Wright v. Ethical Culture Fieldston School

Background

Plaintiffs Serene Wright and Josephine DeJesus assert discrimination and retaliation claims against Defendants under federal, New York State, and New York City laws. The Court was not deciding those underlying claims. Instead, it resolved the parties’ dispute over the language of a protective order governing discovery.

The parties submitted competing proposed orders. Plaintiffs’ version omitted any provision allowing materials to be designated “Highly Confidential – Attorneys’ Eyes Only” (AEO). Defendants’ version included such a provision. Under Defendants’ proposal, a producing party could make an AEO designation when it reasonably and in good faith believed the information was highly sensitive, disclosure could cause significant harm, the information was legally or contractually protected, or the party had a preexisting duty to keep it confidential.

Examples included protected health information; home addresses; Social Security numbers; dates of birth; financial, educational, disciplinary, attendance, personnel, employment, and payroll records; reports to child-protection agencies; contracts; demographic information; and minors’ names. AEO materials could be viewed by the parties’ counsel, necessary employees of counsel, consultants, the Court and its employees, and other people only by Court order or agreement of the parties. The order did not exclude the parties from viewing AEO-designated materials.

Parties’ positions

Plaintiffs argued that the AEO provision would prevent their counsel from discussing, sharing, and developing evidence with Plaintiffs. They cited employment and discrimination cases in which courts had denied requests for AEO designations and argued that Defendants had not shown the required good cause.

Defendants argued that the provision was necessary because Plaintiffs had indicated that they intended to seek disciplinary, incident, and investigative records concerning students who were not parties to the case. Defendants said those students could not object to disclosure of their sensitive records and cited federal and New York privacy obligations. Defendants also pointed to the protective order used in an earlier related action and noted that the parties could meet and confer about particular designations and seek the Court’s intervention if needed.

Court’s analysis

Federal Rule of Civil Procedure 26 permits discovery of nonprivileged information that is relevant and proportional to the needs of the case. A party may seek a protective order for good cause when discovery would cause annoyance, embarrassment, oppression, or undue burden or expense. The party seeking protection bears the burden of showing good cause.

The Court found the AEO provision appropriate because Plaintiffs intended to seek sensitive records concerning nonparty students. The Court noted that federal and New York law impose obligations and procedures on the school before such information can be disclosed, along with possible penalties for improper disclosure. The Court also cited decisions requiring student records to be produced on an attorneys’-eyes-only basis because of privacy protections for educational records.

The Court distinguished Plaintiffs’ cited cases because those cases involved adult personnel records and did not involve the particular federal or state privacy obligations applicable to educational records of minor students. The Court also concluded that the process for challenging individual AEO designations provided a sufficient safeguard against interfering with Plaintiffs’ ability to pursue their claims. The Court described this case as one of the rare instances in which an AEO provision was warranted.

The Court separately stated that Plaintiffs’ concerns about redactions of particular documents were not yet ready for decision. Those concerns could first be raised with Defendants’ counsel and then presented to the Court if the parties could not resolve them.

Disposition

Magistrate Judge Sarah L. Cave endorsed and entered Defendants’ proposed protective order, including its AEO provision, as the protective order governing discovery in the action.