Williams v. Trotwood Madison City Schools et al

Filing 17

AMENDED STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Sharon L. Ovington on 4/13/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NYRTISTENE WILLIAMS

CASE NO. 3:16-cv-00207

Plaintiff
Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington

vs
TROTWOOD MADISON CITY
SCHOOLS
EDDIE SAMPLE

AMENDED STIPULATED
PROTECTIVE ORDER

KEVIN BELL
TRACEY MALLORY
JUDY McCURDY
Defendants

This Protective Order regarding discovery of any form whatsoever that concerns the
information listed below, is entered pursuant to Federal Rule of Civil Procedure 26(c). The
Court hereby orders that such discovery should be subject to the following terms and conditions:
1.

The parties expect that the following may be deemed “Confidential Information”

and the parties shall designate it where appropriate by stamping the word “Confidential” on the
documents:
(a)

Any and all personally identifiable information from an education record of a
student that is protected by the Family Education Rights and Privacy Act, 20
U.S.C. §1232g: 34 C.F.R. Part 99 and O.R.C.§3319.321.

(b)

Plaintiff’s personal, medical, financial, educational, tax and billing records.

(c)

Any other document that contains personally identifiable and/or medical
information regarding the parties or students;

(d)

Any testimony regarding Confidential Information as defined in Paragraphs 1(a)(c);

(e)

Those portions of briefs, affidavits, memoranda, depositions or other writings,
including exhibits thereto, which contain or refer to the Confidential Information.

2.

The parties, regardless of who produced the documents or information may

indicate the confidential nature of a document or other information by marking each page that
contains such information “CONFIDENTIAL”.
3.

Information disclosed at the deposition of any witness may be designated by any

party as “confidential information” by indicating on the record at the deposition that the
testimony is confidential and subject to the provisions of this Protective Order. Any party may
also designate information obtained at such depositions as “confidential information” by
notifying all parties or their counsel in writing, within thirty (30) days after the receipt of the
transcript of the deposition.
4.

In designating information as “confidential information,” the designating party

will make such designation only as to information that the party, in good faith, believes contains
“confidential information”.
5.

The Trotwood Madison City School District Board of Education and their

component schools mah disclose students’ educational records, including any and all personally
identifiable information from an education record of a student that is protected by the Family
Education Rights and Privacy Act, 20 U.S.C. §1232g: 34 C.F.R. Part 99 and O.R.C.§3319.321,
without written permission from the parent or student, to comply with discovery requests, further
court orders, and to defend itself in this action. Such information shall be deemed Confidential
Information.

6.

Confidential Information shall be used solely for the preparation, trial and/or

settlement of the above-captioned action, and shall not be communicated or used for any other
purpose whatsoever except as compelled by court order.
7.

Confidential Information shall not be given, shown, made available,

communicated, or disclosed to any person or entity other than:
(a)

Counsel of record in this action and their respective associates, clerks, legal
assistants, stenographic and support personnel, and other employees of such
counsel of record (collectively referred to as “counsel”) and a party, if a person, or
if a corporation, its representative(s), or if an estate, its administration(s);

(b)

Those employees and agents of the receiving party having a need to know without
written permission from the producing party or further order of this Court;

(c)

Independent experts and consultants, and the employees of such experts and
consultants who are assisting them, retained or consulted by counsel of record for
any party for the purpose of assisting counsel in this action;

(d)

Third party entities, and the employees of said third party entities, retained by
counsel to provide support services in this action;

(e)

The Court and court employees, court reporters, stenographers, and
videographers;

(f)

The person who is the author or addressee of such document or thing, people
copied thereof, or the designated representative of any corporation or other entity
with whom such person or people are employed or otherwise affiliated; and

(g)

Such other persons as hereafter may be designated by written agreement of all
parties in this action or by Order of the Court permitting such disclosure.

8.

That any person directly assisting counsel to whom the discovery is provided

pursuant to this Protective Order and/or the information contained therein, is shown, furnished,
or otherwise disclosed, shall be shown a copy of this Protective Order and shall be subject to its
terms. He or she shall also acknowledge his or her understanding of the Order by signing a copy
of the same in counsel’s possession. An attached acknowledgment form is provided as Exhibit
A.

9.

Nothing in this Order shall limit the receiving party’s right to disclose

Confidential Information during any deposition, provided that the party to whom the
Confidential Information is disclosed shall sign an agreement to be found by the confidentiality
provisions of this Order.
10.

All information and documents subject to this Protective Order that are filed with

the Court, and all pleadings, motions or other papers filed with the Court that contain or disclose
Confidential Information, whether the actual confidential document is filed or information from
such is simply referenced, that portion of the filed pleading or motion or other paper shall be
filed under seal and shall be kept under seal until further Order of the Court; provided, however,
that such information shall be available to the Court and to persons listed in Paragraph 7 above.
Portions of filings containing information and documents subject to this Protective Order shall
likewise be filed under seal. Nothing in this Order shall prevent any part from using any material
subject to this Protective Order at trial or at any hearing conducted in this matter.
11.

This Protective Order does not authorize filing protected materials under seal. No

document may be filed with the Court under seal without prior permission as to each such filing,
upon motion and for good cause shown, including the legal basis for filing under seal. Unless
the Court orders otherwise, all sealed documents shall be filed according to the Southern District
of Ohio’s Local Civil Rules.
12

The fact that something is designated as “Confidential Information” shall not be

deemed to be determinative of what the Court may subsequently determine to be confidential.
And, the fact that there is a confidential designation shall not be admissible as evidence during
the trial of this action.

13.

If the receiving party disagrees with the producing party’s designation of any

document as “CONFIDENTIAL”, the receiving party shall request in writing the producing
party to redesignate such document, such request setting forth the specific documents at issue an
the reasons the receiving party believes such document should be redesignated. If the producing
party does not redesinate the document within five business days after receipt of the request to
redesignate, the receiving party may then make a motion with the Court for the Court to order the
redesignation of such documents. The party claiming the documents Confidential has the burden
of demonstrating that the document is entitled to “CONFIDENTIAL” STATUS.
14.

If through inadvertence, error or oversight, a party fails to properly designate a

document, tangible thing or information as “CONFIDENTIAL” at the time of production or
disclosure, that party shall promptly notify the receiving party of such error or oversight as soon
as such error or oversight is discovered and shall specify in that notice the particular
document(s), tangible thing(s) or information to be reclassified and shall specify the particular
designation to be applied. Thereafter, the receiving party shall treat such document(s), tangible
thing(s) or information in the same manner as if it had been properly designated or classified
originally. The receiving party shall have ten (10) business days from the receipt of such notice
of reclassification to object to such reclassification in writing. Upon such an objection being
timely made, this Court shall determine whether or not such material can properly be
reclassified. The party claiming the document is Confidential has the burden of demonstrating
that the document is entitled to “CONFIDENTIAL” status. Until such a ruling is made by this
Court, the receiving party shall treat such document(s), tangible thing(s) or information in the
same manner as if it ha been originally designated or classified as CONFIDENTIAL.

15.

By making information and documents designated as Confidential Information

available for use in this action, neithe3r Plaintiff or Defendants have waived or compromised the
confidentiality, protectability, or privilege of the information or documents.
16.

This Protective Order shall not prevent any of the parties or any third party from

applying to the Court for relief therefrom, or from applying to the Court for further or additional
protective orders, or from agreeing between themselves in writing to modification of this
Protective Order, subject to the approval of the Court.
17.

In the event that a party seeks discovery from a non-party to this action, the non-

party may invoke the terms of this Order with respect to any information provided to the parties
by so advising the parties to this action in writing. Any such non-party shall have standing to
appear in this action in order to file motions and oppose motions, as necessary, to protect such
non-party’s rights in its information.
18.

Nothing in this Order shall:

(a)

Limit a receiving party’s use of documents and information that were not obtained
through discovery in this action;

(b)

Limit, expand or restrict any right of any party to resist or compel discovery with
respect to materials that the party may claim to be privileged or otherwise not
discoverable in this action, or the right of any party to seek additional protection
pursuant to the Federal Rules of Civil Procedure.

(c)

Limit or restrict the right of any party to attach to or incorporate the content of
any Confidential Information in any paper filed with the Court in this action or to
show a deponent at a deposition in this actin a document that has been designated
‘CONFIDENTIAL” pursuant to the provisions of this Order, subject to the
provisions and protections afforded by this Order.

(d)

Limit the rights of any state or federal department, agency, or other entity
including without limitation the United States Department of Justice and
Department of Education and all investigations pursuant to any such entity’s
enforcement authority of civil rights laws, to obtain information and documents
exchanged by the parties to this litigation or to otherwise investigate the claims of
Plaintiffs or other similarly situated individuals.

19.

The Protective Order shall be in effect upon execution by counsel for Plaintiff and

counsel for Defendants. Plaintiff and Defendants agree to be found by the terms of this
Protective Order pending its adoption or supplementation by the Court.
20.

The parties acknowledge and understand that the court retains its inherent right to

alter the provisions of this Protective Order when the Court believes the interests of justice will
be served by any such alteration.
IT IS SO ORDERED:
Date: ___________________
April 13, 2017

____________________________
s/Sharon L. Ovington
Magistrate Judge Sharon L. Ovington
United States District Court

SO STIPULATED:

/s/Erica Ann Probst
Erica Ann Probst 0073486
Kemp, Schaeffer & Rowe Co., LPA
88 West Mound Street
Columbus, OH 43215
[phone] phone
[phone] fax
[e-mail]
/s/Lauren A. Kemp
Lauren A. Kemp 0093436
Kemp, Schaeffer & Rowe Co., LPA
88 West Mound Street
Columbus, OH 43215
[phone] phone
[phone] fax
[e-mail]
Attorneys for Plaintiffs

/s/Bernard W. Wharton
Bernard W. Wharton 0063487
R. Gary Winters 0018680
McCaslin, Imbus & McCaslin
632 Vine Street, Suite 900
Cincinnati, OH 45202
[phone] phone
[phone] fax
[e-mail]
[e-mail]
Attorneys for Defendants