Grier v. Gray et al

Filing 55

CONSENT PROTECTIVE ORDER re 54 Motion for Protective Order. Signed by Magistrate Judge David S. Cayer on 8/11/2020. (mek)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
NO. 3:17-CV-486-FDW-DSC
MAURICE GRIER,
Plaintiff,
v.
DUNCAN GRAY, individually and as an
employee of the Charlotte-Mecklenburg
Board of Education and
THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CONSENT PROTECTIVE ORDER

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, N.C. Gen. Stat. §§ 115C319 and 115C-321, and 20 U.S.C. § 1232g and 34 CFR § 99.31, upon stipulation by the parties,
the Court enters the following Order:
In the course of this action, the Parties may request production of documents and
information contained in personnel records concerning current and/or former employees and
education records of current and/or former students of Defendant Charlotte-Mecklenburg Board of
Education ("Defendant Board"), Plaintiff's educational records, or Defendant may use such
documents and information in its defense.
Portions of such documents and information may be confidential personnel records of local
boards of education protected from disclosure under N.C. Gen. Stat. §§ 115C-319 and 115C-321,
or confidential student records protected from disclosure under 20 U.S.C. § 1232g and 34 CFR §

Case 3:17-cv-00486-FDW-DSC
{CS: 00071367.DOCX }

Document 55 Filed 08/11/20 Page 1 of 8
1

99, but which may be disclosed pursuant to court order under Gen. Stat. § 115C-321(a)(4) and 34
CFR § 99.31 and the circumstances applicable here.
The parties have an interest in limiting disclosure of the records and information for any
purposes other than the litigation process of this case.
Documents and information have been and will be sought, produced or exhibited by and
among the parties to the above-captioned case, which documents and information include certain
materials designated as confidential ("Confidential Materials") that may be produced or otherwise
disclosed during the course of this lawsuit.
IT IS HEREBY ORDERED THAT:
1.

Confidential Personnel Information. "Confidential Personnel Information" of

current and former employees of Defendant Board includes personnel file information as defined
in N.C. Gen. Stat. § 115C-319, and includes information which concerns or relates to an
individual's application, selection or non-selection, promotions, demotions, transfers, leave, salary,
suspension, performance evaluations and forms (including observations), disciplinary actions,
termination of employment, grievances, complaints, human resources and other investigations,
licensure information, and similar information and documents, wherever located and in whatever
form. Confidential Personnel Information may be located in, but not limited to, the following
documents or materials: (i) personnel files, (ii) interview files and the information contained
therein, (iii) supervisory notes and documentation, (iv) investigative files that include incident
reports, as well as notes, photos, videos and audio recordings, and (v) employment files maintained
by employee relations, by school administrators where Defendant Gray or other employees worked
or by other CMS administrators.

Case 3:17-cv-00486-FDW-DSC
{CS: 00071367.DOCX }

Document 55 Filed 08/11/20 Page 2 of 8
2

2.

Confidential Personal Information. Plaintiff may be asked to produce medical

records or other health-related information as well as personal financial and tax records and private
communications with others, including with friends and family. These records may be pertinent to
the factual issues in this case.
3.

Confidential Student Information. The lawsuit involves allegations regarding

Defendant Gray's interactions with Plaintiff and potentially other students, as well as student
witnesses. Records about these students may be pertinent to the factual issues in the case.
4.

Designation of Records as Confidential. Any party producing or furnishing

information to another party, to the Court, or at a deposition in connection with this litigation, may
designate as "Confidential," in accordance with the procedures set forth herein, any such
information, document or part thereof, interrogatory answer, response to request for admissions,
deposition testimony, excerpts and summaries of such information, or other materials as set forth
in this Order. Confidential Personnel Information, Personal Information and Student Information
may be designated as "Confidential." Such designation shall be made at the time the information
in produced or furnished, or at a later time as provided herein.
5.

Procedure for Designating Information as Confidential.

Parties may designate information as Confidential in the following manner:
(a)

In the case of documents or other written materials, by affixing to each page
of every such document, at the time of production, the word "Confidential"
by stamp or other method that will make the word conspicuous;

(b)

In the case of answers to interrogatories, designation shall be made by
placing the word "Confidential" adjacent to or at the end of any answer
deemed to contain confidential information. Alternately, answers deemed

Case 3:17-cv-00486-FDW-DSC
{CS: 00071367.DOCX }

Document 55 Filed 08/11/20 Page 3 of 8
3

to contain confidential information may be bound separately and marked
with the word "Confidential"; or
(c)

In the case of depositions or other pretrial testimony in this action by the
parties or any of their officers or employees, by a statement to that effect on
the record by counsel for the party who claims that Confidential Material is
about to be or has been disclosed. Unless the parties intend to designate all
of the information contained within a particular document or deposition
testimony as Confidential Materials, counsel for that party should indicate in
a clear fashion the portion of the document or testimony that is intended to
be designated as confidential. If not noted during a deposition, within a
reasonable period of time after a transcript is produced, counsel for either
party may designate a response as Confidential Material.

6.

Restricted Use of Confidential Information.
(a)

Documents/information designated as "Confidential" pursuant to this
Protective Order shall be used solely for the purposes of this action and shall
not be disclosed to any person except the following individuals:
i. the Court (including the Clerk's office, stenographic reporters and
videographers, engaged in such proceedings as are necessary to the
preparation for trial and trial of this action);
ii. counsel for the parties, their staff members, their professional and
paraprofessional employees;

Case 3:17-cv-00486-FDW-DSC
{CS: 00071367.DOCX }

Document 55 Filed 08/11/20 Page 4 of 8
4

iii. any experts or service contractors (i.e., court reporters or outside
photocopying or imaging services) associated by the parties regarding
this action;
iv. the parties to this litigation, including officers or managers of a party
who have a need to know the information for purposes of this litigation;
or
v. by mutual consent.
(b)

Documents produced pursuant to this Protective Order shall not be used for
any purpose other than evidence in this litigation and may not be disclosed
under any circumstances to anyone not connected with this action as a party,
witness, counsel, consultant, staff person or court personnel. Specifically,
use of Confidential Material during the trial of this action or in any hearing
in connection with the disposition of this matter by any party shall in no
way permit the use of such material for or in connection with any other
lawsuit, action, hearing or proceeding, without further order of the Court,
express agreement by both parties, or pursuant to a subpoena.

(c)

Nothing in this Order is intended to interfere with an individual's right to
examine his/her own personnel file and the right of Defendant and its
designated representative(s) from examining personnel information to the
extent permitted by law.

7.

Acknowledgment. All persons to whom Confidential Material is disclosed

pursuant to this Order shall be bound by this Order. It shall be the responsibility of counsel for

Case 3:17-cv-00486-FDW-DSC
{CS: 00071367.DOCX }

Document 55 Filed 08/11/20 Page 5 of 8
5

each party to this action to ensure that persons authorized to receive Confidential Material pursuant
to this Order have knowledge of the terms of this Order.
8.

Inadvertent Disclosure. In the event a party inadvertently produces materials

which should have been, but were not, marked "Confidential," the party may designate such
materials as "Confidential" by notifying counsel of the error and producing the documents again,
with the "Confidential" designation, prior to the expiration of the discovery deadline set by the
Court. The parties will then treat these documents as if they had been marked "Confidential" when
they were first produced.
9.

Use of Confidential Materials in this Case. Nothing in this Order shall prevent or

impair the use by a party of Confidential Materials as set forth in paragraphs 1-3 of this Order in
proceedings in this litigation, including motion papers, affidavits, briefs, other papers and
depositions filed with the Court or at any deposition, or hearing, conference, or trial before the
Court so long as confidentiality of such information is protected as provided herein. To the extent
any Confidential Material is filed with the Court, counsel filing the Confidential Material shall file
it under seal in accordance with the applicable Local Rule(s).
10.

Rights Preserved. Notwithstanding the foregoing provisions, this Order shall not

prejudice the right of any party to object to discovery on other grounds. Any party also may, upon
reasonable notice to the opposing party's counsel, move for an order relieving it of the provisions
of this Order for good cause shown. Further, all parties retain the right to apply to the Court for
an order affording additional protection to Confidential Material as the circumstances may warrant.
Nothing contained herein shall prevent a party from seeking modification to this Order.

Case 3:17-cv-00486-FDW-DSC
{CS: 00071367.DOCX }

Document 55 Filed 08/11/20 Page 6 of 8
6

11.

Ultimate Disposition of Confidential Information. The ultimate disposition of all

Confidential Materials protected by this Protective Order shall be made subject to a final order
entered by this Court upon the completion of litigation.
12.

Protection of Copies. All copies, extracts or summaries prepared from

Confidential Materials produced hereunder shall be subject to the same terms of this Order as the
Confidential Material from which such copies, extracts or summaries were prepared, if properly
designated.
NOW THEREFORE IT IS HEREBY ORDERED for good cause shown and with the
consent of the parties that the discovery of protected personnel records and other information shall
be had only upon the following terms and conditions:
All information and documents from protected personnel records concerning current and/or
former employees of Defendant and applicants for employment with Defendant, and other
confidential records and information identified in Paragraph 1 above that are produced or received
by the parties shall be treated as confidential and shall not be disclosed for any purpose other than
the proceedings in this litigation.
A.

All personal information and documents from Plaintiff identified in Paragraph 2

above that are produced or received by the parties shall be treated as confidential and shall not be
disclosed for any purpose other than the proceedings in this litigation.
B.

All Students Records identified in Paragraph 3 above that are produced or received

by the parties shall be treated as confidential and shall not be disclosed for any purpose other than
the proceedings in this litigation.
C.

The parties may only disclose such confidential records and information in the

manner described in Paragraphs 6 and 7:

Case 3:17-cv-00486-FDW-DSC
{CS: 00071367.DOCX }

Document 55 Filed 08/11/20 Page 7 of 8
7

D.

All such persons to whom confidential information and records are disclosed shall

be informed of this Consent Protective Order and shall be bound by its terms and conditions.
E.

No copies of any confidential document shall be made except as is necessary for

the preparation and hearing of this case.
F.

At the conclusion of this litigation, all copies of confidential documents shall be

returned to the respective parties of this case.
G.

By consenting to this Protective Order, the parties do not waive any other objections

allowed under Fed. R. Civ. P 26(b) to the discovery of information.
SO ORDERED.
Signed: August 11, 2020

Case 3:17-cv-00486-FDW-DSC
{CS: 00071367.DOCX }

Document 55 Filed 08/11/20 Page 8 of 8
8