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Wong v. Seattle School District No. 1

United States District Court, W.D. Washington, Seattle

July 27, 2018




         On July 5, 2018, this Court granted in part and denied in part Plaintiffs' Motion to Quash and for a Protective Order. Dkt. # 42. The Court permitted Defendant to seek certain discovery from a third party, but in doing so, “identified certain conditions that must be included in a protective order” in the hearing on Plaintiffs' Motion. Dkt. ## 41, 42. The parties have repeatedly represented that they were already operating under a Stipulated Protective Order that was never filed with this Court. See, e.g., Dkt. ## 33 at p. 11; 34 at pp. 46-52; 37 at p. 6. The Court thus instructed the parties to file a new Stipulated Protective Order incorporating the Court's conditions. Dkt. # 42. The Court believed that allowing the parties to submit a draft order would be the more efficient and better use of the Court's time and the parties' resources. Instead, the parties notified the Court that they could not come to an agreement, and each side filed their own proposed Protective Order. Dkt. ## 43, 44.

         The Court is disappointed with this turn of events. The Court does not appreciate being bombarded with over 60 pages of material for what should have been a straightforward stipulated protective order. The Court provided ample guidance for the parties to come to an agreement, yet the parties chose a deeper dive into conflict than resolution.

         Nevertheless, after reviewing the proposals from both parties, the Court finds that the Defendant's Proposed Protective Order is preferable. The majority of the two proposals are identical; however, Plaintiff's Proposed Order (Dkt. # 44-2) seeks to make multiple changes to terms the parties had already agreed to in the previous Stipulated Protective Order. Plaintiff's Proposed Order, for instance, changes the parties' stipulation to only require Defendant (not Plaintiff) to follow certain procedures regarding confidential material, and alters the previously-agreed-to terms of paragraph 7. See Dkt. # 44-2 at pp. 3-5, ¶¶ 6-7, 10. This Court's Order was not an invitation for the parties to renegotiate their prior stipulation, and the Court will not vary the terms the parties already agreed to. Moreover, Plaintiff's proposed order includes conditions on third party discovery that were not ordered by this Court, including prohibitions on challenging any redactions made by APL, instead of only those pertaining to APL students. Id. at pp. 6-7, ¶¶ 15. This language is not consistent with the Court's Order. Plaintiff's Proposed Protective Order also includes new paragraphs that the parties never included in their original stipulation, and were not ordered by this Court. See Dkt. # 44-2 at p. 7, ¶¶ 16-17.

         The Court believes that Defendant's Proposed Order, which does not change the language of the parties' previous Stipulated Protective Order, more accurately reflects the conditions mandated by this Court. Dkt. # 43-1. Accordingly, the Court enters the following Protective Order in this matter:

         1. Written discovery requests made to the Plaintiffs in this litigation include requests for Plaintiffs' medical and mental health records and other documents and information that contain sensitive personal information protected under HIPAA and FERPA, 20 U.S.C. §1232g. In order to facilitate discovery in this case, it is necessary to make such documents and discovery pertaining to student JW (minor) available only to the parties in this case, their counsel, qualified experts, and those individuals on a need-to-know basis with decision-making authority regarding the course and strategy of litigation in this case. The parties agree that student JW's (minor) medical related records (including mental health records) (collectively, “medical records”) and student JW's (minor) educational records are deemed “Confidential Material” and subject to the following restrictions on use. Any of the Parties hereto may, but need not, stamp such documents as “Confidential” and the documents need not be stamped or marked as “Confidential” in order to render such documents subject to the provisions of this Protective Order.

         2. In responding to Defendant's written discovery requests and provider releases for the medical records of the minor student, the parties agree that the names of the student and his sibling will be redacted from all medical and educational records and replaced with their initials. The parties further agree that the social security number, DOB, patient ID number, and other identifying numbers/references (excluding names of the parents, or initials as provided in this paragraph) pertaining to Plaintiffs and their family members will be redacted from all educational and medical records.

         3. The scope of the Defendant's First Interrogatories and Requests for Production to Plaintiffs dated June 22, 2017 as to the identification of "every health care provider that has seen, treated, or interacted with Eugene Wong, Jennifer Wong, or Student JW in the last 10 years" is hereby limited to any of student's JW's (minor) health care providers, including mental health providers, since January 1, 2010.

         4. This Protective Order shall pertain to all medical, education, and related records produced in this case and in response to discovery and other requests, including records provided by the Academy of Precision Learning (APL) in response to the Defendant's subpoena.

         5. Defendant does not waive, and expressly reserves, the right to contest the “Confidential Material” designation of any discovery materials subject to this Protective Order upon any reasonable and legitimate grounds.

         6. “Confidential Material” is not to be made of public record. If a party intends to file or enter into evidence Confidential Information, other than at trial, the disclosing party will either:

(a) Provide the opposing party's counsel with written notice of its intent to file such Confidential Information, specifically identifying the Confidential Information to be disclosed/revealed, and provide a reasonable opportunity for the opposing party to obtain an order requiring the Confidential Information to be filed under seal pursuant to applicable rules; or
(b) File a stipulation and proposed order to seal the Confidential Information pursuant to applicable rules before or concurrently with the filing. Where reasonably practical, only those portions of documents or pleadings containing Confidential Information will be filed under seal.

         7. All “Confidential Material” is not to be delivered or disclosed to any party except for disclosures solely for the purposes of this litigation and appeals, if any, ...

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