of a sensitive or non-public nature regarding plaintiff, defendants, non-
party witnesses, and non-party employees of the Board.

This definition of confidential information is designed to more closely align with the types
of information that may be discovered in cases involving the Board, as well as the
statutory requirements concerning Board records. This includes, but is not limited to,
confidential information in personnel and student records pertaining to non-parties such
as students and current or former employees of the Board.

e The Board's order provides a “good faith” component to an attorney's designation of a
document as “confidential.” (Paragraph 3(b)).

This language is intended to reduce disputes over confidentiality designations by
requiring the attorneys making such designations to exercise good faith.

e The Board’s order notes the parties will make reasonable efforts to protect student
identities in the taking of depositions. (Paragraph 4).

This provision is necessary because student identities and other student
information often come into play in Board cases. Student information is protected under
the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. Section 1232g and
pursuant to state law.

e Because the most common confidential information in Board cases involves that of third
parties such as students or non-party employees or former employees, as opposed to that
of the Board itself, the Board’s order disposes of the requirement that a party re-designate
deposition testimony as “confidential” two weeks after receiving the transcript,
providing that confidentiality designations made during a deposition are sufficient.
(Paragraph 4).

The basis for this tweak to the Model Order is the Board’s belief that the non-parties

whose confidential information is at issue should not be punished by any technical failure

by a Board lawyer to designate deposition testimony as confidential for a second time. The


Deviation from Model Order

Reason for Board Objection

Following the litigation, Plaintiffs want
to keep a complete set of all confidential
documents produced, which is not
contemplated by the Model Order. This
change is found in Paragraph 14(c) of
Plaintiffs’ proposed order.

Use of confidential information after the litigation has
ended should be barred and there is no need for any
counsel to maintain a copy of it after the litigation has
concluded.

Adds “or that have been tendered to
third parties” to Paragraph 2 of the
Model Order.

That the Board may have produced the documents in
another case (also under a protective order) does not
remove the entitlement of such documents to
confidentiality protection. Additionally, it would be
unduly burdensome for the Board to ascertain for
every document produced in this case whether and
under what circumstances it was produced in other
litigation.

Includes Alternative A to Paragraph 4 of
the Model Order, regarding waiving
deposition designations of confidential
information if the information is not re-
designated as confidential within
fourteen days after delivery of the
deposition transcript.

As the Board explains above, the Board does not
believe this provision is appropriate in a protective
order in this case because so much of the confidential
information in Board documents pertains to non-
parties such as students and current and former Board
employees. It is not fair to penalize those non-parties
with the disclosure of their confidential information if
a technical mistake occurs when a party fails to “re-
designate” information as confidential which has
already been so designated in a deposition.

The Board will be prepared to discuss these and other, less significant, disagreements with

Plaintiffs’ proposed protective order at the October 3, 2013, status, as requested in the

Court’s Order of October 1, 2013. In short, however, the fact that Plaintiffs’ proposed

protective order language does not appear to have been entered in a single other case in

this District is indicative of the inappropriateness of Plaintiffs’ proposed language.

CONCLUSION

Based on the foregoing, the Board respectfully requests that the Court enter the

Board’s proposed protective order, deny Plaintiffs’ motion and grant the Board all other

relief to which it may be entitled.



(Magistrate Brown); and Woodman, 12-9695 (Magistrate Schenkier). In contrast, counsel for
the Board asked Plaintiffs’ counsel to identify any cases in which Plaintiffs’ proposed

protective order has been entered; counsel did not respond.
ARGUMENT

For the reasons set forth below, the Court should enter the Board’s proposed
protective order and deny Plaintiffs’ Motion.
A. The Board’s Proposed Protective Order Is Reasonable, Effective and Appropriate.
The following are the Board’s explanations for the few deviations between its
proposed protective order and the Model Order:

e The Board's order clarifies the definition of “Confidential Information” to include the
types of information commonly found in discovery in Board cases, such as student
records and personnel, medical and other private records of current and former Board
employees (Paragraph 2, a revision anticipated in footnote 2 of the Model Order).

The Board’s order defines the following information as confidential, which varies
from the definitions provided in the Model Order:

(a) information prohibited from disclosure by statute, including the
Illinois Personnel Records Review Act, 820 ILCS 40/0.01, et seq., the
Illinois Freedom of Information Act, 5 ILCS 140/1, et seq., as amended,
and the Illinois School Student Records Act, 105 ILCS 10, et seq.; (b)
information in personnel files, disciplinary files, grievance files, histories
and confidential information in the files generated by the investigation of
complaints of former or current Board employees; (c) any and all school
documents or student records by which any current or former student of
the Chicago Public Schools may be individually identified; (d) medical
information concerning any individual; (e) personal identity information,
including social security numbers, dates of birth, family information of
current and former Board employees, and residential information of
Board employees; (f) financial information, including income tax returns
schedules and attachments; or (g) personnel or employment records of a
person who is not a party to the case. Such information includes, but is not
limited to, private information in personnel files, such as employment
applications, performance evaluations, tax forms, requests for medical

leave, disciplinary, financial, benefits, medical or other information that is
4


Board believes the initial designation during a deposition should be sufficient to maintain
protection under the protective order. If the other party believes the designating party has

over-designated deposition testimony as confidential, the protective order contains

remedies for that.

e The Board's order provides, “Nothing in this Protective Order shall be deemed a waiver
of any party's right to timely object to the discovery requests on any proper grounds.”

(Paragraph 8).

The Board uses this language to clarify that the protective order does not foreclose a

party’s right to make appropriate objections to discovery requests.

B. Plaintiffs’ Proposed Order Deviates from the Model Order in Significant and
Inappropriate Ways, Defeating the Purpose of a Protective Order.

Plaintiffs’ proposed protective order contains numerous substantive deviations

from the Model Order. The following chart, which is not intended to be all-inclusive,

shows the most objectionable ways in which Plaintiffs’ proposed order deviates from the

Model Order:

Deviation from Model Order

Reason for Board Objection

Adds language allowing confidential
information to also be used “in other
proceedings or litigation involving one
or more of the parties” to Paragraph 5(a)
of the Model Order. Also, in Attachment
A to the protective order, Plaintiffs seek
to add language which would permit use
of confidential documents from this case
in “litigation or proceedings involving
any of the parties.”

This defeats the purpose of a protective order, which is
to limit use of the confidential information to the case
at hand.

Plaintiffs want to disclose confidential
information to “agents” of counsel, not
just counsel and its employees, as set
forth in Paragraph 5(b)(1) of Plaintiffs’
proposed order.

Plaintiffs have explained during the parties’
conferences about the protective order that they
believe this language may entitle them to reveal
confidential information to the CTU (Chicago Teachers
Union), which is not a party to this litigation. The
Board opposes any provision authorizing disclosure of
confidential information to the CTU or other third
parties not encompassed by Paragraph 5(b) of the

6



Respectfully submitted,

JAMES L. BEBLEY
General Counsel

By:  s/Lisa A. Dreishmire
Lisa A. Dreishmire
Patricia J. Kendall
Board of Education of the City of Chicago
Law Department, 125 S. Clark Street, Ste. 700
Chicago, IL 60603
(773) 553-1700

CERTIFICATE OF SERVICE

I certify that I caused the foregoing Motion to be sent to all attorneys of record via
the Court's electronic notification system on October 2, 2013.

s/Lisa A. Dreishmire
Lisa A. Dreishmire



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BARBARA FERKEL, et al.
Plaintiffs,
No.  11-CV-09322

Vv.

BOARD OF EDUCATION OF THE
CITY OF CHICAGO,

)

)

)

)

)

)

) Judge Edmond E. Chang

)

)

Defendant. )

DEFENDANT'S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO
COMPEL AND FOR ENTRY OF PROTECTIVE ORDER

Defendant the BOARD OF EDUCATION OF THE CITY OF CHICAGO files this Response in
Opposition to Plaintiffs’ Motion to Compel and for Entry of Protective Order (Docket #94)
and states:

INTRODUCTION

Plaintiffs move for entry of a protective order that deviates in significant and
objectionable ways from this Court’s Model Order. Among other things, their proposed
order would: (1) permit use of the Board’s confidential documents in other litigation; (2)
permit Plaintiffs to give the Board’s confidential documents to the Chicago Teachers
Union (“CTU”) and other non-parties; and (3) permit Plaintiffs to keep a set of the
confidential documents produced in this case even after the litigation has ended. The
Board is unaware of any Court which has previously entered Plaintiffs’ proposed
protective order. In contrast, the Board’s proposed protective order (Exhibit A) has been
entered in at least 13 other cases in this District. The Board respectfully requests that the

Court enter the Board’s proposed protective order. After a protective order has been


Deviation from Model Order

Reason for Board Objection

Model Order.

Plaintiffs want to expand the “parties”

who may receive confidential
information to include “former
employees” in Paragraph 5(b)(2) of

Plaintiffs’ proposed order.

Former employees are no longer in control of a party
and it is inappropriate for them to have access to
confidential information under those circumstances.

Plaintiffs want to delete the Model Order
language of Paragraph 5(b)(2) which
limits disclosure of confidential
information to parties and employees
“only to the extent counsel determines in
good faith that the employee's assistance
is reasonably necessary to the conduct of
the litigation in which the information is
disclosed.”

The Board feels the “good faith” requirement is
necessary, in part because a number of documents
produced by the Board in this litigation will never
before have been seen by a plaintiff, were not authored
by any plaintiff, will not pertain to any specific
plaintiff and no plaintiff will have reason to review
such documents.

Plaintiffs want to allow disclosure of
confidential information to “consultants,
investigators, or experts” they utilize,
who may not be employed by Plaintiffs,
as set forth in Paragraph 5(b)(6) of
Plaintiffs’ proposed order. This is an
addition not found in the Model Order.

Plaintiffs have explained during the parties’
conferences about the protective order that they
believe this language may entitle them to reveal
confidential information to the CTU, which is not a
party to this litigation. The Board opposes any
provision authorizing disclosure of confidential
information to the CTU or other third parties not
encompassed by Paragraph 5(b) of the Model Order.

Plaintiffs want to allow witnesses to
review confidential information not just
during depositions (as provided in the
Model Order), but also “in preparation
for their depositions or testimony at trial
or hearing” and want such witnesses to
retain copies of confidential documents
“as needed for their testimony, trial or
pretrial preparation,” as well as copies of
all exhibits marked at their depositions,
not limited to the purpose of transcript
review. These changes are found in
Paragraph 5(b)(7) of Plaintiffs’ proposed
order.

The Board is concerned that allowing witnesses to
retain possession of confidential information for an
extended, non-defined period of time will increase the
chance that such information will be used or disclosed
in a manner contrary to the spirit of the protective
order. The “as needed” language is extremely vague
and provides virtually no limit on the parties’ ability to
reveal confidential documents to anyone they might
label as a “witness.”

Plaintiffs want to permit “Anyone who is
authorized to view Confidential
documents or information” to “discuss
and communicate about the Confidential
documents and information with anyone
else who is also authorized to view
Confidential documents and
information.” This change is found in
Paragraph  5(b)(12) of _~——~Pilaintiffs’
proposed order.

The Board is concerned with the practical implications
of this provision because it will increase the chance
that confidential information will be disclosed. For
instance, allowing individual _ plaintiffs —_to
communicate with each other about confidential
documents outside their communications with counsel
exponentially increases the chances of confidential
information being revealed to those who are not
entitled to access it.



entered, the Board will produce its confidential documents to Plaintiffs within fourteen
(14) days.

BACKGROUND
AL Negotiations Concerning the Proposed Protective Order.

On July 25, 2013, the Board sent Plaintiffs a draft protective order for review which
is substantially similar to the order entered by 13 other Courts in this District. (Exhibit B).
Plaintiffs failed to respond to the draft order until August 14, 2013. (Exhibit C). Instead of
providing feedback on the Board’s draft order, Plaintiffs sent a new proposed protective
order of their own. (Exhibit C). Since that date, the parties have exchanged thoughts on the
terms of an appropriate protective order in this case via e-mail and telephone, but have
been unable to reach agreement. The Board disagrees with many of Plaintiffs’
representations in the Motion concerning the facts underlying the history of this dispute.
However, because those disagreements are not germane to the merits, the Board does not
address them here.

B. The Board’s Protective Order Closely Tracks the Model Protective Order.

The Board’s proposed protective order closely tracks the Court's Model Order. A
redline showing the differences is attached as Exhibit D.! The substantive differences
between the Model Order and the Board’s proposed protective order are:

e The Board’s order clarifies the definition of “Confidential Information” to

include the types of information commonly found in discovery in Board cases,
such as student records and personnel, medical and other private records of

1 In some instances, the automated redline shows “differences” between the Model Order and the
Board’s proposed protective order which do not actually exist. In those instances, the Court will
see the same language “stricken” in the redline is also present and unaltered in the redline.

2


current and former Board employees (Paragraph 2, a revision anticipated in
footnote 2 of the Model Order).

e The Board’s order provides a “good faith’ component to an attorney’s
designation of a document as “confidential.” (Paragraph 3(b)).

e The Board’s order notes the parties will make reasonable efforts to protect
student identities in the taking of depositions. (Paragraph 4).

e The Board’s order disposes of the requirement that a party re-designate
deposition testimony as “confidential” two weeks after receiving the transcript,

providing that confidentiality designations made during a deposition are
sufficient. (Paragraph 4).

e The Board’s order provides, “Nothing in this Protective Order shall be deemed a
waiver of any party’s right to timely object to the discovery requests on any

proper grounds.” (Paragraph 8).
Otherwise, the Board’s order tracks the Model Order. These sparing revisions to the Model
Order’s language are necessary due to the unique nature of confidential information the
Board possesses —specifically, that involving non-party students and current or former

employees —~as explained in more detail below.

Cc. Numerous Northern District of Illinois Courts Have Entered the Board’s
Protective Order; No Court is Known to have Entered Plaintiffs’ Proposed Order.

The protective order proposed by the Board has been entered in a number of other
cases in the Northern District of Illinois. Specifically, in the following cases, the judges
noted have entered the Board’s protective order in substantially similar form to that
proposed here: Aguilera, 11-9241 (Judge Kendall); Cooksey, 12-7180 (Judge Lefkow); Elmore,
12-7531 (Judge Der-Yeghiayan); Garcia, 12-9499 (Judge Norgle); Hall, 12-4063 (Magistrate
Cox); Miller, 11-8727 (Judge Zagel); Milloy, 12-4368, (Judge Shadur, with additional
inclusions by Judge Shadur); Mixon, 12-562 (Judge Lee); Nelson, 12-9838 (Judge Zagel);

Ortega, 11-08477 (Judge Durkin); Ortiz, 11-9228 (Magistrate Kim); Waddy, 10-6158
3