Doe v. Columbia University

What the order addressed

The parties requested a protective order under Federal Rule of Civil Procedure 26(c) for the pretrial discovery phase. Judge Cott found good cause for a tailored order covering nonpublic and competitively sensitive information, including private information about current or former Columbia students. The order also addresses records potentially regulated by the Family Educational Rights and Privacy Act (FERPA), the Health Insurance Portability and Accountability Act (HIPAA), and other privacy laws.

Confidential information

A producing party may designate only portions of discovery material that it reasonably and in good faith believes are confidential. Listed categories include previously undisclosed financial information, information about nonpublic-company ownership or control, business plans and marketing information, personal or intimate information, health records, and education records protected by FERPA. Confidential material generally may be disclosed only to specified participants, such as the parties, counsel, certain service providers, mediators, experts, witnesses, court personnel, and others identified in the order. Experts and mediators must first sign a nondisclosure agreement.

The materials may be used only to prosecute or defend this action and related appeals. People with access must take precautions against unauthorized or accidental disclosure. Within 60 days after final disposition, recipients generally must return or destroy the confidential material and certify that they retained no copies, although counsel specifically retained for the case may keep archival copies subject to the order. The order remains binding after the litigation ends, and the court retains jurisdiction to enforce it and impose contempt sanctions.

Student education records and pseudonyms

The order permits Columbia to produce education records with personal identifying information redacted or replaced by pseudonyms when Columbia reasonably determines that the student is not identifiable. Columbia must make reasonable efforts to notify current or former students whose identities may be disclosed so they can seek court protection. A notified student has 10 business days after receiving notice to state an intent to seek protection and an additional five business days after returning the notice to apply to the court. If the student timely indicates an intent to seek protection, Columbia need not produce the records or information until the court rules on the application.

Subject to the existing pseudonymization order, Columbia may disclose John Doe’s education records to the court to defend itself and in response to Doe’s discovery requests without notifying Doe or redacting Doe’s identifying information in those circumstances. Names and other identifying information of witnesses in the disciplinary proceedings must be redacted or pseudonymized in documents produced in the litigation. Before materials are used publicly, names and other identifying information of current or former Columbia students—including the plaintiff and Jane Does—must be redacted or replaced with pseudonyms consistent with the earlier pseudonymization order.

Court filings and disputes

A party filing confidential discovery material or papers that reveal it must publicly file a redacted version and file an unredacted version under seal, subject to the court’s sealing procedures. A party seeking sealing must provide a particularized justification. The order states that the court has not itself found that any designated material is confidential and may decide later whether confidential treatment is appropriate; it also warns that material introduced at trial is unlikely to remain sealed without the required findings.

Parties may object to confidentiality designations or request additional disclosure limits, such as attorneys’-eyes-only treatment in extraordinary circumstances. If the parties cannot resolve those disputes, they must bring them to the court under its individual practices. The order does not waive objections to discovery, privileges, or protections, and it does not decide whether any evidence is admissible at trial.

Disposition and judge

The court entered the confidentiality agreement and protective order on April 26, 2023. Judge James L. Cott, identified in the opinion as a United States Magistrate Judge, issued the order. The opinion is a discovery-related procedural order and does not reach the merits of John Doe’s claims against Columbia University.