Garey v. Washington State University

5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON LEIA GAREY, NO. 2:22-CV-0069-TOR 8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. PROTECTIVE ORDER TREVOR ANDERSON, an individual; WASHINGTON STATE UNIVERSITY, a public entity; WASHINGTON BETA CHAPTER OF SIGMA ALPHA EPSILON FRATERNITY, an unincorporated association; and SIGMA ALPHA EPSILON FRATERNITY, INC., a corporation, 15 Defendants.

16 BEFORE THE COURT is Defendant Washington State University’s Motion for Protective Order (ECF No. 24). This matter was submitted for consideration without oral argument. The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below, Defendant Washington State University’s Motion for Protective Order (ECF No. 24) is granted.

1 BACKGROUND 2 This case concerns sexual assault allegations involving students enrolled at Washington State University (“WSU”). ECF No. 1. On May 25, 2022, Plaintiff served WSU with two subpoenas for the student records of Defendant Trevor Anderson. ECF No. 24 at 2. On August 29, 2022, Plaintiff served WSU with Interrogatories and Requests for Production that seek information protected by the Family Educational Rights and Privacy Act (“FERPA”), including Anderson’s student records. Id. As a result, WSU seeks a protective order regarding the education records of Plaintiff and Anderson that are subject to FERPA. ECF No. 24. Plaintiff and Anderson filed responses to the motion. ECF Nos. 27, 28.

11 DISCUSSION 12 “A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.” Fed. R. Civ. P. 26(c).

14 The moving party must certify the parties conferred or attempted to confer in good faith to resolve the dispute. Id. For good cause shown, the Court may “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Id. Here, the parties conferred without a resolution. ECF No. 24 at 3.

18 FERPA protects student education records from improper disclosure. 20 U.S.C. § 1232g. “Education records” are “those records, files, documents, and other materials which (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.” 20 U.S.C. § 1232g(a)(4)(A). “Education records” do not include “records maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” 20 U.S.C. § 1232g(a)(4)(B)(ii).

6 FERPA provides limited exceptions to the parental consent to disclosure requirement, such as disclosure of the education records by judicial order. 20 U.S.C. § 1232g(b)(2)(B). If disclosure is made pursuant to a judicial order, the educational institution must notify the parents and students of the order in advance of the ordered disclosure. Id. Courts that have considered FERPA disclosures in the context of civil litigation have found that FERPA does not create an evidentiary privilege barring disclosure but the underlying privacy concerns create a higher burden on a party seeking access to education records. See Garza v. Scott & White Mem’l Hosp., 234 F.R.D. 617, 624 (W.D. Tex. 2005); Ellis v. Cleveland Mun. Sch.

15 Dist., 309 F. Supp. 2d 1019, 1022 (N.D. Ohio 2004).

16 WSU seeks a judicial determination regarding the release of Anderson and Plaintiff’s educational records where neither executed a FERPA waiver. ECF No. 24 at 6. The pending discovery only involves Anderson’s education records, but Anderson indicated he may seek discovery of Plaintiff’s education records. ECF No. 24 at 5–6. While WSU takes no position, WSU suggests the Court (1) allow full discovery of the education records limited to Rule 26’s requirements, (2) allow limited production of education records related to the sexual assault allegations, or (3) deny production of all education records on the grounds there are alternative forms of discovery. Id. at 24. In the event the Court orders production, WSU requests the Court enter a protective order and allow it to redact third-party names.

6 In response, Anderson objects to any disclosure on the grounds that he does not seek Plaintiff’s FERPA protected records and he understands that Plaintiff will not seek his FERPA protected records. ECF No. 27 at 2. However, Plaintiff seeks the release of Anderson’s records, including his entire school file and the investigative documents, on the grounds the information is necessary to assess liability for each Defendant. ECF No. 28 at 2. Alternatively, Plaintiff requests the Court conduct an in-camera review of the responsive documents. Id. at 3.

13 The Court finds Anderson’s FERPA records as they relate to the sexual assault allegations in the Complaint are relevant and proportional to the needs of the case. Likewise, Plaintiff’s FERPA records are subject to disclosure if the records relate to the sexual assault allegations and are otherwise relevant and proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). The Court notes any education records involving law enforcement as defined by FERPA are subject to disclosure without further order of the Court. 20 U.S.C. § 1232g(a)(4)(B)(ii).

1 The parties’ privacy interests are adequately protected by limiting the records by the topic of sexual assault and the protective order the Court enters below.

3 ACCORDINGLY, IT IS HEREBY ORDERED: 4 1. Defendant Washington State University’s Motion for Protective Order 5 (ECF No. 24) is GRANTED.

6 2. The Parties may seek and the University may produce FERPA protected 7 records of Defendant Trevor Anderson and Plaintiff Leia Garey limited 8 by Fed. R. Civ. P. 26(b)(1)’s requirements of relevancy and 9 proportionality. The production of these records is subject to the 10 confidentiality provisions below.

11 3. The University shall redact the names of non-parties from all records 12 produced, subject to further order of the Court.

13 4. All FERPA records produced will be subject to the following 14 confidentiality provisions: 15 a. “CONFIDENTIAL” MATERIAL 16 “Confidential” material shall include documents, records, or ESI 17 produced by the University and protected under FERPA.

18 b. SCOPE 19 The protections conferred by this order cover not only confidential 20 material (as defined above), but also (1) any information copied or 1 extracted from confidential material; (2) all copies, excerpts, 2 summaries, or compilations of confidential material; and (3) any 3 testimony, conversations, or presentations by parties or their 4 counsel that might reveal confidential material. However, the 5 protections conferred by this Order do not cover information that is 6 in the public domain or becomes part of the public domain through 7 trial or otherwise.

8 c. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 9 i. Basic Principles. A receiving party may use confidential 10 material that is disclosed or produced by another party or by 11 a non-party in connection with this case only for 12 prosecuting, defending, or attempting to settle this litigation.

13 Confidential material may be disclosed only to the 14 categories of persons and under the conditions described in 15 this Order. Confidential material must be stored and 16 maintained by a receiving party at a location and in a secure 17 manner that ensures that access is limited to the persons 18 authorized under this Order.

19 ii. Disclosure of “CONFIDENTIAL” Information or Items.

20 Unless otherwise ordered by the Court or permitted in 1 writing by the designating party, a receiving party may 2 disclose any confidential material only to: 3 (a) the receiving party’s counsel of record in this action, as 4 well as employees of counsel to whom it is reasonably 5 necessary to disclose the information for this litigation; 6 (b) the officers, directors, and employees (including in house 7 counsel) of the receiving party to whom disclosure is 8 reasonably necessary for this litigation, unless the parties 9 agree that a particular document or material produced is for 10 Attorney’s Eyes Only and is so designated; 11 (c) experts and consultants to whom disclosure is reasonably 12 necessary for this litigation; 13 (d) the Court, court personnel, and court reporters and their 14 staff; 15 (e) copy or imaging services retained by counsel to assist in 16 the duplication of confidential material, provided that 17 counsel for the party retaining the copy or imaging service 18 instructs the service not to disclose any confidential material 19 to third parties and to immediately return all originals and 20 copies of any confidential material; 1 (f) during their depositions, witnesses in the action to whom 2 disclosure is reasonably necessary unless otherwise agreed 3 by the designating party or ordered by the Court. Pages of 4 transcribed deposition testimony or exhibits to depositions 5 that reveal confidential material may not be disclosed to 6 anyone except as permitted under this Order; 7 (g) the author or recipient of a document containing the 8 information or a custodian or other person who otherwise 9 possessed or knew the information.

10 iii. Filing Confidential Material. Before filing confidential 11 material or discussing or referencing such material in court 12 filings, the filing party shall confer with the designating 13 party to determine whether the designating party will 14 remove the confidential designation, whether the document 15 can be redacted, or whether a motion to seal or stipulation 16 and proposed order is warranted. Local Civil Rule 5(g) sets 17 forth the procedures that must be followed and the standards 18 that will be applied when a party seeks permission from the 19 court to file material under seal.

1 iv. Designation of Confidential Material. The University 2 shall designate FERPA material that it produces as 3 “Confidential” at the time it is produced by affixing the 4 word “Confidential” to each page that contains 5 confidential material.

6 d. UNAUTHORIZED DISCLOSURE OF PROTECTED 7 MATERIAL 8 If a receiving party learns that, by inadvertence or otherwise, it has 9 disclosed confidential material to any person or in any circumstance 10 not authorized under this Order, the receiving party must immediately 11 (a) notify in writing the Parties of the unauthorized disclosures, (b) 12 use its best efforts to retrieve all unauthorized copies of the protected 13 material, (c) inform the person or persons to whom unauthorized 14 disclosures were made of all the terms of this Order.

15 e. NON TERMINATION AND RETURN OF DOCUMENTS 16 Within 60 days after the termination of this action, including all 17 appeals, each receiving party must return to the producing party or 18 destroy all confidential material, including all copies, extracts and 19 summaries thereof. Notwithstanding this provision, counsel are 20 entitled to retain one archival copy of all documents filed with the 1 court, trial, deposition, and hearing transcripts, correspondence, 2 deposition and trial exhibits, expert reports, attorney work product, 3 and consultant and expert work product, even if such materials 4 contain confidential material. The confidentiality obligations 5 imposed by this Order shall remain in effect until the Court orders 6 otherwise.

7 The District Court Executive is directed to enter this Order and furnish || copies to counsel.

9 DATED November 29, 2022.

Has. fies elgg : 11 On Ke THOMAS O. RICE <> United States District Judge