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Irving v. Carr

United States District Court, S.D. Ohio, Eastern Division

May 26, 2017

STEVE CARR, et al., Defendants.

          Michael Garth Moore Michael Garth Moore, Trial Counsel for Plaintiff

          Michael J. Valentine, Reminger Co., L.P.A., Attorney for Defendants Board of Education Southwestern City School District, Steve Carr, Nicole Tyo, Director, Special Education, Jennifer Bogenrife, Coordinator, Special Education Deborah Carpenter, Coordinator, Special Education, Carl R. Metzger, Assistant Superintendent, Personnel, Amber Hufford, Coordinator, Student Services, and William Wise, Superintendent of Schools, Individually and in their Official Capacity

          Michael H. Watson, Judge



         This case is before the Court on a discovery matter. Defendants have asserted that the Federal Educational Rights and Privacy Act, 20 U.S.C. § 1232g (“FERPA”) precludes production of student names in the documents they produce. However, Plaintiff asserts that her ability to conduct discovery and respond to the accusations against her will be impaired absent identification of the students' names. Hence, the parties have reached an agreement concerning the discovery of that information as well as other confidential material, including all personally identifiable information from a student's education record. This Order reflects the parties' agreement, which is adopted by this Court. Specifically, the parties have agreed:

         Defendants and any third party shall produce documents responsive to Plaintiffs' discovery requests with student names unredacted. Each document containing such information shall be marked “Confidential” and is designated as “Discovery Material.”

         Confidential information shall include the following regardless of designation: any and all personally identifiable information from an education record of a student that is protected by FERPA, 20 U.S.C. §1232g; 34 C.F.R., part 99.

         All Discovery Material designated as “Confidential” when it is produced, or designated as “Confidential” during any depositions taken during this litigation, shall (unless the “Confidential” designation is voluntarily withdrawn or stricken by Order of this Court) be used solely for purposes of the litigation and for no other purpose. If, in the course of discovery or other proceedings in this litigation, Defendants, Plaintiff, or any third-party discloses Discovery Material they deem confidential, or proprietary, the producing party may designate such Discovery Material as “Confidential.” A party may designate information produced in discovery as “Confidential” material only if the disclosing party determines, in good faith, that such material contains individually-identifiable information of students.

         Documents shall be designated as “Confidential” by stamping each page of the document with the corresponding legend. Deposition testimony shall be designated “Confidential” by so indicating orally on the record during the deposition. The designated pages of the transcript of any such deposition shall be marked by the court reporter with the appropriate legend.

         Any person in possession of Confidential Discovery Material shall maintain it in a reasonable and appropriate manner so as to avoid disclosure of its contents in any manner not permitted by this Order.

         Confidential Discovery Material shall not be disclosed to third parties who are not litigants in this case or their counsel, except as provided herein, or except upon prior written consent of the designating party.

         Prior to the disclosure of Confidential Discovery Material, the disclosing party shall take reasonable efforts to notify affected students by mailing a notification form to the student's last known address. The notification shall be sent in such a manner that allows the student reasonable time to state an objection to the production of the information. The parties agree that fourteen days from the date that the disclosing party sends the notice is a reasonable period to allow a student to state an objection. See Browning v. Univ. of Findlay Bd. of Trs., 2016 U.S. Dist. LEXIS 100294, *4-8. At the expiration of the fourteen-day objection deadline, the disclosing party will produce a list to the Court and the parties of all students who did not send an objection to the disclosing party's counsel. Within a reasonable time after providing this list, not to exceed thirty days after the initial notice period of fourteen days or fourteen days after subsequent notice periods, the disclosing party will produce the requested records in compliance with FERPA and subject to the Federal Rules of Civil Procedure and any applicable privilege or doctrines which may otherwise prevent discovery of the information contained within the Confidential Discovery Material.

         If a student objects to the disclosure of information protected by FERPA, then the student may submit the reasons for their objection to the disclosing party. The disclosing party shall then at the expiration of the fourteen-day period for objections submit any relevant Confidential Discovery Material to the Court for consideration and ruling on those objections. The parties agree that, upon request, the Court may make an initial ex parte determination of whether a student's objections justify preventing disclosure under the terms of this Order. If the Court overrules a student's objection, then the disclosing party shall provide the information with seven (7) days of the Court's decision. If the Court sustains a student's objection, then the Court shall provide the student's objections to the parties for consideration without filing it on the public docket. The parties shall have seven (7) days within which to contest the Court's ruling sustaining a student's objection, including the ability to argue that the right to obtain the student's personally-identifiable information in discovery outweighs the stated privacy objection. Under such circumstances, the party may request leave to file a motion for reconsideration under seal.

         Discovery Material that is designated “Confidential” may be disclosed only to the extent reasonably necessary for the ...

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