree on
whether a protective order is needed or the language of that order,
they shall contact the chambers of the undersigned magistrate judge
to set a hearing on the issue.

b.

Once the pre-payment of production costs is made by Cherry County
School District in accordance with the State's demand, and any
necessary protective order, if any, is entered, the Nebraska
Department of Labor shall immediately produce the records in
compliance with the subpoena.

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3)

Regarding the Thayer County School District's objections to Cherry County
School District's subpoena (4:12cv3159, (Filing Nos. 13 & 16)), and Cherry
County School District's related motion to compel, (4:11cv3166, (Filing
No. 79); 4:12cv3159, (Filing No. 18)):
a.

On or before October 22, 2012, Thayer County School District,
Cherry County School District, and the plaintiff shall discuss
whether a protective order is needed, and if so, shall either submit
that proposed order to the undersigned magistrate judge for
approval, or if they cannot agree on whether a protective order is
needed or the language of that order, they shall contact the chambers
of the undersigned magistrate judge to set a hearing on the issue.

b.

Once any necessary protective order, if any, is entered, Thayer
County School District shall immediately produce the records in
compliance with the subpoena.

October 15, 2012.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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