Warren v. Clark County School District

• Court: District Court, D. Nevada
• Decided: March 7, 2023
• Docket: 2:22-cv-01758
• Status: Unknown

Opinion

1 MARK E. FERRARIO Nevada Bar No. 01625 2 KARA B. HENDRICKS Nevada Bar No. 07743 3 CHRISTIAN T. SPAULDING 4 Nevada Bar No. 14277 GREENBERG TRAURIG, LLP 5 10845 Griffith Peak Drive, Suite 600 Las Vegas, Nevada 89135 6 Telephone: (702) 792-3773 Facsimile: (702) 792-9002 7 Email: ferrariom@gtlaw.com 8 hendricksk@gtlaw.com spauldingc@gtlaw.com 9 Counsel for Defendants, Clark County School 1 10 1

D istrict, John Anzalone and Marbella Alfonzo 12 IN THE UNITED STATES DISTRICT COURT 13 FOR THE DISTRI CT OF NEVADA 14 E.A., by and through his Guardian ad Litem, CASE NO. 2:22-cv-01758-APG-VCF CHRYSTAL WARREN, D.J., by and through 15 his Guardian ad Litem, IRENE JOW; G.L., by and through his Guardian ad Litem, GRACE STIPULATED CONFIDENTIALITY 16 LACUESTA, AGREEMENT AND [PROPOSED] 17 PROTECTIVE ORDER Plaintiffs, 18 v. 19

20 CLARK COUNTY SCHOOL DISTRICT, JONATHAN CRONIN, JOHN ANZALONE, 21 MARBELLA ALFONZO, DOES 150,

22 Defendants. 23

24 Pursuant to the Stipulation contained herein, by and among counsel for Plaintiffs E.A., by 25 and through his Guardian ad Litem, CHRYSTAL WARREN, D.J., by and through his Guardian 26 ad Litem, IRENE JOW; and G.L., by and through his Guardian ad Litem, GRACE LACUESTA 27 by and through his Guardian Ad Litem (“Plaintiffs”) and counsel of record for Defendants 28 CLARK COUNTY SCHOOL DISTRICT (“CCSD”), JOHN ANZALONE (“Anzalaone”) and 1 MARBELLA ALFONZO (“Alfonzo”) (collectively, “CCSD Defendants”), the Court hereby 2 finds as follows: 3 PURPOSES AND LIMITATIONS 4 1. Disclosure and discovery activity in this action are likely to involve production of 5 confidential, proprietary, or private information for which special protection from public 6 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 7 Accordingly, the Parties hereby jointly stipulate to and petition the court to enter the following 8 Stipulated Confidentiality Agreement and Protective Order (hereinafter “Order”). The parties 9 acknowledge that this Order does not confer blanket protections on all disclosures or responses 10 to discovery, or any categories of information not specifically addressed herein, and that the 11 protection it affords from public disclosure and use extends only to the limited information or 12 items that are entitled to CONFIDENTIAL treatment under the applicable legal principles, and 13 designated “CONFIDENTIAL” as described herein. The parties further acknowledge, as set forth 14 further below, that this Stipulated Confidentiality Agreement and Protective Order does not entitle 15 them to file CONFIDENTIAL information under seal or otherwise change Federal or Local rules, 16 procedures, and standards to be applied when a party seeks permission from the court to file 17 material under seal. 18 2. The “Litigation” shall mean the above-captioned case, E.A, et al.. v. Clark County 19 School District, et al., filed in the United States District Court, District of Nevada, Case Number 20 2:22-cv-01758-APG-VCF. 21 3. “Documents” or “Information” shall mean and include any documents (whether in 22 hard copy or electronic form), records, correspondence, analyses, assessments, statements (financial 23 or otherwise), responses to discovery, tangible articles or things, whether documentary or oral, and 24 other information provided, served, disclosed, filed, or produced, whether voluntarily or through 25 discovery or other means, in connection with this Litigation. A draft or non-identical copy is a 26 separate document within the meaning of these terms. 27 / / / 28 / / / 1 4. “Party” (or “Parties”) shall mean one party (or all parties) in this Litigation, and their 2 in-house and outside counsel. “Producing Party” shall mean any person or entity who provides, 3 serves, discloses, files, or produces any Documents or Information. “Receiving Party” shall mean any 4 person or entity who receives any such Documents or Information. 5 5. The privacy of students is protected under federal law whether they are parties to the 6 Litigation or not. As a school district that receives federal funding, CCSD is bound by the Family 7 Educational Rights and Privacy Act (“FERPA”) and is not at liberty to disclose personally identifying 8 information of its students without written consent or court order. The Parties acknowledge that 9 information that could be reasonably likely to lead to admissible evidence in this Litigation could 10 contain information that is protected by FERPA. In addition, personnel files of employees involved 11 in an incident are private in nature. As a result, their use must be limited to protect the individuals’ 12 fundamental right to privacy guaranteed by the First, Third, Fourth, Fifth, and Ninth Amendments of 13 the U.S. Constitution. See, El Dorado Savings & Loan Assoc. v. Superior Court of Sacramento 14 County, 190 Cal. App. 3d 342 (1987). Accordingly, the Parties agree that, in conjunction with 15 discovery proceedings in this Litigation, the Parties may designate any Document, thing, material, 16 testimony, or other Information derived therefrom, which is entitled to confidential treatment under 17 applicable legal principles, as “CONFIDENTIAL” under the terms of this Confidentiality Agreement 18 and Protective Order (hereinafter “Order”), and that anything designated as such shall not be provided 19 or made available to third parties except as permitted by, and in accordance with, the provisions of 20 this Order. Confidential information includes information that qualifies for confidential treatment 21 under applicable legal principles, which may include information contained in personnel files of 22 CCSD employees and/or information that has not been made public and contains trade secret, 23 proprietary and/or sensitive business or personal information, and/or any (personal) information about 24 students that is protected by FERPA. 25 / / / 26 / / / 27 / / / 28 / / / 1 6. In addition, if any Party requests documents or other evidence that are subject to 2 FERPA, the Parties acknowledge that either a motion be filed with the Court to compel the 3 production of the same or the following procedure be followed: 4 a. The Parties will submit a stipulation to the Court identifying the records to 5 be produced and requesting a Court Order approving the notice and disclosure of 6 information; 7 b. Upon receipt of the signed Court Order, CCSD will provide the Order 8 along with a joint letter notifying the affected parties of the right to object to the disclosure 9 of their student’s information. 10 c. Unless the affected party files an objection with the Court within ten (10) 11 days of receipt of notice of the Order, the producing party shall within five (5) days after 12 the expiration of the ten-day time period, produce the information. 13 d. If the affected party or their representative files an objection to disclosure, 14 any party may request that the Court review the objection to determine its validity and/or 15 review the objectionable material at issue in order to make a final determination as to 16 whether such information shall be disclosed. 17 e. The disclosure of FERPA protected information will be marked 18 confidential and produced pursuant to the Stipulated Confidentiality Agreement and 19 Protective Order. 20 7. Each Party or Non-Party that designates information or items for protection under 21 this Order must take care to limit any such designation to specific material that qualifies under 22 the appropriate standards. Indiscriminate or routinized designations are prohibited. 23 8. CONFIDENTIAL Documents shall be so designated by marking or stamping each 24 page of the Document produced to or received from a Party with the legend “CONFIDENTIAL.” 25 The application of the legend must be made in a manner so as not to render the documents 26 illegible, illegible after photocopying, or incapable of being subjected to Optical Scanning 27 Recognition. If only a portion or portions of the material on a page qualifies for protection, the 28 / / / 1 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 2 markings in the margins). 3 9. Testimony taken at a deposition may be designated as CONFIDENTIAL within 4 45 days before the close of discovery or ten (10) business days of receipt of the transcript in any 5 form if the deposition takes place after the aforementioned 45-day period. Arrangements shall be 6 made with the court reporter taking and transcribing such deposition to separately bind such 7 portions of the transcript and deposition exhibits containing Information designated as 8 CONFIDENTIAL, and to label such portions appropriately. CONFIDENTIAL Information shall 9 be maintained in strict confidence by the Parties who receive such information, shall be used 10 solely for the purposes of this Litigation, and shall not be disclosed to any person except: 11 a. The United States District Court, District of Nevada, or any other court to 12 which this matter may be transferred (the “Court”), so long as the party seeking to file a 13 confidential document under seal complies with the Ninth Circuit’s directives in 14 Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) and the Court’s 15 electronic filing procedures set forth in Local Rule 10-5(b); 16 b. In the event of an appeal, the United States Court of Appeals (the 17 “Appellate Court”) and/or the United States Supreme Court (the “Supreme Court”), so 18 long as that document is filed under seal; 19 c. The attorneys of record in this Litigation and their co-shareholders, co- 20 directors, partners, employees, and associates who are assisting in the Litigation 21 (collectively hereafter referred to as “Outside Counsel”); 22 d. A Party, or an officer, director, or employee of a Party or of a Party’s 23 affiliate, as long as any such person agrees to be bound by the terms and conditions of this 24 Agreement; 25 e. Subject to the terms of Paragraph 13 below, experts or consultants and their 26 staff, retained by the Parties and/or Outside Counsel in this Litigation for the purposes of 27 this Litigation; 28 / / / 1 f. Any person identified on the document itself as having created, sent, 2 received, or otherwise already viewed, the document; 3 g. Any person testifying at deposition in this matter; 4 h. The parent or legal guardian of any student that is the subject of the 5 document itself; 6 i. Any other person, only if the Receiving Party has given written notice to 7 the Producing Party of an intent to disclose specified CONFIDENTIAL Information to 8 said person, who shall be identified by name, address, phone number, and relationship, if 9 any, to the Receiving Party, and the Producing Party has not provided a written objection 10 to the disclosure within ten (10) business days of delivery of the notification. In the event 11 of an objection, no disclosure shall be made pending the resolution of the objection. If the 12 disclosure includes information that is protected by FERPA, the objection can only be 13 resolved by stipulation of the Parties and a Court Order, which includes a provision 14 allowing CCSD to provide no less than twenty (20) days’ notice to the parents of the 15 student(s) that may be implicated in any disclosure. Before any person may receive 16 Documents or Information pursuant to this subparagraph, he or she must comply with the 17 requirements of Paragraph 13 below. 18 10. If a witness is providing, or is provided with, CONFIDENTIAL Information 19 during a deposition, counsel for the Producing Party may request that all persons other than the 20 witness and persons entitled by this Order to have access to the CONFIDENTIAL Information 21 leave the deposition room during that portion of the deposition other than the court reporter and 22 videographer. Failure of any person to comply with such a request will constitute sufficient 23 justification for the witness to refuse to answer the question, or for the Producing Party to demand 24 that CONFIDENTIAL Information not be provided to the witness, pending resolution of the issue. 25 11. All designations of Information as CONFIDENTIAL by the Producing Party must 26 be made in good faith and must be based upon applicable legal principles. 27 / / / 28 / / / 1 12. A Party may object to the designation of particular Information as 2 CONFIDENTIAL by giving written notice to the Party designating the disputed Information. 3 Any Party or Non-Party may challenge a designation of confidentiality at any time. Unless a 4 prompt challenge to a Designating Party’s confidentiality designation is necessary to avoid 5 foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or 6 delay of the litigation, a Party does not waive its right to challenge a confidentiality designation 7 by electing not to mount a challenge promptly after the original designation is disclosed. The 8 written notice objecting to the designation of particular Information as CONFIDENTIAL shall 9 identify the Information to which the objection is made and shall specify the basis for the 10 objection. If the Parties cannot resolve the objection within fifteen (15) business days after the 11 time the notice is received, it shall be the obligation of the Party designating the Information as 12 CONFIDENTIAL to file an appropriate motion requesting that the Court determine whether the 13 disputed Information should be subject to the terms of this Protective Order. If such a motion is 14 filed within fifteen (15) business days after the date the Parties fail to resolve the objection, the 15 disputed Information shall be treated as CONFIDENTIAL under the terms of this Protective 16 Order until the Court rules on the motion. If the designating Party fails to file such a motion 17 within the prescribed time, the disputed Information shall lose its designation as 18 CONFIDENTIAL and shall not thereafter be treated as CONFIDENTIAL in accordance with this 19 Protective Order. In connection with a motion filed under this provision, the Party designating 20 the Information as CONFIDENTIAL shall bear the burden of establishing that the disputed 21 Information qualifies to be treated as CONFIDENTIAL based upon applicable legal principles. 22 13. While protected by this Order, any Information designated CONFIDENTIAL shall 23 be held in strict confidence by each person to whom it is disclosed; shall be used solely for the 24 purposes of this Litigation; and shall not be used for any other purpose, including, without 25 limitation, use in any other lawsuit. Documents and Information previously produced by the 26 Parties may be designated “Confidential” within thirty (30) days after the date of this Order. 27 / / / 28 / / / 1 14. With respect to outside experts or other persons pursuant to Paragraph 8, to 2 become an authorized expert or other person entitled to access to CONFIDENTIAL Information, 3 the expert or other person must be provided with a copy of this Order and must sign a certification 4 in the form attached as Exhibit A hereto acknowledging that he/she has carefully and completely 5 read, understands, and agrees to be bound by this Order. The Party on whose behalf such a 6 Certification is signed shall retain the original Certification. 7 15. Notwithstanding any other provision herein, nothing shall prevent a Party from 8 revealing CONFIDENTIAL Information to a person who created or previously received (as an 9 addressee or by way of copy) such Information. 10 16. The inadvertent production of any Information without it being properly marked 11 or otherwise designated CONFIDENTIAL at the time of production shall not be deemed to waive 12 any claim of confidentiality with respect to such Information. If a Producing Party, through 13 inadvertence, produces any CONFIDENTIAL Information without marking or designating it as 14 such in accordance with the provisions of this Order, the Producing Party may, promptly on 15 discovery, furnish a substitute copy properly marked along with written notice to all Parties (or 16 written notice alone as to non-documentary Information) that such Information is entitled to 17 CONFIDENTIAL treatment under applicable legal principles and should be treated as such in 18 accordance with the provisions of this Order. Each receiving person must treat such Information 19 as CONFIDENTIAL in accordance with the notice from the date such notice is received. 20 Disclosure of such CONFIDENTIAL Information prior to the receipt of such notice shall not be 21 deemed a violation of this Confidentiality Agreement. A Receiving Party who has disclosed such 22 CONFIDENTIAL Information prior to the receipt of such notice shall take steps to cure such 23 disclosure by requesting return of the original document and substituting it with the properly 24 marked one. 25 17. A copy of this Order shall be shown to each attorney acting as counsel for a Party 26 and to each person to whom CONFIDENTIAL Information will be disclosed. 27 / / / 28 / / / 1 18. Nothing in this Order shall be construed as an admission or agreement that any 2 specific Information is or is not confidential, subject to discovery, relevant, or admissible in 3 evidence in any future proceeding. 4 19. Nothing in this Order abridges the right of any person to seek its modification by 5 the court in the future. 6 20. The Parties acknowledge that this Stipulated Confidentiality Agreement and 7 Protective Order does not entitle them to file CONFIDENTIAL Information under seal. Any 8 Party seeking to include CONFIDENTIAL Information in a motion or other pleading or as an 9 exhibit or attachment to a motion or other pleading shall seek to file it under seal pursuant to the 10 Federal Rules Governing Sealing and Redacting Court Records or by other proper means. The 11 Parties agree not to oppose such motions if the document is properly marked as CONFIDENTIAL 12 Information. If a motion or pleading filed with the Court discloses CONFIDENTIAL 13 Information, such designated portions shall be redacted to the extent necessary to conceal such 14 information in any motion or pleading filed publicly with the Court, pending ruling by the Court 15 on a motion to file it under seal. Unredacted motions or pleadings containing CONFIDENTIAL 16 Information shall be filed under seal, if the Court agrees after proper motion. When a Party, in 17 good faith, determines that it is necessary to bring the specific content of such CONFIDENTIAL 18 Information to the attention of the Court in the body of a motion or other pleading, then it shall 19 file a motion seeking to disclose the CONFIDENTIAL Information to the Court in camera or by 20 such other means as the Court may deem appropriate. Such motion may disclose the general 21 nature, but shall not disclosure the substance, of the CONFIDENTIAL Information at issue. 22 21. If a Party wishes to use CONFIDENTIAL Information at a public proceeding, such 23 as a hearing before the Court or at trial, it shall notify the Court and the other Parties to this action of 24 that fact at the time the hearing or trial commences, and the Court may then take whatever steps it 25 may deem necessary to preserve the confidentiality of said information during the course of, and after, 26 the public proceeding. 27 / / / 28 / / / 1 22. The Parties shall comply with the requirements of Local Rule 10-5(b), and the 2 Ninth Circuit’s decision in Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th 3 Cir. 2006), with respect to any documents filed under seal in this matter. 4 23. This Order shall not be construed to prevent any Party from making use of or 5 disclosing Information that was lawfully obtained by a Party independent of discovery in this 6 Litigation, whether or not such material is also obtained through discovery in this Litigation, or from 7 using or disclosing its own CONFIDENTIAL Information as it deems appropriate. 8 24. If either Party becomes required by law, regulation, or order of a court or 9 governmental entity to disclose any CONFIDENTIAL Information that has been produced to it under 10 the terms of this Order, such Party will reasonably notify the other Parties, in writing, so that the 11 original Producing Party has an opportunity to prevent or restrict such disclosure. The Party required 12 to disclose any CONFIDENTIAL Information shall use reasonable efforts to maintain the 13 confidentiality of such CONFIDENTIAL Information and shall cooperate with the Party that 14 originally produced the Information in its efforts to obtain a protective order or other protection 15 limiting disclosure; however, the Party required to disclose the Information shall not be required to 16 seek a protective order or other protection against disclosure in lieu of, or in the absence of, efforts by 17 the Producing Party to do so. 18 25. Upon termination of this Litigation, either by settlement or other action, any Party 19 and its counsel that obtained CONFIDENTIAL Information through discovery shall, upon 20 request, return all such CONFIDENTIAL Information to the Producing Party or certify as to its 21 destruction, except that Counsel may retain CONFIDENTIAL Information solely for archival 22 purposes. The restrictions of this Protective Order shall apply to Counsel for as long as they hold 23 such archival Documents. 24 26. The obligation to treat all Information designated as CONFIDENTIAL in 25 accordance with the terms of this Order and not to disclose such CONFIDENTIAL Information 26 shall survive any settlement or other termination of this Litigation. 27 / / / 28 / / / 1 27. The Parties may seek modification of this Order by the Court at any time, by 2 || stipulation or for good cause. 3 IT IS SO STIPULATED. 4 || DATED this 6" day of March, 2023. DATED this 6" day of March, 2023. 5 || GREENBERG TRAURIG, LLP WALKUP, MELODIA, KELLY & SCHOENBERGER, LLP 6 By: (s/f Kara B. Hendvricky By: /3/ Katherine S. Connolly 7 MARK F. FERRARIO KHALDOUN A. BAGHDADI g Nevada Bar No. 01625 (admitted Pro Hac Vice) KARA B. HENDRICKS CA Bar No. 190111 9 Nevada Bar No. 07743 VALERIE ROSE CHRISTIAN T. SPAULDING (admitted Pro Hac Vice) 10 Nevada Bar No. 14277 CA Bar No. 272566 10845 Griffith Peak Drive, Suite 600 Oe Burke □□ 11 Las Vegas, Nevada 89135 d te 4 □□ Hac Vi Counsel for Defendants Clark County (a 0c i f TO Sr, te) Fl 12 School District, John Anzalone and altormla SITeet, oor Marbella Alfonzo San Francisco, CA 94108-2615 13 Counsel for Plaintiffs 14 PANISH SHEA & BOYLE, LLP RAHUL RAVIPUDI 15 Nevada Bar No. 14750 IAN SAMSON 16 Nevada Bar No. 15089 ADAM ELLIS 17 Nevada Bar No. 14514 8816 Spanish Ridge Avenue 18 Las Vegas, Nevada 89148 Co-Counsel for Plaintiffs 19 20 ORDER 21 In consideration of the stipulation by the parties, and with good cause appearing, 22 IT IS SO ORDERED. 23 IT IS SO ORDERED. 24 wo

26 Cam Ferenbach United States Magistrate Judge 27 3-7-2023 DATED 28

1 CERTIFICATE OF SERVICE 2 I hereby certify that on March 6, 2023, I caused the foregoing document to be 3 electronically filed with the Clerk of the Court using the CM/ECF system, which will send 4 notification of such filing to the CM/ECF participants registered to receive such service. 5 /s/ Evelyn Escobar-Gaddi An employee of GREENBERG TRAURIG, LLP 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 E.A., by and through his Guardian ad Litem, Case No. 2:22-cv-01758-APG-VCF CHRYSTAL WARREN, D.J., by and through 6 his Guardian ad Litem, IRENE JOW; G.L., by and through his Guardian ad Litem, GRACE CERTIFICATION REGARDING 7 LACUESTA, STIPULATED CONFIDENTIALITY

8 AGREEMENT AND PROTECTIVE Plaintiffs, ORDER

9 v. 10 CLARK COUNTY SCHOOL DISTRICT, 11 JONATHAN CRONIN, JOHN ANZALONE, MARBELLA ALFONZO, DOES 150, 12 Defendants. 1 13 4

15 I have read the Stipulated Confidentiality Agreement & Protective Order in the above- 16 captioned case. I understand the terms of the Order, I agree to be fully bound by the terms of the 17 Order, and I hereby submit to the jurisdiction of the United States District Court for the District 18 of Nevada for purposes of enforcement of the Order. 19 Date: _____________________ Signature: __________________________ 20 21 Signatory’s Name, Business Affiliation, and Business Address: 22 ___________________________________ 23 ___________________________________ 24 ___________________________________

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