M.H. v. Onslow County Board of Education, et al

Filing 39

STIPULATED PROTECTIVE ORDER - Signed by District Judge Louise Wood Flanagan on 10/11/2016. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Southern Division
Civil Action No. 7:16-CV-069-FL
M.H., a minor child, by her parents and
Natural guardians, S.H. and J.H.

:
:
:
Plaintiff,
:
:
STIPULATED
v.
:
PROTECTIVE ORDER
:
ONSLOW COUNTY BOARD OF
:
EDUCATION, ANGELA GARLAND,
:
Principal of Northwoods Park Middle
:
School, in her individual capacity; and
:
TIMOTH J. SAWYER, Jacksonville City :
Police Officer, in his individual and official :
Capacities,
:
:
Defendants.
:
________________________________________________________________________
THIS MATTER comes before the Court at the request of the parties for a Protective
Order regarding the production of confidential information and documents in discovery. After
reviewing the matter, the Court finds and orders as follows:
SECTION I
1.

Defendant Onslow County Board of Education (also referred to herein as “the

Board”) is an educational institution and is therefore subject to the requirements of the Family
Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, et seq.
2.

In discovery in this case, it is anticipated that the parties will need to exchange

information potentially covered by the Family Educational Rights and Privacy Act, including
confidential information and documents pertaining to past and present minor students of
Northwoods Park Middle School and/or Parkwood Elementary School.

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3.

While the Court does not make, at this time, any rulings pertaining to the

discovery or admissibility of any particular document, the Court finds that the confidential
information discussed herein, which includes information pertaining to Northwood Park Middle
School and Parkwood Elementary School’s past and present students, may be necessary for the
resolution of the issues at stake in this action and may be the subject of discovery.
4.

In order to comply with the Family Educational Rights and Privacy Act and to

protect the confidential and private nature of the information and documents referred to herein,
and in order for discovery to proceed in this action without undue delay, the Court orders
production as set forth herein.
5.

This Protective Order also applies to other confidential information that may be

exchanged by the parties in the course of discovery.
6.

The Court has determined that the Plaintiff and Defendants, by and through their

respective attorneys of record, consent to the provisions of this Order and the manner of
production of documents and information set forth herein.
IT IS ORDERED that the confidential and proprietary nature of all documents,
testimony, answers to interrogatories and all other information in whatever form produced or
given by any person pursuant to pretrial discovery in this action (“Discovery Materials”) shall be
protected and governed as follows:
SECTION II
STUDENT RECORDS
To the extent that the documents requested are potentially covered by the Family
Educational Rights and Privacy Act, and/or contain information covered by the Family
Educational Rights and Privacy Act, said documents may only be disclosed in accordance with

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the notice and other provisions of the Family Educational Rights and Privacy Act (described
below), or in a manner, if possible, in which all personally identifiable information pertaining to
students has been redacted from the documents. Identifying information is not limited to a
student’s name, address and social security number.

Identifying information includes any

information of any kind or nature which, taken in conjunction with the remainder of the
information being produced or known, would allow identification of said student.
To comply with the notice requirements of the Family Educational Rights and Privacy
Act, the Board will send to the parent(s) or guardian(s) of the past or present student, whose
information is to be produced or who is referred to or identified in information to be produced, a
copy of this Order and the letter, attached hereto as Exhibit A, notifying them that confidential
student information may be disclosed in this case. Said letter will be sent to the minor student’s
parent(s) or guardian(s) at the home address of record, and if a former student, to their home
address of record, and will give them fourteen days from the date of the letter to object to the
disclosure of the information. If the student, or his or her parent(s) or guardian(s) objects to the
disclosure of the information, such objection should be brought to the attention of Court and the
matter shall be calendared for hearing for resolution of the objection prior to disclosure of
information regarding the student on whose behalf the objection was made.
No such notification of possible disclosure of confidential information governed by the
Family Educational Rights and Privacy Act shall be necessary concerning information regarding
Plaintiff in possession of the Defendants in this case.
All student records produced in accordance with this Order must be stamped
“CONFIDENTIAL”. To the extent electronically stored information is produced in a format that

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does not permit the branding of the designation on the face of the document, the producing party
shall add the abbreviation “CONF” to the file name of such documents.
No student record or document of any kind containing the above noted confidential
information shall be attached as an exhibit to a deposition or filed with the court by any party
without first redacting student names, addresses, social security numbers, birth dates and other
such identifying information; or, the document may be filed under seal as described in Section
III.
If reference to a past or present student becomes necessary in any document to be filed
with the court, or during the course of a deposition, said student will be referred to by initial
letters only or by some other nomenclature agreed upon by the parties so as to not disclose the
individual’s name.
Nothing in this Order prevents any party from objecting, during a deposition, to
questions that require the disclosure of confidential student identifying information or
information protected by the Family Educational Rights and Privacy Act. Said information can
only be disclosed in a manner in which the student is not identified unless said information
involves a student who has been provided notice and the opportunity to object as set forth above.
In the event that confidential, student identifying information or other FERPA protected
information is inadvertently referred to during a deposition, counsel agree that said information
will be marked as CONFIDENTIAL and protected from disclosure as provided in Section III.
SECTION III
PROCEDURES FOR HANDLING CONFIDENTIAL INFORMATION
1.

Any documents, testimony, or information submitted, either voluntarily or

pursuant to any subsequent order, which is asserted in good faith by the producing party or by

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any other party to contain or constitute information protected by Federal Rule of Civil Procedure
26(c)(1), FERPA, or any other provision of law, including information subject to a contractual
duty of confidentiality owed to a third party, shall be so designated in writing, or orally at a
deposition, hearing, or trial, and shall be segregated from other information being submitted.
Materials so designated shall be clearly marked on their face with the legend:
“CONFIDENTIAL.” Such documents, transcripts, or other materials are referred to herein as
“CONFIDENTIAL MATERIALS.” To the extent electronically stored information is produced
in a format that does not permit the branding of the designation on the face of the document (e.g.,
native Excel files or database exports), the producing party shall add the abbreviation “CONF” to
the file name of such documents.
2.

A party wishing to designate portions of a deposition transcript CONFIDENTIAL

pursuant to this Order must designate on the record which portions are CONFIDENTIAL, or,
within three (3) business days from the conclusion of the deposition, order the original or a copy
of the transcript of the deposition from the court reporter for regular turnaround. The designating
party may designate those portions of the transcript CONFIDENTIAL in accordance with
Section II, or Section III, Paragraph 1 of this Order. The designating party shall designate such
CONFIDENTIAL MATERIAL either on the record or by serving upon all counsel of record via
facsimile or other electronic transmission a notice setting forth the pages, line numbers, and
designations. The designating party must serve such notice upon all other parties within fourteen
(14) calendar days after its counsel receives a copy of the deposition transcript. All transcripts
will be treated as confidential until the expiration of the fourteen-day period described in this
paragraph. Any portions of a transcript designated as confidential shall thereafter be treated as
confidential in accordance with the Order. The parties shall negotiate in good faith to alter the

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time frames set forth in this paragraph in situations where a more expedited filing of a designated
portion of the deposition transcript is required.
3.

No person shall use any CONFIDENTIAL MATERIALS or information derived

therefrom (including but not limited to all testimony, deposition or otherwise, that refers,
reflects, or otherwise discusses any such materials), directly or indirectly, for any business,
commercial, or competitive purposes or for any purpose whatsoever other that solely for the
discovery, the preparation, and trial of this action, and/or in accordance with this Order. The
parties agree that CONFIDENTIAL MATERIALS produced in discovery in this case shall not
be used, be required to be produced or admissible, in whole or in part, in any other legal or
administrative proceedings.
4.

Subject to Section III, Paragraph 7, in the absence of prior written permission

from the designating party or an order by the Court, no person shall disclose CONFIDENTIAL
MATERIALS to any person other than: (i) the parties, their attorneys of record, and those
attorneys’ support staff employees who perform work tasks related to this case; (ii) insurance
carriers for the parties; (iii) qualified persons taking testimony involving such material and
necessary stenographic and clerical personnel; (iv) disclosed experts or consulting experts and
their staff employed for this litigation; (v) present or former employees of the producing party in
connection with their depositions in this action (provided that no former employees shall be
shown documents prepared after the date of his or her departure); (vi) any governmental agency
formally requesting such information or documents by subpoena, written notice, or other civil
investigative demand (“CID”), with notice provided to the designating party within five (5) days
of receipt of the request and no fewer that twenty-one (21) days before disclosure or production,
and this Court shall retain jurisdiction to hear any objection that either Plaintiff or Defendants

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may have to providing documents in response to such a request; and (vii) the Court, Court
personnel, and members of any jury impaneled to hear this case.
5.

Subject to Section III, Paragraph 7, no person shall disclose CONFIDENTIAL

MATERIALS to any person designated in Section III, Paragraph 4(iv) unless he or she has
executed a written, dated declaration in the form attached hereto as Exhibit B, acknowledging
that he or she has first read this Order, agreed to be bound by the terms hereof, agreed not to
reveal such CONFIDENTIAL MATERIALS to anyone, and agreed to utilize such
CONFIDENTIAL MATERIALS solely for the purposes of this litigation. The Court hereby
enjoins all persons to whom CONFIDENTIAL MATERIALS are disclosed from disclosing the
same to any person or using the same, except as provided in this Order.
6.

No person receiving or reviewing CONFIDENTIAL MATERIALS shall

disseminate or disclose them to any person other that those described above in Section III,
Paragraph 4 for the purposes specified, and in no event shall such person make any other such
use of CONFIDENTIAL MATERIALS.
7.

In the event that any party disagrees with any designation made under this Order,

the parties shall first try in good faith to resolve the disagreement informally. If the parties
cannot resolve the dispute and the receiving party concludes in good faith that the materials
designating party has improperly classified the materials, the receiving party shall notify the
designating party in writing by facsimile or by electronic transmission of its objection, but shall
continue to maintain the documents or other information as Confidential for fifteen (15) days
after such notice. The designating party shall have the right to move the Court for a Protective
Order to retain designated status of such materials. If the designating party files such a motion
within the fifteen-day period, the receiving party shall continue to maintain the materials as

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CONFIDENTIAL, consistent with the designating party’s designation, until the Court has ruled
on the designating party’s motion.
8.

Subject to Section III, Paragraph 7, any party seeking to file CONFIDENTIAL

MATERIALS with the Court must contact the designating party seven (7) days prior to such
filing to: (i) provide the designating party with notice that it seeks to file CONFIDENTIAL
MATERIALS with the Court; and (ii) meet and confer in good faith to determine whether a
redacted version of the CONFIDENTIAL MATERIALS can be filed with the Court. In the event
no agreement is reached for the filing of a redacted version, the party seeking to file such
CONFIDENTIAL MATERIALS shall file such materials in accordance with Local Rule 79.2
and Section T of the CM/ECF Policy Manual for the Eastern District of North Carolina.
The designating party shall file a Motion to File Under Seal simultaneously with the other
party’s filing and within ten (10) days thereafter shall file a supporting memorandum that
complies with the requirements of Local Rule 79.2 and Section T of the CM/ECF Policy
Manual for the Eastern District of North Carolina. The parties shall work together in good
faith to coordinate the filing of all motions and material covered by this paragraph to permit
compliance with this Order and the Local Rules of this Court, including Section T(1)(a)1(I)
through (v) of the CM/ECF Policy Manual for the Eastern District of North Carolina set forth
below:
(1) Filing Restricted Documents in CM/ECF
a)

Sealed Documents
1.

Except for motions filed under seal in accordance with Section T(1)(a)7 of

this Policy Manual, each time a party seeks to file under seal, said party shall accompany the
request with a motion to seal.

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The motion to seal may be filed without a supporting memorandum only if the filing
party can cite a statute or rule (federal, local or standing order) that requires the filing to be
sealed. Absent such authority, the filing party must submit a supporting memorandum that
specifies:
(i)

the exact document or item, or portions thereof, for which filing under seal
is requested;

(ii)

how such request to seal overcomes the common law or the First
Amendment presumption to access;

(iii)

the specific qualities of the material at issue which justify sealing such
material, taking into account the balance of competing interest in access;

(iv)
(v)
9.

the reasons why alternatives to sealing are inadequate; and
whether there is consent to the motion.

The inadvertent or unintentional disclosure of CONFIDENTIAL MATERIALS

by a producing party without the appropriate designation or the inadvertent or unintentional
disclosure of attorney-client privileged, work product, or other protected documents or media
without an appropriate claim of privilege shall not be deemed a waiver in whole or in part of the
party’s claim of confidentiality or privilege, the receiving party, upon request or upon its own
initiative at such time as it reasonably and in good faith believes itself to be in possession of
inadvertently produced materials, whichever occurs first, shall promptly return the inadvertently
produced materials, and all copies of those materials that may have been made.
10.

Subject to Section III Paragraph 7 and excluding pleadings and documents filed

with the Court, within sixty (60) days after the conclusion of this case, upon written request, the
parties shall assemble and return to the designating party all materials containing

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CONFIDENTIAL MATERIALS (provided that counsel shall be permitted to maintain such
documents for their case files, which shall continue to be subject to the terms of this Order). The
receiving party may elect to destroy such materials rather than return them, in which case the
party shall provide written verification of the same.
11.

This Order shall remain binding after the conclusion of this case unless otherwise

ordered by the Court, and the Court shall retain jurisdiction over all parties bound hereby for the
purposes of enforcing this Order. Each individual signing the acknowledgement attached as
Exhibit B agrees to be subject to the jurisdiction of this Court for purposes of this Order.
12.

This Order does not prevent any party from seeking to seal trial transcripts and/or

trial exhibits, including documents previously filed under seal, or from seeking any other similar
relief pursuant to Local Rule 79.2 and Section T of the CM/ECF Policy Manual for the
Eastern District of North Carolina.
13.

No party may use the entry of this Order, nor the designation of any material as

“CONFIDENTIAL,” nor the failure to make such designation, as evidence on any issue in this
case. A party’s designation of materials as “CONFIDENTIAL” does not waive that party’s
objection to any discovery on the ground that it seeks information protected by Federal Rule of
Civil Procedure 26(c) or any other provision of law.
14.

Nothing in this Protective Order shall be deemed a waiver by a party of any

objections that might be raised as to the relevance or admissibility at trail of evidentiary
materials.
15.

Nothing herein shall affect or restrict the rights of any party with respect to its

own documents or to the information obtained or developed independently of materials afforded
confidential treatment pursuant to this Order.

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16.

Third parties who are the subject of discovery requests, subpoenas, or depositions

in this case may take advantage of the provisions of this Order by providing Plaintiffs and
Defendants with written notice that they intend to comply with and be bound by the terms of this
Order.
11th
October
SO ORDERED this the ____ day of _______________, 2016.

_________________________
Honorable Louise W. Flanagan
United States District Judge

We Consent:
This the 11th day of October, 2016.
J. HEGG LAW, PLLC
/s/ Janelle Mason Mikac
Jason Hegg, Esq.
[e-mail]
Janelle Mason Mikac, Esq.
[e-mail]
J. Hegg Law, PLLC
310 New Bridge Street
Jacksonville, NC 28540
Tel: [phone]
Attorneys for Plaintiff
CROSSLEY MCINTOSH COLLIER HANLEY & EDES, PLLC
/s/ Brian E. Edes
Brian E. Edes
State Bar Number: 25415
Clay Allen Collier
State Bar Number 13266
5002 Randall Parkway
Wilmington, NC 28403
Tel.: [phone]

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[e-mail]
[e-mail]
Attorneys for Defendants
CRANFILL SUMNER & HARTZOG LLP
/s/ Katie Weaver Hartzog
Katie Weaver Hartzog
State Bar No. 32989
Post Office Box 27808
Raleigh, NC 27611-7808
Tel.: [phone]
[e-mail]
Attorneys for Defendants Onslow County
Board of Education and Angela Garland

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EXHIBIT “A” TO STIPULATED PROTECTIVE ORDER
[Date]
SENT VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[Name of parent/guardian of student]
[Address on file]
Dear Mr./Ms. _________:
I am writing on behalf of the Onslow County Board of Education (“the Board”) to inform
you that the Board has received a request for certain education records maintained by the Board
that contain personally identifiable information about your child, __________. The Family
Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g(b) and 34 C.F.R.
§99.31(a)(9)(ii) is a federal law that protect the privacy of student records. These laws permit the
disclosure of these records to comply with a court order. Pursuant to a court order requiring the
release of such records, the Board will release the ordered information after providing reasonable
notice to you unless you properly and timely object as described below.
The Court Order pertains to the case of M.H., a minor child, by her parents and natural
guardians, S.H. and J.H. v. Onslow County Board of Education, et al., Court File No.
7:16CV069-FL, which is currently pending in the Eastern District of North Carolina Federal
Court. On ________, the Court issued a Protective Order that prevents any party from disclosing
confidential information acquired in the course of the lawsuit, including student records, to
anyone other than the parties, their attorneys and consultants, and the Court. None of the
information may be used outside the context of this lawsuit, and the parties are required to either
return or destroy the confidential records at the conclusion of the lawsuit. No student’s
identifying records will be disclosed to the public. For your convenience, a copy of the Court
Order is enclosed with this letter.
If you wish to object to the release of this information, you have fourteen (14) days from
the date of this letter to object to the disclosure of this information. If you wish to object to the
disclosure, you should submit your objection in writing to the United States District Court for the
Eastern District of North Carolina in Wilmington. To submit an objection, you may write a
confidential letter to the presiding judge in this matter, including the name of the student on
whose behalf you are writing, your name, address, and relationship to the student, the student’s
date of birth and school, and the basis of your objection. If you write a letter, on the first page of
your letter, write in large or underlined letters: “TO BE FILED UNDER SEAL” and
“OBJECTION TO DISCLOSURE OF STUDENT INFORMATION AND RECORDS, CASE
NO. 7:16-CV-069-FL.” Mail your objection to:
The Honorable Louise W. Flanagan
c/o Clerk of the Court

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U.S. District Court for the Eastern District of North Carolina
P.O. Box 25670
Raleigh, NC 27611
Attn: DOCUMENT FILED UNDER SEAL
DO NOT CALL THE COURT. THE COURT WILL NOT ACCEPT PHONE
CALLS ABOUT THIS MATTER. YOUR OBJECTIONS MUST BE SENT TO THE
COURT IN WRITING.
Failure to submit an objection to the Court within fourteen days of the date of this letter
will be deemed a waiver of your right to object to the disclosure of your or your child’s protected
personal information and records. If an objection to disclosure is timely made, a hearing will be
calendared by the Court to resolve your objection. You may contact me at (919)-863-8744 if you
have any questions.
Sincerely,

Katie Weaver Hartzog

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
Southern Division
Civil Action No. 7:16-CV-069-FL
M.H., a minor child, by her parents and
Natural guardians, S.H. and J.H.

:
:
:
Plaintiff,
:
:
EXHIBIT “B” TO
v.
:
STIPULATED PROTECTIVE
:
ORDER
ONSLOW COUNTY BOARD OF
:
EDUCATION, ANGELA GARLAND,
:
Principal of Northwoods Park Middle
:
School, in her individual capacity; and
:
TIMOTH J. SAWYER, Jacksonville City :
Police Officer, in his individual and official :
Capacities,
:
:
Defendants.
:
______________________________________________________________
DECLARATION OF _____________________________
UNDER STIPULATED PROTECTIVE ORDER
I, _______________, being duly sworn, declare as follows:
1.

My address is _________________________________________.

2.

My present employer is _________________________________.

3.

My present occupation or job description is _____________________

_________________________________________________________________.
4.

I hereby acknowledge that (i) I have been given a copy of the Stipulated

Protective order (“Protective Order”) in the above-referenced case; (ii) I carefully read
the Protective Order; and (iii) I understand and am familiar with the terms of the
Protective Order.

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5.

I will comply with all of the provisions of the Protective Order. I will hold all

Confidential Materials disclosed to me, including the substance and any copy, summary
abstract, excerpt, index or description, in confidence, and will not disclose such material
to anyone not qualified under the Protective Order. I will not use any Confidential
Material disclosed to me for any purposes other than this case.
6.

I will return all Confidential Material that comes into my possession and all

documents and things that I have prepared relating thereto, to counsel for the party by
whom I am retained or employed, or from whom I have received such material.
7.

I hereby submit to the jurisdiction of the United States District for the Eastern

District of North Carolina for the purpose of enforcement of the Protective Order in this
case.
I declare under penalty of perjury that the foregoing is true and correct.

__________________________

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