Redding v. Kenmare Public School et al

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UNITED STATES DISTRICT COURT
DISTRICT OF NORTH DAKOTA
Allen Redding on behalf of minor son D.R.,
Plaintiff,
-vs-
Kenmare Public School, through its Board of
Education; Alex Hennix, in her official and
individual capacity; Doe Defendants 1-20, in their
individual and official capacity,
Defendants.
Civil No. 1:23-cv-25
PROTECTION ORDER FOR
CONFIDENTIAL INFORMATION
[¶1] 	It appearing necessary to issue a qualified protective order pursuant to Rule 26(c) of the
North Dakota Rules of Civil Procedure, 20 U.S.C. §1232g(b)(2), 34 C.F.R. §99.31(a)(9), 45 C.F.R.
§164.512(e)(1), and N.D.C.C. §44-04-18.11 and upon a finding of good cause for the issuance, it
is ORDERED, pursuant to the parties’ stipulation, as follows:
[¶2] 	Scope.
(a) 	After compliance with the provisions of Paragraph 3 below, the Parties and
Attorneys for the Parties are authorized to receive, subpoena, transmit, disclose and produce, in
accordance with terms of this Protective Order, “Confidential Information” and/or Documents that
contain “Confidential Information” where the procedure described in Paragraph 3 below applies,
described in Paragraph 4 below and/or that are designated pursuant to Paragraph 5 below with the
words “CONFIDENTIAL” or “CONFIDENTIAL INFORMATION” affixed or placed thereon.
(b) 	As used herein, the term “Party” means collectively and individually, Plaintiff
Allen Redding, individually and on behalf of minor son D.R. and D.R. individually, and each of
the Defendants, and the term “Non-Party” means any other person or entity that is not: (1) Allen
Redding, individually and on behalf of minor son D.R., (2) D.R., or (3) or any of the Defendants.
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(c) As used herein, “Documents” means any record, writing, and other tangible thing
whether typewritten, printed, recorded in any form, written, or produced by hand or reproduced by
any process, all graphical material or information and things, and Computerized Documents,
whether produced or created by a Party or a Non-Party, and whether produced in response to a
discovery request, subpoena, agreement, or otherwise.
(d) As used herein, “Computerized Documents” means all matter stored by electronic
or mechanical means and printouts of data stored by electronic, electronic magnetic media or
mechanical means, including information, files, databases, or programs stored on any digital or
analog machine-readable device, computers, discs, networks, tapes or other electronic devices.
(e) All references to “Documents” or “Computerized Documents” in the plural number
shall include the singular, and vice versa.
[¶3] Non-Party Confidential Information - Notice. To the extent Confidential Information
of a Non-Party may be disclosed and/or a production may occur of Documents that contain
Confidential Information of a Non-Party, prior to such disclosure and/or production, the Party
seeking the disclosure or production of such Confidential Information or Documents containing
Confidential Information (whether by deposition, court hearing, interrogatories, requests for
production, subpoena or other form of discovery propounded by such Party under the Federal
Rules of Civil Procedure or any other applicable law or rule) or alternatively, the Party that wishes
to disclose or produce such Confidential Information or Documents containing Confidential
Information whether through an initial disclosure under Fed. R. Civ. P. 26(a)(1) or in response to
discovery served upon a Party in this action (including at a deposition or court hearing, in response
to an interrogatory, request for production of document, request for admission or subpoena) shall
comply with the following:
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(a) Obtain and serve upon the other Party a release and consent executed by Non-Party
or if a minor, the Non-Party’s natural parent, guardian or individual acting as a parent in the
absence of a parent or guardian, as the case may be.
(b) If a release and consent is not obtained under Paragraph 3(a), then the Party shall
file and serve a motion seeking an order from this Court authorizing the production and disclosure
of such Documents. To allow for the Non-Party to object and seek a protective action relating to
the production or disclosure of such Documents, the motion must also be served on the Non-Party
for whom the Documents and/or Confidential Information relate. Service of such motion to
disclosure and produce Documents that contain Confidential Information of a Non-Party,
including Documents relating to a Non-Party student protected from disclosure and/or confidential
under the Federal Educational Rights and Privacy Act (FERPA) such as “educational records” (as
defined in 20 U.S.C. § 1232g(a)(4) and/or 34 C.F.R. § 99.3) or that contain “personal identifiable
information” (as defined in 45 C.F.R. § 160.103, and as the term is used in 45 C.F.R. § 164.501),
shall be upon the Non-Party student for whom the Documents and/or Confidential Information
relate and if the Non-Party is a minor, then also on said Non-Party student’s natural parent,
guardian or individual acting as a parent in the absence of a parent or guardian, as the case may
be. Service of the motion upon a Non-Party shall be accomplished by the method described in
Fed. R. Civ. P. 4.
(c) The page length and time periods described in D.N.D. Civ. L.R. 7.1(B) shall apply
to any motion brought under Paragraph 3(b), provided, however, a notice of the 14-day period
after service of such motion to respond must be given to the Non-Party.
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(b) 	“educational record” as defined in 20 U.S.C. § 1232g(a)(4) and/or 34 C.F.R. § 99.3;
(c) 	“Personal Identifiable Information” as defined in 34 C.F.R. § 99.3;
(d) 	“Individually identifiable information” as defined in N.D.C.C. § 50-06-15;
(e) 	“Personal information” as defined in N.D.C.C. § 44-04-18.7(6);
(f) 	Any Document that under any federal or state law, including N.D.C.C. ch. 44-04,
designated confidential or otherwise exempt from disclosure.
(g) 	Confidential Information does not include substance abuse treatment records
protected by 42 C.F.R. Part 2, and notwithstanding the scope outline in Paragraph 1, such substance
abuse treatment records shall not be disclosed without prior authorization.
[¶5] 	Designation.
(a) 	A Party may designate Documents, in whole or in part, as containing Confidential
Information for protection under this Order by placing or affixing the words “CONFIDENTIAL”
or “CONFIDENTIAL INFORMATION” prominently on each page of the Documents (or such
(d) If a Party that is to serve and file the motion pursuant to the procedure described in
Paragraph 3(b) fails to do so, then the other Party may, but is not obligated, to file and serve the
motion.
(e) The Parties each reserve any and all rights and grounds to object to any motion that
may be brought pursuant to the process described in this Paragraph 3.
[¶4] Confidential Information. As used in this Order, “Confidential Information” shall
include and otherwise have the same scope and definition as the following defined terms:
(a) “Protected health information” as defined in 45 C.F.R. § 160.103, and as the term
is used in 45 C.F.R. § 164.501;
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portion of the Documents in the case of a partial designation) and all copies in a manner that will
not interfere with the legibility of the Documents.
(b) 	A Party producing Computerized Documents may designate such matter as
“CONFIDENTIAL” by cover letter referring generally to such matter or by affixing to such media
a label with the legend provided for in Paragraph 5(a) above. 	Whenever a Party (whether for
production or after receipt) reduces such Confidential Computerized Material to hard-copy form,
the Party shall mark such hard-copy form with the legend provided for in Paragraph 5(a) above.
[¶6] 	Depositions. 	All depositions, deposition testimony and deposition transcripts shall be
designated as containing Confidential Information, except upon agreement of the attorneys, on the
record at the deposition or in writing after the deposition. This treatment continues until otherwise
agreed to by the Parties in writing or by order of the Court. 	All depositions in this action are
closed, unless otherwise ordered by the Court. A closed deposition means only the following may
attend:
(a) 	The deponent;
(b) 	The Parties;
(c) 	Attorneys for the Parties;
(d) 	The court reporter; and
(e) 	Third-parties identified in Paragraph 7(b).
To the extent any of the above are required under Paragraph 7(b) to have completed the
certification contained in Attachment A, Acknowledgement and Agreement to Be Bound, then
their attendance is permitted only upon receipt of such Acknowledgment or upon a notice of refusal
to do so is filed with the Court as provided under Paragraph 7(c). Further, if a Non-Party witness
is expected to testify at a deposition or court hearing as to Confidential Information, such witness,
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(1) 	To a Party;
(2) 	To a Party’s Attorney of record in this case, and/or partners, associates, or
staff of the Attorney’s law firm;
(3) 	To Non-Party who has been employed or retained to assist a Party in the
prosecution, defense, or settlement of this action, such as investigators, expert witnesses, technical
advisors, or mediators, only after said Non-Parties have completed the certification contained in
Attachment A, Acknowledgement and Agreement to Be Bound;
(4) 	To witnesses or potential witnesses (and their attorneys), who are not who
are not a Party or described in Paragraph 7(b)(3) above, for the preparation of or during the course
of depositions, hearings, interviews, or trial in this action, but only after these Non-Parties have
completed the certification contained in Attachment A, Acknowledgement and Agreement to Be
Bound;
if not within the persons entitled to receive Confidential Information under Paragraph 7(b), shall
execute the certification contained in Attachment A, Acknowledgement and Agreement to Be
Bound.
[¶7] Protection of Confidential Information.
(a) General Protections. Confidential Information and Documents that contain
Confidential Information shall not be used or disclosed by the Parties, Attorneys for the Parties, or
by any other persons identified in subparagraph (b) for any purpose whatsoever other than for this
action, including any appeal thereof and only in compliance with this Order.
(b) Limited Non-Party Disclosures. The Parties and Attorneys for the Parties may not
disclose or permit the disclosure of any Confidential Information or and Documents that contain
Confidential Information except to the following:
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(6) 	The Court and its support personnel; and
(7) 	A Party’s insurer (and with respect to Defendants, includes the North
Dakota Insurance Reserve Fund), and all said insurer’s employees, agents and representatives.
(c) 	In the event a party described in Paragraph 7(b)(4) or 7(b)(5) is required to but
refuses to sign the “Acknowledgement and Agreement to be Bound,” upon notice to the Court of
such refusal, said party shall be subject to all of the terms and conditions of this Protective Order,
including the “Acknowledgment to be Bound.”
[¶8] 	Failure to Designate. 	The failure to designate Documents which contain Confidential
Information does not, standing alone, waive the right to designate the Documents as Confidential
Information. If a Party designates Documents as containing Confidential Information after they
were initially produced, the receiving Party, on notification of the designation, must make a
reasonable effort to assure that the Documents are treated in accordance with the provisions of this
Order. 	Any Document produced before issuance of this Order that is then affixed with the
designation “CONFIDENTIAL” or “CONFIDENTIAL INFORMATION” shall receive the same
treatment as if designated as such under this Order. No Party shall be found to have violated this
Order for failing to maintain the confidentiality of Documents during a time when the Documents
were not designated as containing Confidential Information.
[¶9] 	Inadvertent Disclosure or Production to a Party of a Protected Document.
(a) 	Notice.
(5) To Court reporters, stenographers, or videographers assigned to a
deposition or hearing for this action at which Confidential Information or Documents containing
Confidential Information are used or disclosed, and only after the third-parties have completed the
certification contained in Attachment A, Acknowledgement and Agreement to Be Bound;
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(1) A Party who discovers that it has inadvertently disclosed or produced
Confidential Information or a Document containing Confidential Information does not, standing
alone, waive the right to designate the Documents as Confidential Information. A Party who
discovers that it has inadvertently disclosed or produced Confidential Information or a Document
containing Confidential Information must promptly notify the receiving Party and describe the
basis of the claim of privilege or protection.
(2) A Party who discovers that it may have received such inadvertently
disclosed or produced Confidential Information or a Document containing Confidential
Information must promptly notify the disclosing or producing Party or Non-Party.
(b) Handling of Protected Document. A Party who is notified or discovers that it may
have received inadvertently disclosed or produced Confidential Information or a Document
containing Confidential Information must comply with Fed. R. Civ. P. 26(b)(5)(B).
(c) Confidential Information or a Document containing Confidential Information is
inadvertently disclosed or produced if the same does not have the designation of
“CONFIDENTIAL INFORMATION” on it and/or disclosure or production is to a Party or Non-
Party who is not designated under Paragraph 5 above as being permitted to receive Confidential
Information or a Document containing Confidential Information.
[¶10] Filing of Confidential Information.
(a) This Order does not, by itself, authorize the filing of any document under seal. Any
Party wishing to file a document under seal in connection with a motion, brief, or other submission
to the Court must comply with D.N.D. Civ. L.R. 5.1(D).
(b) If a party seeks to file documents designated as “Confidential,” the party must first
file a motion for leave to file under seal, accompanied by a memorandum in support, setting forth
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the legal basis for sealing the documents, in accordance with the Administrative Policy Governing
Electronic Filing and Service. If only portions of the documents designated as “Confidential”
contain sensitive information, and a party seeks to file the documents with the court, that party
must (1) file a motion for leave to file under seal and a memorandum in support of the motion,
which provides an explanation of the legal basis for redacting information from the document, and
(2) attach to the motion for leave to file under seal an unredacted copy of the document and a
proposed redacted copy of the document. The proposed redactions shall be highlighted or
otherwise identified in a manner that enables the Court and the other party to easily review the
proposed redactions.
[¶11] Challenges to the Designation of Confidential Information. If a Party wishes to
challenge the designation of Documents, or a portion of Documents, as containing Confidential
Information, before filing any motion, the Party challenging the designation must first meet and
confer in good faith with the designating Party in an attempt to resolve the dispute and must also
comply with D.N.D. Civ. L.R. 37.1.
[¶12] Use of Confidential Information in Court Proceedings. A Party must advise the Court
and all other Parties in advance of hearings, testimony, or trial, if the Party reasonably expects
matters involving Confidential Information will be raised during the hearing, testimony, or trial.
The Court will issue whatever orders are necessary at that time regarding the use of the
Confidential Information during the hearing, testimony, or trial.
[¶13] Security Precautions and Data Breaches.
(a) Each Party must make reasonable efforts to protect the confidentiality of any
Confidential Information and any Document containing Confidential Information disclosed or
produced to that Party.
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(b) A Party who learns of a breach of confidentiality must promptly notify the
disclosing or producing party of the scope and nature of that breach and make reasonable efforts
to remedy the breach.
[¶14] Obligations on Conclusion of Litigation. This Order remains in effect after dismissal or
entry of final judgment, not subject to further appeal, unless otherwise agreed or ordered. The
Parties shall return all Documents designated as containing Confidential Information to the
producing Party, or the producing Party’s Attorney, within 60 days after dismissal or entry of final
judgment, not subject to further appeal.
[¶15] Confidential Information Subpoenaed or Ordered Produced in Other Litigation. If a
receiving Party is served with a subpoena or an order issued in other litigation that would compel
disclosure of any Documents designated in this action as containing Confidential Information, the
receiving Party must notify the designating Party, in writing, immediately, and in no event more
than three court days, after receiving the subpoena or order. The notification must include a copy
of the subpoena or court order. The Party receiving a subpoena also must notify the Party who
caused the subpoena or order to issue in the other litigation, in writing, immediately, and in no
event more than three court days, that some or all of the Documents covered by the subpoena or
order is the subject of this Order. The notification must include a copy of this Order. The purpose
of imposing these duties is to alert interested persons to the existence of this Order and to afford
the designating Party in this action an opportunity to try to protect the Confidential Information in
the court from which the subpoena or order issued. The designating Party bears the burden and
the expense of seeking protection in that court, and nothing in these provisions should be construed
as authorizing or encouraging a receiving Party in this action to disobey a lawful directive from
another court.
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[¶16] Admissibility. Nothing in this Order shall affect the admissibility of any Confidential
Information in this action. By producing Documents containing Confidential Information, the
producing Party does not waive any objection to the Documents’ production and/or admissibility.
All grounds for objection to the production and/or admissibility of Documents are specifically
reserved to the producing Party.
[¶17] Information protected by State and Federal laws, administrative rules, or regulations.
The Parties acknowledge that the disclosure of certain information in this action is governed by
various State or Federal laws, administrative rules, or regulations. In certain instances, these State
or Federal laws, administrative rules, or regulations require a separate court order or subpoena
before information can be disclosed. In other instances, a written authorization from an appropriate
person or entity may allow the disclosure of information. Nothing in this Order may be construed
as an order to compel the disclosure of any Documents or Confidential Information. Further,
nothing in this Order may be construed as an authorization to disobey any other applicable State
or Federal law, administrative rule, or regulation. Any applicable State or Federal law,
administrative rule, or regulation dealing with the disclosure of information in this action must be
complied with. The Parties retain the right to petition this Court, or any other appropriate court,
for orders which will facilitate the disclosure of information and discovery in this action.
[¶18] Retained Rights. This Order shall not deprive any Party of its right to object to discovery
by any other Party on any permitted ground. Further, nothing in this Order shall be construed to
hamper the rights of the Parties to prosecute and defend this action. The Parties retain the right to
move for protective orders or an order modifying the terms of this Order as needed.
[¶19] No Prior Judicial Determination. A Party’s designation of Documents as containing
Confidential Information must not be construed as a judicial determination that the Documents are
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_________________________________
Clare R. Hochhalter, Magistrate Judge
United States District Court
entitled to protection under Rule 26(c) of the North Dakota Rules of Civil Procedure, 20 U.S.C. §
1232g(b)(2), 34 C.F.R. § 99.31(a)(9), 45 C.F.R. § 164.512(e)(1), and N.D.C.C. § 44-04-18.11 or
other applicable federal or state law. The Parties reserve the right to petition the Court, as provided
in this Order, for a judicial determination whether the Documents are entitled to protection.
[¶20] ND Open Records law. Nothing in this Protective Order supersedes, alters or amends the
provisions or requirements of the North Dakota open record laws, and further nothing herein shall
be construed as a determination as whether any document produced is or is not a public record or
subject to North Dakota open records laws.
[¶21] Survival of Obligations. The obligations imposed by this Order survive the termination
of this action, except as otherwise may be provided by law. The Court may retain
jurisdiction over the subject matter of this Protective Order, the Parties to this action and their
Attorneys, and any persons and entities provided with Confidential Information or Documents
containing Confidential Information pursuant to this Protective Order, even after the entry of
judgment in this action, to hear relevant motions, resolve disputes, and impose sanctions for
noncompliance.
IT IS SO ORDERED.
Dated this 17th day of December, 2024.
/s/ Clare R. Hochhalter
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