KD, et al vs. Douglas County Public School District No. 001, et al

Filing 24

STIPULATED PROTECTIVE ORDER granting 22 Motion for Protective Order. Ordered by Magistrate Judge Cheryl R. Zwart. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

KD and JD, Parents, Natural Guardians and
Next Friends of LD,
Plaintiffs,
CASE NO. 8:17-cv-285

V.

DOUGLAS COUNTY PUBLIC SCHOOL
DISTRICT NO. 001, a/k/a OMAHA PUBLIC
SCHOOLS,

STIPULATED PROTECTIVE ORDER

DANIEL BARTELS,
BRIAN ROBESON,
JOE DOE and JANE DOE, Real Names
Unknown
Defendants.

The Parties expect the disclosure of documents in this case may involve the
exchange of sensitive information, including, inter alia, educational information, medical
and counseling information, financial and tax information, other personal or business
financial information, personally identifying information with respect to Parties, or
employees, and/or other information that would be subject to protection from public
disclosure. Accordingly, the parties stipulate and agree to, and the Court finds good
cause for, entry of the foregoing Protective Order pursuant to Fed. R. Civ. P. 26(c).
It is hereby ordered that:

I.

Treatment of Confidential Information

1.

All documents containing information that is to be considered confidential

information pursuant to this Order shall be marked "CONFIDENTIAL" in large letters on

the first page and on each page of the document on which confidential information is
contained. If a multi-page document is deemed to be confidential in its entirety, a party
may so indicate by marking "CONFIDENTIAL - ENTIRE DOCUMENT" in large letters of
the first page of the document. Any party involved in this case, or counsel for such
party, may designate as confidential any document, testimony, or information disclosed,
or to be disclosed, or portion thereof, if the material includes sensitive information.
Such designation shall, without more, subject the information produced or provided
under said designation to the provisions of this Confidentiality Agreement.
2.
confidential

Any party in this case, or counsel for such party, may designate as
its

"CONFIDENTIAL."

responses

to

interrogatories

by

labeling

each

response

However, the parties or counsel may not designate as

"CONFIDENTIAL" any materials related to a) communications that include or name any
Plaintiff or Defendant Robeson, unless it contains the names of students or their parents
b) any document required to be disclosed in response to a request made under the
Nebraska Public Records Act, Neb Rev Stat § 84-712 et seq., or under the Federal
Freedom of Information Act, 5 USC § 552, or any other law permitting discovery of
documents or information upon request by a member of the public, c) any document
disclosed previously by the School District to law enforcement except those that contain
names of students or their parents, or d) any communication about any Plaintiff between
or among any personnel of the defendant School District or any other parties.
3.

Subject to the limitations in 112, Counsel for any party in this case may

designate deposition testimony or any portion of deposition testimony as confidential by

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advising the court reporter and counsel of such designation during the course of the
deposition.
4.

Whenever any material designated as confidential is identified as an

exhibit in the above-captioned case, it shall be marked "CONFIDENTIAL" and it shall be
subject to all of the requirements of this Confidentiality Agreement.
5.

Inadvertent failure to designate a document as "CONFIDENTIAL" may be

corrected by supplemental written notice given as soon as practicable.
6.

The parties must have a good-faith basis in fact and law to designate the

material as confidential.
7.

The parties shall act in good faith when determining whether any

documents they intend to disclose may contain confidential information and shall make
a good-faith effort to designate any such material as being "Confidential," including but
not limited to social security numbers and medical/healthcare-related information.
8.

Subject to the limitations in ,i2, the parties shall treat as confidential any

information related to the medical history and/or treatment of any person identified by
Parties as having information relevant to this litigation, regardless of the method by
which such information was obtained and regardless of whether such information has
been disclosed in any manner prior to the date of this Order.

Without limiting the

foregoing, any of the parties' discovery requests or responses that reference, contain, or
attach information or documents related to such medical history and/or treatment are
hereby designated as confidential and subject to the provisions of this Order. The fact
that such information is not marked as "Confidential" or that it was received by a third

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party or disclosed prior to the entry of this Protective Order shall not alter the parties'
obligations under this paragraph.
9.

The Parties shall file the Notices of any Third-Party Subpoenas and the

Subpoenas as Restricted if they contain the names of the Plaintiffs. The Parties
acknowledge that the names of the Plaintiffs whose records are being sought will
appear in the subpoena that will be served.

The medical, school, counseling, and

employment records of the Individual Parties or their families shall be treated as
Confidential under this Order.
10.

If any party objects to the designation of any information as confidential,

that party shall meet and confer with opposing counsel within twenty (20) business days
of receipt of this objection in an effort to resolve any such dispute. If the parties are
unable to resolve such dispute, the party designating the material as confidential may
move to have the Court declare the contested information confidential.
11.

Confidential information includes all material designated confidential,

pursuant to the terms of this Order, as well as summaries and compilations derived from
such confidential materials, including but not limited to charts, tables, graphs, and
models.
12.

If non-confidential information is contained in or otherwise derived from

confidential materials, any portion that consists solely of non-confidential information
shall not be confidential for purposes of this Order.
13.

In any judicial proceeding in which confidential information may become a

part of a written submission to the Court, the parties will (1) delete the confidential

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information, or (2) file the written submission as "restricted" through the ECF filing
system.
14.

If confidential testimony or information is contained in the body of any

filings or submissions to this Court (!L9.,, if confidential material is directly quoted or
summarized), the entire filing or submission shall be filed as "restricted" through the
ECF filing system.
15.

Access to confidential information and documents shall be limited to

individuals who must handle those documents for purposes of this litigation.
16.

Except as provided for herein, no person having access to confidential

information shall make public disclosures of that material without further order of this
Court.
17.

Upon conclusion of this case, including any subsequent appeals, all

originals and copies of confidential material (and all summaries thereof) shall be
returned to the producing party or the producing party's counsel or representative or
destroyed, unless: (i) otherwise ordered by the Court for good cause shown, (ii) the
return or destruction of such materials is prohibited by law, or (iii) the document has
been filed with the Court or used as an exhibit.
18.

Notwithstanding anything to the contrary herein, the parties to the above-

captioned case shall have no obligation under this Order with respect to information
that:
a.

is or becomes publicly available (except as by unauthorized

disclosure); or

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b.

is received from a third-party who is rightfully in possession of such

information and who has the right to disclose it.
19.

This Order in no way alters or supersedes the parties' responsibilities

under the E-Government Act of 2002, this Court's Electronic Filing Policies and
Procedures, or any other applicable confidentiality laws, rules or regulations.
20.

Entering into, agreeing to, and/or complying with the terms of this Order

shall not prejudice in any way the rights of any party to object to the production of
documents or information it considers non-discoverable, or to seek a Court
determination whether particular discovery materials should be produced.

21.

No Waiver of Privilege: Disclosure (including production)-regardless of

whether such

disclosure was

inadvertent,

advertent,

intentional,

negligent or

otherwise-of documents or electronically stored information ("ESI") that a Party later
claims should not have been disclosed because of a privilege, including, but not limited
to, the attorney-client privilege or work product doctrine ("Privileged Information"), shall
not constitute a waiver of, or estoppel as to, any claim of attorney-client privilege,
attorney work product, or other ground for withholding production as to which the
disclosing or producing party would otherwise make.
22.

Prompt Return of Privileged Documents and ESI: Upon the request of a

producing or disclosing Party, the receiving Party shall promptly return and/or destroy all
originals and copies of any Privileged Information (including documents or ESI that a
Party claims is Privileged Information, even if the receiving Party challenges that claim).
Arguments that a disclosure was not inadvertent, that the disclosing or producing Party
did not take reasonable or adequate steps to prevent such disclosure, or that the

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disclosing or producing party did not promptly notify the receiving party of the "claw
back" request, shall not be grounds for claiming the documents or ESI are not privileged
or otherwise protected.
23.

Procedure if Privilege Claim Disputed: If any Party disputes the privilege

claim and objects to a request to return or destroy Privileged Information that was
inadvertently produced ("Objecting Party"), that Objecting Party shall notify the
producing party of the dispute and the basis therefore in writing within 1O calendar days
of receipt of the request for the return of the Privileged Information. The Parties
thereafter shall meet and confer in good faith regarding the disputed claim within 1O
calendar days. In the event that the Parties do not resolve their dispute, either Party
may bring a motion for a determination of whether a privilege applies.
24.

Receipt of Privileged Information:

If the receiving Party reasonably

believes that Privileged Information has been disclosed or produced to it, it shall
promptly notify the disclosing or producing Party and sequester such information until
instructions as to disposition are received.
25.

Nothing in this Order limits the parties' right to seek modification of this

Order or to apply for additional protective orders as may become necessary due to a
change in circumstances or for other good cause shown.
26.

Except as otherwise provided herein, the restrictions and obligations

provided in this Order shall not terminate upon the conclusion of this lawsuit, but shall
continue subject to order of this Court. They shall terminate upon compliance with this
Order at or after the termination of this lawsuit.

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IT IS HEREBY ORDERED.

Dated: - - January 10, 2018. - - - - -, 2018

BY THE COURT:

_______________________
Cheryl R. Zwart
THE HONORABLE CHERYL R. ZWART
United States Magistrate Judge
UNITED STATES MAGISTRATE JUDGE

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Dated January 10, 2018
Respectfully submitted,

/s/ David A. Domina

/s/ Jill Robb Ackerman

David A. Domina (NE# 11043)
Brian E. Jorde (NE# 23613)
S. Ryan Greenwood (NE# 25943)
DOMINA LAW GROUP PC LLO
2425 S. 144th St.
Omaha, NE 68144
Phone: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Douglas County School
District No. 001, Joe Doe and Jane Doe
Kathleen Palleson
SPETHMAN, PALLESON LAW OFFICES L.L.C.
And
16145 Bedford Ave.
Omaha, NE 68114
/s/ Clarence E. Mock
[phone]
Clarence E. Mock (NE# 15543)
Email: [e-mail]
JOHNSON & MOCK
Attorneys for Plaintiffs
307 N. Oakland Ave.
P.O. Box 92
Oakland, NE 68045
Phone: [phone]
Email: cmock@johnson&mock.com
Jill Robb Ackerman (NE# 17623)
Leigh Campbell Joyce (NE# 26218)
BAIRD HOLM LLP
1700 Farnam St, Suite 1500
Omaha, NE 68102-2068
Phone: [phone]
Email: [e-mail]
[e-mail]

Attorney for Daniel Bartels

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Attachment A
ACKNOWLEDGMENT OF CONFIDENTIALITY AND PROTECTIVE ORDER

I, _____________ , have read and fully understand the Agreed
Protective Order filed in KO and JD, et. al. v. Douglas County Public School District No.
001 et. al., Case No. 8:17-cv-00285. I am familiar with and agree to comply with and be
bound by the provisions of said Order and submit myself to the jurisdiction of the United
States District Court for the District of Nebraska, or any other court having jurisdiction
over the matters in this lawsuit, for any proceedings with respect to said Order. I will not
divulge to persons other than those specifically authorized by paragraph 15 of the
Order, or copy or use, except solely for the purposes of this action, any material or
information obtained pursuant to said Order except as specifically permitted by the
Order. I hereby agree that upon notification of the conclusion of this case, including any
subsequent appeals, I shall return all originals and copies of confidential material (and
all summaries thereof) to the producing party or the producing party's counsel or
representative, or certify that all such documents have been destroyed.

Dated: - - - - - - -

(Signature)
(Print Name)
(Home Address)
(Home Address Continued)

DOCS/2007893.1

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