B.R. v. Fairfax Cnty. Sch. Bd.
B.R. v. Fairfax Cnty. Sch. Bd.
2022 WL 5165111 (E.D. Va. 2022)
October 4, 2022

Fitzpatrick, William E.,  United States Magistrate Judge

Medical Records
Privilege Log
Clawback
Attorney-Client Privilege
Privacy
Attorney Work-Product
Third Party Subpoena
Protective Order
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Summary
The Court issued an Amended Protective Order to protect Plaintiff and potentially other individuals from annoyance, embarrassment, oppression, or undue burden or expense. The Order outlines procedures for the designation of ESI as Confidential Material or Highly Confidential Material, as well as procedures for the disclosure, challenge, and destruction of such materials.
B.R., Plaintiff,
v.
FAIRFAX COUNTY SCHOOL BOARD, et al., Defendants
Civil No. 1:19-cv-917-RDA-WEF
United States District Court, E.D. Virginia
Signed October 04, 2022

Counsel

David Alan Warrington, Gary Lawkowski, Dhillon Law Group Inc., Alexandria, VA, Jeffrey Arnold Breit, Kevin Biniazan, Breit Biniazan, PC, Virginia Beach, VA, Justin Matthew Sheldon, Lee Adair Floyd, Breit Biniazan, PC, Richmond, VA, Karin Moore Sweigart, PRO HAC VICE, Dhillon Law Group, San Francisco, CA, Thomas Needham Sweeney, Messa & Associates PC, Philadelphia, PA, William Henry O'Brien, Doummar & O'Brien, Virginia Beach, VA, for Plaintiff.
Ryan Bates, Sona Rewari, Stuart Alan Raphael, Hunton Andrews Kurth LLP, Washington, DC, Michael Eugene Kinney, The Law Office of Michael E. Kinney, PLC, Reston, VA, for Defendants, F.C.S.B., S.T.
James Francis Davis, James F. Davis, P.C., Fairfax, VA, for Defendants.
Bruce Michael Blanchard, James Paul Menzies Miller, Odin, Feldman & Pittleman, PC, Reston, VA, for Defendants.
Fitzpatrick, William E., United States Magistrate Judge

AMENDED PROTECTIVE ORDER

*1 This matter is before the Court on Plaintiff's Motion to Amend the Stipulated Protective Order and supporting memorandum (Dkts. 197, 198).
The Parties jointly submitted a Stipulated Protective Order on April 22, 2022, which the Court entered the same day (Dkt. 134).
On September 9, 2022, Plaintiff moved to quash two subpoenas duces tecum issued by Defendants to non-party mental health service providers arguing, in part, that the Stipulated Protective Order was insufficient to protect the privacy rights of Plaintiff (Dkt. 187). The Court ordered the Parties to meet and confer regarding modification of the Stipulated Protective Order and, if unable to reach an agreed upon resolution, submit to the Court the Parties' respective proposed modifications to the Stipulated Protective Order and argument in support (Dkt. 195).
The Parties met and conferred but were unable to reach an agreement as to all material terms to amend the Stipulated Protective Order. Therefore, on September 23, 2022, Plaintiff submitted a Motion to Amend the Stipulated Protective Order, proposed order, and memorandum in support (Dkts. 197, 198). Defendants submitted opposing argument and a proposed order (Dkts. 196, 199). With leave of Court, Defendants also submitted supplemental briefing (Dkts. 200, 201). The Court held a hearing on October 4, 2022, receiving oral argument from the Parties in support of their proposed orders.
Upon consideration of the Parties' briefing and oral argument,
The Court finds pursuant to Federal Rule of Civil Procedure 26(c), good cause exists to issue this Amended Protective Order to protect Plaintiff, and potentially other individuals, from annoyance, embarrassment, oppression, or undue burden or expense.
The Court further finds that the provisions of this Amended Protective Order properly balance the significant and legitimate privacy interests of the Plaintiff with the need for the Defendants to engage in a fulsome discovery process and prepare their respective defenses.
The Court further finds the agreement of the Parties as to the following discovery issues is reasonable and the Court adopts the same, which include:
The agreement of the Parties that discovery in this case may call for the disclosure of personal and confidential records pertaining to the Parties and non-parties, including information protected by the Family Education Rights and Privacy Act (“FERPA”), Code of Virginia §§ 2.2-3705.1 and 2.2-3705.4, the Health Insurance Portability and Accountability Act (“HIPAA”), or other federal regulations and statutes;
The agreement of the Parties that the unrestricted disclosure of such private and confidential information would be prejudicial to the Parties and non-parties and would compromise the rights of the Parties and non-parties alike; and
The agreement of the Parties that this Amended Protective Order is intended to facilitate discovery and to eliminate, where possible, disputes between the Parties concerning discovery issues by providing court-ordered protection for confidential and/or non-public information, without diminishing the rights of any party to have information to which it is entitled, pursuant to any rule or Order of this Court or otherwise.
*2 The Court further finds that the terms of the Amended Protective Order agreed upon by the Parties are reasonable and have been incorporated into this Order.
For reasons stated from the bench, and in accord with specific rulings and instructions thereto, it is hereby
ORDERED that Plaintiff's Motion to Amend the Stipulated Protective Order (Dkt. 197) is GRANTED IN PART and DENIED IN PART; it is further
ORDERED that this Amended Protective Order shall supersede the Stipulated Protective Order (Dkt. 134) as the operative Protective Order in this case:
IT IS, THEREFORE, ORDERED that:
1. Confidential and Highly Confidential Material. “Confidential Material” means any document, electronically stored information, testimony, or thing being produced in this litigation, whether formally or informally, that any Party or non-party from whom discovery is sought (the “Designating Party”) reasonably believes constitutes confidential information or is otherwise entitled to protection under the Federal Rules of Civil Procedure, such as (1) educational or scholastic records protected under FERPA; (2) medical, mental health, counseling records or information, or other records protected under HIPPA; (3) personnel or employment records protected from disclosure under the Virginia Freedom of Information Act (“VFOIA”) and federal, state, and local employment law; (4) sensitive and non-public personal financial records or information; (5) any other records protected from disclosure under VFOIA; and (6) juvenile police records.
“Highly Confidential Material” means photographs in Plaintiff's Sexual Assault Nurse Examiner (“SANE”) report, photographs of Plaintiff in Plaintiff's medical records, photographs or video of sexual abuse (if any such photographs or videos exist), therapy notes from Plaintiff's current treating mental health physicians or counselors, Plaintiff's current address, phone number, and email address, and the current address, phone number, and email address of members of Plaintiff's immediate family.
To enable identification of certain “Highly Confidential Material,” within three days of entry of this Order, Plaintiff shall advise Defendants' counsel of the identities of Plaintiff's current treating mental health physicians or counselors, and if Plaintiff changes her current treating mental health physicians or counselors, Plaintiff shall advise Defendants' counsel within three days of such changes.
2. Designation. Documents or information may be designated as Confidential Material or Highly Confidential Material under this Amended Protective Order by the person or entity producing it or by any party to this action (the “Designating Party”) by placing or affixing the word “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY” on the document or information in a manner that will not interfere with its legibility or readability. For information produced in native format, it may be designated as Confidential Material by including the designation in the filename and/or affixing the designation on a corresponding image slipsheet for the document.
3. Protection of Confidential Material.
*3 a. Confidential Material may be used by the Party or Parties to whom it is produced only for the prosecution and/or defense of claims asserted in this action. It may not be used by such Party or Parties for any other purpose, including but not limited to any use in any other state, federal, local and/or municipal, administrative or legal proceeding, lawsuit, enforcement action, arbitration, mediation or other proceeding, regardless in nature of the relationship to the claims asserted to this action. All complete or partial copies of Confidential Material, and written materials summarizing or derived from Confidential Material, are also subject to the term of this Amended Protective Order.
b. Confidential Material may be disclosed by a non-Designating Party only to the following:
i. Persons who appear on the face of the Confidential Material as an author, addressee, or recipient thereof, or participated in events described or contained in the Confidential Material, or in whose files the Confidential Material was found;
ii. The Parties;
iii. Counsel of record for the Parties and in-house counsel for the Fairfax County School Board, and their associates, legal assistants, or other support employees who have a demonstrable need for such disclosure in order to conduct this litigation;
iv. Any expert or consultant consulted or retained for the purposes of this litigation, consistent with the terms of Paragraph 3(c) below;
v. any non-party deponent during the course of a deposition (so long as he/she is informed that the information is confidential pursuant to this Order) or trial witness;
vi. Personnel of third-party vendors engaged by the Parties to assist in (i) the coding, imaging, or other management of documents for purposes of this litigation; or (ii) the preparation of demonstrative exhibits or other visual, aids for presentation at a hearing or trial; and
vii. The Court and authorized Court personnel, including court reporters and videographers at any deposition taken in this case.
c. Before any Confidential Material may be disclosed to any person in Paragraph 3(b)(iv), each such person must (i) state under oath in a written document in the form of Exhibit A (attached) or (ii) state under oath in a deposition that he or she is fully familiar and agrees to comply with the terms of this Amended Protective Order and further agrees to submit to the jurisdiction of this Court with respect to any disputes arising under this Amended Protective Order. Counsel must maintain a file of each signed Exhibit A.
4. Protection of Highly Confidential Material.
a. Material designated as Highly Confidential may only be disclosed to the individuals referenced in Paragraphs 3(b)(i), 3(b)(iii), 3(b)(iv), 3(b)(vi), and 3(b)(vii).
b. Notwithstanding the above, nothing in this Amended Protective Order shall restrict the pre-existing rights of each Party to access and disseminate their own Highly Confidential Material, including information held by third parties. Notwithstanding the above and except with regarding to Plaintiff and Plaintiff's family's contact information (including email addresses, physical address, and phone numbers), nothing in this Amended Protective Order shall prevent any Parties' counsel from describing the contents of Highly Confidential Material to their clients as reasonably necessary to advise them in conjunction with this case.
c. If a document is marked as “HIGHLY CONFIDENTIAL,” the Designating Party shall also produce a version of the document with redaction(s) of the Highly Confidential Material so that the receiving party may provide the redacted version to its client.
5. Use of Real Names. Pursuant to the Court's order dated March 10, 2020, the Parties will use initials for the Plaintiff and the Individual Defendants in all public filings. Notwithstanding this, the Parties are expressly permitted to use the real names of the Plaintiff and the Individual Defendants for their own investigation, informal discovery, and formal discovery.
*4 6. Notice of Contact with Certain Persons. To ensure, to the extent possible, the Plaintiff can control the manner and circumstances in which individuals with whom she currently has, or previously had, direct contact or a personal association first learn of Plaintiff's claims of sexual assault as set forth in the complaint, the Defendants' counsel must advise Plaintiff's counsel of the identity of any individual the Defendants intend to contact, where Defendants' counsel has a reasonable basis to believe the individual to be contacted currently has, or previously had, direct contact or a personal association with Plaintiff and does not already have knowledge of the allegations in the complaint.
Similarly, Plaintiff's counsel must advise Defendants' counsel of the identity of any individual the Plaintiff intends to contact, where Plaintiff's counsel has a reasonable basis to believe the individual to be contacted currently has, or previously had, direct contact or a personal association with one of the individual Defendants and does not already have knowledge of the allegations in the complaint.
Counsel must provide this notice to opposing counsel no less than 72 hours before attempting to contact any such individual. During the 72-hour period and any subsequent period in which there remain unresolved objections, no party's counsel shall contact the individual; however, Plaintiff, her mother, and her father shall be permitted to contact the individual to relay her claims of sexual assault. If, after receiving this notice, the receiving Party reasonably believes there is no legitimate purpose to contact the individual and the contact is intended to annoy, embarrass, oppress, or will constitute an undue burden, then the receiving Party will advise opposing counsel of their position within 48 hours of receiving notice and within one day thereafter the Parties shall meet and confer. If the Parties cannot resolve the issue, then the receiving Party shall file a motion with the Court seeking an appropriate remedy within one week of receiving notice. If such a motion is filed, no contact will be made with the individual until the matter has been resolved by the Court. Any such motion shall be filed, noticed for a hearing and briefed in accordance with the expedited motions schedule set forth in Paragraph 15.
This provision shall not require the School Board to provide notice for their own current or former employees, nor shall it prohibit any party from contacting individuals identified in the parties' initial disclosures and interrogatory answers.
7. Depositions. Unless all Parties agree on the record at the time the deposition testimony is taken, all deposition testimony taken in this case must be treated as Confidential Material until the fourteenth (14th) calendar day after the final deposition transcript is delivered to any party or the witness. Within the 14-day time period, a Designating Party may serve a Notice of Designation upon the Parties, identifying the specific portions of testimony that are designated Confidential Material. Such material may be identified in writing or by underlining the relevant portions of the deposition transcript or the exhibits and marking such portions “CONFIDENTIAL.” After the expiration of the 14-day time period, only those portions of the deposition transcript will be protected by the terms of this Amended Protective Order.
8. FERPA-Protected Information
a. Material that is covered by FERPA may only be disclosed in accordance with the notice and other provisions of FERPA, or in a manner, if possible, in which all personally-identifying information pertaining to FCSB's current or former students has been redacted. FERPA-protected identifying information is not limited to a student's name, address, and social security number. Personally-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 the student.
*5 b. Prior to the disclosure of a record that will identify information about a current or former student, the Producing Party shall take reasonable efforts to notify the affected student(s) by transmitting a notification form to the student's/parent's/guardian's (as applicable) last known physical mailing address or email address. The notice will indicate, at a minimum, that FERPA-protected information has been requested in the above-captioned matter, that confidential disclosure of such information is authorized by this Amended Protective Order, and that they may object to the disclosure of such information within 14 days of the date of the notice. If timely objection is made by or on behalf of the affected student, the objection may be brought to the attention of the Court for resolution and, in the meantime, the contested FERPA-protected information will not be disclosed. The Parties agree that 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 Producing Party shall provide the information within ten (10) days of the Court's decision, 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 Material, without student names or student identification numbers. 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.
c. 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 FERPA. Such 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.
9. Filing of Confidential/Highly Confidential Material.
a. If any party intends to file or use at trial any materials designated as Confidential or Highly Confidential, that party shall take steps reasonably necessary, in accordance with the Federal Rules of Civil Procedure and the Local Rules, to protect their confidentiality during such filing or usage. This Amended Protective Order does not, by itself, authorize the filing of any document under seal.
b. Confidential Material that is protected by HIPPA or FERPA may be filed publicly only if it has been redacted in a manner that excludes all personally identifiable information regarding the affected individual. Identifying information includes names, addresses, Social Security numbers, telephone numbers, and information of any kind or nature which, taken in conjunction with the remainder of the information being produced or known, would allow identification of the individual.
c. Any Party who seeks to file with the Court any unredacted HIPPA or FERPA-protected information or other Confidential Material must comply with Rule 5 of the Local Civil Rules of this Court.
d. Nothing in this Amended Protective Order limits or determines what a Party may do with its own Highly Confidential or Confidential Information.
10. Challenges to Confidentiality Designations.
a. A party may challenge the propriety of any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” designation under this Amended Protective Order at any time. A challenge may be made by serving the Designating Party with a captioned notice of objection, which must identify which designation is challenged and state the basis for each challenge (“Notice of Objection”).
b. Following service of a Notice of Objection, the Parties must confer or make a good faith attempt to confer in person or by telephone to resolve the challenge. In the event that the Parties are unable to resolve the challenge informally, the party challenging the designation may file, on or before the fourteenth calendar day after service of a Notice of Objection, a motion to re-designate the challenged material.
c. The burden will be on the Designating Party under such circumstances to establish that the challenged information is Confidential Material or Highly Confidential Material within the meaning of this Amended Protective Order.
d. The original designation remains effective until the Court has ruled on the motion and during the period while any timely-filed objections are under consideration by the Court, as provided in Fed. R. Civ. P. 72(a).
e. Any motion may be noticed and heard in accordance with the expedited briefing schedule set forth in Paragraph 15.
*6 11. Modification of this Order. The Parties reserve the right to seek modification of this Amended Protective Order at any time for good cause. The Parties agree to meet and confer before seeking to modify this Amended Protective Order for any reason. The restrictions imposed by this Amended Protective Order may be modified or terminated only by written stipulation of all Parties or by order of this Court.
12. Disclosure of Privileged or Otherwise Protected Information.
a. The disclosure of information subject to a claim of attorney-client privilege, work product protection, or other applicable privilege or protection—whether inadvertent or otherwise—is not a waiver of privilege or of protection from discovery in this case or in any other federal or state proceeding. For example, the mere disclosure of privileged or work product protected documents in this case as part of a mass production will be considered inadvertent and will not, by itself, constitute a waiver in this case or in any other federal or state proceeding. This Order should be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d). To properly assert a privilege over produced information, the producing party will not have to satisfy the elements of Federal Rule of Evidence 502(b)—i.e., it will not have to show that the production was inadvertent, it will not have to show it took reasonable precautions to prevent the production, and it will not have to show that it took reasonably prompt measures to rectify the error once it knew or should have known of the production.
b. If a Producing Party or its counsel becomes aware that it has produced to a Receiving Party any document, information or material that is, or contains information, protected by the attorney-client privilege, work product doctrine and/or any other applicable privilege or immunity (a “Potentially Privileged Document”), then the Producing Party must promptly notify counsel for each Receiving Party in writing and identify each Potentially Privileged Document with sufficient particularity to enable each Receiving Party to locate and return them to the Producing Party. The Receiving Party, upon receiving notice that privileged or protected documents have been produced (a “clawback” notice), (1) must promptly return or destroy the specified information and any copies it may have including by deleting or otherwise permanently removing the specified information from any systems used to house documents, including document review databases, e-rooms, and any other locations that store the document; (2) must not use or disclose the information until the claim is resolved; and (3) must take reasonable steps to retrieve the information if the party disclosed it before being notified. Notwithstanding this provision, no Receiving Party shall be required to return or destroy any Potentially Privileged Documents that may exist on any disaster recovery backup systems. Such materials should be overwritten and destroyed in the normal course of business.
c. The Party or Non-Party seeking protection for the documents subject to the clawback notice must provide a privilege log for the documents subject to the notice within five business days, from which the Receiving Party can determine whether or not to challenge the claim of privilege or other protection for those documents. However, such a challenge may not allege that privilege was waived for the challenged documents because they were inadvertently produced.
*7 d. The Receiving Party may make no further use of the privileged or protected documents during any aspect of this matter or any other matter, including in depositions or at trial, unless the privileged or protected documents are later designated by a court as not, or no longer, privileged or protected. The contents of the privileged or protected documents must not be disclosed to anyone, except that, should the Receiving Party file a motion challenging the privilege designation of a document on grounds other than inadvertent production, the Producing Party may submit the challenged document under seal for the Court's in camera review when it files its response to that motion. If the Receiving Party has any notes or other work product reflecting the contents of the privileged or protected documents, the Receiving Party may not review or use those materials unless a court later designates the privileged or protected documents as not, or no longer, privileged or protected.
e. Consistent with ABA Model Rule 4.4, any lawyer to a Party who receives any information that the lawyer knows or reasonably should know was inadvertently sent by a Producing Party shall promptly notify the sender.
13. Latent Confidentiality Claims. To the extent consistent with applicable law, the inadvertent or unintentional disclosure of Confidential Material or Highly Confidential Material that should have been designated as such, regardless of whether the information, document or thing was so designated at the time of disclosure, will not be deemed a waiver in whole or in part of a Party's claim of confidentiality, either as to the specific information, document or thing disclosed or as to any other material or information concerning the same or related subject matter. Such inadvertent or unintentional disclosure may be rectified by notifying in writing counsel for all Parties to whom the material was disclosed that the material should have been designated Confidential or Highly Confidential within a reasonable time after disclosure. Such notice will constitute a designation of the information, document or thing as Confidential or Highly Confidential under this Amended Protective Order.
14. Prior Production of Documents. If a Producing Party produced any information or document prior to the effective dates of this Order, then the Producing Party may designate, within fourteen (14) days from the date of this Order, any information or documents. In the event that a Party seeks to designate, or change the designation of, previously produced material (including material produced by third-parties) within this period, the Party seeking the post-production designation must reproduce that material with the correct designation. The provisions of Paragraph 10 (Challenges to Confidentiality Designations) still apply to the designation of prior produced documents as Confidential or Highly Confidential. The Parties agree that, pending the resolution of any such disputed matter, under Paragraph 10, they will treat the information or document as designated (Highly Confidential or Confidential) under the terms of this Order.
15. Seeking Additional Relief. Nothing herein prevents the Parties from seeking additional relief from the Court as circumstances may warrant. In order to provide for the prompt resolution of any dispute related to the application of this Amended Protective Order or any other discovery related issue, a motion may be filed by no later than 5:00 p.m. on a Friday and noticed for a hearing at 10:00 a.m. on the following Friday. Under this expedited schedule, a response brief must be filed no later than 5:00 p.m. on the following Wednesday and any reply brief should be filed as early as possible on Thursday to give the court time to review all pleadings before the hearing. This, however, does not relieve the Parties from their obligation to meet and confer in good faith to attempt to resolve any outstanding issues prior to filing a motion with the Court.
*8 16. Asserting Privacy Rights. Nothing herein prevents any non-party from asserting privacy rights as to documents or information held by the Parties, including but not limited to those rights protected by HIPAA and FERPA.
17. Within 60 days of termination of this litigation, whether by settlement, dismissal with prejudice (voluntary or otherwise), final judgment in favor of any party, all Parties, both themselves and their counsel of record, shall destroy and/or return all confidential and highly confidential materials.
18. Jurisdiction. The Court retains jurisdiction to make such amendments, modifications, and additions to this Amended Protective Order as it may from time to time deem appropriate.
Alexandria, Virginia
EXHIBIT A
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
My full name is ___. My address is ___. I hereby acknowledge that I am being provided access to Confidential [or Highly Confidential] materials pursuant to the Amended Protective Order. I certify my understanding that such information has been provided to me pursuant to the terms and restrictions of the Amended Protective Order entered on October 4, 2022, and that I have been given a copy of the Amended Protective Order and agree to be bound by the terms thereof. I further agree to subject myself to the jurisdiction of the United States District Court for the Eastern District of Virginia regarding resolution of any matter pertaining to the Amended Protective Order. I declare under penalty of perjury under the laws of the United States of America and the Commonwealth of Virginia that the above is true and correct.
Dated: ___
Signature: ___
Print Name: ___