STATE OF NEW YORK
`SUPREME COURT
`
`LAWRENCE DUMOND,
`
`Plainti ft;
`
`-against-
`
`ELLENVILLE CENTRAL SCHOOL DISTRICT,
`. BOARD OF EDUCATION OF THE ELLENVILLE
`CENTRAL SCHOOL DISTRICT, JOHN AND JANE
`DOE 1-30, teachers, supervisors, and employees, in their
`official and individual capacities, whose identities
`are presently unknown to Plaintiff,
`
`Defendants.
`
`COUNTY OF ULSTER
`
`CONFIDENTIALITY
`STIPULATION AND
`PROTECTIVE ORDER
`
`Index No.: EF2021-949
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`IT IS HEREBY STIPULATED AND AGREED, by and between Plaintiff and Defendants,
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`through their respective counsel and subject to the approval of this Court, that the following
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`Confidentiality Stipulation and Protective Order shall be entered in this action. This Order shall
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`govern the production of documents from Defendants to Plaintiff:
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`I.
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`Discovery Matedals. This Stipulation and Protective Order applies to all products
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`of discovery and all information derived therefrom, including, but not limited to, all school records,
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`documents and deposition testimony and any copies, excerpts at· summaries thereat; as well as the
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`contents of any and all personnel files ("Discovery Materials"), obtained by any party pursuant to
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`the rcq u irements of any court order, requests for production of documents, req ucsts for admissions,
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`interrogatories or subpoenas.
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`2.
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`School Records. This Stipulation and Protective Order flllther applies to any and
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`all production of Defendants' student school records. incident reports. disciplinary records,
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`directory information and all information derived therefrom. including but not limited to, the
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`specil~c production of documents provided for by Defendants· responses to any of Plaintiffs
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`discovery demands .
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`3.
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`Identification of Confidential Discovery Materials. All Discovery Materials that
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`contain personal information of a confidential nature as determined by statute, rule or regulation
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`including. but not limited to, student names, addresses, telephone numbers, contact information,
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`dates of birth, disciplinary records, education records, personnel/employment records, personal
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`and/or medical records may in good faith be identified as "Confidential" by the producing par1y
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`and shall be subject to the provision of this Stipulation and Protective Order. Such designation
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`will take place prior to production by the producing person, or subsequent to selection by the
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`receiving party for copying by prior to the actual copying. Confidential Discovery Materials shall
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`be used solely for the purposes of this litigation and for no other purpose without the prior written
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`approval fl·om the Court or the prior written consent of the producing party or the involved
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`individual whose confidential information is at issue.
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`4.
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`Subject to the provisions of paragraph "3" of this Protective Order, disclosure of
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`any Confidential Discovery Materials shall be limited to:
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`a.
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`the Court, including any appellate cou11, and its staff;
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`b. any mediator, arbitrator, referee, or special master that the parties agree to or
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`that this Court appoints;
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`c. "counsel." which includes Plaintiffs counsel and Defendants' counsel and their
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`office attorneys, legal assistants, investigators and clerical staffs or any other
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`individual acting as an agent of the aforementioned;
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`d. persons shown on the face of the document to have authored or received it, fact
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`witnesses or the individual whose information is the subject of the material;
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`e. court reporters and videographers retained to transcribe testimony;
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`r.
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`the parties;
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`g. retained expe1ts or vendors, and their employed personnel, who are expressly
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`retained by or on behalf of any pmiy to provide assistance or testimony with
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`respect to the underlying litigation; and
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`h. any potential witness in this Litigation, including but not limited to at deposition
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`or trial.
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`5.
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`Challenging Confidential Designation. Counsel for a pa1iy to whom Confidential
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`Discovery Materials are being produced may challenge the "Confidential" designation made by
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`the producing party by first requesting a "meet and confer" with the producing party in an attempt
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`to amicably resolve the challenge. Such request for a "meet and confer" will be made through
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`written notice served upon the producing pmiy which identifies the challenged designated
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`information and the factual and legal basis for the challenge. Such "meet and confer" shall take
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`place within seven (7) business days of receipt of the challenge and resolved within two (2)
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`busine~s days thereafter. Failure of the producing party to abide by these deadlines operates to
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`remove the "Confidential" designation. In the event an agreement cannot be reached, the proponent
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`of confidentiality shall apply by motion for a ruling as to whether the designated discovery material
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`may, in accordance with thi s Order, be treated as confidential. This motion shall be made within
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`ten (1 0) days !'rom the date on which the parties, after good faith attempt, agree that they cannot
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`resolve the dispute or such othertirne period agreed to by the parties. The pa1iy seeking to maintain
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`the materials as "Confidential" shall have the burden of proof on such motion to establish the
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`propriety of its confidential designation. The Discovery Materials desig1wted "Confidential" shall
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`continue to be treated as such and subject to the provisions ofthis Confidentiality Stipulation and
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`Protective Order pending determination by the Court of the merits of any such motion.
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`In the
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`event that the CoLJJi enters an order that particular Discovery Materials are not entitled to the
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`designation ·'Confidential". the Discovery Materials shall nevertheless continue to be treated as
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`"Confidential" and subject to the terms ofthis Confid entiality Stipulation and Protective Order for
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`thirty (30) days following the service of Notice of Entry of such order to enable the producing
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`party to seek review and a stay of such order.
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`6.
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`Disclosure of Confidential Discovery Material.
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`a.
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`The disclosure of the Discovery Materials designated as "Confidential" by
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`counsel for a party to the Litigation to legal assistants, paralegals and clerical staff: investigators
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`or others employed as agents of the disclosing counsel and the Court is allowed under the terms of
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`this Stipulation and Protective Order without I imitation and without the need to execute an
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`Af11davit. Such disclosure shall not constitute a violation or a waiver of the protections afforded
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`by the Confidentiality Stipulation and Protective Order. Said assistants, paralegals and clerical
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`staff, investigators or others employed as agents of the disclosing counsel, are bound by this Order
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`to the same extent as the pa11ies and attorneys are bound.
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`b.
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`Disclosure by counsel tor a pm1y in the Litigation to any of the other
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`individuals/entities
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`identified
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`in
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`sections 4.c-h of Discovery Materials designated as
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`"Confidential" by another party shall not constitute a violation or waiver of the protections
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`afforded by this Confidentiality Stipulation and Protective Order to the extent that such disclosure
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`is reasonably necessary to assist in the prosecution or defense of the Litigation.
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`7.
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`Disclosure of Discovery Materials designated as "Confidential" other than in
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`accordance with the terms of this Confidentiality Stipulation and Protective Order may subject the
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`disclosing person to such sanctions and remedies as the Court may deem appropriate.
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`8.
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`All persons receiving or given access to Discovery Materials designated as
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`"Confidential" in accordance with the terms of this Confidentiality Stipulation and Protective
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`Order consent to the continuing jurisdiction of this Court for the purposes of enforcing this
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`Confidentiality Stipulation and Protective Order and remedying any violations thereof. All parties
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`and their respective counsel, paralegals and the employees and assistants of all counsel, and experts
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`receiving Discovery Mnterials designated as "Confidential" shall take steps reasonably necessary
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`to prevent the disclosure of Confidential Discovery Materials other than in accordance with the
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`terms ofthis Confidentiality Stipulation and Protective Order.
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`9.
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`This Order does not automatically seal court records in this case or apply to the
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`disclosure of Confidential Discovery Material at trial. It is only intended to facilitate the prompt
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`production of discovery materials. A party that seeks to file with this CoUJt any material that
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`contains, describes, identifies, discloses, discusses, refers to or attaches any Discovery Materials
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`designated as "Confidential" shall file such Discovery Materials under seal in compliance with
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`applicable Jaw. Documents filed under seal with the Clerk of the Court shall be kept under seal
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`until further order of the CoUit, so long as the Court permits, in a sealed envelope with information
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`required by the Court as well as the following statement endorsed on it:
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`"Confidential.
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`This envelope contains documents that are subject to a Protective Order entered by
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`the Cout·t in this action governing the use of Confidential Discovery Material. All
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`such material so filed shall be maintained by the Clerk ofthe Court separate from the
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`public records in this action, and shall be released only upon further Order of the
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`Court."
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`I 0.
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`The producing pa11y of any Confidential Discovery Materials attached to or
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`referenced in a document filed with the Cowt under seal may assent to the unsealing of the
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`document at any juncture without waiving its assertion of confidentiality as to any other Discovery
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`Materials.
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`I I.
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`Subject to the provisions of paragraph "6'. of this Protective Order, nothing shall
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`prevent disclosure beyond that required under this Confidentiality Stipulation and Protective Order
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`if the producing party consents in writing to such disclosme, or if the Court, alter notice to all
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`affected pa11ies, orders such disclosure and that Order is not subject to an appellate stay within
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`thi11y (30) days after Notice of Entry of the Order is served on the producing party.
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`12.
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`Any party who inadvertently fails to identify documents, including school records,
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`as "Confidential" shall, promptly upon discovery of its oversight, provide vvritten notice of the
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`error and substitute appropriately designated documents produced in the same format as the
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`incorrectly designated document was initially produced. Any pmty receiving such inadvertently
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`unmarked documents shall, following receipt of notice of the error, treat such documents as
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`Confidential as if they had initially been designated as such, make good faith and reasonable efforts
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`to retrieve documents distributed to persons not entitled to receive documents with the corrected
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`"Confidential" designation and, upon receipt of the substitute documents, promptly return or
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`destroy the improperly designated document(s) and/or the electronic media on which such
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`document(s) reside. However, any dissemination or disclosure of such later-designated
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`information shall not be deemed a violation of this Confidentiality Stipulation and Order until the
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`information is designated as "Confidential."
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`13.
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`Procedure for Use in Court. Discovery Material received by the Court or entered
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`into evidence in non-trial proceedings shall not Jose its status as "Confidential" Discovery
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`Materials as a result. The use of any Discovery Material designated as ;'Confidential" at trial will
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`be addressed in the Court's Pretrial Order.
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`14.
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`This Confidentiality Stipulation and Protective Order shall be binding throughout
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`and after final adjudication of this action, including but not limited to any final adjudication of any
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`appeals and petitions for extraordinary writs.
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`I 5.
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`Unless otherwise ordered or agreed in writing by the producing party. and if
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`requested by the producing party, each receiving pa11y must return all Confidential Discovery
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`Material to the producing party or provide a ce1tification to the producing pmty that all
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`Confidential Discovery Material in their possession has been destroyed after the final termination
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`of this action including copies of materials provided to third parties under the provisions of this
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`Order. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
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`pleadings, motion papers, transcripts, legal memoranda, court submissions, including exhibits,
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`correspondence, attorney work product, transcripts and accompanying exhibits, and memoranda
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`that contain, attach or refer to Confidential Discovery Materials, including a complete record of
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`any proceedings before the cou1i, even if such materials contain Confidential Discovery Material.
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`Any such archival copies that contain or constitute Confidential Discovery Material remain subject
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`to this agreement as set forth in Paragraph "15" above. Nothing herein shall require a party or its
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`counsel to delete Confidential Discovery Materials of another party that may reside on its
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`respective electronic archives or disaster recovery systems, except that such materials will not be
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`retrieved or used for any purpose atler conclusion of this action.
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`16. Within thirty (30) days after final adjudication of this action, including but not
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`limited to, any final adjudication of any appeals and petitions for extraordinary writs, Plaintiff or
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`Defendants may request that the Clerk return under seal to counsel for the producing party all
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`Discovery Materials designated "Confidential" including, without limitation, all transcripts or
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`other things that were subject to the provisions of this Confidentiality Stipulation and Protective
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`Order.
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`17.
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`Any party may apply to the Court for a modification of the Confidentiality
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`Stipulation and Protective Order, and nothing in this Confidentiality Stipulation and Protective
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`Order shall be construed to prevent a party from seeking such further provisions enhancing or
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`I im iting confidentiality as may be appropriate.
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`18.
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`No action taken in accordance with the Conndentiality Stipulation and Protective
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`Order shall be construed as a waiver of any claim or defense in the Litigation or of any position as
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`to discoverabi I ity or admissibility of evidence. In addition, nothing in this order shall be construed
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`as limiting any waiver of physician-patient privilege by Plaintiff by reason of bringing this action
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`and asserting claims for damages.
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`19.
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`If a receiving party or its counsel or expert is served with a subpoena or other
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`process by any court, administrative or legislative body, or any other person or organization that
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`calls for production of any Confidential Discovery Materials produced by another party, the party
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`to whom the subpoena or other process is directed will provide prompt notice to the disclosing
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`party through its counsel. The recipient of the subpoena, court order or legal demand shall not
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`object to the disclosing party's appearance to protect its interest in maintaining the information as
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`confidential. The party to whom the subpoena or other process is directed shall not, to the extent
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`permitted by applicable law, provide or otherwise disclose such documents or information until
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`ten (I 0) business days after notifYing counsel for the producing party in writing of all of the
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`following: (I) the information and documentation requested for production in the subpoena; (2)
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`the date on which compliance with the subpoena is requested; (3) the location at which compliance
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`with the subpoena is requested; (4) the identity ofthe party serving the subpoena; and (5) the case
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`name, jurisdiction and index, docket, complaint, charge, civil action or other identification number
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`or other designation identifying the litigation, administrative proceeding or other proceeding in
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`which the subpoena has been issued.
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`20.
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`Nothing in this Confidentiality Stipulation and Protective Order shall be construed
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`to prevent this Court from disclosing any facts relied upon by it in making or rendering any finding,
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`ruling, order. judgment or decree of whatever description.
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`21 .
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`Each pa11y shall bear its own costs for complying with this Confidentiality
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`Stip11lation and Protective Order.
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`SWEENEY, REICH & BOLZ, LLP
`
`Ka~n~
`
`Michael H. Reich, Esq.
`Attorneys for Plaintiff
`1981 Marcus A venue, Ste. 200
`Lake Success, New York 11 042
`(718) 459-9000
`kho ffman(ti)srblawfinn .com
`
`enville Central School District
`3154 Route 9W, P.O. Box I 80
`Saugerties, New York 12477
`(845) 246-3668
`mandel l@moscllp.com
`
`LAW OFFICE OF MICHAEL G. DOWD
`
`Michael G. Dowd, Esq.
`Attorney for Plaintiff
`1981 Marcus A venue, Ste. 200
`Lake Success, New York 11042
`(212) 751-1640
`!llidw lgdo"I:Y!llffignll!iL&Q!fl
`
`SO ORDERED
`
`.Justice of the Supreme Court
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`9
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